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Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 100113 September 3, 1991

RENATO CAYETANO, petitioner, vs.CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as Secretary of Budget and Management, respondents.

Renato L. Cayetano for and in his own behalf.

Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.

 

PARAS, J.:p

We are faced here with a controversy of far-reaching proportions. While ostensibly only legal issues are involved, the Court's decision in this case would indubitably have a profound effect on the political aspect of our national existence.

The 1987 Constitution provides in Section 1 (1), Article IX-C:

There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective position in the immediately preceding -elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (Emphasis supplied)

The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution which similarly provides:

There shall be an independent Commission on Elections composed of a Chairman and eight Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age and holders of a college degree. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years.' (Emphasis supplied)

Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as a legal qualification to an appointive office.

Black defines "practice of law" as:

The rendition of services requiring the knowledge and the application of legal principles and technique to serve the interest of another with his consent. It is not limited to appearing in court, or advising and assisting in the conduct of litigation, but embraces the preparation of pleadings, and other papers incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all kinds, and the giving of all legal advice to clients. It embraces all advice to clients and all actions taken for them in matters connected with the law. An attorney engages in the practice of law by maintaining an office where he is held out to be-an attorney, using a letterhead describing himself as an attorney, counseling clients in legal matters, negotiating with opposing counsel about pending litigation, and fixing and collecting fees for services rendered by his associate. (Black's Law Dictionary, 3rd ed.)

The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co. v. Dworken,129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in the practice of law when he:

... for valuable consideration engages in the business of advising person, firms, associations or corporations as to their rights under the law, or appears in a representative capacity as an advocate in proceedings pending or prospective, before any court, commissioner, referee, board, body, committee, or commission constituted by law or authorized to settle controversies and there, in such representative capacity performs any act or acts for the purpose of obtaining or defending the rights of their clients under the law. Otherwise stated, one who, in a representative capacity, engages in the business of advising clients as to their rights under the law, or while so engaged performs any act or acts either in court or outside of court for that purpose, is engaged in the practice of law. (State ex. rel. Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)

This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177) stated:

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The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and other papers incident to actions and special proceedings, the management of such actions and proceedings on behalf of clients before judges and courts, and in addition, conveying. In general, all advice to clients, and all action taken for them in mattersconnected with the law incorporation services, assessment and condemnation services contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in matters of estate and guardianship have been held to constitute law practice, as do the preparation and drafting of legal instruments, where the work done involves the determination by the trained legal mind of the legal effect of facts and conditions. (5 Am. Jr. p. 262, 263). (Emphasis supplied)

Practice of law under modem conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects, and the preparation and execution of legal instruments covering an extensive field of business and trust relations and other affairs. Although these transactions may have no direct connection with court proceedings, they are always subject to become involved in litigation. They require in many aspects a high degree of legal skill, a wide experience with men and affairs, and great capacity for adaptation to difficult and complex situations. These customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between that part of the work of the lawyer which involves appearance in court and that part which involves advice and drafting of instruments in his office. It is of importance to the welfare of the public that these manifold customary functions be performed by persons possessed of adequate learning and skill, of sound moral character, and acting at all times under the heavy trust obligations to clients which rests upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] , p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139,144). (Emphasis ours)

The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-1975) listed the dimensions of the practice of law in even broader terms as advocacy, counselling and public service.

One may be a practicing attorney in following any line of employment in the profession. If what he does exacts knowledge of the law and is of a kind usual for attorneys engaging in the active practice of their profession, and he follows some one or more lines of employment such as this he is a practicing attorney at law within the meaning of the statute. (Barr v. Cardell, 155 NW 312)

Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. "To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill." (111 ALR 23)

The following records of the 1986 Constitutional Commission show that it has adopted a liberal interpretation of the term "practice of law."

MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do during our review of the provisions on the Commission on Audit. May I be allowed to make a very brief statement?

THE PRESIDING OFFICER (Mr. Jamir).

The Commissioner will please proceed.

MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit. Among others, the qualifications provided for by Section I is that "They must be Members of the Philippine Bar" — I am quoting from the provision — "who have been engaged in the practice of law for at least ten years".

To avoid any misunderstanding which would result in excluding members of the Bar who are now employed in the COA or Commission on Audit, we would like to make the clarification that this provision on qualifications regarding members of the Bar does not necessarily refer or involve actual practice of law outside the COA We have to interpret this to mean that as long as the lawyers who are employed in the COA are using their legal knowledge or legal talent in their respective work within COA, then they are qualified to be considered for appointment as members or commissioners, even chairman, of the Commission on Audit.

This has been discussed by the Committee on Constitutional Commissions and Agencies and we deem it important to take it up on the floor so that this interpretation may be made available whenever this provision on the qualifications as regards members of the Philippine Bar engaging in the practice of law for at least ten years is taken up.

MR. OPLE. Will Commissioner Foz yield to just one question.

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MR. FOZ. Yes, Mr. Presiding Officer.

MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the requirement of a law practice that is set forth in the Article on the Commission on Audit?

MR. FOZ. We must consider the fact that the work of COA, although it is auditing, will necessarily involve legal work; it will involve legal work. And, therefore, lawyers who are employed in COA now would have the necessary qualifications in accordance with the Provision on qualifications under our provisions on the Commission on Audit. And, therefore, the answer is yes.

MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice of law.

MR. FOZ. Yes, Mr. Presiding Officer.

MR. OPLE. Thank you.

... ( Emphasis supplied)

Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman and two Commissioners of the Commission on Audit (COA) should either be certified public accountants with not less than ten years of auditing practice, or members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (emphasis supplied)

Corollary to this is the term "private practitioner" and which is in many ways synonymous with the word "lawyer." Today, although many lawyers do not engage in private practice, it is still a fact that the majority of lawyers are private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM Career Horizons: Illinois], [1986], p. 15).

At this point, it might be helpful to define private practice. The term, as commonly understood, means "an individual or organization engaged in the business of delivering legal services." (Ibid.). Lawyers who practice alone are often called "sole practitioners." Groups of lawyers are called "firms." The firm is usually a partnership and members of the firm are the partners. Some firms may be organized as professional corporations and the members called shareholders. In either case, the members of the firm are the experienced attorneys. In most firms, there are younger or more inexperienced salaried attorneyscalled "associates." (Ibid.).

The test that defines law practice by looking to traditional areas of law practice is essentially tautologous, unhelpful defining the practice of law as that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The practice of law is defined as the performance of any acts . . . in or out of court, commonly understood to be the practice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers perform almost every function known in the commercial and governmental realm, such a definition would obviously be too global to be workable.(Wolfram, op. cit.).

The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar role for lawyers as well as an uncommon role for the average lawyer. Most lawyers spend little time in courtrooms, and a large percentage spend their entire practice without litigating a case. (Ibid., p. 593). Nonetheless, many lawyers do continue to litigate and the litigating lawyer's role colors much of both the public image and the self perception of the legal profession. (Ibid.).

In this regard thus, the dominance of litigation in the public mind reflects history, not reality. (Ibid.). Why is this so? Recall that the late Alexander SyCip, a corporate lawyer, once articulated on the importance of a lawyer as a business counselor in this wise: "Even today, there are still uninformed laymen whose concept of an attorney is one who principally tries cases before the courts. The members of the bench and bar and the informed laymen such as businessmen, know that in most developed societies today, substantially more legal work is transacted in law offices than in the courtrooms. General practitioners of law who do both litigation and non-litigation work also know that in most cases they find themselves spending more time doing what [is] loosely desccribe[d] as business counseling than in trying cases. The business lawyer has been described as the planner, the diagnostician and the trial lawyer, the surgeon. I[t] need not [be] stress[ed] that in law, as in medicine, surgery should be avoided where internal medicine can be effective." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

In the course of a working day the average general practitioner wig engage in a number of legal tasks, each involving different legal doctrines, legal skills, legal processes, legal institutions, clients, and other interested parties. Even the increasing numbers of lawyers in specialized practice wig usually perform at least some legal services outside their specialty. And even within a narrow specialty such as tax practice, a lawyer will shift from one legal task or role such as advice-giving to an importantly different one such as representing a client before an administrative agency. (Wolfram, supra, p. 687).

By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare types — a litigator who specializes in this work to the exclusion of much else. Instead, the work will require the lawyer to have mastered the full range of traditional lawyer skills of client counselling, advice-giving, document drafting, and negotiation. And increasingly lawyers find that the new skills of evaluation and mediation are both effective for many clients and a source of employment. (Ibid.).

Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very important ways, at least theoretically, so as to remove from it some of the salient features of adversarial litigation. Of these special roles, the most prominent is

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that of prosecutor. In some lawyers' work the constraints are imposed both by the nature of the client and by the way in which the lawyer is organized into a social unit to perform that work. The most common of these roles are those of corporate practice and government legal service. (Ibid.).

In several issues of the Business Star, a business daily, herein below quoted are emerging trends in corporate law practice, a departure from the traditional concept of practice of law.

We are experiencing today what truly may be called a revolutionary transformation in corporate law practice. Lawyers and other professional groups, in particular those members participating in various legal-policy decisional contexts, are finding that understanding the major emerging trends in corporation law is indispensable to intelligent decision-making.

Constructive adjustment to major corporate problems of today requires an accurate understanding of the nature and implications of the corporate law research function accompanied by an accelerating rate of information accumulation. The recognition of the need for such improved corporate legal policy formulation, particularly "model-making" and "contingency planning," has impressed upon us the inadequacy of traditional procedures in many decisional contexts.

In a complex legal problem the mass of information to be processed, the sorting and weighing of significant conditional factors, the appraisal of major trends, the necessity of estimating the consequences of given courses of action, and the need for fast decision and response in situations of acute danger have prompted the use of sophisticated concepts of information flow theory, operational analysis, automatic data processing, and electronic computing equipment. Understandably, an improved decisional structure must stress the predictive component of the policy-making process, wherein a "model", of the decisional context or a segment thereof is developed to test projected alternative courses of action in terms of futuristic effects flowing therefrom.

Although members of the legal profession are regularly engaged in predicting and projecting the trends of the law, the subject of corporate finance law has received relatively little organized and formalized attention in the philosophy of advancing corporate legal education. Nonetheless, a cross-disciplinary approach to legal research has become a vital necessity.

Certainly, the general orientation for productive contributions by those trained primarily in the law can be improved through an early introduction to multi-variable decisional context and the various approaches for handling such problems. Lawyers, particularly with either a master's or doctorate degree in business administration or management, functioning at the legal policy level of decision-making now have some appreciation for the concepts and analytical techniques of other professions which are currently engaged in similar types of complex decision-making.

Truth to tell, many situations involving corporate finance problems would require the services of an astute attorney because of the complex legal implications that arise from each and every necessary step in securing and maintaining the business issue raised. (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogado de campanilla." He is the "big-time" lawyer, earning big money and with a clientele composed of the tycoons and magnates of business and industry.

Despite the growing number of corporate lawyers, many people could not explain what it is that a corporate lawyer does. For one, the number of attorneys employed by a single corporation will vary with the size and type of the corporation. Many smaller and some large corporations farm out all their legal problems to private law firms. Many others have in-house counsel only for certain matters. Other corporation have a staff large enough to handle most legal problems in-house.

A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs of a corporation. His areas of concern or jurisdiction may include, inter alia: corporate legal research, tax laws research, acting out as corporate secretary (in board meetings), appearances in both courts and other adjudicatory agencies (including the Securities and Exchange Commission), and in other capacities which require an ability to deal with the law.

At any rate, a corporate lawyer may assume responsibilities other than the legal affairs of the business of the corporation he is representing. These include such matters as determining policy and becoming involved in management. ( Emphasis supplied.)

In a big company, for example, one may have a feeling of being isolated from the action, or not understanding how one's work actually fits into the work of the orgarnization. This can be frustrating to someone who needs to see the results of his work first hand. In short, a corporate lawyer is sometimes offered this fortune to be more closely involved in the running of the business.

Moreover, a corporate lawyer's services may sometimes be engaged by a multinational corporation (MNC). Some large MNCs provide one of the few opportunities available to corporate lawyers to enter the international law field. After all, international law is practiced in a relatively small number of companies and law firms. Because working in

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a foreign country is perceived by many as glamorous, tills is an area coveted by corporate lawyers. In most cases, however, the overseas jobs go to experienced attorneys while the younger attorneys do their "international practice" in law libraries. (Business Star, "Corporate Law Practice," May 25,1990, p. 4).

This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To borrow the lines of Harvard-educated lawyer Bruce Wassertein, to wit: "A bad lawyer is one who fails to spot problems, a good lawyer is one who perceives the difficulties, and the excellent lawyer is one who surmounts them." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. No longer are we talking of the traditional law teaching method of confining the subject study to the Corporation Code and the Securities Code but an incursion as well into the intertwining modern management issues.

Such corporate legal management issues deal primarily with three (3) types of learning: (1) acquisition of insights into current advances which are of particular significance to the corporate counsel; (2) an introduction to usable disciplinary skins applicable to a corporate counsel's management responsibilities; and (3) a devotion to the organization and management of the legal function itself.

These three subject areas may be thought of as intersecting circles, with a shared area linking them. Otherwise known as "intersecting managerial jurisprudence," it forms a unifying theme for the corporate counsel's total learning.

Some current advances in behavior and policy sciences affect the counsel's role. For that matter, the corporate lawyer reviews the globalization process, including the resulting strategic repositioning that the firms he provides counsel for are required to make, and the need to think about a corporation's; strategy at multiple levels. The salience of the nation-state is being reduced as firms deal both with global multinational entities and simultaneously with sub-national governmental units. Firms increasingly collaborate not only with public entities but with each other — often with those who are competitors in other arenas.

Also, the nature of the lawyer's participation in decision-making within the corporation is rapidly changing. The modem corporate lawyer has gained a new role as a stakeholder — in some cases participating in the organization and operations of governance through participation on boards and other decision-making roles. Often these new patterns develop alongside existing legal institutions and laws are perceived as barriers. These trends are complicated as corporations organize for global operations. ( Emphasis supplied)

The practising lawyer of today is familiar as well with governmental policies toward the promotion and management of technology. New collaborative arrangements for promoting specific technologies or competitiveness more generally require approaches from industry that differ from older, more adversarial relationships and traditional forms of seeking to influence governmental policies. And there are lessons to be learned from other countries. In Europe, Esprit, Eureka and Race are examples of collaborative efforts between governmental and business Japan's MITI is world famous. (Emphasis supplied)

Following the concept of boundary spanning, the office of the Corporate Counsel comprises a distinct group within the managerial structure of all kinds of organizations. Effectiveness of both long-term and temporary groups within organizations has been found to be related to indentifiable factors in the group-context interaction such as the groups actively revising their knowledge of the environment coordinating work with outsiders, promoting team achievements within the organization. In general, such external activities are better predictors of team performance than internal group processes.

In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis the managerial mettle of corporations are challenged. Current research is seeking ways both to anticipate effective managerial procedures and to understand relationships of financial liability and insurance considerations. (Emphasis supplied)

Regarding the skills to apply by the corporate counsel, three factors are apropos:

First System Dynamics. The field of systems dynamics has been found an effective tool for new managerial thinking regarding both planning and pressing immediate problems. An understanding of the role of feedback loops, inventory levels, and rates of flow, enable users to simulate all sorts of systematic problems — physical, economic, managerial, social, and psychological. New programming techniques now make the system dynamics principles more accessible to managers — including corporate counsels. (Emphasis supplied)

Second Decision Analysis. This enables users to make better decisions involving complexity and uncertainty. In the context of a law department, it can be used to appraise the settlement value of litigation, aid in negotiation settlement, and minimize the cost and risk involved in managing a portfolio of cases. (Emphasis supplied)

Third Modeling for Negotiation Management. Computer-based models can be used directly by parties and mediators in all lands of negotiations. All integrated set of such tools provide coherent and effective negotiation support, including hands-on on instruction in these techniques. A simulation case of an international joint venture may be used to illustrate the point.

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[Be this as it may,] the organization and management of the legal function, concern three pointed areas of consideration, thus:

Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of the general counsel's responsibilities. They differ from those of remedial law. Preventive lawyering is concerned with minimizing the risks of legal trouble and maximizing legal rights for such legal entities at that time when transactional or similar facts are being considered and made.

Managerial Jurisprudence. This is the framework within which are undertaken those activities of the firm to which legal consequences attach. It needs to be directly supportive of this nation's evolving economic and organizational fabric as firms change to stay competitive in a global, interdependent environment. The practice and theory of "law" is not adequate today to facilitate the relationships needed in trying to make a global economy work.

Organization and Functioning of the Corporate Counsel's Office. The general counsel has emerged in the last decade as one of the most vibrant subsets of the legal profession. The corporate counsel hear responsibility for key aspects of the firm's strategic issues, including structuring its global operations, managing improved relationships with an increasingly diversified body of employees, managing expanded liability exposure, creating new and varied interactions with public decision-makers, coping internally with more complex make or by decisions.

This whole exercise drives home the thesis that knowing corporate law is not enough to make one a good general corporate counsel nor to give him a full sense of how the legal system shapes corporate activities. And even if the corporate lawyer's aim is not the understand all of the law's effects on corporate activities, he must, at the very least, also gain a working knowledge of the management issues if only to be able to grasp not only the basic legal "constitution' or makeup of the modem corporation. "Business Star", "The Corporate Counsel," April 10, 1991, p. 4).

The challenge for lawyers (both of the bar and the bench) is to have more than a passing knowledge of financial law affecting each aspect of their work. Yet, many would admit to ignorance of vast tracts of the financial law territory. What transpires next is a dilemma of professional security: Will the lawyer admit ignorance and risk opprobrium?; or will he feign understanding and risk exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989, p. 4).

Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of Chairman of the COMELEC in a letter received by the Secretariat of the Commission on Appointments on April 25, 1991. Petitioner opposed the nomination because allegedly Monsod does not possess the required qualification of having been engaged in the practice of law for at least ten years.

On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as Chairman of the COMELEC. On June 18, 1991, he took his oath of office. On the same day, he assumed office as Chairman of the COMELEC.

Challenging the validity of the confirmation by the Commission on Appointments of Monsod's nomination, petitioner as a citizen and taxpayer, filed the instant petition for certiorari and Prohibition praying that said confirmation and the consequent appointment of Monsod as Chairman of the Commission on Elections be declared null and void.

Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960 with a grade of 86-55%. He has been a dues paying member of the Integrated Bar of the Philippines since its inception in 1972-73. He has also been paying his professional license fees as lawyer for more than ten years. (p. 124, Rollo)

After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod worked in the law office of his father. During his stint in the World Bank Group (1963-1970), Monsod worked as an operations officer for about two years in Costa Rica and Panama, which involved getting acquainted with the laws of member-countries negotiating loans and coordinating legal, economic, and project work of the Bank. Upon returning to the Philippines in 1970, he worked with the Meralco Group, served as chief executive officer of an investment bank and subsequently of a business conglomerate, and since 1986, has rendered services to various companies as a legal and economic consultant or chief executive officer. As former Secretary-General (1986) and National Chairman (1987) of NAMFREL. Monsod's work involved being knowledgeable in election law. He appeared for NAMFREL in its accreditation hearings before the Comelec. In the field of advocacy, Monsod, in his personal capacity and as former Co-Chairman of the Bishops Businessmen's Conference for Human Development, has worked with the under privileged sectors, such as the farmer and urban poor groups, in initiating, lobbying for and engaging in affirmative action for the agrarian reform law and lately the urban land reform bill. Monsod also made use of his legal knowledge as a member of the Davide Commission, a quast judicial body, which conducted numerous hearings (1990) and as a member of the Constitutional Commission (1986-1987), and Chairman of its Committee on Accountability of Public Officers, for which he was cited by the President of the Commission, Justice Cecilia Muñoz-Palma for "innumerable amendments to reconcile government functions with individual freedoms and public accountability and the party-list system for the House of Representative. (pp. 128-129 Rollo) ( Emphasis supplied)

Just a word about the work of a negotiating team of which Atty. Monsod used to be a member.

In a loan agreement, for instance, a negotiating panel acts as a team, and which is adequately constituted to meet the various contingencies that arise during a negotiation. Besides top officials of the Borrower concerned, there are the legal officer (such as the legal counsel), the finance manager, and an operations officer (such as an official involved in negotiating the contracts) who comprise the members of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies for Developing Country Borrowers," Staff Paper No. 2, Central Bank of the Philippines, Manila, 1982, p. 11). (Emphasis supplied)

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After a fashion, the loan agreement is like a country's Constitution; it lays down the law as far as the loan transaction is concerned. Thus, the meat of any Loan Agreement can be compartmentalized into five (5) fundamental parts: (1) business terms; (2) borrower's representation; (3) conditions of closing; (4) covenants; and (5) events of default. (Ibid., p. 13).

In the same vein, lawyers play an important role in any debt restructuring program. For aside from performing the tasks of legislative drafting and legal advising, they score national development policies as key factors in maintaining their countries' sovereignty. (Condensed from the work paper, entitled "Wanted: Development Lawyers for Developing Nations," submitted by L. Michael Hager, regional legal adviser of the United States Agency for International Development, during the Session on Law for the Development of Nations at the Abidjan World Conference in Ivory Coast, sponsored by the World Peace Through Law Center on August 26-31, 1973). ( Emphasis supplied)

Loan concessions and compromises, perhaps even more so than purely renegotiation policies, demand expertise in the law of contracts, in legislation and agreement drafting and in renegotiation. Necessarily, a sovereign lawyer may work with an international business specialist or an economist in the formulation of a model loan agreement. Debt restructuring contract agreements contain such a mixture of technical language that they should be carefully drafted and signed only with the advise of competent counsel in conjunction with the guidance of adequate technical support personnel. (See International Law Aspects of the Philippine External Debts, an unpublished dissertation, U.S.T. Graduate School of Law, 1987, p. 321). ( Emphasis supplied)

A critical aspect of sovereign debt restructuring/contract construction is the set of terms and conditions which determines the contractual remedies for a failure to perform one or more elements of the contract. A good agreement must not only define the responsibilities of both parties, but must also state the recourse open to either party when the other fails to discharge an obligation. For a compleat debt restructuring represents a devotion to that principle which in the ultimate analysis is sine qua non for foreign loan agreements-an adherence to the rule of law in domestic and international affairs of whose kind U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. once said: "They carry no banners, they beat no drums; but where they are, men learn that bustle and bush are not the equal of quiet genius and serene mastery." (See Ricardo J. Romulo, "The Role of Lawyers in Foreign Investments," Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265).

Interpreted in the light of the various definitions of the term Practice of law". particularly the modern concept of law practice, and taking into consideration the liberal construction intended by the framers of the Constitution, Atty. Monsod's past work experiences as a lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and the poor — verily more than satisfy the constitutional requirement — that he has been engaged in the practice of law for at least ten years.

Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court said:

Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide. (emphasis supplied)

No less emphatic was the Court in the case of (Central Bank v. Civil Service Commission, 171 SCRA 744) where it stated:

It is well-settled that when the appointee is qualified, as in this case, and all the other legal requirements are satisfied, the Commission has no alternative but to attest to the appointment in accordance with the Civil Service Law. The Commission has no authority to revoke an appointment on the ground that another person is more qualified for a particular position. It also has no authority to direct the appointment of a substitute of its choice. To do so would be an encroachment on the discretion vested upon the appointing authority. An appointment is essentially within the discretionary power of whomsoever it is vested, subject to the only condition that the appointee should possess the qualifications required by law. ( Emphasis supplied)

The appointing process in a regular appointment as in the case at bar, consists of four (4) stages: (1) nomination; (2) confirmation by the Commission on Appointments; (3) issuance of a commission (in the Philippines, upon submission by the Commission on Appointments of its certificate of confirmation, the President issues the permanent appointment; and (4) acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers, p. 200)

The power of the Commission on Appointments to give its consent to the nomination of Monsod as Chairman of the Commission on Elections is mandated by Section 1(2) Sub-Article C, Article IX of the Constitution which provides:

The Chairman and the Commisioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.

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Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of the practice of law is the traditional or stereotyped notion of law practice, as distinguished from the modern concept of the practice of law, which modern connotation is exactly what was intended by the eminent framers of the 1987 Constitution. Moreover, Justice Padilla's definition would require generally a habitual law practice, perhaps practised two or three times a week and would outlaw say, law practice once or twice a year for ten consecutive years. Clearly, this is far from the constitutional intent.

Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written opinion, I made use of a definition of law practice which really means nothing because the definition says that law practice " . . . is what people ordinarily mean by the practice of law." True I cited the definition but only by way of sarcasm as evident from my statement that the definition of law practice by "traditional areas of law practice is essentially tautologous" or defining a phrase by means of the phrase itself that is being defined.

Justice Cruz goes on to say in substance that since the law covers almost all situations, most individuals, in making use of the law, or in advising others on what the law means, are actually practicing law. In that sense, perhaps, but we should not lose sight of the fact that Mr. Monsod is a lawyer, a member of the Philippine Bar, who has been practising law for over ten years. This is different from the acts of persons practising law, without first becoming lawyers.

Justice Cruz also says that the Supreme Court can even disqualify an elected President of the Philippines, say, on the ground that he lacks one or more qualifications. This matter, I greatly doubt. For one thing, how can an action or petition be brought against the President? And even assuming that he is indeed disqualified, how can the action be entertained since he is the incumbent President?

We now proceed:

The Commission on the basis of evidence submitted doling the public hearings on Monsod's confirmation, implicitly determined that he possessed the necessary qualifications as required by law. The judgment rendered by the Commission in the exercise of such an acknowledged power is beyond judicial interference except only upon a clear showing of a grave abuse of discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of discretion is clearly shown shall the Court interfere with the Commission's judgment. In the instant case, there is no occasion for the exercise of the Court's corrective power, since no abuse, much less a grave abuse of discretion, that would amount to lack or excess of jurisdiction and would warrant the issuance of the writs prayed, for has been clearly shown.

Additionally, consider the following:

(1) If the Commission on Appointments rejects a nominee by the President, may the Supreme Court reverse the Commission, and thus in effect confirm the appointment? Clearly, the answer is in the negative.

(2) In the same vein, may the Court reject the nominee, whom the Commission has confirmed? The answer is likewise clear.

(3) If the United States Senate (which is the confirming body in the U.S. Congress) decides to confirma Presidential nominee, it would be incredible that the U.S. Supreme Court would still reverse the U.S. Senate.

Finally, one significant legal maxim is:

We must interpret not by the letter that killeth, but by the spirit that giveth life.

Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah (who was Samson's beloved) for help in capturing Samson. Delilah agreed on condition that —

No blade shall touch his skin;

No blood shall flow from his veins.

When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod burning white-hot two or three inches away from in front of Samson's eyes. This blinded the man. Upon hearing of what had happened to her beloved, Delilah was beside herself with anger, and fuming with righteous fury, accused the procurator of reneging on his word. The procurator calmly replied: "Did any blade touch his skin? Did any blood flow from his veins?" The procurator was clearly relying on the letter, not the spirit of the agreement.

In view of the foregoing, this petition is hereby DISMISSED.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

9

 

G. R. No. 105628 August 6, 1992

RODULFO SARMIENTO, petitioner, vs.COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF VIRAC and JOSE "CITO" ALBERTO II, respondents.

G.R. No. 105725 August 6, 1992

EMMANUEL R. ALFELOR, petitioner, vs.COMMISSION ON ELECTIONS, THE CITY BOARD OF CANVASSERS OF IRIGA CITY and JOSE C. VILLANUEVA, respondents.

G.R. No. 105727 August 6, 1992

LEANDRO I. VERCELES, SR., petitioner, vs.COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF CATANDUANES and ROSALIE ALBERTO-ESTACIO, respondents.

G.R. No. 105730 August 6, 1992

JESUS TYPOCO, JR., petitioner, vs.COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF CAMARINES NORTE, and MUNICIPAL BOARD OF CANVASSERS OF JOSE PANGANIBAN, CAMARINES NORTE, respondents.

G.R. No. 105771 August 6, 1992

ALBERTO U. GENOVA, JR., petitioner, vs.COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF CABUSAO, NEBRIDO F. SANTIAGO, and EUGENIO AGUILAR, respondents.

G.R. No. 105778 August 6, 1992

MARIO S. MANLICLIC, petitioner, vs.COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF GEN. NATIVIDAD, NUEVA ECIJA, BOARD OF ELECTION INSPECTORS OF PRECINCT NOS. 12-A AND 13, BARANGAY MATAAS NA KAHOY, GEN. NATIVIDAD, NUEVA ECIJA; BOARD OF ELECTION INSPECTORS OF PRECINCT NOS. 15-A, BARANGAY PICALEON, GEN. NATIVIDAD, NUEVA ECIJA; PRECINCT NO. 25-A OF SAPANG BATO, GEN. NATIVIDAD, NUEVA ECIJA; THE ELECTION REGISTRAR and APOLONIO PASCUAL, respondents.

G.R. No. 105797 August 6, 1992

FRANCISCO G. RABAT, petitioner, vs.COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF DAVAO ORIENTAL and ROSALIND YBASCO LOPEZ, respondents.

G-R. No. 105919 August 6, 1992

DATU MOHAMMAD A. SINSUAT, petitioner, vs.COMMISSION ON ELECTIONS, DATU MICHAEL SINSUAT and ATTY. RUBEN PLATON, respondents.

G.R. No. 105977 August 6, 1992

ROSARIO A. VELASCO, petitioner, vs.COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF TERNATE, CAVITE, and CONDRADO LINDO, respondents.

R E S O L U T I O N

10

 

DAVIDE, JR., J.:

The special civil actions for certiorari hereby jointly resolved, filed under Rule 65 of the Rules of Court, seek to set aside the Resolutions of respondent Commission on Elections (COMELEC) in the following Special Cases (SPC):

1) G.R. No. 105628 — SPC No. 92-266 granting the appeal from the ruling of the Municipal Board of Canvassers of Virac, Catanduanes which ordered the exclusion from the canvass of one (1) election return;

2) G.R. No. 105725 — SPC No. 92-323 reversing the ruling of the City Board of Canvassers of Iriga City which ordered the exclusion from the canvass of six (6) election returns and in UND No. 92-243 ordering the said Board of Canvassers to include in the canvass the election returns involved therein;

3) G.R. No. 105727 — SPC No. 92-288 dismissing the appeal of petitioner from the ruling of the Provincial Board of Canvassers of Catanduanes which ordered the inclusion in the canvass the certificate of canvass for the municipality of Virac, excluding the returns from 48 precincts;

4) G.R. No. 105730 — SPC No. 92-315 affirming the ruling of the Municipal Board of Canvassers of Jose Panganiban, Camarines Norte which dismissed petitioner's opposition to the composition of the said Municipal Board of Canvassers;

5) G.R. No. 105771 — SPC No. 92-271 affirming the ruling of the Municipal Board of Canvassers of Cabusao, Camarines Sur which, among others, rejected petitioner's objection to certain election returns;

6) G.R. No. 105778 — SPC No. 92-039 dismissing said case for non-compliance with Section 20 of R.A. No. 7166;

7) G.R. No. 105797 — SPC No. 92-153 affirming the rulings of the Provincial Board of Canvassers of Davao Oriental which rejected petitioner's objections to the canvass of some certificates of canvass;

8) G.R. No. 105919 — SPC No. 92-293 dismissing petitioner's appeal from the ruling of the Municipal Board of Canvassers of Upi Nuro, Maguindanao;

9) G.R. No. 105977 — SPC No. 92-087 denying the amended pre-proclamation petition, which is an appeal from the rulings of the Municipal Board of Canvassers of Ternate, Cavite, and denying a subsequent motion to resolve the issues raised in said amended petition.

Comments had been filed only in G.R. No. 105727 and G.R. No. 105797. This Court dispenses with the Comments in the other cases.

Petitioners impugn the challenged resolutions above specified as having been issued with grave abuse of discretion in that, inter alia, the Commission, sitting en banc, took cognizance of and decided the appeals without first referring them to any of its Divisions.

Section 3, subdivision C, Article IX of the 1987 Constitution expressly provides:

Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. (Emphasis supplied).

The 1973 Constitution prescribed another rule. Its Section 3, subdivision C of Article XII provided as follows:

Sec. 3. The Commission on Elections may sit en banc or in three divisions. All election cases may be heard and decided by divisions, except contests involving Members of the Batasang Pambansa, which shall be heard and decided en banc. . . .

It is clear from the abovequoted provision of the 1987 Constitution that election cases include pre-proclamation controversies, and all such cases must first be heard and decided by a Division of the Commission. The Commission, sitting en banc, does not have the authority to hear and decide the same at the first instance. In the COMELEC RULES OF PROCEDURE, pre-proclamation cases are classified as Special Cases 1 and, in compliance with the above provision of the Constitution, the two (2) Divisions of the Commission are vested with the authority to hear and decide these Special Cases. 2 Rule 27 thereof governs Special Cases; specifically, Section 9 of the said Rule provides that appeals from rulings of the Board of Canvassers are cognizable by any of the Divisions to which they are assigned and not by the Commission en banc. Said Section reads:

Sec. 9. Appeals from rulings of Board of Canvassers. — (a) A party aggrieved by an oral ruling of the board of canvassers who had stated orally his intent to appeal said ruling shall, within five days following receipt of a copy of the written ruling of the board of canvassers, file with the Commission a verified appeal, furnishing a copy thereof to the board of canvassers and the adverse party.

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(b) The appeal filed with the Commission shall be docketed by the Clerk of Court concerned.

(c) The answer/opposition shall be verified.

(d) The Division to which the case is assigned shall immediately set the case for hearing. (Emphasis supplied)

xxx xxx xxx

A motion to reconsider the decision or resolution of the Division concerned may be filed within five (5) days from its promulgation. 3 The Clerk of Court of the Division shall, within twenty-four (24) hours from the filing thereof, notify the Presiding Commissioner of such fact; in turn, the latter shall certify the case to the Commission en banc. 4Thereafter, the Clerk of Court of the Commission shall calendar the motion for reconsideration for the resolution of the Commission en banc within ten (10) days from the certification. 5

Indisputably then, the COMELEC en banc acted without jurisdiction, or with grave abuse of discretion, when it resolved the appeals of petitioners in the abovementioned Special Cases without first referring them to any of its Divisions. Said resolutions are, therefore, null and void and must be set aside. Consequently, the appeals are deemed pending before the Commission for proper referral to a Division.

A resolution directing the COMELEC to assign said Special Cases to the Divisions pursuant to Section 8, Rule 3 of its Rules on assignment of cases would, logically, be in order. However, Section 16 of R.A. No. 7166 6 provides that all pre-proclamation cases pending before it shall be deemed terminated at the beginning of the term of the office involved. The said section provides as follows:

xxx xxx xxx

All pre-proclamation cases pending before the Commission shall be deemed terminated at the beginning of the term of the office involved and the rulings of the boards of canvassers concerned shall be deemed affirmed, without prejudice to the filing of a regular election protest by the aggrieved party. However, proceedings may continue when on the basis of the evidence thus far presented, the Commission determines that the petition appears meritorious and accordingly issues an order for the proceeding to continue or when an appropriate order has been issued by the Supreme Court in a petition for certiorari.

The terms of the offices involved in the Special Cases subject of these petitions commenced at noon of 30 June 1992. 7 These cases have thus been rendered moot and such a resolution would only be an exercise in futility.

Accordingly, the instant petitions are DISMISSED without prejudice to the filing by petitioners of regular election protests. If the winning candidates for the positions involved in the Special Cases subject of these petitions have already been proclaimed, the running of the period to file the protests shall be deemed suspended by the pendency of such cases before the COMELEC and of these petitions before this Court.

The Temporary Restraining Orders issued in G.R. No. 105727, G.R. No. 105730 and G.R. No. 105797 are hereby LIFTED.

SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Romero, Nocon and Bellosillo, JJ. concur.

 

 

 

EN BANC

[G.R. Nos. 154796-97.  October 23, 2003]

RAYMUNDO A. BAUTISTA @ “OCA”, petitioner, vs. HONORABLE COMMISSION ON    ELECTIONS, JOSEFINA P. JAREÑO, HON. MAYOR RAYMUND M. APACIBLE, FRANCISCA C. RODRIGUEZ, AGRIPINA B. ANTIG, MARIA G. CANOVAS, and DIVINA ALCOREZA, respondents.

D E C I S I O N

CARPIO, J.:

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The Case

This is a petition for certiorari and prohibition with a prayer for the issuance of a temporary restraining order to nullify Resolution Nos. 5404 and 5584 of the Commission on Elections (“COMELEC”) en banc. Resolution No. 5404[1] dated 23 July 2002 ordered the deletion of Raymundo A. Bautista’s (“Bautista”) name from the official list of candidates for the position of Punong Barangay of Barangay Lumbangan, Nasugbu, Batangas (“Lumbangan”) in the 15 July 2002 elections.  Resolution No. 5584[2] dated 10 August 2002 provided for the policy of the COMELEC regarding proclaimed candidates found to be ineligible for not being registered voters in the place where they ran for office.

The Facts

On 10 June 2002, Bautista filed his certificate of candidacy for Punong Barangay in Lumbangan for the 15 July 2002 barangay elections. Election Officer Josefina P. Jareño (“Election Officer Jareño”) refused to accept Bautista’s certificate of candidacy because he was not a registered voter in Lumbangan.  On 11 June 2002, Bautista filed an action for mandamus against Election Officer Jareño with the Regional Trial Court of Batangas, Branch 14 (“trial court”). [3] On 1 July 2002, the trial court ordered Election Officer Jareño to accept Bautista’s certificate of candidacy and to include his name in the certified list of candidates for Punong Barangay.  The trial court ruled that Section 7 (g) of COMELEC Resolution No. 4801 [4] mandates Election Officer Jareño to include the name of Bautista in the certified list of candidates until the COMELEC directs otherwise. [5] In compliance with the trial court’s order, Election Officer Jareño included Bautista in the certified list of candidates for Punong Barangay.  At the same time, Election Officer Jareño referred the matter of Bautista’s inclusion in the certified list of candidates with the COMELEC Law Department on 5 July 2002.[6] On 11 July 2002, the COMELEC Law Department recommended the cancellation of Bautista’s certificate of candidacy since he was not registered as a voter in Lumbangan.  The COMELEC en banc failed to act on the COMELEC Law Department’s recommendation before the barangay elections on 15 July 2002.

During the 15 July 2002 barangay elections, Bautista and private respondent Divina Alcoreza (“Alcoreza”) were candidates for the position of Punong Barangay in Lumbangan.  Bautista obtained the highest number of votes (719) while Alcoreza came in second with 522 votes, or a margin of 197 votes.  Thus, the Lumbangan Board of Canvassers (“Board of Canvassers”) [7] proclaimed Bautista as the elected PunongBarangay[8] on 15 July 2002.  On 8 August 2002, Bautista took his oath of office as Punong Barangay before Congresswoman Eileen Ermita-Buhain of the First District of Batangas.  On 16 August 2002, Bautista again took his oath of office during a mass oath-taking ceremony administered by Nasugbu Municipal Mayor Raymund Apacible.

Meanwhile, COMELEC issued Resolution No. 5404 on 23 July 2002 and Resolution No. 5584 on 10 August 2002 (“COMELEC Resolutions”).  In Resolution No. 5404, the COMELEC en banc resolved to cancel Bautista’s certificate of candidacy. The COMELEC en bancdirected the Election Officer to delete Bautista’s name from the official list of candidates.  The dispositive portion of Resolution No. 5404 reads:

Considering the foregoing, the Commission, RESOLVED, as it hereby RESOLVES, to ADOPT the recommendation, as follows:

1.       To DENY due course to/or cancel the certificates of candidacy of the following:

A.      For Barangay Officials:

1.            CONRADO S. PEDRAZA – Navotas2.            PIO B. MALIGAYA – Sampaga3.            PATERNO H. MENDOZA – Sampaga

all of Balayan, Batangas.

B.      a.         RAY OCA A. BAUTISTA, candidate for Punong Barangay of Brgy. Lumbangan, Nasugbu, Batangas, for not being registered voters of barangays where they are  running for an office;

2.       To DIRECT the  Election Officers of Balayan, Batangas and Nasugbu, Batangas, to delete their names in the official list of candidates in their respective Barangays without prejudice to the filing of complaint against them  for misrepresentation under Section 74 of the Omnibus Election Code if the evidence so warrants.

Let the Law Department implement this resolution.

On the other hand, Resolution No. 5584 expressed COMELEC’s policy regarding proclaimed candidates found to be ineligible for not being registered voters in the place of their election, thus:

ON PROCLAIMED CANDIDATES FOUND TO BE INELIGIBLE FOR BEING NOT REGISTERED VOTERS IN THE PLACE WHERE THEY WERE ELECTED.

(a)     For a proclaimed candidate whose certificate of candidacy was denied due course to or cancelled by virtue of a Resolution  of the Commission En Banc  albeit such Resolution did not arrive  on time.

1.            To DIRECT the Election Officers concerned to implement the resolution of the Commission deleting the name of the candidate whose certificate of candidacy was denied due course;

13

2.            To DIRECT the candidate whose  name was ordered deleted to cease and desist from taking his oath of office or from assuming the position  to which he was elected, unless a temporary restraining order was issued by the Supreme Court; and

3.            To RECONVENE the Board of Canvassers  for the  purpose of proclaiming the duly-elected candidates  and correcting the Certificate of  Canvass of Proclamation.

(b)     For a proclaimed candidate who is subsequently declared disqualified by the Commission in the disqualification case filed against him prior to his proclamation.

1.            To DIRECT the proclaimed disqualified candidate to cease and desist from  taking  his oath of office or from assuming the position to which he was elected, unless a temporary restraining order was  issued by the Supreme Court; and

2.            To RECONVENE the Board of Canvassers for the purpose of proclaiming the duly-elected candidates and correcting the Certificate of Canvass of Proclamation.

(c)     For a proclaimed candidate who is found to be ineligible only after his proclamation (i.e., There is no Resolution denying due course to or canceling his certificate of candidacy and there is no petition for disqualification pending against him before his proclamation.)

1.            To DISMISS any and all cases questioning the eligibility of such candidate for LACK OF JURISDICTION, the proper remedy being a quo warranto case before the   metropolitan  or  municipal trial court.

In a letter dated 19 August 2002,[9] COMELEC Commissioner Luzviminda Tancangco directed Election Officer Jareño to (1) delete the name of Bautista from the official list of candidates for Punong Barangay of Barangay Lumbangan; (2) order the Board of Canvassers of Lumbangan to reconvene for the purpose of proclaiming the elected Punong Barangay with due notice to all candidates concerned; and (3) direct the proclaimed disqualified candidate Bautista to cease and desist from taking his oath of office or from assuming the position which he won in the elections, citing COMELEC Resolution Nos. 5404 and 5584.  Consequently, Election Officer Jareño issued on 20 August 2002 an Order[10] deleting the name of  Bautista from the list of candidates for Punong Barangay.  The Order also prohibited Bautista from assuming the position and discharging the functions of Punong Barangay of Lumbangan pursuant to the COMELEC Resolutions.  The Board of Canvassers reconvened on 23 August 2002 and after making the necessary corrections in the Certificate of Canvass of Votes, proclaimed Alcoreza as the winning Punong Barangay. [11] Alcoreza thus assumed the post of Punong Barangay of Lumbangan.

On 26 August 2002, Bautista wrote a letter to COMELEC requesting the latter for reconsideration of the COMELEC Resolutions.

On 9 September 2002, while his letter for reconsideration was still pending with the COMELEC, Bautista filed this petition for certiorari and prohibition with a prayer for the issuance of a temporary restraining order.

The Issues

The issues raised are:

1.  Whether the COMELEC en banc committed grave abuse of discretion  amounting to excess or lack of jurisdiction when  it issued Resolution Nos. 5404 and 5584;

2.  Whether the COMELEC deprived Bautista of due process when the COMELEC en banc issued Resolution Nos. 5404 and 5584; and

3.  Whether it was proper to proclaim Alcoreza as Punong Barangay in view of the alleged disqualification of the winning candidate Bautista.

The Court’s Ruling

Before considering the merits of the case, we shall first resolve the procedural questions raised by respondents.  Respondents contend that a motion for reconsideration of the assailed COMELEC Resolutions is a prerequisite to the filing of a petition for certiorari and prohibition. Absent any extraordinary circumstances, a party who has filed a motion for reconsideration should wait for the resolution of the motion before filing the petition for certiorari. Respondents allege that the instant petition is premature because Bautista has a pending motion for reconsideration of the COMELEC Resolutions.   Respondents claim that Bautista filed the instant petition barely two weeks after filing the motion for reconsideration with the COMELEC en banc without waiting for the resolution of his motion.[12]

The contention of respondents is wrong. The case[13] cited by respondents refers to a motion for reconsideration pending before the COMELEC  en banc seeking the reconsideration of a resolution rendered by a COMELEC division.   Rule 19 of the 1993 COMELEC Rules of Procedure allows a motion to reconsider a decision, resolution, order, or ruling of a division.   However, Section 1 (d), Rule 13 of the 1993 COMELEC Rules of Procedure prohibits a motion to reconsider a resolution of the COMELEC  en banc except in cases involving election offenses.  As held in Angelia v. Commission on Elections:[14]

14

We hold that petitioner acted correctly in filing the present petition because the resolution of the COMELEC in question is not subject to reconsideration and, therefore, any party who disagreed with it only had one recourse, and that was to file a petition for certiorari under Rule 65 of the Rules of Civil Procedure. Rule 13, §1 of the COMELEC Rules of Procedure provides:

What Pleadings are Not Allowed. –  The following pleadings are not allowed:

.. . .

d) motion for reconsideration of an en banc ruling, resolution, order or decision except in election offense cases;

. . .

As the case before the COMELEC did not involve an election offense, reconsideration of the COMELEC resolution was not possible and petitioner had no appeal or any plain, speedy, and adequate remedy in the ordinary course of law.  For him to wait until the COMELEC denied his motion would be to allow the reglementary period for filing a petition for certiorari with this Court to run and expire.

The instant controversy involves resolutions issued by the COMELEC en banc which do not pertain to election offenses.  Hence, a special civil action for certiorari is the proper remedy[15] in accordance with Section 2, Rule 64 of the Rules of Court which provides:

SEC. 2. Mode of review. –  A judgment or final order or resolution of the Commission on Elections and the Commission on Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65 except as hereinafter provided. (Emphasis supplied)

Whether the COMELEC en banc committed graveabuse of discretion amounting to excess or lack of

jurisdiction in issuing Resolution Nos. 5404 and 5584

Bautista argues that without any disqualification case formally filed against him, the COMELEC has no jurisdiction to take cognizance of his case.  The COMELEC cannot motu proprio act on the issue of his alleged lack of qualification. Even assuming that there was a disqualification case filed against him, it is the COMELEC sitting in division which has jurisdiction and not the COMELEC en banc.[16]

On the other hand, respondents allege that the Constitution vests the COMELEC with the power to enforce and administer all laws and regulations relative to the conduct of elections.  The Constitution thus empowers the COMELEC to pass upon the qualification of candidates for elective office. Furthermore, respondents submit that the COMELEC’s jurisdiction to cancel the certificate of candidacy of disqualified candidates is already settled jurisprudence.[17]

Respondents cited cases to support their claim that the COMELEC   has jurisdiction to cancel the certificates of candidacy of disqualified candidates.  However, the COMELEC heard these cases first in division and not en banc  in the first instance.

In Garvida v. Sales, Jr.,[18] the Court held that it is the COMELEC sitting in division and not the COMELEC en banc which has jurisdiction over petitions to cancel a certificate of candidacy. The Court held:

x x x The Omnibus Election Code, in Section 78, Article IX, governs the procedure to deny due course to or cancel a certificate of candidacy, viz:

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

In relation  thereto, Rule 23 of the COMELEC Rules of Procedure provides  that a petition to  deny due course to or cancel a certificate of candidacy  for an elective office may be filed with the Law Department of the COMELEC  on the ground that the candidate has made a false material representation  in his certificate.  The petition may be heard and evidence received by any official designated by the COMELEC after which the case shall be decided by the COMELEC itself.

Under the same Rules of Procedure, jurisdiction over a petition to cancel a certificate of candidacy lies with the COMELEC sitting in Division, not en banc.  Cases before a Division may only be entertained by the  COMELEC en banc when the required  number of votes to reach a decision, resolution, order or ruling is not obtained in the Division.  Moreover, only motions to reconsider decisions, resolutions, orders or rulings of the COMELEC in Division are resolved by the COMELEC en banc.

It is therefore the COMELEC sitting in Divisions that can hear and decide election cases.  This is clear from Section 3 of the said Rules thus:

15

“Sec. 3.  The Commission in Sitting in Divisions. – The Commission shall sit in two (2) Divisions to hear and decide protests or petitions in ordinary actions, special actions, special cases, provisional remedies, contempt and special proceedings except in accreditation of citizens’  arms of the Commission.”

In the instant case, the COMELEC en banc did not refer the case to any of its Divisions upon receipt of the petition.  It therefore acted without jurisdiction or with grave abuse of discretion when it entertained the petition and issued the order of May 2, 1996.  (Emphasis supplied)

In this case, Election Officer Jareño reported to the COMELEC Law Department Bautista’s ineligibility for being a non-registered voter.  The COMELEC Law Department recommended to the COMELEC en banc to deny due course or to cancel Bautista’s certificate of candidacy.  The COMELEC en banc approved the recommendation in Resolution No. 5404 dated 23 July 2002.

A division of the COMELEC should have first heard this case. The COMELEC en banc can only act on the case if there is a motion for reconsideration of the decision of the COMELEC division. Hence, the COMELEC en banc acted without jurisdiction when it ordered the cancellation of Bautista’s certificate of candidacy without first referring the case to a division for summary hearing.

The proceeding on the cancellation of a certificate of candidacy does not merely pertain to the administrative functions of the COMELEC. Cancellation proceedings involve the COMELEC’s quasi-judicial functions. The Court discussed the difference between administrative and quasi-judicial functions in Villarosa v. Commission on Elections:[19]

In the concurring opinion of Justice Antonio in University of Nueva Caceres vs. Martinez, 56 SCRA 148, he noted that

(t)he term “administrative” connotes, or pertains, to “administration, especially management, as by managing or conducting, directing or superintending, the execution, application, or  conduct of persons or things.”  It does not  entail an opportunity to be heard, the production and weighing of evidence, and a decision or resolution thereon.

While a “quasi-judicial function” is

A term  which applies to the action, discretion, etc., of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action and to exercise discretion of a judicial nature. (Emphasis supplied)

In the exercise of its adjudicatory or quasi-judicial powers, the Constitution mandates the COMELEC to hear and decide cases first by division and upon motion for reconsideration, by the COMELEC en banc.[20] In Baytan   v. COMELEC ,[21] the Court expounded on the administrative and quasi-judicial powers of the COMELEC. The Court explained:

Under Section 2, Article IX-C of the 1987 Constitution, the COMELEC exercises both administrative and quasi-judicial powers.  The COMELEC’s administrative powers are found in Section 2 (1), (3), (4), (5), (6), (7),  (8), and (9) of Article IX-C.  The 1987 Constitution does not prescribe how the COMELEC  should exercise its administrative powers, whether en banc or in division.  The Constitution merely vests the COMELEC’s administrative powers in the “Commission on Elections,” while providing that the COMELEC “may sit en banc or in two divisions.”  Clearly, the COMELEC en banc can act directly  on matters falling within its  administrative powers.  Indeed, this has been the practice of the COMELEC both under the 1973 and 1987 Constitutions.

On the other hand, the COMELEC’s quasi-judicial powers are found in Section 2 (2) of Article IX-C, to wit:

“Section 2.  The Commission on Elections shall exercise the following powers and functions:

xxx

(2)   Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices  shall be final, executory, and not appealable.”

The COMELEC’s exercise of its quasi-judicial powers is subject to Section 3 of Article IX-C which expressly requires that all election cases, including pre-proclamation controversies, shall be decided by the COMELEC in division, and the motion for reconsideration shall be decided by the COMELEC en banc. It follows, as held by the Court in Canicosa, that the COMELEC is mandated to decide cases first in division, and then upon motion for reconsideration en banc, only when the COMELEC exercises its quasi-judicial powers.  (Emphasis supplied)

Under Section 3, Rule 23 of the 1993 COMELEC Rules of Procedure, a petition for the denial or cancellation of a certificate of candidacy must be  heard summarily after due notice.  It is thus clear that cancellation proceedings involve the exercise of the quasi-judicial functions of the COMELEC which the COMELEC in division should first decide.  More so in this case where the cancellation proceedings originated not from a petition but from a report of the election officer regarding the lack of qualification of the candidate in the barangay election. The COMELEC en banc cannot short cut the proceedings by acting on the case without a prior action by a division because it denies due process to the candidate.

16

Whether the COMELEC deprived Bautista of dueprocess when it issued Resolution Nos. 5404 and 5584

Bautista alleges that the COMELEC denied him due process because there was no notice and hearing prior to the issuance of Resolution Nos. 5404 and 5584.  He became aware of the issuance of the COMELEC Resolutions only when he received a copy of Election Officer Jareño’s Order dated 20 August 2002 ordering him to cease and desist from assuming the position of Punong Barangay.[22]

The Solicitor General submits that the COMELEC did not deprive Bautista of due process.  Bautista had the chance to be heard and to present his side when he filed a letter to the COMELEC en banc requesting reconsideration of the Resolutions.[23]

This Court has explained the nature of due process in Stayfast Philippines Corporation v. NLRC:[24]

The essence of due process is simply the opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one’s side or an opportunity to seek a reconsideration of the action or ruling complained of.

A formal or trial-type hearing is not at all times and in all instances essential.  The requirements are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. What is frowned upon is absolute lack of notice and hearing.  x x x  (Emphasis supplied)

The opportunity to be heard does not only refer to the right to present verbal arguments in court during a formal hearing. [25] There is due process when a party is able to present evidence in the form of pleadings. [26] However, the COMELEC did not give Bautista such opportunity to explain his side. The COMELEC en banc issued Resolution Nos. 5404 and 5584 without prior notice and hearing.

We cannot ignore the importance of prior notice and hearing. Severe consequences attach to the COMELEC Resolutions which not only ordered the cancellation of the certificate of candidacy of Bautista but also the annulment of his proclamation as Punong Barangay. What is involved here is not just the right to be voted for public office but the right to hold public office.   As held in Sandoval v. Commission on Elections:[27]

x x x  Although the COMELEC is clothed with jurisdiction over the subject matter and issue of SPC No. 98-143 and SPC No. 98-206, we find the exercise of its jurisdiction tainted with illegality.  We hold that its order to set aside the proclamation of petitioner is invalid for having been rendered without due process of law. Procedural due process demands prior notice and hearing.  Then after the hearing, it is also necessary that the tribunal show substantial evidence to support its ruling.  In other words, due process requires that a party be given an opportunity to adduce his evidence to support his side of the case and that the evidence should be considered in the adjudication of the case.  The facts show that COMELEC set aside the proclamation of petitioner without benefit of prior notice and hearing and it rendered the questioned order based solely on private respondent’s allegations. We held in Bince, Jr. vs. COMELEC:

“Petitioner cannot be deprived of his office without due process of law. Although public office is not property under Section 1 of the Bill of Rights of the Constitution, and one cannot acquire a vested right to public office, it is, nevertheless, a protected right. Due process in proceedings before the COMELEC, exercising its quasi-judicial functions, requires due notice and hearing, among others.  Thus, although the COMELEC possesses, in appropriate cases, the power to annul or suspend the proclamation of any candidate, we had ruled in Farinas vs. Commission on Elections, Reyes vs. Commission on Elections and Gallardo vs. Commission on Elections that the COMELEC is without power to partially or totally annul a proclamation or suspend the effects of a proclamation without notice and hearing.” (Emphasis supplied)

The fact that Bautista was able to file a letter with the COMELEC en banc requesting for reconsideration of the Resolutions is beside the point.  To reiterate, the 1993 COMELEC Rules of Procedure prohibit a motion for reconsideration of a COMELEC en banc resolution except in cases involving election offenses.

Respondents likewise submit that there was no need for presentation and evaluation of evidence since the issue of whether Bautista was a registered voter is easily resolved by looking at the COMELEC registration records. [28] This reasoning fails to consider the instances where a voter may be excluded through inadvertence or registered with an erroneous or misspelled name. [29] Indeed, if it was just a simple matter of looking at the record of registered voters, then the COMELEC would not have included Section 7 (g) [30] in its Resolution No. 4801.  This Section allows candidates who are not registered voters to be included in the certified list of candidates until the COMELEC directs otherwise.

Rule 23 of the 1993 COMELEC Rules of Procedure provides for the twin requirements of prior notice and hearing, as follows:

Rule 23 – Petition to Deny Due Course to or Cancel Certificates of Candidacy

Section 1. Grounds for Denial of Certificate of Candidacy. – A petition to deny due course to or cancel, a certificate of candidacy for any elective office may be filed with the Law Department of the Commission by any citizen of voting age or a duly registered political party, organization, or coalition of political parties on the exclusive ground that any material representation contained therein as required by law is false.

Sec. 2. Period to File Petition. – The petition must be filed within five (5) days following the last day for the filing of certificates of candidacy.

Sec. 3. Summary Proceeding. – The petition shall be heard summarily after due notice.

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Sec. 4. Delegation of Reception of Evidence. – The Commission may designate any of its officials who are members of the Philippine Bar to hear the case and receive evidence. (Emphasis supplied)

A summary proceeding does not mean that the COMELEC could do away with the requirements of notice and hearing. The COMELEC should have at least given notice to Bautista to give him the chance to adduce evidence to explain his side in the cancellation proceeding. The COMELEC en banc deprived Bautista of procedural due process of law when it approved the report and recommendation of the Law Department without notice and hearing.[31]

Whether Bautista was a registered voter of BarangayLumbangan when he filed his certificate of candidacy

The events[32] that transpired after the 15 July 2002 elections necessitate the early resolution of this case.  The Court deems it proper not to remand the case to the COMELEC to avoid further delay. The Court will resolve this case based on the pleadings submitted by the parties.

Under the Revised Administrative Code,[33] one of the qualifications of an elective municipal officer is that he must be a “qualified voter” in his municipality.  Section 2174 of the Revised Administrative Code reads:

Section 2174.  Qualifications of elective municipal officer.  – An elective municipal officer must, at the time of the election, be a qualified voter in his municipality and must have been resident therein for at least one year, and must not be less than twenty-three years of age.  He must also be able to read and write intelligently either English, Spanish, or the local dialect.  (Emphasis supplied)

On the other hand, under the Republic Act No. 2370,[34] otherwise known as the Barrio Charter, a candidate for the barrio council[35] must be a “qualified elector.” Section 8 of the Barrio Charter reads:

Section 8. Qualifications for election to the barrio council.  – Candidates for election to the barrio council:

(a)     Must be a qualified elector and must have been a resident of the barrio for at least six months prior to the election; and

(b)     Must not have been convicted of a crime involving moral turpitude or of a crime which carries a penalty of at least one year imprisonment.  (Emphasis supplied)

Thus, in the 1958 case of Rocha v. Cordis,[36] the Court held that a candidate for an elective municipal office did not have to be a registered voter in the municipality to qualify to run for an elective municipal office.   Citing the earlier case of Yra v. Abaño,[37] the Court ruled that the words “qualified elector” meant a person who had all the qualifications provided by law to be a voter and not a person registered in the electoral list. In the same vein, the term “qualified” when applied to a voter does not necessarily mean that a person must be a registered voter.

However, under the Local Government Code of 1991,[38] which took effect on 1 January 1992, an elective local official, including a Punong Barangay, must not only be a “qualified elector” or a “qualified voter,” he must also be a “registered voter.”[39] Section 39 of the Local Government Code provides:

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

x x x(e)     Candidates for the position of punong barangay or member of the sangguniang barangay must be at least eighteen (18) years of age on election day.

x x x

These qualifications were reiterated in Section 2 of COMELEC Resolution No. 4801 dated  23 May 2002 which prescribed the guidelines on the filing of certificates of candidacy in connection with the 15 July 2002 elections.  Section 2 reads:

Sec. 2.          Qualifications. – (a) Candidates for Punong Barangay and Sangguniang Barangay Kagawad must be:

(1)     Filipino citizens;

(2)     At least 18 years old on election day;

(3)     Able to read and write Pilipino  or  any  local   language  or dialect; and

(4)     Registered voters of the barangay where they intend to run for office and residents thereof for at least one (1) year immediately preceding the day of the election. (Emphasis supplied)

Section 7 of COMELEC Resolution No. 4801 likewise requires the Election Officer to verify whether the candidates are registered voters and possess all the qualifications of a candidate.  Thus, Section 7 (f) and (g) read:

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(f)      Before the preparation of the certified lists of candidates it shall be the duty of the Election Officer to:  (1) verify whether all candidates for barangay  and sangguniang kabataan positions are registered voters of the barangay  where they file their certificates of candidacy; and (2)  examine the entries of the certificates of candidacy and determine on the basis of said entries whether the candidate concerned possesses all the qualifications of a candidate.

(g)     If there are candidates who are not registered voters in the barangay where they run for barangay or sangguniang kabataan positions or do not possess all the other qualifications of a candidate, he shall make the corresponding report by REGISTERED MAIL and by RUSH TELEGRAM to the Law Department of the Commission within three (3) days from the last day for filing the certificates of candidacy, copy furnished the Provincial Election Supervisor and the Regional Election Director.  The names of said candidates, however, shall still be included in the certified lists of candidates until the Commission directs otherwise.  (Emphasis supplied)

It is thus clear that the law as it now stands requires a candidate for Punong Barangay to be a registered voter of the barangay where he intends to run for office.

Bautista admitted in his affidavit[40] dated 24 August 2002 that he was not a registered voter of Barangay Lumbangan, thus:

A F F I D A V I T

That I, RAYMUNDO A. @ OCA BAUTISTA, of legal age, married, Mechanical Engineer by profession, Filipino citizen and have been residing at Sitio Calamundingan, Barangay Lumbangan, Nasugbu, Batangas, after being duly sworn according to law depose and say:

1.       That I was born at Barangay Tumalim, Nasugbu, Batangas, on March 15, 1954 and upon reaching the age of four (4) our family transferred to Sitio Calamundingan, Barangay Lumbangan, Nasugbu, Batangas and I have been permanently residing thereat since that time up to the present, and this fact can be attested to by our immediate neighbors.

2.       That since the time I reached the age of majority, I have participated both in the National and Local Elections up to the year 1995  and as matter of fact I ran for the Office of member of the Municipal Council in the year 1992  Elections.

3.       Sometime during the late part of the year 1995, I went to the United States of America scounting (sic)  for a good job  but I was not able to find one so I went home  in the  year 2000 but again believing that I could land  a job in the United States, I again went there  but I was not able to get a  job therein and so I went back to the  Philippines in the year 2001 but I found  out that my  name was no longer included in the list of registered voters at Barangay Lumbangan, Nasugbu, Batangas.

4.       Sometime in the year 2002,  I personally went to the Office of the Local Election Registrar particularly talking to Miss Josefina P. Jareño in order to registerbecause as I know, to run for the Office of Barangay Chairman, I have to be a registered  voter in our Barangay.

5.       However, I was denied  registration because according to her, her Office is not open for registration  at any time and I should wait for the General Registration  and for that  reason I was not able to register.

xxx

11.     That had I known  that there is a provision in Section 52, under paragraph (k) A, when Miss Josefina P. Jareño denied my request for registration  as a voter, I would have filed a Petition for Mandamus with the proper Court so that she can be ordered to register me as a voter in Barangay Lumbangan, Nasugbu, Batangas   so that any and all technicality may be avoided.”(Emphasis supplied)

According to Bautista’s affidavit, he was practically out of the country from 1995 until 2001.  When the certified list of voters ceased to be effective and operative after the barangay elections in 1997, qualified voters had to register again to vote in any election.  Apparently, Bautista failed to register during the general registration of voters conducted by the COMELEC in 1997 since he was still out of the country during that time.  Republic Act No. 8189 (“The Voter’s Registration Act of 1996”) provides for a system of continuing registration of voters.  Thus, Bautista should have registered anew in the office of the Election Officer when he came back to the Philippines in 2001 and learned that his name was no longer included in the roster of registered voters. The pertinent provisions of RA No. 8189 read:

SEC. 7. General Registration of Voters. – Immediately after the barangay elections in 1997, the existing certified list of voters shall cease to be effective and operative.  For purposes of the May 1998 elections and all elections, plebiscites, referenda, initiatives, and recall subsequent thereto, the Commission shall undertake a general registration of voters before the Board of Election Inspectors on June 14, 15, 21 and 22 and, subject to the discretion of the Commission, on June 28 and 29, 1997 in accordance with this Act.

SEC. 8. System of Continuing Registration of Voters. – The personal filing of application of registration of voters shall be conducted daily in the office of the Election Officer during regular office hours.  No registration shall, however be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election.

xxx

19

SEC. 10. Registration of Voters. – A qualified voter shall be registered in the permanent list of voters in a precinct of the city or municipality where he resides to be able to vote in any election.  To register as a voter, he shall personally accomplish an application form for registration as prescribed by the Commission in three (3) copies before the Election Officer on any date during office hours after having acquired the qualifications of a voter.(Emphasis supplied)

xxx

It is thus clear that Bautista was remiss in his duty to ensure his right to vote and to be voted for public office. As early as 2001, he was already aware that his name was no longer included in the roster of registered voters. Yet, Bautista chose not to register anew that year despite his knowledge that he needed to register as a voter in the barangay to run for the office of Punong Barangay.

Bautista alleges that his non-registration as a voter of Barangay Lumbangan was due to the refusal of Election Officer Jareño to register him sometime in January 2002.[41] Aside from his bare allegation that he tried to register in January 2002, Bautista did not proffer any other proof like a duly accomplished application form for registration to substantiate his claim that he indeed attempted to register anew.  On the other hand, Election Officer Jareño denies Bautista’s allegations in her comment filed on 10 October 2002, thus:

COMMENT

COMES NOW Respondent JOSEPINA P. JAREÑO (sic) and to this Honorable Supreme Court by way of comment to the Petition for Certiorari and Prohibition with Prayer for the Issuance of Temporary Restraining Order, filed by herein Petitioner, most respectfully states that:

1.     Respondent JOSEPINA P. JAREÑO (sic) is the Election Officer of Nasugbu, Batangas, while petitioner, RAYMUNDO A. BAUTISTA was one of the candidates for the Barangay Chairman of Barangay Lumbangan, Nasugbu, Batangas, in the recently concluded barangay elections;

2.     Based on the records in our files, petitioner was not and is not    a registered voter of Barangay Lumbangan or any other barangays in Nasugbu, Batangas;

3.     There was never an instance during the period starting June 1997 up to December 26, 2001 when registration of voters for the updating of the Voter’s Registration Record had been undertaken by the Commission on Elections on an “on again/off again” system, did petitioner RAYMUNDO BAUTISTA come to our office to check or ensure that he is still in the active list of voters of Barangay Lumbangan, i.e., assuming that he was registered as a voter thereof, in the first place;

4.     The last day of registration of voters (new or transferee) had been last December 26, 2001 and registration shall resume again, this coming September 16, 2002.  In the meantime, no general registration nor special registration had been mandated by the Commission on Election (COMELEC, for brevity) between the period December 27, 2001 until September 15, 2002;

5.     I only met petitioner RAYMUNDO BAUTISTA for the first time when he came to our office to file his Certificate of Candidacy last June 10, 2002, which was the last day set by the COMELEC for the filing of Certificates of Candidacy;

x x x

Bautista was aware when he filed his certificate of candidacy for the office of Punong Barangay that he lacked one of the qualifications – that of being a registered voter in the barangay where he ran for office. He therefore made a misrepresentation of a material fact when he made a false statement in his certificate of candidacy that he was a registered voter in Barangay Lumbangan.[42]  An elective office is a public trust. He who aspires for elective office should not make a mockery of the electoral process by falsely representing himself.  The importance of a valid certificate of candidacy rests at the very core of the electoral process. [43] Under Section 78 of the Omnibus Election Code, false representation of a material fact in the certificate of candidacy is a ground for the denial or cancellation of the certificate of candidacy.  The material misrepresentation contemplated by Section 78 refers to qualifications for elective office.  A candidate guilty of misrepresentation may be (1) prevented from running, or (2) if elected, from serving, or (3) prosecuted for violation of the election laws.[44]

Invoking salus populi est suprema lex, Bautista argues that the people’s choice expressed in the local elections deserves respect. Bautista’s invocation of the liberal interpretation of election laws is unavailing.  As held in Aquino v. Commission on Elections:[45]

In fine, we are left with no choice but to affirm the COMELEC’s conclusion declaring herein petitioner ineligible for the elective position as Representative of Makati City’s Second District on the basis of respondent commission’s finding that petitioner lacks the one year residence in the district mandated by the 1987 Constitution. A democratic government is necessarily a government of laws. In a republican government those laws are themselves ordained by the people.  Through their representatives, they dictate the qualifications necessary for service in government positions.  And as petitioner clearly lacks one of the essential qualifications for running for membership in the House of Representatives, not even the will of a majority or plurality of the voters of the Second District of Makati City would substitute for a requirement mandated by the fundamental law itself.

Indeed, the electorate cannot amend or waive the qualifications prescribed by law for elective office.  The will of the people as expressed through the ballot cannot cure the vice of ineligibility.[46] The fact that Bautista, a non-registered voter, was elected to the office of Punong Barangay does not erase the fact that he lacks one of the qualifications for Punong Barangay.

20

Whether it was proper to proclaim Alcoreza as PunongBarangay in view of ineligibility of the winning candidate

Bautista subscribes to the view of the Solicitor General that under the law and jurisprudence, the COMELEC cannot proclaim as winner the second placer in case of ineligibility of the winning candidate.

The Solicitor General submits that the disqualification of the winning candidate Bautista does not result in the proclamation of Alcoreza who obtained the second highest number of votes because Alcoreza was obviously not the choice of the electorate. The Solicitor General emphasized that the COMELEC declared Bautista ineligible for the post of Punong Barangay only after his election and proclamation as the winning candidate.

Respondent Alcoreza, however, alleges that her proclamation as the elected Punong Barangay was legal and valid.  Alcoreza claims her case falls under the exception to the rule that the disqualification of the winning candidate does not entitle the candidate with the next higher number of votes to be proclaimed winner.  Alcoreza cites Grego   v. COMELEC [47]  which held that the exception is predicated on the concurrence of two assumptions, namely: (1) the one who obtained the highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law of a candidate’s disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate.

This Court agrees with the view of the Solicitor General.  It is now settled doctrine that the COMELEC cannot proclaim as winner the candidate who obtains the second highest number of votes in case the winning candidate is ineligible or disqualified. [48] The exception to this well-settled rule was mentioned in Labo, Jr. v. Commission on Elections[49] and reiterated in Grego v. COMELEC.[50] However, the facts warranting the exception to the rule do not obtain in the present case.

Although the COMELEC Law Department recommended to deny due course or to cancel the certificate of candidacy of Bautista on 11 July 2002, the COMELEC en banc failed to act on it before the 15 July 2002 barangay elections.  It was only on 23 July 2002 that the COMELEC en banc issued Resolution No. 5404, adopting the recommendation of the COMELEC Law Department and directing the Election Officer to delete Bautista’s name from the official list of candidates.

Thus, when the electorate voted for Bautista as Punong Barangay on 15 July 2002, it was under the belief that he was qualified.  There is no presumption that the electorate agreed to the invalidation of their votes as stray votes in case of Bautista’s disqualification.[51] The Court cannot adhere to the theory of respondent Alcoreza that the votes cast in favor of Bautista are stray votes.[52] A subsequent finding by the COMELEC en banc that Bautista is ineligible cannot retroact to the date of elections so as to invalidate the votes cast for him.[53] As held in Domino v. COMELEC:[54]

Contrary to the claim of INTERVENOR, petitioner was not notoriously known by the public as an ineligible candidate.  Although the resolution declaring him ineligible as candidate was rendered before the election, however, the same is not yet final and executory.  In fact, it was no less than the COMELEC in its Supplemental Omnibus Resolution No. 3046 that allowed DOMINO to be voted for the office and ordered that the votes cast for him be counted as the Resolution declaring him ineligible has not yet attained finality.  Thus the votes cast for DOMINO are presumed to have been cast in the sincere belief that he was a qualified candidate, without any intention to misapply their franchise.  Thus, said votes can not be treated as stray, void, or meaningless.

The Local Government Code provides for the rule regarding permanent vacancy in the Office of the Punong Barangay, thus:

SEC. 44. Permanent vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice-Mayor. – If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor.  If a permanent vacancy occurs in the offices of the governor, vice-governor, mayor, or vice-mayor, the highest ranking sanggunian member or, in the case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice-governor, mayor or vice-mayor, as the case may be.  Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein.(b)     If a permanent vacancy occurs in the office of the punong barangay member, the highest ranking sangguniang barangay member, or in the case of his permanent disability, the second highest ranking sanggunian member, shall become the punong barangay.(c)     A tie between or among the highest ranking sanggunian members shall be resolved by the drawing of lots.(d)     The successors as defined herein shall serve only the unexpired terms of their predecessors.For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office.

For purposes of succession as provided in this Chapter, ranking in the sanggunian shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local election. (Emphasis supplied)

Since Bautista failed to qualify for the position of Punong Barangay, the highest ranking sangguniang barangay member, or in the case of his permanent disability, the second highest ranking sangguniang member, shall become the Punong Barangay.[55]

WHEREFORE, we DISMISS the petition.  Petitioner Raymundo A. Bautista is ineligible for the position of Punong Barangay of Barangay Lumbangan for not being a registered voter of Barangay Lumbangan.  The proclamation of the second placer Divina Alcoreza as winner in lieu of Bautista is void.  Instead, the highest ranking sangguniang barangay member of Barangay Lumbangan shall assume the office of Punong Barangay of Lumbangan for the unexpired portion of the term.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio-Morales,Callejo, Sr., Azcuna, and Tinga, JJ., concur.

Ynares-Santiago, on official leave.

21

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. 128877 December 10, 1999

ROLANDO ABAD, JR., petitioner, vs.COMMISSION ON ELECTIONS; HON. OCTAVIO A. FERNANDEZ, JR., Presiding Judge, Second Metropolitan Circuit Trial Court, General Natividad, Nueva Ecija; and SUSANITO SARENAS, JR.,respondents.

R E S O L U T I O N

 

QUISUMBING, J.:

This special civil action for certiorari seeks to annul the COMELEC En Banc Resolution in SPR No. 45-96, dated April 29, 1997. Petitioner ABAD had sought COMELEC's review of respondent Judge's orders issued in the election protest filed against private respondent SARENAS. In said Resolution, the COMELEC denied review, decreeing thus:

WHEREFORE, considering that the June 3, 1996 Order of the Court a quo had already attained finality at the time of the filing of this Petition, thus, must remain undisturbed, and there being no showing that the drawing of lots mandated by the Court's Order dated October 3, 1996, was attended by fraud or irregularities, the Commission En Banc RESOLVED to DISMISS the Petition for lack of merit. 1

The factual antecedents are as follows:

Petitioner Abad and private respondent Sarenas were both candidates for Sangguniang Kabataan (SK) chairman of Barangay Sta. Barbara, Llanera, Nueva Ecija, during the May 6, 1996, SK elections.

Petitioner emerged as winner with 66 votes as against private respondent's 62 votes. Petitioner was thus proclaimed SK chairman of Sta. Barbara. 2

Private respondent soon thereafter filed an election protest alleging fraud on the part of petitioner through the registration of four unqualified voters. Three voters were allegedly underaged while one lacked the required residency in the barangay. Private respondent asked for a recount of the votes cast. 3

The election protest was filed before the Second Municipal Circuit Trial Court (MCTC) of Gen. Natividad, Nueva Ecija, presided over by respondent Judge.

In his answer, petitioner claimed that private respondent was barred from questioning the qualifications of the four voters because he failed to ask for their exclusion from the voters' list as provided for under Section 22 of COMELEC Resolution No. 2824, the Rules and Regulations Governing the May 6, 1996 Elections of the SK; and Section 2 of COMELEC Resolution No. 2832, the Instructions for the Registration of Voters in connection with the SK elections. Petitioner contended that the permanent registry list of voters is conclusive on the question of who has the right to vote in an election under the Omnibus Election Code. Petitioner also claimed that a recount is not justified under the provisions of the same Code.

In addition, petitioner charged private respondent with vote-buying. He further alleged error on the part of the Board of Election Tellers in the appreciation of votes.

In an Order dated June 3, 1996, respondent MCTC Judge Fernandez ruled in favor of private respondent. According to Judge Fernandez, while the registry list of voters is indeed conclusive as to who can vote, this must be disregarded if justice were to prevail. Moreover, said Judge Fernandez, a recount of the votes would not be determinative of who actually won the SK chairmanship. Instead, he ordered that four votes, representing the votes of those persons whose qualification as voters were questioned, be deducted from petitioner. 4

As this resulted in a 62-62 tie between petitioner and private respondent, Judge Fernandez ordered that the winner be determined via drawing of lots or toss of a coin. 5

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Petitioner appealed to the Regional Trial Court of Cabanatuan City, Branch 26 which, however, dismissed his appeal, since under COMELEC Resolution No. 2824, the decision of the MCTC insofar as the SK election is concerned can only be elevated to the COMELEC en banc through a petition for review and only in meritorious cases. The RTC through Acting Presiding Judge Johnson L. Ballutay ordered remand of the case to the court of origin. 6

The drawing of lots ordered by the MCTC proceeded on October 3, 1996. Petitioner was absent although he was duly notified of the proceeding. 7 Private respondent Sarenas emerged as winner in the drawing of lots. In an order issued on the same day, the MCTC directed him to take his oath of office and to assume his duties as SK chairman.

Thus petitioner Abad then filed a petition for review with the COMELEC en banc.

In its Resolution dismissing the petition, the COMELEC said:

On the basis of the facts presented the Commission En Banc holds that the June 3, 1996 Order of the Municipal Trial Court had, as of the filing of the Petition for Review already become final. In short, the Petition as regards said Order had prescribed. Records show that the decision of the Trial Court annulling the proclamation of Abad and declaring a tie between him and Sarenas, to be broken by a drawing of lots, was received by Abad on June 5, 1996. Though he appealed said Order to the Regional Trial Court, the remedy availed of was not the one obtaining under COMELEC Resolution 2824, Section 49 of which provides:

Finality of Proclamation. — The proclamation of the winning candidates shall be final. However, the Metropolitan Trial Courts/Municipal Trial Courts/Municipal Circuit Trial Courts shall have original jurisdiction over all election protest cases, whose decision shall be final. The Commission En Banc in meritorious cases may entertain a petition for review of the decision of the MeTC/MTC/MCTC in accordance with the COMELEC Rules of Procedure. An appeal bond of P2,000.00 shall be required which shall be refundable if the appeal is found meritorious.

More properly, and conformably with said provision, Petitioner should have directed his Petition to the Commission En Banc within thirty days from June 5, 1996, the date the decision was served upon him. Even if we assume that his procedural lapse was justifiable thus permit his appeal to the RTC to stay the running of the prescriptive period, he should have rectified his error upon receipt of the Order of the RTC dismissing his Appeal on July 10, 1996. Petitioner had several opportunities to avail of the correct remedy. Yet, he procrastinated and acted only when he lost the drawing of lots to respondent. Considering therefore that Petitioner failed to question the propriety of the Order of the Court a quodated June 3, 1996, the same had become final and executory.

The October 3, 1996 Order of the MTC, is issued in implementation of the June 3, 1996 Order, declaring a tie between Petitioner and Respondent Sarenas and directing a drawing of lots to break it. Having become executory as of October 3, 1996, its implementation become mandatory. Records show that Petitioner was duly notified of the proceedings. He did not appear despite notice. He can not invoke his non-appearance as an excuse for questioning the proceedings. The same was conducted in public. No irregularity or anomaly attending the proceeding was proven by Petitioner. There is therefore no cogent reason to warrant the setting aside of the result thereof. 8

Hence, this petition. While petitioner raises principally the issue of grave abuse of discretion on the part of the COMELEC for not declaring as null and void the challenged orders of the trial court, the more fundamental issue here, in our view, involves the COMELEC's own jurisdiction. The Court cannot proceed further in this case without resolving that issue.

Note that from the trial court, petitioner proceeded directly to the COMELEC en banc. Apparently, he was proceeding pursuant to Section 49 of COMELEC Resolution No. 2824, which provides:

. . . The Commission en banc in meritorious cases may entertain a petition for review of the decision of the MetC/MTC/MCTC in accordance with the Comelec Rules of Procedure. . . .

But we find this rule not in accord but in conflict with Article IX-C, Section 3 of the Constitution, which states that:

Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. (Emphasis supplied.)

In Sarmiento v. Commission on Elections, 9 we ruled that the COMELEC, sitting en banc, does not have the requisite authority to hear and decide election cases in the first instance. This power pertains to the divisions of the Commission. Any decision by the Commission en banc as regards election cases decided by it in the first instance is null and void.

In the recent case of Zarate v. COMELEC, 10 this rule has been reiterated. We nullified the decision of the COMELEC en banc in Zarate, which incidentally also concerns a 1996 SK election case appealed directly from the MTC. We remanded the case and ordered it assigned to an appropriate division of the COMELEC.

Thus, consistent with the rulings in Zarate and Sarmiento cases, we are now constrained to declare as null and void the questioned resolution of the COMELEC en banc in this case of Abad (SPR No. 45-96).

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WHEREFORE, the instant petition is GRANTED. The decision of the COMELEC en banc in SPR No. 45-96 is SET ASIDE and the Commission is ordered to assign the case to one of its Divisions for prompt resolution.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 155717             October 23, 2003

ALBERTO JARAMILLA, petitioner, vs.COMMISSION ON ELECTIONS, ANTONIO SUYAT, MUNICIPAL BOARD OF CANVASSERS OF STA. CRUZ, ILOCOS SUR, THE NEW MUNICIPAL BOARD OF CANVASSERS (COMELEC), AND IRENEO CORTEZ,respondents.

D E C I S I O N

AZCUNA, J.:

For review before the Court is the instant petition for certiorari1 with prayer for temporary restraining order and preliminary injunction ascribing grave abuse of discretion to public respondent Commission on Elections (COMELEC) in issuing its en banc resolution dated October 24, 2002.

The antecedent facts, as summarized in the COMELEC resolution,2 are as follows:

[Respondent] Antonio Suyat and [petitioner] Alberto J. Jaramilla both ran for the position of Member of the Sangguniang Bayan in the Municipality of Sta. Cruz, Ilocos Sur in the May 14, 2001 elections.

On May 16, 2001, the Municipal Board of Canvassers of Sta. Cruz, proclaimed the winning candidates for the offices of Mayor, Vice-Mayor and eight (8) members of the Sangguniang Bayan. The Certificate of Canvass of Votes and Proclamation shows the following results and ranking with respect to the members of the Sangguniang Bayan, to wit:

Name of Candidates Total Votes Obtained

1. RAGUCOS, Ma. Luisa Laxamana 6,324

2. ABAYA, Juan Jr., Andaquig 6,013

3. GINES, Fidel Cudiamat 5,789

4. QUILOP, Renato Avila 5,227

5. BILIGAN, Osias Depdepen 5,130

6. RUIZ, Agustin Turgano 4,972

7. JARAMILLA, Alberto Jimeno 4,815

8. CORTEZ, Ireneo Habon 4,807

In the tabulated results issued by the Election Officer and Chairperson of the Municipal Board of Canvassers of Sta. Cruz, it is shown that [respondent Suyat] obtained Four thousand seven hundred seventy nine (4,779) votes and was ranked no. 9.

Upon review by [respondent Suyat], he discovered that [petitioner] was credited with only twenty three (23) votes per Election Return from Precinct No. 34A1. However, when the figures were forwarded to the Statement of Votes by Precinct, [petitioner] was credited with seventy three (73) votes for Precinct No. 34A1 or fifty (50) votes more than what he actually obtained. If the entry were to be corrected, the affected candidates would be ranked as follows:

7. CORTEZ, Ireneo Habon – 4,807

8. SUYAT, Antonio – 4,779

9. JARAMILLA, Alberto – 4,765

On June 13, 2001, respondent Suyat filed before the COMELEC en banc an Urgent Motion for Issuance of Order to Reconvene,3 which the latter treated as a Petition for Correction of Manifest Error. Petitioner countered in his Answer4 that said petition should be dismissed for having been filed out of time and for lack of the required certification of non-forum shopping.

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On October 24, 2002, COMELEC en banc issued the assailed resolution, the dispositive portion of which reads:5

WHEREFORE, premises considered, the Motion/Petition is hereby GRANTED. The proclamation of Respondent ALBERTO J. JARAMILLA [herein petitioner] is ANNULLED. A New Municipal Board of Canvassers is hereby created composed of the following:

Atty. NELIA AUREUS – Chairman

Atty. MICHAEL D. DIONEDA – Vice Chairman

Atty. ALLEN FRANCIS F. ABAYA – Member

The New Board is hereby directed to immediately convene at the Comelec Session Hall, Intramuros, Manila, after due notice to parties and effect a correction in the entry in the Statement of Votes by Precinct particularly the votes for Respondent Alberto Jaramilla [herein petitioner], who should be credited with twenty three (23) votes only. Thereafter, the New Board shall prepare a corrected Certificate of Canvass and Proclamation on the basis of the New Statement of Votes and proclaim the Petitioner [herein private respondent Suyat] as the eighth (8th) Board Member of Sta. Cruz, Ilocos Sur. Mr. Ireneo Habon Cortez shall be declared the 7th Municipal Board Member. The New Board shall use the Comelec copies of the election returns and Statement of Votes pertaining to the instant case.

SO ORDERED.

Hence the present recourse by petitioner anchored on the following grounds:

I. THAT THE COMMISSION ON ELECTION ERRED IN NOT DISMISSING THE CASE CONSIDERING THAT THE PETITION FILED BEFORE THE COMELEC WAS FILED BEYOND THE PRESCRIPTIVE PERIOD AS SET FORTH IN THE COMELEC RULES OF PROCEDURE.

II. THAT THE COMMISSION ON ELECTION ERRED IN GIVING DUE COURSE TO THE PETITION INSTEAD OF DISMISSING IT CONSIDERING THAT THE PETITION LACKED A CERTIFICATION AGAINST FORUM-SHOPPING.

III. THAT THE COMMISSION ON ELECTION ERRED IN NOT DISMISSING THE CASE FOR FAILURE TO PAY THE DOCKET OR FILING FEE ON TIME.6

Before discussing the merits, although not raised in the petition, the Court deems it appropriate to discuss the jurisdiction of the COMELEC en banc in election cases. Article IX-C of the Constitution states in part that:

Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission   en banc. 7

As stated in the provision, and in line with the Court’s recent pronouncement in Milla v. Balmores-Laxa,8 election cases including pre-proclamation controversies should first be heard and decided by a division of the COMELEC, and then by the commission en banc if a motion for reconsideration of the division is filed.1a\^/phi1.net

It must be noted however that this provision applies only in cases where the COMELEC exercises its adjudicatory or quasi-judicial powers, and not when it merely exercises purely administrative functions. This doctrine was laid out in Castromayor v. COMELEC,9 and reiterated in subsequent cases.10 Accordingly, when the case demands only the exercise by the COMELEC of its administrative functions, such as the correction of a manifest mistake in the addition of votes or an erroneous tabulation in the statement of votes, the COMELEC en banc can directly act on it in the exercise of its constitutional function to decide questions affecting elections.11

The Petition for Correction of Manifest Errors in the case at bar alleges an erroneous copying of figures from the election return to the Statement of Votes by Precinct. Such an error in the tabulation of the results, which merely requires a clerical correction without the necessity of opening ballot boxes or examining ballots, demands only the exercise of the administrative power of the COMELEC. Hence, the Commission en banc properly assumed original jurisdiction over the aforesaid petition.

Now we proceed to the merits of the case.

Petitioner bewails the fact that the COMELEC took cognizance of respondent Suyat’s petition for correction despite its having been filed beyond the 5-day reglementary period fixed in the COMELEC Rules of Procedure and its lack of certification against forum-shopping.12

Petitioner overlooks the fact that the COMELEC has the discretion to suspend its rules or any portion thereof in the interest of justice. Section 4, Rule 1 of the COMELEC Rules expressly provides that:

SEC. 4. Suspension of the Rules – In the interest of justice and in order to obtain speedy disposition of all matters pending before the commission, these rules or any portion thereof may be suspended by the Commission.

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The COMELEC therefore has authority to suspend the reglementary periods provided by the rules, or the requirement of certification of non-forum shopping for that matter, in the interest of justice and speedy resolution of the cases before it.13

Petitioner next points out respondent Suyat’s omission to pay the prescribed filing fees.1a\^/phi1.net

As correctly pointed out by the Office of the Solicitor General, the COMELEC is not constrained to dismiss a case before it by reason of non-payment of filing fees.14 Section 18, Rule 40 the COMELEC Rules of Procedure states:

SEC 18. Nonpayment of Prescribed Fees – If the fees above prescribed are not paid, the Commission may refuse to take action thereon until they are paid and may dismiss the action or the proceeding.15

The use of the word "may" in the aforecited provision readily shows that the COMELEC is conferred the discretion whether to entertain the petition or not in case of non-payment of legal fees.16 And even if it were not afforded such discretion, as discussed above, it is authorized to suspend its rules or any portion thereof in the interest of justice.17

It is noteworthy that petitioner only raised issues on the foregoing technicalities, without questioning the COMELEC’s finding of manifest error in the tabulation of votes. Even at the COMELEC stage, his denial in his Answer18 was unsubstantiated by any rebuttal evidence to disprove the submitted photocopies of the election returns and statement of votes, which clearly showed the erroneous addition of 50 votes in his favor. The COMELEC’s unquestioned findings of fact are therefore sustained. The Court reiterates that factual findings of the COMELEC based on its own assessments and duly supported by evidence, are given conclusive weight in the absence of arbitrariness or grave abuse of discretion.19

Laws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections.20 Adherence to technicality that would put a stamp on a palpably void proclamation, with the inevitable result of frustrating the people’s will, can never be countenanced.21

WHEREFORE, finding no grave abuse of discretion committed by public respondent COMELEC, its Resolution en banc dated October 24, 2002 is AFFIRMED. The petition is DISMISSED.

No pronouncement as to costs.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 153945             February 4, 2003

REYNATO BAYTAN, REYNALDO BAYTAN and ADRIAN BAYTAN, petitioners, vs.THE COMMISSION ON ELECTIONS, respondent.

D E C I S I O N

CARPIO, J.:

The Case

Challenged in this petition for certiorari1 with prayer for temporary restraining order and preliminary injunction is the Resolution dated June 3, 20022 of the Commission on Elections ("COMELEC" for brevity) en banc in E.O. Case No. 97-503. In its assailed Resolution, the COMELEC en banc denied the motion to reconsider Minute Resolution No. 00-2281 dated November 9, 20003 ordering the Law Department to file criminal cases for "double registration" against petitioners Reynato Baytan, Reynaldo Baytan and Adrian Baytan ("petitioners" for brevity).

The Antecedents

On June 15, 1997, petitioners were on their way to register for the May 1998 elections when they met the newly elected Barangay Captain, Roberto Ignacio ("Ignacio" for brevity), in Barangay 18, Zone II of Cavite City. Ignacio led petitioners to register in Precinct No. 83-A of Barangay 18. Petitioners registered in this precinct as evidenced by Voters Registration Records Nos. 41762473, 41762472 and 41762470.

When petitioners returned home, they wondered why the registrants in this precinct looked unfamiliar to them. This prompted petitioners to return to the registration center to study the precinct map of Barangay 18. They then realized that their residence is situated within the jurisdiction of Barangay 28. Thus, petitioners proceeded to Precinct 129-A of Barangay 28 and registered anew on June 22, 1997 as evidenced by Voters Registration Records Nos. 42662969, 42662968 and 42662917.

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Subsequently, petitioners sent a letter dated August 21, 1997 to former COMELEC Assistant Executive Director Jose Pio O. Joson and furnished a copy thereof to COMELEC Registrar Francisco Trias. In this letter, petitioners requested for advice on how to cancel their previous registration. They also explained the reason and circumstances of their second registration and expressed their intention to redress the error.

On September 16, 1997, the Election Officer of Cavite City forwarded copies of petitioners’ Voters Registration Records to the Provincial Election Supervisor, Atty. Juanito V. Ravanzo ("Ravanzo" for brevity), for evaluation. Ravanzo endorsed the matter to the Regional Director for prosecution. Eventually, the Law Department endorsed the case to Ravanzo for resolution.

On January 10, 1998, Ravanzo recommended filing an information for double registration against petitioners. In an en banc meeting held on November 09, 2000, the COMELEC in its Minute Resolution No. 00-2281 affirmed the recommendation of Ravanzo. Petitioners moved for reconsideration. The COMELEC en banc denied the motion and disposed as follows:

"WHEREFORE, premises considered, the En Banc resolution dated November 9, 2000 is hereby AFFIRMED. The Law Department is hereby directed to file the proper information against respondents for violation of Art. XXII, Sec. 261, par. (y) sub-par. (5) of the Omnibus Election Code."

Hence, the instant petition.

The Issues

Petitioners contend that the COMELEC en banc committed grave abuse of discretion amounting to lack or excess of jurisdiction in –

1. Recommending the prosecution of petitioners for double registration despite clear and convincing evidence on record that they had no intention of committing said election offense;

2. Not considering the letter dated August 21, 1997 addressed to the COMELEC Assistant Director of Cavite City as substantial compliance with the requirement of the law for cancellation of previous registration; and

3. Taking cognizance of the case in the first instance in violation of Section 3, Article IX-C of the Constitution.

In sum, petitioners insist they are innocent of any wrongdoing in their act of registering twice on different days in two different precincts. Petitioners argue that they did not intend to perpetrate the act prohibited, and therefore they should be exculpated. They claim honest mistake and good faith in registering twice. Petitioners claim they made the first registration because of the intervention and instigation of Ignacio.

Petitioners theorize that their August 21, 1997 letter to the election registrar of Cavite City informing him of the lapse and asking how to rectify the same constitutes substantial compliance with the Omnibus Election Code’s requirement of cancellation of prior registration. They further implore a liberal construction of the laws on election offenses since almost five years had lapsed from the date of the commission of the offense on June 15, 1997. They claim the case is about to prescribe under the Election Code.

Lastly, petitioners fault the COMELEC en banc for assuming original jurisdiction over the case in contravention of Section 3, Article IX-C of the Constitution. Petitioners argue that this constitutional provision requires that election cases must first be heard and decided by a Division before assumption of jurisdiction by the COMELEC en banc.

The Court’s Ruling

The petition is bereft of merit.

First and Second Issues: Whether the criminal cases should be dismissed on the ground of lack of intent and substantial compliance with the requirement of cancellation of previous registration.

In Minute Resolution No. 00-2281 dated November 9, 2000, the COMELEC en banc affirmed the recommendation of the investigating officer. The COMELEC thus directed its Law Department to file the necessary information against petitioners for violation of Article XXII, SEC. 261 (y) (5) of the Election Code which reads:

"SEC. 261. Prohibited Acts. – The following shall be guilty of an election offense:

(y) On Registration of Voters:

(5) Any person who, being a registered voter, registers anew without filing an application for cancellation of his previous registration."

Petitioners filed a motion for reconsideration to which the COMELEC en banc issued the assailed Resolution dated June 3, 2002 affirming the Minute Resolution.

The grant by the Constitution to the COMELEC of the power to investigate and prosecute election offenses is intended to enable the COMELEC to assure the people of "free, orderly, honest, peaceful and credible elections." This grant is an adjunct to the

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COMELEC’s constitutional duty to enforce and administer all election laws. Failure by the COMELEC to exercise this power could result in the frustration of the true will of the people and make an idle ceremony of the sacred right and duty of every qualified citizen to vote.4

Petitioners lose sight of the fact that the assailed resolutions were issued in the preliminary investigation stage. A preliminary investigation is essentially inquisitorial and is only the means to discover who may be charged with a crime, its function being merely to determine probable cause.5 All that is required in the preliminary investigation is the determination of probable cause to justify the holding of petitioners for trial. By definition, probable cause is –

"x x x a reasonable ground of presumption that a matter is, or may be, well founded x x x such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe or entertain an honest or strong suspicion that a thing is so. The term does not mean `actual or positive cause’ nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge."6

There is no question that petitioners registered twice on different days and in different precincts without canceling their previous registration. Aside from this, the COMELEC found certain circumstances prevailing in the case sufficient to warrant the finding of probable cause. The COMELEC noted that petitioners wrote down their address in Precinct No. 83-A of Barangay 18 as No. 709 T. Gomez Extension St., Barangay 18-Maya, Cavite City. However, in Precinct No. 129-A of Barangay 28, petitioners registered as residents of No. 709 Magcawas St., Barangay 28-Taurus, Caridad, Cavite City. The COMELEC noted further that the affidavits submitted by petitioners contained glaring inconsistencies. Petitioners claimed that Ignacio led them to the wrong precinct to register. However, Ignacio’s affidavit stated that while he led them to the voting precinct of Barangay 18, he immediately left the area not knowing that petitioners registered in the wrong barangay. Contrary to petitioners’ sworn statements, Aurora Baytan, mother of petitioners, had another version. She claimed in her affidavit that on June 15, 1997, Ignacio went to their house to inform them about the redefinition of their barangay’s territorial jurisdiction. Right then and there, Ignacio brought her sons to Barangay 18 to register.

The COMELEC also pointed out that since "double registration" is malum prohibitum, petitioners’ claim of lack of intent to violate the law is inconsequential. Neither did the COMELEC consider petitioners’ letter dated August 22, 1997 as an application to cancel their previous registration. The COMELEC explained that this letter was sent after their second registration was accomplished and after the election officer of Cavite City had already reported their act of double registration to a higher official.

All told, a reasonably prudent man would readily conclude that there exists probable cause to hold petitioners for trial for the offense of double registration.

Moreover, petitioners’ claims of honest mistake, good faith and substantial compliance with the Election Code’s requirement of cancellation of previous registration are matters of defense best ventilated in the trial proper rather than at the preliminary investigation.7 The established rule is that a preliminary investigation is not the occasion for the full and exhaustive display of the parties’ evidence. It is for the presentation of such evidence only as may engender a well-grounded belief that an offense has been committed and the accused is probably guilty thereof.8

It is also well-settled that the finding of probable cause in the prosecution of election offenses rests in the COMELEC’s sound discretion. The COMELEC exercises the constitutional authority to investigate and, where appropriate, prosecute cases for violation of election laws, including acts or omissions constituting election frauds, offenses and malpractices.9 Generally, the Court will not interfere with such finding of the COMELEC absent a clear showing of grave abuse of discretion. This principle emanates from the COMELEC’s exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided by law.10

We also cannot accept petitioners’ plea for a liberal construction of the laws on the ground of prescription. Prescription of the crime or offense is the forfeiture or loss of the right of the State to prosecute the offender after the lapse of a certain time.11

Section 267 of the Election Code provides that "election offenses shall prescribe after five years from the date of their commission." In this case, the offense of double registration allegedly occurred on June 22, 1997 when petitioners registered for a second time in a different precinct without canceling their previous registration. At this point, the period of prescription for the alleged offense started to run.

However, prescription is interrupted when proceedings are instituted against the offender. Specifically, the period of prescription is interrupted by the filing of the complaint even if it be merely for purposes of preliminary examination or investigation.12

The COMELEC initiated the complaint for double registration against petitioners motu proprio under Sections 3,13414 and 5,15 Rule 34 of the 1993 COMELEC Rules of Procedure. On September 16, 1997, the Election Officer of Cavite City forwarded copies of petitioners’ Voters’ Registration Records for evaluation to Atty. Juanito V. Ravanzo, Provincial Election Supervisor of Cavite City, who was also tasked to investigate the case. Ravanzo endorsed the matter to the Regional Director for prosecution. The Regional Director forwarded the case to the Law Department and the latter re-endorsed the same to the office of Ravanzo for resolution. A preliminary investigation hearing was conducted on January 19, 1998 where petitioners were instructed to submit their counter-affidavits. After the preliminary investigation and based on the affidavits and other evidence submitted in the case, Ravanzo recommended the prosecution of petitioners for the offense of double registration. Ineluctably, the prescriptive period of the offense was interrupted upon the COMELEC’s initiation of proceedings against petitioners and remains tolled pending the termination of the case.

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The liberal construction of punitive laws in relation to the prescription of offenses cannot be invoked to prejudice the interest of the State to prosecute election offenses, especially those which the COMELEC described as "ruffling the electoral system."16

Third Issue: Whether the COMELEC en banc’s assumption of original jurisdiction over the case violated the Constitution.

Petitioners rely on Section 3, Article IX-C of the 1987 Constitution which states:

"Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc."

Petitioners assert that this constitutional provision serves as basis to nullify the proceedings conducted and orders issued by the COMELEC en banc in E.O. Case No. 97-503. Petitioners cite Sarmiento v. Comelec17 and Zarate v. Comelec 18  to support their stand that the COMELEC en banc acted without jurisdiction or with grave abuse of discretion when it assumed original jurisdiction over the case without first referring the same to any of its divisions. In Sarmiento and Zarate, the Court similarly held that "election cases must first be heard and decided by a Division of the Commission," and that the "Commission, sitting en banc, does not have the authority to hear and decide the same at the first instance."

In its Comment for the COMELEC, the Solicitor General points out that the rulings in Sarmiento and Zarate were clarified in Canicosa v. COMELEC 19  to mean that –

"[I]t is only in the exercise of its adjudicatory   or quasi judicial powers that the COMELEC is mandated to hear and decide cases first by division and then, upon motion for reconsideration, by the COMELEC en banc. This is when it is jurisdictional."

The Solicitor General contends that the conduct of a preliminary investigation before the filing of an information in court does not in any way adjudicate with finality the rights and liabilities of the parties investigated. A preliminary investigation does not make any pronouncement as to the guilt or innocence of the party involved. Hence, a preliminary investigation cannot be considered a judicial or quasi-judicial proceeding required to be heard by the Division in the first instance.

On the other hand, petitioners countered that in Cruz v. People,20 the Court held that the conduct of a preliminary investigation "is a judicial or quasi-judicial proceeding since there is opportunity to be heard and for the production and weighing of evidence and a decision is rendered thereon."

Under Section 2, Article IX-C of the 1987 Constitution, the COMELEC exercises both administrative and quasi-judicial powers. The COMELEC’s administrative powers are found in Section 2 (1), (3), (4), (5), (6), (7), (8), and (9) of Article IX-C.21 The 1987 Constitution does not prescribe how the COMELEC should exercise its administrative powers, whether en banc or in division. The Constitution merely vests the COMELEC’s administrative powers in the "Commission on Elections," while providing that the COMELEC "may sit en banc or in two divisions." Clearly, the COMELEC en banc can act directly on matters falling within its administrative powers. Indeed, this has been the practice of the COMELEC both under the 1973 and 1987 Constitutions.22

On the other hand, the COMELEC’s quasi-judicial powers are found in Section 2 (2) of Article IX-C, to wit:

"Section 2. The Commission on Elections shall exercise the following powers and functions:

xxx

(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable."

The COMELEC’s exercise of its quasi-judicial powers is subject to Section 3 of Article IX-C which expressly requires that all election cases, including pre-proclamation controversies, shall be decided by the COMELEC in division, and the motion for reconsideration shall be decided by the COMELEC en banc. It follows, as held by the Court in Canicosa,23 that the COMELEC is mandated to decide cases first in division, and then upon motion for reconsideration en banc, only when the COMELEC exercises its quasi-judicial powers.

The COMELEC is empowered in Section 2(6), Article IX-C of the 1987 Constitution to "prosecute cases of violations of election laws." The prosecution of election law violators involves the exercise of the COMELEC’s administrative powers. Thus, the COMELEC en banc can directly approve the recommendation of its Law Department to file the criminal information for double registration against petitioners in the instant case. There is no constitutional requirement that the filing of the criminal information be first decided by any of the divisions of the COMELEC.

In sum, the second sentence of Section 3, Article IX-C of the 1987 Constitution is not applicable in administrative cases, like the instant case where the COMELEC is determining whether probable cause exists to charge petitioners for violation of the provision of the Election Code prohibiting double registration.

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Indeed, the COMELEC acted in accordance with Section 9(b), Rule 34 of the 1993 COMELEC Rules of Procedure governing the prosecution of election offenses in meeting en banc in the first instance and acting on the recommendation of Investigating Officer Ravanzo to file charges against petitioners. The rule reads:

"SEC. 9. Duty of the Law Department, State Prosecutor, Provincial or City Fiscal Upon Receipt of Records. – x x x

(b). In cases investigated by the lawyers or the field personnel of the Commission, the Director of the Law Department shall review and evaluate the recommendation of said legal officer, prepare a report and make a recommendation to the Commission affirming, modifying or reversing the same  which shall be included in the agenda of the succeeding meeting en banc of the Commission . If the Commission approves the filing of an information against the respondent/s, the Director of the Law Department shall prepare and sign the information for immediate filing with the appropriate court." (Emphasis supplied)

Minute Resolution No. 00-2281 was issued during the en banc meeting held on November 9, 2000 to resolve the recommendation of Ravanzo in the case.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. 108886 May 5, 1995

AQUILES U. REYES, petitioner, vs.REGIONAL TRIAL COURT OF ORIENTAL MINDORO, BRANCH XXXIX, COMMISSION ON ELECTIONS, ADOLFO G. COMIA, AND THE SANGGUNIANG BAYAN OF NAUJAN, ORIENTAL MINDORO, respondents.

 

MENDOZA, J.:

This is a petition for certiorari, prohibition and mandamus which seeks (1) the annulment of the decision, dated June 23, 1992, of the Regional Trial Court (Br. 39) of Calapan, Oriental Mindoro, annuling the proclamation of petitioner as the eighth member of the Sangguniang Bayan of Naujan, Oriental Mindoro; (2) the annulment of the decision of the Commission on Elections (COMELEC), dated January 22, 1993, dismissing petitioner's appeal from the trial court's decision; (3) the issuance of a writ of mandamus to compel respondent Sangguniang Bayan to recognize petitioner as the duly elected member thereof; and (4) the issuance of a writ of prohibition against respondent Adolfo G. Comia, enjoining him from continuing in office as member of the Sangguniang Bayan of Naujan, Oriental Mindoro.

The facts are as follows:

Petitioner Aquiles Reyes and private respondent Adolfo Comia were candidates for the position of member of the Sangguniang Bayan of Naujan, Oriental Mindoro in the May 11, 1992 synchronized elections.

On May 13, 1992, during the proceedings of the Municipal Board of Canvassers, private respondent moved for the exclusion of certain election returns, on the ground of serious irregularity in counting in favor of petitioner Aquiles Reyes votes cast for "Reyes" only, considering that there was another candidate (Epitacio Reyes) bearing the same surname. However, without resolving his petition, the Municipal Board of Canvassers proclaimed on the same day petitioner as the eighth winning candidate with 7,205 votes. On May 25, 1992 petitioner took his oath of office.

On June 1, 1992, private respondent filed an election protest before the trial court. He alleged that "a vital mistake [had been] committed by the Board of Canvassers in the mathematical computation of the total number of votes garnered by petitioner [now private respondent];" Private respondent alleged:

5. That in the said Statement of Votes by City/Municipality or Precinct or C.E. Form No. 20-A, it is reflected therein that the total number of votes garnered by the petitioner is only 858 votes, when in fact and in truth, after reviewing and correcting the computation of the actual votes garnered by the petitioner the total votes to be counted in his favor is 915 votes;

6. That the Municipal Board of Canvassers and the Election Registrar of Naujan, Oriental Mindoro, after having been informed of the said discrepancies, manifested in the presence of Municipal Trial Court Judge TOMAS C.

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LEYNES, that it was an honest mistake committed in the computation and the addition of the total number of votes appearing in C.E. Form No. 20-A.;

7. That after correcting the total number of votes garnered by the petitioner, it appears now that the total votes cast in his favor in all precincts is 7,233 votes which is more than 28 votes over the total of 7,205 votes garnered by respondent Aquiles U. Reyes, who was proclaimed as Elected Sangguniang Bayan Member of Naujan, Oriental Mindoro occupying the 8th position.

On June 4, 1992, petitioner filed a motion to dismiss private respondent's petition on the ground that it was filed beyond the reglementary period of ten days from proclamation. On June 15, 1992, however, the trial court denied his motion.

On the other hand, the Municipal Board of Canvassers file its answer in which it admitted that it had made a mistake in crediting private respondent with only 858 votes when he was entitled to 915 votes in the Statement of Votes (C.E. Form No. 20-A).

On June 23, 1992, the trial court rendered its decision annuling the proclamation of petitioner and declaring private respondent as the eighth winning candidate for the position of councilor of the Sangguniang Bayan of Naujan, Oriental Mindoro. A copy of the decision was served on petitioner on June 26, 1992.

Petitioner filed a notice of appeal to the COMELEC. In addition, he filed a petition for mandamus and prohibition in the Court of Appeals, to compel the Sangguniang Bayan to recognize him as the duly proclaimed member of that body and prohibit it from further recognizing private respondent.

On August 26, 1992, the Court of Appeals dismissed the petition because of petitioner's pending appeal in the COMELEC. The appellate court cited Supreme Court Circular 28-91 which prohibits the filing of multiple petitions involving the same issues.

Petitioner filed a motion for reconsideration but his motion was denied. The appellate court's decision became final and executory on December 10, 1992.

Meanwhile, the Sangguniang Bayan met in inaugural session on July 3, 1992, during which private respondent was recognized as the eighth member of the body and thereafter allowed to assume office and discharge its functions. On July 13, 1992, it informed petitioner that it had recognized the private respondent as its member.

On the other hand, the COMELEC's First Division dismissed on January 22, 1993 petitioner's appeal on the ground that he had failed to pay the appeal fee within the prescribed period.

Petitioner then brought the present action. Petitioner contends that both the trial court and the COMELEC's First Division committed a grave abuse of discretion, the first, by assuming jurisdiction over the election contest filed by private respondent despite the fact that the case was filed more than ten days after petitioner's proclamation, and the second i.e., the COMELEC's First Division, by dismissing petitioner's appeal from the decision of the trial court for late payment of the appeal fee.

We find the petition to be without merit.

First. The Solicitor General, in behalf of the COMELEC, raises a fundamental question. He contends that the filing of the present petition, without petitioner first filing a motion for reconsideration before the COMELEC en banc, violates Art. IX, A, §7 of the Constitution 1 because under this provision only decisions of the COMELEC en bancmay be brought to the Supreme Court on certiorari.

This is correct. It is now settled that in providing that the decisions, orders and rulings of COMELEC "may be brought to the Supreme Court on certiorari" the Constitution in its Art. IX, A, §7 means the special civil action ofcertiorari under Rule 65, §1. 2 Since a basic condition for bringing such action is that the petitioner first file a motion for reconsideration, 3 it follows that petitioner's failure to file a motion for reconsideration of the decision of the First Division of the COMELEC is fatal to his present action.

Petitioner argues that this requirement may be dispensed with because the only question raised in his petition is a question of law. This is not correct. The questions raised by petitioner involve the interpretation of constitutional and statutory provisions in light of the facts of this case. The questions tendered are, therefore, not pure questions of law.

Moreover, that a motion for reconsideration before the COMELEC en banc is required for the filing of a petition forcertiorari is clear from the following provisions of the Constitution:

Art. IX, C, §2. The Commission on Elections shall exercise the following powers and functions:

xxx xxx xxx

(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction.

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Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable.

Id. §3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.

Conformably to these provisions of the Constitution all election cases, including pre-proclamation controversies, must be decided by the COMELEC in division. Should a party be dissatisfied with the decision, he may file a motion for reconsideration before the COMELEC en banc. It is, therefore, the decision, order or ruling of the COMELEC en banc that, in accordance with Art. IX, A, §7, "may be brought to the Supreme Court on certiorari." 4

Second Even on the merits we think the First Division of the COMELEC properly dismissed petitioner's appeal from the decision of the trial court because of his failure to pay the appeal fee within the time for perfecting an appeal. Rule 22, §9 of the COMELEC Rules of Procedure expressly provides:

Sec. 9. Grounds for dismissal of appeal. — The appeal may be dismissed upon motion of either party or at the instance of the Commission on any of the following grounds:

(a) Failure of the appellant to pay the appeal fee; . . .

In accordance with §2(b) of COMELEC Resolution No. 2108-A, the appeal fee must be paid within the period to perfect the appeal. Thus:

Sec. 2. When docket and other fees shall be paid. —

xxx xxx xxx

(b) The appeal fees prescribed in section 3 of Rule 22 of the COMELEC Rules of Procedures shall be paid within the period to perfect the appeal. . . .

The period to perfect the appeal is understood to be the period within which to file the notice of appeal.

On the other hand, Rule 22, §3 of the Rules of Procedure of the COMELEC provides:

Notice of Appeal. Within five (5) days after promulgation of the decision of the court, the aggrieved party may file with said court a notice of appeal, and serve a copy thereof upon the attorney of record of the adverse party.

This resolution, which was promulgated on July 14, 1989, superseded COMELEC Resolution No. 1456 5 on which petitioner relies for his contention that the fee is to be paid only upon the filing of the appeal brief.

The records show that petitioner received a copy of the decision of the trial court on June 26, 1992. However, he paid the appeal fee of P1,020.00 only on August 6, 1992. In other words, petitioner allowed forty (40) days to lapse when the appeal fee should have been paid within five (5) days after promulgation of the trial court's decision.

Petitioner claims that he acted on advice, presumably of COMELEC officials, to wait until the records of the appealed case was received from the Regional Trial Court, so that it could be docketed and given a case number before paying the appeal fee. But there is nothing in the record to show this or that petitioner offered to pay the appeal fee within the appeal period. He has not identified the person who allegedly gave him the erroneous advice.

Petitioner also prays that a re-canvass be conducted in all the electoral precincts of Naujan, Oriental Mindoro in view of the joint-affidavit executed by the members of the Municipal Board of Canvassers on October 12, 1993 in which they stated:

That the respondent Board, per verification from the Comelec records of Naujan, after receipt of the sworn letter-complaint of Mr. Aquiles U. Reyes, aside from the matters already alluded to above found that the "40" votes he garnered in Precinct No. 37, and the "31" votes in Precinct 41-A that should have been credited, transcribed or recorded in complainant's favor in the Statement of Votes (C.E. Form No. 22-A) on the basis of the Election Returns (C.E. Form No. 9), thru honest mistake was erroneously and inadvertently transcribed or recorded in good faith and without malice due to mental and physical fatigue and exhaustion by the Board of Canvassers and its staff in favor of candidate Jeremias Nacorda of Sangguniang Bayan Member of the Municipality of Naujan in the Statement of Votes (C.E. Form No. 22-A) of said precincts, and what should have been credited and reflected as candidate Nacorda's vote in the Statement of Votes (C.E. Form No. 22-A) on the basis of the Election Returns (C.E. Form No. 9) are "9" votes in Precinct 37 not "40" votes, and "8" votes in Precinct No. 41-A and not "31" votes, certification is hereto attached issued by the Election Officer of Naujan that candidate Nacorda per Comelec records shown in the Election Returns (C.E. Form No. 9) only garnered "9" votes in Precinct 37, and "8" votes in Precinct 41-A and marked as Annex "1" and made as integral part of his joint-affidavit.

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This issue was raised in the Addendum to Appellant's Brief 6 in the COMELEC Case EAC No. 9-92. With the dismissal of that case by the COMELEC's First Division, there is no basis for petitioner's present contention.

Third. Petitioner also assails the decision of the trial court as having been rendered without jurisdiction. He contends that the election protest of private respondent was filed more than ten days after his (petitioner's) proclamation.

Petitioner is, however, estopped to raise this question now. He did not only appeal from the decision of the trial court to the COMELEC raising this question, but he also filed a petition for mandamus and prohibition in the Court of Appeals. Having decided on this course of action, he should not be allowed to file the present petition just because he lost in those cases.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. L-31455 February 28, 1985

FILIPINAS ENGINEERING AND MACHINE SHOP, petitioner, vs.HON. JAIME N. FERRER, LINO PATAJO and CESAR MIRAFLOR as Commissioners of the Commission on Elections; COMELEC BIDDING COMMITTEE CHAIRMAN EMILIO AGUILA and MEMBERS PACIENCIO BALLON, ALEJANDRO MACARANAS, TOMAS MALLONGA and ERNESTO LOMBOS; HON. JUDGE JOSE LEUTERIO of the Court of First Instance of Manila, Branch 11 and ACME STEEL MANUFACTURING COMPANY, respondents.

CUEVAS, J.:

Appeal by certiorari from the Order dated November 15, 1969 issued by the respondent Judge of the then Court of First Instance of Manila, Branch II, DISMISSING Civil Case No. 77972 entitled, "Filipinas Engineering and Machine Shop vs. COMELEC, et al.", and his Honor's subsequent Order of December 20, 1969 DENYING petitioner's motion for reconsideration.

In preparation for the national elections of November 11, 1969, then respondent Commissioners of the Commission on Elections (COMELEC) issued an INVITATION TO BID CALL No. 127 on September 16, 1969 calling for the submission of sealed proposals for the manufacture and delivery of 1 1,000 units of voting booths with the following specifications and descriptions, to wit:

11,000 Units VOTING BOOTHS, easy to install and store. Must be of light but strong and durable materials, rust proof or rust resistant and construction must be sturdy. Each Unit shall consists of two (2) voting booths with overall measurements of 150 cms. long x 75 cms. wide x 185 cms. high. (Each voting booth or compartment measuring 75 cms. long x 75 cms. wide x 185 cms. high). The top and all sides except the front side, shall be fully covered. The front side of the unit shall be without cover to serve as its opening (entrance). Each voting compartment shall be provided with a writing table.

Each unit shall be contained in individual wooden box.

Bidders are required to submit finished sample. 1

Among the seventeen bidders who submitted proposals in response to the said INVITATION were the herein petitioner, Filipinos Engineering and Machine Shop, (Filipinas for short) and the private respondent, Acme Steel Manufacturing Company, (Acme for short).

Filipinas' sealed proposal was as follows:

Prices Per Unit Brief DescriptionP128.00 Sample 2 — same in construction as sample 1, except that its siding

and top cover is made of plywood (or lawanit if available). 33.5 kilos in weight. Packed in wooden box. 2

P123.00 Same as sample 2, except that it is packed in corrogated carton box.

Acme's bid was

Prices Per Unit Brief Description

P78.00 Made of steel, channel type frames with steel sheet sidings, top cover and table; painted, 51 kilos in weight. 3

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On October 7, 1969, the respondent COMELEC Bidding Committee Chairman and Members submitted their Memorandum on the proceedings taken pursuant to the said Invitation to Bid which stated that Acme's bid had to be rejected because the sample it submitted was "made of black iron sheets, painted, and therefore not rust proof or rust resistant," and that, "it is also heavy — 51 kilos in weight. 4 The Committee instead recommended that Filipinas be awarded the contract to manufacture and supply the voting booths, but that an "ocular inspection be made by all members of the Commission of all the samples before the final award be made."  5

On October 9, 1969, after an ocular inspection of all the samples submitted was conducted by the COMELEC Commissioners, and after the Commissioners noted that Acme submitted the lowest bid, the COMELEC issued a Resolution awarding the contract (for voting booths) to Acme, subject to the condition, among others, that "(Acme) improves the sample submitted in such manner as it would be rust proof or rust resistant. ... ." 6

On October 11, 1969, the COMELEC issued Purchase Order No. 682 for the manufacture and supply of the 11,000 Units of voting booths in favor of Acme. Acme accepted the terms of the purchase.

On October 16, 1969, Filipinas filed an Injunction suit with the then Court of First Instance of Manila, docketed as Civil Case No. 77972, against herein public respondents COMELEC Commissioners, chairman and members of the Comelec Bidding Committee, and private respondent Acme.

Filipinas also applied for a writ of preliminary injunction. After hearing petitioner's said application, the respondent Judge in an order dated October 20, 1969 denied the writ prayed for. 7

Thereafter or more specifically on October 29, 1969, the public respondents filed a motion to Dismiss on the grounds that the lower court has no jurisdiction over the nature of suit, and that the complaint states no cause of action. 8

Acting on the motion (to dismiss), the respondent Judge issued the questioned Order dismissing Civil Case No. 77972. Filipinas' motion for reconsideration was denied for lack of merit.

Hence, the instant appeal.

In the meantime, since no restraining order had been issued against the holding of the national elections scheduled on November 11, 1969, Acme complied with its contract with the COMELEC.

On this score alone, this petition should be dismissed for being moot and academic. Considering however the nature and importance of the legal questions raised, We have opted to discuss and resolve the same with finality.

Two main issues are raised before Us, namely:

1. Whether or not the lower court has jurisdiction to take cognizance of a suit involving an order of the COMELEC dealing with an award of contract arising from its invitation to bid; and

2. Whether or not Filipinas, the losing bidder, has a cause of action under the premises against the COMELEC and Acme, the winning bidder, to enjoin them from complying with their contract.

We resolve the first issue in the affirmative.

By constitutional mandate-

The Commission on Elections shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections and shall exercise all other functions which may be conferred upon it by law. It shall decide, save those involving the right to vote, all administrative questions affecting elections, including the determination of the number of location of Polling places, and the appointment of election inspectors and of other election officials. ... The decisions, orders and rulings of the Commission shall be subject to review by the Supreme Court. (Section 2, Article X, 1935 Philippine Constitution, which was then in force)

Section 5 of the Revised Election Code (Republic Act No. 180, approved June 21, 1947, the election law then enforced) provided that, "(a) any controversy submitted to the Commission on Elections shall be tried, heard and decided by it within fifteen days counted from the time the corresponding petition giving rise to said controversy is filed," and that, "any violation of any final and executory decision, order, or ruling of the Commission shall" constitute contempt of court Likewise, the same section provided that, "any decision, order or ruling of the Commission on Elections may be reviewed by the Supreme Court by writ of certiorari in accordance with the Rules of Court or with such rules as may be promulgated by the Supreme Court.

Similarly, Section 17(5) of the Judiciary Act of 1948 (Republic Act No. 296), as amended, provides that, "final awards, judgments, decisions or orders of the Commission on Elections ..." fall within the exclusive jurisdiction of the Supreme Court by way of certiorari. Section 1, Rule 43 of the 1964 Revised Rules of Court prescribed the manner of appeal by certiorari to the Supreme Court from a final ruling or decision of the Commission on Elections, among other administrative bodies.

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Hence it has been consistently held 9 that it is the Supreme Court, not the Court of First Instance, which has exclusive jurisdiction to review on certiorari final decisions, orders or rulings of the COMELEC relative to the conduct of elections and enforcement of election laws.

We are however, far from convince that an order of the COMELEC awarding a contract to a private party, as a result of its choice among various proposals submitted in response to its invitation to bid comes within the purview of a "final order" which is exclusively and directly appealable to this court on certiorari. What is contemplated by the term "final orders, rulings and decisions" of the COMELEC reviewable by certiorari by the Supreme Court as provided by law are those rendered in actions or proceedings before the COMELEC and taken cognizance of by the said body in the exercise of its adjudicatory or quasi-judicial powers.

It cannot be gainsaid that the powers vested by the Constitution and the law on the Commission on Elections may either be classified as those pertaining to its adjudicatory or quasi-judicial functions, or those which are inherently administrative and sometimes ministerial in character.

Thus in the case of Masangcay vs. Commission on Elections, G.R. No. L-13827, September 28, 1962 (6 SCRA 27, 2829), We held that —

... (W)e had the occasion to stress in the case of Guevarra vs. Commission on Elections (G.R. No. L-12596, July 31, 1958) that under the law and the constitution, the Commission on Elections has not only the duty to enforce and administer all laws relative to the conduct of elections, but also the power to try, hear and decide any controversy that may be submitted to it in connection with the elections. In this sense, We said the Commission, although it cannot be classified as a court of justice within the meaning of the Constitution (Sec. 30, Article VIII), for it is merely an administrative body, may, however, exercise quasi-judicial functions insofar as controversies that by express provision of law come under its jurisdiction. The difficulty lies in drawing the demarcation line between the duty which inherently is administrative in character and a function which calls for the exercise of the quasi-judicial function of the Commission. In the same case, we also expressed the view that when the Commission exercises a ministerial function it cannot exercise the power to punish for contempt because such power is inherently judicial in nature. ... .

We agree with petitioner's contention that the order of the Commission granting the award to a bidder is not an order rendered in a legal controversy before it wherein the parties filed their respective pleadings and presented evidence after which the questioned order was issued; and that this order of the commission was issued pursuant to its authority to enter into contracts in relation to election purposes. In short, the COMELEC resolution awarding the contract in favor of Acme was not issued pursuant to its quasi-judicial functions but merely as an incident of its inherent administrative functions over the conduct of elections, and hence, the said resolution may not be deemed as a "final order" reviewable by certiorari by the Supreme Court. Being non-judicial in character, no contempt may be imposed by the COMELEC from said order, and no direct and exclusive appeal by certiorari to this Tribunal lie from such order. Any question arising from said order may be well taken in an ordinary civil action before the trial courts.

On the second issue, We rule that Filipinas, the losing bidder, has no cause of action under the premises to enjoin the COMELEC from pursuing its contract with Acme, the winning bidder.

While it may be true that the lower court has the jurisdiction over controversies dealing with the COMELEC's award of contracts, the same being purely administrative and civil in nature, nevertheless, herein petitioner has no cause of action on the basis of the allegations of its complaint.

Indeed, while the law requires the exercise of sound discretion on the part of procurement authorities, 10 and that the reservation to reject any or all bids may not be used as a shield to a fraudulent award, 11 petitioner has miserably failed to prove or substantiate the existence of malice or fraud on the part of the public respondents in the challenged award.

The COMELEC's Invitation to Bid No. 127, dated September 16, 1969, expressly stipulates —

8. AWARD OF CONTRACT

Subject to the rights herein reserved, award shall be made by the Commission by resolution to the lowest and responsible bidder whose Offer will best serve the interest of the Commission on Elections. The resolution of the Commission shag be communicated in writing to the winning bidder. The winning bidder or awardees shall enter into contract with the Commission on Elections for the supply of the voting booths under the terms and conditions embodied in the Invitation to Bid.

THE COMMISSION ON ELECTIONS RESERVES THE RIGHT TO REJECT ANY OR ALL BIDS; TO WAIVE ANY INFORMATION THEREIN; OR TO ACCEPT SUCH BID AS MAY IN ITS DISCRETION BE CONSIDERED MOST REASONABLE AND ADVANTAGEOUS. The right is also reserved to reject bids which are defective due to inadequate preparation, omission or lacks sufficient data, guarantee and other information required to be submitted, or bids without the accompanying bond. The right is further reserved to reject the bid of a bidder who had previously failed to perform properly or to deliver on nine materials covered by contract of similar nature.

xxx xxx xxx

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14. THIS CALL FORBIDS IS NO MORE THAN AN INVITATION TO MAKE PROPOSALS AND THE COMMISSION ON ELECTIONS IS NOT BOUND TO ACCEPT ANY BID, NOR SHALL THIS CALL FOR BIDS BY ITSELF CONFER A RIGHT TO ANY BIDDER TO ACTION FOR DAMAGES OR UNREALIZED OR EXPECTED PROFITS UNLESS THE BID IS DULY ACCEPTED BY THERE SOLUTION OF THE COMMISSION ON ELECTIONS. 12 (Emphasis supplied)

The "Bidders Tender Call No. 127", the form accomplished by the bidder pursuant to Invitation to Bid No. 127, also categorically provide that the bidder submits his proposals "subject to the conditions stated in the invitation." 13

It is crystal clear from the aforequoted conditions, that subject to the rights of the COMELEC duly reserved in the said Invitation, award shall be made to the lowest and responsible bidder whose offer will best serve the interest of the COMELEC; that the COMELEC had reserved the right, among others, to accept such bid, as may in its discretion, be considered most reasonable and advantageous; and that the invitation was merely a call for proposals. Consequently, the COMELEC was not under legal obligation to accept any bid since "Advertisements for bidders are simply invitation to make proposals and the advertiser is not bound to accept the highest or lowest bidder, unless the contrary appears." 14

Pursuant to COMELEC's Invitation to Bid No. 127, a bidder may have the right to demand damages, or unrealized or expected profits, only when his bid was accepted by resolution of the COMELEC. Filipinas' bid, although recommended for award of contract by the bidding committee, was not the winning bid. No resolution to that effect appeared to have been issued by the COMELEC. Decidedly then, Filipinas has no cause of action.

In Leoquinco vs. Postal Savings Bank, 47 Phil. 772, 774775, this Court held:

... (A)ppellant set forth and admitted in his pleadings in the regulation adopted by the Board of Directors authorizing the sale at public auction of the land, as well as the notice announcing the auction that appellant had expressly reserved to themselves the right to reject any and all bids. By taking part in the auction and offering his bid, the appellant voluntarily submitted to the terms and conditions of the auction sale announced in the notice, and clearly acknowledged the right reserved to the appellees. The appellees, making use of that right, rejected his offer. Clearly the appellant has no ground of action to compel them to execute a deed of sale of the land in his favor, nor to compel them to accept his bid or offer. ... .

In issuing the resolution awarding the contract for voting booths in Acme's favor, the Commissioners of the COMELEC had taken into account that Acme's bid was the lowest; that Acme was a responsible manufacturer; and that upon an ocular inspection of the samples submitted by the bidders, Acme's sample was favorable chosen subject to certain conditions cited in the resolution. In fine, the public respondents properly exercised its sound discretion in making the award.

Once more, We reiterate the dictum earlier laid down in the case of Jalandoni vs. National Resettlement and Rehabilitation Administration, et al., G.R. No. L-15198, May 30,1960 (108 Phil, 486, 491-492) that —

Neither can it be contended that the fact that appellant gave the lowest quotation, which was favorably indorsed by the Committee on Bids, created a vested right in favor of the said bidder. Admittedly, the offers were rejected by the Board of Directors. It is clear therefore that there having no meeting of the minds of the parties, there was no perfected contract between them which could be the basis of action against the defendants-appellees.

The presentation by a reliable and responsible bidder of the lowest bid to officials whose duty it is to let the contract to the lowest reliable and responsible bidder, but who have the right and have given notice that they reserve the right to reject any and an bids, does not constitute an agreement that they will make a contract with such a bidder, nor vest in him such an absolute right to the contract as against a higher bidder (Colorado Paving Co. vs, Murphy, (CCA 8th) 78 F. 28, 37 LRA 630).

The mere determination of a public official or board to accept the proposal of a bidder does not constitute a contract (Smithmeyer vs. United States, 147 U.S. 342, 37 L, ed. 196,13 S. Ct. 321); the decision must be communicated to the bidder (Cedar Rapids Lumber Co. vs. Fischer, 129 Iowa 332,105 N.W. 595,4 LRA (NS) 177).

No contractual relation can arise merely from a bid, unless by the terms of the statute and the advertisement, a bid in pursuance thereof is, as a matter of law, an acceptance of an offer, wholly apart from any action on the part of the municipality or any of its officers (Molloy vs. Rochelle, supra).

WHEREFORE, finding the instant petition to be without merit aside from being moot and academic, the same is hereby DISMISSED.

No pronouncement as to costs.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

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G.R. No. 161265             February 24, 2004

LABAN NG DEMOKRATIKONG PILIPINO, represented by its Chairman EDGARDO J. ANGARA vs.THE COMMISION ON ELECTIONS and AGAPITO A. AQUINO

D E C I S I O N

TINGA, J.:

The Bible tells the story of how two women came to King Solomon to decide who among them is the baby’s true mother. King Solomon, in his legendary wisdom, awarded the baby to the woman who gave up her claim after he threatened to split the baby into two.

It is fortunate that the two women did not ask the Commission on Elections (COMELEC) to decide the baby’s fate; otherwise, it would have cut the baby in half. For that is what the COMELEC exactly did in this case.

On December 8, 2003, the General Counsel of the Laban ng Demokratikong Pilipino (LDP), a registered political party, informed the COMELEC by way of Manifestation that only the Party Chairman, Senator Edgardo J. Angara, or his authorized representative may endorse the certificate of candidacy of the party’s official candidates. The same Manifestation stated that Sen. Angara had placed the LDP Secretary General, Representative Agapito A. Aquino, on "indefinite forced leave." In the meantime, Ambassador Enrique A. Zaldivar was designated Acting Secretary General. The Manifestation concluded with this prayer:

A. The Honorable Commission recognizes [sic] only those Certificates of Candidacy to which are attached Certificates of Nomination executed by LDP Party Chairman Edgardo J. Angara or by such other officers of the LDP whom he may authorize in writing, and whose written authorizations shall be deposited with the Honorable Commission by the LDP General Counsel.

B. The Honorable Commission declares [sic] as a nullity, denies [sic] due course or cancels [sic] all Certificates of Candidacy not endorsed by LDP Party Chairman Angara or by such other LDP officials as may be authorized by him.

C. The Honorable Commission takes [sic] note of the designation of Ambassador Enrique "Ike" A. Zaldivar as Acting Secretary General of the LDP, and for the Honorable Commission to honor and recognize the official acts, to the exclusion of everyone, of Ambassador Zaldivar for and in behalf of the LDP as Secretary General.1

On December 16, 2003, Rep. Aquino filed his Comment, contending that the Party Chairman does not have the authority to impose disciplinary sanctions on the Secretary General. As the Manifestation filed by the LDP General Counsel has no basis, Rep. Aquino asked the COMELEC to disregard the same.

On December 17, 2003, the parties agreed to file a joint manifestation pending which the proceedings were deemed suspended. On December 22, 2003, however, only the LDP General Counsel filed an Urgent Manifestation reiterating the contents of the December 8, 2003 Manifestation. The COMELEC also received aLetter from Rep. Aquino stating that the parties were unable to arrive at a joint manifestation.

The next day, the LDP General Counsel filed a Second Urgent Manifestation disputing newspaper accounts that Rep. Aquino had suspended Sen. Angara as Party Chairman.

On December 26, 2003, the COMELEC issued an Order requiring the parties to file a verified petition. It turned out that, two days before, Sen. Angara had submitted a verified Petition, in essence, reiterating the contents of its previous Manifestations. Attached to the Petition was a Resolution2 adopted by the LDP National Executive Council, stating:

WHEREAS, on September 25, 2003, the National Executive Council of the Laban ng Demokratikong Pilipino (LDP) convened and unanimously passed a resolution granting full authority to Party Chairman Edgardo J. Angara to enter, negotiate and conclude a coalition agreement with other like-minded opposition parties, aggrupations and interest groups with the sole purpose of uniting the political opposition and fielding a unity ticket for the May 10, 2004 elections;

WHEREAS, on December 3, 2003, the LDP, together with the Puwersa ng Masang Pilipino (PMP) and the Partido Demokratiko ng Pilipinas - LABAN (PDP-LABAN) forged a coalition to form the Koalisyon ng Nagkakaisang Pilipino(KNP);

WHEREAS, the Executive Committee of the KNP subsequently adopted its resolution entitled: "Resolution Choosing Mr. Fernando Poe, Jr. as the Standard Bearer of the Koalisyon ng Nagkakaisang Pilipino (KNP) for President of the Republic of the Philippines in the May 10, 2004 National Elections";

. . . .

WHEREAS, the process of unification of the political opposition and the actions taken in connection therewith by Chairman Angara and by other governing bodies of the LDP required the taking of immediate and forceful action by them to preserve and protect the integrity, credibility, unity and solidarity of the LDP, and ensure the attainment of unification of the political opposition;

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WHEREAS, such immediate and forceful action include those that have to do with pre-emptive efforts to diffuse the chaos, confusion and disunity projected by the pronouncements and acts of some officers and members to the general membership of the LDP and the electorate, such as the one taken by the Regional Committee for Region VI (Western Visayas) on December 6, 2003; the enforcement of order in the LDP through the voice of a central leadership in command in an otherwise extraordinary and emergency situation, such as the one taken by Party Chairman Angara on December 6, 2003; the filing of the Manifestation with the COMELEC on the matter of the authorized signatories for the nominations and, the adoption of resolutions by the regional committees affirming their trust and confidence in Chairman Angara, and authorizing him to choose the presidential standard bearer for the May 10, 2004 elections; NOW THEREFORE, BE IT

RESOLVED, AS IT IS HEREBY RESOLVED, By the National Executive Council, to ratify and confirm the Covenant of National Unity, the Declaration of Unity entered into by Party Chairman Edgardo J. Angara, and all acts and decisions taken by him to enforce and implement the same;

RESOLVED, FURTHER, To ratify and confirm all other acts and decisions of Chairman Angara and other governing bodies to preserve the integrity, credibility, unity and solidarity of the LDP; and,

RESOLVED, FINALLY, To reiterate the vote of confidence of the National Executive Council in, and support to, the continued efforts of Chairman Angara to unite the political opposition.3

Rep. Aquino filed his Answer to the Petition on December 30, 2003. The COMELEC heard the parties on oral arguments on the same day, after which the case was submitted for resolution.

Pending resolution, a Certificate of Nomination of Sen. Panfilo Lacson as LDP candidate for President was filed with the COMELEC. The Certificate of Nomination was signed by Rep. Aquino as LDP Secretary General.

On January 6, 2004, the COMELEC came to a decision.

The Commission identified the sole issue as "who among the [LDP] officers [are] authorized to authenticate before the Commission that the person filing the certificate of candidacy as party nominee for a certain position is the official candidate of the party chosen in accordance with its Constitution."4

The COMELEC recognized that it "has the authority to act on matters pertaining to ‘the ascertainment of the identity of [a] political party and its legitimate officers….’"5 In the same breath, however, it held that "internal party matters and wranglings [sic] are purely for the party members to settle among themselves and any unsettled controversy should be brought to the proper forum with jurisdiction." The "question of who was suspended by whom" was thus left for such proper forum to resolve.6 Noting that "the intramurals in the LDP as an internal party matter seems to be irreconcilable for the present when the filing of Certificate of Candidacy and Certificate of Nomination are about to reach the deadline," the COMELEC disposed of the Petition in the following fashion:

WHEREFORE, premises considered, the petition is GRANTED with LEGAL EQUITY for both Petitioner and Oppositor. The candidates for President down to the last Sangguniang Bayan Kagawad nominated and endorsed by LDP Chairman Edgardo J. Angara are recognized by the Commission as official candidates of LDP "Angara Wing". The candidates from President down to the last Sangguniang Bayan Kagawad as nominated and endorsed by LDP Secretary General Agapito "Butz" Aquino are recognized as official candidates of LDP "Aquino Wing".

Consequently, each faction or "Wing" is entitled to a representative to any election committee to which it may be entitled as created by the Commission for the May 10, 2004 elections. For the copies of the election returns, the "Angara Wing" will be entitled to the copies corresponding to odd number of precincts, that is, Precinct Nos. 1, 3, 5, etc., and for the "Aquino Wing" to the even number of precincts, that is Precinct Nos. 2, 4, 6, etc. This is on the assumption that the LDP or as a party within a registered Political Coalition becomes a recognized and denominated as a Dormant [sic] Minority Party under the Election Laws. The two LDP "Wings" are further entitled to and be accorded the rights and privileges with corresponding legal obligations under Election Laws.7

Commissioners Luzviminda G. Tancangco, Ralph C. Lantion, Resurreccion Z. Borra and Florentino A. Tuason, Jr. concurred in the Resolution authored by Commissioner Rufino S.B. Javier. Chair Benjamin S. Abalos, Sr., joined by Commissioner Mehol K. Sadain, submitted dissenting opinions.

Sen. Angara thus filed the present petition for Certiorari8 assailing the COMELEC Resolution for having been issued with grave abuse of discretion.

Thereafter, Rep. Aquino filed his Comment.

The Office of the Solicitor General submitted a Manifestation and Motion praying for the granting of the Petition. The COMELEC thus filed a separate Comment to the Petition.

The COMELEC correctly stated that "the ascertainment of the identity of [a] political party and its legitimate officers" is a matter that is well within its authority. The source of this authority is no other than the fundamental law itself, which vests upon the COMELEC the power and function to enforce and administer all laws and regulations relative to the conduct of an election.9 In the exercise of such power and in the discharge of such function, the Commission is endowed with ample "wherewithal" and "considerable latitude in

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adopting means and methods that will ensure the accomplishment of the great objectives for which it was created to promote free, orderly and honest elections."10

Thus, in Kalaw v. Commission on Elections which involved the leadership fight in the Liberal Party, 11 this Court held:

… that the respondent [COMELEC] has jurisdiction to hear and decide SP Case No. 85-021 [involving a petition to prohibit Eva Estrada Kalaw "from usurping or using the title or position of President of the Liberal Party"] in view of its powers under Article IX-C, Section 2, of the Constitution to, among others, enforce and administer all laws relative to the conduct of elections, decide all questions affecting elections, register and regulate political parties, and insure orderly elections. These powers include the determination of the conflicting claims made in SP Case No. 85-021, which are likely to cause confusion among the electorate if not resolved. Additionally, the COMELEC is mandated by the Election Code to inter alia require candidates to specify their political party affiliation in their certificates of candidacy, allow political parties to appoint watchers, limit the expenditures of each political party, determine whether or not a political party shall retain its registration on the basis of its showing in the preceding elections, etc. These matters include the ascertainment of the identity of the political party and its legitimate officers responsible for its acts and the resolution of such controversies as the one now before it where one party appears to be divided into two wings under separate leaders each claiming to be the president of the entire party…. [Emphasis supplied.]

Likewise in Palmares v. Commission on Elections,12 to which the assailed Resolution made reference and which involved the Nacionalista Party,13 this Court ruled

… that the COMELEC has jurisdiction over the issue of leadership in a political party. Under the Constitution, the COMELEC is empowered to register political parties [Sec. 2(5), Article IX-C.] Necessarily, the power to act on behalf of a party and the responsibility for the acts of such political party must be fixed in certain persons acting as its officers. In the exercise of the power to register political parties, the COMELEC must determine who these officers are. Consequently, if there is any controversy as to leadership, the COMELEC may, in a proper case brought before it, resolve the issue incidental to its power to register political parties.

This Court then proceeded to quote from Kalaw, supra.

The two cited decisions find support in Sumulong v. Commission on Elections14 and Sotto v. Commission on Elections,15 where this Court, in resolving the issue as to who between the factions of a political party was entitled to nominate election inspectors, necessarily settled claims to the party’s leadership. Both cases were decided without question on the COMELEC’s power to determine such claims. In conformity with jurisprudence, this Court did not identify the COMELEC’s jurisdiction as an issue when this case was heard on oral argument.

There is no inconsistency between the above cases on the one hand and this Court’s more recent ruling in Sinaca v. Mula16 on the other. In the latter case, this Court held:

A political party has the right to identify the people who constitute the association and to select a standard bearer who best represents the party’s ideologies and preference. Political parties are generally free to conduct their internal affairs free from judicial supervision; this common-law principle of judicial restraint, rooted in the constitutionally protected right of free association, serves the public interest by allowing the political processes to operate without undue interference. Thus, the rule is that the determination of disputes as to party nominations rests with the party, in the absence of statutes giving the court’s [sic] jurisdiction.

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

Sinaca, unlike previous cases, did not involve the question of party identity or leadership; hence, it was not necessary for the COMELEC to delve therein. None of the candidates involved in that case were claiming to be the political party’s sole candidate.

In the case at bar, the Party Chairman, purporting to represent the LDP, contends that under the Party Constitution only he or his representative, to the exclusion of the Secretary General, has the authority to endorse and sign party nominations. The Secretary General vigorously disputes this claim and maintains his own authority. Clearly, the question of party identity or leadership has to be resolved if the COMELEC is to ascertain whether the candidates are legitimate party standard bearers or not.

The repercussions of the question of party identity and leadership do not end at the validity of the endorsement of the certificates of candidacy of persons claiming to be the party’s standard bearer. The law grants a registered political party certain rights and privileges,17 which, naturally, redound to the benefit of its candidates. It is also for this significant dimension that Sinaca is not applicable in this case. As conceded in Sinaca itself, the Court will have to assume jurisdiction to determine factional controversies within a political party where a controlling statute or clear legal right is involved.18 Verily, there is more than one law, as well as a number of clear legal rights, that are at stake in the case at bar.

The law accords special treatment to political parties. The dominant majority party, the dominant minority party as determined by the COMELEC, for instance, is entitled to a copy of the election returns.19 The six (6) accredited major political parties may nominate the principal watchers to be designated by the Commission.20 The two principal watchers representing the ruling coalition and the dominant opposition coalition in a precinct shall, if available, affix their signatures and thumbmarks on the election returns for that precinct.21 Three (3) of the six accredited major political parties are entitled to receive copies of the certificate of canvass.22 Registered

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political parties whose candidates obtained at least ten percent (10%) of the total votes cast in the next preceding senatorial election shall each have a watcher and/or representative in the procurement and watermarking of papers to be used in the printing of election returns and official ballots and in the printing, numbering, storage, and distribution thereof.23 Finally, a candidate and his political party are authorized to spend more per voter than a candidate without a political party.24

It is, therefore, in the interest of every political party not to allow persons it had not chosen to hold themselves out as representatives of the party. Corollary to the right of a political party "to identify the people who constitute the association and to select a standard bearer who best represents the party’s ideologies and preference"25 is the right to exclude persons in its association and to not lend its name and prestige to those which it deems undeserving to represent its ideals. A certificate of candidacy makes known to the COMELEC that the person therein mentioned has been nominated by a duly authorized political group empowered to act and that it reflects accurately the sentiment of the nominating body.26 A candidate’s political party affiliation is also printed followed by his or her name in the certified list of candidates.27 A candidate misrepresenting himself or herself to be a party’s candidate, therefore, not only misappropriates the party’s name and prestige but foists a deception upon the electorate, who may unwittingly cast its ballot for him or her on the mistaken belief that he or she stands for the party’s principles. To prevent this occurrence, the COMELEC has the power and the duty to step in and enforce the law not only to protect the party but, more importantly, the electorate, in line with the Commission’s broad constitutional mandate to ensure orderly elections.

Having revisited and clarified the jurisdiction of COMELEC to rule upon questions of party identity and leadership as an incident to its enforcement powers, this Court cannot help but be baffled by the COMELEC’s ruling declining to inquire into which party officer has the authority to sign and endorse certificates of candidacy of the party’s nominees.

The only issue in this case, as defined by the COMELEC itself, is who as between the Party Chairman and the Secretary General has the authority to sign certificates of candidacy of the official candidates of the party. Indeed, the petitioners’ Manifestation and Petition before the COMELEC merely asked the Commission to recognize only those certificates of candidacy signed by petitioner Sen. Angara or his authorized representative, and no other.

To resolve this simple issue, the COMELEC need only to turn to the Party Constitution. It need not go so far as to resolve the root of the conflict between the party officials. It need only resolve such questions as may be necessary in the exercise of its enforcement powers.

The LDP has a set of national officers composed of, among others, the Party Chairman and the Secretary General.28 The Party Chairman is the Chief Executive Officer of the Party, whose powers and functions include:

(1) To represent the Party in all external affairs and concerns, sign documents for and on its behalf, and call the meetings and be the presiding officer of the National Congress and the National Executive Council….29

The Secretary General, on the other hand, assists the Party Chairman in overseeing the day-to-day operations of the Party. Among his powers and functions is:

(1) When empowered by the Party Chairman, to sign documents for and on behalf of the Party…. 30

The Secretary General’s authority to sign documents, therefore, is only a delegated power, which originally pertains to the Party Chairman.

Rep. Aquino claims that he was authorized to exercise to sign the party candidates’ certificates of candidacy in the previous elections. Indeed, the COMELEC found that:

In fact, during the May 14, 2001 elections, oppositor Agapito "Butz’ Aquino, as LDP Secretary General, was authorized by the LDP to sign for the Certificates of Nomination of the LDP Senatorial Candidates, including the Certificate of Nomination for Senatorial Candidate Edgardo J. Angara, a copy of said Certificate of Nomination and a copy of the Certificate for Senator Edgardo J. Angara are attached as Annexes A and B, respectively. This action by Secretary General Aquino is in accordance with the Constitution and By-laws of LDP, not questioned by the LDP signed by its Secretary General. This revocation has not been revoked or recalled by the National Congress of the LDP which is the one authorized to nominate candidates for President and Vice-President, respectively.31

Assuming that Rep. Aquino previously had such authority, this Court cannot share the COMELEC’s finding that the same "has not been revoked or recalled." No revocation of such authority can be more explicit than the totality of Sen. Angara’s Manifestations and Petition before the COMELEC, through which he informed the Commission that Rep. Aquino’s had been placed on indefinite forced leave and that Ambassador Zaldivar has been designated Acting Secretary General, who "shall henceforth exercise all the powers and functions of the Secretary General under the Constitution and By-Laws of the LDP."32 As the prerogative to empower Rep. Aquino to sign documents devolves upon Sen. Angara, so he may choose, at his discretion, to withhold or revoke such power.

Both respondents Rep. Aquino and COMELEC also cited Section 6 of COMELEC Resolution No. 645333 as basis for the Party Secretary General’s authority to sign certificates of candidacy. Said Section 6 states:

SEC. 6. Certificate of nomination of official candidates by political party. – The certificate of nomination of registered political parties or coalitions of political parties of their official candidates shall be filed not later than the last day for filing of certificates of candidacy, which is January 2, 2004 duly signed and attested under oath by the party president, chairman, secretary-general or

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any other duly authorized officer and shall bear the acceptance of the nominee by affixing his signature in the space provided therein. [Emphasis and underscoring supplied.]

Clearly, however, the above provision presupposes that the party president, chairman or secretary-general has been "duly authorized" by the party to sign the certificate of candidacy. COMELEC Resolution No. 6453 cannot grant a party official greater authority than what the party itself grants, lest such Resolution amount to a violation of the party’s freedom of association.

Neither does the Party Secretary General have the power to nominate the official candidates of the LDP. That power resides in the governing bodies of the Party.34 In particular, the National Congress, which is the highest policy-making and governing body of the Party, has the power

(6) To nominate the official candidates of the Party for President, Vice President, and Senators, and, whenever the corresponding conventions fail to meet or to make the requisite nominations, to nominate the official candidates for municipal city, congressional district, provincial and regional elective offices….35

Not only does Rep. Aquino insist on his power to sign Certificates of Candidacy on behalf of the LDP but he would also deny Sen. Angara that power on account of the latter’s preventive suspension. It seems, however, that respondent has abandoned this tack by the silence of his Memorandum on the matter.

In any case, it appears that on November 28, 2003, Representative Rolex Suplico, LDP Region VI Regional Chairman, filed a complaint with Rep. Aquino against Party Chairman Sen. Angara for disloyalty to the Party, gross violation of the Party Constitution, and other divisive acts inimical to the interest of the party and its members. Rep. Aquino, as Secretary General, created a committee composed of three (3) members of the LDP National Executive Council to investigate the complaint and recommend appropriate action thereon. On December 12, 2003, the investigating committee issued a resolution placing Sen. Angara under preventive suspension effective immediately and directing him to refrain from performing acts in behalf of the party until the committee finishes its investigation and submits its final recommendations.

The authority to create the investigating committee supposedly rests on Section 9 (4), Article VI of the LDP Constitution, which enumerates the powers and functions of the Secretary General:

(4) With the concurrence of the Party Chairman, to enforce Party discipline…. {Emphasis supplied.]

Evidently, just as Rep. Aquino has no power to sign and nominate candidates in behalf of the LDP, neither does he have the power to enforce Party discipline or, as an incident thereto, to create an investigating committee, without the Party Chairman’s concurrence. Much less does the investigating committee so created have the power to place the Party Chairman under preventive suspension since its authority stems from a nullity. Simply put, the spring has no source.

The lack of Rep. Aquino’s authority to sign documents or to nominate candidates for the LDP would not result in the denial of due course to or the cancellation of the certificates of candidacy he may have signed on behalf of the LDP.36 The exclusive ground for the denial of due course to or the cancellation of a certificate of candidacy for any elective office is that any material representation contained therein as required by law is false.37 Since the signature of Rep. Aquino was affixed either prior to, or on the basis of, the challenged Resolution recognizing his authority to sign on behalf of the LDP, the same would not constitute material representation that is false. In such case, the candidates are simply deemed as not nominated by the LDP and are considered independent candidates pursuant to Section 7 of COMELEC Resolution No. 6453:

SEC. 7. Effect of filing certificate of nomination. – A candidate who has not been nominated by a registered political party or its duly authorized representative, or whose nomination has not been submitted by a registered political party… shall be considered as an independent candidate.

COMELEC Commissioner Sadain referred to the above provision in his Dissenting Opinion, and this Court finds refreshing wisdom – so sorely wanting in the majority opinion – in his suggestion that:

All other party members representing themselves to be candidates of the party shall not be deprived of their right to file their respective certificates of candidacy and run for office, if so qualified, but that they shall not be accorded the rights and privileges reserved by election laws for official nominees of registered political parties. Instead, they shall be treated as independent candidates.38

From the foregoing, it is plain that the COMELEC misapplied equity in the present case. For all its conceded merits, equity is available only in the absence of law and not as its replacement.39 Equity is described as justice without legality, which simply means that it cannot supplant, although it may, as often happens, supplement the law.40 The COMELEC should have decided the case on the basis of the party constitution and election laws. It chose not to because of its irrational fear of treading, as respondent Aquino put it, on "unchartered" territories.41But, as shown above, these territories have long been charted by jurisprudence and, in any case, the COMELEC need not have sailed far from the shore to arrive at the correct conclusion. In truth, the COMELEC Resolution is indecision in the guise of equity.

Worse, the COMELEC divided the LDP into "wings," each of which may nominate candidates for every elective position. Both wings are also entitled to representatives in the election committees that the Commission may create. In the event that the LDP is accorded dominant minority party election status, election returns of odd-numbered precincts shall be furnished the Angara wing and those of even-numbered precincts, the Aquino wing.

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By creating the two wings, the COMELEC effectively diffused the LDP’s strength and undeniably emasculated its chance of obtaining the Commission’s nod as the dominant minority party.

By allowing each wing to nominate different candidates, the COMELEC planted the seeds of confusion among the electorate, who are apt to be confounded by two candidates from a single political party. In Recabo, Jr. v. Commission on Elections,42 this Court declared that the electoral process envisions one candidate from a political party for each position, and disunity and discord amongst members of a political party should not be allowed to create a mockery thereof. The admonition against mocking the electoral process not only applies to political parties but with greater force to the COMELEC.

By according both wings representatives in the election committees, the COMELEC has eroded the significance of political parties and effectively divided the opposition. The COMELEC has lost sight of the unique political situation of the Philippines where, to paraphrase Justice Perfecto’s concurring opinion in Sotto, supra, the administration party has always been unnecessarily and dangerously too big and the opposition party too small to be an effective check on the administration. The purpose of according dominant status and representation to a minority party is precisely to serve as an effective check on the majority. The COMELEC performed a disservice to the opposition and, ultimately, to the voting public, as its Resolution facilitated, rather than forestalled, the division of the minority party.

By splitting copies of the election returns between the two factions, the COMELEC has fractured both wings. The practical purpose of furnishing a party with a copy of the election returns is to allow it to tally the results of the elections at the precinct level. Ultimately, it is a guard against fraud. Thus, resort to copies thereof may be had when the election returns are delayed, lost or destroyed,43 or when they appear to be tampered or falsified.44 A split party without a complete set of election returns cannot successfully help preserve the sanctity of the ballot.

It bears reminding respondent Commission of this Court’s pronouncement in Peralta v. Commission on Elections,45which, while made in the backdrop of a parliamentary form of government, holds equally true under the present government structure:

… political parties constitute a basic element of the democratic institutional apparatus. Government derives its strength from the support, active or passive, of a coalition of elements of society. In modern times the political party has become the instrument for the organization of societies. This is predicated on the doctrine that government exists with the consent of the governed. Political parties perform an "essential function in the management of succession to power, as well as in the process of obtaining popular consent to the course of public policy. They amass sufficient support to buttress the authority of governments; or, on the contrary, they attract or organize discontent and dissatisfaction sufficient to oust the government. In either case they perform the function of the articulation of the interests and aspirations of a substantial segment of the citizenry, usually in ways contended to be promotive of the national weal."

The assailed COMELEC Resolution does not advance, but subverts, this philosophy behind political parties.

As if to rationalize its folly, the COMELEC invokes the constitutional policy towards a free and open party system.46 This policy, however, envisions a system that shall "evolve according to the free choice of the people,"47 not one molded and whittled by the COMELEC. When the Constitution speaks of a multi-party system, it does not contemplate the COMELEC splitting parties into two. For doing just that, this pretender to the throne of King Solomon acted whimsically and capriciously. Certiorari lies against it, indeed.

WHEREFORE, the assailed COMELEC Resolution is ANNULLED and the Petition is GRANTED IN PART. Respondent Commission on Elections is directed to recognize as official candidates of the Laban ng Demokratikong Pilipino only those whose Certificates of Candidacy are signed by LDP Party Chairman Senator Edgardo J. Angara or his duly authorized representative/s.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 158830             August 10, 2004

ELLAN MARIE P. CIPRIANO, a minor represented by her father ROLANDO CIPRIANO, (AND OTHER YOUTH OF THE LAND AFFECTED AND SIMILARLY SITUATED), petitioners, vs.COMMISSION ON ELECTIONS, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, Election Officer LOPE GAYO, JR., 1st District, Pasay City, SANGGUNIANG BARANGAY thru its Chairman JOHNNY SANTIAGO of Barangay 38, Pasay City, GREG PAOLO ALCERA in his capacity as SK Federation President of Pasay City, EDNA TIBAR – a minor assisted by parents, KRISTAL GALE BONGGO – a minor assisted by parents, SK Chairman RUEL TAYAM DECENA of Barangay 142, Pasay City, THE PRESIDENT OF THE PAMBANSANG KATIPUNAN NG MGA SANGGUNIANG ABATAAN, and ALL SK OFFICERS AND YOUTH OF THE LAND SIMILARLY SITUATED and THEIR AGENTS AND REPRESENTATIVES, respondents.

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D E C I S I O N

PUNO, J.:

May the Commission on Elections (COMELEC), on its own, in the exercise of its power to enforce and administer election laws, look into the qualifications of a candidate and cancel his certificate of candidacy on the ground that he lacks the qualifications prescribed by law? This is the issue that needs to be resolved in this petition forcertiorari filed by Ellan Marie P. Cipriano, the duly elected SK Chairman of Barangay 38, Pasay City, whose certificate of candidacy was cancelled by the COMELEC motu proprio on the ground that she was not a registered voter in the barangay where she intended to run.

On June 7, 2002, petitioner filed with the COMELEC her certificate of candidacy as Chairman of the Sangguniang Kabataan (SK) for the SK elections held on July 15, 2002.1

On the date of the elections, July 15, 2002, the COMELEC issued Resolution No. 5363 adopting the recommendation of the Commission’s Law Department to deny due course to or cancel the certificates of candidacy of several candidates for the SK elections, including petitioners. The ruling was based on the findings of the Law Department that petitioner and all the other candidates affected by said resolution were not registered voters in the barangay where they intended to run.2

Petitioner, nonetheless, was allowed to vote in the July 15 SK elections and her name was not deleted from the official list of candidates. After the canvassing of votes, petitioner was proclaimed by the Barangay Board of Canvassers the duly elected SK Chairman of Barangay 38, Pasay City.3 She took her oath of office on August 14, 2002.4

On August 19, 2002, petitioner, after learning of Resolution No. 5363, filed with the COMELEC a motion for reconsideration of said resolution. She argued that a certificate of candidacy may only be denied due course or cancelled via an appropriate petition filed by any registered candidate for the same position under Section 78 of the Omnibus Election Code in relation to Sections 5 and 7 of Republic Act (R.A.) No. 6646. According to petitioner, the report of the Election Officer of Pasay City cannot be considered a petition under Section 78 of the Omnibus Election Code, and the COMELEC cannot, by itself, deny due course to or cancel one’s certificate of candidacy. Petitioner also claimed that she was denied due process when her certificate of candidacy was cancelled by the Commission without notice and hearing. Petitioner further argued that the COMELEC en banc did not have jurisdiction to act on the cancellation of her certificate of candidacy on the first instance because it is the Division of the Commission that has authority to decide election-related cases, including pre-proclamation controversies. Finally, she contended that she may only be removed by a petition for quo warranto after her proclamation as duly-elected SK Chairman.5

On October 7, 2002, the COMELEC issued Resolution No. 5781,6 resolving petitioner’s motion for reconsideration. It cited its previous resolution, Resolution No. 5584, in relation to Resolution No. 4801. The Commission stated in Resolution No. 5584 its policy on proclaimed candidates found to be ineligible for not being registered voters in the place where they were elected. It explained:

A portion of Resolution No. 5584 explained the procedure adopted by the Commission in denying due course the certificate of candidacy of a candidate. It reads:

Under COMELEC Resolution No. 4801, Election Officers were given the duty to: (1) verify whether all candidates for barangay and sangguniang kabataan positions are registered voters of the barangaywhere they filed their certificates of candidacy; and (2) examine the entries of the certificates of candidacy and determine on the basis of said entries whether the candidate concerned possesses all the qualifications of a candidate.

Further, Election Officers are mandated to report by registered mail and by rush telegram to the Law Department of this Commission the names of candidates who are not registered voters in the place where they seek to run for public office within three (3) days from the last day for filing of certificates of candidacy. The names of these candidates, however, shall still be included in the certified lists of candidates until the Commission directs otherwise.

By virtue of the said report, the Law Department makes a recommendation to the Commission En Banc, and the latter, by virtue of an En Banc Resolution either gives due course to or denies/cancels the certificates of candidacy of the said candidates.

Verily, the administrative inquiry of the Commission on the eligibility of candidates starts from the time they filed their certificates of candidacy. The candidates, by virtue of the publication of COMELEC Resolution No. 4801 on May 25, 2002 in the Manila Standard and Manila Bulletin are deemed to have constructive notice of the said administrative inquiry. Thus, the Commission, by virtue of its administrative powers, may motu proprio deny/cancel the certificates of candidacy of candidates who are found to be not registered voters in the place where they seek to run for public office.

Any registered candidate for the same office may also file a verified petition to deny due course to or cancel a certificate of candidacy pursuant to Section 69 (nuisance candidate) or Sec. 78 (material misrepresentation in the certificate of candidacy) of the Omnibus Election Code either personally or through a duly authorized representative

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within five (5) days from the last day for filing of certificate of candidacy directly with the Office of the Provincial Election Supervisor or with the Office of the Election Officer concerned.

Hence, as long as the Election Officer reported the alleged ineligibility in accordance with COMELEC Resolution No. 4801, or the petition to deny due course to or cancel a certificate of candidacy was filed within the reglementary period, the fact that the Resolution of this Commission, denying due course to or canceling the certificate of candidacy of an ineligible candidate, was not promulgated or did not arrive prior to or on the day of the elections is therefore of no moment. The proclamation of an ineligible candidate is not a bar to the exercise of this Commission’s power to implement the said Resolution of the Commission En Banc because it already acquired the jurisdiction to determine the ineligibility of the candidates who filed their certificates of candidacy even before elections by virtue of either the report of the Election Officer or the petition to deny due course to or cancel the certificate of candidacy filed against them.

On the matter of petitions for disqualification, the provisions of COMELEC Resolution No. 4801 are likewise clear: (1) ‘A verified petition to disqualify a candidate on the ground of ineligibility or under Section 68 of the Omnibus Election Code may be filed at anytime before proclamation of the winning candidate by any registered voter or any candidate for the same office,’ (2) ‘All disqualification cases filed on the ground of ineligibility shall survive, although the candidate has already been proclaimed.’

Clearly, by virtue of the above-quoted provisions, the proclamation of a candidate who is found to be disqualified is also not a bar to the Commission’s power to order a proclaimed candidate to cease and desist from taking his oath of office or from assuming the position to which he was elected.

By way of contrast, in case of proclaimed candidates who were found to be ineligible only after they were elected and proclaimed, the provisions of Section 253 of the Omnibus Election Code are clear: The remedy of losing candidates is to file a petition for quo warranto before the metropolitan or municipal trial court. This is logical – The Commission did not acquire jurisdiction over these proclaimed candidates prior to election (i.e., There was no report from the Election Officer regarding their ineligibility and no petition to deny due course to or cancel certificate of candidacy and/or petition for disqualification was filed against them.) Thus, the Commission has no jurisdiction to annul their proclamation on the ground of ineligibility, except in cases wherein the proclamation is null and void for being based on incomplete canvass.

Thus, the Commission ruled:

Premises considered, the Commission, RESOLVED, as it hereby RESOLVES, to establish a policy as follows:

ON PROCLAIMED CANDIDATES FOUND TO BE INELIGIBLE FOR BEING NOT REGISTERED VOTERS IN THE PLACE WHERE THEY WERE ELECTED.

(a) For a proclaimed candidate whose certificate of candidacy was denied due course to or cancelled by virtue of a Resolution of the Commission En Banc albeit such Resolution did not arrive on time.

1. To DIRECT the Election Officers concerned to implement the resolution of the Commission deleting the name of the candidate whose certificate of candidacy was denied due course;

2. To DIRECT the candidate whose name was ordered deleted to cease and desist from taking his oath of office or from assuming the position to which he was elected, unless a temporary restraining order was issued by the Supreme Court; and

3. To RECONVENE the Board of Canvassers for the purpose of proclaiming the duly-elected candidates and correcting the Certificate of Canvass of Proclamation.7

The Commission further stated:

Considering that there are queries as to the status of the proclamation of disqualified candidates as an offshoot of Resolution No. 5584, the same was amended by virtue of Resolution No. 5666, the dispositive portion of which now reads:

Considering the above-quoted provision, the Commission RESOLVED, as it hereby RESOLVES, to APPROVE the recommendation of Commissioner Sadain to amend Resolution No. 5584 promulgated on 10 August 2002 with modification.

Accordingly, Resolution No. 5584 shall now read as follows:

I

ON PROCLAIMED CANDIDATES FOUND TO BE INELIGIBLE FOR BEING NOT REGISTERED VOTERS IN THE PLACE WHERE THEY WERE ELECTED XXX XXX

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(a) xxx

(b) xxx

(c) xxx

(d) For both (a) and (b), in the event that the disqualified candidate is proclaimed the winner despite his disqualification or despite the pending disqualification case filed before his proclamation, but which is subsequently resolved against him, the proclamation of said disqualified candidate is hereby declared void from the beginning, even if the dispositive portion of the resolution disqualifying him or canceling his certificate of candidacy does not provide for such an annulment.8

Hence, petitioner filed the instant petition seeking:

a) To declare illegal and unconstitutional the COMELEC Resolution No. 5363 promulgated on 15 July 2002 and COMELEC Resolution No. 5781 promulgated on October 7, 2002 and any other COMELEC actions and resolutions which are intended to summarily oust and remove petitioner as SK Chairman of Barangay 38, Pasay City without any notice, inquiry, election protest, petition for quo warranto, investigation and hearing, and therefore a clear violation of due process of law.

b) To declare illegal the aforesaid COMELEC Resolutions sitting en banc which does not have authority to decide election related case, including pre-proclamation controversies, in the first instance, in consonance to this Honorable Court’s ruling in the cases of Sarmiento vs. COMELEC, G.R. No. 87308, August 29, 1989 and Garvida vs. Sales, G.R. No. 124893, April 18, 1997.

c) To declare unconstitutional Sections 6 and 7 of R.A. 9164 and also to declare the age of membership and its officers of the KK or SK organization from 15 to 21 years old in accordance with Sec. 39 (f) and Sec. 423 (b) and other provisions of R.A. 7160 otherwise known as Local Government Code of 1991.

d) If Sections 6 and 7 of R.A. 9164 are sustained as constitutional to direct all SK Officers and Members who are now more than 18 years old to cease and desist from continuously functioning as such SK Officers and Members and to vacate their respective SK Officers position, as they are no longer members of the Sangguniang Kabataan organization or Katipunan ng Kabataan organization for being over age upon attaining the age of 18 years old.

e) To direct respondents to pay the salary, allowance and other benefits of the petitioner as SK Chairperson of Barangay 38, Pasay City.9

Stripped of the non-essentials, the only issue in this case is the validity of Resolution No. 5363 of the COMELEC.

Petitioner argues that she was deprived of due process when the COMELEC issued Resolution No. 5363 canceling her certificate of candidacy. She claims that the resolution was intended to oust her from her position as SK Chairman without any appropriate action and proceedings.

The COMELEC, on the other hand, defends its resolution by invoking its administrative power to enforce and administer election laws. Thus, in the exercise of such power, it may motu proprio deny or cancel the certificates of candidacy of candidates who are found to be unqualified for the position they are seeking. The Commission further contends that the publication of COMELEC Resolution No. 4801 governing the conduct of the Barangayand SK elections in two newspapers of general circulation is sufficient notice to the candidates regarding the Commission’s administrative inquiry into their certificates of candidacy.

The petition is impressed with merit.

The COMELEC is an institution created by the Constitution to govern the conduct of elections and to ensure that the electoral process is clean, honest, orderly, and peaceful. It is mandated to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall."10 As an independent Constitutional Commission, it is clothed with the three powers of government - executive or administrative, legislative, and quasi-judicial powers. The administrative powers of the COMELEC, for example, include the power to determine the number and location of polling places, appoint election officials and inspectors, conduct registration of voters, deputize law enforcement agencies and government instrumentalities to ensure free, orderly, honest, peaceful and credible elections; register political parties, organization or coalitions, accredit citizens’ arms of the Commission, prosecute election offenses, and recommend to the President the removal or imposition of any other disciplinary action upon any officer or employee it has deputized for violation or disregard of its directive, order or decision. It also has direct control and supervision over all personnel involved in the conduct of election.11 Its legislative authority is found in its power to promulgate rules and regulations implementing the provisions of the Omnibus Election Code or other laws which the Commission is required to enforce and administer.12 The Constitution has also vested it with quasi-judicial powers when it was granted exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective regional, provincial and city officials; and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction.13

Aside from the powers vested by the Constitution, the Commission also exercises other powers expressly provided in the Omnibus Election Code, one of which is the authority to deny due course to or to cancel a certificate of candidacy. The exercise of such authority, however, must be in accordance with the conditions set by law.

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The COMELEC asserts that it is authorized to motu proprio deny due course to or cancel a certificate of candidacy based on its broad administrative power to enforce and administer all laws and regulations relative to the conduct of elections.

We disagree. The Commission may not, by itself, without the proper proceedings, deny due course to or cancel a certificate of candidacy filed in due form. When a candidate files his certificate of candidacy, the COMELEC has a ministerial duty to receive and acknowledge its receipt. This is provided in Sec. 76 of the Omnibus Election Code, thus:

Sec. 76. Ministerial duty of receiving and acknowledging receipt. - The Commission, provincial election supervisor, election registrar or officer designated by the Commission or the board of election inspectors under the succeeding section shall have the ministerial duty to receive and acknowledge receipt of the certificate of candidacy.

The Court has ruled that the Commission has no discretion to give or not to give due course to petitioner’s certificate of candidacy.14 The duty of the COMELEC to give due course to certificates of candidacy filed in due form is ministerial in character. While the Commission may look into patent defects in the certificates, it may not go into matters not appearing on their face. The question of eligibility or ineligibility of a candidate is thus beyond the usual and proper cognizance of said body.15

Nonetheless, Section 78 of the Omnibus Election Code allows any person to file before the COMELEC a petition to deny due course to or cancel a certificate of candidacy on the ground that any material representation therein is false. It states:

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

Under Rule 23 of the COMELEC Rules of Procedure, the petition shall be heard summarily after due notice.

It is therefore clear that the law mandates that the candidate must be notified of the petition against him and he should be given the opportunity to present evidence in his behalf. This is the essence of due process. Due process demands prior notice and hearing. Then after the hearing, it is also necessary that the tribunal shows substantial evidence to support its ruling. In other words, due process requires that a party be given an opportunity to adduce his evidence to support his side of the case and that the evidence should be considered in the adjudication of the case.16 In a petition to deny due course to or cancel a certificate of candidacy, since the proceedings are required to be summary, the parties may, after due notice, be required to submit their position papers together with affidavits, counter-affidavits, and other documentary evidence in lieu of oral testimony. When there is a need for clarification of certain matters, at the discretion of the Commission en banc or Division, the parties may be allowed to cross-examine the affiants.17

Contrary to the submission of the COMELEC, the denial of due course or cancellation of one’s certificate of candidacy is not within the administrative powers of the Commission, but rather calls for the exercise of its quasi-judicial functions. Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs.18 We have earlier enumerated the scope of the Commission’s administrative functions. On the other hand, where a power rests in judgment or discretion, so that it is of judicial nature or character, but does not involve the exercise of functions of a judge, or is conferred upon an officer other than a judicial officer, it is deemed quasi-judicial.19

The determination whether a material representation in the certificate of candidacy is false or not, or the determination whether a candidate is eligible for the position he is seeking involves a determination of fact where both parties must be allowed to adduce evidence in support of their contentions. Because the resolution of such fact may result to a deprivation of one’s right to run for public office, or, as in this case, one’s right to hold public office, it is only proper and fair that the candidate concerned be notified of the proceedings against him and that he be given the opportunity to refute the allegations against him. It should be stressed that it is not sufficient, as the COMELEC claims, that the candidate be notified of the Commission’s inquiry into the veracity of the contents of his certificate of candidacy, but he must also be allowed to present his own evidence to prove that he possesses the qualifications for the office he seeks.

In view of the foregoing discussion, we rule that Resolution No. 5363 and Resolution No. 5781, canceling petitioner’s certificate of candidacy without proper proceedings, are tainted with grave abuse of discretion and therefore void.

We need not rule on the question raised by petitioner as regards the constitutionality of Sections 6 and 7 of Republic Act No. 9164 lowering the age of membership in the SK as it is not the lis mota of this case.

IN VIEW WHEREOF, COMELEC Resolution No. 5363 promulgated on July 15, 2002 and COMELEC Resolution No. 5781 issued on October 7, 2002 are hereby SET ASIDE.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

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G.R. Nos. 122250 & 122258 July 21, 1997

EDGARDO C. NOLASCO, petitioner, vs.COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS, MEYCAUAYAN, BULACAN, and EDUARDO A. ALARILLA, respondents.

FLORENTINO P. BLANCO, petitioner, vs.COMMISSION ON ELECTIONS, and EDUARDO A. ALARILLA, respondents.

 

PUNO, J.:

First, we rewind the facts. The election for mayor of Meycauayan, Bulacan was held on May 8, 1995. The principal protagonists were petitioner Florentino P. Blanco and private respondent Eduardo A. Alarilla. Blanco received 29,753 votes, while Alarilla got 23,038 votes. 1 Edgardo Nolasco was elected Vice-Mayor with 37,240 votes.

On May 9, 1995, Alarilla filed with the COMELEC a petition to disqualify Blanco. He alleged:

xxx xxx xxx

4. Based on intelligence reports that respondent was maintaining his own "private army" at his aforesaid resident, P/Insp. Ronaldo O. Lee of the Philippine National Police assigned with the Intelligence Command at Camp Crame, applied for and was granted search warrant no. 95-147 by Branch 37 of the Regional Trial Court of Manila on 5 May 1995. A copy of the said search warrant is attached as Annex "A" hereof.

5. In compliance with said search warrant no. 95-147, an elite composite team of the PNP Intelligence Command, Criminal Investigation Service (CIS), and Bulacan Provincial Command, backed up by the Philippine National Police Special Action Force, accompanied by mediamen who witnessed and recorded the search by video and still cameras, raided the house of respondent Florentino Blanco at his stated address at Bancal, Meycauayan, Bulacan.

6. Enclosed as Annex "A-1" is a video tape taken of the proceedings during the raid.

7. The composite team was able to enter the said premises of respondent Florentino Blanco where they conducted a search of the subject firearms and ammunition.

8. The search resulted in the arrest of six (6) men who were found carrying various high powered firearms without any license or authority to use or possess such long arms. These persons composing respondent's "private army," and the unlicensed firearms are as follows:

A. Virgilio Luna y Valderama —

1 PYTHOM (sic) Cal . 347 SN 26946with six (6) Rounds of Ammo.

2 INGRAM M10 Cal. 45 MP withSuppressor SN: 45457 with two(2) Mags and 54 Rounds of Ammo.

B. Raymundo Bahala y Pon —

1. HKMP5 Sn. C334644 with two (2)Mags and 47 Rounds of Ammo.

C. Roberto Santos y Sacris —

1. Smith and Wesson 357 Magnum Sn:522218 with six (6) Rounds ofAmmo.

D. Melchor Cabanero y Oreil —

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1. Armscor 12 Gauge with three (3)Rounds of Ammo.

E. Edgardo Orteza y Asuncion —

1. Paltik Cal. 38 Rev with six (6)Rounds of Ammo.

F. Francisco Libari y Calimag —

1. Paltik Cal. 38 SN: 36869

Copies of the inventory receipts are hereto attached as Annexes "B" to "B-5" hereof.

9. During the search, members of the composite team saw through a large clear glass window, respondent's Galil assault rifle on a sofa inside a closed room of the subject premises.

10. Not allowed entry thereto by respondent and his wife, the members of the composite police-military team applied for the issuance of a second search warrant (Annex "B-6") so that they could enter the said room to seize the said firearm.

11. While waiting for the issuance of the second search warrant, respondent's wife and respondent's brother, Mariano Blanco, claiming to be the campaign manager of respondent in the Nationalist People's Coalition Party, asked permission to enter the locked room so they could withdraw money in a vault inside the locked room to pay their watchers, and the teachers of Meycauayan in the 8 May 1995 elections.

12. For reasons not known to petitioner, Mrs. Florentino Blanco and Mariano Blanco, were allowed to withdraw ten (10) large plastic bags from the vault.

13. When the said PNP composite team examined the ten (10) black plastic bags, they found out that each bag contained ten (10) shoe boxes. Each shoe box when examined contained 200 pay envelopes, and each pay envelope when opened contained the amount of P1,000.00. When questioned, respondent's brother Mariano Blanco and respondent's wife, admitted to the raiding team that the total amount of money in the ten (10) plastic bags is P10,000,000.00.

14. The labels found in the envelope shows that the money were intended as respondent's bribe money to the teachers of Meycauayan. Attached as Annex "C" is the cover of one of the shoe boxes containing the inscription that it is intended to the teachers of Brgy. Lawa, Meycauayan, Bulacan.

15. On election day 8 May 1995, respondent perpetrated the most massive vote-buying activity ever in the history of Meycauayan politics. Attached as Annex "D" is the envelope where this P10,000,000.00 was placed in 100 peso denominations totalling one thousand pesos per envelope with the inscription "VOTE!!! TINOY."

This massive vote-buying activity was engineered by the respondent through his organization called "MTB" or "MOVEMENT FOR TINOY BLANCO VOLUNTEERS." The chairman of this movement is respondent's brother, Mariano P. Blanco, who admitted to the police during the raid that these money were for the teachers and watchers of Meycauayan, Bulacan.

Attached as Annex "E" hereof is an MTB ID issued to one Armando Bulan of Precinct 77-A, Brgy. Jasmin, Bancal, Meycauayan, Bulacan. You will note that the ID is perforated in the middle. The purpose is for the voter to tear the office copy and return it to respondent's headquarters to receive the balance of the P500.00 of the bribe money after voting for respondent during the elections. The voter will initially be given a down-payment of 500.00.

16. This massive vote-buying was also perpetrated by respondent thru the familiar use of flying voters. Attached as Annex "F" hereof is a copy of the Police Blotter dated 8 May 1995 showing that six (6) flying voters were caught in different precincts of Meycauayan, Bulacan, who admitted after being caught and arrested that they were paid P200.00 to P300.00 by respondent and his followers, to vote for other voters in the voter's list.

17. Not satisfied, and with his overflowing supply of money, respondent used another scheme as follows. Respondent's paid voter will identify his target from the list of voter and will impersonate said voter in the list and falsify his signature.

Attached as Annex "G" hereof is the Minutes of Voting and Counting of Votes in Precinct No. 26, Brgy. Calvario, Meycauayan, Bulacan. Annex "G-1" is the statement of one Ma. Luisa de los Reyes Cruz stating that when she went to her precinct to vote, her name was already voted upon by another person. This entry was noted by Leticia T. Villanco, Poll Chairman; Estelita Artajo, — Poll Clerk; and Nelson John Nito — Poll Member.

18. Earlier before the election, respondent used his tremendous money to get in the good graces of the local Comelec Registrar, who was replaced by this Office upon the petition of the people of Meycauayan. Attached as Annex "H" hereof is an article in the 3 May 1995 issue of Abante entitled "1 M Suhol sa Comelec Registrar."

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19. The second search warrant on respondent's residence yielded to more firearms and thousands of rounds of ammunition. These guns were used by respondent to terrorize the population and make the people afraid to complain against respondent's massive vote buying and cheating in today's elections. Respondent's bribery of the teachers ensured the implementation of his vote buying ballot box switching, impersonations, and other cheating schemes.

Attached as Annexes "I-1" to "I-2" are the pertinent Receipts of the guns and ammunitions seized from respondent. Attached as Annex "J" is a Certification to the same effect.

20. The above acts committed by respondent are clear grounds for disqualification under Sec. 68 of the Omnibus Election Code for giving money to influence, induce or corrupt the voters or public officials performing election functions; for committing acts of terrorism to enhance his candidacy; and for spending in his election campaign an amount in excess of that allowed by the Election Code. There are only 97,000 registered voters in Meycauayan versus respondent's expenses of at least P10,000,000.00 as admitted above. (Emphasis supplied).

On May 15, 1995, Alarilla filed a Very Urgent Ex Parte Motion to Suspend Proclamation. The COMELEC (First Division) granted the motion after finding that there was a "probable commission of election offenses which are grounds for disqualification pursuant to the provisions of section 68 of the Omnibus Election Code (BP 881), and the evidence in support of disqualification is strong." It directed the Municipal Board of Canvassers "to complete the canvassing of election returns of the municipality of Meycauayan, but to suspend proclamation of respondent Florentino P. Blanco should he obtain the winning number of votes for the position of Mayor of Meycauayan, Bulacan until such time when the petitions for disqualification against him shall have been resolved."

On May 25, 1995, Blanco filed a Motion to Lift or Set Aside the Order suspending his proclamation. On May 29, 1995, he filed his Answer to the petition to disqualify him.

On May 30, 1995, the COMELEC (First Division) heard the petition to disqualify Blanco. The parties thereafter submitted their position papers. 2 Blanco even replied to the position paper of Alarilla on June 9, 1995.

On August 15, 1995, the COMELEC (First Division) disqualified Blanco on the ground of vote-buying, viz.: 3

xxx xxx xxx

WHEREFORE, premises considered, the Commission (First Division) RESOLVES to DISQUALIFY Respondent Florentino P. Blanco as a candidate for the Office of Mayor of Meycauayan, Bulacan in the May 8, 1995 elections for having violated Section 261 (a) of the Omnibus Election Code. The Order suspending the proclamation of herein Respondent is now made PERMANENT. The Municipal Board of Canvassers of Meycauayan, Bulacan shall immediately reconvene and, on the basis of the completed canvass of the election returns, determine the winner out of the remaining qualified candidates who shall be immediately proclaimed.

SO ORDERED.

Blanco moved for reconsideration on August 19, 1995 in the COMELEC en banc. Nolasco, as vice mayor, intervened in the proceedings. 4 He moved for reconsideration of that part of the resolution directing the Municipal Board of Canvassers to "immediately reconvene and, on the basis of the completed canvass of the election returns, determine the winner out of the remaining qualified candidates who shall be immediately proclaimed." He urged that as vice-mayor he should be declared mayor in the event Blanco was finally disqualified. The motions were heard on September 7, 1995. The parties were allowed to file their memoranda with right of reply. On October 23, 1995, the COMELEC en banc denied the motions for reconsideration.

In this petition for certiorari, 5 Blanco contends:

xxx xxx xxx

18. Respondent COMELEC En Banc committed grave abuse of discretion amounting to lack or excess of jurisdiction and acted arbitrarily in affirming en toto and adopting as its own the majority decision of the First Division in that:

18.1 It upheld the validity of the May 17, 1995 order suspending proclamation of Petitioner Blanco herein as the winning candidate for Mayor of Meycauayan without the benefit of any notice or hearing in gross and palpable violation of Blanco's constitutional right to due process of law.

18.2 It violated the provisions of COMELEC Res. No. 2050 as amended, prescribing the procedure for disposing of disqualification cases arising out of the prohibited acts mentioned in Sec. 68 of the Omnibus Election Code, which Resolution this Honorable Tribunal explicitly sanctioned in the case of Lozano vs.Yorac. Moreover, it (COMELEC) violated Blanco's right to equal protection of the laws by setting him apart from other respondents facing similar disqualification suits whose case were referred by COMELEC to the Law Department pursuant to Com. Res. No. 2050 and ordering their proclamation — an act which evidently discriminated against Petitioner Blanco herein.

18.3 It decided Petitioner Blanco's disqualification case in a SUMMARY PROCEEDING in violation of law and the precedents which consistently hold that questions of VOTE-BUYING, terrorism and similar such acts should be resolve in a formal election protest where the issue of vote buying is subjected to a full-dress hearing instead of disposing of the issue in a summary proceeding;

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18.4 It declared Petitioner Blanco as having been involved in a conspiracy to engage in VOTE-BUYING without that minimum quantum of proof required to establish a disputable presumption of vote-buying in gross and palpable violation of the provisions of Section 28, Rep. Act. 6646;

18.5 It ordered the proclamation of a SECOND PLACER as the duly elected Mayor of Meycauayan, Bulacan, in gross violation and utter disregard of the doctrine laid down by this Honorable Supreme Court in the case of LABO vs. COMELEC which was reiterated only recently in the case of Aquino vs. Syjuco.

On the other hand, Nolasco contends in his petition for certiorari 6 that he should be declared as Mayor in view of the disqualification of Blanco. He cites section 44 of R.A. No. 7160 otherwise known as the Local Government Code of 1991 and our decision in Labo vs. COMELEC. 7

We shall first resolve the Blanco petition.

Blanco was not denied due process when the COMELEC (First Division) suspended his proclamation as mayor pending determination of the petition for disqualification against him. Section 6 of R.A. No. 6646 and sections 4 and 5 of the Rule 25 of the Comelec Rules of Procedure merely require that evidence of guilt should be strong to justify the COMELEC in suspending a winning candidate's proclamation. It ought to be emphasized that the suspension order is provisional in nature and can be lifted when the evidence so warrants. It is akin to a temporary restraining order which a court can issue ex-parte under exigent circumstances.

In any event, Blanco was given all the opportunity to prove that the evidence on his disqualification was not strong. On May 25, 1995, he filed a Motion to Lift or Set Aside the Order suspending his proclamation. On May 29, 1995, he filed his Answer to the petition to disqualify him. The COMELEC heard the petition. Blanco thereafter submitted his position paper and reply to Alarilla's position paper. The COMELEC considered the evidence of the parties and their arguments and thereafter affirmed his disqualification. The hoary rule is that due process does not mean prior hearing but only an opportunity to be heard. The COMELEC gave Blanco all the opportunity to be heard. Petitions for disqualification are subject to summary hearings. 8

Blanco also faults the COMELEC for departing from the procedure laid down in COMELEC Resolution 2050 as amended, in disqualification cases. The resolution pertinently provides:

xxx xxx xxx

Where a similar complaint is filed after election but before proclamation of the respondent candidate the complaint shall, nevertheless, be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department. If, before proclamation, the Law Department makes a prima facie finding of guilt and the corresponding information has been filed with the appropriate trial court, the complainant may file a petition for suspension of the proclamation of the respondent with the court before which the criminal case is pending and the said court may order the suspension of the proclamation if the evidence of guilt is strong.

It is alleged that the violation is fatal as it deprived Blanco of equal protection of our laws.

We do not agree. It cannot be denied that the COMELEC has jurisdiction over proclamation and disqualification cases. Article IX-C, section 2 of the Constitution endows the COMELEC the all encompassing power to "enforce and administer all laws and regulations relative to the conduct of anelection . . . ." We have long ruled that this broad power includes the power to cancel proclamations. 9 Our laws are no less explicit on the matter. Section 68 of B.P. Blg. 881 (Omnibus Election Code) provides:

Sec. 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for an elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the elections laws.

Section 6 of R.A. No. 6646 likewise provides:

Sec. 6. Effect of Disqualification Case — Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.

Despite these laws and existing jurisprudence, Blanco contends that COMELEC must follow the procedure in Resolution No. 2050 as amended. We hold that COMELEC cannot always be straitjacketed by this procedural rule. The COMELEC has explained that the resolution was passed to take care of the proliferation of disqualification cases at that time. It deemed it wise to delegate its authority

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to its Law Department as partial solution to the problem. The May 8, 1995 elections, however, did not result in a surfeit of disqualification cases which the COMELEC cannot handle. Hence, its decision to resolve the disqualification case of Blanco directly and without referring it to its Law Department is within its authority, a sound exercise of its discretion. The action of the COMELEC is in accord with Section 28 of R.A. No. 6646, viz:

xxx xxx xxx

Sec. 28. Prosecution of Vote-Buying and Vote-selling. — The presentation of a complaint for violations of paragraph (a) or (b) of Section 261 of Batas Pambansa Blg. 881 supported by affidavits of complaining witness attesting to the offer or promise by or of the voter's acceptance of money or other consideration from the relatives, leaders or sympathizers of a candidate, shall be sufficient basis for an investigation to be immediately conducted by the Commission, directly or through its duly authorized legal officers under Section 68 or Section 265 of said Batas Pambansa Blg. 881. (emphasis supplied)

xxx xxx xxx

Indeed, even Commissioner Maambong who dissented from the majority ruling, clings to the view that "Resolution No. 2050 cannot divest the Commission of its duty to resolve disqualification cases under the clear provision of section 6 of R.A. No. 6646." 10 Clearly too, Blanco's contention that he was denied equal protection of the law is off-line. He was not the object of any invidious discrimination. COMELEC assumed direct jurisdiction over his disqualification case not to favor anybody but to discharge its constitutional duty of disposing the case in a fair and as fast a manner as possible.

Blanco also urges that COMELEC erred in using summary proceedings to resolve his disqualification case. Again, the COMELEC action is safely anchored on section 4 of its Rules of Procedure which expressly provides that petitions for disqualification "shall be heard summarily after due notice." Vote-buying has its criminal and electoral aspects. Its criminal aspect to determine the guilt or innocence of the accused cannot be the subject of summary hearing. However, its electoral aspect to ascertain whether the offender should be disqualified from office can be determined in an administrative proceeding that is summary in character.

The next issue is whether there is substantial evidence to prove the vote buying activities of Blanco.

The factual findings of the COMELEC (First Division) are as follows: 11

xxx xxx xxx

Respondent argues that the claim of vote-buying has no factual basis because the affidavits and sworn statements admitted as evidence against him are products of hearsay; inadmissible because of the illegal searches; they violate the Rule of Res Inter Alios Acta and the offense of vote-buying requires consummation.

We are not impressed.

A studied reading of the affidavits [Respondent's affidavit is unsigned] attached to the Reply of the Respondent to the Position Paper of the Petitioner [Annexes 1, 2 and 3] would reveal that they are in the nature of general denials emanating from individuals closely associated or related to respondent Blanco.

The same holds true with the affidavits attached to Respondent's Position Paper [Annexes 1, 2, 3 and 4].Said affidavits were executed by Blanco's political leaders and private secretary.

On the other hand, the affidavit of Romeo Burgos [Exhibit "E-1"] is rich in detail as to how the alleged vote-buying was conducted.

Moreover, the same is corroborated by object evidence in the nature of MTB [Movement for Tinoy Blanco] cards which were in the possession of the affiants and allegedly used as a means to facilitate the vote-buying scheme.

There are also admissions of certain individuals who received money to vote for Respondent [Annexes "E-2", "E-3" , "E-4" , "E-5" ,"E-6", "E-7", "E-8", "E-9" and "E-10"].

On the day of the elections, two individuals were apprehended for attempting to vote for Respondent when they allegedly are not registered voters of Meycauayan. A criminal complaint for violation of section 261 [2] of BP 881 was filed by P/Sr. Inspector Alfred S. Corpus on May 9, 1995 with the Municipal Trial Court of Bulacan. The same was docketed as Criminal Case 95-16996 [Exhibit F-2].

Again, similar pay envelopes with money inside them were found in the possession of the suspected flying voters.

The incident was corroborated by Adriano Llorente in his affidavit narrating the same [Exhibit "F-1"]. Llorente, a poll watcher of Petitioner, was the one who accosted the two suspected flying voters when the latter attempted to vote despite failing to locate their names in the voter's list.

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From this rich backdrop of detail, We are disappointed by the general denial offered by Respondent. In People of the Philippines vs. Navarro, G.R. No. 96251, May 11, 1993, 222 SCRA 684, the Supreme Court noted that "Denial is the weakest defense" [page 692].

In People of the Philippines vs. Rolando Precioso, et al., G.R. No. 95890, May 12, 1993, 221 SCRA 1993, the Supreme Court observed that,

We have consistently ruled that denials if unsubstantiated by clear and convincing evidence are negative and self-serving evidence which deserves no weight in law and cannot be given greater evidentiary weight over the testimony of credible witnesses. Ergo, as between the positive declarations of the prosecution witness and the negative statements of the accused, the former deserves more credence. [page 754].

However, Respondent conveniently resorts to section 33, Rule 130 of the Revised Rules of Court which states that a declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included herein, may be given in evidence against him [affiants who executed Exhibits E-1 to E-10] but not against Respondent.

There is no merit in this contention.

The affiants are not the accused. Their participation in the herein case is in the nature of witnesses who have assumed the risk of being subsequently charged with violating Section 261 [1] of BP 881. In fact, their affidavits were sought by the Petitioner and not by any law enforcement agency. Even Respondent admits this finding when he filed his Reply to Petitioner's Position Paper and Motion to Refer for Preliminary Investigation and Filing of Information in Court against the Persons Who Executed Exhibits E-1l to E-10 for Having Admitted Commission of Election Offense. If they were the accused, why file the motion? Would not this be redundant if not irrelevant?

xxx xxx xxx

Another telling blow is the unexplained money destined for the teachers. Why such a huge amount? Why should the Respondent, a mayoralty candidate, and according to his own admission, be giving money to teachers a day before the elections? What were the peso bills doing in pay envelopes with the inscription "VOTE!!! TINOY", and kept in shoe boxes with the word "Teachers" written on the covers thereof ?

There is also something wrong with the issuance of the aforementioned MTB cards when one considers the testimony of Burgos that more or less 50,000 of these cards, which is equivalent to more or less 52% of the 97,000 registered voters of Meycauayan, Bulacan, were printed by respondent; that there are only 443 precincts in Meycauayan; that under the law, a candidate is allowed only one watcher per polling place and canvassing area; and, finally, that there is no explanation at all by the respondent as to what these "watchers" did in order to get paid P300.00 each.

xxx xxx xxx

Respondent also avers that for an allegation of vote-buying to prosper, the act of giving must be consummated.

Section 281 [a] of BP 881 states "any person who gives, offers, or promises money . . ." Section 28 of RA 6646 also states that "the giver, offeror, the promisor as well as the solicitor, recipient and conspirator referred to in paragraphs [a] and [b] of section 261 of Batas Pambansa Blg. 881 shall be liable as principals: . . . .

While the giving must be consummated, the mere act of offering or promising something in consideration for someone's vote constitutes the offense of vote-buying.

In the case at bar, the acts of offering and promising money in consideration for the votes of said affiants is sufficient for a finding of the commission of the offense of vote-buying.

These factual findings were affirmed by the COMELEC en banc against the lone dissent of Commissioner Maambong.

There is an attempt to discredit these findings. Immediately obvious in the effort is the resort to our technical rules of evidence. Again, our ingrained jurisprudence is that technical rules of evidence should not be rigorously applied in administrative proceedings especially where the law calls for the proceeding to be summary in character. More importantly, we cannot depart from the settled norm of reviewing decisions of the COMELEC, i.e., that "this Court cannot review the factual findings of the COMELEC absent a grave abuse of discretion and a showing of arbitrariness in its decision, order or resolution." 12

We now come to the petition of Nolasco that he should be declared as mayor in the event Blanco is finally disqualified. 13 We sustain the plea. Section 44, Chapter 2 of the Local Government Code of 1991 (R.A. No. 7160) is unequivocal, thus:

xxx xxx xxx

Sec. 44. Permanent Vacancies in the Offices of the Governor, Vice Governor, Mayor, and Vice Mayor. — (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice governor or vice mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor, or vice mayor, the highest

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ranking sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice governor, mayor or vice mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein.

(b) If a permanent vacancy occurs in the office of the punong barangay, the highest ranking sanggunian barangay member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the punong barangay.

(c) A tie between or among the highest ranking sangguniang members shall be resolved by the drawing of lots.

(d) The successors as defined herein shall serve only the unexpired terms of their predecessors.

For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office.

For purposes of succession as provided in this Chapter, ranking in the sanggunian shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of registered voters in each distribution the immediately preceding election.

In the same vein, Article 83 of the Rules and Regulations Implementing, the Local Government Code of 1991 provides:

xxx xxx xxx

Art. 83. Vacancies and Succession of Elective Local Officials. — (a) What constitutes permanent vacancy —A permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office.

(b) Permanent vacancies in the offices of the governor, vice governor, mayor and vice mayor —

(1) If a permanent vacancy occurs in the office of the governor or mayor, the vice governor or vice mayor concerned shall ipso facto become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor, or vice mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall ipso facto become the governor, vice governor, mayor or vice mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined in this Article.

Our case law is now settled that in a mayoralty election, the candidate who obtained the second highest number of votes, in this case Alarilla, cannot be proclaimed winner in case the winning candidate is disqualified. Thus, we reiterated the rule in the fairly recent case of Reyes v. COMELEC, 14 viz:

xxx xxx xxx

We likewise find no grave abuse of discretion on the part of the COMELEC in denying petitioner Julius O. Garcia's petition to be proclaimed mayor in view of the disqualification of Renato U. Reyes.

That the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified is now settled. The doctrinal instability caused by see-sawing rulings has since been removed. In the latest ruling on the question, this Court said:

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.

Garcia's plea that the votes cast for Reyes be invalidated is without merit. The votes cast for Reyes are presumed to have been cast in the belief that Reyes was qualified and for that reason can not be treated as stray, void, or meaningless. The subsequent finding that he is disqualified cannot retroact to the date of the elections so as to invalidate the votes cast for him.

Consequently, respondent COMELEC committed grave abuse of discretion insofar as it failed to follow the above doctrine, a descendant of our ruling in Labo v. COMELEC. 15

A final word. The dispute at bar involves more than the mayoralty of the municipality of Meycauayan, Bulacan. It concerns the right of suffrage which is the bedrock of republicanism. Suffrage is the means by which our people express their sovereign judgment. Its free exercise must be protected especially against the purchasing power of the peso. As we succinctly held in People v. San Juan, 16 "each time the enfranchised citizen goes to the polls to assert this sovereign will, that abiding credo of republicanism is

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translated into living reality. If that will must remain undefiled at the starting level of its expression and application, every assumption must be indulged in and every guarantee adopted to assure the unmolested exercise of the citizen's free choice. For to impede, without authority valid in law, the free and orderly exercise of the right of suffrage, is to inflict the ultimate indignity on the democratic process."

IN VIEW WHEREOF, the resolution of the respondent COMELEC en banc dated October 23, 1995 is affirmed with the modification that petitioner Edgardo C. Nolasco is adjudged as Mayor of Meycauyan, Bulacan in view of the disqualification of Florentino P. Blanco. No costs.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. 103956 March 31, 1992

BLO UMPAR ADIONG, petitioner, vs.COMMISSION ON ELECTIONS, respondent.

 

GUTIERREZ, JR., J.:

The specific issue in this petition is whether or not the Commission on Elections (COMELEC) may prohibit the posting of decals and stickers on "mobile" places, public or private, and limit their location or publication to the authorized posting areas that it fixes.

On January 13, 1992, the COMELEC promulgated Resolution No. 2347 pursuant to its powers granted by the Constitution, the Omnibus Election Code, Republic Acts Nos. 6646 and 7166 and other election laws.

Section 15(a) of the resolution provides:

Sec. 15. Lawful Election Propaganda. — The following are lawful election propaganda:

(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or printed letters, or other written or printed materials not more than eight and one-half (8-1/2) inches in width and fourteen (14) inches in length. Provided, That decals and stickers may be posted only in any of the authorized posting areasprovided in paragraph (f) of Section 21 hereof.

Section 21 (f) of the same resolution provides:

Sec. 21(f). Prohibited forms of election propaganda. —

It is unlawful:

xxx xxx xxx

(f) To draw, paint, inscribe, post, display or publicly exhibit any election propaganda in any place, whether public or private, mobile or stationary, except in the COMELEC common posted areas and/or billboards, at the campaign headquarters of the candidate or political party, organization or coalition, or at the candidate's own residential house or one of his residential houses, if he has more than one:Provided, that such posters or election propaganda shall not exceed two (2) feet by three (3) feet in size. (Emphasis supplied)

xxx xxx xxx

The statutory provisions sought to be enforced by COMELEC are Section 82 of the Omnibus Election Code on lawful election propaganda which provides:

Lawful election propaganda. — Lawful election propaganda shall include:

(a) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a size not more than eight and one-half inches in width and fourteen inches in length;

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(b) Handwritten or printed letters urging voters to vote for or against any particular candidate;

(c) Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding two feet by three feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding three feet by eight feet in size, shall be allowed: Provided, That said streamers may not be displayed except one week before the date of the meeting or rally and that it shall be removed within seventy-two hours after said meeting or rally; or

(d) All other forms of election propaganda not prohibited by this Code as the Commission may authorize after due notice to all interested parties and hearing where all the interested parties were given an equal opportunity to be heard: Provided, That the Commission's authorization shall be published in two newspapers of general circulation throughout the nation for at least twice within one week after the authorization has been granted. (Section 37, 1978 EC)

and Section 11(a) of Republic Act No. 6646 which provides:

Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint, inscribe, write, post, display or publicly exhibit any election propaganda in any place, whether private, or public, except in the common poster areas and/or billboards provided in the immediately preceding section, at the candidate's own residence, or at the campaign headquarters of the candidate or political party: Provided, That such posters or election propaganda shall in no case exceed two (2) feet by three (3) feet in area: Provided, Further, That at the site of and on the occasion of a public meeting or rally, streamers, not more than two (2) and not exceeding three (3) feet by eight (8) feet each may be displayed five (5) days before the date of the meeting or rally, and shall be removed within twenty-four (24) hours after said meeting or rally; . . . (Emphasis supplied)

Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections now assails the COMELEC's Resolution insofar as it prohibits the posting of decals and stickers in "mobile" places like cars and other moving vehicles. According to him such prohibition is violative of Section 82 of the Omnibus Election Code and Section 11(a) of Republic Act No. 6646. In addition, the petitioner believes that with the ban on radio, television and print political advertisements, he, being a neophyte in the field of politics stands to suffer grave and irreparable injury with this prohibition. The posting of decals and stickers on cars and other moving vehicles would be his last medium to inform the electorate that he is a senatorial candidate in the May 11, 1992 elections. Finally, the petitioner states that as of February 22, 1992 (the date of the petition) he has not received any notice from any of the Election Registrars in the entire country as to the location of the supposed "Comelec Poster Areas."

The petition is impressed with merit. The COMELEC's prohibition on posting of decals and stickers on "mobile" places whether public or private except in designated areas provided for by the COMELEC itself is null and void on constitutional grounds.

First — the prohibition unduly infringes on the citizen's fundamental right of free speech enshrined in the Constitution (Sec. 4, Article III). There is no public interest substantial enough to warrant the kind of restriction involved in this case.

There are various concepts surrounding the freedom of speech clause which we have adopted as part and parcel of our own Bill of Rights provision on this basic freedom.

All of the protections expressed in the Bill of Rights are important but we have accorded to free speech the status of a preferred freedom. (Thomas v. Collins, 323 US 516, 89 L. Ed. 430 [1945]; Mutuc v. Commission on Elections, 36 SCRA 228 [1970])

This qualitative significance of freedom of expression arises from the fact that it is the matrix, the indispensable condition of nearly every other freedom. (Palko v. Connecticut, 302 U.S. 319 [1937]; Salonga v. Paño, 134 SCRA 438 [1985]) It is difficult to imagine how the other provisions of the Bill of Rights and the right to free elections may be guaranteed if the freedom to speak and to convince or persuade is denied and taken away.

We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. (New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 686 [1964]; cited in the concurring opinion of then Chief Justice Enrique Fernando in Babst v. National Intelligence Board, 132 SCRA 316 [1984]) Too many restrictions will deny to people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will truly be free, clean and honest.

We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage. (Mutuc v. Commission on Elections, supra)

The determination of the limits of the Government's power to regulate the exercise by a citizen of his basic freedoms in order to promote fundamental public interests or policy objectives is always a difficult and delicate task. The so-called balancing of interests — individual freedom on one hand and substantial public interests on the other — is made even more difficult in election campaign cases because the Constitution also gives specific authority to the Commission on Elections to supervise the conduct of free, honest, and orderly elections.

We recognize the fact that under the Constitution, the COMELEC during the election period is granted regulatory powers vis-a-vis the conduct and manner of elections, to wit:

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Sec. 4. The Commission may, during the election period supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable equal rates therefore, for public information campaigns and forms among candidates in connection with the object of holding free, orderly, honest, peaceful and credible elections. (Article IX(c) section 4)

The variety of opinions expressed by the members of this Court in the recent case of National Press Club v. Commission on Elections (G.R. No. 102653, March 5, 1991) and its companion cases underscores how difficult it is to draw a dividing line between permissible regulation of election campaign activities and indefensible repression committed in the name of free and honest elections. In the National Press Club, case, the Court had occasion to reiterate the preferred status of freedom of expression even as it validated COMELEC regulation of campaigns through political advertisements. The gray area is rather wide and we have to go on a case to case basis.

There is another problem involved. Considering that the period of legitimate campaign activity is fairly limited and, in the opinion of some, too short, it becomes obvious that unduly restrictive regulations may prove unfair to affected parties and the electorate.

For persons who have to resort to judicial action to strike down requirements which they deem inequitable or oppressive, a court case may prove to be a hollow remedy. The judicial process, by its very nature, requires time for rebuttal, analysis and reflection. We cannot act instantly on knee-jerk impulse. By the time we revoke an unallowably restrictive regulation or ruling, time which is of the essence to a candidate may have lapsed and irredeemable opportunities may have been lost.

When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the part of the electorate are invoked against actions intended for maintaining clean and free elections, the police, local officials and COMELEC, should lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State's power to regulate are not antagonistic. There can be no free and honest elections if in the efforts to maintain them, the freedom to speak and the right to know are unduly curtailed.

There were a variety of opinions expressed in the National Press Club v. Commission on Elections (supra) case but all of us were unanimous that regulation of election activity has its limits. We examine the limits of regulation and not the limits of free speech. The carefully worded opinion of the Court, through Mr. Justice Feliciano, shows that regulation of election campaign activity may not pass the test of validity if it is too general in its terms or not limited in time and scope in its application, if it restricts one's expression of belief in a candidate or one's opinion of his or her qualifications, if it cuts off the flow of media reporting, and if the regulatory measure bears no clear and reasonable nexus with the constitutionally sanctioned objective.

Even as the Court sustained the regulation of political advertisements, with some rather strong dissents, inNational Press Club, we find the regulation in the present case of a different category. The promotion of a substantial Government interest is not clearly shown.

A government regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S Ct 1673. (City Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct 2118 [1984])

The posting of decals and stickers in mobile places like cars and other moving vehicles does not endanger any substantial government interest. There is no clear public interest threatened by such activity so as to justify the curtailment of the cherished citizen's right of free speech and expression. Under the clear and present danger rule not only must the danger be patently clear and pressingly present but the evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a writing instrument to be stilled:

The case confronts us again with the duty our system places on the Court to say where the individual's freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedom secured by the first Amendment . . . That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions and it is the character of the right, not of the limitation, which determines what standard governs the choice . . .

For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other context might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the greatest abuses, endangering permanent interests, give occasion for permissible limitation. (Thomas V. Collins, 323 US 516 [1945]). (Emphasis supplied)

Significantly, the freedom of expression curtailed by the questioned prohibition is not so much that of the candidate or the political party. The regulation strikes at the freedom of an individual to express his preference and, by displaying it on his car, to convince others to agree with him. A sticker may be furnished by a candidate but once the car owner agrees to have it placed on his private vehicle, the expression becomes a statement by the owner, primarily his own and not of anybody else. If, in the National Press Club case, the Court was careful to rule out restrictions on reporting by newspapers or radio and television stations and commentators

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or columnists as long as these are not correctly paid-for advertisements or purchased opinions with less reason can we sanction the prohibition against a sincere manifestation of support and a proclamation of belief by an individual person who pastes a sticker or decal on his private property.

Second — the questioned prohibition premised on the statute and as couched in the resolution is void for overbreadth.

A statute is considered void for overbreadth when "it offends the constitutional principle that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]).

In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.

In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the Court invalidated an ordinance prohibiting all distribution of literature at any time or place in Griffin, Georgia, without a license, pointing out that so broad an interference was unnecessary to accomplish legitimate municipal aims. In Schneider v. Irvington, 308 US 147, 84 L ed 155, 60 S Ct. 146, the Court dealt with ordinances of four different municipalities which either banned or imposed prior restraints upon the distribution of handbills. In holding the ordinances invalid, the court noted that where legislative abridgment of fundamental personal rights and liberties is asserted, "the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions," 308 US, at 161. In Cantwell v Connecticut, 310 US 296, 84 L ed 1213, 60 S Ct. 900, 128 ALR 1352, the Court said that "[c]onduct remains subject to regulation for the protection of society," but pointed out that in each case "the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom." (310 US at 304) (Shelton v. Tucker, 364 US 479 [1960]

The resolution prohibits the posting of decals and stickers not more than eight and one-half (8-1/2) inches in width and fourteen (14) inches in length in any place, including mobile places whether public or private except in areas designated by the COMELEC. Verily, the restriction as to where the decals and stickers should be posted is so broad that it encompasses even the citizen's private property, which in this case is a privately-owned vehicle. In consequence of this prohibition, another cardinal rule prescribed by the Constitution would be violated. Section 1, Article III of the Bill of Rights provides that no person shall be deprived of his property without due process of law:

Property is more than the mere thing which a person owns, it includes the right to acquire, use, and dispose of it; and the Constitution, in the 14th Amendment, protects these essential attributes.

Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the free use, enjoyment, and disposal of a person's acquisitions without control or diminution save by the law of the land. 1 Cooley's Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917])

As earlier stated, we have to consider the fact that in the posting of decals and stickers on cars and other moving vehicles, the candidate needs the consent of the owner of the vehicle. In such a case, the prohibition would not only deprive the owner who consents to such posting of the decals and stickers the use of his property but more important, in the process, it would deprive the citizen of his right to free speech and information:

Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. The danger of distribution can so easily be controlled by traditional legal methods leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the constitution, the naked restriction of the dissemination of ideas." (Martin v. City of Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943])

The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty" interest, the burden of justification on the part of the Government must be exceptionally convincing and irrefutable. The burden is not met in this case.

Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election propaganda in any place, whether public or private, except in the common poster areas sanctioned by COMELEC. This means that a private person cannot post his own crudely prepared personal poster on his own front door or on a post in his yard. While the COMELEC will certainly never require the absurd, there are no limits to what overzealous and partisan police officers, armed with a copy of the statute or regulation, may do.

The provisions allowing regulation are so loosely worded that they include the posting of decals or stickers in the privacy of one's living room or bedroom. This is delegation running riot. As stated by Justice Cardozo in his concurrence in Panama Refining Co. v.

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Ryan (293 U.S. 388; 79 L. Ed. 446 [1935), "The delegated power is unconfined and vagrant . . . This is delegation running riot. No such plentitude of power is susceptible of transfer."

Third — the constitutional objective to give a rich candidate and a poor candidate equal opportunity to inform the electorate as regards their candidacies, mandated by Article II, Section 26 and Article XIII, section 1 in relation to Article IX (c) Section 4 of the Constitution, is not impaired by posting decals and stickers on cars and other private vehicles. Compared to the paramount interest of the State in guaranteeing freedom of expression, any financial considerations behind the regulation are of marginal significance.

Under section 26 Article II of the Constitution, "The State shall guarantee equal access to opportunities for public service, . . . while under section 1, Article XIII thereof "The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, andpolitical inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good." (Emphasis supplied)

It is to be reiterated that the posting of decals and stickers on cars, calesas, tricycles, pedicabs and other moving vehicles needs the consent of the owner of the vehicle. Hence, the preference of the citizen becomes crucial in this kind of election propaganda not the financial resources of the candidate. Whether the candidate is rich and, therefore, can afford to doleout more decals and stickers or poor and without the means to spread out the same number of decals and stickers is not as important as the right of the owner to freely express his choice and exercise his right of free speech. The owner can even prepare his own decals or stickers for posting on his personal property. To strike down this right and enjoin it is impermissible encroachment of his liberties.

In sum, the prohibition on posting of decals and stickers on "mobile" places whether public or private except in the authorized areas designated by the COMELEC becomes censorship which cannot be justified by the Constitution:

. . . The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding from the highest official or the lowest functionary, is a postulate of our system of government. That is to manifest fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal hierarchy. The three departments of government in the discharge of the functions with which it is entrusted have no choice but to yield obedience to its commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes must ever be on guard lest the restrictions on its authority, either substantive or formal, be transcended. The Presidency in the execution of the laws cannot ignore or disregard what it ordains. In its task of applying the law to the facts as found in deciding cases, the judiciary is called upon to maintain inviolate what is decreed by the fundamental law. Even its power of judicial review to pass upon the validity of the acts of the coordinate branches in the course of adjudication is a logical. corollary of this basic principle that the Constitution is paramount. It overrides any governmental measure that fails to live up to its mandates. Thereby there is a recognition of its being the supreme law. (Mutuc v. Commission on Elections, supra)

The unusual circumstances of this year's national and local elections call for a more liberal interpretation of the freedom to speak and the right to know. It is not alone the widest possible dissemination of information on platforms and programs which concern us. Nor are we limiting ourselves to protecting the unfettered interchange of ideas to bring about political change. (Cf. New York Times v. Sullivan, supra) The big number of candidates and elective positions involved has resulted in the peculiar situation where almost all voters cannot name half or even two-thirds of the candidates running for Senator. The public does not know who are aspiring to be elected to public office.

There are many candidates whose names alone evoke qualifications, platforms, programs and ideologies which the voter may accept or reject. When a person attaches a sticker with such a candidate's name on his car bumper, he is expressing more than the name; he is espousing ideas. Our review of the validity of the challenged regulation includes its effects in today's particular circumstances. We are constrained to rule against the COMELEC prohibition.

WHEREFORE, the petition is hereby GRANTED. The portion of Section 15 (a) of Resolution No. 2347 of the Commission on Elections providing that "decals and stickers may be posted only in any of the authorized posting areas provided in paragraph (f) of Section 21 hereof" is DECLARED NULL and VOID.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. L-119694 May 22, 1995

PHILIPPINE PRESS INSTITUTE, INC., for and in behalf of 139 members, represented by its President, Amado P. Macasaet and its Executive Director Ermin F. Garcia, Jr., petitioner, vs.COMMISSION ON ELECTIONS, respondent.

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R E S O L U T I O N

 

FELICIANO, J.:

The Philippine Press Institute, Inc. ("PPI") is before this Court assailing the constitutional validity of Resolution No. 2772 issued by respondent Commission on Elections ("Comelec") and its corresponding Comelec directive dated 22 March 1995, through a Petition for Certiorari and Prohibition. Petitioner PPI is a non-stock, non-profit organization of newspaper and magazine publishers.

On 2 March 1995, Comelec promulgated Resolution No. 2772, which reads in part:

xxx xxx xxx

Sec. 2. Comelec Space. — The Commission shall procure free print space of not less than one half (1/2) page in at least one newspaper of general circulation in every province or city for use as "Comelec Space" from March 6, 1995 in the case of candidates for senator and from March 21, 1995 until May 12, 1995. In the absence of said newspaper, "Comelec Space" shall be obtained from any magazine or periodical of said province or city.

Sec. 3. Uses of Comelec Space. — "Comelec Space" shall be allocated by the Commission, free of charge, among all candidates within the area in which the newspaper, magazine or periodical is circulated to enable the candidates to make known their qualifications, their stand on public issues and their platforms and programs of government.

"Comelec Space" shall also be used by the Commission for dissemination of vital election information.

Sec. 4. Allocation of Comelec Space. — (a) "Comelec Space" shall also be available to all candidatesduring the periods stated in Section 2 hereof. Its allocation shall be equal and impartial among all candidates for the same office. All candidates concerned shall be furnished a copy of the allocation of "Comelec Space" for their information, guidance and compliance.

(b) Any candidate desiring to avail himself of "Comelec Space" from newspapers or publications based in the Metropolitan Manila Area shall submit an application therefor, in writing, to the Committee on Mass Media of the Commission. Any candidate desiring to avail himself of "Comelec Space" in newspapers or publications based in the provinces shall submit his application therefor, in writing, to the Provincial Election Supervisor concerned. Applications for availment of "Comelec Space" maybe filed at any time from the date of effectivity of this Resolution.

(c) The Committee on Mass Media and the Provincial Election Supervisors shall allocate available"Comelec Space" among the candidates concerned by lottery of which said candidates shall be notified in advance, in writing, to be present personally or by representative to witness the lottery at the date, time and place specified in the notice. Any party objecting to the result of the lottery may appeal to the Commission.

(d) The candidates concerned shall be notified by the Committee on Mass Media or the Provincial Election Supervisor, as the case maybe, sufficiently in advance and in writing of the date of issue and the newspaper or publication allocated to him, and the time within which he must submit the written material for publication in the "Comelec Space".

xxx xxx xxx

Sec. 8. Undue Reference to Candidates/Political Parties in Newspapers. — No newspaper or publication shall allow to be printed or published in the news, opinion, features, or other sections of the newspaper or publication accounts or comments which manifestly favor or oppose any candidate or political party by unduly or repeatedly referring to or including therein said candidate or political party. However, unless the facts and circumstances clearly indicate otherwise, the Commission will respect the determination by the publisher and/or editors of the newspapers or publications that the accounts or views published are significant, newsworthy and of public interest. (Emphasis supplied)

Apparently in implementation of this Resolution, Comelec through Commissioner Regalado E. Maambong sent identical letters, dated 22 March 1995, to various publishers of newspapers like the Business World, the Philippine Star, the Malaya and the Philippine Times Journal, all members of PPI. These letters read as follows:

This is to advise you that pursuant to Resolution No. 2772 of the Commission on Elections, you aredirected to provide free print space of not less than one half (1/2) page for use as "Comelec Space"or similar to the print support which you have extended during the May 11, 1992 synchronized elections which was 2 full pages for each political party fielding senatorial candidates, from March 6, 1995 to May 6, 1995, to make known their qualifications, their stand on public issues and their platforms and programs of government.

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We shall be informing the political parties and candidates to submit directly to you their pictures, biographical data, stand on key public issues and platforms of government either as raw data or in the form of positives or camera-ready materials.

Please be reminded that the political parties/candidates may be accommodated in your publication any day upon receipt of their materials until May 6, 1995 which is the last day for campaigning.

We trust you to extend your full support and cooperation in this regard. (Emphasis supplied)

In this Petition for Certiorari and Prohibition with prayer for the issuance of a Temporary Restraining Order, PPI asks us to declare Comelec Resolution No. 2772 unconstitutional and void on the ground that it violates the prohibition imposed by the Constitution upon the government, and any of its agencies, against the taking of private property for public use without just compensation. Petitioner also contends that the 22 March 1995 letter directives of Comelec requiring publishers to give free "Comelec Space" and at the same time process raw data to make it camera-ready, constitute impositions of involuntary servitude, contrary to the provisions of Section 18 (2), Article III of the 1987 Constitution. Finally, PPI argues that Section 8 of Comelec Resolution No. 2772 is violative of the constitutionally guaranteed freedom of speech, of the press and of expression. 1

On 20 April 1995, this Court issued a Temporary Restraining Order enjoining Comelec from enforcing and implementing Section 2 of Resolution No. 2772, as well as the Comelec directives addressed to various print media enterprises all dated 22 March 1995. The Court also required the respondent to file a Comment on the Petition.

The Office of the Solicitor General filed its Comment on behalf of respondent Comelec alleging that Comelec Resolution No. 2772 does not impose upon the publishers any obligation to provide free print space in the newspapers as it does not provide any criminal or administrative sanction for non-compliance with that Resolution. According to the Solicitor General, the questioned Resolution merely established guidelines to be followed in connection with the procurement of "Comelec space," the procedure for and mode of allocation of such space to candidates and the conditions or requirements for the candidate's utilization of the "Comelec space" procured. At the same time, however, the Solicitor General argues that even if the questioned Resolution and its implementing letter directives are viewed as mandatory, the same would nevertheless be valid as an exercise of the police power of the State. The Solicitor General also maintains that Section 8 of Resolution No. 2772 is a permissible exercise of the power of supervision or regulation of the Comelec over the communication and information operations of print media enterprises during the election period to safeguard and ensure a fair, impartial and credible election. 2

At the oral hearing of this case held on 28 April 1995, respondent Comelec through its Chairman, Hon. Bernardo Pardo, in response to inquiries from the Chief Justice and other Members of the Court, stated that Resolution No. 2772, particularly Section 2 thereof and the 22 March 1995 letters dispatched to various members of petitioner PPI, were not intended to compel those members to supply Comelec with free print space. Chairman Pardo represented to the Court that Resolution and the related letter-directives were merely designed to solicit from the publishers the same free print space which many publishers had voluntarily given to Comelec during the election period relating to the 11 May 1992 elections. Indeed, the Chairman stated that the Comelec would, that very afternoon, meet and adopt an appropriate amending or clarifying resolution, a certified true copy of which would forthwith be filed with the Court.

On 5 May 1995, the Court received from the Office of the Solicitor General a manifestation which attached a copy of Comelec Resolution No. 2772-A dated 4 May 1995. The operative portion of this Resolution follows:

NOW THEREFORE, pursuant to the powers vested in it by the Constitution, the Omnibus Election Code, Republic Acts No. 6646 and 7166 and other election laws, the Commission on Elections RESOLVED to clarify Sections 2 and 8 of Res. No. 2772 as follows:

1. Section 2 of Res. No. 2772 shall not be construed to mean as requiring publishers of the different mass media print publications to provide print space under pain of prosecution, whether administrative, civil or criminal, there being no sanction or penalty for violation of said Section provided for either in said Resolution or in Section 90 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, on the grant of "Comelec space."

2. Section 8 of Res. No. 2772 shall not be construed to mean as constituting prior restraint on the part of publishers with respect to the printing or publication of materials in the news, opinion, features or other sections of their respective publications or other accounts or comments, it being clear from the last sentence of said Section 8 that the Commission shall, "unless the facts and circumstances clearly indicate otherwise . . . respect the determination by the publisher and/or editors of the newspapers or publications that the accounts or views published are significant, newsworthy and of public interest."

This Resolution shall take effect upon approval. (Emphasis in the original)

While, at this point, the Court could perhaps simply dismiss the Petition for Certiorari and Prohibition as having become moot and academic, we consider it not inappropriate to pass upon the first constitutional issue raised in this case. Our hope is to put this issue to rest and prevent its resurrection.

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Section 2 of Resolution No. 2772 is not a model of clarity in expression. Section 1 of Resolution No. 2772-A did not try to redraft Section 2; accordingly, Section 2 of Resolution No. 2772 persists in its original form. Thus, we must point out that, as presently worded, and in particular as interpreted and applied by the Comelec itself in its 22 March 1995 letter-directives to newspaper publishers, Section 2 of Resolution No. 2772 is clearly susceptible of the reading that petitioner PPI has given it. That Resolution No. 2772 does not, in express terms, threaten publishers who would disregard it or its implementing letters with some criminal or other sanction, does not by itself demonstrate that the Comelec's original intention was simply to solicit or request voluntary donations of print space from publishers. A written communication officially directing a print media company to supply free print space, dispatched by a government (here a constitutional) agency and signed by a member of the Commission presumably legally authorized to do so, is bound to produce a coercive effect upon the company so addressed. That the agency may not be legally authorized to impose, or cause the imposition of, criminal or other sanctions for disregard of such directions, only aggravates the constitutional difficulties inhearing in the present situation. The enactment or addition of such sanctions by the legislative authority itself would be open to serious constitutional objection.

To compel print media companies to donate "Comelec-space" of the dimensions specified in Section 2 of Resolution No. 2772 (not less than one-half page), amounts to "taking" of private personal property for public use or purposes. Section 2 failed to specify the intended frequency of such compulsory "donation:" only once during the period from 6 March 1995 (or 21 March 1995) until 12 May 1995? or everyday or once a week? or as often as Comelec may direct during the same period? The extent of the taking or deprivation is not insubstantial; this is not a case of a de minimis temporary limitation or restraint upon the use of private property. The monetary value of the compulsory "donation," measured by the advertising rates ordinarily charged by newspaper publishers whether in cities or in non-urban areas, may be very substantial indeed.

The taking of print space here sought to be effected may first be appraised under the rubric of expropriation of private personal property for public use. The threshold requisites for a lawful taking of private property for public use need to be examined here: one is the necessity for the taking; another is the legal authority to effect the taking. The element of necessity for the taking has not been shown by respondent Comelec. It has not been suggested that the members of PPI are unwilling to sell print space at their normal rates to Comelec for election purposes. Indeed, the unwillingness or reluctance of Comelec to buy print space lies at the heart of the problem. 3Similarly, it has not been suggested, let alone demonstrated, that Comelec has been granted the power of eminent domain either by the Constitution or by the legislative authority. A reasonable relationship between that power and the enforcement and administration of election laws by Comelec must be shown; it is not casually to be assumed.

That the taking is designed to subserve "public use" is not contested by petitioner PPI. We note only that, under Section 3 of Resolution No. 2772, the free "Comelec space" sought by the respondent Commission would be used not only for informing the public about the identities, qualifications and programs of government of candidates for elective office but also for "dissemination of vital election information" (including, presumably, circulars, regulations, notices, directives, etc. issued by Comelec). It seems to the Court a matter of judicial notice that government offices and agencies (including the Supreme Court) simply purchase print space, in the ordinary course of events, when their rules and regulations, circulars, notices and so forth need officially to be brought to the attention of the general public.

The taking of private property for public use is, of course, authorized by the Constitution, but not without payment of "just compensation" (Article III, Section 9). And apparently the necessity of paying compensation for "Comelec space" is precisely what is sought to be avoided by respondent Commission, whether Section 2 of Resolution No. 2772 is read as petitioner PPI reads it, as an assertion of authority to require newspaper publishers to "donate" free print space for Comelec purposes, or as an exhortation, or perhaps an appeal, to publishers to donate free print space, as Section 1 of Resolution No. 2772-A attempts to suggest. There is nothing at all to prevent newspaper and magazine publishers from voluntarily giving free print space to Comelec for the purposes contemplated in Resolution No. 2772. Section 2 of Resolution No. 2772 does not, however, provide a constitutional basis for compelling publishers, against their will, in the kind of factual context here present, to provide free print space for Comelec purposes. Section 2 does not constitute a valid exercise of the power of eminent domain.

We would note that the ruling here laid down by the Court is entirely in line with the theory of democratic representative government. The economic costs of informing the general public about the qualifications and programs of those seeking elective office are most appropriately distributed as widely as possible throughout our society by the utilization of public funds, especially funds raised by taxation, rather than cast solely on one small sector of society, i.e., print media enterprises. The benefits which flow from a heightened level of information on and the awareness of the electoral process are commonly thought to be community-wide; the burdens should be allocated on the same basis.

As earlier noted, the Solicitor General also contended that Section 2 of Resolution No. 2772, even if read as compelling publishers to "donate" "Comelec space, " may be sustained as a valid exercise of the police power of the state. This argument was, however, made too casually to require prolonged consideration on our part. Firstly, there was no effort (and apparently no inclination on the part of Comelec) to show that the police power — essentially a power of legislation — has been constitutionally delegated to respondent Commission. 4 Secondly, while private property may indeed be validly taken in the legitimate exercise of the police power of the state, there was no attempt to show compliance in the instant case with the requisites of a lawful taking under the police power.5

Section 2 of Resolution No. 2772 is a blunt and heavy instrument that purports, without a showing of existence of a national emergency or other imperious public necessity, indiscriminately and without regard to the individual business condition of particular newspapers or magazines located in differing parts of the country, to take private property of newspaper or magazine publishers. No attempt was made to demonstrate that a real and palpable or urgent necessity for the taking of print space confronted the Comelec and that Section 2 of Resolution No. 2772 was itself the only reasonable and calibrated response to such necessity available to the Comelec. Section 2 does not constitute a valid exercise of the police power of the State.

We turn to Section 8 of Resolution No. 2772, which needs to be quoted in full again:

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Sec. 8. Undue Reference to Candidates/Political Parties in Newspapers. — No newspaper or publication shall allow to be printed or published in the news, opinion, features, or other sections of the newspaper or publication accounts or comments which manifestly favor or oppose any candidate or political party by unduly or repeatedly referring to or including therein said candidate or political party. However, unless the facts and circumstances clearly indicate otherwise, the Commission will respect the determination by the publisher and/or editors of the newspapers or publications that the accounts or views published are significant, newsworthy and of public interest.

It is not easy to understand why Section 8 was included at all in Resolution No. 2772. In any case, Section 8 should be viewed in the context of our decision in National Press Club v. Commission on Elections. 6 There the Court sustained the constitutionality of Section 11 (b) of R.A. No. 6646, known as the Electoral Reforms Law of 1987, which prohibits the sale or donation of print space and airtime for campaign or other political purposes, except to the Comelec. In doing so, the Court carefully distinguished (a) paid political advertisements which are reached by the prohibition of Section 11 (b), from (b) the reporting of news, commentaries and expressions of belief or opinion by reporters, broadcasters, editors, commentators or columnists which fall outside the scope of Section 11 (b) and which are protected by the constitutional guarantees of freedom of speech and of the press:

Secondly, and more importantly, Section 11 (b) is limited in its scope of application. Analysis ofSection 11 (b) shows that it purports to apply only to the purchase and sale, including purchase and sale disguised as a donation, of print space and air time for campaign or other political purposes.Section 11 (b) does not purport in any way to restrict the reporting by newspapers or radio ortelevision stations of news or news-worthy events relating to candidates, their qualifications, political parties and programs of government. Moreover, Section 11 (b) does not reach commentaries and expressions of belief or opinion by reporters or broadcaster or editors or commentators or columnists in respect of candidates, their qualifications, and programs and so forth, so long at least as such comments, opinions and beliefs are not in fact advertisements for particular candidates covertly paid for. In sum, Section 11 (b) is not to be read as reaching any report or commentary or other coverage that, in responsible media, is not paid for by candidates for political office. We read Section 11 (b) as designed to cover only paid political advertisements of particular candidates.

The above limitation in scope of application of Section 11 (b) — that it does not restrict either the reporting of or the expression of belief or opinion or comment upon the qualifications and programs and activities of any and all candidates for office — constitutes the critical distinction which must be made between the instant case and that of Sanidad v. Commission on Elections. . . . 7 (Citations omitted; emphasis supplied)

Section 8 of Resolution No. 2772 appears to represent the effort of the Comelec to establish a guideline for implementation of the above-quoted distinction and doctrine in National Press Club an effort not blessed with evident success. Section 2 of Resolution No. 2772-A while possibly helpful, does not add substantially to the utility of Section 8 of Resolution No. 2772. The distinction between paid political advertisements on the one hand and news reports, commentaries and expressions of belief or opinion by reporters, broadcasters, editors, etc. on the other hand, can realistically be given operative meaning only in actual cases or controversies, on a case-to-case basis, in terms of very specific sets of facts.

At all events, the Court is bound to note that PPI has failed to allege any specific affirmative action on the part of Comelec designed to enforce or implement Section 8. PPI has not claimed that it or any of its members has sustained actual or imminent injury by reason of Comelec action under Section 8. Put a little differently, the Court considers that the precise constitutional issue here sought to be raised — whether or not Section 8 of Resolution No. 2772 constitutes a permissible exercise of the Comelec's power under Article IX, Section 4 of the Constitution to

supervise or regulate the enjoyment or utilization of all franchise or permits for the operation of — media of communication or information — [for the purpose of ensuring] equal opportunity, time and space, and the right of reply, including reasonable, equal rates therefore, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly honest, peaceful and credible elections —

is not ripe for judicial review for lack of an actual case or controversy involving, as the very lis mota thereof, the constitutionality of Section 8.

Summarizing our conclusions:

1. Section 2 of Resolution No. 2772, in its present form and as interpreted by Comelec in its 22 March 1995 letter directives, purports to require print media enterprises to "donate" free print space to Comelec. As such, Section 2 suffers from a fatal constitutional vice and must be set aside and nullified.

2. To the extent it pertains to Section 8 of Resolution No. 2772, the Petition for Certiorari and Prohibition must be dismissed for lack of an actual, justiciable case or controversy.

WHEREFORE, for all the foregoing, the Petition for Certiorari and Prohibition is GRANTED in part and Section 2 of Resolution No. 2772 in its present form and the related letter-directives dated 22 March 1995 are hereby SET ASIDE as null and void, and the Temporary Restraining Order is hereby MADE PERMANENT. The Petition is DISMISSED in part, to the extent it relates to Section 8 of Resolution No. 2772. No pronouncement as to costs.

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur.

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Quiason, J., is on leave.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 147571       May 5, 2001

SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING CORPORATION, doing business as MANILA STANDARD, petitioners, vs.COMMISSION ON ELECTIONS, respondent.

MENDOZA, J.:

Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social research institution conducting surveys in various fields, including economics, politics, demography, and social development, and thereafter processing, analyzing, and publicly reporting the results thereof. On the other hand, petitioner Kamahalan Publishing Corporation publishes the Manila Standard, a newspaper of general circulation, which features news- worthy items of information including election surveys. 1âwphi1.nêt

Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing §5.4 of RA. No.9006 (Fair Election Act), which provides:

Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days be- fore an election.

The term "election surveys" is defined in §5.1 of the law as follows:

Election surveys refer to the measurement of opinions and perceptions of the voters as regards a candidate's popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters preference for candidates or publicly discussed issues during the campaign period (hereafter referred to as "Survey").

The implement §5.4, Resolution 3636, §24(h), dated March I, 2001, of the COMELEC enjoins –

Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days be- fore an election.

Petitioner SWS states that it wishes to conduct an election survey throughout the period of the elections both at the national and local levels and release to the media the results of such survey as well as publish them directly. Petitioner Kamahalan Publishing Corporation, on the other hand, states that it intends to publish election survey results up to the last day of the elections on May 14,2001.

Petitioners argue that the restriction on the publication of election survey results constitutes a prior restraint on the exercise of freedom of speech without any clear and present danger to justify such restraint. They claim that SWS and other pollsters conducted and published the results of surveys prior to the 1992, 1995, and 1998 elections up to as close as two days before the election day without causing confusion among the voters and that there is neither empirical nor historical evidence to support the conclusion that there is an immediate and inevitable danger to tile voting process posed by election surveys. They point out that no similar restriction is imposed on politicians from explaining their opinion or on newspapers or broadcast media from writing and publishing articles concerning political issues up to the day of the election. Consequently, they contend that there is no reason for ordinary voters to be denied access to the results of election surveys, which are relatively objective. 1âwphi1.nêt

Respondent Commission on Elections justifies the restrictions in §5.4 of R.A. No. 9006 as necessary to prevent the manipulation and corruption of the electoral process by unscrupulous and erroneous surveys just before the election. It contends that (1) the prohibition on the publication of election survey results during the period proscribed by law bears a rational connection to the objective of the law, i.e., the prevention of the debasement of the electoral process resulting from manipulated surveys, bandwagon effect, and absence of reply; (2) it is narrowly tailored to meet the "evils" sought to be prevented; and (3) the impairment of freedom of expression is minimal, the restriction being limited both in duration, i.e., the last 15 days before the national election and the last 7 days before a local election, and in scope as it does not prohibit election survey results but only require timeliness. Respondent claims that in National Press Club v. COMELEC,1 a total ban on political advertisements, with candidates being merely allocated broadcast time during the so-called COMELEC space or COMELEC hour, was upheld by this Court. In contrast, according to respondent, it states that the prohibition in §5.4 of RA. No. 9006 is much more limited.

For reasons hereunder given, we hold that §5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of freedom of speech, expression, and the press.

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To be sure, §5.4Iays a prior restraint on freedom of speech, expression, and the press prohibiting the publication of election survey results affecting candidates within the prescribed periods of fifteen (15) days immediately preceding a national election seven (7) days before a local election. Because of tile preferred status of tile constitutional rights of speech, expression, and he press, such a measure is vitiated by a weighty presumption of invalidity.2 Indeed, any system of prior restraints of expression comes to this Court bearing a heavy Presumption against its constitutional validity. ...The Government thus carries a heavy burden of showing justification for in enforcement of such restraint. "'3 There, thus a reversal of the normal presumption of validity that inheres in every legislation.

Nor may it be argued that because of Art. IX-C, §4 of the Constitution, which gives the COMELEC supervisory power to regulate the enjoyment or utilization of franchise for the operation of media of communication, no presumption of invalidity attaches to a measure like §5.4. For as we have pointed out in sustaining tile ban on media political advertisements, the grant of power to the COMELEC under Art. IX-C, §4 is limited to ensuring "equal opportunity, time, space, and the right to reply" as well as uniform and reasonable rates of charges for the use of such media facilities "public information campaigns and forums among candidates."4 This Court stated:

The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises in respect of exercises of supervisory or regulatory authority on the part of the Comelec for the Purpose of securing equal opportunity among candidates for political office, although such supervision or regulation may result in some limitation of the rights of free speech and free press.5

MR JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present danger for determining the validity of §5.4. Indeed, as has been pointed out in Osmeña v. COMELEC,6 this test was originally formulated for the criminal law and only later appropriated for free speech cases. Hence, while it may be useful for determining the validity of laws dealing with inciting to sedition or incendiary speech, it may not be adequate for such regulations as the one in question. For such a test is concerned with questions of the gravity and imminence of the danger as basis for curtailing free speech, which is not the case of §5.4 and similar regulations.

Instead, MR JUSTICE KAPUNAN purports to engage in a form of balancing by "weighing and balancing the circumstances to determine whether public interest [in free, orderly, honest, peaceful and credible elections] is served by the regulation of the free enjoyment of the rights" (page 7). After canvassing the reasons for the prohibition, i.e., to prevent last-minute pressure on voters, the creation of bandwagon effect to favor candidates, misinformation, the junking" of weak and "losing" candidates by their parties, and the form of election cheating called "dagdag-bawas" and invoking the State's power to supervise media of information during the election period (pages 11-16), the dissenting opinion simply concludes:

Viewed in the light of the legitimate and significant objectives of Section 5.4, It may be seen that its limitingimpact on the rights of free speech and of the press is not unduly repressive or unreasonable. In Indeed, it is a mere restriction, not an absolute prohibition, on the publication of election surveys. It is limited in duration; it applies only during the period when the voters are presumably contemplating whom they should elect and when they are most susceptible to such unwarranted persuasion. These surveys may be published thereafter. (Pages 17-18)

The dissent does not, however, show why, on balance, these considerations should outweigh the value of freedom of expression. Instead, reliance is placed on Art. IX-C, §4. As already stated, the purpose of Art. IX-C, §4 is to "ensure equal opportunity, time, and space and the right of reply, including reasonable, equal rates therefor for public information campaigns and forums among candidates. " Hence the validity of the ban on media advertising. It is noteworthy that R.A. No. 9006, § 14 has lifted the ban and now allows candidates to advertise their candidacies in print and broadcast media. Indeed, to sustain the ban on the publication of survey results would sanction the censorship of all speaking by candidates in an election on the ground that the usual bombasts and hyperbolic claims made during the campaigns can confuse voters and thus debase the electoral process.

In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc balancing predictably results in sustaining the challenged legislation and leaves freedom of speech, expression, and the press with little protection. For anyone who can bring a plausible justification forward can easily show a rational connection between the statute and a legitimate governmental purpose. In contrast, the balancing of interest undertaken by then Justice Castro in Gonzales v. COMELEC,7 from which the dissent in this case takes its cue, was a strong one resulting in his conclusion that , §50-B of R.A. No. 4880, which limited the period of election campaign and partisan political activity, was an unconstitutional abridgment of freedom of expression.

Nor can the ban on election surveys be justified on the ground that there are other countries - 78, according to the Solicitor General, while the dissent cites 28 - which similarly impose restrictions on the publication of election surveys. At best this survey is inconclusive. It is note worthy that in the United States no restriction on the publication of election survey results exists. It cannot be argued that this is because the United States is a mature democracy. Neither are there laws imposing an embargo on survey results, even for a limited period, in other countries. As pointed out by petitioners, the United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland, Ireland, Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden, and Ukraine, some of which are no older nor more mature than the Philippines in political development, do not restrict the publication of election survey results.

What test should then be employed to determine the constitutional validity of §5.4? The United States Supreme Court, through Chief Justice Warren, held in United States v. O 'Brien:

[A] Government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms [of speech, expression and press] is no greater than is essential to the furtherance of that interest.8

This is so far the most influential test for distinguishing content-based from content neutral regulations and is said to have "become canonical in the review of such laws."9 is noteworthy that the O 'Brien test has been applied by this Court in at least two cases.10

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Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if such governmental interest is "not unrelated to the Expression of free expression." Moreover, even if the purpose is unrelated to the suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to achieve the governmental purpose in question.

Our inquiry should accordingly focus on these two considerations as applied to §5.4.

>First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the causal connection of expression to the asserted governmental interest makes such interest "not related to the suppression of free expression." By prohibiting the publication of election survey results because of the possibility that such publication might undermine the integrity of the election, §5.4 actually suppresses a whole class of expression, while allowing the expression of opinion concerning the same subject matter by newspaper columnists, radio and TV commentators, armchair theorists, and other opinion takers. In effect, §5.4 shows a bias for a particular subject matter, if not viewpoint, by referring personal opinion to statistical results. The constitutional guarantee of freedom of expression means that "the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."11 The inhibition of speech should be upheld only if the expression falls within one of the few unprotected categories dealt with in Chaplinsky v. New Hampshire, 12 thus:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. [S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality

Nor is there justification for the prior restraint which §5.4Iays on protected speech. Near v. Minnesota,13 it was held:

[The] protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases…. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and overthrow by force of orderly government…

Thus, contrary to the claim of the Solicitor General, the prohibition imposed by §5.4 cannot be justified on the ground that it is only for a limited period and is only incidental. The prohibition may be for a limited time, but the curtailment of the right of expression is direct, absolute, and substantial. It constitutes a total suppression of a category of speech and is not made less so because it is only for a period of fifteen (15) days immediately before a national election and seven (7) days immediately before a local election. ..

This sufficiently distinguishes §5.4 from R.A. No. 6646, §11(b), which this Court found to be valid in National Press Club v. COMELEC,14 and Osmeña v. COMELEC.15 For the ban imposed by R.A. No. 6646, §11(b) is not only authorized by a specific constitutional provision,16 but it also provided an alternative so that, as this Court pointed out in Osmeña, there was actually no ban but only a substitution of media advertisements by the COMELEC space and COMELEC hour.

Second. Even if the governmental interest sought to be promoted is unrelated to the suppression of speech and the resulting restriction of free expression is only incidental, §5.4 nonetheless fails to meet criterion [4] of the O'Brien test, namely, that the restriction be not greater than is necessary to further the governmental interest. As already stated, §5.4 aims at the prevention of last-minute pressure on voters, the creation of bandwagon effect, "junking" of weak or "losing" candidates, and resort to the form of election cheating called "dagdag-bawas." Praiseworthy as these aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental right of expression, when such aim can be more narrowly pursued by punishing unlawful acts, rather than speechbecause of apprehension that such speech creates the danger of such evils. Thus, under the Administrative Code of 1987,17 the COMELEC is given the power:

To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or false election propaganda,   after due notice and hearing.

This is surely a less restrictive means than the prohibition contained in §5.4. Pursuant to this power of the COMELEC, it can confiscate bogus survey results calculated to mislead voters. Candidates can have their own surveys conducted. No right of reply can be invoked by others. No principle of equality is involved. It is a free market to which each candidate brings his ideas. As for the purpose of the law to prevent bandwagon effects, it is doubtful whether the Government can deal with this natural-enough tendency of some voters. Some voters want to be identified with the "winners." Some are susceptible to the herd mentality. Can these be legitimately prohibited by suppressing the publication of survey results, which are a form of expression? It has been held that "[mere] legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions."18

To summarize then, we hold that §5.4 is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total suppression of a category of expression even though such suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than suppression of freedom of expression.

On the other hand, the COMELEC contends that under Art. IX-A, §7 of the Constitution, its decisions, orders, or resolution may be reviewed by this Court only certiorari. The flaws in this argument is that it assumes that its Resolution 3636, March 1, 2001 is a

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"decision, order, or resolution" within the meaning of Art. IX-A, §7. Indeed, counsel for COMELEC maintain that Resolution 3636 was "rendered" by the Commission. However, the Resolution does not purport to adjudicate the right of any party. It is not an exercise by the COMELEC of its adjudicatory power to settle the claims of parties. To the contrary, Resolution 3636 clearly states that it is promulgated to implement the provisions of R.A. No. 9006. Hence, there is no basis for COMELEC's claim that this petition for prohibition is inappropriate. Prohibition has been fund appropriate for testing the constitutionality of various election laws, rules, and regulations.19

WHEREFORE, the petition for prohibited GRANTED and §5.4 of R.A. No. 9006 §24(h) of COMELEC Resolution 3636, March 1, 2001, are declared unconstitutional. 1âwphi1.nêt

SO ORDERED.1âwphi1.nêt

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-44640 October 12, 1976

PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner, vs.HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL TREASURER, respondents.

G.R. No. L-44684. October 12,1976

VICENTE M. GUZMAN, petitioner, vs.COMMISSION ELECTIONS, respondent.

G.R. No. L-44714. October 12,1976

RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN, petitioners, vs.HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL TREASURER, respondents.

MARTIN, J,:

The capital question raised in these prohibition suits with preliminary injunction relates to the power of the incumbent President of the Philippines to propose amendments to the present Constitution in the absence of the interim National Assembly which has not been convened.

On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No. 991 calling for a national referendum on October 16, 1976 for the Citizens Assemblies ("barangays") to resolve, among other things, the issues of martial law, the I . assembly, its replacement, the powers of such replacement, the period of its existence, the length of the period for tile exercise by the President of his present powers.1

Twenty days after or on September 22, 1976, the President issued another related decree, Presidential Decree No. 1031, amending the previous Presidential Decree No. 991, by declaring the provisions of presidential Decree No. 229 providing for the manner of voting and canvass of votes in "barangays" (Citizens Assemblies) applicable to the national referendum-plebiscite of October 16, 1976. Quite relevantly, Presidential Decree No. 1031 repealed Section 4, of Presidential Decree No. 991, the full text of which (Section 4) is quoted in the footnote below. 2

On the same date of September 22, 1976, the President issued Presidential Decree No. 1033, stating the questions to be submitted to the people in the referendum-plebiscite on October 16, 1976. The Decree recites in its "whereas" clauses that the people's continued opposition to the convening of the National Assembly evinces their desire to have such body abolished and replaced thru a constitutional amendment, providing for a legislative body, which will be submitted directly to the people in the referendum-plebiscite of October 16.

The questions ask, to wit:

(1) Do you want martial law to be continued?

(2) Whether or not you want martial law to be continued, do you approve the following amendments to the Constitution? For the purpose of the second question, the referendum shall have the effect of a plebiscite within the contemplation of Section 2 of Article XVI of the Constitution.

PROPOSED AMENDMENTS:

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1. There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa. Members of the interim Batasang Pambansa which shall not be more than 120, unless otherwise provided by law, shall include the incumbent President of the Philippines, representatives elected from the different regions of the nation, those who shall not be less than eighteen years of age elected by their respective sectors, and those chosen by the incumbent President from the members of the Cabinet. Regional representatives shall be apportioned among the regions in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio while the sectors shall be determined by law. The number of representatives from each region or sector and the, manner of their election shall be prescribed and regulated by law.

2. The interim Batasang Pambansa shall have the same powers and its members shall have the same functions, responsibilities, rights, privileges, and disqualifications as the interim National Assembly and the regular National Assembly and the members thereof. However, it shall not exercise the power provided in Article VIII, Section 14(l) of the Constitution.

3. The incumbent President of the Philippines shall, within 30 days from the election and selection of the members, convene the interim Batasang Pambansa and preside over its sessions until the Speaker shall have been elected. The incumbent President of the Philippines shall be the Prime Minister and he shall continue to exercise all his powers even after the interim Batasang Pambansa is organized and ready to discharge its functions and likewise he shall continue to exercise his powers and prerogatives under the nineteen hundred and thirty five. Constitution and the powers vested in the President and the Prime Minister under this Constitution.

4. The President (Prime Minister) and his Cabinet shall exercise all the powers and functions, and discharge the responsibilities of the regular President (Prime Minister) and his Cabinet, and shall be subject only to such disqualifications as the President (Prime Minister) may prescribe. The President (Prime Minister) if he so desires may appoint a Deputy Prime Minister or as many Deputy Prime Ministers as he may deem necessary.

5. The incumbent President shall continue to exercise legislative powers until martial law shall have been lifted.

6. Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders or letters of instructions, which shall form part of the law of the land.

7. The barangays and sanggunians shall continue as presently constituted but their functions, powers, and composition may be altered by law.

Referenda conducted thru the barangays and under the Supervision of the Commission on Elections may be called at any time the government deems it necessary to ascertain the will of the people regarding any important matter whether of national or local interest.

8. All provisions of this Constitution not inconsistent with any of these amendments shall continue in full force and effect.

9. These amendments shall take effect after the incumbent President shall have proclaimed that they have been ratified by I majority of the votes cast in the referendum-plebiscite."

The Commission on Elections was vested with the exclusive supervision and control of the October 1976 National Referendum-Plebiscite.

On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and son, commenced L-44640 for Prohibition with Preliminary Injunction seeking to enjoin the Commission on Elections from holding and conducting the Referendum Plebiscite on October 16; to declare without force and effect Presidential Decree Nos. 991 and 1033, insofar as they propose amendments to the Constitution, as well as Presidential Decree No. 1031, insofar as it directs the Commission on Elections to supervise, control, hold, and conduct the Referendum-Plebiscite scheduled on October 16, 1976.

Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to the incumbent President to exercise the constituent power to propose amendments to the new Constitution. As a consequence, the Referendum-Plebiscite on October 16 has no constitutional or legal basis.

On October 5, 1976, the Solicitor General filed the comment for respondent Commission on Elections, The Solicitor General principally maintains that petitioners have no standing to sue; the issue raised is political in nature, beyond judicial cognizance of this Court; at this state of the transition period, only the incumbent President has the authority to exercise constituent power; the referendum-plebiscite is a step towards normalization.

On September 30, 1976, another action for Prohibition with Preliminary Injunction, docketed as L-44684, was instituted by VICENTE M. GUZMAN, a delegate to the 1971 Constitutional Convention, asserting that the power to propose amendments to, or revision of the Constitution during the transition period is expressly conferred on the interim National Assembly under Section 16, Article XVII of the Constitution.3

Still another petition for Prohibition with Preliminary Injunction was filed on October 5, 1976 by RAUL M. GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN, docketed as L- 44714, to restrain the implementation of Presidential Decrees relative to the forthcoming Referendum-Plebiscite of October 16.

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These last petitioners argue that even granting him legislative powers under Martial Law, the incumbent President cannot act as a constituent assembly to propose amendments to the Constitution; a referendum-plebiscite is untenable under the Constitutions of 1935 and 1973; the submission of the proposed amendments in such a short period of time for deliberation renders the plebiscite a nullity; to lift Martial Law, the President need not consult the people via referendum; and allowing 15-.year olds to vote would amount to an amendment of the Constitution, which confines the right of suffrage to those citizens of the Philippines 18 years of age and above.

We find the petitions in the three entitled cases to be devoid of merit.

I

Justiciability of question raised.

1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad and Pablito V. Sanidad) possess locus standi to challenge the constitutional premise of Presidential Decree Nos. 991, 1031, and 1033. It is now an ancient rule that the valid source of a stature Presidential Decrees are of such nature-may be contested by one who will sustain a direct injuries as a in result of its enforcement. At the instance of taxpayers, laws providing for the disbursement of public funds may be enjoined, upon the theory that the expenditure of public funds by an officer of the State for the purpose of executing an unconstitutional act constitutes a misapplication of such funds. 4 The breadth of Presidential Decree No. 991 carries all appropriation of Five Million Pesos for the effective implementation of its purposes. 5 Presidential Decree No. 1031 appropriates the sum of Eight Million Pesos to carry out its provisions. 6 The interest of the aforenamed petitioners as taxpayers in the lawful expenditure of these amounts of public money sufficiently clothes them with that personality to litigate the validity of the Decrees appropriating said funds. Moreover, as regards taxpayer's suits, this Court enjoys that open discretion to entertain the same or not. 7 For the present case, We deem it sound to exercise that discretion affirmatively so that the authority upon which the disputed Decrees are predicated may be inquired into.

2. The Solicitor General would consider the question at bar as a pure political one, lying outside the domain of judicial review. We disagree. The amending process both as to proposal and ratification, raises a judicial question. 8 This is especially true in cases where the power of the Presidency to initiate the of normally exercised by the legislature, is seriously doubted. Under the terms of the 1973 Constitution, the power to propose amendments o the constitution resides in the interim National Assembly in the period of transition (See. 15, Transitory provisions). After that period, and the regular National Assembly in its active session, the power to propose amendments becomes ipso facto the prerogative of the regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973 constitution). The normal course has not been followed. Rather than calling the National Assembly to constitute itself into a constituent assembly the incumbent President undertook the proposal of amendments and submitted the proposed amendments thru Presidential Decree 1033 to the people in a Referendum-Plebiscite on October 16. Unavoidably, the regularity regularity of the procedure for amendments, written in lambent words in the very Constitution sought to be amended, raises a contestable issue. The implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to have the force and effect of legislation are assailed as invalid, thus the issue of the validity of said Decrees is plainly a justiciable one, within the competence of this Court to pass upon. Section 2 (2), Article X of the new Constitution provides: "All cases involving the constitutionality of a treaty, executive agreement, or law may shall be heard and decided by the Supreme Court en banc and no treaty, executive agreement, or law may be declared unconstitutional without the concurrence of at least ten Members. ..." The Supreme Court has the last word in the construction not only of treaties and statutes, but also of the Constitution itself The amending, like all other powers organized in the Constitution, is in form a delegated and hence a limited power, so that the Supreme Court is vested with that authorities to determine whether that power has been discharged within its limits.

Political questions are neatly associated with the wisdom, of the legality of a particular act. Where the vortex of the controversy refers to the legality or validity of the contested act, that matter is definitely justiciable or non-political. What is in the heels of the Court is not the wisdom of the act of the incumbent President in proposing amendments to the Constitution, but his constitutional authority to perform such act or to assume the power of a constituent assembly. Whether the amending process confers on the President that power to propose amendments is therefore a downright justiciable question. Should the contrary be found, the actuation of the President would merely be a brutum fulmen. If the Constitution provides how it may be amended, the judiciary as the interpreter of that Constitution, can declare whether the procedure followed or the authority assumed was valid or not. 10

We cannot accept the view of the Solicitor General, in pursuing his theory of non-justiciability, that the question of the President's authority to propose amendments and the regularity of the procedure adopted for submission of the proposal to the people ultimately lie in the judgment of the A clear Descartes fallacy of vicious circle. Is it not that the people themselves, by their sovereign act, provided for the authority and procedure for the amending process when they ratified the present Constitution in 1973? Whether, therefore, the constitutional provision has been followed or not is the proper subject of inquiry, not by the people themselves of course who exercise no power of judicial but by the Supreme Court in whom the people themselves vested that power, a power which includes the competence to determine whether the constitutional norms for amendments have been observed or not. And, this inquiry must be done a prior not a posterior i.e., before the submission to and ratification by the people.

Indeed, the precedents evolved by the Court or, prior constitutional cases underline the preference of the Court's majority to treat such issue of Presidential role in the amending process as one of non-political impression. In the Plebiscite Cases, 11 the contention of the Solicitor General that the issue on the legality of Presidential Decree No. 73 "submitting to the Pilipino people (on January 15, 1973) for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention and appropriating fund s therefore "is a political one, was rejected and the Court unanimously considered the issue as justiciable in nature. Subsequently in the Ratification Cases 12 involving the issue of whether or not the validity of Presidential Proclamation No. 1102. announcing the Ratification by the Filipino people of the constitution proposed by the 1971 Constitutional Convention," partakes of the nature of a political question, the affirmative stand of' the Solicitor General was dismissed, the Court ruled that the question raised is justiciable. Chief Justice Concepcion, expressing the majority view, said, Thus, in the aforementioned plebiscite cases, We rejected the theory of the respondents therein that the question whether Presidential Decree No. 73 calling a plebiscite to be held on January

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15, 1973, for the ratification or rejection of the proposed new Constitution, was valid or not, was not a proper subject of judicial inquiry because, they claimed, it partook of a political nature, and We unanimously declared that the issue was a justiciable one. With Identical unanimity. We overruled the respondent's contention in the 1971 habeas corpus cases, questioning Our authority to determine the constitutional sufficiency of the factual bases of the Presidential proclamation suspending the privilege of the writ of habeas corpus on August 21, 1971, despite the opposite view taken by this Court in Barcelon vs. Baker and Montenegro vs. Castaneda, insofar as it adhered to the former case, which view We, accordingly, abandoned and refused to apply. For the same reason, We did not apply and expressly modified, in Gonzales vs. Commission on Elections, the political-question theory adopted in Mabanag vs. Lopez Vito." 13 The return to Barcelon vs. Baker and Mabanag vs. Lopez Vito, urged by the Solicitor General, was decisively refused by the Court. Chief Justice Concepcion continued: "The reasons adduced in support thereof are, however, substantially the same as those given in support on the political question theory advanced in said habeas corpus and plebiscite cases, which were carefully considered by this Court and found by it to be legally unsound and constitutionally untenable. As a consequence. Our decisions in the aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis which gained added weight by its virtual reiteration."

II

The amending process as laid out

in the new Constitution.

1. Article XVI of the 1973 Constitution on Amendments ordains:

SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed by the National Assembly upon a vote of three-fourths of all its Members, or by a constitutional convention. (2) The National Assembly may, by a vote of two-thirds of all its Members, call a constitutional convention or, by a majority vote of all its Members, submit the question of calling such a convention to the electorate in an election.

SECTION 2. Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not later than three months after the approval of such amendment or revision.

In the present period of transition, the interim National Assembly instituted in the Transitory Provisions is conferred with that amending power. Section 15 of the Transitory Provisions reads:

SECTION 15. The interim National Assembly, upon special call by the interim Prime Minister, may, by a majority vote of all its Members, propose amendments to this Constitution. Such amendments shall take effect when ratified in accordance with Article Sixteen hereof.

There are, therefore, two periods contemplated in the constitutional life of the nation, i.e., period of normalcy and period of transition. In times of normally, the amending process may be initiated by the proposals of the (1) regular National Assembly upon a vote of three-fourths of all its members; or (2) by a Constitutional Convention called by a vote of two-thirds of all the Members of the National Assembly. However the calling of a Constitutional Convention may be submitted to the electorate in an election voted upon by a majority vote of all the members of the National Assembly. In times of transition, amendments may be proposed by a majority vote of all the Members of the National Assembly upon special call by the interim Prime Minister,.

2. This Court in Aquino v. COMELEC," had already settled that the incumbent President is vested with that prerogative of discretion as to when he shall initially convene the interim National Assembly. Speaking for the majority opinion in that case, Justice Makasiar said: "The Constitutional Convention intended to leave to the President the determination of the time when he shall initially convene the interim National Assembly, consistent with the prevailing conditions of peace and order in the country." Concurring, Justice Fernandez, himself a member of that Constitutional Convention, revealed: "(W)hen the Delegates to the Constitutional Convention voted on the Transitory Provisions, they were aware of the fact that under the same, the incumbent President was given the discretion as to when he could convene the interim National Assembly; it was so stated plainly by the sponsor, Delegate Yaneza; as a matter of fact, the proposal that it be convened 'immediately', made by Delegate Pimentel (V) was rejected. The President's decision to defer the convening of the interim National Assembly soon found support from the people themselves. In the plebiscite of January 10-15, 1973, at which the ratification of the 1973 Constitution was submitted, the people voted against the convening of the interim National Assembly. In the referendum of July 24, 1973, the Citizens Assemblies ("bagangays") reiterated their sovereign will to withhold the convening of the interim National Assembly. Again, in the referendum of February 27, 1975, the proposed question of whether the interim National Assembly shall be initially convened was eliminated, because some of the members of Congress and delegates of the Constitutional Convention, who were deemed automatically members of the I interim National Assembly, were against its inclusion since in that referendum of January, 1973, the people had already resolved against it.

3. In sensu strictiore, when the legislative arm of the state undertakes the proposals of amendment to a Constitution, that body is not in the usual function of lawmaking. lt is not legislating when engaged in the amending process.16 Rather, it is exercising a peculiar power bestowed upon it by the fundamental charter itself. In the Philippines, that power is provided for in Article XVI of the 1973 Constitution (for the regular National Assembly) or in Section 15 of the Transitory Provisions (for the National Assembly). While ordinarily it is the business of the legislating body to legislate for the nation by virtue of constitutional conferment amending of the Constitution is not legislative in character. In political science a distinction is made between constitutional content of an organic character and that of a legislative character'. The distinction, however, is one of policy, not of law. 17 Such being the case, approval of the President of any proposed amendment is a misnomer 18 The prerogative of the President to approve or disapprove applies only to the ordinary cases of legislation. The President has nothing to do with proposition or adoption of amendments to the Constitution. 19

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III

Concentration of Powers

in the President during

crisis government.

1. In general, the governmental powers in crisis government the Philippines is a crisis government today are more or less concentrated in the President. 20 According to Rossiter, "(t)he concentration of government power in a democracy faced by an emergency is a corrective to the crisis inefficiencies inherent in the doctrine of the separation of powers. In most free states it has generally been regarded as imperative that the total power of the government be parceled out among three mutually independent branches executive, legislature, and judiciary. It is believed to be destructive of constitutionalism if any one branch should exercise any two or more types of power, and certainly a total disregard of the separation of powers is, as Madison wrote in the Federalist, No. 47, 'the very definition of tyranny.' In normal times the separation of powers forms a distinct obstruction to arbitrary governmental action. By this same token, in abnormal times it may form an insurmountable barrier to a decisive emergency action in behalf of the state and its independent existence. There are moments in the life of any government when all powers must work together in unanimity of purpose and action, even if this means the temporary union of executive, legislative, and judicial power in the hands of one man. The more complete the separation of powers in a constitutional system, the more difficult and yet the more necessary will be their fusion in time of crisis. This is evident in a comparison of the crisis potentialities of the cabinet and presidential systems of government. In the former the all-important harmony of legislature and executive is taken for granted; in the latter it is neither guaranteed nor to be to confidently expected. As a result, cabinet is more easily established and more trustworthy than presidential dictatorship. The power of the state in crisis must not only be concentrated and expanded; it must also be freed from the normal system of constitutional and legal limitations. 21 John Locke, on the other hand, claims for the executive in its own right a broad discretion capable even of setting aside the ordinary laws in the meeting of special exigencies for which the legislative power had not provided. 22 The rationale behind such broad emergency powers of the Executive is the release of the government from "the paralysis of constitutional restrains" so that the crisis may be ended and normal times restored.

2. The presidential exercise of legislative powers in time of martial law is now a conceded valid at. That sun clear authority of the President is saddled on Section 3 (pars. 1 and 2) of the Transitory Provisions, thus: 23

The incumbent President of the Philippines shall initially convene the interim National Assembly and shall preside over its sessions until the interim Speaker shall have been elected. He shall continue to exercise his powers and prerogatives under the nineteen hundred and thirty-five Constitution and the powers vested in the President and the Prime Minister under this Constitution until the calls upon the interim National Assembly to elect the interim President and the interim Prime Minister, who shall then exercise their respective powers vested by this Constitution.

All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part of the law of the land, and shall remain valid, binding, and effective even after lifting of martial law or the ratification of this Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of the incumbent President, or unless expressly and explicitly modified or repealed by the regular National Assembly.

"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate, "that the Constitutional Convention, while giving to the President the discretion when to call the interim National Assembly to session, and knowing that it may not be convened soon, would create a vacuum in the exercise of legislative powers. Otherwise, with no one to exercise the lawmaking powers, there would be paralyzation of the entire governmental machinery."24 Paraphrasing Rossiter, this is an extremely important factor in any constitutional dictatorship which extends over a period of time. The separation of executive and legislature ordained in the Constitution presents a distinct obstruction to efficient crisis government. The steady increase in executive power is not too much a cause for as the steady increase in the magnitude and complexity of the problems the President has been called upon by the Filipino people to solve in their behalf, which involve rebellion, subversion, secession, recession, inflation, and economic crisis-a crisis greater than war. In short, while conventional constitutional law just confines the President's power as Commander-in-Chief to the direction of the operation of the national forces, yet the facts of our political, social, and economic disturbances had convincingly shown that in meeting the same, indefinite power should be attributed to tile President to take emergency measures 25

IV

Authority of the incumbent

President t to propose

amendments to the Constitution.

1. As earlier pointed out, the power to legislate is constitutionally consigned to the interim National Assembly during the transition period. However, the initial convening of that Assembly is a matter fully addressed to the judgment of the incumbent President. And, in the exercise of that judgment, the President opted to defer convening of that body in utter recognition of the people's preference. Likewise, in the period of transition, the power to propose amendments to the Constitution lies in the interim National Assembly upon special call by the President (See. 15 of the Transitory Provisions). Again, harking to the dictates of the sovereign will, the President

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decided not to call the interim National Assembly. Would it then be within the bounds of the Constitution and of law for the President to assume that constituent power of the interim Assembly vis-a-vis his assumption of that body's legislative functions? The answer is yes. If the President has been legitimately discharging the legislative functions of the interim Assembly, there is no reason why he cannot validly discharge the function of that Assembly to propose amendments to the Constitution, which is but adjunct, although peculiar, to its gross legislative power. This, of course, is not to say that the President has converted his office into a constituent assembly of that nature normally constituted by the legislature. Rather, with the interim National Assembly not convened and only the Presidency and the Supreme Court in operation, the urges of absolute necessity render it imperative upon the President to act as agent for and in behalf of the people to propose amendments to the Constitution. Parenthetically, by its very constitution, the Supreme Court possesses no capacity to propose amendments without constitutional infractions. For the President to shy away from that actuality and decline to undertake the amending process would leave the governmental machineries at a stalemate or create in the powers of the State a destructive vacuum, thereby impeding the objective of a crisis government "to end the crisis and restore normal times." In these parlous times, that Presidential initiative to reduce into concrete forms the constant voices of the people reigns supreme. After all, constituent assemblies or constitutional conventions, like the President now, are mere agents of the people .26

2. The President's action is not a unilateral move. As early as the referendums of January 1973 and February 1975, the people had already rejected the calling of the interim National Assembly. The Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian, the Pambansang Katipunan ng mga Barangay, and the Pambansang Katipunan ng mga Barangay, representing 42,000 barangays, about the same number of Kabataang Barangay organizations, Sanggunians in 1,458 municipalities, 72 provinces, 3 sub-provinces, and 60 cities had informed the President that the prevailing sentiment of the people is for the abolition of the interim National Assembly. Other issues concerned the lifting of martial law and amendments to the Constitution .27 The national organizations of Sangguniang Bayan presently proposed to settle the issues of martial law, the interim Assembly, its replacement, the period of its existence, the length of the period for the exercise by the President of its present powers in a referendum to be held on October 16 . 28 The Batasang Bayan (legislative council) created under Presidential Decree 995 of September 10, 1976, composed of 19 cabinet members, 9 officials with cabinet rank, 91 members of the Lupong Tagapagpaganap (executive committee) of the Katipunan ng mga Sangguniang Bayan voted in session to submit directly to the people in a plebiscite on October 16, the previously quoted proposed amendments to the Constitution, including the issue of martial law .29 Similarly, the "barangays" and the "sanggunians" endorsed to the President the submission of the proposed amendments to the people on October 16. All the foregoing led the President to initiate the proposal of amendments to the Constitution and the subsequent issuance of Presidential Decree No, 1033 on September 22, 1976 submitting the questions (proposed amendments) to the people in the National Referendum-Plebiscite on October 16.

V

The People is Sovereign

1. Unlike in a federal state, the location of sovereignty in a unitary state is easily seen. In the Philippines, a republican and unitary state, sovereignty "resides in the people and all government authority emanates from them.30 In its fourth meaning, Savigny would treat people as "that particular organized assembly of individuals in which, according to the Constitution, the highest power exists." 31 This is the concept of popular sovereignty. It means that the constitutional legislator, namely the people, is sovereign 32 In consequence, the people may thus write into the Constitution their convictions on any subject they choose in the absence of express constitutional prohibition. 33 This is because, as Holmes said, the Constitution "is an experiment, as all life is all experiment." 34"The necessities of orderly government," wrote Rottschaefer, "do not require that one generation should be permitted to permanently fetter all future generations." A constitution is based, therefore, upon a self-limiting decision of the people when they adopt it. 35

2. The October 16 referendum-plebiscite is a resounding call to the people to exercise their sovereign power as constitutional legislator. The proposed amendments, as earlier discussed, proceed not from the thinking of a single man. Rather, they are the collated thoughts of the sovereign will reduced only into enabling forms by the authority who can presently exercise the powers of the government. In equal vein, the submission of those proposed amendments and the question of martial law in a referendum-plebiscite expresses but the option of the people themselves implemented only by the authority of the President. Indeed, it may well be said that the amending process is a sovereign act, although the authority to initiate the same and the procedure to be followed reside somehow in a particular body.

VI

Referendum-Plebiscite not

rendered nugatory by the

participation of the 15-year olds.

1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you want martial law to be continued? - is a referendum question, wherein the 15-year olds may participate. This was prompted by the desire of the Government to reach the larger mas of the people so that their true pulse may be felt to guide the President in pursuing his program for a New Order. For the succeeding question on the proposed amendments, only those of voting age of 18 years may participate. This is the plebiscite aspect, as contemplated in Section 2, Article XVI of the new Constitution. 36 On this second question, it would only be the votes of those 18 years old and above which will have valid bearing on the results. The fact that the voting populace are simultaneously asked to answer the referendum question and the plebiscite question does not infirm the referendum-plebiscite. There is nothing objectionable in consulting the people on a given issue, which is of current one and submitting to them for ratification of proposed constitutional amendments. The fear of commingled votes (15-year olds and 18-year olds above) is readily dispelled by the provision of two ballot boxes for every barangay center, one containing the ballots of voters fifteen years of age and under eighteen, and another containing the ballots of voters eighteen years of age and above. 37 The ballots in the ballot box for voters fifteen years of age and under eighteen shall be counted

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ahead of the ballots of voters eighteen years and above contained in another ballot box. And, the results of the referendum-plebiscite shall be separately prepared for the age groupings, i.e., ballots contained in each of the two boxes. 38

2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum" is merely consultative in character. It is simply a means of assessing public reaction to the given issues submitted to the people foe their consideration, the calling of which is derived from or within the totality of the executive power of the President. 39 It is participated in by all citizens from the age of fifteen, regardless of whether or not they are illiterates, feeble-minded, or ex- convicts . 40 A "plebiscite," on the other hand, involves the constituent act of those "citizens of the Philippines not otherwise disqualified by law, who are eighteen years of age or over, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months preceding the election Literacy, property or any other substantive requirement is not imposed. It is generally associated with the amending process of the Constitution, more particularly, the ratification aspect.

VII

1. There appeals to be no valid basis for the claim that the regime of martial law stultifies in main the freedom to dissent. That speaks of a bygone fear. The martial law regime which, in the observation of Justice Fernando, 41 is impressed with a mild character recorded no State imposition for a muffled voice. To be sure, there are restraints of the individual liberty, but on certain grounds no total suppression of that liberty is aimed at. The for the referendum-plebiscite on October 16 recognizes all the embracing freedoms of expression and assembly The President himself had announced that he would not countenance any suppression of dissenting views on the issues, as he is not interested in winning a "yes" or "no" vote, but on the genuine sentiment of the people on the issues at hand. 42 Thus, the dissenters soon found their way to the public forums, voicing out loud and clear their adverse views on the proposed amendments and even (in the valid ratification of the 1973 Constitution, which is already a settled matter. 43 Even government employees have been held by the Civil Service Commission free to participate in public discussion and even campaign for their stand on the referendum-plebiscite issues. 44

VIII

Time for deliberation

is not short.

1. The period from September 21 to October 16 or a period of 3 weeks is not too short for free debates or discussions on the referendum-plebiscite issues. The questions are not new. They are the issues of the day. The people have been living with them since the proclamation of martial law four years ago. The referendums of 1973 and 1975 carried the same issue of martial law. That notwithstanding, the contested brief period for discussion is not without counterparts in previous plebiscites for constitutional amendments. Justice Makasiar, in the Referendum Case, recalls: "Under the old Society, 15 days were allotted for the publication in three consecutive issues of the Official Gazette of the women's suffrage amendment to the Constitution before the scheduled plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional amendment to append as ordinance the complicated Tydings-Kocialskowski was published in only three consecutive issues of the Official Gazette for 10 days prior to the scheduled plebiscite (Com. Act 492). For the 1940 Constitutional amendments providing for the bicameral Congress, the reelection of the President and Vice President, and the creation of the Commission on Elections, 20 days of publication in three consecutive issues of the Official Gazette was fixed (Com Act No. 517). And the Parity Amendment, an involved constitutional amendment affecting the economy as well as the independence of the Republic was publicized in three consecutive issues of the Official Gazette for 20 days prior to the plebiscite (Rep. Act No. 73)." 45

2. It is worthy to note that Article XVI of the Constitution makes no provision as to the specific date when the plebiscite shall be held, but simply states that it "shall be held not later than three months after the approval of such amendment or revision." In Coleman v. Miller, 46 the United States Supreme court held that this matter of submission involves "an appraisal of a great variety of relevant conditions, political, social and economic," which "are essentially political and not justiciable." The constituent body or in the instant cases, the President, may fix the time within which the people may act. This is because proposal and ratification are not treated as unrelated acts, but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time; second, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed, they are to be considered and disposed of presently, and third, ratification is but the expression of the approbation of the people, hence, it must be done contemporaneously. 47 In the words of Jameson, "(a)n alteration of the Constitution proposed today has relation to the sentiment and the felt needs of today, and that, if not ratified early while that sentiment may fairly be supposed to exist. it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by proper body

IN RESUME

The three issues are

1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political or justiciable?

2. During the present stage of the transition period, and under, the environmental circumstances now obtaining, does the President possess power to propose amendments to the Constitution as well as set up the required machinery and prescribe the procedure for the ratification of his proposals by the people?

3. Is the submission to the people of the proposed amendments within the time frame allowed therefor a sufficient and proper submission?

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Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M. Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes Concepcion Jr. and Ruperto G. Martin are of the view that the question posed is justiciable, while Associate Justices Felix V. Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the view that the question is political.

Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted in the affirmative, while Associate Justices Teehankee and Munoz Palma voted in the negative. Associate Justice Fernando, conformably to his concurring and dissenting opinion in Aquino vs. Enrile (59 SCRA 183), specifically dissents from the proposition that there is concentration of powers in the Executive during periods of crisis, thus raising serious doubts as to the power of the President to propose amendments.

Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Aquino, Concepcion Jr. and Martin are of the view that there is a sufficient and proper submission of the proposed amendments for ratification by the people. Associate Justices Barredo and Makasiar expressed the hope, however that the period of time may be extended. Associate Justices Fernando, Makasiar and Antonio are of the view that the question is political and therefore beyond the competence and cognizance of this Court, Associate Justice Fernando adheres to his concurrence in the opinion of Chief Justice Concepcion in Gonzales vs. COMELEC (21 SCRA 774).Associate Justices Teehankee and MUNOZ Palma hold that prescinding from the President's lack of authority to exercise the constituent power to propose the amendments, etc., as above stated, there is no fair and proper submission with sufficient information and time to assure intelligent consent or rejection under the standards set by this Court in the controlling cases of Gonzales, supra, and Tolentino vs. COMELEC (41 SCRA 702).

Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted to dismiss the three petitions at bar. For reasons as expressed in his separate opinion, Associate Justice Fernando concurs in the result. Associate Justices Teehankee and Munoz Palma voted to grant the petitions.

ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby dismissed. This decision is immediately executory.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. 118702 March 16, 1995

CIRILO ROY G. MONTEJO, petitioner, vs.COMMISSION ON ELECTIONS, respondent.

SERGIO A.F. APOSTOL, intervenor.

 

PUNO, J.:

More than political fortunes are at stake in the case at bench. Petitioner Cirilo Roy G. Montejo, representing the First District of Leyte, pleads for the annulment of section 1 of Resolution No. 2736 of the COMELEC, redistricting certain municipalities in Leyte, on the ground that it violates the principle of equality of representation. To remedy the alleged inequity, petitioner seeks to transfer the municipality of Tolosa from his district to the Second District of the province. Intervenor Sergio A.F. Apostol, representing the Second District, vigorously opposed the inclusion ofTolosa in his district. We gave due course to the petition considering that, at bottom, it involves the validity of the unprecedented exercise by the COMELEC of the legislative power of redistricting and reapportionment.

The province of Leyte with the cities of Tacloban and Ormoc is composed of five (5) legislative districts. 1

The first district 2 covers Tacloban City and the municipalities of Alangalang, Babatngon, Palo, San Miguel, Sta. Fe, Tanauan and Tolosa.

The second district 3 is composed of the municipalities of Barugo, Barauen, Capoocan, Carigara, Dagami, Dulag, Jaro, Julita, La Pat, Mayorga, MacArthur, Pastrana, Tabontabon, and Tunga.

The third district 4 is composed of the municipalities of Almeria, Biliran, Cabucgayan, Caibiran, Calubian, Culaba, Kawayan, Leyte, Maripipi, Naval, San Isidro, Tabango, and Villaba.

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The fourth district 5 is composed of Ormoc City and the municipalities of Albuera, Isabel, Kananga, Matagob, Merida, and Palompon.

The fifth district 6 is composed of the municipalities of Abuyog, Bate, Baybay, Hilongos, Hindang, Inopacan, Javier, Mahaplag, and Matalom.

Biliran, located in the third district of Leyte , was made its sub-province by virtue of Republic Act No. 2141 Section 1 of the law spelled out enacted on April 8, 1959. 7

Section 1 of the law spelled out the municipalities comprising the sub-province, viz.: "Almeria, Biliran, Cabucgayan, Caibiran, Culaba, Kawayan, Maripipi and Naval and all the territories comprised therein."

On January 1, 1992, the Local Government Code took effect. Pursuant to its Section 462, the sub-province of Biliran became a regular province. It provides:

Existing sub-provinces are hereby converted into regular provinces upon approval by a majority of the votes cast in a plebiscite to be held in the sub-provinces and the original provinces directly affected. The plebiscite shall be conducted by the COMELEC simultaneously with the national elections following the effectivity of this code. The new legislative districts created as a result of such conversion shall continue to be represented in Congress by the duly-elected representatives of the original districts out of which said new provinces or districts were created until their own representatives shall have been elected in the next regular congressional elections and qualified.

The conversion of Biliran into a regular province was approved by a majority of the votes cast in a plebiscite held on May 11, 1992. As a consequence of the conversion, eight (8) municipalities of the Third District composed the new province of Biliran, i.e., Almeria, Biliran, Cabucgayan, Caibiran, Culaba, Kawayan, Maripipi, and Naval. A further consequence was to reduce the Third District to five (5) municipalities with a total population of 145,067 as per the 1990 census.

To remedy the resulting inequality in the distribution of inhabitants, voters and municipalities in the province of Leyte, respondent COMELEC held consultation meetings with the incumbent representatives of the province and other interested parties. On December 29, 1994, it promulgated Resolution No. 2736 where, among others, it transferred the municipality of Capoocan of the Second District and the municipality of Palompon of the Fourth District to the Third District of Leyte. The composition of the First District which includes the municipality of Tolosaand the composition of the Fifth District were not disturbed. After the movement of municipalities, the composition of the five (5) legislative districts appeared as follows:

First District: Population RegisteredVoters(1990) (1994)

1. Tacloban City, 137,190 81,6792. Alangalang, 33,375 20,5433. Babatngon, 17,795 9,9294. Palo, 38,100 20,8165. San Miguel, 13,438 8,1676. Sta. Fe, 12,119 7,4977. Tanauan and, 38,033 22,3578. Tolosa; 13,299 7,700———— ————TOTAL 303,349 178,688

Second District: Population RegisteredVoters(1990) (1994)

1. Barugo, 23,817 13,2372. Barauen, 46,029 23,3073. Carigara 38,863 22,0364. Dagami, 25,606 16,5195. Dulag, 33,020 19,3756. Jaro, 31,727 17,1397. Julita, 9,944 6,1968. La Paz, 14,311 9,0039. Mayorga, 10,530 5,86810. Mac Arthur, 13,159 8,62811. Pastrana, 12,565 7,34812. Tabontabon, and 7,183 4,41913. Tunga; 5,413 3,387———— ————TOTAL 272,167 156,462

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Third District: Population RegisteredVoters(1990) (1994)

1. Calubian, 25,968 16,6492. Leyte, 32,575 16,4153. San Isidro, 24,442 14,9164. Tabango, 29,743 15,485. Villaba, 32,339 21,2276. Capoocan, and 23,687 13,5957. Palompon; 45,745 27,474———— ————TOTAL 214,499 125,763

Fourth District: Population RegisteredVoters(1990) (1994)

1. Ormoc City, 129,456 75,1402. Albuera, 32,395 17,4933. Isabel, 33,389 21,8894. Kananga, 36,288 19,8735. Matagob, 15,474 9,4076. Merida, and 22,345 12,474———— ————TOTAL 269,347 155,995

Fifth District: Population RegisteredVoters(1990) (1994)

1. Abuyog, 47,265 28,6822. Bato, 28,197 116,133. Baybay, 82,281 47,9234. Hilongos, 48,617 26,8715. Hindang, 16,272 9,6596. Inopacan, 16,894 10,4017. Javier, 18,658 11,7138. Mahaplag, and 22,673 13,6169. Matalom 28,291 16,247———— ————TOTAL 309,148 181,242

Petitioner Montejo filed a motion for reconsideration calling the attention of respondent COMELEC, among others, to the inequitable distribution of inhabitants and voters between the First and Second Districts. He alleged that the First District has 178,688 registered voters while the Second District has 156,462 registered voters or a difference of 22,226 registered voters. To diminish the difference, he proposed that the municipality of Tolosa with 7,7000 registered voters be transferred from the First to the Second District. The motion was opposed by intervenor, Sergio A.F. Apostol. Respondent Commission denied the motion ruling that: (1) its adjustment of municipalities involved the least disruption of the territorial composition of each district; and (2) said adjustment complied with the constitutional requirement that each legislative district shall comprise, as far as practicable, contiguous, compact and adjacent territory.

In this petition, petitioner insists that Section I of Resolution No. 2736 violates the principle of equality of representation ordained in the Constitution. Citing Wesberry v. Sanders, 8 he argues that respondent COMELEC violated "the constitutional precept that as much as practicable one man's vote in a congressional election is to be worth as much as another's." The Solicitor General, in his Comment, concurred with the views of the petitioner. The intervenor, however, opposed the petition on two (2) grounds: (1) COMELEC has no jurisdiction to promulgate Resolution No. 2736; and (2) assuming it has jurisdiction, said Resolution is in accord with the Constitution. Respondent COMELEC filed its own Comment alleging that it acted within the parameters of the Constitution.

We find section 1 of Resolution No. 2736 void.

While the petition at bench presents a significant issue, our first inquiry will relate to the constitutional power of the respondent COMELEC 9 to transfer municipalities from one legislative district to another legislative district in the province of Leyte. The basic powers of respondent COMELEC, as enforcer and administrator of our election laws, are spelled out in black and white in section 2(c), Article IX of the Constitution. Rightly, respondent COMELEC does not invoke this provision but relies on the Ordinance appended to the 1987 Constitution as the source of itspower of redistricting which is traditionally regarded as part of the power to make laws. The Ordinance is entitled "Apportioning the Seats of the House of Representatives of the Congress of the Philippines to the Different Legislative Districts in Provinces and Cities and the Metropolitan Manila Area." Its substantive sections state:

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Sec. 1. For purposes of the election of Members of the House of Representatives of the First Congress of the Philippines under the Constitution proposed by the 1986 Constitutional Commission and subsequent elections, and until otherwise provided by law, the Members thereof shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila Area as follows:

xxx xxx xxx

Sec. 2. The Commission on Elections is hereby empowered to make minor adjustments of the reapportionment herein made.

Sec. 3. Any province that may hereafter be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member or such number of Members as it may be entitled to on the basis of the number of its inhabitants and according to the standards set forth in paragraph (3), Section 5 of Article VI of the Constitution. The number of Members apportioned to the province out of which such new province was created or where the city, whose population has so increased, is geographically located shall be correspondingly adjusted by the Commission on Elections but such adjustment shall not be made within one hundred and twenty days before the election. (Emphasis supplied)

The Ordinance was made necessary because Proclamation No. 3 10 of President Corazon C. Aquino, ordaining the Provisional Constitution of the Republic of the Philippines, abolished the Batasang Pambansa. 11 She then exercised legislative powers under the Provisional Constitution. 12

The Ordinance was the principal handiwork of then Commissioner Hilario G. Davide, Jr., 13 now a distinguished member of this Court. The records reveal that the Constitutional Commission had to resolve several prejudicial issues before authorizing the first congressional elections under the 1987 Constitution. Among the vital issues were: whether the members of the House of Representatives would be elected by district or by province; who shall undertake the apportionment of the legislative districts; and, how the apportionment should be made. 14Commissioner Davide, Jr. offered three (3) options for the Commission to consider: (1) allow President Aquino to do the apportionment by law; (2) empower the COMELEC to make the apportionment; or (3) let the Commission exercise the power by way of an Ordinance appended to the Constitution. 15 The different dimensions of the options were discussed by Commissioners Davide, Felicitas S. Aquino and Blas F. Ople. We quote the debates inextenso, viz.: 16

xxx xxx xxx

MR. PADILLA. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Padilla is recognized.

MR. PADILLA. I think I have filed a very simple motion by way of amendment by substitution and this was, I believe, a prior or a proposed amendment. Also, the chairman of the Committee on the Legislative said that he was proposing a vote first by the Chamber on the concept of whether the election is by province and cities on the one hand, or by legislative districts on the other. So I propose this simple formulation which reads: "FOR THE FIRST ELECTION UNDER THIS CONSTITUTION THE LEGISLATIVE DISTRICTS SHALL BE APPORTIONED BY THE COMMISSION ON ELECTIONS." I hope the chairman will accept the proposed amendment.

SUSPENSION OF SESSION

MR. DAVIDE. The effect is, more or less, the same insofar as the apportionment is concerned, but the Bernas-Sarmiento et al. proposal would also provide for a mandate for the apportionment later, meaning after the first election, which will in effect embody what the Commission had approved, reading as follows: "Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section."

So, Mr. Presiding Officer, may I request for a suspension of the session, so that all the proponents can work together.

THE PRESIDING OFFICER (Mr. Jamir). The session is suspended.

It was 3:33 p.m.

RESUMPTION OF SESSION

At 3:40 p.m., the session was resumed.

THE PRESIDING OFFICER (Mr. Jamir). The session is resumed.

Commissioner Davide is recognized.

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MR. DAVIDE. Mr. Presiding Officer, as a compromise, I wonder if the Commission will allow this. We will just delete the proposed subparagraph (4) and all the capitalized words in paragraph (5). So that in paragraph (5), what would be left would only be the following: "Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section."

But we shall have an ordinance appended to the new Constitution indicating specifically the following: "FOR PURPOSES OF THE ELECTION OF MEMBERS OF THE HOUSE OF REPRESENTATIVES IN THE FIRST CONGRESSIONAL ELECTION IMMEDIATELY FOLLOWING THE RATIFICATION OF THIS CONSTITUTION PROPOSED BY THE 1986 CONSTITUTIONAL COMMISSION AND SUBSEQUENT ELECTIONS AND UNTIL OTHERWISE PROVIDED BY LAW, THE MEMBERS OF THE HOUSE OF REPRESENTATIVES SHALL BE ELECTED FROM LEGISLATIVE DISTRICTS APPORTIONED AMONG THE PROVINCES, CITIES AND THE METROPOLITAN MANILA AREA AS FOLLOWS."

And what will follow will be the allocation of seats to Metropolitan Manila Area, to the provinces and to the cities, without indicating the municipalities comprising each of the districts. Then, under Section 2, we will mandate the COMELEC to make the actual apportionment on the basis of the number of seats provided for and allocated to each province by us.

MS. AQUINO. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Aquino is recognized.

MS. AQUINO. I have to object to the provision which will give mandate to COMELEC to do the redistricting. Redistricting is vitally linked to the baneful practices of cutting up areas or spheres of influence; in other words, gerrymandering. This Commission, being a nonpartisan, a nonpolitical deliberative body, is in the best possible situation under the circumstances to undertake that responsibility. We are not wanting in expertise and in time because in the first place, the Committee on the Legislative has prepared the report on the basis of the recommendation of the COMELEC.

MR. OPLE. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Ople is recognized.

MR. OPLE. I would like to support the position taken by Commissioner Aquino in this respect. We know that the reapportionment of provinces and cities for the purpose of redistricting is generally inherent in the constituent power or in the legislative power. And I would feel very uncertain about delegating this to a quasi-judicial body even if it is one of the constitutional offices created under this Constitution. We have the assurance of Commissioner Davide, as chairman of the Committee on the Legislative, that even given the very short time remaining in the life of this Commission, there is no reason why we cannot complete the work of reapportionment on the basis of the COMELEC plan which the committee has already thoroughly studied and which remains available to the Constitutional Commission.

So, I support the position taken by Commissioner Aquino, Mr. Presiding Officer. I think, it is the safest, the most reasonable, and the most workable approach that is available to this Commission.

THE PRESIDING OFFICER (Mr. Jamir). What does Commissioner Davide say:

MR. DAVIDE. The issue now is whether this body will make the apportionment itself or whether we will leave it to the COMELEC. So, there arises, therefore, a prejudicial question for the body to decide. I would propose that the Commission should now decide what body should make the apportionment. Should it be the Commission or should it be the COMELEC? And the Committee on the Legislative will act accordingly on the basis of the decision.

MR. BENGZON. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Bengzon is recognized.

MR. BENGZON. Apropos of that, I would like to inform the body that I believe the Committee on the Legislative has precisely worked on this matter and they are ready with a list of apportionment. They have, in fact, apportioned the whole country into various districts based on the recommendation of the COMELEC. So they are ready with the list and if this body would wish to apportion the whole country by district itself, then I believe we have the time to do it because the Committee on the Legislative is ready with that particular report which need only to be appended to the Constitution. So if this body is ready to accept the work of the Committee on the Legislative we would have no problem. I just would like to give that information so that the people here would be guided accordingly when they vote.

MR. RODRIGO. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir) Commissioner Rodrigo is recognized.

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MR. RODRIGO. I just would like to ask Commissioner Davide some questions.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide may yield if he so desires.

MR. DAVIDE. Gladly.

MR. RODRIGO. Will this apportionment which we are considering apply only to the first election after the enactment of the Constitution?

MR. DAVIDE. On the basis of the Padilla proposal, it will be for the first election; on the basis of the Sarmiento proposal, it will only apply to the first election.

MR. RODRIGO. And after that, Congress will have the power to reapportion.

MR. DAVIDE. Yes.

MR. RODRIGO. So, if we attach this to the Constitution — the reapportionment based on the COMELEC study and between the approval of the Constitution and the first election — the COMELEC no longer has the power to change that even a bit.

xxx xxx xxx

THE PRESIDING OFFICER (Mr. Jamir) Commissioner Regalado is recognized.

MR. REGALADO. May I address a clarificatory question to Commissioner Davide?

THE PRESIDING OFFICER (Mr. Jamir). Gentleman will please proceed.

MR. REGALADO. On the basis of the Commissioner's proposed apportionment and considering the fact that there will be a corresponding reduction to 183 seats, would there be instances representation of under non-representation?

MR. DAVIDE. None at all, Mr. Presiding Officer. I can assure the Commission that there will be no case of inequitable distribution. It will come out to be one for every 350 to 400,000 inhabitants.

MR. REGALADO. And that would be within the standard that we refer.

MR. DAVIDE. Yes, Mr. Presiding Officer.

MR. REGALADO. Thank you.

MR. RAMA. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). The Floor Leader is recognized.

MR. RAMA. The parliamentary situation is that there was a motion by Commissioner Sarmiento to mandate COMELEC to do the redistricting. This was also almost the same motion by Commissioner Padilla and I think we have had some kind of meeting of minds. On the other hand, there seems to be a prejudicial question, an amendment to the amendment as suggested by Commissioner Aquino, that instead of the COMELEC, it should be this Commission that shall make the redistricting. So may I ask Commissioner Aquino, if she insists on that idea, to please formulate it into a motion so we can vote on that first as an amendment to the amendment.

THE PRESIDING OFFICER (Mr. Jamir).Commissioner Aquino is recognized.

MS . AQUINO. The motion is for this Commission to undertake the apportionment of the legislative districts instead of the proposal that COMELEC be given the mandate to undertake the responsibility.

xxx xxx xxx

MR. SARMIENTO. May I be clarified, Mr. Presiding Officer. Is it the motion or the proposed amendment?

THE PRESIDING OFFICER (Mr. Jamir). The proposed amendment.

MR. SARMIENTO. May we move for the approval of this proposed amendment which we substitute for paragraphs 4 and 5.

78

MR. DAVIDE. May I request that it should be treated merely as a motion to be followed by a deletion of paragraph 4 because that should not really appear as a paragraph in Section 5; otherwise, it will appear very ugly in the Constitution where we mandate a Commission that will become functus officioto have the authority. As a matter of fact, we cannot exercise that authority until after the ratification of the new Constitution.

THE PRESIDING OFFICER (Mr. Jamir). What does Commissioner Sarmiento say?

MR. SARMIENTO. It is accepted, Mr. Presiding Officer. So, may I move for the approval of this proposed amendment.

MS. AQUINO. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Aquino is recognized.

MS. AQUINO. Would that require a two-thirds vote or a simple plurality to adopt that motion?

THE PRESIDING OFFICER (Mr. Jamir). That will require a two-thirds vote.

MS. AQUINO. Thank you. Mr. Presiding Officer.

MR. SARMIENTO. May I restate the motion, Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir) The Gentleman may proceed.

MR. SARMIENTO. May I move that this Commission do the reapportionment legislative districts.

MS. AQUINO. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). What is the pleasure of Commissioner Aquino?

MS. AQUINO. May I be clarified again on the motion. Is Commissioner Sarmiento, therefore, adopting my motion? Would it not be right for him to move that the COMELEC be mandated?

MR. SARMIENTO. No, we accepted the amendment. It is already the Commission that will be mandated.

MS. AQUINO. So, the Gentlemen has accepted the amendment the amendment.

Thank you.

MR. SARMIENTO. I am voting that this Commission do the reapportionment.

VOTING

THE PRESIDING OFFICER (Mr. Jamir). Let us proceed to vote.

As many as are in favor, please raise their hand. (Several Members raised their hand.)

As many as are against, please raise their hand. (No Member raised his hand.)

The results show 30 votes in favor and none against; the motion is approved.

Clearly then, the Constitutional Commission denied to the COMELEC the major power of legislative apportionment as it itself exercised the power. Section 2 of the Ordinance only empowered the COMELEC "to make minoradjustments of the reapportionment herein made." The meaning of the phrase "minor adjustments was again clarified in the debates 17 of the Commission, viz.:

xxx xxx xxx

MR. GUINGONA. This is just clarificatory, Mr. Presiding Officer. In Section 2, the Commission on Elections is empowered to make minor adjustments on the apportionment made here.

MR. DAVIDE. Yes, Mr. Presiding Officer.

MR. GUINGONA. We have not set any time limit for this.

79

MR. DAVIDE. We should not set a time limit unless during the period of amendments a proposal is made. The authority conferred would be on minor corrections or amendments, meaning to say, for instance, that we may have forgotten an intervening municipality in the enumeration, which ought to be included in one district. That we shall consider a minor amendment.

MR. GUINGONA. Thank you.

xxx xxx xxx

THE PRESIDING OFFICER (Mr. Romulo). Commissioner de Castro is recognized.

MR. DE CASTRO. Thank you.

I was about to ask the committee the meaning of minor adjustment. Can it be possible that one municipality in a district be transferred to another district and call it a minor adjustment?

MR. DAVIDE. That cannot be done, Mr. Presiding Officer. Minor, meaning, that there should be no change in the allocations per district. However, it may happen that we have forgotten a municipality in between which is still in the territory of one assigned district, or there may be an error in the correct name of a particular municipality because of changes made by the interim Batasang Pambansa and the Regular Batasang Pambansa. There were many batas pambansa enacted by both the interim and the Regular Batasang Pambansa changing the names of municipalities.

MR. DE CASTRO. So, the minor adjustment may be made only if one of the municipalities is not mentioned in the ordinance appended to, and it will be up for the COMELEC now to adjust or to put such municipality to a certain district.

MR. DAVIDE. Yes, Mr. Presiding Officer. For instance, we may not have the data regarding a division of a municipality by the interim Batasang Pambansa or the Regular Batasang Pambansa into two municipalities, meaning, a mother municipality and the new municipality, but still actually these are within the geographical district area.

MR. DE CASTRO. So the minor adjustment which the COMELEC cannot do is that, if, for example, my municipality is in the First District of Laguna, they cannot put that in any other district.

MR. DAVIDE. That is not even a minor correction. It is a substantive one.

MR. DE CASTRO. Thank you.

Consistent with the limits of its power to make minor adjustments, Section 3 of the Ordinance did not also give the respondent COMELEC any authority to transfer municipalities from one legislative district to another district. The power granted by Section 3 to the respondent COMELEC is to adjust the number of members (not municipalities) "apportioned to the province out of which such new province was created. . . ."

Prescinding from these premises, we hold that respondent COMELEC committed grave abuse of discretion amounting to lack of jurisdiction when it promulgated section 1 of its Resolution No. 2736 transferring the municipality of Capoocan of the Second District and the municipality of Palompon of the Fourth District to the Third District of Leyte.

It may well be that the conversion of Biliran from a sub-province to a regular province brought about an imbalance in the distribution of voters and inhabitants in the five (5) legislative districts of the province of Leyte. This imbalance, depending on its degree, could devalue a citizen's vote in violation of the equal protection clause of the Constitution. Be that as it may, it is not proper at this time for petitioner to raise this issue using the case at bench as his legal vehicle. The issue involves a problem of reapportionment of legislative districts and petitioner's remedy lies with Congress. Section 5(4), Article VI of the Constitution categorically gives Congress the power to reapportion, thus: "Within three (3) years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section." In Macias v. COMELEC,18 we ruled that the validity of a legislative apportionment is a justiciable question. But while this Court can strike down an unconstitutional reapportionment, it cannot itself make the reapportionment as petitioner would want us to do by directing respondent COMELEC to transfer the municipality of Tolosa from the First District to the Second District of the province of Leyte.

IN VIEW WHEREOF, section 1 of Resolution No. 2736 insofar as it transferred the municipality of Capoocan of the Second District and the municipality of Palompon of the Fourth District to the Third District of the province of Leyte, is annulled and set aside. We also deny the Petition praying for the transfer of the municipality of Tolosafrom the First District to the Second District of the province of Leyte. No costs.

SO ORDERED.

EN BANC

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[G. R. No.  150312.  July 18, 2002]

BAGO P. PASANDALAN, petitioner, vs. COMMISSION ON ELECTIONS and BAI SALAMONA L. ASUM,respondents.

D E C I S I O N

CARPIO, J.:

A petition for declaration of failure of election must specifically allege the essential grounds that would justify the exercise of this extraordinary remedy.  Otherwise, the Comelec can dismiss outright the petition for lack of  merit.   No  grave  abuse of discretion can be attributed to the Comelec in such a case because the Comelec must exercise with utmost circumspection the power to declare a failure of election to prevent disenfranchising voters and frustrating the  electorate’s will.

The Case

Before us is a petition for review on certiorari of the Resolution [1] of the Commission on Elections en banc dated October 12, 2001 dismissing petitioner Bago P. Pasandalan’s (“Pasandalan” for brevity) petition to declare a failure of election.

Pasandalan and private respondent Bai Salamona L. Asum (“Asum” for brevity) were candidates for mayor in the Municipality of Lumbayanague, Lanao del Sur during the May 14, 2001 elections.

On May 23, 2001, Pasandalan filed a petition[2] before public respondent Commission on Elections (“Comelec” for brevity) seeking to nullify the election results in Barangay Cabasaran (Precinct Nos. 9A, 10A, 11A and 12A), Barangay Deromoyod (Precinct Nos. 24A, 25A and 26A), Lamin (Precinct Nos. 29A and 30A), Barangay Wago (Precinct Nos. 46A, 47A and 48A), Barangay Meniros (Precinct Nos. 32A, 33A and 34A), Barangay Bualan (Precinct Nos. 6A, 7A and 8A) and Barangay Pantaon (Precinct Nos. 38A and 39A), all of Lumbayanague, Lanao del Sur.

Petitioner alleged that on May 14, 2001, while voting was going on, some Cafgu’s stationed near Sultan Gunting Elementary School indiscriminately fired their firearms causing the voters to panic and leave the polling center without casting their votes.   Taking advantage of the confusion, supporters of Asum allegedly took the official ballots, filled them up with the name of Asum and placed them inside the ballot boxes. The incident allegedly marred the election results in Precinct Nos. 9A-12A, 24A-26A and 29A-30A.

In Precinct Nos. 46A, 47 and 48A, the members of the Board of Election Inspectors (“BEI” for brevity) allegedly failed to sign their initials at the back of several official ballots and to remove the detachable coupons.   The BEI members allegedly affixed their initials only during the counting of votes.

In Precinct Nos. 6A-8A, 32A-34A and 38A-39A, Pasandalan claims that Asum’s supporters, taking advantage of the fistfight between Asum’s nephew and the supporters of candidate Norania Salo, grabbed the official ballots and filled them up with the name of Asum.

Pasandalan contends that a technical examination of several official ballots from the contested precincts would show that only a few persons wrote the entries.

On June 26, 2001, Asum filed an Answer denying Pasandalan’s allegation that the volley of shots fired on May 14, 2001 disrupted the voting.  Private respondent countered that the gunshots were heard around 2:35 p.m. and not at the start of the voting.  On June 30, 2001, Asum was sworn into office and assumed the position of municipal mayor of the Lumbayanague, Lanao del Sur.

On October 12, 2001, the Comelec issued a Resolution dismissing the petition for lack of merit.[3]

Hence, this petition.

The Comelec’s Ruling

The Comelec ruled that the power to declare a failure of election, being an extraordinary remedy, could be exercised only in three instances: (1) the election is not held; (2) the election is suspended; or (3) the election results in a failure to elect.   The third instance is understood in its literal sense, that is, nobody was elected.

The Comelec dismissed the petition because none of the grounds relied upon by Pasandalan falls under any of the three instances justifying a declaration of failure of election.  First, the elections in the questioned precincts were held as scheduled.  Second, the gunshots heard during the casting of votes did not suspend the election as the voting continued normally.   Third, Asum was elected by a plurality of votes.

The authenticity and integrity of the election returns were left undisturbed throughout the preparation, transmission, custody and canvass of the returns.  Pasandalan alleges fraud and terrorism, in that there was massive substitution of voters, firing of guns to frighten the voters, and failure of the BEI members to sign at the back of some official ballots and to remove the detachable coupons.  The Comelec ruled that these allegations are better ventilated in an election contest.

81

The Comelec did not give credence to Pasandalan’s evidence in support of his allegations of terrorism and fraud since the evidence consisted only of affidavits executed by Pasandalan’s own poll watchers.  The Comelec considered these affidavits self-serving and insufficient to annul the results of the election.  Thus, the Comelec dismissed the petition for lack of merit.

The Issues

Pasandalan now assails the Comelec’s dismissal of his petition, raising the following issues:

“1. WHETHER THE COMMISSION ON ELECTIONS ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN DISMISSING THE PETITION IN SPA NO. 01-305 FOR ALLEGED LACK OF MERIT;

2. WHETHER THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN NOT ANNULING THE ELECTION OR DECLARING A FAILURE OF ELECTION IN THE SIXTEEN (16) QUESTIONED PRECINCTS;

3. WHETHER THE COMMISSION ON ELECTIONS ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN NOT DECLARING AS ILLEGAL, NULL AND VOID AB INITIO THE PROCLAMATION OF THE PRIVATE RESPONDENT AS THE DULY ELECTED MAYOR OF LUMBAYANAGUE, LANAO DEL SUR IN THE LAST MAY 14, 2001 REGULAR ELECTIONS AND MAY 30, 2001 SPECIAL ELECTIONS.”[4]

The Court’s Ruling

We rule that the petition is without merit.  The Comelec correctly dismissed the petition for declaration of failure of election because the irregularities alleged in the petition should have been raised in an election protest, not in a petition to declare a failure of election.

Under Republic Act No. 7166, otherwise known as “The Synchronized Elections Law of 1991,” [5] the Comelec en banc is empowered to declare a failure of election under Section 6 of the Omnibus Election Code (B.P. Blg. 881).  Section 6 of the Code prescribes the conditions for the exercise of this power, thus:

“SEC. 6. Failure of Election. - If, on account of force majeure, violence, terrorism, fraud or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for closing  of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition  by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect.”

Based on the foregoing provision, three instances justify a declaration of failure of election.  These are:

“(a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud or other analogous causes;

(b) the election in any polling place has been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud or other analogous causes; or

(c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account of force majeure, violence, terrorism, fraud or other analogous causes.”[6]

What is common in these three instances is the resulting failure to elect. [7] In the first instance, no election is held while in the second, the election is suspended.[8] In the third instance, circumstances attending the preparation, transmission, custody or canvas of the election returns cause a failure to elect.  The term failure to elect means nobody emerged as a winner. [9]

Pasandalan asserts that the conditions for the declaration of failure of election are present in this case. The volley of shots from high-powered firearms allegedly forced the voters to scamper away from the polling place, paving the way for Asum’s supporters to write the name of Asum on the ballots.  The gunfire also frightened Pasandalan’s poll watchers.  The heavy firing allegedly suspended or prevented the holding of elections in the contested precincts, resulting in failure to elect.   The victory of Asum is thus put in serious doubt.

We do not agree.  Pasandalan’s allegations do not fall under any of the instances that would justify the declaration of failure of election.  The election was held in the 16 protested precincts as scheduled.  At no point was the election in any of the precincts suspended. Nor was there a failure to elect because of force majeure, violence, terrorism, fraud or other analogous causes during the preparation, transmission, custody and canvass of the election returns.  The alleged terrorism was not of such scale and prevalence to prevent the holding of the election or to cause its suspension.  In fact, the casting and counting of votes, the preparation, transmission and canvassing of election returns and the proclamation of the winning candidate took place in due course.

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Courts exercise the power to declare a failure of election with deliberate caution so as not to disenfranchise the electorate. [10] The fact alone that actual voting took place already militates against Pasandalan’s cause.  Also, Pasandalan’s allegations of terrorism and fraud are not sufficient to warrant a nullification of the election in the absence of any of the three instances justifying a declaration of failure of election.  Terrorism may not be invoked to declare a failure of election and to disenfranchise the greater number of the electorate through the misdeeds of only a few,[11] absent any of the three instances specified by law.

To warrant a declaration of failure of election on the ground of fraud, the fraud must prevent or suspend the holding of an election, or mar fatally the preparation, transmission, custody and canvass of the election returns. [12] The conditions for the declaration of failure of election are stringent.  Otherwise, elections will never end for losers will always cry fraud and terrorism.[13]

The allegations of massive substitution of voters, multiple voting, and other electoral anomalies should be resolved in a proper election protest[14] in the absence of any of the three instances justifying a declaration of failure of election.   In an election protest, the election is not set aside, and there is only a revision or recount of the ballots cast to determine the real winner.[15]

The nullification of elections or declaration of failure of elections is an extraordinary remedy. [16] The party who seeks the nullification of an election has the burden of proving entitlement to this remedy.  It is not enough that a verified petition is filed.  The allegations in the petition must make out a prima facie case for the declaration of failure of election, and convincing evidence must substantiate the allegations.[17]

In the instant case, it is apparent that the allegations do not constitute sufficient grounds for the nullification of the election.  Pasandalan even failed to substantiate his allegations of terrorism and irregularities.  His evidence consisted only of affidavits.  Mere affidavits are insufficient,[18]more so in this case since the affidavits were all executed by Pasandalan’s own poll watchers.  Factual findings of the Comelec are binding on this Court.[19] Accordingly, the following findings of the Comelec in the instant case must be respected:

“xxx There was an allegation in the amended petition that while voting was taking place in Sultan Gunting Elementary School, gunshots were heard causing the voters to scamper for safety and leave the polling center without having cast their votes.  However, other than his bare allegation and the ‘pre-typed’ affidavits of his watchers, petitioner did not present substantial and convincing evidence to support his claim.  On the other hand, 1 Lt. Frederick Galang Pa of the 29th Infantry Battalion assigned in Lumbayanague categorically declared in his affidavit that despite the gunshots which were heard at around 2:35 PM when the polls were about to close, “the voting continued normally.” This statement was bolstered by the narrative report of Urangutan Mamailao, Election Officer of Lumbayanague, on the conduct of the election in said municipality.  The report was spontaneously prepared when the incident happened.  Taken in the light of the presumption of regularity in the performance of official functions, these two affidavits carry great weight.  Third, the authenticity and integrity of the election returns are left undisturbed throughout the preparation, transmission, custody and canvass thereof.  There was no allegation, much less proof that the sanctity of the election returns was defiled.

xxx

A thorough examination of the affidavits reveals that they suffer from both extrinsic and intrinsic invalidity.  The form and the contents of the affidavits were pre-typed, and all the affiants had to do was to fill-up the blank spaces for their names and precinct assignments.  This clearly shows that some other person prepared the affidavits and it is doubtful whether the affiants understood the contents thereof before they signed them.

Also worth noting is the fact that the contents of the affidavits are identical.  It is highly questionable why different persons have exactly the same observation of different incidents.  Even persons confronted with the same occurrence would have different observations of the same incident because human perception is essentially affected by several factors like the senses, mental condition, personal disposition, environment, etc.

Moreover, the affidavits contain inconsistent statements and incredible allegations which bolster the conclusion that they were tailored to suit the needs of the petitioner.  For example, the joint-affidavit of Badjomura Calauto and Macaruog Ampuan states that they were in Barangay Cabasaran during the May 14 election when they saw the men of respondent fill-up the ballots in Precinct Nos. 29A-30A of Barangay Lamin. The venue of voting for Barangay Cabasaran was Sultan Gunting Central Elementary School while that of Barangay Lamin was Lamin Primary School.  How they were able to witness said incident when they were miles away from where it happened is mystifying.  Besides, this is not the proper forum to challenge illegal voters.  Even at the precinct level, petitioner’s watchers are empowered to question any irregularity which they think may have been committed by any person or to challenge the capacity of any person offering to vote.  Failing to avail himself of this remedy, petitioner cannot now pass the burden to innocent voters by calling for the annulment of the results of a validly held election.”[20]

Pasandalan bewails the Comelec’s dismissal of his petition without first conducting a technical examination of the questioned precincts. Pasandalan claims that had the Comelec made a technical examination of the questioned precincts, the Comelec would have discovered massive substitution of voters, terrorism, violence, threats, coercion, intimidation and other electoral frauds, resulting in a failure of election. Pasandalan insists that a technical examination in this case would have been proper as in Typoco, Jr. v. Commission on Elections,[21] which is also a case of failure of election.

The Comelec is not mandated to conduct a technical examination before it dismisses a petition for nullification of election when the petition is, on its face, without merit. In Typoco, petitioner Typoco buttressed his petition with independent evidence that compelled the Comelec to conduct a technical examination of the questioned returns.   Typoco filed a Motion to Admit Evidence to prove that a substantial number of election returns were manufactured.  Typoco claimed that the returns were prepared by only one person based on the report of Francisco S. Cruz, a licensed examiner of questioned documents, who examined copies of the election returns of Lakas-NUCD.  In the present case, Pasandalan failed to attach independent and objective evidence other than the self-serving affidavits of his own poll watchers.

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In Mitmug v. Commission on Elections,[22] we ruled that the Comelec could dismiss outright a petition for nullification of election if it is plainly groundless and the allegations therein could be better ventilated in an election protest.   In Banaga, Jr. v. Commission on Elections,[23]we reiterated this doctrine, thus -

“Finally, petitioner claims that public respondent gravely abused its discretion when it dismissed his petition motu propio.  However, the fact that a verified petition has been filed does not mean that a hearing on the case should first be held before Comelec can act on it.  The petition to declare a failure of election and/or to annul election results must show on its face that the conditions necessary to declare a failure to elect are present.  In their absence, the petition must be denied outright. Public respondent had no recourse but to dismiss the petition.  Nor may petitioner now complain of denial of due process, on this score, for his failure to properly file an election protest.  The Comelec can only rule on what was filed before it.  It committed no grave abuse of discretion in dismissing his petition ‘to declare failure of elections and/or for annulment of elections’ for being groundless, hence without merit.”

Clearly, the fact that a verified petition is filed with the Comelec does not necessarily mean that a technical examination or a hearing on the case should be conducted first before the Comelec can act on the petition.  There is no grave abuse of discretion if the Comelec dismisses the petition even without a technical examination or hearing if the petition fails to show on its face the existence of any of the three instances required by law to declare a failure of election.  The Comelec in this case correctly dismissed the petition.

Pasandalan believes that notwithstanding the fact that actual voting took place in the questioned precincts, the election in this case, just like in Basher v. Commission on Elections,[24] was “illegal, irregular, and void.”[25] Citing Basher, Pasandalan argues that the peculiar set of facts in this case do not merely show a failure of election “but the absence of a valid electoral exercise.”[26]

The fact that an election is actually held prevents as a rule a declaration of failure of election.  It is only when the election is attended by patent and massive irregularities and illegalities that this Court will annul the election.  Basher is an example of such a case.

In Basher, after a series of failed elections in Barangay Maidan, Municipality of Tugaya, Lanao del Sur during the 1997 barangay elections, the election was reset to August 30, 1997.  Due to the prevailing tension in the locality, the voting started only at around 9 p.m. and lasted until the early morning of the following day.  Basher filed a petition for the nullification of election.  The Comelec ruled against a failure of election because actual voting had taken place.  However, we overturned the Comelec ruling because the election was unauthorized and invalid. The electorate was not given sufficient notice that the election would push through after 9 p.m. of the same day.  Moreover, the voting did not comply with the procedure laid down by law and by Comelec rules as to the time and place of voting.  Thus, we held that the “election” was illegal, irregular and void.  Consequently, we annulled the proclamation of the winning candidate and ordered a special election.

Basher does not apply to this case.  Unlike in Basher, the election in this case proceeded as scheduled, in accordance with law and Comelec rules.  None of the extreme circumstances that marred the election in Basher is present in this case.  We have ruled that there is failure of election only if the will of the electorate is muted and cannot be ascertained. [27] If the will of the people is determinable, the same must be respected as much as possible. [28] In this case, the will of the electorate is readily discernible.  Pasandalan should have filed an election protest to substantiate his allegations of electoral anomalies, not a petition to declare a failure of election.

WHEREFORE, the instant petition is DISMISSED.  The assailed Resolution of public respondent Comelec is AFFIRMED.  Costs against petitioner.

SO ORDERED.

EN BANC 

[G.R. No. 181097, June 25, 2008] 

NORLAINIE MITMUG LIMBONA, PETITIONER, VS. COMMISSION ON ELECTIONS AND MALIK "BOBBY" T. ALINGAN, RESPONDENTS.

DECISION 

YNARES-SATIAGO, J.:

This petition for certiorari with prayer for issuance of a temporary restraining order and/or writ of preliminary injunction seeks to reverse and nullify the September 4, 2007 Resolution[1] of the Commission on Elections (Comelec) in SPA Case No. 07-611 disqualifying petitioner to run as mayor of the municipality of Pantar, Lanao del Norte, as well as the January 9, 2008 Resolution[2] denying the motion for reconsideration.

Petitioner Norlainie Mitmug Limbona (Norlainie), her husband, Mohammad G. Limbona (Mohammad), and respondent Malik "Bobby" T. Alingan (Malik) were mayoralty candidates in Pantar, Lanao del Norte during the 2007 Synchronized National and Local Elections.  Mohammad and Norlainie filed their certificates of candidacy with Acting Election Officer, Alauya S. Tago, on January 22, 2007 and March 29, 2007, respectively; while Malik filed his certificate of candidacy with the Office of the Election Officer on March 26, 2007.

On April 2, 2007, Malik filed a petition to disqualify Mohammad for failure to comply with the residency requirement. The petition was docketed as SPA No. 07-188.  Subsequently, or on April 12, 2007, Malik filed another petition to disqualify Norlainie also on the ground of lack of the one-year residency requirement.  The petition was docketed as SPA No. 07-611.[3]

On April 21, 2007, Norlainie filed an Affidavit of Withdrawal of Certificate of Candidacy.[4]  Thereafter, or on May 2, 2007, she filed

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before the Office of the Provincial Election Supervisor a Motion to Dismiss[5] the petition for disqualification in SPA No. 07-611 on the ground that the petition had become moot in view of the withdrawal of her certificate of candidacy.

The Comelec en banc granted the withdrawal of Norlainie's certificate of candidacy in Resolution No. 7949[6] dated May 13, 2007, the dispositive portion of which provides:

The Commission RESOLVED, as it hereby RESOLVES, to approve the foregoing recommendations of the Law Department, as concurred in by Commissioner Florentino A. Tuason, Jr., as follows:

1. To GIVE due course to the Affidavits of Withdrawal of Certificates of Candidacy of the following candidates:

x x x x

Norlaine M. Limbona Mayor Pantar, Lanao del Norte

x x x x

2. To direct the Election Officers concerned to DELETE the aforementioned names of candidates from the Certified List of Candidates.

Let the Law Department implement this resolution with dispatch.

SO ORDERED.Meanwhile, the First Division of Comelec issued on May 24, 2007 a Resolution[7] in SPA No. 07-188 granting the petition filed by Malik and disqualifying Mohammad from running as municipal mayor of Pantar, Lanao del Norte for failing to satisfy the one year residency requirement and for not being a registered voter of the said place, thus:WHEREFORE, premises considered, the instant petition is GRANTED.  Respondent Mohammad "Exchan" G. Limbona is hereby disqualified.  Accordingly, his name is ordered deleted from the official list of candidates for the position of mayor of the municipality of Pantar, Lanao del Norte.

SO ORDERED.The May 24, 2007 Resolution became final and executory on June 2, 2007.[8]

Consequently, Norlainie filed a new certificate of candidacy as substitute candidate for Mohammad which was given due course by the Comelec en banc in its Resolution No. 8255[9] dated July 23, 2007, the dispositive portion of which states:The Commission RESOLVED, as it hereby RESOLVES, to approve the foregoing recommendations of the Law Department, as follows:

1. To GIVE due course to the Certificate of Candidacy and Certificate of Nomination and Acceptance of Norlainie "Lai-Exchan" Mitmug Limbona as substitute candidate forMohammad "Exchan" G. Limbona for Mayor, Pantar, Lanao del Norte; and

2. To direct the Election Officer of Pantar, Lanao del Norte toDELETE the name of Mohammad "Exchan" G. Limbona from the Certified List of Candidates for Mayor, Pantar, Lanao del Norte and to INCLUDE therein the name of Norlainie "Lai-Exchan" Mitmug Limbona.

Let the Law Department implement this resolution with dispatch.

SO ORDERED.Thus, Malik filed a second petition for disqualification against Norlainie docketed as SPA No. 07-621.

After the elections, Norlainie emerged as the winning candidate and accordingly took her oath and assumed office.

However, on September 4, 2007, the Second Division of Comelec in SPA No. 07-611 disqualified Norlainie on three grounds: lack of the one-year residency requirement; not being a registered voter of the municipality; and, nullity of her certificate of candidacy for having been filed at a place other than the Office of the Election Officer.

Norlainie filed an Omnibus Motion to declare the petition in SPA No. 07-611 moot and/or for reconsideration, arguing that the Comelec en banc had approved the withdrawal of her first certificate of candidacy and had given due course to her new certificate of candidacy as a substitute candidate for Mohammad.  Malik opposed the omnibus motion.

Meanwhile, the Second Division of Comelec in SPA No. 07-621, promulgated on November 23, 2007 a Resolution[10] disqualifying Norlainie from running as mayor of Pantar, Lanao del Norte.  It held thus:As regards the residency requirement, We rule for petitioner.

As borne out from the record, respondent's domicile of origin was in Maguing, Lanao del Norte, which is her place of birth. When she got married, she became a resident of Marawi City, specifically, in Barangay Rapasun where her husband served as Barangay Chairman until November 2006.  This is her domicile by operation of law pursuant to the Family Code as applied in the case of Larrazabal v. Comelec (G.R. No. 100739, September 3, 1991).

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What respondent now is trying to impress upon Us is that she has changed her aforesaid domicile and resided in Pantar, Lanao del Norte.     x x x

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.[11]

On January 9, 2008, the Comelec en banc in SPA No. 07-611 denied Norlainie's motion for reconsideration.

Hence, the instant petition alleging that the Comelec gravely abused its discretion in proceeding to resolve the petition in SPA No. 07-611 despite the approval of petitioner's withdrawal of certificate of candidacy.[12]

On January 29, 2008, the Court resolved to issue a temporary restraining order effective immediately enjoining respondents from enforcing and implementing the Comelec Resolutions disqualifying petitioner as a candidate for mayor in Pantar, Lanao del Norte.[13]

The petition lacks merit.

The withdrawal of a certificate of candidacy does not necessarily render the certificate void ab initio.  Once filed, the permanent legal effects produced thereby remain even if the certificate itself be subsequently withdrawn.[14]  Section 73 of the Omnibus Election Code of the Philippines (B.P. Blg. 881, as amended) provides:Sec. 73.  Certificate of candidacy. - No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein.  A person who has filed a certificate of candidacy may, prior to the election, withdraw the same by submitting to the office concerned a written declaration under oath.  No person shall be eligible for more than one office to be filled in the same election, and if he files his certificate of candidacy for more than one office, he shall not be eligible for any of them. However, before the expiration of the period for the filing of certificate of candidacy, the person who has filed more than one certificate of candidacy may declare under oath the office for which he desires to be eligible and cancel the certificate of candidacy for the other office or offices.  The filing or withdrawal of a certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred.  (Emphasis supplied)Thus, when petitioner filed her certificate of candidacy on March 29, 2007, such act produced legal effects, and the withdrawal of the same, despite the approval of the Comelec, did not bar or render nugatory the legal proceedings it had set in motion.  As such, the Comelec did not commit grave abuse of discretion when it ruled on the merits of the petition despite the withdrawal of petitioner's certificate of candidacy.  The Comelec correctly held that a case only becomes moot when "there is no more actual controversy between the parties or no useful purpose can be served in passing upon the merits."[15]  In the instant case, although petitioner withdrew her first certificate of candidacy, the subsequent disqualification of her husband required that she file a new certificate of candidacy as a substitute candidate.  The second filing of a certificate of candidacy thus once again put her qualifications in issue.  Hence, a ruling upon the same is necessary.

The fact that petitioner's certificate of candidacy as a substitute candidate was given due course by the Comelec did not bar the Comelec from deciding on her qualifications to run as municipal mayor. As correctly found by the Comelec:Said resolution (Comelec Resolution No. 8255) discloses only the following: a) movant is given the green lights to be the substitute candidate for her husband who was disqualified; b) her certificate of candidacy was duly accomplished in form and substance and c) the certificate of candidacy will not cause confusion among the voters.  Clearly, no issue of disqualification was passed upon by the Commission in the said resolution.

Movant may have been given the impression that the Commission's act of giving due course to her substitute certificate of candidacy constitutes a pronouncement that she is not disqualified.  It must be pointed out, however, that the bases for giving due course to a certificate of candidacy are totally different from those for enunciating that the candidate is not disqualified. x x x[16]

Moreover, the Electoral Reforms Law of 1987 (R.A. No. 6646) "authorizes the Commission (Comelec) to try and decide petitions for disqualifications even after the elections,"[17] thus:SEC. 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted.  If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.  (Emphasis ours)As such, the Comelec did not err when it continued with the trial and hearing of the petition for disqualification.

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.[18]  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.[19]

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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.[20]  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.[21]

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.[22]  A person's "domicile" once established is considered to continue and will not be deemed lost until a new one is established.[23]

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 withanimus 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.[24]

Petitioner's claim that she has been physically present and actually residing in Pantar for almost 20 months prior to the elections,[25] 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.[26]

We note the findings of the Comelec that petitioner's domicile of origin is Maguing, Lanao del Norte,[27] 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,[28] 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.[29]

Thus, for failure to comply with the residency requirement, petitioner is disqualified to run for the office of mayor of Pantar, Lanao del Norte. However, petitioner's disqualification would not result in Malik's proclamation who came in second during the special election.

The rules on succession under the Local Government Code shall apply, to wit:SECTION 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice-Mayor. - If a permanent vacancy occurs in the office of the xxx mayor, the xxx vice-mayor concerned shall become the xxx mayor.

x x x x

For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify or is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office.

x x x x (Emphasis ours)Considering the disqualification of petitioner to run as mayor of Pantar, Lanao del Norte, the proclaimed Vice-Mayor shall then succeed as mayor.

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.

EN BANC

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[G.R. No. 131488.  August 3, 1998]

ESPIRITA N. ACOSTA, petitioner, vs. THE COMMISSION ON ELECTIONS, JUDGE GENOVEVA COCHING MARAMBA,  in her capacity as Presiding Judge of the Municipal Circuit Trial Court, San Fabian/San Jacinto, Pangasinan and RAYMUNDO I. RIVERA, respondents.

DECISION

ROMERO, J.:

For the Court’s resolution is the instant petition for certiorari with prayer for the issuance of a writ of preliminary injunction and/or temporary restraining order assailing the December 2, 1997, resolution of the Commission on Elections (COMELEC)  En Banc in SPR No. 13-97, entitled “Espirita N. Acosta v. Hon. Genoveva Coching-Maramba in her capacity as Presiding Judge, 4th Municipal Circuit Trial Court, San Fabian-San Jacinto, Pangasinan, and Raymundo I. Rivera.” 

The parties herein were candidates for the position of Punong Barangay in Bgy. Sobol, San Fabian, Pangasinan, during the May 12, 1997, barangay election.  By a winning margin of four votes, petitioner was proclaimed as the duly elected Punong Barangay.   On May 15, 1997, Rivera filed an election protest with the Municipal Circuit Trial Court of San Fabian-San Jacinto, alleging that the votes cast for him in Precincts No. 22-A, No. 22-A-1, No. 22-B, and No. 22-B-1 were not duly and properly accounted for due to “misreading, non-reading, mistallying, and misappreciation of ballots/votes,”  and praying for a recount of the votes.  The following day, the court a quo summoned Acosta who, on May 19, 1997, filed a Motion for Time to File Answer.   In an order dated May 21, 1997, the court denied said motion and concluded that the election protest was sufficient in form and substance.  Furthermore, considering that from the allegations in the protest a revision of ballots was necessary, the court also ordered the COMELEC Election Registrar and/or the Municipal Treasurer of San Fabian to bring to court the ballot boxes of Bgy. Sobol, together with their keys, list of voters with voting records, book of voters and other election documents. 

On May 29, 1997, petitioner filed with the COMELEC a petition for certiorari and prohibition with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction, questioning the May 21, 1997, order of the MCTC.  This was docketed as SPR No. 13-97.

The following day, May 30th, after determining that Rivera should have garnered 408 votes, three votes more than Acosta’s 405, the lower court rendered a decision  nullifying petitioner’s proclamation and declaring Rivera as the duly elected Punong Barangay of Bgy. Sobol. Petitioner filed a notice of appeal on June 11, 1997, which respondent Judge granted in an order of even date.   Said appeal was assigned UNDK No. 5-97 before the COMELEC.

On December 2, 1997, the COMELEC issued an en banc Resolution in SPR No. 13-97 dismissing the petition for lack of merit, and affirming the assailed order dated May 21, 1997, as well as the trial court’s decision dated May 20, 1997 (should be May   30 , 1997).  Aggrieved by said ruling, petitioner  went to this Court for relief.

The Court finds the instant petition meritorious.

The COMELEC indeed exceeded the bounds of its authority when it affirmed the trial court’s decision when said judgment was not the subject of SPR No. 13-97, a special civil action assailing an interlocutory order of the same lower court.   The fact that the decision was eventually elevated to the COMELEC on appeal does not cure the defect since said appeal was not consolidated with SPR No. 13-97.  In fact, it was still undocketed at the time and the parties had not yet submitted any evidence relating to the election protest.

Due process dictates that before any decision can be validly rendered in a case, the following safeguards must be met:  (a) the court or tribunal must be clothed with judicial authority to hear and determine the matter before it;  (b)  it must have jurisdiction over the person of the party or over the property subject of the controversy;  (c) the parties thereto must have been given an opportunity to adduce evidence in their behalf, and  (d) such evidence must be considered by the tribunal in deciding the case. [1] While the COMELEC cannot be faulted for resolving the issue raised by petitioner in SPR No. 13-97, namely, the propriety of the lower court’s order dated May 21, 1997, it exceeded its authority and thereby gravely abused its discretion when, in the same resolution, it affirmed said court’s decision dated May 30, 1997, which was the subject of petitioner’s appeal, UNDK No. 5-97.

Furthermore, the Court notes that the assailed resolution was issued by the COMELEC en banc, again in excess of its jurisdiction.  Under Article IX-C, Section 3 of the Constitution, the COMELEC must hear and decide election cases “in division, provided that motions for reconsideration of decision shall be decided by the Commission en banc.”[2] This Constitutional mandate was clearly violated by the COMELEC in the case at bar.

WHEREFORE, the instant petition for certiorari is GRANTED.  The assailed resolution of the COMELEC en banc dated December 2, 1997, is hereby NULLIFIED and SET ASIDE, and the records of this case are ordered REMANDED to a Division of the COMELEC for proper disposition of SPR No. 13-97 and UNDK No. 5-97.  No pronouncement as to costs.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

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G.R. No. 112060 July 17, 1995

NORBI H. EDDING, petitioner, vs.COMMISSION ON ELECTIONS and PABLO BERNARDO, respondents.

 

FRANCISCO, J.:

In focus once again is the issue of whether or not the Commission on Elections (COMELEC) has jurisdiction to issue Writs of Certiorari against the interlocutory order of the Regional Trial Court (RTC) in election cases.

This is a Special Civil Action for Certiorari and Prohibition with Urgent Prayer for Writ of Preliminary Injunction/Restraining Order, brought before us by petitioner Norbi H. Edding, assailing the Order of the COMELEC dated September 23, 1994 issued in SPR No. 5-93 entitled "Pablo S. Bernardo vs. Honorable Judge Wilfredo G. Ochotorena, Presiding Judge of the Regional Trial Court of Zamboanga del Norte, Branch 9, Sindangan, Zamboanga del Norte, Norbi H. Edding", which ordered as follows:

WHEREFORE, in the light of the foregoing and as prayed for, the Commission En Banc hereby ORDERS the issuance of a writ of preliminary injunction upon the petitioner's filing of a cash bond in the amount of One Hundred Thousand Pesos (P100,000.00) in favor of private respondent and conditioned for the payment of damages which private respondent may suffer by reason of issuance of the writ should the Commission finally decide that the petitioner is not entitled thereto, directing:

1) Respondent Judge to cease and desist from enforcing the Resolution dated July 13, 1993 issued in connection with Election Case No. SE-10 entitled Norbi H. Edding versus Pablo S. Bernardo, et al.; and

2) Respondent Norberto H. Edding to cease and desist from performing the duties and functions of the Office of the Mayor, Sibuco, Zamboanga del Norte. . . . 1

Material hereto are the following antecedents:

During the May 1992 elections, petitioner Norbi H. Edding and Respondent Pablo S. Bernardo were among the candidates for the office of the municipal mayor of Sibuco Zamboanga del Norte.

After the canvassing of the election returns, Bernardo was declared winner over Edding by 212 votes. Unconvinced and alleging massive election fraud, Edding filed an election protest on June 9, 1992 with the Regional Trial Court of Sindangan, Zamboanga del Norte docketed as Election Case No. SE-10. 2

Upon termination of the protest proceedings and recounting of the ballots, the RTC rendered judgment on July 2, 1993 proclaiming Edding as the winner of the election for the mayoralty seat of Sibuco, Zamboanga del Norte, and declaring as null and void the election of respondent Bernardo. 3

On July 8, 1993, Bernardo filed a Notice of Appeal while Edding moved for the immediate execution of the July 2, 1993 decision. 4 Bernardo opposed Edding's motion, claiming that the RTC has no jurisdiction to order execution pending appeal, and invoked Section 17 of Ruler 37 of the COMELEC Rules of Procedure which allows execution only if the judgment has become final.  5

On July 12, 1993, the RTC Approved Bernardo's Notice of Appeal. On the next day however, July 13, 1993, the RTC granted Edding's Motion for Immediate Execution, and ordered the records of the case to be forwarded to the COMELEC. 6 Thereafter, Edding replaced Bernardo, and assumed office on the July 15, 1993.

On July 16, 1993, Bernardo filed with the COMELEC a Petition for Certiorari with Application for Preliminary Injunction and for Issuance of a Temporary Restraining Order, docketed as SPR No. 5-93 seeking to enjoin the Order of the RTC granting execution pending appeal. 7 The COMELEC gave due course to the petition, and issued a temporary restraining order on July 19, 1993.

Finally, the COMELEC issued the assailed Order on September 23, 1993, which Edding received on October 12, 1993.

Hence, the instant petition.

In Our Resolution dated October 21, 1993, we granted petitioner Edding's prayer for a temporary restraining order and ordered respondent COMELEC to cease and desist from further proceeding with SPR No. 5-93. At the same time, we required respondents COMELEC and Bernardo to submit their Comment within ten (10) days from notice.8

Respondent COMELEC filed its Comment on December 8, 1993, 9 which Bernardo opted to adopt as his own. 10

Petitioner advances the argument that in the absence of any conferment on the COMELEC, under the Constitution or by any statute, the COMELEC lacks jurisdiction to issue writs of certiorari. This is in consonance with the pronouncements in the cases of Garcia, et

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al. vs. De Jesus, et al. 11 and Uy vs. COMELEC, et al., 12 which categorically declared that the COMELEC does not have any jurisdiction to grant writs of certiorari, prohibition andmandamus.

Moreover, petitioner asserts that the power of the RTC to grant execution pending appeal in election cases has ready been confirmed in the case of Tobon-Uy vs. COMELEC (supra) where it was held that "the COMELEC is bereft of authority to deprive Regional Trial Courts of the competence to order execution pending appeal."

On the other hand, respondents contend that the COMELEC has the power to issue writs of certiorari, prohibition and mandamus, invoking Sections 2(2) and 3 of Article IX of the 1987 Constitution, which provides in part:

Sec. 2. THE COMMISSION ON ELECTIONS SHALL EXERCISE THE FOLLOWING POWERS AND FUNCTIONS:

xxx xxx xxx

(2) . . . APPELLATE JURISDICTION OVER ALL CONTESTS INVOLVING ELECTIVE MUNICIPAL OFFICIALS DECIDED BY TRIAL COURTS OF GENERAL JURISDICTION, OR INVOLVING ELECTIVE BARANGAY OFFICIALS DECIDED BY TRIAL COURTS OF LIMITED JURISDICTION.

xxx xxx xxx

Sec. 3. THE COMMISSION ON ELECTIONS MAY SIT EN BANC OR IN TWO DIVISIONS, AND SHALL PROMULGATE ITS RULE OF PROCEDURE IN ORDER TO EXPEDITE DISPOSITION OF ELECTION CASE, INCLUDING PRE-PROCLAMATION CONTROVERSIES. . . .

Respondents anchor their position principally on the dissenting opinion of Justice Abdulwahid Bidin in the aforecited Garcia and Tobon-Uy cases [supra].

Previously, the rule in our jurisdiction is that the COMELEC is not empowered to issue writs of certiorari, prohibition and mandamus in the absence of any constitutional or statutory grant. This doctrine was initially laid down in the case of Pimentel vs. COMELEC 13 and subsequently affirmed in the consolidated case of Garcia, et al. vs. De Jesus, et al [supra] and Tobon-Uy vs. COMELEC, et al. [supra] promulgated March 4, 1992. Although there was a strong dissenting opinion in the latter cases, which are the very same arguments invoked by respondents, the aforementioned ruling was nevertheless affirmed and reiterated in the succeeding case of Veloria vs. COMELEC.14

Recently, however, this court decided to abandon the rule laid down in the aforecited cases. In Relampagos vs. Cumba and the COMELEC, 15 this court upheld the jurisdiction of the COMELEC to issue writs of certiorari, prohibition and mandamus over election cases where it has appellate jurisdiction by virtue of Section 50 of Batas Pambansa Blg. 697, which provides as follows:

Sec. 50. Definition. —

xxx xxx xxx

The commission is hereby vested with the exclusive authority to hear and decide petitions forcertiorari, prohibition and mandamus involving election cases.

Although B.P. Blg. 697 was originally intended to govern the election of the members of the Batasang Pambansa that was held on May 14, 1988 and the selection of sectoral representatives thereafter as provided by the Constitution, 16 the same was not rendered functus officio after the 1984 elections. Some of its provisions remained effective and among which is Section 50. Thus, the Court ruled that:

This Court agrees with the respondent COMELEC that there are provisions in B.P. Blg. 697 whose lifetime go beyond the 14 May 1984 election or the subsequent selection of sectoral representatives. In fact, by the very wording of the last paragraph of its Section 50, to wit:

Sec. 50. Definition. —

xxx xxx xxx

The Commission is hereby vested with the exclusive authority to hear and decide petitions forcertiorari, prohibition and mandamus involving election cases. (Emphasis supplied) it is quite clear that the exercise of the power was not restricted within a specific period of time. Taken in the context of the conspicuous absence of such jurisdiction as ruled in Pimentel vs. Commission on Elections, it seems quite obvious that the grant was intended as a remedial legislation to eliminate the seeming incongruity or irrationally resulting in a splitting of jurisdiction pointed out in the dissenting opinion of Justice de Castro in the said case. 17

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Neither was B.P. Blg. 697 totally repealed upon the passage of the Omnibus Code 18 considering that the second sentence of the repealing clause in the latter, which reads as follows:

Sec. 282. Repealing clause — Presidential Decree No. 1296, otherwise know as the 1978 Election Code, as amended, is hereby repealed. All other election laws, decrees, executive orders, rules and regulations, or parts thereof, inconsistent with the provisions of this Code are hereby repealed, except Presidential Decree No. 1618 and Batas Pambansa Blg. 20 governing the election of the members of the Sangguniang Pampook of Regions IX and XII.

was found to be in the nature of a general repealing clause which in legal contemplation is a nullity. 19 Moreover, the court observed that:

By the tenor of its aforequoted Repealing clause, it does not evidently appear that the Batasang Pambansa had intended to codify all prior election statutes and to replace them with the new Code. It made, in fact, the second sentence, a reservation that all prior election statutes or parts thereof not inconsistent with any provisions of the Code shall remain in force.

xxx xxx xxx

This being the case, the Court painstakingly examined the aforesaid last paragraph of Section 50 of the Omnibus Election Code to determine if the former is inconsistent with any of the provisions of the latter. It found none. 20

The present rule therefore established by the aforecited Relampagos case is as follows:

In the face of the foregoing disquisitions, the Court must, as it now does, abandon the ruling in theGarcia and Uy and Veloria cases. We now hold that the last paragraph of Section 50 of B.P. Blg. 697 providing as follows:

The Commission is hereby vested with exclusive authority to hear and decide petitions for certiorari, prohibition and mandamus involving election cases.

remains in full force and effect but only in such cases where, under paragraph (2), Section 1, Article IX-C of the Constitution, it has exclusive appellate jurisdiction. Simply put, the COMELEC has the authority to issue the extraordinary writs of certiorari, prohibition and mandamus only in aid of its appellate jurisdiction. 21

But notwithstanding the aforementioned pronouncements, the COMELEC committed grave abuse of discretion in the instant case when it enjoined the order of the RTC, dated July 13, 1993, granting petitioner's motion for immediate execution. Private respondent's petition for certiorari with application for a writ of preliminary injunction before the COMELEC is anchored on the former's claim that the trial court acted without or in excess of jurisdiction and with grave abuse of discretion in granting execution despite the filling of a notice of appeal by private respondent within the reglementary period. 22

It appears however that on July 8, 1993, the same day when private respondent filed his notice of appeal with the RTC, petitioner in turn filed his motion for immediate execution. Both actions were therefore seasonably filed within the five-day reglementary period for filling an appeal 23 since the decision of the RTC was promulgated in open court on July 8, 1993.

The settled rule is that the mere filing of a notice of appeal does not divest the trial court of its jurisdiction over a case and resolve pending incidents. 24 Where the motion for execution pending appeal was filed within the reglementary period for perfecting an appeal, as in the case at bench, the filing of a notice of appeal by the opposing party is of no moment and does not divest the trial court of its jurisdiction to resolve the motion for immediate execution of the judgment pending appeal because the court must hear and resolve it for it would become part of the records to be elevated on appeal. Since the court has jurisdiction to act on the motion at the time it was filed, that jurisdiction continued until the matter was resolved and was not lost by the subsequent action of the opposing party. 25

Considering however that the term of office for the disputed mayoralty seat will already expire on June 30, 1995, in addition to the fact that the election for the next term of office for the contested post has recently been concluded, the instant petition has therefore become moot.

ACCORDINGLY, the petition is hereby DISMISSED.

SO ORDERED.

EN BANC

[G.R. No. 124169.  April 18, 1997]

91

ASAN "SONNY" CAMLIAN, petitioner, vs. COMMISSION ON ELECTIONS and LEONARDO A. PIOQUINTO,respondents.

D E C I S I O N

KAPUNAN, J.:

What is to be resolved in this case is whether or not the Commission on Elections (COMELEC) committed grave abuse of discretion in setting aside the Regional Trial Court's order of execution pending appeal of its decision declaring petitioner as duly elected mayor of Isabela, Basilan in the May 8, 1995 elections.

The facts are as follows:

Petitioner Asan "Sonny" Camlian and private respondent Leonardo A. Pioquinto were among the candidates for the mayoralty of Isabela, Basilan during the May 8, 1995 elections.

After the canvassing, private respondent was found to have obtained a total of eight thousand two hundred seventeen (8,217) votes while petitioner garnered a total of five thousand nine hundred forty six (5,946) votes.   Consequently, private respondent was proclaimed winner by the Municipal Board of Canvassers of Isabela, Basilan on May 12, 1995.  He, thereafter, assumed office and discharged the duties and responsibilities of the same.

On May 19, 1995, petitioner filed an electoral protest before the Regional Trial Court (RTC) of Basilan, Branch II.

On January 22, 1996, the RTC rendered a decision declaring petitioner as the duly elected mayor of Isabela, Basilan after finding that he obtained a total of five thousand eight hundred thirty six (5,836) votes over private respondent's two thousand two hundred ninety one (2,291) votes.[1]

On the same day, private respondent filed a notice of appeal while petitioner filed a motion for execution pending appeal.

On January 29, 1996, a hearing was conducted on the motion for execution pending appeal.

On January 31, 1996, the RTC issued an order granting petitioner's motion for execution pending appeal.[2] Accordingly, a writ of execution was issued.  On the same day, petitioner assumed office and commenced to discharge the functions appurtenant thereto.

On February 6, 1996, private respondent filed a petition for certiorari with prayer for preliminary injunction and issuance of a temporary restraining order with respondent COMELEC, docketed as SPR No. 5-96.

On February 8, 1996, respondent COMELEC issued a temporary restraining order directing (a) Judge Salvador Memoracion to cease and desist from implementing the January 31, 1996 order of execution and (b) petitioner from assuming and discharging the functions of the office of the mayor of Isabela, Basilan until further orders therefrom.[3]

On February 29, 1996, hearing and oral arguments on the petition and the preliminary injunction was conducted by respondent COMELEC.

On March 14, 1996, respondent COMELEC issued an order granting the issuance of a writ of preliminary injunction.[4]

On March 18, 1996, respondent COMELEC issued another order declaring that the preliminary injunction it issued was in the nature of a mandatory injunction by reason of which petitioner must cease from discharging the functions of the office of the mayor of Isabela, Basilan.

On March 27, 1996, petitioner filed the instant petition for certiorari seeking the nullification of the orders of respondent COMELEC directing (a) RTC Judge Salvador Memoracion to cease and desist from implementing his order granting petitioner's motion for execution pending appeal and (b) petitioner to cease and desist from discharging the functions of the office of the mayor of Isabela, Basilan.

On March 29, 1996, this Court issued a temporary restraining order ordering respondent COMELEC to cease and desist from implementing and enforcing its March 14, 1996 order.[5]

On April 16, 1996, respondent COMELEC issued yet another resolution resolving on the merits SPR No. 5-96.  The decretal portion of the same reads:

WHEREFORE, the petition of Leonardo A. Pioquinto is hereby GRANTED.  Judgment is hereby rendered:

1.  DECLARING NULL AND VOID ab initio, the Order dated January 31, 1996 granting the issuance of writ of execution in Electoral Protest No. 1-95;

2.  DECLARING likewise, null and void AND OF NO EFFECT, the writ of execution dated January 31, 1996, being based on null and void Order of January 31, 1996;

3.  The proclamation of respondent Asan Camlian on January 22, 1996 is likewise declared null and void;

4.  DIRECTING respondent Asan Camliam (sic) to vacate the office of Mayor of Isabela, Basilan and to relinquish the said position to Leonardo A. Pioquinto.

The above resolution is without prejudice to the final resolution of the appeal filed before this Commission by Leonardo A. Pioquinto protestee-appellant docketed as EAC No. 4-96.

SO ORDERED.[6]

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Consequently, petitioner filed a motion for leave to file supplemental and/or amended petition attaching thereto his supplemental and/or amended petition, this time including in his cause the prayer for nullification of the April 16, 1996 order of respondent COMELEC.

The sole issue for resolution in the instant case hinges on whether or not respondent COMELEC committed, or acted in, grave abuse of discretion amounting to lack of jurisdiction in issuing the assailed orders nullifying the RTC's January 31, 1996 order granting the motion for execution pending appeal.

The remedy of certiorari is proper only to correct errors of jurisdiction committed by a lower court, tribunal, board or agency exercising judicial functions, or grave abuse of discretion which is tantamount to lack of jurisdiction.   Where the error is not one of jurisdiction but an error of law or fact which is a mistake of judgment, certiorari is not available.  In the instant case, herein petitioner asseverates that the challenged orders were issued by respondent COMELEC with grave abuse of discretion amounting to lack of jurisdiction and should therefore be set aside.

We do not agree.

At the outset, we note that there is no dispute with respect to the jurisdiction of the Regional Trial Courts to rule on motions for execution pending appeal filed within the reglementary period for perfecting an appeal.[7] Consequently, the filing of a notice of appeal within the same period does not divest the trial court of its jurisdiction over a case and resolve pending incidents.[8] Neither is there any doubt that the COMELEC has the authority to issue the extraordinary writs of certiorari, prohibition and mandamus in election cases over which it has appellate jurisdiction by virtue of Section 50 of Batas Pambansa Bilang 697. [9] What petitioner would like this Court to consider is solely the issue of whether or not respondent COMELEC erred in annulling and setting aside the order of the RTC granting the motion for execution pending appeal in the absence of good reasons for the immediate execution of the questioned judgment.

Pursuant to Section 1, Rule 41 of the COMELEC Rules of Procedure, Section 2, Rule 39 of the Rules of Court, 10 which allows Regional Trial Courts to order execution pending appeal upon good reasons stated in a special order, 11 may be made to apply suppletorily or by analogy to election cases decided by them.12 While execution pending appeal may be allowed under the foregoing rule, the said provision must be strictly construed against the movant as it is an exception to the general rule on execution of judgments.13 Following civil law jurisprudence, the reason allowing for immediate execution must be of such urgency as to outweigh the injury or damage of the losing party should it secure a reversal of the judgment on appeal. Absent any such justification, the order of execution must be struck down as flawed with grave abuse of discretion.14

In the case before us, no such justification exists.

Records bear that petitioner, in his pleading entitled "Supplemental Reasons and Arguments on the Matter of the Propriety for the Immediate Issuance of a Writ of Execution" (his earlier "Motion for Execution" contained no good reasons) cited the following as alleged "good" reasons for immediate execution pending appeal, to wit:

1.)  This is an Election Case and as such enjoys preference over all action (sic) except habeas corpus (Art. 258, P.B. 881, otherwise known as the Omnibus Election Code);

2.)  Public interest demands that any cloud as to the true result of an election should be dispelled as soon as possible.   The legislative policy embodied in these sections which hastens the administration of justice in election contests is aimed at making more effective the constitutional principle that sovereignty resides in the people (QUERUBIN v. CA, G.R. 2581, cited in GONZALES, Administrative Law, Law on Public Officers, and Election Law, 1966 ed., P. 518);

3.) Even before the judgment has become executory and before appeal was perfected, the Court, in its discretion, may order execution upon good reason (sic) to be stated in the special order such as where the appeal is clearly dilatory.  (RODRIGUEZ v. CA, May 23, 1959; DE VERv. SANTOS, 1-24351, Sept. 22, 1977), 1 An appeal for delay is good for execution pending appeal. When an appeal is taken for purpose of delay, such fact is good reason for granting execution pending appeal; (PRESBITERO v. RODAS, 77 PHIL. 300; ILOILO TRADING CENTERv. RODAS, 77 PHIL. 327), 2 A dilatory tactic to unduly delay the restoration of the possession of the land in question (Office of this Case) and the fruitful used thereof in violation of plaintiff's rights is good enough reason to execute judgment pending appeal; (TOLEDO v. TIZON, CA, G.R. No. 27412-R, Sept. 2, 1960), 3 The absence of a good defense on appeal is a good reason for execution pending appeal. There was consequently no excuse to Felix Feria waiting for the outcome of the proceedings on appeal, which obviously will not affect his right to recover; (NAVARRA v. MARTINEZ, 66 PHIL. 178; LUZON SURETY COMPANY, INC., v. ENRIQUEZ, No. L-9744, JAN. 29, 1957), 4 Another good reason for the grant of immediate execution is where the prevailing party posts sufficient bond to answer for damages in case of reversal of the judgment; (HDA. NAVARRA v. LABRADOR, 65 PHIL. 336; GF PVTA v. LUCERO, ET. AL., L-32550, OCT. 27, 1983), 5 The losing party, however, can post a supersedes (sic) bond to prevent execution pending appeal; (NAWASA v. CATOLICO, L-21705 AND L-24327, APRIL 27, 1967; CITY OF MANILA v. CA, ET. AL., L-35253, JULY 26, 1976), 6 But, where the needs of the prevailing party and that of public interest are urgent, the Court can order the IMMEDIATE EXECUTION DESPITE THE SUPERSEDEAS BOND.15

In the trial court's order for execution pending appeal, it merely adopted some of the alleged "good" reasons invoked by the petitioner, namely:  (a) public interest in the true outcome of the election; (b) finding that private respondent "illegally manufactured votes;" and (c) appeal was interposed merely for the purpose of delay.16

Respondent COMELEC found the foregoing reasons inadequate and insufficient to constitute as "good reasons" within the purview of the law.  It discussed:

A reading of the disputed Order of execution pending appeal dated January 31, 1996 shows that respondent judge just quoted the reasons advanced by protestant for the propriety of the issuance of the execution pending appeal and tackled the jurisdiction of the trial court in issuing the execution pending appeal citing the cases of Norbi H. Edding versus Commission on Elections, GR No. 112060, July 17, 1995 and the case of Tomas Tobon Uy versus Commission on Elections, 206 SCRA 779 and its findings after examination of the contested ballots that protestee garnered only 2,291 votes as against protestant's

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5,916 votes and concluded that protestee was able to illegally manufacture 5,836 votes in his favor to the prejudice of protestant and the sovereign will of the people of the Municipality of Isabela, Basilan.

Thus, a mere reading of the assailed Order of execution pending appeal shows no good reasons. It must be emphasized that Section 2 of Rule 39 must be strictly complied with.  The reason advanced by the respondent judge that his ruling finding that protestee manufactured votes in his favor is one of the good reasons is untenable.  In SPR NO. 2-93 (Antonio Dictado vs. Hon. Rodrigo Cosico), the Commission En Banc had occasion to say: "It has been the consistent ruling of this Commission that while it is true that when an election protest is filed the protestee is only considered a presumptive winner until the protest is resolved, in the same way, when a protestant is adjudged the winner by a court of law but the case is on appeal with the Commission, such appeal likewise makes the protestant a presumptive winner and, unless meritorious grounds exist to execute judgment pending appeal, it is illogical to replace a presumptive winner proclaimed by a board of canvassers, by another presumptive winner so declared by a court.  It needs no explanation that when a protestant is installed as a winner pending appeal, that in itself is already disruptive of the government service.  How much more if the protestee wins the appeal in which case he will have to be reinstalled again to the office which he was forced to vacate?17

We agree.  Not every invocation of public interest with particular reference to the will of the electorate can be appreciated as a good reason especially so if the same appears to be self-serving and has not been clearly established. Public interest will be best served when the candidate voted for the position is finally proclaimed and adjudged winner in the elections.   Urgency and expediency can never be substitutes for truth and credibility.  The appeal interposed by private respondent to the COMELEC does not seem to be merely dilatory as it aims to resolve decisively the question as to who is the true winner in the last elections.   Moreover, apart from petitioner's sweeping and self-serving allegation that the appeal is dilatory, no supporting argument or explanation whatsoever is offered why he considers it so.  The omission militates against the pretended urgency of the motion for execution pending appeal.   We are sure that both petitioner and private respondent would want to see the light at the end of the tunnel.  Finally, the issue of "illegally manufactured votes" is best ventilated, and must accordingly be threshed out, in the election case before the COMELEC.

WHEREFORE, the instant petition is hereby DENIED and the challenged resolutions of the Commission on Elections dated February 8, 1996 and April 16, 1996 in SPR No. 5-96 are AFFIRMED.

The temporary restraining order issued by this Court on March 29, 1996 is hereby LIFTED.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 144678      March 1, 2001

JAVIER E. ZACATE, petitioner, vs.COMMISSION ON ELECTIONS and THELMA C. BALDADO, respondents.

GONZAGA-REYES, J.:

Before us is a petition for certiorari filed pursuant to Section 3, Rule 64 of the 1997 Rules of Court in relation to Section 13(a) of COMELEC Rule 18.

The antecedents are:

Petitioner Javier E. Zacate (petitioner) and respondent Thelma C. Baldado (private respondent) were candidates for the position of Mayor in the Municipality of Sulat, Eastern Samar, in the May, 1998 elections.

The Municipal Board of Canvassers proclaimed private respondent as the duly elected mayor having garnered two thousand nine hundred fifty-eight (2,958) votes as against the two thousand seven hundred nineteen (2, 719) votes of petitioner, private respondent winning by two hundred thirty-nine (239) votes.

Dissatisfied with the outcome, petitioner filed an election protest before the Regional trial Court of Borongan, Samar docketed as Election Protest No. 01-98.

On August 13, 1999, the trial court promulgated its Decision1 dated August 3, 1999 declaring petitioner as the duly elected Mayor with 2, 638 votes over the 2637 votes of private respondent, or with one vote as his winning margin.2

On the same date that the decision was promulgated, August 13, 1999, private respondent filed a notice of appeal. The following day, August 14, 1999, petitioner filed a Motion for Immediate Execution of Judgement Pending Appeal which private respondent opposed on the ground that she had already perfected her appeal.

On August 24, 1999, private respondent filed an Urgent Motion for Classificatory Judgement contending that a clarificatory judgement should be made before ruling on any previous motion affecting the appealed decision since she and petitioner allegedly obtained equal number of votes of 2,637.

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On August 27, 1999, petitioner filed a Supplemental Memorandum claiming that in the final computation of the votes in Precints 4A and 15A1, the valid votes in his favor were omitted such that he should have won by 21 votes and not merely by one (1) vote.1âwphi1.nêt

On the same date, August 27, 1999, the trial court rendered its Supplemental Decision3 that modified its original Decision dated August 3, 1999 by correcting the winning margin of petitioner to two (2) votes instead of one (1) vote.4 The Supplemental Decision also denied the motion for execution of judgement pending appeal filed by petitioner on the ground of lack jurisdiction because private respondent had already perfected her appeal.5 The same Supplemental Decision further ordered the transmission of the complete records of the protest case to the Comelec.

On September 7, 1999 or six (6) days after petitioner received a copy of the Supplemental Decision, he filed a Motion for Partial Reconsideration (of the Supplemental Decision)6 to reverse the denial of his motion for execution pending appeal on two grounds. First, that the trial court did not lose jurisdiction over the case simply because private respondent had already perfected her appeal on August 13, 19997 and second, that good and valid grounds exist for the immediate execution of the judgement.8

After hearing, the trial court issued a Resolution9 dated October 11, 1999 reversing its Supplemental Decision dated August 27, 1999. The Resolution ruled that the trial court still had jurisdiction over the motion for execution pending appeal10, that there are good and valid reasons for granting execution pending appeal11 nd that the motion is not a prohibited pleading. In support of its ruling the trial court cited the case of Asmala vs. COMELEC.12

On October 25, 1999, the trial court issued a Writ of Execution to enforce the judgment in Election Protest No. 01-98.

On October 26, 1999, private respondent filed a motion to cancel and rescind the order granting execution pending appeal but the trial court denied this on November 9, 1999.

On November 11, 1999, private respondent filed with the Comelec a petition for certiorari to annul the order granting execution pending appeal.

On March 21, 2000, the Comelec Second Division issued its now assailed Resolution13 that granted the petition of private respondent and set aside the Resolution of the trial court dated October 11, 1999 and Writ of Execution dated October 25, 1999. In granting the petition, the Comelec ruled that the trial court had no more jurisdiction over the election case when it granted the motion for execution pending appeal of petitioner through its questioned Resolution dated October 11, 1999.14 The Comelec pointed out that the trial court was no longer in possession of the original records of the case when petitioner filed his Motion for Partial Reconsideration since said court in its Supplemental Decision dated August 27, 1999 had already ordered the transmission of the records of the case tot the Comelec.15 The Comelec also noted that the trial court should not have entertained petitioner’s Motion for Partial Reconsideration of the Supplemental Decision16, the same being prohibited by the COMELEC Rules of Procedure (Rule 35, Section 19.17

On September 12, 2000, the Comelec En Banc18 promulgated its Resolution denying the Motion for Reconsideration of petitioner of said March 212, 2000 Resolution of the Second Division.

In this petition, a petitioner raises this sole issue:

"WHETHER OR NOT RESPONDENT COMELEC ACTED WITH GRAVE ABUSE OF DISCRETION BY ERRONEOUSLY RULING, WIHTOUT ANY FACTUAL AND ILEGAL BASIS, THAT THE TRIAL COURT HAD ‘COMPLETELY LOST ITS JURISDICTION’ OVER ZACATES ‘MOTION FOR IMMEDIATE EXECUTION OF JUDGMENT PENDING APPEAL’ WHICH WAS TIMELY FILED DURING THE PERIOD OF APPEAL AND WAS GRANTED SUBSEQUENTLY THEREAFTER."19

Petitioner asserts that in issuing the Resolution eventually granting the motion for immediate execution, the trial court was merely correcting the mistake it had previously committed in its Supplemental Decision wherein it denied the same motion. In said Supplemental Decision, the trial court justified the denial of the motion for execution pending appeal on the ground that the court had completely lost jurisdiction over the case upon the perfection of the appeal of private respondent. Petitioner argues that the denial of his motion for immediate execution was erroneous because the trial court retained jurisdiction over the case since petitioner still had the right to appeal and it was during this period to appeal that he filed the motion for execution pending appeal. Petitioner then rationalizes that consequently, the order of the court to elevate the records of the case to the Comelec, a directive also embodied in the Supplemental Deision, is likewise erroneous.

In reversing the trial court, the Comelec focused on the fact that the trial court was no longer in possession of the records of the case when it issued the Resolution granting discretionary execution. The Comelec pointed out that prior to the issuance of the Resolution, the trial court in its Supplemental Decision had previously directed the elevation of the records of the case to the Comelec. The Comelec also noted that petitioner’s motion for partial reconsideration of the Supplemental Decision was filed out of time since petitioner filed it six (6) days after receipt of the Supplemental Decision when the period to appeal under COMELEC Rules is five days. The Comelec Decision further declared that the motion for partial reconsideration of the Supplemental Decision filed by petitioner is prohibited under Section 19, COMELEC Rule 35 which states that the "decision of the trial court shall become final five (5) days after promulgation. No motion for reconsideration shall be entertained."

Petitioner counters that the mere transmittal of the records to the Comelec did not divest the court of jurisdiction since the records pertain to and are needed only in the appeal, but not in the separate motion for immediate execution. Petitioner further contends that granting that the trial court was deprived of the actual possession of the records of the case, the alleged baseless denial of his motion

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for immediate execution in the Supplemental Decision did not gain finality when he allegedly timely filed his motion for partial reconsideration. Petitioner also objects to the ruling of the Comelec that his motion for partial reconsideration of the Supplemental Decision is prohibited by the COMELEC Rules. The prohibition on the filing of a motion for reconsideration allegedly refers to the final decision of the main election protest, not to the partial or separate motion to execute said decision. According to petitioner, even assuming that the Supplemental Decision had become final, the trial court was not deprived of its jurisdiction to correct errors, mistakes, or omissions as by amendment nunc pro tunc. Petitioner claims that with more reason should the trial court partially correct its Supplemental Decision denying his motion for execution pending appeal when it did not clearly and distinctly express the factual and legal basis for its denial.

On December 6, 2000, petitioner filed an urgent Manifestation/Motion calling the attention of this Court to the Resolution dated November 24, 2000 issued by the Comelec First Division on the appeal filed by private respondent. The Resolution affirmed the decision of the regional trial court that declared petitioner as winner, this time with a winning margin of one hundred eigth (108) votes. Petitioner believes that with the resolution of the Comelec affirming his victory, the issue on the motion for execution pending appeal has become moot and academic.

The Office of the Solicitor General (OSG) agrees with petitioner that he timely filed his motion for execution pending appeal and that the trial court committed an error when it denied said motion in its Supplemental Decision. Based on this premise, the OSG opines that the Resolution eventually issued by the trial court granting petitioner’s motion for partial reconsideration and issuing, as it merely corrected its previous error. The OSG also cites the recent resolution of the Comelec declaring petitioner as the winner in the mayoralty election in Sulat Samar.

On the other hand, private respondent defends the ruling of the Comelec. Private respondent maintains that the jurisdiction of the trial court over the motion for execution pending appeal ended when it denied said motion in its Supplemental Decision. Private respondent further points out that the trial court should not have acted on the motion for partial reconsideration of the Supplemental Decision filed by petitioner because it was filed out of time. Private respondent also reiterates the ruling of the Comelec that the motion for partial reconsideration of petitioner is prohibited by the COMELEC Rules of Procedure since said rule bars any kind of motion for reconsideration.

Notwithstanding the Resolution dated November 24, 2000 of the Comelec First Division confirming the victory of petitioner, a decision which is still subject to the pending appeal on the based on the fact that private respondent had already perfected her appeal. Even the Comelec and private respondent concede that the trial court still had jurisdiction to rule on petitioner’s motion for execution pending appeal in view of the fact that petitioner’s period to appeal had not yet lapsed.

Section 2, Rule 39 of the Rules of Court, the provision governing execution of judgments pending appeal in election case, provides:

"SEC. 2. Discretionary execution . –

a. Execution of a judgment or a final order pending appeal – On motion of the prevailing party filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, at the time of the filing of such motion, said court may, in its discretion, order execution of a judgment or final order even before the expiration of the period to appeal.

After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court.

Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing."

Based on the foregoing, the trial court may only grant discretionary execution while it has jurisdiction over the case and is in possession of either of the original record or the record on appeal, as they case may be, at the time of the filing of such motion. When not all of the parties have perfected their appeal and the period to appeal has yet to expire, the trial court still retains its so-called "residual jurisdiction"20 to order discretionary execution. Discretionary execution is thus barred when the trial court loses jurisdiction and this occurs when all of the parties barred when the trial respective appeals or when the period to appeal has lapsed for those who did not file their appeals and when the court is no longer in possession of the records of the case.

It must be recalled that petitioner still had the right to appeal and the period to appeal had not yet lapsed when he filed his motion for execution pending appeal. Clearly then, the trial court still had jurisdiction to rule on petitioner’s motion for execution pending appeal because the appeal earlier filed by private respondent was without prejudice to petitioner’s right to appeal or invoke the residual jurisdiction of the court to issue discretionary execution.

The crucial issue to consider is whether or not the trial court still had jurisdiction to correct its Supplemental Decision erroneously denying petitioner’s motion for execution pending appeal by subsequently issuing its Resolution granting the motion for execution pending appeal.

We rule in the negative

Basic is the rule that the perfection of an appeal within the statutory or reglementary period is not only mandatory but also jurisdictional and failure to do so renders the questioned decision final and executory, and deprives the appellate court or body of jurisdiction to alter the final judgment much less to entertain the appeal.21 As we shall show hereunder, while petitioner timely filed his motion for execution pending appeal, petitioner belatedly filed the motion for reconsideration of the denial of his motion for execution pending appeal rendering said denial final and executory.

96

The Supplemental Decision decided the main election case in favor of petitioner, but it ruled against petitioner’s motion for execution pending appeal and ordered the elevation of the records of the case. Petitioner therefore was seeking relief from the denial of his motion for immediate execution. However, instead of timely seeking relief from the denial, petitioner allowed the period to appeal to lapse before moving for its reconsideration, making the Supplemental Decision final, including the denial of the motion for immediate execution embodied therein.

The COMELEC Rules of Procedure22 provides that the parties have five (5) days to interpose an appeal before the Comelec, otherwise the judgment will become final. Despite the misleading allegations of petitioner that he filed the motion for the partial reconsideration of the Supplemental Decision on time, the facts of this case however show the contrary.

By his own account, petitioner admits that he received the Supplemental Decision on September 1, 1999 and that on September 7, 1999 or six days after, he then filed his motion for partial reconsideration of the denial of his motion for execution pending appeal as embodied in the Supplemental Decision. Petitioner alleges that his motion for partial reconsideration was timely filed because the fifth or last day for him to file his appeal, September 6, 1999, was a Sunday.23 upon verification, petitioner’s claim is absolutely not true. The last day for petitioner to perfect his appeal, September 6, 1999, was actually a Monday and he filed his motion for reconsideration the next day, Tuesday, a day after the period to appeal had lapsed. Had the last day for filing the appeal been a Sunday, the time to appeal would not have run until the next working day24, in which case, petitioner’s motion for partial reconsideration would have been timely filed on the fifth and last day of the period to appeal.

By the mere lapse of time, the Supplemental Decision was rendered final and executory with respect to petitioner. Hence, as to petitioner, the decision in its entirely had been rendered final such that he had no more right to move for its reconsideration, even if the relief merely referred to an incidental matter. On the other had, the trial court had the corresponding duty not to act on petitioner’s motion for partial reconsideration of the Supplemental Decision when said decision as to petitioner was already final in character.

The case of Asmala vs. Comelec25 does not apply to the case at bar. In that case, the issue was the timeliness of the filing of the motion for execution pending appeal while in this case, there is no dispute that petitioner’s motion for execution pending appeal was timely filed. What sets this case apart from the case of Asmala vs. Comelec is the fact that the trial court in this case was completely without jurisdiction when it reconsidered its decision denying petitioner’s motion for execution pending appeal. In Asmala vs. Comelec, petitioner’s period to appeal had not yet lapsed when the trial court granted his motion for execution. In this case, when the trial court finally resolved to grant petitioner’s motion for execution pending, private respondent had already perfected her appeal while petitioner’s period to appeal had already lapsed and the records of the case were already transmitted to the Comelec. It is clear that the jurisdiction of the trial court cover the case had ended, including the residual jurisdiction to settle pending incidents. Thus, the Supplemental Decision denying the motion for execution pending appeal was already beyond rectification.

To defeat the finding that the Supplemental Decision had gained finality, petitioner foists the theory that the Supplemental Decision is allegedly void for contravening Section 14, Article III of the Constitution. This constitutional provision mandates that "no decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based." The Supplemental Decision allegedly failed to express clearly the factual and legal basis for the denial of the motion for execution pending appeal when it simply denied petitioner’s motion for execution pending appeal in this manner without any further disquisition:

"Anent the motion for execution pending appeal filed by the Protestant, the same is hereby denied for lack of jurisdiction."26

Petitioner then concludes that the alleged void portion of the Supplemental Decision did not completely dispose of the issue of "lack of jurisdiction" and has therefore no binding effect on the parties to the case.1âwphi1.nêt

We do not agree with petitioner. Section 14, Article III of the Constitution clearly refers to decisions and not to rulings on a mere motion. As stated earlier, while the Supplemental Decision wrongly denied petitioner’s motion for execution pending appeal, the remedy left for petitioner then was to timely seek relief from the erroneous ruling. This petitioner failed to do.

WHEREFORE, the petition is hereby DISMISSED Costs against petitioner .

SO ORDERED.

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

DECISION

July 31, 1958

G.R. No. L-12596

JOSE L. GUEVARA, petitioner,

vs.

THE COMMISSION ON ELECTIONS, respondent.

97

Enrique M. Fernando for petitioner.

Dominador D. Dayot for respondent.

, J.:

Petitioner was ordered by the Commissioner on Elections to show cause why he should not be punished for contempt for having

published in the Sunday Times issue of June 2, 1957 an article entitled “Ballot Boxes Contract Hit”, which tended to interfere with

and influence the Commission on Elections and its members in the adjudication of a controversy then pending investigation and

determination before said body “arising from the third petition for reconsideration of May 20, 1957 and the supplementary petition

thereof of June 1, 1957 filed by Acme Steel Mfg. Co., Inc., praying for reconsideration of the resolutions of the Commission of May 4

and 13, 1957, awarding the contracts for the manufacture and supply of 34,000 ballot boxes to the National Shipyards & Steel

Corporation and the Asiatic Steel Mfg. Co., Inc. and the respective answers of the latter two corporations to said petitions; and which

article likewise tended to degrade, bring into disrepute, and undermine the exclusive constitutional function of this Commission and its

Chairman Domingo Imperial and Member Sixto Brillantes in the administration of all the laws relative to the conduct of elections.”

Petitioner, answering summons issued to him by the Commission, appeared and filed a motion to quash on the following grounds:

a) The Commission has no jurisdiction to punish as contempt the publication of the alleged contemptuous article, as neither in the

Constitution nor in statutes is the Commission granted a power to so punish the same, for should Section 5 of Republic Act No. 180,

vesting the Commission with “power to punish contempts provided for in Rule of the Court under the same procedure and with the

same penalties provided therein,” be applied to the case at hand, said provision would be unconstitutional.

b) Assuming that the Commission’s power to punish contempt exists, the same cannot be applied to the instant case, where the

Commission is exercising a purely administrative function for purchasing ballot boxes.

c) Assuming that the Commission’s power to punish contempt exists, said power cannot apply to the present case because the matter

of purchasing the ballot boxes was already a closed case when the article in question was published.

d) Assuming that controversy contemplated by the law was still pending, the article in question was a fair report because it could be

assumed that the news report of the respondent was based on the motion for reconsideration filed by the Acme Steel where there was

an allegation of fraud, etc.

The Commission, after hearing, denied the motion to quash but granted petitioner a period of fifteen (15) days within which to elevate

the matter to the Supreme Court in view of the issue raised which assails the jurisdiction of the Commission to investigate and punish

petitioner for contempt in connection with the alleged publication. Hence the present petition for prohibition with preliminary

injunction.

The facts which gave rise to the present contemptuous incident are: The Commission on Elections, on May 4, 1957, after proper

negotiations, awarded to the National Shipyards & Steel Corporation (NASSCO), the Acme Steel Mfg. Co., Inc. (ACME), and the

Asiatic Steel Mfg. Co., Inc. (ASIATIC), the contracts to manufacture and supply the Commission 12,000, 11,000 and 11,000 ballot

boxes at P17.64, P14.00, and P17.00 each, respectively. On May 8, 1957, both the NASSCO and the ASIATIC signed with the

Commission on Elections the corresponding contracts thereon. On May 13, 1957, the Commission cancelled the award to the ACME

for failure of the latter to sign the contract within the designated time and awarded to the NASSCO and the ASIATIC, one-half each,

the 11,000 ballot boxes originally alloted to the ACME. The corresponding contracts thereon were signed on May 16, 1957.

Then followed a series of petitions filed by the ACME for the reconsideration of the resolution of the Commission of May 13, 1957.

The first of these petitions was filed on May 14, 1957 which, after hearing, was denied by the Commission in its resolution of May 16,

1957. The second petition was filed on May 16, 1957 and was denied on May 17, 1957. The third petition was filed on May 20, 1957,

and because of the seriousness of the grounds alleged therein for the annulment of its previous resolutions, the Commission resolved

to conduct a formal investigation on the matter ordering the NASSCO and the ASIATIC to file their respective answers. Thereafter,

after these corporations had filed their answers, the Commission held a formal hearing thereon on May 24, 1957. On May 28, 1957,

the ACME filed a memorandum on the points adduced during the hearing, and on June 4, 1957, the Commission issued its resolution

denying the third motion for reconsideration. The article signed by petitioner was published in the June 2, 1957 issue of the Sunday

Times, a newspaper of nation-wide circulation.

The question to be determined is whether the Commission on Elections has the power and jurisdiction to conduct contempt

proceedings against petitioner with a view to imposing upon him the necessary disciplinary penalty in connection with the publication

of an article in the Sunday Times issue of June 2, 1957 which, according to the charge, tended to interfere with and influence said

98

Commission in the adjudication of a controversy then pending determination and to degrade and undermine the function of the

Commission and its members in the administration of all laws relative to the conduct of elections.

The Commission on Elections is an independent administrative body which was established by our Constitution to take charge of the

enforcement of all laws relative to the conduct of elections and devise means and methods that will insure the accomplishment of free,

orderly, and honest elections (Sumulong vs. Commission on Elections, 73 Phil. 288; Nacionalista Party vs. The Solicitor General, 85

Phil. 101; 47 O.G. 2356). Its powers are defined in the Constitution. It provides that it “shall have exclusive charge of the enforcement

and administration of all laws relative to the conduct of elections and shall exercise all other functions which may be conferred upon it

by law. It shall decide, save those involving the right to vote, all administrative questions, affecting elections, including the

determination of the number and location of polling places, and the appointment of election inspectors and of other election officials”

(Section 2, Article X). The Revised Election Code supplements what other powers may be exercised by said Commission. Among

these powers are those embodied in Section 5 thereof which, for ready reference, we quote:

SEC. 5. Powers of Commission. – The Commission on Elections or any of the members thereof shall have the power to summon the

parties to a controversy pending before it, issue subpoenas and subpoenas duces tecum and otherwise take testimony in any

investigation or hearing pending before it, and delegate such power to any officer. Any controversy submitted to the Commission on

Elections shall be tried, heard and decided by it within fifteen days counted from the time the corresponding petition giving rise to said

controversy is filed. The Commission or any of the members thereof shall have the power to punish contempts provided for in rule

sixty-four of the Rules of Court, under the same procedure and with the same penalties provided therein.

Any violation of any final and executory decision, order or ruling of the Commission shall constitute contempt of the Commission.

Any decision, order or ruling of the Commission on Elections may be reviewed by the Supreme Court by writ of certiorari accordance

with the Rules of Court or with such rules as may be promulgated by the Supreme Court.

It would therefore appear that the Commission on Elections not only has the duty to enforce and administer all laws relative to the

conduct of elections but the power to try, hear and decide any controversy that may be submitted to it in connection with the elections.

And as an incident of this power, it may also punish for contempt in those cases provided for in Rule 64 of the Rules of Court under

the same procedure and with the same penalties provided therein. In this sense, the Commission, although it cannot be classified as a

court of justice within the meaning of the Constitution (Section 13, Article VIII), for it is merely an independent administrative body

(The Nacionalista Party vs. Vera, 85 Phil. 126; 47 O.G. 2375), may however exercise quasi-judicial functions in so far as

controversies that by express provision of the law come under its jurisdiction. As to what question may come within this category,

neither the Constitution nor the Revised Election Code specifies. The former merely provides that it shall come under its jurisdiction,

saving the right to vote, all administrative questions affecting elections, including the determination of the number and location of

polling places, and the appointment of election inspectors and other election officials, while the latter is silent as to what questions

may be brought it for determination. But it is clear that, to come under its jurisdiction, the questions should be controversial in nature

and must refer to the enforcement and administration of all laws relative to the conduct of election. The difficulty lies in drawing the

demarcation line between a duty which inherently is administrative in character and a function which is justiciable and which would

therefore call for judicial action by the Commission. But this much depends upon the factors that may intervene when a controversy

should arise.

Thus, it has been held that the Commission has no power to annul an election which might not have been free, orderly and honest for

such matter devolves upon other agencies of the Government (Nacionalista Party vs. Commission on Elections, 85 Phil. 148; 47 O.G.

2851); neither does it have the power to decide the validity or invalidity of votes cast in an election for such devolves upon the courts

or the electoral tribunals (Ibid.); it does not also have the power to order a recounting of the votes before the proclamation of election

even if there are discrepancies in the election returns for it is a function of our courts of justice (Ramos vs. Commission on Elections,

80 Phil. 722); nor does it have the power to order the correction of a certificate of canvass after a candidate had been proclaimed and

assumed office (De Leon vs. Imperial, 94 Phil. 680); and only very recently this Court has held that the Commission has no power to

reject a certificate of candidacy except only when its purpose is to create confusion in the minds of the electors (Abcede vs. Imperial,

103 Phil. 136).

On the other hand, it has been held that the Commission has the power to annul an illegal registry list of voters (Feliciano, et al. vs.

Lugay, et al., 93 Phil. 744; 49 O.G. 3863); to annul an election canvass made by a municipal board of canvassers (Mintu vs. Enage, et

al., G. R. No. L-1834); and to investigate and act on the illegality of a canvass of election made by a municipal board of canvassers

(Ramos vs. Commission on Elections, 80 Phil. 722). And as to what are the ministerial duties which the Commission on Elections

must perform in connection with the conduct of elections, the following resume made by the Commission itself in a controversy which

was submitted to it for determination is very enlightening:

99

In the enforcement and administration of all laws relative to the conduct of elections, the first duty of the Commission is to set in

motion all the multifarious preparatory processes ranging from the purchase of election supplies, printing of election forms and

ballots, appointments of members of the boards of inspectors, establishment of precincts and designation of polling places to the

preparation of the registry lists of voters, so as to put in readiness on election day the election machinery in order that the people who

are legally qualified to exercise the right of suffrage may be able to cast their votes to express their sovereign will. It is incumbent

upon the Commission to see that all these preparatory acts will insure free, orderly and honest elections. All provisions of the Revised

Election Code contain regulations relative to these processes preparatory for election day. It is incumbent upon the Commission on

Elections to see that all these preparatory acts are carried out freely, honestly and in an orderly manner. It is essential that the

Commission or its authorized representatives, in establishing precincts or designating polling places, must act freely, honestly and in

an orderly manner. It is also essential that the printing of election forms and the purchase of election supplies and their distribution are

done freely, honestly and in an orderly manner. It is further essential that the political parties or their duly authorized representatives

who are entitled to be represented in the boards of inspectors must have the freedom to choose the person who will represent them in

each precinct throughout the country. It is further essential that once organized, the boards of inspectors shall be given all the

opportunity to be able to perform their duties in accordance with law freely, honestly and in an orderly manner, individually and as a

whole. In other words, it is the duty of the Commission to see that the boards of inspectors, in all their sessions, are placed in an

atmosphere whereby they can fulfill their duties without any pressure, influence and interference from any private person or public

official. All these preparatory steps are administrative in nature and all questions arising therefrom are within the exclusive powers of

the Commission to resolve. All irregularities, anomalies and misconduct committed by any official in these preparatory steps are

within the exclusive power of the Commission to correct. Any erring official must respond to the Commission for investigation. Of

these preparatory acts, the preparation of the permanent list of voters is the matter involved in this case, which to our mind is

completely an administrative matter. (Decision of the Commission on Elections, October 28, 1951, In Re Petition of Angel Genuino

vs. Prudente, et al., Case No. 196)1

Considering that the paramount administrative duty of the Commission is to set in motion all the multifarious preparatory processes

ranging from the purchase of election supplies, printing of election forms and ballots, appoinments of members of the board of

inspectors, appointment of precincts and designation of polling preparation of registry lists of voters, so as to as to put in readiness on

election day the election machinery, it may also be reasonably said that the requisitioning and preparation of the necessary ballot

boxes to be used in the elections is by the same token an imperative ministerial duty which the Commission is bound to perform if the

elections are to be held. Such is the incident which gave rise to the contempt case before us. It stems from the ministerial act of the

Commission in requisitioning for the necessary ballot boxes in connection with the last elections and in so proceeding it provoked a

dispute between several dealers who offered to do the job.

Although the negotiation conducted by the Commission has resulted in controversy between several dealers, that however merely

refers to a ministerial duty which the Commission has performed in its administrative capacity in relation to the conduct of elections

ordained by our Constitution. In proceeding on this matter, it only discharged a ministerial duty; it did not exercise any judicial

function. Such being the case, it could not exercise the power to punish for contempt as postulated in the law, for such power is

inherently judicial in nature. As this Court has aptly said: “The power to punish for contempt is inherent in all courts; its existence is

essential to the preservation of order in judicial proceedings, and to the enforcement of judgments, orders and mandates of courts, and,

consequently, in the administration of justice” (Slade Perkins vs. Director of Prisons, 58 Phil. 271; U. S. vs. Loo Hoe, 36 Phil. 867; In

Re Sotto, 46 O.G. 2570; In Re Kelly, 35 Phil. 944). The exercise of this power has always been regarded as a necessary incident and

attribute of courts (Slade Perkins vs. Director of Prisons, Ibid.). Its exercise by administrative bodies has been invariably limited to

making effective the power to elicit testimony (People vs. Swena, 296 P., 271). And the exercise of that power by an administrative

body in furtherance of its administrative function has been held invalid (Langenberg vs. Decker, 31 N.E. 190; In Re Sims 37 P., 135;

Roberts vs. Hacney, 58 S.W., 810). We are therefore persuaded to conclude that the Commission on Elections has no power nor

authority to submit petitioner to contempt proceedings if its purpose is to discipline him because of the publication of the article

mentioned in the charge under consideration.

Wherefore, petition is granted. Respondent Commission is hereby enjoined from proceeding with the case set forth in its resolution of

June 20, 1957, with pronouncement as to costs.

The preliminary injunction issued by this Court is made permanent.

Paras, C.J. Padilla, Montemayor, Reyes, A., Reyes, J. B. L., Endencia and Fe

EN BANC

100

[G.R. No. 143398. October 25, 2000]

RUPERTO A. AMBIL, JR., petitioner, vs. THE COMMISSION ON ELECTIONS (FIRST DIVISION, FORMERLY SECOND DIVISION) and JOSE T. RAMIREZ, respondents.

D E C I S I O N

PARDO, J.:

The case before the Court is a special civil action for certiorari and prohibition with preliminary injunction or temporary restraining order seeking to nullify the order dated June 15, 2000 of the Commission on Elections (Comelec), First Division,[1] giving notice to the parties of the promulgation of the resolution on the case entitled Jose T. Ramirez, Protestee, versus Ruperto A. Ambil, Jr., Election Protest Case No. 98-29, on June 20, 2000, at 2:00 in the afternoon and to prohibit the respondent Commission on Election from promulgating the so called “Guianiponencia.”[2]

The facts are as follows:

Petitioner Ruperto A. Ambil, Jr. and respondent Jose T. Ramirez were candidates for the position of Governor, Eastern Samar, during the May 11, 1998 elections.[3] On May 16, 1998, the Provincial Board of Canvassers proclaimed Ruperto A. Ambil, Jr. as the duly elected Governor, Eastern Samar, having obtained 46,547 votes, the highest number of votes in the election returns.

On June 4, 1998, respondent Ramirez who obtained 45,934 votes, the second highest number of votes, filed with the Comelec, an election protest[4] challenging the results in a total of 201 precincts. [5] The case was assigned to the First Division (formerly Second), Commission on Elections.[6]

On January 27, 2000, Commissioner Japal M. Guiani prepared and signed a proposed resolution in the case. To such proposed ponencia, Commissioner Julio F. Desamito dissented. Commissioner Luzviminda G. Tancangco at first did not indicate her vote but said that she would “wish to see both positions, if any, to make her (my) final decision.”[7]

In the meantime, on February 15, 2000, Commissioner Guiani retired from the service. On March 3, 2000, the President of the Philippines appointed Commissioner Rufino S. Javier to the seat vacated by Commissioner Guiani. Commissioner Javier assumed office on April 4, 2000.

On or about February 24, 2000, petitioner Ambil and respondent Ramirez received a purported resolution promulgated on February 14, 2000, signed by Commissioner Guiani and Tancangco, with Commissioner Desamito dissenting. The result was in favor of respondent Ramirez who was declared winner by a margin of 1,176 votes. [8] On February 28, 2000, the Comelec, First Division, declared that the thirteen-page resolution “is a useless scrap of paper which should be ignored by the parties in this case there being no promulgation of the Resolution in the instant case.” [9]

On March 31, 2000, the Comelec, First Division, issued an order setting the promulgation of the resolution in the case (EPC Case No. 98-29) on April 6, 2000, at 2:00 in the afternoon.[10] However, on April 6, 2000, petitioner Ambil filed a motion to cancel promulgation challenging the validity of the purported Guiani resolution. The Comelec, First Division, acting on the motion, on the same date, postponed the promulgation until this matter is resolved.[11]

On June 14, 2000, two members of the First Division, namely, Commissioners Luzviminda G. Tancangco and Rufino S. Javier, sent a joint memorandum to Commissioner Julio F. Desamito, presiding Commissioner, stating:

“Pursuant to your recommendation in your April 18, 2000 Memorandum to the Commission En Banc that this case be submitted for a reconsultation by the members of the First Division, it is our position that we promulgate as soon as possible the Guiani Resolution of the case. This is notwithstanding the Jamil vs. Comelec (283 SCRA 349), Solidbank vs. IAC (G. R. No. 73777) and other doctrinal cases on the issue. After all, this Commission stood pat on its policy that what is controlling is the date the ponente signed the questioned Resolution as what we did in promulgating the case of Dumayas vs. Bernal (SPC 98-137).

“In view of the foregoing, we recommend that we proceed with the promulgation of the subject resolution and let the aggrieved party challenge it through a Motion for Reconsideration before the Commission en banc or through a certiorari case before the Supreme Court.[12]

On June 15, 2000, the Comelec, First Division, through Commissioner Julio F. Desamito, issued an order setting the promulgation of the resolution in the case on June 20, 2000, at 2:00 o’clock in the afternoon.[13]

Without waiting for the promulgation of the resolution, on June 19, 2000, petitioner interposed the instant petition.[14]

Petitioner Ambil seeks to annul the order dated June 15, 2000 setting the promulgation of the resolution of the case (EPC Case No. 98-29) on June 20, 2000 at 2:00 in the afternoon, and prohibiting the Comelec, First Division, from promulgating the purported Guiani resolution and directing the Comelec, First Division, to deliberate anew on the case and to promulgate the resolution reached in the case after such deliberation.[15]

On June 20, 2000, we issued a temporary restraining order enjoining respondent Comelec from implementing the June 15, 2000 order for the promulgation of the resolution set on June 20, 2000 at 2:00 in the afternoon.  At the same time, the Court directed the respondents to comment on the petition within ten (10) days from notice. [16]

101

On July 10, 2000, respondent Ramirez filed his comment. [17] Respondent Ramirez admitted that the proposed resolution of Commissioner Guiani was no longer valid after his retirement on February 15, 2000. [18] He submitted that Comelec, First Division, its membership still constituting a majority, must elevate the protest case to the Comelec en banc until resolved with finality.[19]

In his comment filed on August 29, 2000, the Solicitor General interposed no objection to the petition.[20]

At issue in this petition is whether Comelec, First Division, in scheduling the promulgation of the resolution in the case (EPC Case No. 98-29) acted without jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction.

We find the petition without merit.

To begin with, the power of the Supreme Court to review decisions of the Comelec is prescribed in the Constitution, as follows:

“Section 7. Each commission shall decide by a majority vote of all its members any case or matter brought before it within sixty days from the date of its submissionfor 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 eachcommission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.”[21] [emphasis supplied]

“We have interpreted this provision to mean final orders, rulings and decisions of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers.”[22] This decision must be a final decision or resolution of the Comelec en banc,[23] not of a division,[24] certainly not an interlocutory order of a division.[25] The Supreme Court has no power to review via certiorari, an interlocutory order or even a final resolution of a Division of the Commission on Elections.[26]

The mode by which a decision, order or ruling of the Comelec en banc may be elevated to the Supreme Court is by the special civil action ofcertiorari under Rule 65 of the 1964 Revised Rules of Court, now expressly provided in Rule 64, 1997 Rules of Civil Procedure, as amended.[27]

Rule 65, Section 1, 1997 Rules of Civil Procedure, as amended, requires that there be no appeal, or any plain, speedy and adequate remedy in the ordinary course of law. A motion for reconsideration is a plain and adequate remedy provided by law.[28] Failure to abide by this procedural requirement constitutes a ground for dismissal of the petition.[29]

In like manner, a decision, order or resolution of a division of the Comelec must be reviewed by the Comelec en banc via a motion for reconsideration before the final en banc decision may be brought to the Supreme Court on certiorari. The pre-requisite filing of a motion for reconsideration is mandatory.[30] Article IX-C, Section 3, 1987 Constitution provides as follows:

“Section 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. [emphasis supplied]

Similarly, the Rules of Procedure of the Comelec provide that a decision of a division may be raised to the  en banc via a motion for reconsideration.[31]

The case at bar is an election protest involving the position of Governor, Eastern Samar. [32] It is within the original jurisdiction of the Commission on Elections in division.[33] Admittedly, petitioner did not ask for a reconsideration of the division’s resolution or final decision.[34] In fact, there was really no resolution or decision to speak of [35] because there was yet no promulgation, which was still scheduled on June 20, 2000 at 2:00 o’clock in the afternoon. Petitioner went directly to the Supreme Court from an order of “promulgation of the Resolution of this case” by the First Division of the Comelec.[36]

Under the existing Constitutional scheme, a party to an election case within the jurisdiction of the Comelec in division can not dispense with the filing of a motion for reconsideration of a decision, resolution or final order of the Division of the Commission on Elections because the case would not reach the Comelec en banc without such motion for reconsideration having been filed and resolved by the Division.

The instant case does not fall under any of the recognized exceptions to the rule in certiorari cases dispensing with a motion for reconsideration prior to the filing of a petition.[37] In truth, the exceptions do not apply to election cases where a motion for reconsideration ismandatory by Constitutional fiat to elevate the case to the Comelec en banc, whose final decision is what is reviewable via certiorari before the Supreme Court.[38]

We are aware of the ruling in Kho v. Commission on Elections,[39] that “in a situation such as this where the Commission on Elections in division committed grave abuse of discretion or acted without or in excess of jurisdiction in issuing interlocutory orders relative to an action pending before it and the controversy did not fall under any of the instances mentioned in Section 2, Rule 3 of the COMELEC Rules of Procedure, the remedy of the aggrieved party is not to refer the controversy to the Commission en banc as this is not permissible under its present rules but to elevate it to this Court via a petition for certiorari under Rule 65 of the Rules of Court.” This is the case relied upon by the dissenting justice to support the proposition that resort to the Supreme Court from a resolution of a Comelec Division is allowed.[40]Unfortunately, the Kho case has no application to the case at bar. The issue therein is, may the Commission on Elections in division admit an answer with counter-protest after the period to file the same has expired?[41] The Comelec First Division admitted the answer with counter-protest of the respondent. The Supreme Court declared such order void for having been issued with grave abuse of discretion tantamount to lack of jurisdiction. [42] However, an important moiety in the Kho case was not mentioned in the dissent. It is that the Comelec, First Division, denied the prayer of petitioner for the elevation of the case to en banc because the orders of admission were mere interlocutory orders.[43] Hence, the aggrieved party had no choice but to seek recourse in the Supreme Court. Such important fact is not present in the case at bar.

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We must emphasize that what is questioned here is the order dated June 15, 2000, which is a mere  notice of the promulgation of the resolution in EPC Case No. 98-29. We quote the order in question in full, to wit:

“Pursuant to Section 5 of Rule 18 of the COMELEC RULES OF PROCEDURE, and the Joint Memorandum of Commissioners Luzviminda G. Tancangco and Rufino S. Javier to the Presiding Commissioner of the First Division dated 14 June 2000 paragraph 5 of which states:

‘In view of the foregoing, we recommend that we proceed with the promulgation of the subject resolution and let the aggrieved party challenge it through a Motion for Reconsideration before the Commission en banc or through a certiorari case before the Supreme Court.’

the promulgation of the Resolution in this case is hereby set on Tuesday, June 20, 2000 at 2:00 o’clock in the afternoon at the Comelec Session Hall, Intramuros, Manila.

No further motion for postponement of the promulgation shall be entertained.

The Clerk of the Commission is directed to give the parties, through their Attorneys, notice of this Order through telegram and by registered mail or personal delivery.

“SO ORDERED.

“Given this 15th day of June, 2000 in the City of Manila, Philippines.

FOR THE DIVISION:[Sgd.] JULIO F. DESAMITO

Presiding Commissioner”[44]

There is nothing irregular about the order of promulgation of the resolution in the case, except in the mind of suspicious parties. Perhaps what was wrong in the order was the reference to the memorandum of the two commissioners that was not necessary and was a superfluity, orexcessus in linguae. All the members of the Division were incumbent Commissioners of the Commission on Elections (COMELEC) and had authority to decide the case in the Division. What appears to be patently null and void is the so-called Guiani resolution if it is the one to be promulgated. We cannot assume that the Comelec will promulgate a void resolution and violate the Constitution and the law. We must assume that the members of the Commission in Division or en banc are sworn to uphold and will obey the Constitution.

Consequently, the Guiani resolution is not at issue in the case at bar. No one knows the contents of the sealed envelope containing the resolution to be promulgated on June 20, 2000, simply because it has not been promulgated!

It may be true that the parties received a copy of what purports to be the Guiani resolution, [45] declaring respondent Jose T. Ramirez the victor in the case. Such Guiani resolution is admitted by the parties and considered by the Commission on Elections  as void. The Solicitor General submitted an advice that the same resolution is deemed vacated by the retirement of Commissioner Guiani on February 15, 2000.[46] It can not be promulgated anymore for all legal intents and purposes.

We rule that the so-called Guiani resolution is void for the following reasons:

First: A final decision or resolution becomes binding only after it is promulgated and not before. Accordingly, one who is no longer a member of the Commission at the time the final decision or resolution is promulgated cannot validly take part in that resolution or decision.[47]Much more could he be the ponente of the resolution or decision. The resolution or decision of the Division must be signed by a majority of its members and duly promulgated.

Commissioner Guiani might have signed a draft ponencia prior to his retirement from office, but when he vacated his office without the final decision or resolution having been promulgated, his vote was automatically invalidated. [48] Before that resolution or decision is so signed and promulgated, there is no valid resolution or decision to speak of.[49]

Second: Atty. Zacarias C. Zaragoza, Jr., Clerk of the First Division, Commission on Elections, denied the release or promulgation of the Guiani resolution. He disowned the initials on the face of the first page of the resolution showing its promulgation on February 14, 2000, and said that it was a forgery. There is no record in the Electoral Contests and Adjudication Department (ECAD) of the Commission on Election that a “resolution on the main merits of the case was promulgated.”[50]

Third: By an order dated February 28, 2000, the Comelec, First Division, disclaimed the “alleged thirteen (13) page resolution” for being “a useless scrap of paper which should be ignored by the parties” there being no promulgation of the resolution in the case.[51]

Fourth: It is unlikely that Commissioner Tancangco affixed her signature on the Guiani resolution.  On the date that it was purportedly promulgated, which was February 14, 2000, the Division issued an order where Commissioner Tancangco expressed her reservations and stated that she wished to see both positions, if any, before she made her final decision.[52]

A final decision or resolution of the Comelec, in Division or en banc is promulgated on a date previously fixed, of which notice shall be served in advance upon the parties or their attorneys personally or by registered mail or by telegram.[53]

It is jurisprudentially recognized that at any time before promulgation of a decision or resolution, the ponente may change his mind.[54]Moreover, in this case, before a final decision or resolution could be promulgated, the ponente retired and a new commissioner appointed. And the incoming commissioner has decided to take part in the resolution of the case.  It is presumed that he had taken the position of his predecessor because he co-signed the request for the promulgation of the Guiani resolution.[55]

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If petitioner were afraid that what would be promulgated by the Division was the Guiani resolution, a copy of which he received by mail, which, as heretofore stated, was not promulgated and the signature thereon of the clerk of court was a forgery, petitioner could seek reconsideration of such patently void resolution and thereby the case would be elevated to the Commission en banc.[56]

Considering the factual circumstances, we speculated ex mero motu that the Comelec would promulgate a void resolution.

“The sea of suspicion has no shore, and the court that embarks upon it is without rudder or compass.” [57] We must not speculate that the Comelec would still promulgate a void resolution despite knowledge that it is invalid or void ab initio.

Consequently, the filing of the instant petition before this Court was premature.  Petitioner failed to exhaust adequate administrative remedies available before the COMELEC.

In a long line of cases, this Court has held consistently that “before a party is allowed to seek the intervention of the court, it is a pre-condition that he should have availed of all the means of administrative processes afforded him. Hence, if a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction, then such remedy should be exhausted first before the court’s judicial power can be sought. The premature invocation of court’s intervention isfatal to one’s cause of action.”[58]

“This is the rule on exhaustion of administrative remedies. A motion for reconsideration then is a pre-requisite to the viability of a special civil action for certiorari, unless the party who avails of the latter can convincingly show that his case falls under any of the following exceptions to the rule: (1) when the question is purely legal, (2) where judicial intervention is urgent, (3) where its application may cause great and irreparable damage, (4) where the controverted acts violate due process, (5) failure of a high government official from whom relief is sought to act on the matter, and seeks when the issue for non-exhaustion of administrative remedies has been rendered moot.”[59]

“This doctrine of exhaustion of administrative remedies was not without its practical and legal reasons, for one thing, availment of administrative remedy entails lesser expenses and provides for a speedier disposition of controversies. It is no less true to state that the courts of justice for reasons of comity and convenience will shy away from a dispute until the system of administrative redress has been completed and complied with so as to give the administrative agency concerned every opportunity to correct its error and to dispose of the case. However, we are not amiss to reiterate that the principal of exhaustion of administrative remedies as tested by a battery of cases is not an ironclad rule. This doctrine is a relative one and its flexibility is called upon by the peculiarity and uniqueness of the factual and circumstantial settings of a case.Hence, it is disregarded (1) when there is a violation of due process, (2) when the issue involved is purely a legal question, (3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction, (4) when there is estoppel on the part of the administrative agency concerned, (5) when there is irreparable injury,  (6) when the respondent is a department secretary whose acts as an alter ego of the president bears the implied and assumed approval of the latter, (7) when to require exhaustion of administrative remedies would be unreasonable, (8) when it would amount to a nullification of a claim, (9) when the subject matter is a private land in land case proceedings, (10) when the rule does not provide a plain, speedy and adequate remedy, and (11) when there are circumstances indicating the urgency of judicial intervention.” [60] The administrative authorities must be given an opportunity to act and correct the errors committed in the administrative forum. [61] Only after administrative remedies are exhausted may judicial recourse be allowed.[62]

This case does not fall under any of the exceptions and indeed, as heretofore stated, the exceptions do not apply to an election case within the jurisdiction of the Comelec in Division.

Hence, the petition at bar must be dismissed for prematurity. “Failure to exhaust administrative remedies is fatal to a party's cause of action and a dismissal based on that ground is tantamount to a dismissal based on lack of cause of action.”[63]

WHEREFORE, the Court hereby DISMISSES the petition for prematurity.

The Court orders the Commission on Elections, First Division, to resolve with all deliberate dispatch Election Protest Case No. 98-29 and to promulgate its resolution thereon adopted by majority vote within thirty (30) days from notice hereof.

The temporary restraining order issued on June 20, 2000, is hereby lifted and dissolved, effective immediately.

No costs.

SO ORDERED.

EN BANC

[G.R. No. 157687.  February 26, 2004]

FERNANDO U. BATUL, petitioner, vs. LUCILO BAYRON and COMMISSION ON ELECTIONS (First Division),respondents.

[G.R. No. 158959.  February 26, 2004]

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FERNANDO U. BATUL, petitioner, vs. LUCILO BAYRON and COMMISSION ON ELECTIONS (First Division),respondents.

D E C I S I O N

CARPIO, J.:

The Case

Before us are two (2) consolidated petitions for certiorari[1] with prayers for temporary restraining order or preliminary injunction.  In G.R. No. 157687, petitioner Fernando U. Batul (“Batul”) assails the Orders dated 12 February 2003 and 21 March 2003 of the Commission on Elections (“COMELEC”) First Division[2] in Election Protest Case No. 2001-19 (“EPC No. 2001-19”).  In G.R. No. 158959, Batul challenges the Order and Writ of Execution dated 21 July 2003 also issued by the COMELEC First Division in the same case.

The Antecedents

Batul and respondent Lucilo R. Bayron (“Bayron”) were candidates for vice-mayor of Puerto Princesa City, Palawan in the 14 May 2001 elections.  The Board of Canvassers of Puerto Princesa City credited Batul with 18,095 votes and Bayron with   15,810 votes.  The Board of Canvassers thus proclaimed Batul vice-mayor of Puerto Princesa City on 21 May 2001.

On 29 May 2001, Bayron filed an election protest with the  COMELEC  docketed as EPC No. 2001-19.   Bayron protested the election results in the 392 precincts of Puerto Princesa City, claiming that anomalies and irregularities marred the conduct of the elections. Batul filed an Answer with Counter-Protest and Counterclaim denying all the material allegations in Bayron’s protest.  Batul claimed that it was Bayron who committed fraud and other irregularities in the protested precincts.

In an Order dated 14 September 2001, the COMELEC First Division considered the issues joined, directed Bayron to pay the deposit for the revision of ballots; and ordered both parties to submit their respective pool of revisors.   The COMELEC First Division also directed Palawan’s provincial election supervisor to coordinate with Puerto Princesa’s city treasurer in the inventory of the ballot boxes subject of the protest and counter-protest.  The COMELEC First Division further instructed the provincial election supervisor to insure the safety and security of the ballot boxes prior to their delivery to the COMELEC office in Manila.

On 12 November 2001, the COMELEC First Division constituted four (4) Revision Committees to conduct the revision of ballots of all the protested precincts.  After termination of the revision proceedings on 12 December 2001, the Revision Committees submitted their respective reports to the COMELEC First Division on 30 April 2002.

Bayron filed his formal Offer of Evidence which included the Final Reports of the 4   Revision Committees and a summary tabulation showing him with 17,248 votes against Batul’s 16,581 votes or a winning margin of 667 votes.  Batul filed his Comment/Opposition to respondent Bayron’s Offer of Evidence.  On 10 June 2002, the COMELEC First Division admitted Bayron’s exhibits.

The COMELEC First Division directed Batul to present his evidence on 29 July 2002.  On this date, Batul presented as his first witness, Board of Election Inspectors (“BEI”) chairperson Brenda Landicho (“Landicho”).  Landicho testified that some ballots do not bear her signature as BEI chairperson.  Batul filed a motion to allow him to present 49 more BEI chairpersons to testify on the genuineness of the signatures of the BEI chairpersons on the revised ballots.   

On 12 February 2003, the COMELEC First Division issued the first assailed order (“First Order”) denying Batul’s motion to allow fifty (50) BEI chairpersons to testify on the signatures appearing at the back of the ballots from the precincts where “reversals” were found during revision. The First Order disposed as follows:

WHEREFORE, premises considered, the Protestee’s presentation of the testimonies of the fifty (50) BEI Chairpersons is hereby DENIED for the reasons discussed above, it appearing that the Protestee has no other evidence to present  other than the above-mentioned fifty (50) BEI Chairpersons, he is directed to file his Formal Offer of Evidence within five (5) days from receipt hereof.  Protestant shall file his “Comment”  on Protestee’s Formal Offer of Evidence within three (3) days from receipt thereof.  Thereafter, the Commission (First Division) shall issue a Ruling on Protestee’s Formal Offer of Evidence and both parties shall have a non-extendible period of fifteen (15) days from receipt of the Ruling to file their respective Memorandum.  After the lapse of the given period, with or without the Memoranda, the instant case shall be deemed submitted for Resolution.

SO ORDERED.[3]

On 19 February 2002, Batul filed a motion to reconsider the First Order.  The COMELEC First Division issued the second assailed order dated 21 March 2003 denying petitioner Batul’s motion for reconsideration (“Second Order”).[4]

Batul filed his formal Offer of Evidence with Tender of Excluded Evidence on 31 March 2003.  Batul pointed out that the 50 BEI chairpersons would have testified on the genuineness of the signatures appearing at the back of the revised ballots where “there were discrepancies between the election returns and the tally sheets on one hand, and the physical count of the ballots during revision on the other.”  Bayron filed his Comment/Objections to Batul’s Offer of Evidence.  On 11 April 2003, the COMELEC First Division admitted Batul’s exhibits. 

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The COMELEC First Division deemed the case submitted for resolution after Bayron filed his memorandum on 29 April 2003 and Batul filed his memorandum on 30 April 2003.

On 11 April 2003, Batul filed the first Petition for Certiorari assailing the validity of the Orders dated 12 February 2003 and 21 March 2003 issued by the COMELEC First Division in EPC No. 2001-19, docketed as G.R.  No. 157687.  Batul contends it was grave abuse of discretion for the COMELEC First Division to deny his right to present the 50 BEI chairpersons as witnesses.

During the pendency of G.R. No. 157687, the COMELEC First Division decided the merits of EPC No. 2001-19 in its Resolution dated 2 July 2003, the dispositive portion of which reads:

WHEREFORE, premises considered, the Commission (First Division) RESOLVED as it hereby RESOLVES to ANNUL and SET ASIDE the 21 May 2001 proclamation of FERNANDO U. BATUL as Vice-Mayor of Puerto Princesa City, Palawan.

ACCORDINGLY, the Commission (First Division) hereby  ORDERS:

a.  Protestee Vice-Mayor Fernando U.  Batul  to vacate the Office of the Vice-Mayor, Puerto  Princesa City, Palawan, and to cease and desist from performing the functions of said office.

b.  The Deputy Executive Director of the Commission to implement this Resolution and to furnish a copy thereof  to the Office of the President of the Philippines, the Secretary of the Department of Interior and Local Government, the Office of the Governor, Palawan, and to the Office of the Secretary of the  local Sangguniang Panglungsod, Palawan.

No pronouncement as to costs.[5]

Batul filed a motion to reconsider the 2 July 2003 Resolution.  In the meantime, Bayron filed a motion for immediate execution of judgment on 3 July 2003 which Batul opposed.  The motion was heard on 14 July 2003.  The COMELEC First Division issued the Order dated 21 July 2003 granting immediate execution of judgment.  The Order reads:

WHEREFORE, there being merits in the Motion, the same is GRANTED.  In order to implement the Resolution of the Commission in the above-entitled case, the Clerk of the Commission (Director IV, ECAD) is hereby DIRECTED to immediately issue a WRIT OF EXECUTION ordering FERNANDO U. BATUL to CEASE and DESIST from discharging the powers and duties of the Office of Vice-Mayor of Puerto Princesa City and to relinquish the same to and in favor of LUCILO BAYRON who was declared duly elected to the post in the Resolution pending the final disposition of the Motion for Reconsideration filed by Protestee in the above-entitled case.  Protestant however is ordered to post a bond in the amount of FIFTY THOUSAND PESOS  which shall  answer for whatever damage protestee will sustain by reason of this execution if the final resolution of the protest would decide that the protestant is not entitled thereto.  This Order is immediately executory.[6]

The COMELEC First Division issued a writ of execution on the same date.  Hence, Bayron took his oath and assumed the position of vice-mayor of Puerto Princesa City on 22 July 2003.

On 25 July 2003, Batul filed the second  Petition for Certiorari, assailing this time the 2 July 2003 Order and the writ of execution (“Execution Orders”) issued by the COMELEC First Division, docketed as G.R. No. 158959.

The Court resolved to consolidate G.R. Nos. 157687 and 158959 on 5 August 2003.

The COMELEC’s Ruling

The COMELEC First Division disallowed the presentation of the testimonies of the BEI chairpersons for the following reasons:

It cannot be denied that Rule 17, Section 2 of the COMELEC Rules of  Procedure explicitly provides that Protestee be given opportunity to present  evidence in support of  his defense.

However, our Rules of Court  mandate that the purpose/s for which testimony of any witnesses (sic) is being offered must be relevant to the specific allegation in the answer and or counter protest of the Protestee and that the presentation of the intended evidence  can be directly or indirectly covered.  Indeed, no such issue which would warrant the presentation of the testimony of the said fifty (50) Chairpersons was raised in the Protestee’s pleading.

The rule in an election protest is that the Protestant or counter-Protestant must stand or fall upon the issues he had raised in his original or amended pleadings filed prior to the lapse of the statutory  period  for filing protest or counter-protest.

In the case of Arroyo vs. HRET et al., 246 SCRA 384-385 it was held:

“a party is bound by the theory he adopts and by the cause he stands on  and cannot be permitted after having lost thereon to repudiate his theory and cause of action and adopt another and seek to re-litigate the matter anew either in the same forum or on appeal.  This is in essence putting private respondent i[n] estoppel to question the revision.”

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In this connection, let it be stressed that per records, the Protestee  never protested  or assailed on record the signatures of the BEI Chairman in all the precincts where there is reversal of ballots in favor of Protestant.  Neither had the three (3) counsels of Protestee or their representatives assailed or protested in writing the signatures of any BEI Chairman during the revision and/or directly before this Honorable Commission.

It is therefore evident that Protestee is now barred or estopped in questioning the final report of the Committees on Revision on a matter of theory not alleged in  his answer.

Hence, the following jurisprudence is applicable as held in the  case of Huerta Alba Resort, Inc. vs. Court of Appeals, 39 SCRA 531, 555:

“The failure of petitioner to seasonably assert its alleged right  under Section 78 of R.A. No. 337 precludes it from doing at this late stage of the case. Estoppel may be successfully invoked if the party fails to raise the question in the early stages of the proceedings.”[7]

In denying Batul’s motion for reconsideration, the COMELEC First Division ruled:

xxx  “in an election contest where the correctness of the number of votes is involved, the best evidence and the  most  conclusive evidence are the ballots themselves.”  There is no need to present evidence aliunde particularly in this case where the protestee’s main arguments in filing his Motion are the alleged “multiple substitution” of ballots and “that the contents of the ballot box had been tampered with and compromised.”  These matters can be determined by the Commission itself by conducting an examination of the ballots.  In Punzalan vs. Comelec, the Supreme Court ruled that “it is axiomatic that the COMELEC need not conduct an adversarial proceeding or a hearing to determine the authenticity of ballots or the handwriting found thereon, and neither does it need to solicit the help of handwriting experts in examining or comparing the handwriting.[8]

The COMELEC First Division granted Bayron’s motion for immediate execution of judgment applying Section 2, Rule 39 of the Rules of Court which allows discretionary execution of judgment upon good reasons stated in the order.  The COMELEC First Division found that the requirements for valid execution pending appeal as set forth in Ramas v. COMELEC [9]  were complied with in the case, namely:  (1) the will of the electorate is involved; (2) the shortness of the remaining portion of the term of the contested office; and (3) the length of time that the election contest has been pending.

The Issues

In G.R. No. 157687, Batul contends that the COMELEC First Division acted with grave abuse of discretion amounting to lack or excess of jurisdiction in (1) issuing the 12 February 2003 and 21 March 2003 Orders denying Batul’s right to present evidence on his behalf; and (2) considering the case submitted for resolution without giving Batul the opportunity to present testimonial (and other evidence) on his behalf, in violation of his right to due process.

In G.R. No. 158959, Batul contends that the COMELEC First Division issued the 21 July 2003 Order executing its Decision despite his pending motion for reconsideration in violation of COMELEC Rules of Procedure and contrary to applicable jurisprudence.

The Court’s Ruling

The petitions are bereft of merit.

G.R. No. 157687

Right to Present Evidence and Due Process

Batul contends that the COMELEC First Division denied his right to due process when it barred him from presenting the testimonies of the 50 BEI chairpersons.  Batul claims that the COMELEC First Division violated Section 2, Rule 17 of the COMELEC Rules of Procedure, which provides in pertinent parts:

Sec. 2.  Order of Hearing. – Unless the Commission or the Division, as the case may be, for special reasons, directs otherwise, the order of hearing shall be as follows:

(a)  The petitioner or protestant shall present evidence on his part;

(b)  The protestant-in-intervention, if any, shall present evidence on his  part;

(c)  The respondent or protestee shall then offer evidence in support  of his defense or counter-protest, if any;

x x x. (Emphasis supplied)

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According to Batul, the testimonies of the BEI chairpersons would have proven that  there was multiple substitution of ballots after the election and that many of the ballots found during revision were spurious as they do not bear the BEI chairpersons’ signatures.  The BEI chairpersons’ testimony on the authenticity of the signatures and genuineness of the ballots is material, relevant and necessary for a judicious resolution of the case.  Batul claims it is in precincts chaired by these 50 teachers that discrepancies were found during revision between the election returns and the tally board as against the physical count of ballots in ballot boxes with allegedly missing self-locking seals. 

These arguments do not persuade us.  

First, Batul’s reliance on Section 2, Rule 17 of the COMELEC Rules of Procedure in asserting his alleged right to present the testimonies of the 50 BEI chairpersons is not supported by Section 2 of Rule 17.   A reasonable reading of Section 2, Rule 17 shows that it is merely directory and confers upon the COMELEC the discretion to change the order of hearing for special reasons.   This is in keeping with the nature of election contests, which unlike ordinary civil actions, are clothed with public interest. [10] 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. [11] The COMELEC First Division correctly exercised its discretion in refusing to hear all 50 BEI chairpersons, as this would not have been feasible and practical given the remaining time until the next election.  Procedural rules in elections cases are designed to achieve not only a correct but also an expeditious determination of the popular will of the electorate.[12]

Second, a formal trial-type hearing is not at all times and in all situations essential to due process.  It is enough that the parties are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present evidence on which a fair decision can be based.[13] Batul was in fact given an opportunity to substantiate his charge of multiple substitution of ballots at the hearing where BEI chairperson Landicho testified.  Batul also submitted an exhaustive memorandum to support his charge. Verily, “to be heard” does not only mean presentation of testimonial evidence in court. One may also be heard through pleadings and where opportunity to be heard through pleadings is accorded, there is no denial of due process.[14]

Third, the COMELEC First Division did not brush aside Batul’s apprehensions that there was a violation of the sanctity of the ballots.  The COMELEC First Division ruled that the ballots exhibit the properties of official ballots as defined in Section 181 of the Omnibus Election Code.[15] The COMELEC also stated that it could readily determine whether the ballots are official and genuine by merely inspecting the secret security marks attached to the ballots.   Without a doubt, the COMELEC First Division assiduously scrutinized and re-examined the ballots from the protested precincts to determine for itself their validity and to faithfully ascertain the will of the electorate.  The COMELEC First Division explained as follows:

Declaring the ballots genuine is one thing. Admitting them as valid expression of the electorate’s will is another. To put to rest  suspicions that the ballots were fraudulently prepared then illegally placed into the ballot boxes, the Commission (FIRST DIVISION) looked for badges of violation of the integrity of the ballot boxes.  We went over the revision reports to ascertain whether or not the revision committees, of which protestee’s revisor is a member recorded any observation of anomaly or irregularity in the condition of the ballots boxes presented for revision.  The revision committees’ reported that the condition of the ballot boxes were “good”; that security seals were attached to the inner lids of the ballot boxes, the envelopes containing the documents were  with paper seals,  and the election paraphernalia were intact and undisturbed.

The statements of the Chairmen of the Board of Election Inspectors that the signatures on the several ballots are not theirs, cannot be fully relied upon.  Their affidavits could even be considered self-serving.  Indeed, We examined  the signatures appearing at the back of the ballots and we did not  find distinct variations thereon which could lead us into concluding that the signatures were forged.  As had been shown in many instances, the signature of a person does not always appear to be similar under all circumstances.  The possibility is not remote that what the Chairmen of the Board of Election Inspectors perceived as variant strokes and styles were but the signs of stress and exhaustion from the strenuous repeated acts of signing.

Under these circumstances, we can not subscribe to protestee’s stand that the “physical count cannot prevail and must yield to the actual votes indicated and duly certified in the  election returns and the tally sheet.”

As held in Lerias vs. HRET, it is only “when the ballots cannot be produced or are not available”  that  “the election returns would be the best evidence.”

In the case at bench, the ballots are available, hence they serve as the primary evidence of the results of the elections in Puerto Princesa, Palawan.  This finding notwithstanding, the Commission conducted a meticulous examination of each and every contested ballots, admit those which pass the tests of validity and set aside those which bear badges of aberration.  Indeed, the Commission ruled on these ballots in accordance with the same procedure adopted for all the contested ballots of the protested precincts.[16]

Finally, what spells finis to any further pretensions of Batul that the COMELEC denied him due process is his mistaken notion that evidencealiunde is necessary to prove substituted or fake ballots.  We have repeatedly ruled that the ballots are the best evidence of the objections raised and an inspection of these ballots is sufficient. [17] Moreover, there is no better authority than the COMELEC itself to determine the authenticity of the ballots, having itself ordered and supervised the printing of all the official ballots.[18]

G.R. No. 158959

Valid Execution Pending Appeal

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Batul contends the COMELEC First Division violated its own rules of procedure in allowing immediate execution of its judgment despite the filing of his motion for reconsideration with the COMELEC en banc.  Batul points out that Section 2, Rule 19[19] of the COMELEC Rules of Procedure provides that the filing of a motion for reconsideration that is not  pro forma, suspends the execution or implementation of the decision. Further, Section 5 of Rule 19[20] also provides that the COMELEC Division shall, within two days from the filing of the motion for reconsideration, certify the case to the COMELEC en banc.  The COMELEC Division thus loses jurisdiction over the case upon the filing of the aggrieved party’s motion for reconsideration. Lastly, the COMELEC cannot issue an order granting immediate execution of a judgment that has not yet become final and executory citing Section 13(c), Rule 19[21] of the COMELEC Rules of Procedure. 

Batul likewise contends that Ramas v. COMELEC[22] and Santos v. COMELEC[23] cited by the COMELEC First Division to justify execution pending appeal are not applicable to the instant case since the election protests in those cases involved municipal officials and were filed with the Regional Trial Court (“RTC”).  It was logical to apply Section 2, Rule 39 (“Section 2”) of the Rules of Court  because the decision sought to be executed was that of the RTC. On the other hand, the instant case involves a city mayoralty position and the election protest is originally and exclusively lodged with the COMELEC.  Section 2 cannot be applied even in a suppletory way, because the COMELEC Rules of Procedure expressly provide the proper procedure.  Under the COMELEC Rules of Procedure, the only ground that will validly sustain execution of a decision by a COMELEC Division pending reconsideration is when the motion for reconsideration is pro forma.

These contentions are unavailing.

It is true that present election laws are silent on the remedy of execution pending appeal in election contests.   However, neither Ramas norSantos declared that such remedy is exclusive to election contests involving elective barangay and municipal officials as argued by Batul.  Section 2 allowing execution pending appeal in the discretion of the court applies in a suppletory manner to election cases, including those involving city and provincial officials.   Ramas itself explained:

As to election cases involving regional, provincial, and city officials, which fall within the exclusive original jurisdiction of the COMELEC, Section 3 of Article IX-C of the Constitution vests the COMELEC with the authority to promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies.  Additionally, Section 52(c), Article VII of the Omnibus Election Code empowers the COMELEC to promulgate rules and regulations implementing the provisions of the Code or other laws which it is required to enforce and administer.  Accordingly, the COMELEC promulgated the COMELEC Rules of Procedure.  Section 1 of Rule 41 thereof expressly provides that “[i]n the absence of any applicable provision in [said] Rules, the pertinent provisions of the Rules of Court in the Philippines shall be applicable by analogy or in a suppletory character and effect.” (Emphasis supplied)

There is no reason why the public policy underlying the suppletory application of Section 2  –  to obviate a hollow victory for the duly elected candidate as determined by either the courts or the COMELEC  –  should not apply with equal force to election contests involving city and provincial officials.[24] Indeed, the number of constituents and the territorial scope over which these officials govern underscore the importance of this policy.  Something had to be done to strike the death blow at the “pernicious grab-the-proclamation-prolong-the-protest” technique often, if not invariably, resorted to by unscrupulous politicians who would negate the people’s verdict against them and persist in continuing in an office they very well know they have no legitimate right to hold.[25]

As we have held before, only a more compelling contrary policy consideration can prevent the suppletory application of Section 2.   The primary reason advanced by Batul  –  that Section 2 does not apply to election contests involving city, provincial and regional officials, simply because these cases are originally cognizable by the COMELEC  –  cannot negate this public policy.   Such a reason cannot frustrate or further delay the assumption of public office by the lawful choice of the people as determined by the COMELEC.  Batul did not contest the good reasons cited by the COMELEC First Division in granting immediate execution.   Hence, we see no reason to discuss the COMELEC’S findings on this matter.

In sum, the Court holds that the COMELEC First Division did not commit grave abuse of discretion in issuing the assailed orders. 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.[26] This does not obtain in the instant petitions.

WHEREFORE, the petitions are DISMISSED for lack of merit.

SO ORDERED.

EN BANC

[G.R. No. 150469.  July 3, 2002]

MAYOR JUN RASCAL CAWASA, COUNCILORS MAASIRAL DAMPA, H. ACKIL MAMANTUC, MOMOLAWAN MACALI, ANDAR TALI, ALLAN SANAYON, and AMIN SANGARAN,  petitioners, vs. THE COMMISSION ON ELECTIONS and ABDULMALIK M. MANAMPARAN, respondents.

D E C I S I O N

CARPIO, J.:

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The Case

Before us is a Petition for Certiorari with prayer for the issuance of a writ of preliminary injunction and a temporary restraining order under Rule 64 of the 1997 Rules of Civil Procedure[1] assailing  the Resolution of the Commission on Elections (“Comelec” for brevity) en banc[2] in SPC No. 01-276 dated October 24, 2001, the dispositive portion of which reads:

“WHEREFORE, premises considered, the instant petition is hereby GRANTED.  The results of special elections held on 30 May 2001 covering Precincts Nos. 2A, 2A1/2A2 in Barangay Bangko, Precinct No. 3A in Barangay Cabasaran and clustered Precinct No. 10A/10A1 in Barangay Liangan are hereby ANNULLED.

Accordingly, the proclamation of all winning candidates insofar as the results in the four (4) contested precincts affect the standing of candidates is hereby SET ASIDE until the choice of the people is finally determined through another special election to be authorized, conducted and supervised by this Commission as soon as possible unless restrained.

Finally, the Law Department is hereby directed to investigate the election irregularities that transpired in the Municipality of Nunungan, Lanao del Norte involving the Office of the Election Officer and thereafter, file election offense case/s should there be finding of probable cause and other appropriate cases if warranted under the circumstances.

SO ORDERED.”[3]

The Facts

During the May 14, 2001 elections, petitioner Jun Rascal Cawasa (“petitioner Cawasa” for brevity) and private respondent Adbulmalik M. Manamparan  (“private respondent Manamparan” for brevity) were among the  candidates for mayor in  the  Municipality of Nunungan, Lanao del Norte (“Nunungan” for brevity). Out of the forty (40) precincts in Nunungan, only thirty-six (36) functioned, as there was a failure of election in the remaining four (4) precincts. The following were the precincts, barangays, polling places and number of registered voters where there was a failure of election:

PRECINCT NO.     BARANGAY           POLLING PLACE                 REG. VOTERS

2A                 Bangko                        Bangko Prim School               200

2A1/2A2        Bangko                        -do-                                          254

3A                 Cabasaran      Cabasaran Prim. Sch.                        155

10A/10A1      Liangan           Liangan Prim. Sch.                 236                                                          Total                            845

After canvassing the election returns from the 36 precincts, the Municipal Board of Canvassers of Nunungan deferred the proclamation of all winning candidates due to the failure of the said 4 precincts to function.  Special elections were set on May 30, 2001 considering that the number of registered voters in the remaining four precincts would affect the election results. The Comelec promulgated Resolution No. 4360 on May 21, 2001 authorizing the conduct of special elections in the affected areas, including barangays Bangko, Cabasaran and Liangan  in Nunungan, the pertinent portion of which states:

“VII.  Memorandum of Commissioner Mehol K. Sadain dated 19 May 2001.

REGION                   MUNICIPALITY/PROVINCERegion XII                    Nunu(n)gan, Lanao del Norte                                              Barangays:                                              1.  Bangco                                              2.  Cabasaran

                                              3.  Liangan

REASONS  :    disagreement of venue of election, tension  of BEIs,  forcible taking of the ballot boxes and other election paraphernalia.

Scheduled date:       May 30, 2001

                                  x x x

In view of the foregoing the Commission RESOLVED, as it hereby RESOLVED, as follows:

1. To schedule the special elections in the foregoing areas on May 26 and 30, 2001 as herein specified;

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x x x

Let the Executive Director, Deputy Executive Directors for Operations and all the working Committees implement this resolution.

SO ORDERED.”[4]

As scheduled, the special elections covering the 4 precincts were conducted on May 30, 2001.  The special elections for Precincts Nos. 2A, 2A1/2A2 of Barangay Bangko were conducted in the Municipality of Sultan Naga Dimaporo, Lanao del Norte.  The special elections for Precinct No. 3A of Barangay Cabasara and Precinct Nos. 10A/10A1 of Barangay Liangan were conducted in the Municipality of Sapad, Lanao del Norte.

The Municipal Board of Canvassers of Nunungan canvassed the election returns of the 4 precincts on May 31, 2001. After the canvassing of the election returns, the  Municipal Board of Canvassers proclaimed the winning candidates on the basis of the earlier 36 election returns of the May 14, 2001 regular elections and the 4 election returns of the 4 precincts subject of the special elections.

The May 14, 2001 regular elections and the May 30, 2001 special elections show the following results with respect to the position of mayor:

                      Sub-Total of Votes                   Sub-Total of votes        Grand                      Obtained May 14, 2001                       Obtained May 30,            Total

                      Regular Elections                    2001 Special Elections

Private Respondent Manamparan          1,197                           570                       1,767Petitioner Cawasa                                   1,283                           187                       1,470

Margin . . . .  .          297

As shown above, during the May 14, 2001 regular elections, the lead of petitioner Cawasa was eighty six (86).   After the May 30, 2001 special elections, private respondent Manamparan overcame the margin with a lead of 297 votes.

Petitioner Cawasa was proclaimed mayor of Nunungan and his co-petitioners Maasiral Dampa, H. Ackil Mamantuc, Momolawan Macali, Andar Tali, Allan Sanayon and Amin Sangaran were also proclaimed as councilors of Nunungan. 

On June 4, 2001, private respondent Manamparan filed an appeal and petition to annul the proclamation of petitioner   Cawasa docketed as SPC No. 01-252.  The appeal/petition was dismissed by the Comelec Second Division on September 26, 2001.

In the meantime, on June 8, 2001, private respondent Manamparan filed a petition for “Annulment of Election Results during the May 30, 2001 Special Elections in Precincts No. 2A, 2A1/2A2, 3A, and 10A/10A1 of Nunungan, Lanao Del Norte, and Annulment of Canvass and Proclamation with Prayer for Issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction” docketed as SPC Case No. 01-276. Impleaded as respondents were petitioner Cawasa and the Municipal Board of Canvassers composed of Mario Allan Ballesta,[5] Nedalyn S. Sebial[6] and Iluminada O. Pegalan.[7]

As mentioned at the outset, on October 24, 2001, the Comelec en banc promulgated a resolution annulling the results of the special elections of the 4 precincts (Precinct Nos. 2A, 2A1/2A2, 3A, 10A/10A1) held on May 30, 2001 conducted  in  the  municipalities  of  Sultan Naga  Dimaporo   and   Sapad.  The  Comelec en banc also annulled the proclamation of all winning candidates insofar as the results in the 4 contested precincts affect the standing of candidates. 

The Comelec Ruling

In granting the petition, the Comelec held that “the special elections in the 4 contested precincts were not genuinely held and resulted in failure to elect on account of fraud. ”  The Comelec’s ruling is summarized as follows:

First. The Comelec clarified that the Comelec en banc can take cognizance of the petition for annulment of election results in accordance with Section 4 of RA 7166[8], otherwise known as the “Synchronized Elections Law of 1991.”  It explained that while the proclamation of a candidate has the effect of terminating pre-proclamation issues, a proclamation that is a result of an illegal act is void and cannot be ratified by such proclamation and subsequent assumption of office. The Comelec declared that there is no forum-shopping considering that SPC 01-252 pending before the Second Division of the Comelec is a pre-proclamation controversy, [9] while SPC 01-276 pending before the Comelec en banc is a case for annulment of election results.

Second.  The Comelec found that the special elections were not held in the designated polling places in Nunungan but were transferred to the municipalities of Sapad and Sultan Naga Dimaporo without any authority from the Comelec. According to the Comelec, the Election Officer, who happened to be the chairman of the Municipal Board of Canvassers, caused the transfer of the polling places without asking permission from the Comelec.  The transfer was likewise  in violation of the due process requirements found in Section 153 of the Omnibus Election Code. Moreover, it ruled that the unauthorized transfer of a polling place is also punishable as an election offense under Section 261(z) (17) of the Same Code.  We quote the pertinent portion of the Comelec ruling thus:

“The transfer of polling places cannot be done without due process.  This is the explicit rule of Section 153 of the Omnibus Election Code, x x x:

x x x                          x x x                             x x x

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In the instant case, the Election Officer, who happened to be the Chairman of the respondent Board, also caused the transfer of the polling places without asking the permission of this Commission and in violation of the due process rule, thereby, making the afore-quoted Section 153 inutile.

Considering these unwarranted acts of the official of this Commission, the sanctity of the special elections therefore is suspect. Nothing in the records could show that notice was given to the political candidates and to the registered voters affected by the special elections of the said transfer of polling places.  Who therefore voted on the assailed special elections given these circumstances?  This issue has never been   squarely addressed by the respondents.

We take judicial notice of the distance of the venues of voting which are more or less 25 kilometers away from Nunungan, far from being accessible to the voters given the time and material constraints. The panorama of what is supposed to be a free and honest exercise of democracy is indeed rendered myopic by fraud perpetrated by no other than the COMELEC officials concerned.”[10]

Third. The Comelec found that the Municipal Board of Canvassers, headed by Mario Allan   Ballesta, preposterously feigned ignorance of the fact that during the said special elections, members of the Philippine Army 26 th Infantry Battalion served as election inspectors without authority from the Comelec.

Hence, the instant petition.

The Issues

Petitioners argue that the COMELEC en banc Resolution was issued without jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction  for the following reasons:

"1.   The proclamation of the six (6) petitioners Maasiral Dampa, H. Ackil Mamantuc, Momolawan Macali, Andar Tali, Allan Sanayon, and Amin Sangaran were annulled and set aside in violation of due process of law.   They were not impleaded as respondents in the petition to annul the election.  They were not notified of the proceedings. x x x.

2.   The transfer of the venue of the special elections at Sultan Naga Dimaporo and Sapad and the appointment of military personnel as members of the Board of election Inspectors of the four (4) precincts were agreed upon by the private respondent and the municipal candidates and their respective political parties.

3.   The election officer in the exercise of his discretion has authority to transfer the venue of the special elections in view of the agreement of the political parties and municipal candidates on the transfer of the venue of the special elections. x x x.

4.   There is substantial compliance with the provisions of Sec. 153 of the Omnibus Election Code.  The political parties and municipal candidates of the municipality Nunungan were notified and in fact agreed to the transfer of venue of the special elections.

5.    The COMELEC en banc promulgated the  October 24, 2001 resolution without requiring its election officer of Nunungan, the provincial election supervisor of Lanao del Norte, and Regional Election Director of Region XII to explain why the special elections of the four (4) precincts were transferred to the municipalities of Sultan Naga Dimaporo and Sapad. The petitioner Mayor Jun Rascal Cawasa prayed that the case be set for trial and hearing in order that the election officer of Nunungan be required to testify and explain the circumstances of the special elections.   The COMELEC en banc did not act on the motion.  It promulgated the resolution of October 24, 2001 without investigating the circumstances why the election officer transferred the venue of the special elections to the municipalities of Sultan Naga Dimaporo and Sapad.  No hearing was conducted by the COMELEC en banc.”[11]

Simply put, the issues raised boil down to whether or not :  (1) the transfer of the polling places to the adjacent municipalities is legal; (2)  the appointment of military personnel as members of the board of election inspectors is legal; and (3)   the petitioners were accorded due process prior to the promulgation of  the assailed resolution in SPC No. 01-276.

The Court’s Ruling

The petition is bereft of merit.

First Issue:   Legality of the Transfer of Polling Places and Appointment of Military Personnel as Members of the Board of Election Inspectors

There is no dispute that the venue of the special elections was transferred to the adjacent municipalities of Sultan Naga Dimaporo and Sapad in lieu of the regular polling places located in barangays Bangko, Cabasaran and Liangan. There is likewise no dispute that military personnel were appointed as members of the Board of Election Inspectors (“BEI” for brevity) in the 4 precincts.    Petitioners and private respondent Manamparan  agree that the 4 precincts covered by the special elections with a total of 845 registered voters will affect the result of the elections.

Petitioners insist on the validity of the conduct of the special elections claiming  that the political parties and the municipal candidates were notified and in fact agreed on the transfer of venue and the appointment of military personnel as members of the BEI. They contend that there is substantial compliance with the provisions of Section 153 of the Omnibus Election Code considering that

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the election officer as the representative of the Comelec reported the matter to the Provincial Election Supervisor of Lanao del Norte and the transfer was not disapproved by the Comelec. Petitioners claim that an “election officer has authority to transfer the polling places even four days before the scheduled election” citing Balindong vs.  Comelec[12] and Alonto vs. Comelec.[13]

Petitioners fail to persuade.  Sections 152, 153 and 154 of the Omnibus Election Code shed light on this matter, to wit:

SEC. 152.  Polling Place. – A polling place is the building or place where the board of election inspectors conducts its proceedings and where the voters shall cast their votes.

SEC. 153.  Designation of polling places. – The location of polling places designated in the preceding regular election shall continue with such changes as the Commission may find necessary, after notice to registered political parties and candidates in the political unit affected, if any, and hearing:  provided, That no location shall be changed within forty-five days before a regular election and thirty days before a special election or a referendum or plebiscite, except in case it is destroyed or it cannot be used.

SEC. 154.  Requirements for polling places. –Each polling place shall be, as far as practicable, a ground floor and shall be of sufficient size to admit and comfortably accommodate forty voters at one time outside the guard rail for the board of election inspectors.  The polling place shall be located within the territory of the precinct as centrally as possible with respect to the residence of the voters therein and whenever possible, such location shall be along a public road.  No designation of polling places shall be changed except upon written petition of the majority of the voters of the precinct or agreement of all the political parties or by resolution of the Commission upon prior notice and hearing.

A public having the requirements prescribed in the preceding paragraph shall be preferred as polling place.[14]

The transfer was made not only in blatant disregard of Comelec Resolution No. 4360 issued on May 21, 2001 specifying the polling places but also Sections 153 and 154 of the Election Code. As clearly provided by the law, the location of polling places shall be the same as that of the preceding regular election. However, changes may be initiated by written petition of the majority of the voters of the precinct or agreement of all the political parties or by resolution of the Comelec after notice and hearing.   But ultimately, it is the Comelec which determines whether a change is necessary after notice and hearing.

The Comelec has unequivocally stated that “nothing in the records showed that notice was given to the political candidates and registered voters affected by the transfer.”  Private respondent Manamparan has categorically denied petitioners’ claim that all the political parties and municipal candidates agreed to the transfer of venue.   The Court discerns no substantiation of petitioners’ claim regarding the agreement to transfer.  There is then no cogent reason for us to disturb the findings of the Comelec on this matter.  Indeed, the factual findings of the Comelec supported by substantial evidence shall be final and non-reviewable. [15] Thus, it has been held that findings of fact of the Comelec based on its own assessments and duly supported by evidence, are conclusive upon this Court, more so, in the absence of a substantiated attack on the validity of the same. [16] Moreover, there is no question that the transfer of venue was made within the prohibited period of thirty days before the special election.

Reliance on Balindong vs. Comelec[17] and Alonto vs. Comelec[18] is misplaced.  Alonto involved an entirely different factual scenario from the instant case.  In said case, the Court upheld the validity of the transfer of the counting and tallying of the votes after the closing of the pollsfrom the precincts to the PC camps. The Court held that the transfer was dictated by necessity and authorized by the Comelec directly or by its provincial representative. The Court  explained that “while it is highly desirable that the authority for the transfer of the counting should be directly authorized by the Comelec itself, the latter’s denial of the petitioners’ motion for reconsideration where this legal point was advanced was tantamount to a validation of the authority issued by its provincial representatives.” 

On the other hand, the Court in Balindong[19] held  that the mere fact that the transfer of polling place was not made in accordance with law, particularly Secs. 152-154 of the Omnibus Election Code, does not warrant a declaration of failure of election and the annulment of the proclamation of the winning candidate, because the number of uncast votes will not affect the result of the election.  In the case at bar, there is no dispute that the election returns from the 45 precincts will affect the results of the elections.

Next, the appointment of military personnel as members of the BEI is another grave electoral irregularity that attended the special elections held on May 30, 2001. There was absolutely no legal basis  for the appointment of military personnel as members of the BEI. Verily, the appointments  were devoid of any justification other than the bare assertion, again,  that “the political parties and municipal candidates agreed on the said arrangement.” The pertinent provisions of the Omnibus Election Code regarding the composition, appointments and substitution of the members of the BEI are quoted as follows:

SEC. 164.  Composition and appointments of board  of election inspectors. -  At least thirty days before the date when the voters list is to be prepared in accordance with this Code, in the case of a regular election or fifteen days before a special election, the Commission shall, directly or through its duly authorized representatives, constitute a board of election inspectors for each precinct to be composed of a chairman and a poll clerk who must be public school teachers, priority to be given to civil service eligibles, and two members, each representing the two accredited political parties.  The appointment shall state the precinct to which they are assigned and the date of the appointment.

SEC. 165.  Oath of the members of the board of election inspectors.  -  The members of the board of election inspectors, whether permanent, substitute or temporary, shall before assuming their office, take and sign an oath upon forms prepared by the Commission, before an officer authorized to administer oaths or, in his absence, before any other member of the board of election  inspectors present, or in case no one is present, they shall take it before any voter.  The oaths shall be sent immediately to the city or municipal treasurer.  (Sec. 157, 1971 EC)

SEC. 166.   Qualification of members of the board of election inspectors. -  No person shall be appointed chairman, member or substitute member of the board of election inspectors unless he is of good moral character and irreproachable reputation, a registered

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voter of the city or municipality, has never been convicted of any election offense or of any other crime punishable by more than six months of imprisonment, or if he has pending against him an information for any election offense. He must be able to speak and write English or the local dialect.  (Sec. 114, 1978 EC)

x x x

SEC. 170. Relief and substitution of members of the board of election inspectors.  -  Public school teachers who are members of the board of election inspectors shall not be relieved nor disqualified from acting as such members, except for cause and after due hearing. 

x x x

Section 13 of Republic Act No. 6646[20] modified Section 164 of the Omnibus Election Code.  Said section reads:

SEC. 13.  Board of Election Inspectors. – The board of election inspectors to be constituted by the Commission under Section 164 of Batas Pambansa Blg. 881 shall be composed of a chairman and two (2) members, one of whom shall be designated as poll clerk, all of whom shall be public school teachers, giving preference to those with permanent appointments. In case there are not enough public school teachers, teachers in private schools, employees in the civil service, or other  citizens of known probity and competence who are registered voters of the city or municipality may be appointed for election duty.

Clearly, the BEI shall be composed of a chairman  and two members, all of whom are public school teachers. If there are not enough public school teachers, teachers in private schools, employees in the civil service or other citizens of known probity and competence may be appointed. It was highly irregular  to replace the duly constituted members of the BEI, who were public school teachers. Nothing in petitioners’ pleadings would even suggest that the substitution was made for cause and after hearing. The importance of the constitution of the BEI to the conduct of free, honest and orderly elections cannot be overemphasized. The Court has held that, “the members of the board of election inspectors are the front line election officers. They perform such duties and discharge such responsibilities that make them, in a real sense, foot soldiers who see to it that elections are free, honest and orderly.  They are essential to the holding of elections.”[21]

Second  Issue:  Denial of Due Process

Petitioners claim   that there was a clear violation of due process of law because a hearing was not conducted on the circumstances of the special election. Petitioners further claim that the Comelec rendered the assailed resolution without requiring its field officers, specifically, the election officer, provincial election supervisor and the regional election director to explain the transfer of the polling places. Lastly, petitioners point out that none of the eight (8) proclaimed members of the Sangguniang Bayan [22] of Nunungan, Lanao del Norte and the proclaimed Vice Mayor were notified and  impleaded as respondents in the petition to annul the election results citing Velayo vs. Commission on Elections.[23]

Section 4 of Republic Act No. 7166 or “The Synchronized Elections Law of 1991” provides that the Comelec sitting  en banc by a majority vote of its members may decide, among others, the declaration of failure of election and the calling of special elections as provided in Section 6 of the Omnibus Election Code.  Said Section 6, in turn, provides as follows:

“SEC. 6.  Failure of election. – If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but  not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect.”

A prayer to annul election results, as in the instant case, and a prayer to declare failure of elections   based on allegations of fraud, terrorism, violence or analogous causes, are actually of the same nature and  the Election Code denominates them similarly.[24] The Comelec may exercise the  power to annul election results or declare a failure of election  motu proprio[25] or upon a verified petition.[26] The hearing of the case shall be summary in nature. [27] A formal trial-type hearing is not at all times and in all instances essential to due process – it is enough that the parties are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present evidence on which a fair decision can be based. [28] In fine, a trial is not at all indispensable to satisfy the demands of due process.

The petition was heard by the Comelec en banc on June 27, 2001.  During the said hearing, the Comelec directed the parties, as agreed upon, to submit their respective memoranda within five (5) days from date and after which, the case shall be submitted for resolution. Petitioners were duly heard through their pleadings, thus, there is no denial of  procedural due process to speak of.    Moreover, contrary to the claim of petitioners, the Municipal Board of Canvassers of Nunungan, including Election Officer Ballesta, were summoned to the hearing held on June 27, 2001 and furnished a copy of the petition.

The pre-conditions for declaring a failure of election are:  (1) that no voting has been held in any precinct or precincts because of force majeure, violence,  terrorism, fraud or other analogous causes and (2) that the votes not cast therein are sufficient to affect the results of the elections. The concurrence of these two circumstances justifies the calling of special elections. [29] Here, the Comelec found that  the special elections were vitiated by fraud due to the illegal transfer of the polling places and the appointment of military

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personnel as members of the BEI. Inevitably, the Comelec could not ascertain who voted during the special elections. The circumstances were such that the entire electoral process was not worthy of faith and credit, hence, in practical effect no election was held.[30]

In Velayo vs. Commission of Elections,[31] the Court held that “the non-inclusion of a proclaimed winner as respondent in a pre-proclamation controversy and his lack of notice of the proceedings in the Comelec which resulted in the cancellation of his proclamation constitute clear denial of due process.”  In the Velayo case, the proclaimed mayor and the members of the Municipal Board of Canvassers were not impleaded in the pre-proclamation cases brought before the Comelec.  However, in this case, petitioner Cawasa and the members of the Municipal Board of Canvassers were in fact impleaded, notified and even heard by the Comelec in SPC No. 01-276. At this late stage, public interest in the speedy disposition of this case will only be further derailed by the re-opening of the case for the benefit of petitioners-councilors who did not advance any new and substantial matters in this petition warranting the declaration that the special elections were valid and untainted by fraud.

WHEREFORE, finding no grave abuse of discretion amounting to lack or excess of jurisdiction on the part of public respondent Commission on Elections, the instant petition is hereby DISMISSED. The resolution of the Commission on Elections en banc in SPC No. 01-276 dated October 24, 20001 is hereby AFFIRMED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, andCorona, JJ., concur.

Quisumbing, J., on leave.

EN BANC

[G.R. No. 132603.  September 18, 2000]

ELPIDIO M. SALVA, VILMA B. DE LEON, CLEMENTE M. MATIRA, REGION P. DE LEON, MARILOU C. DE LEON, JAIME RELEVO, JOEY S. VERGARA, CARMENCITA A. SALVA, DIONISIO B. DE LEON, JORGE S. VERGARA, GORGONIO B. DE LEON, AND OTHERS TOO NUMEROUS TO ENUMERATE AS A CLASS SUIT, petitioners, vs. HON. ROBERTO L. MAKALINTAL, Presiding Judge, Regional Trial Court, Br. XI, Balayan, Batangas; HON. SANGGUNIANG PANGLALAWIGAN OF BATANGAS, BATANGAS CITY; HON. SANGGUNIANG PANGBAYAN, CALACA, BATANGAS; and HON. COMMISSION ON ELECTIONS,respondents.

D E C I S I O N

BUENA, J.:

This is an appeal by certiorari under Rule 45 of the Rules of Court seeking the reversal of the Order dated February 25, 1998,[1] of the Regional Trial Court of Balayan, Batangas, Branch XI, [2] in Civil Case No. 3442, denying the issuance of a temporary restraining order and/or preliminary injunction to enjoin the Commission on Elections (COMELEC) from holding the plebiscite scheduled on February 28, 1998, on the ground of lack of jurisdiction.

The facts are undisputed.

On February 23, 1998, petitioners, as officials and residents of barangay San Rafael, Calaca, Batangas, filed a class suit against the Sangguniang Panglalawigan of Batangas, Sangguniang Pambayan of Calaca, Batangas, and the Commission on Elections (COMELEC), docketed as Civil Case No. 3442, before the Regional Trial Court of Balayan, Batangas, Branch XI, for annulment of Ordinance No. 05 and Resolution No. 345, series of 1997, both enacted by the Sangguniang Panglalawigan of Batangas, and COMELEC Resolution No. 2987, series of 1998, with prayer for preliminary injunction/temporary restraining order.  Ordinance No. 05[3] declared the abolition of barangay San Rafael and its merger with barangay Dacanlao, municipality of Calaca, Batangas and accordingly instructed the COMELEC to conduct the required plebiscite as provided under Sections 9 and 10 of Republic Act No. 7160, otherwise known as the Local Government Code of 1991.[4] On the other hand, Resolution No. 345[5] affirmed the effectivity of Ordinance No. 05, thereby overriding the veto[6] exercised by the governor of Batangas.[7] Ordinance No. 05 was vetoed by the governor of Batangas for being ultra vires, particularly, as it was not shown that the essential requirements under Section 9, in relation to Section 7, of Republic Act No. 7160, referring to the attestations or certifications of the Department of Finance (DOF), National Statistics Office (NSO) and the Land Management Bureau of the Department of Environment and Natural Resources (DENR), were obtained.  Pursuant to the foregoing ordinance and resolution, on February 10, 1998, the COMELEC promulgated Resolution No. 2987, providing for the rules and regulations governing the conduct of the required plebiscite scheduled on February 28, 1998, to decide the issue of the abolition of barangay San Rafael and its merger with barangay Dacanlao, Calaca, Batangas. [8] Simultaneous with the filing of the action before the trial court, petitioners also filed an ex parte motion for the issuance of a temporary restraining order to enjoin respondents from enforcing Ordinance No. 05, Resolution No. 345, and COMELEC Resolution No. 2987.

In an Order dated February 25, 1998, the trial court denied the ex parte motion for the issuance of a temporary restraining order and/or preliminary injunction for lack of jurisdiction.  According to the trial court, the temporary restraining order/injunction sought by petitioners is directed only to COMELEC Resolution No. 2987.  The trial court ruled that any petition or action questioning an act, resolution or decision of the COMELEC must be brought before the Supreme Court.[9]

On February 27, 1998, petitioners filed the instant petition with prayer for a temporary restraining order, without filing a motion for reconsideration of the trial courts Order dated February 25, 1998, claiming the urgency or immediate necessity to enjoin the conduct of the plebiscite scheduled on February 28, 1998.[10]

115

In a Resolution dated March 10, 1998, the Court directed the parties to maintain the status quo prevailing at the time of the filing of the petition.[11]

On August 28, 1998, the Solicitor General filed a Manifestation and Motion in lieu of Comment, declaring that he concurs with petitioners cause and recommending that the instant petition be given due course. [12] Consequently, the Court further resolved on September 29, 1998 to require the COMELEC and the Sangguniang Panglalawigan of Batangas to submit their own Comment on the petition.

In a Resolution dated June 15, 1999, the Court resolved to give due course to the petition and require the parties to submit their respective memoranda.[13]

In their Memorandum filed on October 26, 1999, petitioners submitted the following issue for the resolution of this Court:

WHETHER OR NOT THE RESPONDENT COURT HAS JURISDICTION TO ENJOIN THE COMELEC FROM IMPLEMENTING ITS RESOLUTION NO. 2987, SERIES OF 1998, WHICH PROVIDED FOR THE RULES AND REGULATIONS FOR THE CONDUCT OF THE PLEBISCITE SCHEDULED ON FEBRUARY 28, 1998 TO DECIDE ON THE ABOLITION OF BARANGAY SAN RAFAEL AND ITS MERGER WITH BARANGAY DACANLAO, CALACA, BATANGAS, PENDING THE DETERMINATION OF CIVIL CASE NO. 3442 FOR THE ANNULMENT OF ORDINANCE NO. 05, RESOLUTION NO. 345 AND COMELEC RESOLUTION NO. 2987.[14]

First, petitioners contend that the assailed Order dated February 25, 1998, of the Regional Trial Court of Balayan, Batangas, Branch XI, encourages multiplicity of suit[s] and splitting a single cause of action, contrary to Section 3, Rule 2, of the Rules of Court.[15] Petitioners maintain that since COMELEC Resolution No. 2987 was only issued pursuant to Ordinance No. 05 and Resolution No. 345 of the Sangguniang Panglalawigan of Batangas, the propriety of the issuance of COMELEC Resolution No. 2987 is dependent upon the validity of the Ordinance No. 05 and Resolution No. 345.[16] And considering that the jurisdiction of the trial court to hear and determine the validity of Ordinance No. 05 and Resolution No. 345 is not disputed, the assailed Order dated February 25, 1998, directing petitioners to seek the preliminary injunction and/or temporary restraining order before this Court, advances multiplicity of suits and splitting a single cause of action.

Second, petitioners assert that when the COMELEC exercises its quasi-judicial functions under Section 52 of the Omnibus Election Code (Batas Pambansa Blg. 881), its acts are subject to the exclusive review by this Court; but when the COMELEC performs a purely ministerial duty, such act is subject to scrutiny by the Regional Trial Court, [17] citing Filipinas Engineering and Machine Shop vs. Ferrer (135 SCRA 25 [1985]), thus:

It cannot be gainsaid that the powers vested by the Constitution and the law on the Commission on Elections may either be classifi1ed as those pertaining to its adjudicatory or quasi-judicial functions, or those which are inherently administrative and sometimes ministerial in character.[18]

Corollary thereto, petitioners submit that [t]he conduct of [a] plebiscite, pursuant to Ordinance No. 05 and Resolution No. 345, is not adjudicatory [or quasi-judicial] in nature but simply ministerial or administrative in nature [and only] in obedience to the aforesaid Ordinance and Resolution, citing Garces vs. Court of Appeals, 259 SCRA 99 (1996), thus:

xxx To rule otherwise would surely burden the Court with trivial administrative questions that are best ventilated before the RTC [Regional Trial Court], a court which the law vests with the power to exercise original jurisdiction over all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions.[19]

Lastly, petitioners allege that while the plebiscite sought to be enjoined has already been conducted on February 28, 1998, the instant petition is far from being moot and academic, claiming that the actual holding of the said plebiscite could not validate an otherwise invalid ordinance and resolution;[20] that there are still substantial matters to be resolved; [21] assuming arguendo that this petition has become moot and academic,  courts will decide a question otherwise moot and academic if it is capable of repetition, yet evading review;[22] and finally, petitioners maintain that this Court has resolved to require the parties to maintain the status quo prevailing at the time of the filing of the petition, that is, a day before the plebiscite was scheduled to be conducted.[23]

Concurring with petitioners arguments, the Solicitor General, in his Memorandum filed on September 7, 1999, asserts that xxx. [i]t is already settled in this jurisdiction that what is contemplated by the terms any decision, order or ruling of the COMELEC reviewable by certiorari to this Honorable Court, as provided under Section 7, Article IX-A of the [1987] Constitution, are those that relate to the COMELECs exercise of itsadjudicatory or quasi - judicial  powers involving elective regional, provincial and city officials. (Citations omitted.)[24]24 The Solicitor General further argues that the issuance of COMELEC Resolution No. 2987 is a ministerial duty of the COMELEC in the exercise of its administrative functions, hence, it is submitted that the aforecited constitutional provision is inapplicable.

Public respondent Commission on Elections (COMELEC), on the other hand, submits that the power to review or reverse COMELEC Resolution No. 2987 solely belongs to this Court, citing the earlier cases of Zaldivar vs. Estenzo (23 SCRA 533, 540-541 [1968]); Luison vs. Garcia (L-10916, May 20, 1957); Macud vs. COMELEC (23 SCRA 224 [1968]); and Aratuc vs. COMELEC (88 SCRA 251, 272 [1979]);[25]thus:

xxx.  For even without the express constitutional prescription that only this Court may review the decisions, orders and rulings of the Commission on Elections, it is easy to understand why no interference whatsoever with the performance of the Commission on Elections of its functions should be allowed unless emanating from this Court.  The observation of Acting Chief Justice J.B.L. Reyes in Albano v. Arranz while not precisely in point, indicates the proper approach.  Thus:  It is easy to realize the chaos that would ensue if the Court of First Instance of each and every province were to arrogate unto itself the power to disregard, suspend, or contradict any order of the Commission on Elections; that constitutional body would be speedily reduced to impotence.[26]

116

The COMELEC further argues that if a Regional Trial Court does not have jurisdiction to issue writs against statutory agencies of government like the ones cited above [referring to the former Court of Industrial Relations, Philippine Patent Office, Public Service Commission, Social Security Commission, National Electrification Administration and Presidential Commission on Good Government], a fortiori it can not have any such jurisdiction over the Commission on Elections, a constitutional independent body expressly clothed by the 1987 Constitution with, among others, quasi-judicial functions and tasked with one of the most paramount aspects of a democratic government.  xxx.[27] Finally, the COMELEC contends that the temporary restraining order sought by petitioners has been rendered moot and academic by the actual holding of the plebiscite sought to be enjoined.[28]

The appeal is meritorious.

Section 7, Article IX-A of the 1987 Constitution provides in part that:

SEC. 7.  xxx.  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.

In Garces vs. Court of Appeals (259 SCRA 99 [1996]) and Filipinas Engineering and Machine Shop vs. Ferrer (135 SCRA 25 [1985]), we found occasion to interpret the foregoing provision in this wise:

xxx.  What is contemplated by the term final orders, rulings and decisions of the COMELEC reviewable by certiorari by the Supreme Court as provided by law are those rendered in actions or proceedings before the COMELEC and taken cognizance of by the said body in the exercise of its adjudicatory or quasi-judicial powers.[29]

In Filipinas, we have likewise affirmed that the powers vested by the Constitution and the law on the Commission on Elections may either be classified as those pertaining to its adjudicatory or quasi-judicial functions, or those which are inherently administrative and sometimes ministerial in character.[30]

As aptly explained by the Solicitor General, in the instant case, after the COMELEC ascertained the issuance of the ordinance and resolution declaring the abolition of barangay San Rafael, it issued COMELEC Resolution No. 2987 calling for a plebiscite to be held in the affected barangays, pursuant to the provisions of Section 10 of Republic Act No. 7160.  We agree with the Solicitor General that xxx.  [t]he issuance of [COMELEC] Resolution No. 2987 is thus a ministerial duty of the COMELEC that is enjoined by law and is part and parcel of itsadministrative functions.  It involves no exercise of discretionary authority on the part of respondent COMELEC; let alone an exercise of its adjudicatory or quasi-judicial power to hear and resolve controversies defining the rights and duties of party-litigants, relative to the conduct of elections of public officers and the enforcement of the election laws. (Citation omitted.)[31] Briefly, COMELEC Resolution No. 2987 which provides for the rules and regulations governing the conduct of the required plebiscite, was not issued pursuant to the COMELECs quasi-judicial functions but merely as an incident of its inherent administrative functions over the conduct of plebiscites, thus, the said resolution may not be deemed as a final order reviewable by certiorari by this Court.  Any question pertaining to the validity of said resolution may be well taken in an ordinary civil action before the trial courts.

Even the cases cited by the public respondent in support of its contention  that the power to review or reverse COMELEC Resolution No. 2987 solely belongs to this Court  are simply not in point.  Zaldivar vs. Estenzo[32] speaks of the power of the COMELEC to enforce and administer all laws relative to the conduct of elections to the exclusion of the judiciary.  In the present case, petitioners are not contesting the exclusive authority of the COMELEC to enforce and administer election laws.  Luison vs. Garcia[33] refers to this Courts power to review administrative decisions, particularly referring to a COMELEC resolution declaring a certain certificate of candidacy null and void, based on Article X, Section 2 of the 1935 Constitution.   In Macud vs. COMELEC,[34] we reiterated that when a board of canvassers rejects an election return on the ground that it is spurious or has been tampered with, the aggrieved party may elevate the matter to the COMELEC for appropriate relief, and if the COMELEC sustains the action of the board, the aggrieved party may appeal to this Court.  In both Luison and Macud, the assailed COMELEC resolutions fall within the purview of final orders, rulings and decisions of the COMELEC reviewable by certiorari by this Court.

In view of the foregoing, public respondents other contentions deserve scant consideration.

WHEREFORE, the petition for review is hereby GRANTED, and the assailed Order dated February 25, 1998, of the Regional Trial Court of Balayan, Batangas, Branch XI is hereby SET ASIDE and ANNULLED.   The Regional Trial Court of Balayan, Batangas, Branch XI is ordered to proceed with dispatch in resolving Civil Case No. 3442.  The execution of the result of the plebiscite held on February 28, 1998 shall be deferred depending on the outcome of Civil Case No. 3442.

SO ORDERED.

EN BANC

[G.R. No. 162203.  April 14, 2004]

AKLAT-ASOSASYON PARA SA KAUNLARAN NG LIPUNAN AT ADHIKAIN PARA SA TAO, INC., petitioner, vs.COMMISSION ON ELECTIONS (COMELEC), respondent.

R E S O L U T I O N

117

TINGA, J.:

For resolution is the Petition[1] for certiorari and mandamus filed by Aklat-Asosasyon Para Sa Kaunlaran Ng Lipunan At Adhikain Para Sa Tao, Inc. (Aklat) assailing the Commission on Elections (Comelec) Resolution[2] dated January 8, 2004, which dismissed its Petition[3] for re-qualification as a party-list organization, and the Resolution[4] dated February 13, 2004, which denied its Motion for Reconsideration.[5]

Briefly, the facts are as follows:

On November 20, 2003, Aklat filed a Petition for declaration of re-qualification as a party-list organization for purposes of the May 2004 elections.  It alleged in its petition that it participated in the 2001 elections but was disqualified by the Comelec as it was found not to have complied with the guidelines set by the Court in the case of Ang Bagong Bayani - OFW Labor Party v. Comelec   ( Bagong Bayani   case )[6] for party-list organizations to qualify and participate as such in the party-list elections.  Accordingly, Aklat  “re-organized  itself  in  order that it will comply with the 8-point guidelines enunciated by the Supreme Court” [7] in the said case.

In its assailed Resolution dated January 8, 2004, the Comelec dismissed the petition stating that Aklat cannot be considered as an organization representing the marginalized and underrepresented groups as identified under Section 5 of Republic Act No. 7941 (R.A. 7941). According to the Comelec, Aklat’s statement that it has re-organized itself does not cure this defect as “there is nothing in the petition which will help us identify what particular marginalized and underrepresented group AKLAT is now representing.” [8] Further, the Comelec held that “AKLAT lumped all the sectoral groups imaginable under the classification of regular members just to convince us that it is now cured of its defect.”[9]

On January 15, 2004, Aklat filed a Motion for Reconsideration dated January 14, 2004, substantially averring that it has reorganized itself and taken the necessary steps to make it an organization of, by and for the marginalized and underrepresented groups of society, particularly the indigenous cultural communities and the youth.  To this end, it has allegedly effected a fundamental change in its purposes as an organization, nature of its membership and focus of its programs.[10]

The Comelec denied the motion in its questioned Resolution dated February 13, 2004, on three grounds, namely:  the petition was filed beyond the deadline set by the Comelec in Resolution No. 6320 for registration of party-list organizations; the petition was not one for re-qualification as Aklat was never a registered party-list organization having failed to meet the eight-point guidelines set by the Court in theBagong Bayani case; and that its decision not to extend the deadline for registration of party-list organizations is valid, the Comelec being in the best position to make such a determination.[11]

In the instant Petition, Aklat asserts that under Section 5 of R.A. 7941, petitions for registration as a party-list organization may be filed not later than ninety (90) days before the elections.  It therefore had until February 10, 2004, the ninetieth (90th) day before the elections on May 10, 2004, within which to file its petition.  Hence, its petition, which was filed on November 20, 2003, was filed within the allowed period.  Section 5 of Resolution No. 6320[12] which requires the filing of such petitions not later than September 30, 2003, is null and void as it amends R.A. 7941. 

It further maintains that it has complied with the eight-point guidelines set in the Bagong Bayani case.  Allegedly, Aklat has a total membership of over 4,000 persons who belong to the marginalized and underrepresented groups.   It has established information and coordination centers throughout the country for the benefit and in representation of indigenous cultural communities, farm and factory workers including fisherfolk and the youth.  Aklat also asserts that it is different from Asosasyon Para sa Kaunlaran ng Industria ng Aklat (A.K.L.A.T.) which was previously de-registered by the Comelec.  Because of all these, Aklat contends that the Comelec gravely abused its discretion when it denied its petition for re-qualification.

The Office of the Solicitor General (OSG) filed a Comment dated March 26, 2004, stating that the Comelec did not commit grave abuse of discretion in issuing the assailed Resolutions.  According to the OSG, Resolution No. 6320 is not in conflict with and is, in fact, germane to the purpose of R.A. 7941.  It was within the scope of the authority granted to the Comelec that it issued Resolution No. 6320 setting the deadline for filing petitions for registration under the party-list system on September 30, 2003.  In line with the purpose of R.A. 7941 to enable marginalized sectors to actively participate in legislation, the Comelec must be given sufficient time to evaluate all petitions for registration, at the same time allowing oppositions to be filed to the end that only those truly qualified may be accredited under the party-list system. Besides, Republic Act No. 8436 [13] allows the Comelec to change the periods and dates prescribed by law for certain pre-election acts to ensure their accomplishment.

The OSG further maintains that the petition for re-qualification failed to comply with the provisions of Resolution No. 6320.  According to the OSG, the petition was not properly verified there being no showing that Mr. Dominador Buhain, the signatory of the verification and certification of non-forum shopping, was duly authorized by Aklat to verify or cause the preparation and filing of the petition on its behalf.  Moreover, Aklat was registered with the Securities and Exchange Commission only on October 20, 2003, a month before it filed its petition for re-qualification. Hence, it has not existed for a period of at least one (1) year prior to the filing of the petition as required by Section 6 of Resolution No. 6320. The OSG also points out that Aklat failed to support its petition with the documents required under Section 7 of Resolution No. 6320, namely: a list of its officers and members particularly showing that the majority of its membership belongs to the marginalized and underrepresented sectors it seeks to represent, and a track record or summary showing that it represents and seeks to uplift the marginalized and underrepresented sectors of society.

Moreover, the OSG notes that the incorporators and directors of Aklat are invariably known as pillars of the book publishing industry or authors. Hence, even as re-organized, Aklat remains to be an association of authors, book publishers, and publishing companies, rather than the organization of indigenous cultural communities, farm and factory workers, fisherfolk and youth it claims to be.

For its part, the Comelec filed a Comment dated March 29, 2004, stating that the period of ninety (90) days prescribed in R.A. 7941 refers to the prohibitive period beyond which petitions for registration may no longer be filed.   Furthermore, the documents submitted by Aklat do not prove that its members belong to the marginalized and underrepresented sectors of society.

118

Aklat’s contention that Resolution No. 6320 is null and void as it amends and amplifies R.A. 7941 deserves scant consideration.  R.A. 7941 provides:

Sec. 5. Registration.—Any organized group of persons may register as a party, organization or coalition for purposes of the party-list system by filing with the COMELEC not later than ninety (90) days before the election a petition verified by its president or secretary stating its desire to participate in the party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations, attaching thereto its constitution, by-laws, platform or program of government, list of officers, coalition agreement and other relevant information as the COMELEC may require: Provided, That the sectors shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals…[Italics supplied.]

By its wording, R.A. 7941 itself supports the Comelec’s position that the period stated therein refers to the prohibitive period beyond which petitions for registration should no longer be filed nor entertained.  Put elsewise, it is simply the minimum countback period which is not subject to reduction since it is prescribed by law, but it is susceptible of protraction on account of administrative necessities and other exigencies perceived by the poll body.

Verily, the Comelec has the power to promulgate the necessary rules and regulations to enforce and administer election laws.  This power includes the determination, within the parameters fixed by law, of appropriate periods for the accomplishment of certain pre-election acts like filing petitions for registration under the party-list system.  This is exactly what the Comelec did when it issued its Resolution No. 6320 declaringSeptember 30, 2003, as the deadline for filing petitions for registration under the party-list system.   Considering these, as well as the multifarious pre-election activities that the Comelec is mandated to undertake, the issuance of its Resolution No. 6320 cannot be considered tainted with grave abuse of discretion.

Neither is there grave abuse of discretion in the Comelec’s denial of Aklat’s petition on the ground that it failed to substantiate its claim that it represents the marginalized and underrepresented sectors of society.  It should be noted that it was Aklat which asserted in its petition before the poll body that it has re-organized and is now applying for re-qualification after its de-registration for failure to comply with the guidelines set forth in the Bagong Bayani case.  Thus, the Comelec cannot be faulted for relying on its earlier finding, absent any evidence in Aklat’s petition to the contrary, that Aklat is not an organization representing the marginalized and underrepresented sectors, but is actually a business interest or economic lobby group which seeks the promotion and protection of the book publishing industry.

Significantly, Aklat and A.K.L.A.T. have substantially the same incorporators. In fact, four (4) of Aklat’s six (6) incorporators[14] are also incorporators of A.K.L.A.T.[15] This substantial similarity is hard to ignore and bolsters the conclusion that the supposed re-organization undertaken by Aklat is plain window-dressing as it has not really changed its character as a business interest of persons in the book publishing industry.

The Court observes that Aklat’s articles of incorporation and document entitled The Facts About Aklat which were attached to its petition for re-qualification contain general averments that it supposedly represents marginalized groups such as the youth, indigenous communities, urban poor and farmers/fisherfolk.  These general statements do not measure up to the first guideline set by the Bagong Bayani case for screening party-list participants, i.e., that “the political party, sector, organization or coalition must represent the marginalized and underrepresented groups identified in Section 5 of R.A. 7941.  In other words, it must show—through its constitution, articles of incorporation, bylaws, history, platform of government and track record—that it represents and seeks to uplift marginalized and underrepresented sectors. Verily, majority of its membership should belong to the marginalized and underrepresented. And it must demonstrate that in a conflict of interests, it has chosen or is likely to choose the interest of such sectors.”[16]

In this regard, the Court notes with approval the OSG’s contention that Aklat has no track record to speak of concerning its representation of marginalized and underrepresented constituencies considering that it has been in existence for only a month prior to the filing of its petition for re-qualification.

It should finally be emphasized that the findings of fact by the Comelec, or any other administrative agency exercising particular expertise in its field of endeavor, are binding on the Supreme Court.[17]

In view of the foregoing, the Comelec can, by no means, be held to have committed grave abuse of discretion to justify the setting aside of the assailed Resolutions.

ACCORDINGLY, the Petition is DISMISSED.

SO ORDERED.

Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. Nos. 83938-40 November 6, 1989

119

PEOPLE OF THE PHILIPPINES, Petitioner, vs. HON. HENRY B. BASILLA, SALVACION COLAMBOT, SPOUSES JAIME AND ADORACION TAYONG and MELCHOR YANSON, Respondents.

 

FELICIANO, J.:

As an aftermath of the May 1987 congressional elections in Masbate, complaints for violations of Section 261 of the Omnibus Election Code (BP Blg. 881) were filed with the Office of the Provincial Fiscal of Masbate against the private respondents as follows:

1) by Jolly Fernandez, then Officer-in-Charge of the Office of the Governor, against the spouses Jaime and Adoracion Tayong - for violation of Section 261, paragraph a-1, for vote-buying; chanrobles virtual law library

2) by Ladislao Bataliran against Salvacion Colambot - for violation of Section 261, paragraph a-1, also for vote buying; and chanrobles virtual law library

3) by PC/Sgt Arturo Rebaya against Melchor Yanson - for violation of Section 261, paragraph p, for carrying of deadly weapon.

After preliminary investigation of the foregoing complaints, the Provincial Fiscal of Masbate filed in the Regional Trial Court, Branch 49, Cataingan, Masbate,. the following criminal complaints: (1,) Criminal Case No. 324 against the spouses Tayong; (2) Criminal Case No. 326 against Salvacion Colambot and (3) Criminal Case No. 375 against Melchor Yanson.chanroblesvirtualawlibrary chanrobles virtual law library

In three (3) separate orders, all dated 6 October 1987, and Identical in tenor save for the names of the accused respondent Judge Henry Basilla motu proprio dismissed the three (3) informations filed by the Provincial Fiscal, giving the following justification:

xxx xxx xxx chanrobles virtual law library

The record shows that the complainant filed the complaint with the fiscal and not with the COMELEC. The COMELEC did not investigate the case.

The Constitution of the Republic of the Philippines says: chanrobles virtual law library

"Sec. 2(6) of Art. IX (C) The Commission on Election shall exercise the following powers and functions:

xxx xxx xxx

... ; investigate and, when appropriate prosecute cases of violation of election laws, including acts or omissions, constituting election frauds offenses, malpractices."

The Omnibus Election Election Code of the Philippines (BP Blg, 881) says:

Sec. 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government; Provided, however, that in the event that the Commission fails to act on any complaint within four months from his filing, the complaint may file the complaint with the office of the fiscal or with the Ministry of Justice. for proper investigation and prosecution, if warranted. (Sec. 182, 1978, EC; and Sec. 66. BP 697)

In the landmark case of De Jesus vs. People, L-60998, February 120 SCRA 760, the the Supreme Court ruled:

The grant to the COMELEC of the power. among others, to enforce and administer all laws relative to the conduct of election and the concomitant authority to investigate and prosecuteelection offenses is not without compelling reason. The evident constitutional intendment in bestowing this power to the COMELEC is to ensure the free, and honest conduct of elections, failure of which would result i ii the frustration of the true will of the people and make a mere Idle ceremony of the sacred right and duty of every qualified citizen to vote. To divest the COMELEC of the authority to investigate and prosecute election offensescommitted by public officials in relation to their office would thus seriously impair its effectiveness in achieving this clear constitutional mandate.

Consistently, and lately, in Corpu[s], et al. vs. Tanodbayan of the Philippines', et al., L-62075, April 15, 1987, our Supreme Court rules:

An examination of the provisions of the Constitution and the Election Code of 1978 reveals the clear intention to place in the COMELEC exclusive jurisdiction to investigate and prosecuteelection offenses committed by any person, whether private individual or public officer or employee, and in the latter instance, irrespective of whether the offense is committed in relation to his official duties or not. In other words, it is the nature of the offense and not the personality of the offender that matters. As long as the offense is an election offense jurisdiction over the same rests exclusively with the COMELEC, in view of its all embracing power over the conduct of election.

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IN THE LIGHT OF ALL THE FOREGOING, inasmuch as the election offense was not investigated and prosecuted by the COMELEC. the case is motu proprio dismissed. 1 chanrobles virtual law library

The People moved for reconsideration of respondent Judge's orders, without success.chanroblesvirtualawlibrary chanrobles virtual law library

The instant Petition for Review assails the three (3) orders dismissing the three (3 ) criminal informations against the private respondents, as constituting grave abuse of discretion amounting to lack of jurisdiction. The Petition argues principally that the Commission on Elections ("Comelec") has authority to deputize the chief state prosecutors, provincial and city fiscals and their assistants, under Sections 2 (4) and (8 ), Article IX-C of the 1987 Constitution, and that the Comelec did deputize such prosecution officers to conduct preliminary investigation of complaints for alleged violation of election laws and to institute criminal informations therefor.chanroblesvirtualawlibrary chanrobles virtual law library

The Petition must be granted.chanroblesvirtualawlibrary chanrobles virtual law library

There is no dispute that the Comelec is vested with power and authority to conduct preliminary investigation of all election offenses punishable under the Omnibus Election Code and to prosecute such offenses in court. Section 265 of this Code reads as follows:

See. 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted. (Sec. 182, 1973 EC; and Sec. 66, BP 697) (Emphasis supplied)

We note that while Section 265 of the Code vests "exclusive power" to conduct preliminary investigation of election offenses and to prosecute the same upon the Comelec, it at the same time authorizes the Comelec to avail itself of the assistance of other prosecuting arms of the Government. Section 2 of Article IX-C of the 1 987 Constitution clearly envisage that the Comelec would not be compelled to carry out all its functions directly and by itself alone:

Section 2. The Commission on Elections shall exercise the following powers and functions:chanrobles virtual law library

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.chanroblesvirtualawlibrary chanrobles virtual law library

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(4) Deputize, with the concurrence of the President, law enforcementi agencies and instrumantalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free orderly, honest, peaceful, and credible elections.chanroblesvirtualawlibrary chanrobles virtual law library

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(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases of violation of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. chanrobles virtual law library

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(8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive, order, or decision.chanroblesvirtualawlibrary chanrobles virtual law library

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(Emphasis supplied)

The concurrence of the President with the deputation by Comelec of the prosecuting arms of the Government, was expressed in general terms and in advance in Executive Order No. 134. dated 27 February 1987, entitled "Enabling Act for the Elections for members of Congress on May 11, 1987, and for other purposes." Executive Order No. 134 provided in pertinent portion as follows:

xxx xxx xxx chanrobles virtual law library

See. 11. Prosecution. - Commission shall, through its duly authorized legal officers, have exclusive power to conduct preliminary investigation of all election offenses punishable as provided for in the preceding section, and to prosecute the same: Provided, That in the event that the Commission fails to act on any complaint within two (2) months from filing, the complainant may file the complaint with the Office the Fiscal or with the Department for Justice for proper investigation and prosecution, if warranted.

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The Commission may avail of the assistance of other prosecuting arms of the government.

(Emphasis supplied)

On 9 March 1987, the Comelec enacted its Resolution No. 1862. The pertinant operative portions of this resolution are the following:

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NOW, THEREFORE, the Commission on Elections, by virtue of the powers vested in it by the Constitution of the Republic of the, Philippines, the Omnibus Election Code and Executive Orders Nos. 50, 94, 134 and 144, has RESOLVED to designate, as it hereby designates the Chief State Prosecutor, all Provincial and City Fiscalss and their respective Assistants as its deputies in connection with the elections for Members of Congress on May 11, 1987, to perform the following duties and functions:

1. Conduct prelimiry investigation of complaints involving election offenses under the Omnibus Election Code which may be filed directly with them, or which may be endorsed to them by the Commission or its authorized representatives; and chanrobles virtual law library

2. Whenever a prima facie case exists, file the proper information in court and prosecute the same.

Preliminary investigation of cases filed directly with, or endorsed to, Provincial and City Fiscals, and/or their respective Assistants shall be conducted immediately and shall be finished within thirty (30) days from the filing thereof and, for this purpose, they are enjoined to hold office on a twenty-four (24) hour basis during the registration of voters on April 11 and 12, 1987, on Election Day on May 11, 1987, and until midnight on Revision Day on May 2, 1987.

Provincial and City Fiscals and their respective Assistants shall submit to the Commission a report on every case directly filed with them and thereafter, monthly progress reports on the status of the cases handled by them, including those endorsed by the Commission or its authorized representatives.chanroblesvirtualawlibrary chanrobles virtual law library

This Resolution shall take effect immediately. 2 (Emphasis supplied)

The contention of private respondents that the deputation by the Comelec of the prosecuting arms of the Government would be warranted only before the elections and only to ensure tree, honest, orderly, peaceful and credible elections, that is, to perform the peace-keeping functions of policemen, lack substance. There is nothing in Section 2 (4) of Article IX-C of the Constitution which requires such a pinched niggardly interpretation of the authority of the Comelec to appoint as its deputies, officials or employees of other agencies and instrumentalities of the government. The prompt investigation and prosecution and disposition of election offenses constitute an indispensable part of the task of securing free, orderly, honest, peaceful and credible elections. The investigation and prosecution of election offenses are, in an important sense, more important than the maintenance of physical order in election precinct. 'without the assistance of provincial and city fiscals and their assistants and staff members, and of the state prosecutors of the Department of Justice, the prompt and fair investigation and prosecution of election offenses committed before or in the course of nationwide elections would simply not be possible, unless, perhaps, the Comelec had a bureaucracy many times larger than what it actually has. Moreover, the prosecution officers designated by the Comelec become deputies or agents of the Comelec and pro tanto subject to the authority, control and supervision of the Comelec in respect of the particular functions covered by such deputation. The acts of such deputies within the lawful scope of their delegated authority are, in legal contemplation, the acts of the Comelec itself. The only limitation the Constitution itself places upon the Comelec's authority over its deputies relates to the enforcement of such authority through administrative sanctions. Such sanctions-e.g., suspension or removal-may be recommended by the Comelec to the President (Sec. 2 [8], Article IX-C, 1987 Constitution) rather than directly imposed by the Comelec, evidently, to pre-empt and avoid potential difficulties with the executive department of the Government where the prosecution and other officers deputized are ordinarily located.chanroblesvirtualawlibrary chanrobles virtual law library

All this the respondent Judge disregarded when he motu proprio dismissed the criminal informations filed in this case. The cases he cited in his identical orders - De Jesus v. People, 120 SCRA 760 (1983) and Corpus, et al. v. Tanodbayan, 149 SCRA 281 (1987) can offer him no comfort at all; for these cases do not relate to the authority of the Comelec to deputize the regular prosecution arms of the Government for the investigation and prosecution of election offenses and those cases are not in conflict with our ruling here.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the Petition for Review on certiorari is hereby GRANTED due course and the Orders of the trial court all dated October 6, 1987 in Criminal Cases Nos. 324, 326 and 375 and the Order dated December 7, 1987 in the same cases denying the People's Motion for Reconsideration, are hereby SET ASIDE and ANNULLED. The trial court is ORDERED to proceed forthwith with the continuation of Criminal Cases Nos. 324, 326 and 375 and until termination thereof. Costs against private respondents.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

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G.R. No. 87014-16 September 13, 1989

SALIC B. DUMARPA, MARANAO C. DANGANAN and SAADUDDIN ALAUYA, petitioners, vs.JAMIL DIMAPORO and the COMMISSION ON ELECTIONS, respondents.

Nancy H. Madarang for private respondent.

 

NARVASA. J.:

By Resolution dated October 28, 1988, 1 the Commission on Elections en banc 2 passed upon and disposed of---

(a) two motions for reconsideration filed by Datu Abdulmadid Panondiongan Maruhom and Monabai Panondiongan Balt, from a decision of the Commission (First Division) promulgated July 11, 1988, dismissing their petitions and affirming the proclamation of Jamil Dimaporo as the duly elected municipal mayor of Marogong, Lanao del Sur, and

(b) a motion for contempt of the Commission (against) Provincial Fiscal Salic B. Dumarpa, 3rd Assistant Provincial Fiscal Maranao D. Danganan, and Vice-Governor Saaddudin Alauya, all of the Province of Lanao del Sur.

As regards the motions for reconsideration, the Resolution declared them to be without merit, and "sustain(ed) the decision of the First Division on all cases."

As regards the motion for contempt, said Resolution found the charge to have been duly substantiated, pronounced respondents "Provincial Fiscal Salic Dumarpa, 3rd Assistant Provincial Fiscal Maranao Danganan and Vice-Governor Saaddudin Alauya ... in contempt ... (and) imposed (on them) a Fine of Five Hundred Pesos (P 500.00) each ... 3 It is this aspect of the Resolution and the Order subsequently promulgated on January 12,1989 denying the respondents' motion for reconsideration, that are now challenged in the instant special civil action ofcertiorari.

The facts are not complicated. They have to be gone into in some detail, however, so that the issue, albeit simple, may be more accurately defined.

On February 3,1988, Datu Jamil Dimaporo was proclaimed by the Board of Canvassers Mayor-elect of Marogong.

The annulment of the proclamation and the canvass on which it was based 4 was sought in two (2) separate petitions filed by defeated mayoralty candidates: one filed on February 15, 1988 by Datu Abdulmadid Panondiongan Maruhom (docketed as SPC No. 88-646), and the other, on February 17, 1988, by Monabai Panondiongan Balt (docketed as SPC Nos. 88-697 and 88-697-A).

While these petitions were pending adjudgment by the COMELEC First Division, the Secretary of Local Governments issued on May 1-.9, 1988 a memorandum addressed to the Regional Director, Region XII of the Department of Local Governments, designating Maclis Balt "Officer-in-Charge, Office of the Mayor of Marogong, Lanao del Sur vice Abdullah Imam." The memorandum precisely took account of said petitions. It stated that the designation of the OIC was made "(i)n view of the election controversy that has arisen over the mayoralty race of Marogong, Lanao del Sur, and to ensure that the democratic process is respected throughout the transition period. 5

A copy of this memorandum was furnished Governor Saidamen Pangarungan, among others. He, in turn, issued on May 23, 1988 a memorandum to "All Concerned on the subject, "Lifting of Suspension Order," reading as follows: 6

In view of the designation of OIC-Mayors in the municipalities of Bacolod-Grande and Marogong, Lanao del Sur by the Secretary of Local Governments on different dates pending final resolution by the Commission on Elections of the mayoralty poll disputes therein, the order issued by this Office suspending the processing of vouchers and other financial matters as well as the encashment of pertinent checks for said towns is hereby lifted.

All concerned are hereby advised to recognize the said designation of the Secretary of Local Governments.

For compliance.

Evidently on the strength of the designation of the Secretary of Local Governments and said memorandum of Governor Pangarungan, Maclis Balt assumed the position and discharged the functions of OIC, Office of the Mayor, Marogong.

The petitions seeking annulment of Datu Dimaporo's proclamation were ultimately dismissed by the First Division of the COMELEC, by decision rendered on July 11, 1988. Motions for reconsideration thereof were seasonably presented by both petitioners. These were brought up to the Commission en banc for resolution.

Datu Dimaporo lost no time in seeking official recognition of his status as mayor-elect of Marogong, as confirmed by the First Division's Decision of July 11, 1988. Under date of July 18, 1988, his counsel, Mangurun Batuampar sent a formal communication to

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Provincial Governor Saidamen B. Pangarungan, "transmitting .. the 'RESOLUTION' of the Honorable First Division of the Commission on Elections ..," and praying "that communications and other official matters involving the affairs of the Municipality of Marogong, Lanao del Sur be accorded to DATU JAMIL DATU MULOK DIMAPORO whose proclamation was aimed by the Commission on Elections as aforestated." This letter, and other related documents collated by the Office of the Governor, were later referred to the Provincial Fiscal of Lanao del Sur by 3rd Indorsement dated August 1, 1988, of Atty. Sa-Aduden Alauya, "Vice Governor-OIC Governor." The 3rd Indorsement reads as follows: 7

Respectfully forwarded to the Provincial Fiscal, this province, the herein attached basic communication, dated July 18,1988, of Atty. Mangurun Batuampar, counsel of Datu Jamil .. Dimaporo with a xerox copy of the Resolution dated July 11, 1988, of the First Division of the Commission on Elections, and the comment thereto by OIC-Mayor Maclis Balt with a xerox copy of the motion for reconsideration filed in behalf of Monorabai Panondiongan Balt on July 1988, together with the preceding indorsements thereof, for legal opinion as to who between Datu Jamil .. Dimaporo and Maclis Balt should be recognized as the Municipal Mayor and/or OIC-Mayor of Marogong, Lanao del Sur.

Early action on the matter is desired.

The Provincial Fiscal acted promptly on the request. The opinion sought was communicated to the Vice Governor by 4th Indorsement dated August 5, 1988. It was signed by 3rd Assistant Provincial Fiscal Maranao C. Danganan, with the conformity ("conforme") of Provincial Fiscal Salic B. Dumarpa. The indorsement reads as follows:

Respectfully returned to the Honorable Vice Governor-OIC Governor, this province, the herein attached 3rd Indorsement together with its enclosures, with the legal opinion that Datu Maclis Balt is still the Mayor of the Municipality of Marogong, Lanao del Sur, pursuant to Sec. 3, paragraph C, Article IX of the Constitution which mandates that motions for reconsideration from a decision of a Division of the Commission on Elections shall be decided En Banc by the Commission. Considering that a injunction for reconsideration was timely filed by the OIC 8 the decision of the Division is not final and executory. The decision of the Commission En Banc is not yet even final until and after 5 days whenever no restraining order is issued by the Supreme Court.

On learning of this legal opinion, Datu Dimaporo filed with the COMELEC en banc a motion to hold Fiscals Dumarpa and Danganan, as well as Vice-Governor Alauya, in contempt. 9 His motion, dated August 22, 1988,inter alia drew attention to the inaccuracy in the 4th Indorsement -- that OIC Maclis Balt had filed a motion for reconsideration of the Decision of the First Division of the COMELEC 10 --and pointed out that the respondents should have known "that M ACLIS BALT has never been a candidate for Mayor in Marogong during the February 1, 1988 local elections and therefore, cannot file a motion for reconsideration in the above-entitled cases not being a party therein." The motion theorized that the act of Vice-Governor Alauya in seeking legal opinion of the Office of the Provincial Fiscal, and the formulation and communication of the requested opinion by Fiscals Dumarpa and Danganan, constituted "indirect contempt as it is clearly an improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice (Sec. 3-d, Rule 71, Revised Rules of Court), and is also an unlawful interference with the processes or proceedings of this Honorable Commission en banc (Sec. 3-c., Rule 71) .. where the above-entitled cases are now pending for decision ..." In exposition of this thesis, the motion made the following assertions:

10. That the aforestated improper conduct ... causes chaos sand confusion among the National, Provincial, Municipal officials and the general public on who is really the legal Mayor of Marogong, Lanao del Sur, considering the conflict of the defendants' legal opinion and the 'Resolution' of the COMELEC Division, as aforesaid, resulting to damage; injury and prejudice not only upon the complainant but to public service, particularly the people of Marogong, Lanao del Sur;

11. That defendants are good lawyers and know very well that resolutions, orders or decisions of this Honorable Commission can only be reviewed by the Supreme Court as indicated in Exhibit '2' (legal opinion), and the issuance of the legal opinion is indeed with evil motive and tainted with malice;

12. That the aforesaid improper conduct of the defendant if not timely corrected by severely punishing them in contempt of this Honorable Commission will be establishing a very bad precedence because such improper conduct amounts to a REVIEW by a Provincial Fiscal of whatever resolution, order or decision of this Honorable Commission.

Responses to the motion for contempt were separately filed by the fiscals and by the Vice-Governor. In a pleading entitled 'Vigorous Opposition to Motion ..' dated September 15,1988, 11 Vice- Governor Alauya declared that---

1) Datu Maclis Balt as an OIC Mayor of the Municipality (of Marogong) is religiously performing the prescribed duties, powers and responsibilities of the mayor of the town until the final adjudication of the mayoralty election cases, hence, it is not true that defendants' act causes chaos and confusion in said Municipality;

2) in the situation that he had found himself--- confronted by the letter of Datu Dimaporo's counsel requesting recognition by the Office of the Governor as Mayor of Marogong pursuant to the Decision of the COMELEC First Division, the comment of OIC Mayor Balt, and the motion for reconsideration filed by defeated candidate Monarabai Balt and in his desire to act safely and correctly and to be in good faith all along, he indorsed .. (the) documents .. to the Provincial Fiscal in his capacity as a legal counsel of the province in the absence of the Provincial Attorney for legal opinion;

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3) said legal opinion has not disputed or contradicted the force and effect of the said resolution (of the First Division) ..; (o)n the contrary, the defendants recognize and respect the force and effect of said resolution and because a motion for reconsideration was timely filed on July 19, 1988, then it has not become final and executory, hence, it is not true that the defendants' act resulted to damage, injury and prejudice upon anybody in said Municipality of Marogong;

4) the opinion .. does not constitute a review of the aforesaid resolution of the .. Comelec First Division in the sense that the defendant-Fiscals did not affirm or reverse said resolution. They did not even say anything against it. They merely opined that because a motion for reconsideration was timely filed, then said resolution has not become final and executory. This is known to any student of law. Actually, these are the off-shoots of the letter of movant's counsel to the Governor ... If the herein defendant did not take such an appropriate action, possibility is not remote that he will be charged of negligence of duty. Suffice it to state that the herein defendant acted honestly, dedicatedly and without any iota of malice or evil motive in his heart and mind. It is hoped with defendant's prayer to Allah that all his action will not help throw this province into blood bath.

For their part, the respondent fiscals asserted the following pertinent propositions in their Answer dated September 12, 1988 (in addition to substantially the same arguments set forth in the Vice- Governor's "Opposition" above adverted to): 12

1) in their written opinion, they had "just humbly stated in three sentences the provision of law on the subject of the query of the Office of the Provincial Governor..; that such statements.., briefly stating the provision of the Constitution particularly Sec. 3, paragraph c of Article IX thereof in relation to See. 246 of the Omnibus Election Code, are not directed against the authority, dignity and majesty of the Commission on Elections so as to constitute a contumacious attitude and flouting or arrogant belligerence against it that the act may constitute contempt;

2) said opinion "has no punitive values that could interfere with the process or proceedings of the Commission," and could not be deemed a contempt thereof; and

3) the counsel for the complaint has put down the Commis sion to the level of the Provincial Fiscal in alluding to a conflict of the defendants' opinion and the Resolution of the COMELEC Division, (thus) displaying his apparent oblivion of the bureaucratic set-up and the jurisprudence prevailing in this country.

The fiscals also submitted a Memorandum, bearing the same date as their answer, 13 in which, among other things, they expressed the view that since the First Division had assumed jurisdiction over the petitions questioning the proclamation of Datu Dimaporo indeed, "it took the Honorable First Division ..considerable time and effort to resolve the controversy-- the presumption was that the proclamation must have appeared invalid to the First Division, otherwise it "could not have acquired (assumed) jurisdiction over the .. cases because the remedy of the petitioners-appellants was a regular protest before the Regional Trial Court of Lanao del Sur." They "were forced to assume that the proclamation of Jamil Dimaporo was irregular because the First Division heard the petition to annul the said proclamation," and this left them "no other option than affirm the jurisdiction of the First Division over the cases by stating the law sanctioning its authority and that is article IX of the Constitution."

In its Resolution of October 28, 1988 anent the contempt incident, the Commission en banc condemned the fiscal's conception of "the First Division's jurisdiction of the pre- proclamation controversy" as a "distortion of the law and jurisprudence." It said: "The propriety and legality of proclamations already made or about to be made are precisely the issues in pre-proclamation controversies over which the Commission has exclusive jurisdiction. It is a rule so consistent and well established in this jurisdiction that even the Commission itself cannot disturb a proclamation made by a Board of Canvassers without notice and hearing. This rule we hold respondents bound by judicial notice." Stressing that under the law "it is solely the Commission that can suspend or annul any proclamation made," the Resolution pointed out that the respondents Alauya, Dumarpa and Danganan in effect did was to suspend the effects of the proclamation of intervenor Dimaporo made by the Municipal Board of Canvassers of Marogong, to prevent him from discharging the duties of his office, and pave the way for the appointment of or assumption to office by an Officer-in-Charge, who is the wife of one of the parties to the instant petitions' which are acts constituting 'unauthorized and illegal assumption of powers that pertain exclusively to the Commission, an unlawful interference with its processes and proceedings, and improper conduct that tends directly or indirectly to impede, obstruct or degrade the administration of justice in this case." Brushing aside, too, the respondents' argument "that they were merely seeking and rendering an opinion ... and therefore the same was not directed against the authority and dignity of the Commission" as being "devoid of merit," the Resolution declared the respondents guilty of contempt and sentenced each of them to pay a fine of P 500.00.

The fiscals and the Vice-Governor filed a motion for reconsideration dated November 9, 1988, depositing at the same time "the amount of One Thousand Five Hundred (P l,500.00) with the Provincial Election Supervisor in Marawi City as and by way of penalty if finally adjudged guilty without prejudice to ventilate their rights in the appropriate forum ." 14 They stated among other things that--

1) Acting Gov. Alauya was faced with a case needing 'urgent action because both parties are claiming the fund releases of Marogong and the tension between the protagonists in SPC Nos. 88-646, 88-697 and 88-697-A has reached its boiling point so volatile that without settling the legal issue the mayorship of Marogong could have been contested by the sound of guns and thus a resultant bloodshed." Thus, "his act of referring the legal controversy to the legal adviser of the province" was, to him, "the most appropriate under the circumstances;" .. (and the) act of not implementing the decision of the Commission, if at all such decision is due for implementation, is at all mistake and, which act did not constitute contempt (citing Asociacion de Agricultores de Talisay-Silay, Inc. v. Talisay-Silay Mining Co., Inc., 88 SCRA 294);

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2) no suspension of the effects of Dimaporo's proclamation was or could have been effected by them since Dimaporo had never "enjoyed the powers and functions appurtenant to the Office of the mayor," had never been paid his salary as mayor, and had not as yet "been accorded recognition as elected mayor .. by the provincial and national government; indeed, "long before the query for legal opinion was lodged, Balt was already designated as Officer-in-Charge;

3) the fiscals had merely performed "a legal duty reposed upon them when they rendered the questioned legal opinion," a duty they could not have refused without incurring liability "for dereliction of a defined duty;" and

4) with or without the fiscal's opinion, "Maclis Balt would still (have) continue(d) discharging the duties of the mayor, at least, until October 28,1988 (when the Resolution of the COMELEC en banc was promulgated).

By Resolution dated January 12, 1989 the COMELEC en banc not only denied the motion for reconsideration, but also "rebuked' the movants "for insisting upon an erroneous legal position." According to the COMELEC ---

Normally, there is nothing objectionable in seeking a legal opinion and in rendering it. But what transpired in connection with these cases were not innocent acts that were intended to guide official action. Rather, they were a deliberate contrivance that were meant to undetermine the efficacy of official acts of the Commission from the municipal board of canvassers to the First Division of the Commission and even the Commission en banc which had not in any way issued any restraining order to suspend the proclamation of the winning candidate. If clarification had to be made in connection with the proclamation and the decision of the First Division, it should have been sought in the Commission itself, for movants knew, or should have known, that the Commission has exclusive jurisdiction over pre-proclamation controversies. That they attempted to settle the matter among themselves demonstrates the intention to effect disobedience to and defiance of the lawful acts and orders of the Commission.

The convicted contemners have instituted the instant special civil action of certiorari in this Court to bring about the nullification of the Resolution of October 28, 1988 "as regards the findings for contempt."

Required to comment in behalf of the public respondent, 15 the Office of the Solicitor General begged to "be discharged from the duty to ... (do so as it) maintains a position different from that taken by respondent COMELEC ." 16 This Court granted the request and accorded to "the respondent COMELEC itself a period of ten (10) days from notice within which to file the required comment, if it so desires." 17 Respondent Datu Dimaporo has not done so, despite notice. The COMELEC filed its own comment on July 25,1989.

The COMELEC counsel submits that the facts "manifest the firm resolve (on petitioners') part to delay, if not totally prevent, the assumption of office by private respondent Dimaporo .., a scheme to shroud with doubt the validity and force of a proclamation while trifling with public respondent's discretion on when to annul a proclamation or suspend its effects;" that the only perceived purpose of the request for opinion was "to provide an aura of legality to the continuity in office of the designated officer-in-charge, to the exclusion of the proclaimed winner in the election;" that "from an overview of the acts of petitioners and the situation in which all parties found themselves thereafter, petitioners' pretensions to good faith recede to a wantonly subtle interference with matters within the exclusive competence of public respondent," and that petitioners' acts were in fact "a deliberate interference with the process or proceedings before respondent Commission ..."

Upon the facts above narrated at some length, the Court is constrained to nullify and set aside the conviction by the COMELEC en banc of the petitioners for contempt.

The essential accusation against the petitioners was that the rendition by the petitioner fiscals of a legal opinion upon request of petitioner Vice Governor had caused "chaos and confusion among the National, Provincial, Municipal officials and the general public on who is really the legal Mayor of Marogong, Lanao del Sur, considering the conflict of the defendants' legal opinion and the 'Resolution' of the COMELEC Division, as aforesaid, resulting to damage, injury and prejudice not only upon the complainant but to public service, particularly the people of Marogong, Lanao del Sur." 18 This was implicitly sustained by the COMELEC when it ruled that-- 19

What respondents Alauya, Dumarpa and Danganan in effect did was to suspend the effects of the proclamation of intervenor Dimaporo made by the Municipal Board of Canvassers of Marogong, to prevent him from discharging the duties of his office, and pave the way for the appointment of or assumption to office by an Officer-in-Charge, who is the wife of one of the parties to the instant petitions.

The trouble is, there is nothing in the challenged Resolutions of the COMELEC en banc, or anywhere else in the record, for that matter, to demonstrate the actuality of the alleged (1) "chaos and confusion among the National, Provincial, Municipal officials and the general public," or (2) "suspension of the effects of the proclamation of intervenor Dimaporo ..(in order to) pave the way for the appointment of or assumption to office by an Officer-in-Charge," or (3) that the latter 'is the wife of one of the parties to the instant petitions;" or (4) that the legal opinion was "a deliberate contrivance .. meant to undermine the efficacy of official acts of the Commission from the municipal board of canvassers to the First Division of the Commission and even the Commission en banc which had not in any way issued any restraining order to suspend the proclamation of the winning candidate."

On the other hand, there are the facts asserted by the petitioners--- never denied or disputed by respondents --- that as of the time that the fiscal's opinion was solicited and even thereafter, Datu Dimaporo had never yet "enjoyed the powers and functions appurtenant to the Office of the mayor," had never been paid his salary as mayor, and had not as yet "been accorded recognition as elected mayor ... by the provincial and national government; and that indeed, "long before the query for legal opinion was lodged, (Maclis) Balt .. (had

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been) already designated as Officer-in-Charge" and since then and during an the time material to the inquiry, had been discharging the functions of mayor of Marogong.

It thus appears that the Resolution in question not only lacks factual foundation of any sort but is contradicted by such of the relevant facts as may be discerned from the record.

It appears furthermore that the Fiscals are being sanctioned for rendering an opinion that in the view of the COMELEC en banc was "a distortion of law and jurisprudence." But what is it in that legal opinion that the COMELEC deemed so offensive to its authority and dignity as to move it to punish its authors? That opinion was rendered in answer to the inquiry of the Acting Governor as to whether or not, in view of the judgment by the First Division of the COMELEC upholding the proclamation by the Board of Canvassers of Datu Dimaporo as Mayor-Elect of Marogong, the duly designated OIC Mayor, therefore acting as such, Datu Maclis Balt, could still be recognized as the Mayor of the Municipality. The inquiry had been made necessary in view of the conflict in claims to the mayoralty then being asserted by both Datu Dimaporo and Datu Balt, which conflict had to be swiftly and legally resolved to prevent its resolution by arms and bloodshed. The fiscals' opinion was based on "Sec. 3, paragraph C, Article IX of the Constitution which mandates that motions for reconsideration from a decision of a Division of the Commission on Elections shall be decided En Banc by the Commission." They declared that since "a motion for reconsideration was timely filed by the OIC, the decision of the Division is not final and executory. The decision of the Commission En Banc is not yet even final until and after 5 days whenever no restraining order is issued by the Supreme Court." The Court, quite frankly, sees in the text of the opinion nothing even remotely resembling an affront to the COMELEC, or a criticism of the First Division's judgment. On the contrary, the opinion simply paraphrases --- correctly, it would appear the COMELEC's own Rules of Procedure 20 on the subject it addresses. But even if, as the questioned Resolution declares, the views therein expressed are clearly wrong, it cannot for that reason alone be considered contumacious otherwise, liability for contempt would invariably attach to every declared instance of orders or judgments rendered without or in excess of jurisdiction or with grave abuse of discretion, or otherwise attended by serious error of one kind or another. The absurdity of such a rule or policy need not be belabored.

Nor may the Acting Governor be faulted for consulting the lawyers of the province as to the effects of a judgment on the authority and actuations of municipal or provincial officials, or the fiscals for advising him on such matters. The law implicitly authorizes the former to seek such advice and expressly imposes upon the latter the duty to give it on request. Section 1682, first paragraph, of the Revised Administrative Code provides:

SEC. 1682. Duty of fiscal as legal adviser of province and provincial subdivisions.-The provincial fiscal shall be the legal adviser of the provincial government and its officers, including district health officers, and of the mayor and council of the various municipalities and municipal districts of the province. As such he shall, when so requested, submit his opinion in writing upon any legal question submitted to him by any such officer or body pertinent to the duties thereof.

Thus, all that the respondent fiscals did was perform a duty specifically enjoined by law, for the failure or refusal to do which they could appropriately have been called to account. It may be that the opinion they submitted was erroneous, though this is by no means certain and is not here fully inquired into, there being no need to do so. As already observed, it cannot, on the ground of error alone and absent any indication in the record that it was prompted by a deliberate intent to affront the Commission or ignore or belittle its judgment and orders, be considered contumacious.

The Court is somewhat intrigued by the statement in the challenged Resolution which "... hold(s) respondents bound by judicial notice" to the rule "... that even the Commission itself cannot disturb a proclamation made by a Board of Canvassers without notice and hearing." Interpreted in consonance with its context, the statement would appear to charge the respondents with judicial notice of the cited rule. But surely it could not have been meant to be taken in that sense because the rule of judicial notice binds only courts acting as such and, moreover, it is doubtful if the precept referred to is a proper subject of judicial notice. One would, however, be hard put to give the statement any other meaning that would not in one way or another contradict the ordinary intendment of its language.

The respondent Commission would have it that if need was felt for any clarification in connection with the proclamation and the Resolution in question, it should have been sought with said Commission itself since the petitioners knew, or should have known, that it has exclusive jurisdiction over pre-proclamation controversies. It fails to explain, however, how the Acting Governor could have done this, not being a party to that particular controversy. And even had that step been feasible, it does not appear that said respondent has jurisdiction to render an advisory opinion or declaratory judgment.

The power to hold in contempt, it has time and again been held, must be exercised, not on the vindictive, but on the preservative principle. 21 It is not to be meted out of pique, or from an imperial sense of the nature and functions of judicial office. What appears to be an honest difference of opinion has been blown up into something that it is not --- a direct and confrontational challenge to the puissance and prerogatives of the Commission. In a word, petitioners have been found in contempt because, to put it baldly, their opinion did not sit well with the Commission and failed to conform to its own views. Judicial sensibilities should not become too tender or self-protective. All things considered, the contempt ruling here cannot be justified on the preservative principle, there being no clear showing, either in the terms of the allegedly contumacious opinion or from the circumstances that led to its issuance, of any intent to denigrate the authority of the respondent Commission or erode the faith and respect due its decisions, orders or other actuations. Said ruling is, therefore, REVERSED and SET ASIDE, and petitioners are absolved of the contempt charge. No costs.

SO ORDERED.

Fernan, C.J., Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño- Aquino, Medialdea and Regalado, JJ., concur.

127

Feliciano, J., is on leave.