Professional Documents
Culture Documents
181613
ROSALINDA
A.
PENERA, Petitioner,
vs.
COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, Respondents.
RESOLUTION
CARPIO, J.:
We grant Rosalinda A. Peneras (Penera) motion for reconsideration of this
Courts Decision of 11 September 2009 (Decision).
The assailed Decision dismissed Peneras petition and affirmed the
Resolution dated 30 July 2008 of the COMELEC En Banc as well as the
Resolution dated 24 July 2007 of the COMELEC Second Division. The
Decision disqualified Penera from running for the office of Mayor in Sta.
Monica, Surigao del Norte and declared that the Vice-Mayor should
succeed Penera.
In support of her motion for reconsideration, Penera submits the following
arguments:
1. Penera was not yet a candidate at the time of the incident under
Section 11 of RA 8436 as amended by Section 13 of RA 9369.
2. The petition for disqualification failed to submit convincing and
substantial evidence against Penera for violation of Section 80 of
the Omnibus Election Code.
3. Penera never admitted the allegations of the petition for
disqualification and has consistently disputed the charge of
premature campaigning.
4. The admission that Penera participated in a motorcade is not the
same as admitting she engaged in premature election
campaigning.
Section 79(a) of the Omnibus Election Code defines a "candidate" as "any
person aspiring for or seeking an elective public office, who has filed a
certificate of candidacy x x x." The second sentence, third paragraph,
Section 15 of RA 8436, as amended by Section 13 of RA 9369, provides
that "[a]ny person who files his certificate of candidacy within [the period
Thus, if all candidates file their certificates of candidacy on the last day,
Section 80 may only apply to acts done on such last day, which is before
the start of the campaign period and after at least one candidate has filed
his certificate of candidacy. This is perhaps the reason why those running
for elective public office usually file their certificates of candidacy on the
last day or close to the last day.
There is no dispute that Eusebios acts of election campaigning or partisan
political activities were committed outside of the campaign period. The
only question is whether Eusebio, who filed his certificate of candidacy on
29 December 2003, was a "candidate" when he committed those acts
before the start of the campaign period on 24 March 2004.
Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for
the filing of certificates of candidacy to 120 days before election day. Thus,
the original deadline was moved from 23 March 2004 to 2 January 2004, or
81 days earlier. The crucial question is: did this change in the deadline for
filing the certificate of candidacy make one who filed his certificate of
candidacy before 2 January 2004 immediately liable for violation of Section
80 if he engaged in election campaign or partisan political activities prior
to the start of the campaign period on 24 March 2004?
Section 11 of RA 8436 provides:
SECTION 11. Official Ballot. The Commission shall prescribe the size and
form of the official ballot which shall contain the titles of the positions to be
filled and/or the propositions to be voted upon in an initiative, referendum
or plebiscite. Under each position, the names of candidates shall be
arranged alphabetically by surname and uniformly printed using the same
type size. A fixed space where the chairman of the Board of Election
Under Section 11 of RA 8436, the only purpose for the early filing of
certificates of candidacy is to give ample time for the printing of official
ballots. This is clear from the following deliberations of the Bicameral
Conference Committee:
SENATOR GONZALES. Okay. Then, how about the campaign period, would it
be the same[,] uniform for local and national officials?
In enacting RA 9369, Congress even further clarified the first proviso in the
third paragraph of Section 15 of RA 8436. The original provision in RA 8436
states
x x x Provided, further, That, unlawful acts or omissions applicable to a
candidate shall take effect upon the start of the aforesaid campaign period,
x x x.
In RA 9369, Congress inserted the word "only" so that the first proviso now
reads
x x x Provided, That, unlawful acts or omissions applicable to a candidate
shall take effect only upon the start of the aforesaid campaign period x x x.
(Emphasis supplied)
Thus, Congress not only reiterated but also strengthened its mandatory
directive that election offenses can be committed by a candidate "only"
upon the start of the campaign period. This clearly means that before the
start of the campaign period, such election offenses cannot be so
committed.
When the applicable provisions of RA 8436, as amended by RA 9369, are
read together, these provisions of law do not consider Penera a candidate
for purposes other than the printing of ballots, until the start of the
campaign period. There is absolutely no room for any other interpretation.
We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio:
x x x The definition of a "candidate" in Section 79(a) of the Omnibus
Election Code should be read together with the amended Section 15 of RA
8436. A "candidate refers to any person aspiring for or seeking an
elective public office, who has filed a certificate of candidacy by himself or
through an accredited political party, aggroupment or coalition of parties."
However, it is no longer enough to merely file a certificate of candidacy for
a person to be considered a candidate because "any person who files his
certificate of candidacy within [the filing] period shall only be considered a
candidate at the start of the campaign period for which he filed his
certificate of candidacy." Any person may thus file a certificate of
candidacy on any day within the prescribed period for filing a certificate of
candidacy yet that person shall be considered a candidate, for purposes of
determining ones possible violations of election laws, only during the
campaign period. Indeed, there is no "election campaign" or "partisan
political activity" designed to promote the election or defeat of a particular
criminal act and curtails freedom of expression and speech, would be void
for vagueness.
Congress has laid down the law a candidate is liable for election
offenses only upon the start of the campaign period. This Court has no
power to ignore the clear and express mandate of the law that "any person
who files his certificate of candidacy within [the filing] period shall only be
considered a candidate at the start of the campaign period for which he
filed his certificate of candidacy." Neither can this Court turn a blind eye to
the express and clear language of the law that "any unlawful act or
omission applicable to a candidate shall take effect only upon the start of
the campaign period."
The forum for examining the wisdom of the law, and enacting remedial
measures, is not this Court but the Legislature. This Court has no recourse
but to apply a law that is as clear, concise and express as the second
sentence, and its immediately succeeding proviso, as written in the third
paragraph of Section 15 of RA 8436, as amended by RA 9369.
WHEREFORE, we GRANT petitioner Rosalinda A. Peneras Motion for
Reconsideration. We SET ASIDE the Decision of this Court in G.R. No.
181613 promulgated on 11 September 2009, as well as the Resolutions
dated 24 July 2007 and 30 January 2008 of the COMELEC Second Division
and the COMELEC En Banc, respectively, in SPA No. 07-224. Rosalinda A.
Penera shall continue as Mayor of Sta. Monica, Surigao del Norte.
SO ORDERED.
(FIRST
Pasig City Board of Canvassers which reported that 98% of the total returns
of Pasig City had been canvassed and that there were only 32 uncanvassed
returns involving 6,225 registered voters. Eusebio had 119,693 votes while
Lanot had 108,941 votes. Thus, the remaining returns would not affect
Eusebios lead over Lanot. The COMELEC En Banc stated its "established
policy" to "expedite the canvass of votes and proclamation of winning
candidates to ease the post election tension and without prejudice to [its]
action in [the] x x x case" 20 and resolved to declare Eusebio as Pasig City
Mayor. The dispositive portion of the 21 May 2004 Order read:
WHEREFORE, this Commission RESOLVED, as it hereby RESOLVES,
to LIFT AND SET ASIDE the order suspending the proclamation of the
respondent.
FURTHER, the City Board of Canvassers is DIRECTED to complete [the]
canvass and immediately proceed with the proclamation of the winning
candidate for Mayor of Pasig City without prejudice to the final
outcome of the case entitled, "Henry P. Lanot, et al., vs. Vicente
Eusebio[, "] docketed as SPA No. 04-288.21 (Emphasis in the original)
Eusebio was proclaimed as Pasig City Mayor on 23 May 2004 based on the
21 May 2004 Order.1wphi1 On 25 June and 6 July 2004, the COMELEC En
Banc conducted hearings on Eusebios motion for reconsideration of the 5
May 2004 COMELEC First Division resolution. On 6 August 2004, Lanot filed
a motion to annul Eusebios proclamation and to order his proclamation
instead.22
On 20 August 2004, the COMELEC En Banc promulgated the third
questioned issuance. The COMELEC En Banc invoked Section 1 of COMELEC
Resolution No. 2050 ("Resolution 2050") and this Courts rulings in Albaa
v. COMELEC,23 Lonzanida v. COMELEC,24 and Sunga v. COMELEC25 in
justifying the annulment of the order to disqualify Eusebio and the referral
of the case to the Law Department for preliminary investigation. The
dispositive portion stated:
WHEREFORE, PREMISES CONSIDERED, the resolution promulgated by
the First Division dated 8 May 2004 on the above-captioned case, affirming
the recommendation of the Regional Director (NCR) to disqualify herein
respondent, is hereby SET ASIDE, and the corresponding ORDER issued
thereunder, ANNULLED. Accordingly, this case is referred to the Law
Department for investigation to finally determine [whether] the acts
complained of were in fact committed by respondent Eusebio. 26 (Emphasis
in the original)
the votes cast for him shall not be counted." Under Section 13 of the
COMELEC Rules of Procedure, a decision or resolution of a Division in a
special action becomes final and executory after the lapse of fifteen days
following its promulgation while a decision or resolution of the COMELEC En
Banc becomes final and executory after five days from its promulgation
unless restrained by this Court.
Propriety of the Lifting of the Suspension of Eusebios Proclamation
In the same 11 May 2004 Resolution, the COMELEC En Banc ordered the
suspension of Eusebios proclamation in the event he would receive the
winning number of votes. Ten days later, the COMELEC En Banc set aside
the 11 May 2004 order and directed the Pasig City Board of Canvassers to
proclaim Eusebio as the winning candidate for Pasig City Mayor. The
COMELEC relied on Resolutions 7128 and 7129 32 to justify the counting of
Eusebios votes and quoted from the Resolutions as follows:
Resolution No. 7128 -
xxxx
NOW THEREFORE, the Commission RESOLVED, as it hereby RESOLVES, to
adopt certain policies and to direct all Board of Canvassers, as follows:
1. to speed up its canvass and proclamation of all winning candidates
except under the following circumstances:
a. issuance of an order or resolution suspending the proclamation;
b. valid appeal[s] from the rulings of the board in cases where
appeal is allowed and the subject appeal will affect the results of
the elections;
x x x x.
Resolution No. 7129
xxxx
NOW THEREFORE, the Commission on Elections, by virtue of the powers
vested in it by the Constitution, the Omnibus Election Code and other
elections laws, has RESOLVED, as it hereby RESOLVES, to refrain from
granting motions and petitions seeking to postpone proclamations by the
Board of Canvassers and other pleadings with similar purpose unless they
are grounded on compelling reasons, supported by convincing evidence
and/or violative of the canvassing procedure outlined in Resolution No.
6669.
We agree with Eusebio that the COMELEC En Banc did not commit grave
abuse of discretion in issuing its 21 May 2004 order. The COMELEC has the
discretion to suspend the proclamation of the winning candidate during the
pendency of a disqualification case when evidence of his guilt is
strong.33 However, an order suspending the proclamation of a winning
candidate against whom a disqualification case is filed is merely
provisional in nature and can be lifted when warranted by the evidence. 34
Propriety
of
Disqualification
Referral
Law Department
the
Case
to
Dismissal
and
the
of
of
the
the
COMELEC
Lanot filed the petition for disqualification on 19 March 2004, a little less
than two months before the 10 May 2004 elections. Director Ladra
conducted hearings on the petition for disqualification on 2, 5 and 7 April
2004. Director Ladra submitted her findings and recommendations to the
COMELEC on 4 May 2004. The COMELEC First Division issued a resolution
adopting Director Ladras recommendations on 5 May 2004. Chairman
Abalos informed the pertinent election officers of the COMELEC First
Divisions resolution through an Advisory dated 8 May 2004. Eusebio filed a
Motion for Reconsideration on 9 May 2004. Chairman Abalos issued a
memorandum to Director Ladra on election day, 10 May 2004, and
enjoined her from implementing the 5 May 2004 COMELEC First Division
resolution. The petition for disqualification was not yet finally resolved at
the time of the elections. Eusebios votes were counted and canvassed,
after which Eusebio was proclaimed as the winning candidate for Pasig City
Mayor. On 20 August 2004, the COMELEC En Banc set aside the COMELEC
First Divisions order and referred the case to the COMELEC Law
Department.
In its 20 August 2004 resolution, the COMELEC En Banc relied heavily on
the timing of the filing of the petition. The COMELEC En Banc invoked
Section 1 of Resolution No. 2050, which states:
1. Any complaint for the disqualification of a duly registered candidate
based upon any of the grounds specifically enumerated under Section 68
of the Omnibus Election Code, filed directly with the Commission before an
election in which the respondent is a candidate, shall be inquired into by
Sec. 3. Where to file petitions. The petitions shall be filed with the
following offices of the Commission:
xxx
xxx
xxx
2.e having violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v and cc sub-paragraph 6 of the
Omnibus Election Code, shall be disqualified from
continuing as a candidate, or if he has been elected, from
holding the office.
xxxx
Indeed, what the COMELEC did in its 20 August 2004 resolution was
contrary to "the interest of justice and x x x speedy disposition of cases."
Resolution No. 2050 referring the electoral aspect to the Law Department
is procedurally inconsistent with Resolution 6452 delegating reception of
evidence of the electoral aspect to the Regional Election Director. The
investigation by the Law Department under Resolution No. 2050 produces
the same result as the investigation under Resolution 6452 by the Regional
42
The official ballots shall be printed by the National Printing Office and/or
the Bangko Sentral ng Pilipinas at the price comparable with that of private
printers under proper security measures which the Commission shall
adopt. The Commission may contract the services of private printers upon
certification by the National Printing Office/Bangko Sentral ng Pilipinas that
it cannot meet the printing requirements. Accredited political parties and
deputized citizens arms of the Commission may assign watchers in the
printing, storage and distribution of official ballots.
To prevent the use of fake ballots, the Commission through the Committee
shall ensure that the serial number on the ballot stub shall be printed in
magnetic ink that shall be easily detectable by inexpensive hardware and
shall be impossible to reproduce on a photocopying machine, and that
identification marks, magnetic strips, bar codes and other technical and
security markings, are provided on the ballot.
THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing
of the certificate of candidacy will not result in that official vacating his
position, we can also provide that insofar he is concerned, election period
or his being a candidate will not yet commence. Because here, the reason
why we are doing an early filing is to afford enough time to prepare this
machine readable ballots.
of
Eusebios
Possible
TEAM PATAY
Estrada, JV
Honasan, Gregorio
Casio, Teddy
Magsaysay, Mitos
Pimentel, Koko
Enrile, Jackie
Trillanes, Antonio
Escudero, Francis
Villar, Cynthia
Hontiveros, Risa
Legarda, Loren
On March 13, 2013, respondents filed their comment 17 arguing that (1) a
petition for certiorari and prohibition under Rule 65 of the Rules of Court
filed before this court is not the proper remedy to question the notice and
letter of respondents; and (2) the tarpaulin is an election propaganda
subject to regulation by COMELEC pursuant to its mandate under Article IXC, Section 4 of the Constitution. Hence, respondents claim that the
issuances ordering its removal for being oversized are valid and
constitutional.18
CHURCH
VICINITY
During the hearing held on March 19, 2013, the parties were directed to
file their respective memoranda within 10 days or by April 1, 2013, taking
into consideration the intervening holidays.19
The issues, which also served as guide for the oral arguments, are: 20
I.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER
MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW
DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS
OF THE COMELEC WHICH WOULD WARRANT A REVIEW OF THIS COURT VIA
RULE 65 PETITION[;]
A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF
COURTS
DOCTRINE
AND
JURISPRUDENTIAL
RULES
GOVERNING APPEALS FROM COMELEC DECISIONS;
ESMERALDA
AMORA-LADRA
II.
THIS
FORM
OF
EXPRESSION
MAY
BE
IV.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION OFFICER
MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW
DEPARTMENT VIOLATES THE PRINCIPLE OF SEPARATION OF CHURCH AND
STATE[;] [AND]
V.
WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN
VIOLATES THE CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH
AND STATE.
I
PROCEDURAL ISSUES
I.A
This courts jurisdiction over COMELEC cases
Respondents ask that this petition be dismissed on the ground that the
notice and letter are not final orders, decisions, rulings, or judgments of
the COMELEC En Banc issued in the exercise of its adjudicatory powers,
reviewable via Rule 64 of the Rules of Court.21
Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is
applicable especially to raise objections relating to a grave abuse of
discretion resulting in the ouster of jurisdiction. 22 As a special civil action,
there must also be a showing that there be no plain, speedy, and adequate
remedy in the ordinary course of the law.
Respondents contend that the assailed notice and letter are not subject to
review by this court, whose power to review is "limited only to final
decisions, rulings and orders of the COMELEC En Banc rendered in the
exercise of its adjudicatory or quasi-judicial power." 23 Instead, respondents
claim that the assailed notice and letter are reviewable only by COMELEC
itself pursuant to Article IX-C, Section 2(3) of the Constitution 24 on
COMELECs
power
to
decide
all
questions
affecting
elections.25 Respondents invoke the cases of Ambil, Jr. v. COMELEC, 26Repol
v. COMELEC,27 Soriano, Jr. v. COMELEC,28 Blanco v. COMELEC,29 and
Cayetano v. COMELEC,30 to illustrate how judicialintervention is limited to
final decisions, orders, rulings and judgments of the COMELEC En Banc. 31
These cases are not applicable.
In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of
Eastern Samar filed the election protest. 32At issue was the validity of the
promulgation of a COMELEC Division resolution. 33 No motion for
reconsideration was filed to raise this issue before the COMELEC En Banc.
This court declared that it did not have jurisdiction and clarified:
We have interpreted [Section 7, Article IX-A of the Constitution] 34 to mean
final orders, rulings and decisionsof the COMELEC rendered in the exercise
of its adjudicatory or quasi-judicial powers." This decision must be a final
decision or resolution of the Comelec en banc, not of a division, certainly
not an interlocutory order of a division.The Supreme Court has no power to
review viacertiorari, an interlocutory order or even a final resolution of a
Division of the Commission on Elections. 35 (Emphasis in the original,
citations omitted)
However, in the next case cited by respondents, Repol v. COMELEC, this
court provided exceptions to this general rule. Repolwas another election
protest case, involving the mayoralty elections in Pagsanghan,
Samar.36This time, the case was brought to this court because the
COMELEC First Division issued a status quo ante order against the Regional
Trial Court executing its decision pending appeal. 37 This courts ponencia
discussed the general rule enunciated in Ambil, Jr. that it cannot take
jurisdiction
to
review
interlocutory
orders
of
a
COMELEC
Division.38 However, consistent with ABS-CBN Broadcasting Corporation v.
COMELEC,39 it clarified the exception:
This Court, however, has ruled in the past that this procedural requirement
[of filing a motion for reconsideration] may be glossed over to prevent
miscarriage of justice, when the issue involves the principle of social justice
or the protection of labor, when the decision or resolution sought to be set
aside is a nullity, or when the need for relief is extremely urgent and
certiorari is the only adequate and speedy remedy available. 40
Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do
not operate as precedents to oust this court from taking jurisdiction over
this case. All these cases cited involve election protests or disqualification
cases filed by the losing candidate against the winning candidate.
In the present case, petitioners are not candidates seeking for public office.
Their petition is filed to assert their fundamental right to expression.
Furthermore, all these cases cited by respondents pertained to COMELECs
exercise of its adjudicatory or quasi-judicial power. This case pertains to
acts of COMELEC in the implementation of its regulatory powers. When it
issued the notice and letter, the COMELEC was allegedly enforcingelection
laws.
I.B
Rule 65, grave abuse of discretion,
and limitations on political speech
The main subject of thiscase is an alleged constitutional violation: the
infringement on speech and the "chilling effect" caused by respondent
COMELECs notice and letter.
Petitioners allege that respondents committed grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the notice 51 dated
February 22,2013 and letter52 dated February 27, 2013 ordering the
removal of the tarpaulin.53 It is their position that these infringe on their
fundamental right to freedom of expression and violate the principle of
separation of church and state and, thus, are unconstitutional. 54
The jurisdiction of this court over the subject matter is determined from
the allegations in the petition. Subject matter jurisdiction is defined as the
authority "to hear and determine cases of the general class to which the
proceedings in question belong and is conferred by the sovereign authority
which organizes the court and defines its powers." 55 Definitely, the subject
matter in this case is different from the cases cited by respondents.
Nothing less than the electorates political speech will be affected by the
restrictions imposed by COMELEC. Political speech is motivated by the
desire to be heard and understood, to move people to action. It is
concerned with the sovereign right to change the contours of power
whether through the election of representatives in a republican
government or the revision of the basic text of the Constitution. The zeal
with which we protect this kind of speech does not depend on our
evaluation of the cogency of the message. Neither do we assess whether
we should protect speech based on the motives of COMELEC. We evaluate
restrictions on freedom of expression from their effects. We protect both
speech and medium because the quality of this freedom in practice will
define the quality of deliberation in our democratic society.
COMELECs notice and letter affect preferred speech. Respondents acts
are capable of repetition. Under the conditions in which it was issued and
in view of the novelty of this case,it could result in a "chilling effect" that
would affect other citizens who want their voices heard on issues during
the elections. Other citizens who wish to express their views regarding the
election and other related issues may choose not to, for fear of reprisal or
sanction by the COMELEC. Direct resort to this court is allowed to avoid
such proscribed conditions. Rule 65 is also the procedural platform for
raising grave abuse of discretion.
Both parties point to constitutional provisions on jurisdiction. For
petitioners, it referred to this courts expanded exercise of certiorari as
provided by the Constitution as follows:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether ornot there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.56(Emphasis supplied)
On the other hand, respondents relied on its constitutional mandate to
decide all questions affectingelections. Article IX-C, Section 2(3) of the
Constitution, provides:
Hierarchy of courts
This brings us to the issue of whether petitioners violated the doctrine of
hierarchy of courts in directly filing their petition before this court.
Respondents contend that petitioners failure to file the proper suit with a
lower court of concurrent jurisdiction is sufficient ground for the dismissal
of their petition.57 They add that observation of the hierarchy of courts is
compulsory, citing Heirs of Bertuldo Hinog v. Melicor. 58 While respondents
claim that while there are exceptions to the general rule on hierarchy of
courts, none of these are present in this case.59
On the other hand, petitioners cite Fortich v. Corona 60 on this courts
discretionary power to take cognizance of a petition filed directly to it if
warranted by "compelling reasons, or [by] the nature and importance of
the issues raised. . . ."61 Petitioners submit that there are "exceptional and
compelling reasons to justify a direct resort [with] this Court." 62
In Baez, Jr. v. Concepcion, 63 we explained the necessity of the application
of the hierarchy of courts:
The Court must enjoin the observance of the policy on the hierarchy of
courts, and now affirms that the policy is not to be ignored without serious
consequences. The strictness of the policy is designed to shield the Court
from having to deal with causes that are also well within the competence
of the lower courts, and thus leave time to the Court to deal with the more
fundamental and more essential tasks that the Constitution has assigned
to it. The Court may act on petitions for the extraordinary writs of
certiorari, prohibition and mandamus only when absolutely necessary or
when serious and important reasons exist to justify an exception to the
policy.64
In Baez, we also elaborated on the reasons why lower courts are allowed
to issue writs of certiorari, prohibition, and mandamus, citing Vergara v.
Suelto:65
The Supreme Court is a court of lastresort, and must so remain if it is to
satisfactorily perform the functions assigned to it by the fundamental
charter and immemorial tradition. It cannot and should not be burdened
with the task of dealing with causes in the first instance. Its original
jurisdiction to issue the so-called extraordinary writs should be exercised
only where absolutely necessary or where serious and important reasons
exist therefore. Hence, that jurisdiction should generally be exercised
relative to actions or proceedings before the Court of Appeals, or before
constitutional or other tribunals, bodies or agencies whose acts for some
reason or another are not controllable by the Court of Appeals. Where the
issuance of an extraordinary writ is also within the competence of the
Court of Appeals or a Regional Trial Court, it is in either of these courts that
the specific action for the writs procurement must be presented. This is
and should continue to be the policy in this regard, a policy that courts and
lawyers must strictly observe.66 (Emphasis omitted)
The doctrine that requires respect for the hierarchy of courts was created
by this court to ensure that every level of the judiciary performs its
designated roles in an effective and efficient manner. Trial courts do not
only determine the facts from the evaluation of the evidence presented
before them. They are likewise competent to determine issues of law which
may include the validity of an ordinance, statute, or even an executive
issuance in relation to the Constitution.67 To effectively perform these
functions, they are territorially organized into regions and then into
branches. Their writs generally reach within those territorial boundaries.
Necessarily, they mostly perform the all-important task of inferring the
facts from the evidence as these are physically presented before them. In
many instances, the facts occur within their territorial jurisdiction, which
properly present the actual case that makes ripe a determination of the
constitutionality of such action. The consequences, of course, would be
national in scope. There are, however, some cases where resort to courts
at their level would not be practical considering their decisions could still
be appealed before the higher courts, such as the Court of Appeals.
The present petition does not involve a dispute between the rich and poor,
or the powerful and weak, on their equal opportunities for media coverage
of candidates and their right to freedom of expression. This case concerns
the right of petitioners, who are non-candidates, to post the tarpaulin in
their private property, asan exercise of their right of free expression.
Despite the invocation of the political question doctrine by respondents,
this court is not proscribed from deciding on the merits of this case.
In Taada v. Cuenco,88 this court previously elaborated on the concept of
what constitutes a political question:
What is generally meant, when it is said that a question is political, and not
judicial, is that it is a matter which is to be exercised by the people in their
primary political capacity, or that it has been specifically delegated to
some other department or particular officer of the government,
withdiscretionary power to act.89 (Emphasis omitted)
It is not for this court to rehearse and re-enact political debates on what
the text of the law should be. In political forums, particularly the
legislature, the creation of the textof the law is based on a general
discussion of factual circumstances, broadly construed in order to allow for
general application by the executive branch. Thus, the creation of the law
is not limited by particular and specific facts that affect the rights of
certain individuals, per se.
Courts, on the other hand, rule on adversarial positions based on existing
facts established on a specific case-to-case basis, where parties affected
by the legal provision seek the courts understanding of the law.
The complementary nature of the political and judicial branches of
government is essential in order to ensure that the rights of the general
public are upheld at all times. In order to preserve this balance, branches
of government must afford due respectand deference for the duties and
functions constitutionally delegated to the other. Courts cannot rush to
invalidate a law or rule. Prudence dictates that we are careful not to veto
political acts unless we can craft doctrine narrowly tailored to the
circumstances of the case.
The case before this court does not call for the exercise of prudence or
modesty. There is no political question. It can be acted upon by this court
through the expanded jurisdiction granted to this court through Article VIII,
Section 1 of the Constitution.
A political question arises in constitutional issues relating to the powers or
competence of different agencies and departments of the executive or
those of the legislature. The political question doctrine is used as a defense
when the petition asks this court to nullify certain acts that are exclusively
within the domain of their respective competencies, as provided by the
Constitution or the law. In such situation, presumptively, this court should
act with deference. It will decline to void an act unless the exercise of that
power was so capricious and arbitrary so as to amount to grave abuse of
discretion.
The concept of a political question, however, never precludes judicial
review when the act of a constitutional organ infringes upon a fundamental
individual or collective right. Even assuming arguendo that the COMELEC
did have the discretion to choose the manner of regulation of the tarpaulin
in question, it cannot do so by abridging the fundamental right to
expression.
While it is true that courts cannot inquire into the manner in which the
President's discretionary powers are exercised or into the wisdom for its
exercise, it is also a settled rule that when the issue involved concerns the
validity of such discretionary powers or whether said powers are within the
limits prescribed by the Constitution, We will not decline to exercise our
power of judicial review. And such review does not constitute a
modification or correction of the act of the President, nor does it constitute
interference with the functions of the President.98
The concept of judicial power in relation to the concept of the political
question was discussed most extensively in Francisco v. HRET. 99 In this
case, the House of Representatives arguedthat the question of the validity
of the second impeachment complaint that was filed against former Chief
Justice Hilario Davide was a political question beyond the ambit of this
court. Former Chief Justice Reynato Puno elaborated on this concept in his
concurring and dissenting opinion:
To be sure, the force to impugn the jurisdiction of this Court becomes more
feeble in light of the new Constitution which expanded the definition of
judicial power as including "the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government." As well observed by
retired Justice Isagani Cruz, this expanded definition of judicial power
considerably constricted the scope of political question. He opined that the
language luminously suggests that this duty (and power) is available even
against the executive and legislative departments including the President
and
the
Congress,
in
the
exercise
of
their
discretionary
powers.100 (Emphasis in the original, citations omitted)
Francisco also provides the cases which show the evolution of the political
question, as applied in the following cases:
In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene
Cortes, held: The present Constitution limits resort to the political question
doctrine and broadens the scope of judicial inquiry into areas which the
(a) when there is a violation of due process; (b) when the issue involved is
purely a legal question; (c) when the administrative action is patently
illegal amounting to lack or excess of jurisdiction; (d) when there is
estoppel on the part ofthe administrative agency concerned; (e) when
there is irreparable injury; (f) when the respondent is a department
secretary whose acts as analter ego of the President bear the implied and
assumed approval of the latter; (g) when to require exhaustion of
administrative remedies would be unreasonable; (h) when it would amount
to a nullification of a claim; (i) when the subject matter is a private land in
land case proceedings; (j) whenthe rule does not provide a plain, speedy
and adequate remedy; or (k) when there are circumstances indicating the
urgency of judicial intervention."111 (Emphasis supplied, citation omitted)
The circumstances emphasized are squarely applicable with the present
case. First, petitioners allegethat the assailed issuances violated their right
to freedom of expression and the principle of separation of church and
state. This is a purely legal question. Second, the circumstances of the
present case indicate the urgency of judicial intervention considering the
issue then on the RH Law as well as the upcoming elections. Thus, to
require the exhaustion of administrative remedies in this case would be
unreasonable.
Time and again, we have held that this court "has the power to relax or
suspend the rules or to except a case from their operation when
compelling reasons so warrant, or whenthe purpose of justice requires it,
[and when] [w]hat constitutes [as] good and sufficient cause that will merit
suspension of the rules is discretionary upon the court". 112 Certainly, this
case of first impression where COMELEC has threatenedto prosecute
private parties who seek to participate in the elections by calling attention
to issues they want debated by the publicin the manner they feel would be
effective is one of those cases.
II
SUBSTANTIVE ISSUES
II.A
....
II.A.1
Section 9 of the Fair Election Act 124 on the posting of campaign materials
only mentions "parties" and "candidates":
The tarpaulin was not paid for byany candidate or political party. 125 There
was no allegation that petitioners coordinated with any of the persons
named in the tarpaulin regarding its posting. On the other hand, petitioners
posted the tarpaulin as part of their advocacy against the RH Law.
Respondents also cite National Press Club v. COMELEC 126 in arguing that its
regulatory power under the Constitution, to some extent, set a limit on the
right to free speech during election period.127
National Press Club involved the prohibition on the sale and donation of
space and time for political advertisements, limiting political
advertisements to COMELEC-designated space and time. This case was
brought by representatives of mass media and two candidates for office in
the 1992 elections. They argued that the prohibition on the sale and
donation of space and time for political advertisements is tantamount to
censorship, which necessarily infringes on the freedom of speech of the
candidates.128
This court upheld the constitutionality of the COMELEC prohibition in
National Press Club. However, this case does not apply as most of the
petitioners were electoral candidates, unlike petitioners in the instant case.
Moreover, the subject matter of National Press Club, Section 11(b) of
Republic Act No. 6646,129 only refers to a particular kind of media such as
newspapers, radio broadcasting, or television.130 Justice Feliciano
emphasized that the provision did not infringe upon the right of reporters
or broadcasters to air their commentaries and opinions regarding the
candidates, their qualifications, and program for government. Compared to
Sanidadwherein the columnists lost their ability to give their commentary
on the issues involving the plebiscite, National Press Clubdoes not involve
the same infringement.
In the case at bar, petitioners lost their ability to give a commentary on the
candidates for the 2013 national elections because of the COMELEC notice
and letter. It was not merelya regulation on the campaigns of candidates
vying for public office. Thus, National Press Clubdoes not apply to this case.
II.B
The violation of the constitutional right
....
to freedom of speech and expression
(b) The term "election campaign" or "partisan political activity" refers to an
act designed to promote the election or defeat of a particular candidate or
candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees or other
groups of persons for the purpose of soliciting votes and/or
undertaking any campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies,
parades, or other similar assemblies, for the purpose of soliciting
votes and/or undertaking any campaign or propaganda for or
against a candidate;
(3) Making speeches, announcements or commentaries, or holding
interviews for or against the election of any candidate for public
office;
(4) Publishing or distributing campaign literature or materials
designed to support or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or
against a candidate.
The foregoing enumerated acts ifperformed for the purpose of enhancing
the chances of aspirants for nomination for candidacy to a public office by
a political party, aggroupment, or coalition of parties shall not be
considered as election campaign or partisan election activity. Public
expressions or opinions or discussions of probable issues in a forthcoming
electionor on attributes of or criticisms against probable candidates
proposed to be nominated in a forthcoming political party convention shall
not be construed as part of any election campaign or partisan political
activity contemplated under this Article. (Emphasis supplied)
True, there is no mention whether election campaign is limited only to the
candidates and political parties themselves. The focus of the definition is
that the act must be "designed to promote the election or defeat of a
particular candidate or candidates to a public office."
Petitioners contend that the assailed notice and letter for the removal of
the tarpaulin violate their fundamental right to freedom of expression.
On the other hand, respondents contend that the tarpaulin is an election
propaganda subject to their regulation pursuant to their mandate under
Article IX-C, Section 4 of the Constitution. Thus, the assailed notice and
letter ordering itsremoval for being oversized are valid and
constitutional.131
II.B.1
Fundamental to the consideration of this issue is Article III, Section 4 of the
Constitution:
Section 4. No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances. 132
No law. . .
While it is true that the present petition assails not a law but an opinion by
the COMELEC Law Department, this court has applied Article III, Section 4
of the Constitution even to governmental acts.
In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section
1119 of the Revised Ordinances of 1927 of Manila for the public meeting
and assembly organized by petitioner Primicias.134 Section 1119 requires a
Mayors permit for the use of streets and public places for purposes such
as athletic games, sports, or celebration of national holidays. 135 What was
questioned was not a law but the Mayors refusal to issue a permit for the
holding of petitioners public meeting.136 Nevertheless, this court
recognized the constitutional right to freedom of speech, to peaceful
assembly and to petition for redress of grievances, albeit not
absolute,137 and the petition for mandamus to compel respondent Mayor to
issue the permit was granted.138
In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En
Banc Resolution No. 98-1419 where the COMELEC resolved to approve the
issuance of a restraining order to stop ABS-CBN from conducting exit
surveys.139 The right to freedom of expression was similarly upheld in this
case and, consequently, the assailed resolution was nullified and set
aside.140
. . . shall be passed abridging. . .
All regulations will have an impact directly or indirectly on expression. The
prohibition against the abridgment of speech should not mean an absolute
prohibition against regulation. The primary and incidental burden on
speech must be weighed against a compelling state interest clearly
allowed in the Constitution. The test depends on the relevant theory of
speech implicit in the kind of society framed by our Constitution.
. . . of expression. . .
Our Constitution has also explicitly included the freedom of expression,
separate and in addition to the freedom of speech and of the press
provided in the US Constitution. The word "expression" was added in the
1987 Constitution by Commissioner Brocka for having a wider scope:
MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On
Section 9, page 2, line 29, it says: "No law shall be passed abridging the
freedom of speech." I would like to recommend to the Committee the
change of the word "speech" to EXPRESSION; or if not, add the words AND
EXPRESSION after the word "speech," because it is more expansive, it has
a wider scope, and it would refer to means of expression other than
speech.
itself as "[t]he right to think is the beginning of freedom, and speech must
be protected from the government because speech is the beginning of
thought."142
II.B.2
Communication
is
an
essential
outcome
of
protected
speech.143 Communication exists when "(1) a speaker, seeking to signal
others, uses conventional actions because he orshe reasonably believes
that such actions will be taken by the audience in the manner intended;
and (2) the audience so takes the actions." 144 "[I]n communicative action[,]
the hearer may respond to the claims by . . . either accepting the speech
acts claims or opposing them with criticism or requests for justification." 145
Speech is not limited to vocal communication. "[C]onduct is treated as a
form of speech sometimes referred to as symbolic speech[,]" 146 such that
"when speech and nonspeech elements are combined in the same
course of conduct, the communicative element of the conduct may be
sufficient to bring into play the [right to freedom of expression]."147
The right to freedom of expression, thus, applies to the entire continuum of
speech from utterances made to conduct enacted, and even to inaction
itself as a symbolic manner of communication.
In Ebralinag v. The Division Superintendent of Schools of Cebu, 148 students
who were members of the religious sect Jehovahs Witnesses were to be
expelled from school for refusing to salute the flag, sing the national
anthem, and recite the patriotic pledge. 149 In his concurring opinion, Justice
Cruz discussed how the salute is a symbolic manner of communication and
a valid form of expression. 150 He adds that freedom of speech includes
even the right to be silent:
Freedom of speech includes the right to be silent. Aptly has it been said
that the Bill of Rights that guarantees to the individual the liberty to utter
what is in his mind also guarantees to him the liberty not to utter what is
not in his mind. The salute is a symbolic manner of communication that
conveys its messageas clearly as the written or spoken word. As a valid
form of expression, it cannot be compelled any more than it can be
prohibited in the face of valid religious objections like those raised in this
petition. To impose it on the petitioners is to deny them the right not to
speak when their religion bids them to be silent. This coercion of
conscience has no place in the free society.
The democratic system provides for the accommodation of diverse ideas,
including the unconventional and even the bizarre or eccentric. The will of
the majority prevails, but it cannot regiment thought by prescribing the
recitation by rote of its opinions or proscribing the assertion of unorthodox
or unpopular views as inthis case. The conscientious objections of the
petitioners, no less than the impatience of those who disagree with them,
are protected by the Constitution. The State cannot make the individual
speak when the soul within rebels.151
Even before freedom "of expression" was included in Article III, Section 4 of
the present Constitution,this court has applied its precedent version to
expressions other than verbal utterances.
Third, larger spaces allow for more messages. Larger spaces, therefore,
may translate to more opportunities to amplify, explain, and argue points
which the speakers might want to communicate. Rather than simply
placing the names and images of political candidates and an expression of
support, larger spaces can allow for brief but memorable presentations of
the candidates platforms for governance. Larger spaces allow for more
precise inceptions of ideas, catalyze reactions to advocacies, and
contribute more to a more educated and reasoned electorate. A more
educated electorate will increase the possibilities of both good governance
and accountability in our government.
These points become more salient when it is the electorate, not the
candidates or the political parties, that speaks. Too often, the terms of
public discussion during elections are framed and kept hostage by brief
and catchy but meaningless sound bites extolling the character of the
candidate. Worse, elections sideline political arguments and privilege the
endorsement by celebrities. Rather than provide obstacles to their speech,
government should in fact encourage it. Between the candidates and the
electorate, the latter have the better incentive to demand discussion of the
more important issues. Between the candidates and the electorate, the
former have better incentives to avoid difficult political standpoints and
instead focus on appearances and empty promises.
Large tarpaulins, therefore, are not analogous to time and place. 158 They
are fundamentally part of expression protected under Article III, Section 4
of the Constitution.
There are several theories and schools of thought that strengthen the need
to protect the basic right to freedom of expression.
First, this relates to the right ofthe people to participate in public affairs,
including the right to criticize government actions.
Proponents of the political theory on "deliberative democracy" submit that
"substantial, open, [and] ethical dialogue isa critical, and indeed defining,
feature of a good polity." 159 This theory may be considered broad, but it
definitely "includes [a] collective decision making with the participation of
all who will beaffected by the decision." 160It anchors on the principle that
the cornerstone of every democracy is that sovereignty resides in the
people.161 To ensure order in running the states affairs, sovereign powers
were delegated and individuals would be elected or nominated in key
government positions to represent the people. On this note, the theory on
deliberative democracy may evolve to the right of the people to make
The rights of free expression, free assembly and petition, are not only civil
rights but also political rights essential to man's enjoyment of his life, to his
happiness and to his full and complete fulfillment.Thru these freedoms the
citizens can participate not merely in the periodic establishment of the
government through their suffrage but also in the administration of public
affairs as well as in the discipline of abusive public officers. The citizen is
accorded these rights so that he can appeal to the appropriate
governmental officers or agencies for redress and protection as well as for
the imposition of the lawful sanctions on erring public officers and
employees.172 (Emphasis supplied)
Fourth, expression is a marker for group identity. For one, "[v]oluntary
associations perform [an] important democratic role [in providing] forums
for the development of civil skills, for deliberation, and for the formation of
identity and community spirit[,] [and] are largely immune from [any]
governmental interference."173 They also "provide a buffer between
individuals and the state - a free space for the development of individual
personality, distinct group identity, and dissident ideas - and a potential
source of opposition to the state." 174 Free speech must be protected as the
vehicle to find those who have similar and shared values and ideals, to join
together and forward common goals.
Fifth, the Bill of Rights, free speech included, is supposed to "protect
individuals and minorities against majoritarian abuses perpetrated through
[the] framework [of democratic governance]."175 Federalist framers led by
James Madison were concerned about two potentially vulnerable groups:
"the citizenry at large - majorities - who might be tyrannized or plundered
by despotic federal officials"176 and the minorities who may be oppressed
by "dominant factions of the electorate [that] capture [the] government for
their own selfish ends[.]"177 According to Madison, "[i]t is of great
importance in a republic not only to guard the society against the
oppression of its rulers, but to guard one part of the society against the
injustice of the other part." 178 We should strive to ensure that free speech is
protected especially in light of any potential oppression against those who
find themselves in the fringes on public issues.
Lastly, free speech must be protected under the safety valve theory. 179 This
provides that "nonviolent manifestations of dissent reduce the likelihood of
violence[.]"180 "[A] dam about to burst . . . resulting in the banking up of a
menacing flood of sullen anger behind the walls of restriction" 181 has been
used to describe the effect of repressing nonviolent outlets. 182 In order to
avoid this situation and prevent people from resorting to violence, there is
a need for peaceful methods in making passionate dissent. This includes
"free expression and political participation" 183 in that they can "vote for
candidates who share their views, petition their legislatures to [make or]
change laws, . . . distribute literature alerting other citizens of their
concerns[,]"184 and conduct peaceful rallies and other similar acts. 185 Free
speech must, thus, be protected as a peaceful means of achieving ones
goal, considering the possibility that repression of nonviolent dissent may
spill over to violent means just to drive a point.
II.B.5
Every citizens expression with political consequences enjoys a high degree
of protection. Respondents argue that the tarpaulinis election propaganda,
being petitioners way of endorsing candidates who voted against the RH
Law and rejecting those who voted for it. 186 As such, it is subject to
regulation by COMELEC under its constitutional mandate. 187 Election
propaganda is defined under Section 1(4) of COMELEC Resolution No. 9615
as follows: SECTION 1. Definitions . . .
....
4. The term "political advertisement" or "election propaganda" refers to
any matter broadcasted, published, printed, displayed or exhibited, in any
medium, which contain the name, image, logo, brand, insignia, color motif,
initials, and other symbol or graphic representation that is capable of being
associated with a candidate or party, and is intended to draw the attention
of the public or a segment thereof to promote or oppose, directly or
indirectly, the election of the said candidate or candidates to a public
office. In broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped
announcements, teasers, and other forms of advertising messages or
announcements used by commercial advertisers. Political advertising
includes matters, not falling within the scope of personal opinion, that
appear on any Internet website, including, but not limited to, social
networks, blogging sites, and micro-blogging sites, in return for
consideration, or otherwise capable of pecuniary estimation.
On the other hand, petitioners invoke their "constitutional right to
communicate their opinions, views and beliefs about issues and
candidates."188 They argue that the tarpaulin was their statement of
approval and appreciation of the named public officials act of voting
against the RH Law, and their criticism toward those who voted in its
favor.189 It was "part of their advocacy campaign against the RH
Law,"190 which was not paid for by any candidate or political party. 191 Thus,
"the questioned orders which . . . effectively restrain[ed] and curtail[ed]
[their] freedom of expression should be declared unconstitutional and
void."192
This court has held free speech and other intellectual freedoms as "highly
ranked in our scheme of constitutional values." 193 These rights enjoy
precedence and primacy.194 In Philippine Blooming Mills, this court
discussed the preferred position occupied by freedom of expression:
Property and property rights can belost thru prescription; but human rights
are imprescriptible. If human rights are extinguished by the passage of
time, then the Bill of Rights is a useless attempt to limit the power of
government and ceases to be an efficacious shield against the tyranny of
officials, of majorities, ofthe influential and powerful, and of oligarchs political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of
assembly occupy a preferred position as they are essential to the
preservation and vitality of our civil and political institutions; and such
priority "gives these liberties the sanctity and the sanction not permitting
dubious intrusions."195 (Citations omitted)
This primordial right calls for utmost respect, more so "when what may be
curtailed is the dissemination of information to make more meaningful the
equally vital right of suffrage."196 A similar idea appeared in our
jurisprudence as early as 1969, which was Justice Barredos concurring and
dissenting opinion in Gonzales v. COMELEC:197
I like to reiterate over and over, for it seems this is the fundamental point
others miss, that genuine democracy thrives only where the power and
right of the people toelect the men to whom they would entrust the
privilege to run the affairs of the state exist. In the language of the
declaration of principles of our Constitution, "The Philippines is a
republican state. Sovereignty resides in the people and all government
authority emanates from them" (Section 1, Article II). Translating this
declaration into actuality, the Philippines is a republic because and solely
because the people in it can be governed only by officials whom they
themselves have placed in office by their votes. And in it is on this
cornerstone that I hold it tobe self-evident that when the freedoms of
speech, press and peaceful assembly and redress of grievances are being
exercised in relation to suffrage or asa means to enjoy the inalienable right
of the qualified citizen to vote, they are absolute and timeless. If our
democracy and republicanism are to be worthwhile, the conduct of public
affairs by our officials must be allowed to suffer incessant and unabating
scrutiny, favorable or unfavorable, everyday and at all times. Every holder
of power in our government must be ready to undergo exposure any
moment of the day or night, from January to December every year, as it is
only in this way that he can rightfully gain the confidence of the people. I
have no patience for those who would regard public dissection of the
establishment as an attribute to be indulged by the people only at certain
periods of time. I consider the freedoms of speech, press and peaceful
assembly and redress of grievances, when exercised in the name of
suffrage, as the very means by which the right itself to vote can only be
properly enjoyed.It stands to reason therefore, that suffrage itself would be
next to useless if these liberties cannot be untrammelled [sic] whether as
to degree or time.198 (Emphasis supplied)
Not all speech are treated the same. In Chavez v. Gonzales, this court
discussed that some types of speech may be subject to regulation:
Some types of speech may be subjected to some regulation by the State
under its pervasive police power, in order that it may not be injurious to
It is clear that this paragraph suggests that personal opinions are not
included, while sponsored messages are covered.
Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615
states:
SECTION 1. Definitions - As used in this Resolution:
1. The term "election campaign" or "partisan political activity" refers to an
act designed to promote the election or defeat of a particular candidate or
candidates to a public office, and shall include any of the following:
....
Personal opinions, views, and preferences for candidates, contained in
blogs shall not be considered acts of election campaigning or partisan
politicalactivity unless expressed by government officials in the Executive
Department, the Legislative Department, the Judiciary, the Constitutional
Commissions, and members of the Civil Service.
In any event, this case does not refer to speech in cyberspace, and its
effects and parameters should be deemed narrowly tailored only in relation
to the facts and issues in this case. It also appears that such wording in
COMELEC Resolution No. 9615 does not similarly appear in Republic Act
No. 9006, the law it implements.
We should interpret in this manner because of the value of political speech.
As early as 1918, in United States v. Bustos, 205 this court recognized the
need for full discussion of public affairs. We acknowledged that free speech
includes the right to criticize the conduct of public men:
The 1927 case of People v. Titular 210 involved an alleged violation of the
Election Law provision "penaliz[ing] the anonymous criticism of a candidate
by means of posters or circulars."211 This court explained that it is the
posters anonymous character that is being penalized. 212 The ponente adds
that he would "dislike very muchto see this decision made the vehicle for
the suppression of public opinion."213
In 1983, Reyes v. Bagatsing214 discussed the importance of allowing
individuals to vent their views. According to this court, "[i]ts value may lie
in the fact that there may be something worth hearing from the dissenter
[and] [t]hat is to ensurea true ferment of ideas."215
Allowing citizens to air grievances and speak constructive criticisms
against their government contributes to every societys goal for
development. It puts forward matters that may be changed for the better
and ideas that may be deliberated on to attain that purpose. Necessarily, it
also makes the government accountable for acts that violate
constitutionally protected rights.
In 1998, Osmea v. COMELEC found Section 11(b) of Republic Act No.
6646, which prohibits mass media from selling print space and air time for
campaign except to the COMELEC, to be a democracy-enhancing
measure.216This court mentioned how "discussion of public issues and
debate on the qualifications of candidates in an election are essential to
the proper functioning of the government established by our
Constitution."217
As pointed out by petitioners, "speech serves one of its greatest public
purposes in the context of elections when the free exercise thereof informs
the people what the issues are, and who are supporting what issues." 218 At
the heart of democracy is every advocates right to make known what the
people need to know,219 while the meaningful exercise of ones right of
suffrage includes the right of every voter to know what they need to know
in order to make their choice.
Thus, in Adiong v. COMELEC,220 this court discussed the importance of
debate on public issues, and the freedom of expression especially in
relation to information that ensures the meaningful exercise of the right of
suffrage:
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. 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
discussed police power in that the assailed rules carry outthe legislative
policy that "aims to promote safe transit upon and avoid obstructions on
national roads, in the interest and convenience of the public." 239
As early as 1907, United States v. Apurado 240 recognized that "more or less
disorder will mark the public assembly of the people to protest against
grievances whether real or imaginary, because on such occasions feeling is
always wrought to a high pitch of excitement. . . ." 241 It is with this
backdrop that the state is justified in imposing restrictions on incidental
matters as time, place, and manner of the speech.
In the landmark case of Reyes v. Bagatsing, this court summarized the
steps that permit applicants must follow which include informing the
licensing authority ahead of time as regards the date, public place, and
time of the assembly.242 This would afford the public official time to inform
applicants if there would be valid objections, provided that the clear and
present danger test is the standard used for his decision and the applicants
are given the opportunity to be heard. 243 This ruling was practically codified
in Batas Pambansa No. 880, otherwise known as the Public Assembly Act of
1985.
Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid
content-neutral regulation. In the 2006 case of Bayan v. Ermita, 244 this
court discussed how Batas Pambansa No. 880 does not prohibit assemblies
but simply regulates their time, place, and manner. 245 In 2010, this court
found in Integrated Bar of the Philippines v. Atienza 246 that respondent
Mayor Atienza committed grave abuse of discretion when he modified the
rally permit by changing the venue from Mendiola Bridge to Plaza Miranda
without first affording petitioners the opportunity to be heard. 247
We reiterate that the regulation involved at bar is content-based. The
tarpaulin content is not easily divorced from the size of its medium.
II.B.7
Justice Carpio and Justice Perlas-Bernabe suggest that the provisions
imposing a size limit for tarpaulins are content-neutral regulations as these
"restrict the mannerby which speech is relayed but not the content of what
is conveyed."248
If we apply the test for content-neutral regulation, the questioned acts of
COMELEC will not pass the three requirements for evaluating such
restraints on freedom of speech.249 "When the speech restraints take the
form of a content-neutral regulation, only a substantial governmental
interest is required for its validity,"250 and it is subject only to the
intermediate approach.251
....
(7) Recommend to the Congress effective measures to minimize election
spending, including limitation of places where propaganda materials shall
be posted, and to prevent and penalize all forms of election frauds,
offenses, malpractices, and nuisance candidates. (Emphasis supplied) This
does not qualify as a compelling and substantial government interest to
justify regulation of the preferred right to freedom of expression.
The assailed issuances for the removal of the tarpaulin are based on the
two feet (2) by three feet (3) size limitation under Section 6(c) of
COMELEC Resolution No. 9615. This resolution implements the Fair Election
Act that provides for the same size limitation.263
This court held in Adiong v. COMELEC that "[c]ompared to the paramount
interest of the State in guaranteeing freedom of expression, any financial
considerations behind the regulation are of marginal significance."264 In
fact, speech with political consequences, as in this case, should be
encouraged and not curtailed. As petitioners pointed out, the size
limitation will not serve the objective of minimizing election spending
considering there is no limit on the number of tarpaulins that may be
posted.265
The third requisite is likewise lacking. We look not only at the legislative
intent or motive in imposing the restriction, but more so at the effects of
such restriction, if implemented. The restriction must not be narrowly
tailored to achieve the purpose. It must be demonstrable. It must allow
alternative avenues for the actor to make speech.
In this case, the size regulation is not unrelated to the suppression of
speech. Limiting the maximum sizeof the tarpaulin would render
ineffective petitioners message and violate their right to exercise freedom
of expression.
The COMELECs act of requiring the removal of the tarpaulin has the effect
of dissuading expressions with political consequences. These should be
encouraged, more so when exercised to make more meaningful the equally
important right to suffrage.
The restriction in the present case does not pass even the lower test of
intermediate scrutiny for content-neutral regulations.
the candidate or political party would have doneso. This may effectively
skirt the constitutional and statutory limits of campaign spending.
III
Freedom of expression and equality
III.A
The possibility of abuse
Of course, candidates and political parties do solicit the help of private
individuals for the endorsement of their electoral campaigns.
On the one extreme, this can take illicit forms such as when endorsement
materials in the form of tarpaulins, posters, or media advertisements are
made ostensibly by "friends" but in reality are really paid for by the
candidate or political party. This skirts the constitutional value that
provides for equal opportunities for all candidates.
However, as agreed by the parties during the oral arguments in this case,
this is not the situation that confronts us. In such cases, it will simply be a
matter for investigation and proof of fraud on the part of the COMELEC.
The guarantee of freedom of expression to individuals without any
relationship to any political candidate should not be held hostage by the
possibility of abuse by those seeking to be elected. It is true that there can
be underhanded, covert, or illicit dealings so as to hide the candidates real
levels of expenditures. However, labelling all expressions of private parties
that tend to have an effect on the debate in the elections as election
paraphernalia would be too broad a remedy that can stifle genuine speech
like in this case. Instead, to address this evil, better and more effective
enforcement will be the least restrictive means to the fundamental
freedom.
On the other extreme, moved by the credentials and the message of a
candidate, others will spend their own resources in order to lend support
for the campaigns. This may be without agreement between the speaker
and the candidate or his or her political party. In lieu of donating funds to
the campaign, they will instead use their resources directly in a way that
In this case, it hopes to affect the type of deliberation that happens during
elections. A becoming humility on the part of any human institution no
matter how endowed with the secular ability to decide legal controversies
with finality entails that we are not the keepers of all wisdom.
Humanitys lack of omniscience, even acting collectively, provides space
for the weakest dissent. Tolerance has always been a libertarian virtue
whose version is embedded in our Billof Rights. There are occasional
heretics of yesterday that have become our visionaries. Heterodoxies have
always given us pause. The unforgiving but insistent nuance that the
majority surely and comfortably disregards provides us with the checks
upon reality that may soon evolve into creative solutions to grave social
problems. This is the utilitarian version. It could also be that it is just part
of human necessity to evolve through being able to express or
communicate.
However, the Constitution we interpret is not a theoretical document. It
contains other provisions which, taken together with the guarantee of free
expression, enhances each others value. Among these are the provisions
that acknowledge the idea of equality. In shaping doctrine construing these
constitutional values, this court needs to exercise extraordinary prudence
and produce narrowly tailored guidance fit to the facts as given so as not
to unwittingly cause the undesired effect of diluting freedoms as exercised
in reality and, thus, render them meaningless.
III.B.
Speech and equality:
Some considerations We first establish that there are two paradigms of free
speech that separate at the point of giving priority to equality vis--vis
liberty.272
In an equality-based approach, "politically disadvantaged speech prevails
over regulation[,] but regulation promoting political equality prevails over
speech."273 This view allows the government leeway to redistribute or
equalize speaking power, such as protecting, even implicitly subsidizing,
unpopular or dissenting voices often systematically subdued within
societys ideological ladder.274 This view acknowledges that there are
dominant political actors who, through authority, power, resources,
identity, or status, have capabilities that may drown out the messages of
others. This is especially true in a developing or emerging economy that is
part of the majoritarian world like ours.
The question of libertarian tolerance
This balance between equality and the ability to express so as to find ones
authentic self or to participate in the self determination of ones
Legal scholars
The 20th century also bears witness to strong support from legal scholars
for "stringent protections of expressive liberty," 281 especially by political
egalitarians. Considerations such as "expressive, deliberative, and
informational interests,"282 costs or the price of expression, and background
facts, when taken together, produce bases for a system of stringent
protections for expressive liberties.283
Many legal scholars discuss the interest and value of expressive liberties.
Justice Brandeis proposed that "public discussion is a political duty." 284 Cass
Sustein placed political speech on the upper tier of his twotier model for
freedom of expression, thus, warranting stringent protection. 285 He defined
political speech as "both intended and received as a contribution to public
deliberation about some issue."286
But this is usually related also tofair access to opportunities for such
liberties.287 Fair access to opportunity is suggested to mean substantive
equality and not mere formal equalitysince "favorable conditions for
realizing the expressive interest will include some assurance of the
resources required for expression and some guarantee that efforts to
express views on matters of common concern will not be drowned out by
the speech of betterendowed citizens." 288 Justice Brandeis solution is to
"remedy the harms of speech with more speech." 289This view moves away
from playing down the danger as merely exaggerated, toward "tak[ing] the
costs seriously and embrac[ing] expression as the preferred strategy for
addressing them."290 However, in some cases, the idea of more speech
may not be enough. Professor Laurence Tribe observed the need for
context and "the specification of substantive values before [equality] has
full meaning."291 Professor Catherine A. MacKinnon adds that "equality
continues to be viewed in a formal rather than a substantive
sense."292 Thus, more speech can only mean more speech from the few
who are dominant rather than those who are not.
Our jurisprudence
The textual basis of this view is that the constitutional provision uses
negative rather than affirmative language. It uses speech as its subject
and not speakers.298 Consequently, the Constitution protects free speech
In fact, "[c]onstraining those who have funds or have been able to raise
funds does not ease the plight of those without funds in the first place . . .
[and] even if ones main concern isslowing the increase in political costs, it
may be more effective torely on market forces toachieve that result than
on active legal intervention."309 According to Herbert Alexander, "[t]o
oppose limitations is not necessarily to argue that the skys the limit
[because in] any campaign there are saturation levels and a point where
spending no longer pays off in votes per dollar." 310
III. C.
When private speech amounts
to election paraphernalia
The scope of the guarantee of free expression takes into consideration the
constitutional respect for human potentiality and the effect of speech. It
valorizes the ability of human beings to express and their necessity to
relate. On the other hand, a complete guarantee must also take into
consideration the effects it will have in a deliberative democracy. Skewed
distribution of resources as well as the cultural hegemony of the majority
may have the effect of drowning out the speech and the messages of those
in the minority. In a sense, social inequality does have its effect on the
exercise and effect of the guarantee of free speech. Those who have more
will have better access to media that reaches a wider audience than those
who have less. Those who espouse the more popular ideas will have better
reception than the subversive and the dissenters of society.To be really
heard and understood, the marginalized view normally undergoes its own
degree of struggle.
The traditional view has been to tolerate the viewpoint of the speaker and
the content of his or her expression. This view, thus, restricts laws or
regulation that allows public officials to make judgments of the value of
such viewpoint or message content. This should still be the principal
approach.
However, the requirements of the Constitution regarding equality in
opportunity must provide limits to some expression during electoral
campaigns.
Thus clearly, regulation of speech in the context of electoral campaigns
made by candidates or the members of their political parties or their
political parties may be regulated as to time, place, and manner. This is the
With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances.
Accommodations are government policies that take religion specifically
intoaccount not to promote the governments favored form of religion, but
to allow individuals and groups to exercise their religion without hindrance.
Their purpose or effect therefore is to remove a burden on, or facilitate the
exercise of, a persons or institutions religion. As Justice Brennan
explained, the "government [may] take religion into account . . . to exempt,
when possible, from generally applicable governmental regulation
individuals whose religious beliefs and practices would otherwise thereby
be infringed, or to create without state involvement an atmosphere in
which voluntary religious exercise may flourish."330
This court also discussed the Lemon test in that case, such that a
regulation is constitutional when: (1) it has a secular legislative purpose;
(2) it neither advances nor inhibits religion; and (3) it does not foster an
excessive entanglement with religion.331
But this caricature, though not agreeable to some, is still protected speech.
As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not
convey any religious doctrine of the Catholic church." 332 That the position
of the Catholic church appears to coincide with the message of the
tarpaulin regarding the RH Law does not, by itself, bring the expression
within the ambit of religious speech. On the contrary, the tarpaulin clearly
refers to candidates classified under "Team Patay" and "Team Buhay"
according to their respective votes on the RH Law.
The same may be said of petitioners reliance on papal encyclicals to
support their claim that the expression onthe tarpaulin is an ecclesiastical
matter. With all due respect to the Catholic faithful, the church doctrines
relied upon by petitioners are not binding upon this court. The position of
the Catholic religion in the Philippines as regards the RH Law does not
suffice to qualify the posting by one of its members of a tarpaulin as
religious speech solely on such basis. The enumeration of candidates on
the face of the tarpaulin precludes any doubtas to its nature as speech
with political consequences and not religious speech.
Furthermore, the definition of an "ecclesiastical affair" in Austria v. National
Labor Relations Commission333 cited by petitioners finds no application in
the present case. The posting of the tarpaulin does not fall within the
category of matters that are beyond the jurisdiction of civil courts as
enumerated in the Austriacase such as "proceedings for excommunication,
ordinations of religious ministers, administration of sacraments and other
activities withattached religious significance." 334
A FINAL NOTE
We maintain sympathies for the COMELEC in attempting to do what it
thought was its duty in this case. However, it was misdirected.
MELENCIO-HERRERA, J.:
Petitioners assail the en banc Resolution of the Commission on Elections
(COMELEC), dated 6 September 1990, affirming the Resolution, dated 23
March 1988, and Decision dated 5 June 1989, rendered by its First and
Second Divisions, respectively. The aforesaid Resolutions and Decision
ruled adversely against petitioners in the pre-proclamation cases initiated
by them before the COMELEC.
Petitioner Salacnib F. Baterina was a candidate for Governor of Ilocos Sur in
the special local elections held on 25 January 1988. The other petitioners,
Octavio Villanueva and Evelyn Valdez, Felimon Sison, Leonardo Roldan, Gil
Ballesteros, Benjamin Galapia, Erwin Reyes-Ulep, and Nathaniel Escobar,
were candidates for Vice Governor and Provincial Board Members,
respectively, in the same local elections. Petitioners ran under the banner
of the Lakas ng Bansa. Private respondent Evaristo Singson, on the other
hand, was also a candidate for Governor of Ilocos Sur. Private respondent
Mariano Tajon was a candidate for Vice Governor. The rest of the private
respondents were candidates for the other disputed positions.
The Provincial Board of Canvassers of Ilocos Sur (BOARD) has likewise been
impleaded in this petition.
protests be set aside. On the same date, petitioners also filed an "Appeal
Memorandum," docketed as SPC No. 88-506, which was assigned likewise
to the Second Division. The "Appeal Memorandum" was an appeal from the
rulings of the BOARD denying petitioners' written objections to the
inclusion in the canvass of certain election returns. Petitioners prayed for
their exclusion from the canvass. An "Addendum to Appeal Memorandum"
was filed by petitioners on 8 February 1985 appealing the other rulings of
the BOARD denying their objections.
On 9 February l988, petitioners followed up their Petition on the
Suspension of Proclamation Case (SPC No. 88-453) and sought the
suspension of the effects of the proclamation of private respondents as
well as the annulment of the proclamation, or in the alternative, the
declaration of a failure of elections in Ilocos Sur.
On 23 March 1985, the First Division of the COMELEC issued a Minute
Resolution dismissing the Suspension of Proclamation Case (SPC No. 88453) filed on 30 January 1988, on the ground that the winning candidates
had already been proclaimed on "21 January 1988" (should be 31 January
1988). It advised the petitioners to file instead an election protest with the
COMELEC if desired (p. 104, Rollo).
Petitioners appealed the dismissal of the Petition alleging error in that the
proclamation was made on 31 January 1988, not 21 January, as stated in
the First Division Resolution. Petitioners also alleged that the First Division
failed to consider the other petition filed by them in the same SPC No. 88453, dated 9 February 1988, thereby effectively dismissing said petition
without notice and hearing in violation of Sections 242 and 246 of the
Omnibus Election Code.
On 5 June 1989, the Second Division of the COMELEC promulgated a
decision in SPC Nos. 88-490 and 88-506 (Rollo, p. 124) dismissing
petitioners' "Appeal" and "Appeal Memorandum" on the ground that no
substantial objection had been raised against the election returns in
accordance with Sections 233-236 and Section 245 of the Omnibus
Election Code.
On 10 June 1989, petitioners appealed the Decision of the Second Division
(in SPC Nos. 88-490 and 88-506) to the COMELEC en banc. On 6
September 1990, that body issued a per curiam Resolution, in SPC Nos. 88453, 58-490, and 88-506, dismissing petitioners' appeals from the rulings
rendered by its First and Second Divisions on the ground that no genuine
pre-proclamation controversies had been raised by petitioners.
That
dismissal
prompted
these Certiorari proceedings.
petitioners
to
avail
of
MAKASIAR, J.:
Petition for review on certiorari and prohibition with prayer for the issuance
of preliminary prohibitory injunction and temporary restraining order.
In the local elections held last January 30, 1980, petitioner Sotero Olfato
was the official candidate of the Nacionalista Party (NP) for Mayor of
Tanauan, Batangas. The other petitioners were the official NP candidates
for Members, Sangguniang Bayan, in the same municipality. Respondent
Francisco E. Lirio, on the other hand, was the official candidate of the
Kilusang Bagong Lipunan (KBL) for mayor of said town.
In the canvass of votes cast in Tanauan, Batangas by the Tanauan
Municipal Board of Canvassers, petitioner Olfato and respondent Lirio
obtained the following votes:
Sotero Olfato..................................... 15,293
Francisco E. Lirio.............................. 13,714
The other petitioners obtained the plurality of the votes cast for Members,
Sangguniang Bayan over their rival KBL candidates, to wit:
1. Mauro W. Baradas........................... 16,746
2. Ciriaco L. Padilla.................................... 13,637
3. Manuel S. Gonzales.............................. 13,540
4. Cecilio F. Hernandez............................. 13,171
proclamation Case No. 118, entitled Francisco E. Lirio, et al. vs. The
Municipal Board of Canvassers, et al." (pp. 23-30, rec.).
Invoking Section 2, paragraphs 1, 2 and 8, of Article XII (C) of the
Constitution and Section 175 of the 1978 Election Code as well as the
ruling of this Court in the case of Aratuc, et al. vs. COMELEC, et al. (G.R.
Nos. 49705-09, February 8, 1979, 88 SCRA 251) respondent Lirio and the
members of his KBL ticket vigorously pressed for the suspension of
canvass and the proclamation of the aforesaid, "winning candidates" for
the position of Mayor, Vice Mayor and Members of the Sangguniang Bayan
of Tanauan, Batangas.
Underlining supplied
2) Terrorism of voters;
3) Voters with fake Id's who were not in the voters' list were
allowed to vote without being certified by the
corresponding election committee; and
4) Flying voters.
Thus, in said petition, Lirio alleged that around 3,000 fake voters using
forms allegedly misinterpreting paragraph 2 of Section 13 of Resolution No.
1410 of the COMELEC (General Instructions for the Citizens Election
Committee, Exh, "B" thereof) and allegedly mimeographed by the NP
headquarters in Batangas, were able to cast their votes. Hence, Lirio
averred in said petition the following:
In the particular case of Tanauan, the following novel,
sophisticated but effective way of cheating occurred;
(a) Upon representation of a certain Atty. Trinidad of the Laurel Law Offices,
the election registrar in Tanauan by the name of Atty. Quirino Opena,
issued a circular misinterpreting par. 2 of Sec- tion 13 of Resolution No.
1410 of the COMELEC, General In- constructions for the Citizens Election
Committee, which reads;
SEC. 13. Who may vote.
Tanauan, Batangas
Lagda
Diit na k
SINUMPAAN SA HARAPAN KO NGAYONG IKA 30 Ng Enero,
1980.
_________
____
Chairma
Committ
e) Then the leaders of the NP in Tanauan brought
truckloads of electors from voting center to another voting
center, and have them filled up forms like Exh. B hereof,
and the election committees wittingly or unwittingly
allowed the persons who claimed to be voters to vote (pp.
25-27, rec.),
Consequently, respondent urged for the suspension of the canvass of
election returns prior to the identification and the segregation of the
alleged fake ballots from the genuine ballots.
Lirio further alleged that the number of voters affected by all the aforesaid
irregularities is estimated to be not less than 10,000 votes which therefore
will materially affect the results of the votes for the positions of Mayor, Vice
Mayor and Councilors of Tanauan.
Hence, Lirio prayed inter alia that an order be issued for the suspension of
the canvass of the votes and the proclamation of "winning candidates" for
the positions of Mayor, Vice Mayor and Councilors of Tanauan, Batangas;
that respondent therein, particularly private respondent Olfato, et al., be
required to answer said petition and that after hearing, a new election be
held for Tanauan allowing particularly the electors who were illegally
disenfranchised, to vote.
On February 9, 1980, respondent Lirio filed with respondent Commission a
supplementary petition which averred, among others "... that these
election
irregularities involving
fake
voters and massive
disenfranchisement(sufficient in number to affect the results of the
election, as in this case), are proper grounds for a pre-proclamation
controversy (although they may also be grounds for a protest), because
they affect the very integrity of the election return; in other words, the
election returned insofar as these fake voters and disenfranchised electors
are concerned, do not speak the truth; to say the least, they
are incomplete expression of the people's will through the ballots. We
understand that this is the first time that this question is being raised; and
we hope that this Honorable Commission will sustain our contention in
order to prevent the 'grabbing' of proclamation as in this case, and to make
the sovereign will of the people triumph" (pp. 5-6, Supplementary Petition,
pp. 34-35, rec.).
Noteworthy at this point is the allegation of Lirio in said supplementary
petition mentioned in a letter they had addressed to the Minister of Justice,
Ricardo Puno, dated February 8, 1980 (Annex "A", Supplementary Petition,
p. 33, rec.), that the aforesaid fake voters have been quanlified to be 2,776
persons in 68 out of the 102 voting centers of Tanauan. Thus, the pertinent
paragraph of their letter to Minister Puno on the matter reads:
We have identified a total of 2,776 persons who were thus
allowed to vote but whose names do not appear in the
masters registration list of voters, with the help of three
lawyers. This number is only partial since it covers only 68
out of 102 voting centers of Tanauan. The lists of these
persons are attached hereto with their respective voting
centers and marked as Annexes "D", "D-1" to "D-67".
Hence, respondent Lirio prayed for the annulment of the proclamation of
herein petitioners and further prayed that the matters raised in the petition
for suspension of canvass and of proclamation filed on February 2, 1980,
reiterated in said supplementary petition be set for hearing after
respondents of said petition, Municipal Board of Canvassers and Sotero
Olfato have filed their answers (Supplementary Petition, pp. 31-36, rec.).
In a related development, on the same date February 9, 1980, J. Antonio
Leviste, KBL gubernatorial candidate filed with respondent COMELEC a
petition to suspend proclama tion of NP gubernatorial candidate Jose C.
Laurel V on the following grounds, namely:
4) Substitute voters;
5) Massive disenfranchisement; and
6) Falsification of election returns particularly in the towns
of Lobo and Tuy
J. Antonio Leviste in said petition prayed, among others, for a joint hearing
with the petition for annulment of proclamation filed by respondent Lirio
against herein petitioners. Thus:
In the present one, we are incorporating by reference the
tion for annulment of proclamation just filed before this
honorable Commission by Mayor Francisco E. Lirio of
Tanauan, Batangas against the Municipal Board of
Canvassers of said town and the NP official candidate for
Mayor, Sotero Olfato.We respectfully suggest a joint
hearing of these two petitions (pp. 41-45, rec., emphasis
supplied).
On February 13, 1980, respondent Commission issued Minute Resolution
No. 9092 in P. P. Case No. 118, suspending the effects of the proclamation
of herein petitioners as duly elected Mayor and Members, Sangguniang
Bayan of Tanauan, Batangas, and requiring the therein respondents
(petitioners herein) to file their answer to the aforementioned
supplementary petition of herein respondent Lirio and the other KBL
candidates, within five (5) days of said resolution (p. 20, rec.).
On February 15, 1980, respondent Lirio filed with the Court of First Instance
of Batangas an election protest ex abundante ad cautela against petitioner
Olfato on the following grounds, namely:
a) Fake voters;
b) Electors with fake Identification cards;
1) Fake voters;
c) Flying voters;
d) Substitute voters;
3) Flying voters;
e) Massive disenfranchisement;
f) Vote-buying;
g) Terrorism of voters;
h) Ballots prepared by one or more hands;
i) Marked ballots; and
j ) Erroneous appreciation of ballots (pp. 106-110, rec.).
On February 16, 1980, respondent Commission promulgated Minute
Resolution No. 9119 denying the petition of KBL gubernatorial candidate of
Batangas, J. Antonio Leviste (P.P. Case No. 360) for the suspension of the
proclamation of NP gubernatorial candidate Jose C. Laurel V. Thus:
xxx xxx xxx
9119. (PP No. 360). In the matter of the petition to Suspend
Proclamation and the Supplement thereto filed thru
counsel by Governor J. Antonio C. Leviste of Batangas,
praying among others, for the suspension of proclamation
of the winning candidates for Governor of said province on
grounds of fake voters, fake Id cards, flying substitute
voters, falsification of election returns. Considering that
the issues ventilated have been sufficiently discussed in
the petitioner's other previous petitions, which matters
should have been raised before the Provincial Board of
Canvassers of Batangas, the Commission on proper motion
duly seconded RESOLVED to deny the petition and to refer
the complaints contained therein to the Joint Task Force of
the Commission on Elections and the Ministry of Justice for
possible criminal prosecution (p. 40, rec., emphasis
supplied ).
Hence, in view of the promulgation by respondent Commission of Minute
Resolution No. 9119, herein petitioners filed with respondent Commission
on February 18, 1980, an urgent motion for reconsideration of Minute
Resolution No. 9092 (pp. 51-57, rec.). Petitioners claimed that the grounds
averred by Leviste in the latter's petition for the suspension of the
proclamation of NP gubernatorial candidate for Governor of Batangas, were
the same as those relied upon by respondent Lirio. The said "Urgent Motion
for Reconsideration" maintained that considering that respondent
Commission on Minute Resolution No. 9119, denied the Leviste petition in
P.P. Case No. 360, it should reconsider its stand in P.P. Case No. 118, by
revoking and setting aside Minute Resolution No. 9092. It further
opposition
thereto
were
deemed
On March 10, 1980, respondent Lirio filed with this Court a manifestation
alleging that the present petition has become moot and academic in view
of COMELEC Resolution No. 9306 dated February 26, 1980, allowing
petitioners to be proclaimed (p. 67, rec.).
On March 11, 1980, respondent Commission filed with this Court a
manifestation with motion to suspend the period for filing its comment in
view of the likelihood that the case may indeed become moot and
academic (pp. 69-72, rec.). On March 12, 1980, respondent Commission
adopted, approved and promulgated Minute Resolution No. 9558, subject
of the present amended petition. Thus:
On March 21, 1980, petitioners filed with this Court the instant amended
petition seeking to review and set aside Minute Resolution No. 9558,
adopted by respondent Commission on March 12, 1980 (pp. 77-97, rec.).
On March 24, 1980, petitioners filed their answer in P.P. Case No I IS, with
respondent Commission (p. 8, Respondent Lirio's memorandum).
On April 10, 1980, this Court adopted a resolution which ad- admitted the
amended petition of petitioners, required the respondents to answer the
same and not to file a motion to dismiss and issued a temporary
restraining order, enjoining respondent Commission from:
a) enforcing its Minute Resolution No. 9558 in P.P. Case No.
118;
b) taking any further action or proceeding in said P.P. Case
No. 118; and
c) performing any act or taking any action or proceeding of
whatever nature that may prevent or obstruct the lawful
exercise and discharge by petitioners of their powers and
functions as duly elected municipal officials of Tanauan,
Batangas (pp. 111-112, rec.).
On April 25, 1980, private respondent Francisco E. Lirio filed his answer to
the amended petition of petitioners (pp. 121- 134, rec.).
On May 8, 1980, this Court in a resolution, ordered the parties to file their
respective memoranda.
itself that the integrity of the ballots therein has been duly
preserved, order the committee to count the votes for the
candidate affected, or his representative and thereafter
complete the returns.
Section 173 provides:
Section 173. When election returns appear to be tampered
with or falsified. - If the election returns submitted to the
board of canvassers appear to be tampered with, altered or
falsified after it has leftthe hands of the election
committee, the board shall use the other authentic copies
of said election returns valid if necessary, the copy inside
the ballot box which upon previous authority given by the
Commission may be retrieved in accordance with Section
163 hereof. If the other copies of the returns are likewise
tampered with, altered, or falsified, the board of
canvassers or any candidate affected shall bring the
matter to the attention of the Commission. The
Commission shall then, after giving notice to all candidates
concerned and after satisfying itself that nothing in the
ballot box indicates that its identity and integrity have
been violated. order the opening of the ballot box and
likewise after satisfying itself that the integrity of the
ballots therein has been duly preserved shall order the
election committee to recount the votes of the candidates
affected and prepare a new return which shall then be used
by the board of canvassers as basis of the canvass
(emphasis supplied).
And Section 174 provides:
Section 174. Discrepancies in election returns. In case it
appears to the board of canvassers that there exists
discrepancies in the other authentic copies of the election
returns from a voting center or discrepancies in the votes
of any candidate in words and figures in the same return
and in either case, the difference affects the results of the
election, the Commission, upon motion of the board of
canvassers or any candidate affected and after due notice
to all candidates concerned, shall proceed summarily to
determine whether the integrity of the ballot box had been
preserved and once satisfied thereof, shall order the
opening of the ballot box to recount the votes cast in the
Likewise, in the 1971 case of Diaz, Sr. vs. Commission on Elections (I,-333'f
8, No 29, 1971, 42 SCRA 426, 435), WE reiterated the above doctrine. In
said Diaz case, the petitioners petition for the amendment of all the
election returns from the municipality of Sagada, Mountain Province, in
connection with the 1970 elections for delegate of said Province to the
Constitutional Convention, and for the exclusion from the canvass of all the
returns aforesaid, for being spurious, fabricated and/or fictitious, was
dismissed by the respondent Comelec. Petitioner therein charged that
many election inspectors in Sagada had been improperly appointed
(because they had been previously found by the House Electoral Tribunal
to have deliberately tolerated and abetted the commission of frauds in
Sagada in connection with the 1961 elections), and that the elections for
convention delegates (3) in said municipality were tainted with fraud and
terrorism and other irregularities. It prompted the Comelec to order the
bringing to Manila of the precinct book of voters and CE form 39 for all
precincts of Sagada and had the same examined by the fingerprint and
handwriting experts of the Commission and the NBI. While the Comelec
discovered the existence of fraudulent practices and commission of other
election irregularities such as illegal voting, nevertheless it sustained the
validity of the returns from Sagada, on the ground that more than one-half
of those who voted were the registered voters in said precincts (emphasis
supplied).
This Court in overruling the Commission on Elections anchored its
conclusion on the reports of the fingerprint experts on their examination of
the precinct books of voters and other voting records. In effect, this Court
sanctioned the Comelec's procedure, upon establishment of a strong prima
facie case, of causing the examination by fingerprint and handwriting
experts and analysis of the signatures and fingerprints of the precinct
books of voters and the CE 39's and voting records, in order to determine
whether the reported elections were a sham amounting to no election at all
and accordingly accord no prima facie value to the election returns and
reject them as manufactured or false returns.
Thus, this Court concluded that where all the evidence and circumstances
point to a systematic plan of allowing persons who were not registered
voters to cast their ballots in all the precincts of a certain municipality and
to count such spurious ballots and take them into account in the returns,
there is no alternative but to consider said returns as deliberately prepared
with a view to alter the true results of the voting, through either malice or
coercion. The returns thereby become false or falsified.
In the Diaz vs. Comelec case, this Supreme Tribunal, through Mr. Justice J.B.
L. Reyes, stressed:
Thus the analysis of the returns for the six precincts
validated by the Commission leads to the same conclusion
as that derived from a consideration of all the returns from
Sagada, to wit: that even if all the votes cast by persons
Identified as registered voters were to be added to the
votes cast by persons who can not be definitely
ascertained as registered or not, and granting, ad
arguendo, that all of them voted for respondent Daoas still
the resulting total is much below the number of votes
credited to the latter in the returns for Sagada. Plainly, the
said returns can not be relied upon and should be regarded
as fictitious or manufactured and excluded from the
canvass of the votes cast for the different candidates in the
district. This conclusion becomes all the more imperative
when account is taken of the additional circumstances that
(a) of the 2,188 ballots cast in Sagada in the 1970 election
for convention delegates, nearly one- half (1,012) were
cast by persons definitely identified as not registered
therein, and this number may even increase because some
of the 399 thumbprints and/or signatures that could not be
Identified may have been cast by non-registered persons;
(b) that such wholesale illegal voting could not have taken
place without the connivance of the inspectors, either
maliciously or through intimidation, as found by COMELEC
in its resolution and the true results can not be ascertained
(c) that 16 of the inspectors and poll clerks who acted as
such in the 1970 elections in Sagada had been found by
the House Electoral Tribunal to have 'deliberately tolerated
In the Estaniel case, Mr. Justice Teehankee, speaking for the Court, invoked
the Diaz ruling and emphasized:
In the Sagada case resolved just now by the Court in Diaz
vs. Comelec, L-33378, and likewise involving a delegate
seat (from the Mountain Province.) for the Constitutional
Convention under Republic Act No. 6132, the Court
sanctioned
the
Comelec's
proprocedure,
upon
establishment of a strong prima facie case, of causing the
examination and analysis of the signatures and fingerprints
of the precinct books of voters and the CE 39's and voting
records, in order to determine whether the reported
elections were sham and tan amount to no election at all
and accordingly accord no prima facie value to the election
returns and reject them as manufactured and false returns.
"The Court, however, therein emphasized through Mr.
Justice Reyes that 'justice and equity imperatively demand
that there should be no discrimination in the application of
the rules by Comelec.
Moreover, a month later, in the case of Usman vs. Comelec (Dec. 29, 1971,
42 SCRA 667), Mr. Chief Justice Castro, then Associate Justice, spoke for the
Court, thus:
On November 12, 1970, Luis Quibranza, Francisco Abalos, Alfredo Bosico,
Luis Buendia and Bonifacio Legaspi (hereinafter referred to as the Comelec
petitioners), candidates for delegate in the aforementioned district,
petitioned the Commission on Elections (hereinafter referred to as the
Comelec) for a declaration of nullity of the election returns from all the
precincts of seven municipalities and municipal districts Karomatan,
Pantao-Ragat, Matungao Munai Tangcal, Magsaysay, and Nunungan and
four barrios - Kapatagan, Salvador, Lala, and Kauswagan of Lanao del
Norte. The Comelec petitioners alleged as grounds that in the said
municipalities and barrios, no actual voting took place because of
'terrorism and other machinations,' and that
fictitious election returns were prepared
under duress, and the influence of
terrorism and/or bribery wherein, it was
made to appear, that certain favored
candidates obtained most, if not the votes
fictitiously cast therein, while petitioners
were made to appear as having obtained
very few, if no votes at al.
Thus, it becomes clear from the above rulings that respondent Commission
on Elections has the power and authority to inquire into the allegation of
fake
voters,
with
fake
Ids
Identification
slips
in
a preproclamationcontroversy in order to determine the authenticity or integrity
of the election returns or whether such election returns faithfully record
that only registered or genuine electors were allowed to vote.
This ruling was further underscored in the case of Abes vs.
Comelec decided on December 15, 1967 (21 SCRA 1252, 1255-1256),
where this Court held:" ... Neither Constitution nor statute has granted
Comelec or the board of canvassers the power, in the canvass of election
returns, to look beyond the face thereof, once satisfied of their
authenticity." Thus, it is noted that before the canvass the Comelec must
first determine mine the genuineness and integrity of the election returns.
If on the face of the election returns the authenticity thereof is not patent,
then the Comelec can go beyond the face thereof to satisfy itself of their
authenticity or integrity.
While admittedly the Commission on Elections has no jurisdiction over
election contests involving municipal or municipal offices (Sec. 190, 1978
Election Code), WE must not lose sight of the fact that the instant suit
involved a pre- proclamation controversy filed by the private respondent
before the respondent Commission. Indeed, it is immaterial if some of the
grounds adduced by the private respondent (petition petitioner therein) are
grounds for an election contest rather than grounds for a preproclamation controversy.
Section 175 (first sentence) of the 1978 Election Code explicitly provides
that "the Commission shall be the sole judge of all preproclamation controversies and any of its decisions, orders or rulings shall
be final and executory" (emphasis supplied)
The law says "all," and therefore covers all pre-proclamation tion
controversies involving national, provincial, city and municipal elective
officials. The law does not distinguish nor contain qualifications.
Although the second sentence of Section 175 of the 1978 Election Code
provides that suspension or annulment of a proclamation may be made if
based on the grounds mentioned in Sections 172, 173 and 174, WE are not
prepared to declare that the enumeration is exclusive. The enumeration
made in Section 175 only emphasizes the old rulings of this Court and
statutory provisions on the matter affirming the power of the Comelec to
suspend or annul a proclamation based on material defects in the election
returns, tampered, altered, falsified elec- tion returns or in case of
discrepancies in the election returns. It may not be amiss to state also that
Sections 172, 173 and 174 of the 1978 Election Code are substantially a
reproduction of Sections 204, 205 and 206 respectively of the 1971
Election Code. Section 204 provides:
Section 204. Material defects in the election returns. If it
should clearly appear that some requisite in form or data
had been omitted in the election returns, the board shall
return them by the most expeditious means to the
corresponding boards of inspectors for correction. Said
election returns, however, shall not be returned for a
recount of the ballots or for any alteration of the number of
votes set forth therein: Provided, That in case of the
omission in the election returns of the name of any
candidate and/or his corresponding ding votes, the board
of canvassers shall require the board of inspectors
concerned to complete the necessary data in the election
returns and affix therein their initials: Provided, further,
That if the votes omitted to be placed in the return cannot
be ascertained by other means except by recounting the
ballots, the Commission on Elections after satisfying itself
that the Identity and integrity of the ballot box have not
been violated, shall order the board of inspectors to open
the ballot box, and also after satisfying itself that the
integrity of the ballots therein has been duly preserved,
order the board to count the votes for the candidate whose
votes have been omitted in the presence of the candidate
affected, or his representative and thereafter complete the
return.
Section 205 provides:
Sec. 205. When election returns appear to be tampered or
falsified. If the copy of the election return submitted to
the board of canvassers appears to be tampered, altered or
falsified after it has left the hands of the board of
inspectors, the board of canvassers shall use the other
authentic copies of said election return, except the copies
furnished the political parties, and, if necessary, the copy
inside the ballot box which upon previous authority given
by the Commission may be retrieved in accordance with
Section one hundred ninety-seven hereof. If all copies of
said returns are equally tampered, altered or falsified and
cannot be used in the canvass, the board or any candidate
not reflect the true will of the electorate And considering that the
difference in the number of votes garnered by petitioner Sotero Olfato over
private respondent Francisco E. Lirio is only about 1,579, the number of
votes in the aforesaid questioned returns could materially affect the result
of the elections. That the precariousness of the alleged winning margin of
petitioner Olfato over respondent Lirio can be gleaned from the totality of
the votes contested is therefore beyond doubt.
An examination of the official list of registered voters in the remaining 34
voting centers may reveal additional fake votes allowed to vote, to
aggravate the election irregularity.
Petitioners also argued that private respondent cannot now raise for the
first time in a petition to annul proclamation the alleged spuriousness or
falsity of the election returns since no objection to the canvass of the
election returns had ever been made before the Municipal Board of
Canvassers.
Much reliance has been made by the petitioners on the ruling of this Court
declaring that "all questions regarding the returns should be initially raised
before the Board of canvassers, subject to appeal from its decision to the
COMELEC (Anni vs. Rasul, No. L-34904, Aug. 30, 1972, 46 SCRA 758, 769;
citing Moore vs. COMELEC, 31 SCRA 60, 67 [1970]).
But there was compliance with the aforesaid rule, when respondent Lirio
filed with the Comelec on February 2, 1980, three days before the
proclamation of petitioners on February 5, 1980, the petition (P.P. No. 118)
to suspend the canvass and proclamation of petitioners, making the
Municipal Board of Canvassers a respondent, which was then notified of
the challenge raised by respondent Lirio.
It may appropriate to note here that said ruling applies to cases where the
irregularities of the election returns are patent upon their faces, which
makes it incumbent upon the aggrieved candidates to raise their objection
before the Board of Canvassers. The rationale of the above doctrine has
been aptly explained by this Court through Justice Conrado Sanchez in the
case of Abrigo vs. COMELEC (No. L-31374, Jan. 21, 1970, 31 SCRA 26, 35,
36. Thus 8:
... After the preparation of the election returns by the board
of inspectors, the next step outlined by the law is the
canvass thereof by the canvassing board. It is before this
body that a candidate must present any question regarding
the election returns ... The law envisions that while the
board is doing its work is canvassing the election returns
and tallying the results, its attention should be called to
any question which could affect its work. The board should
be given an opportunity, as Section 163 (now Section 174)
plainly directs, to decide whether on the existence or nonexistence of discrepancy to defer the canvass or to
continue with it. After all, it is upon this body that the duty
to canvass is reposed. This function, it would seem to us
complements its authority to canvass only election returns
which are in due form and to exclude those which are
obviously manufactured or palpably irregular (emphasis
supplied).
It is only then after the Board of Carvassers has passed upon the objection
when the Comelec will exercise its appellate jurisdiction.
It must be observed further, that there is no plausible reason to prohibit an
aggrived candidate from filing an objection regarding the election returns
directly, before the Comelec itself if the election irregularities that vitiate
the integrity of the election returns are not apparent upon their faces.
What is therefore involved is the original jurisdiction of the Comelec rather
than its appellate jurisdiction for precisely the objection is filed not before
the Board of Canvassers because the irregularities are not apparent upon
the face of the election returns.
The reason is obvious "the board of canvassers exists for a specific
function that is, to canvass the result of the elec- tion as shown in the
election returns and to proclaim the winning candidates. Once this specific
function had been perform- ed the existence of the board of canvassers is
ended or terminated (Aquino vs. COMELEC, L-28392, Jan. 29, 1968, cited in
Pelayo, Jr. vs. COMELEC, No. L-28869, June 29, 1968,23 SCRA 1374, 1386).
And it is more within the powers of the Comelec, being the "sole judge of
all pre-proclamation controversies", to determine the circumstances that
stamp the election returns with the indelible mark of falsity.
At any rate, as heretofore stated, private respondent Lirio filed his petition
for suspension of canvass and of proclamation against the Municipal Board
of Canvassers of Tanauan and the petitioners on February 2, 1980 or three
days before petitioners were proclaimed and before the termination of the
canvass. The same may therefore be considered as a formal objection to
the integrity of the election returns based on fake votes.
Not even the rule of "expression unius est exclusion alterius" will carry the
day for the petitioners. "Where a statute appears on its face to limit the
operation of its provisions to particular persons or things by enumerating
them, but no reason exists why other persons or things not so enumerated
should not have been included, and manifest injustice will follow, by not so
including them, the maxim 'expression unius est exclusion alterius', should
not be invoked" (Blevins vs. Mullaly 135 p. 307, 22 Cal. App. 519, cited in
People vs. Manantan, No L-14129, July 31, 1962, 115 Phil. 657, 668-669).
The rule of 'expression unius est exclusion alterius' shall be
applied only as a means of discovering the legislative
intent which is not otherwise manifest and shall never be
permitted to defeat the plainly indicative purpose of the
legislature (82 C.J.S. p. 668).
Moreover, "the cardinal rule of statutory construction requires the court to
give effect to the general legislative intent if that can be discovered within
the four corners of the Act. When the object intended to be accomplished
by the statute is once clearly ascertained general words may be restrained
to it and those of narrower import may be expanded to embrace it, to
effectuate the intent" (Borromeo vs- Mariano, 41 Phil. 322, cited in Martin,
G.R. Statutory Construction, Revised Ed., p. 46).
The Courts should give the statute a reasonable or liberal
construction which will best effect its purpose rather than
one which will defeat it (82 C.J.S., p. 593) even though such
construction is not within the strict literal interpretation of
the statute (In re Marshall, 69 .. 2d, p. 619, cited in Martin,
G.R., Statutory Construction, Revised Ed., p. 67).
Thus, cases will frequently be found enunciating the
principle that the intent of the legislature win govern U.S.
vs. Corbet 215, U.S. 233). It is to be noted that a strict
construction should not be permitted to defeat the policy
and purposes of the statute (Ash Sheep Co. vs. U.S. 252
U.S. 159). The court may consider the spirit and reason of
a statute, as in this particular instance, where a literal
meaning would defeat the clear purpose of the law makers
(Crawford,
Interpretation of Laws,
Manantan, supra, p. 665).
Sec.
78,
p.
294,
cited
in
(People
vs.
CHICO-NAZARIO, J.:
a)
b)
The Petition stemmed from the 14 May 2007 national elections for
12 senatorial posts. At the time of filing of the Petition, around two months
after the said elections, the 11 candidates with the highest number of
votes had already been officially proclaimed and had taken their oaths of
office as Senators. With other candidates conceding, the only remaining
contenders for the twelfth and final senatorial post were Pimentel and
private respondent Juan Miguel F. Zubiri (Zubiri). Public respondent
Commission on Elections (COMELEC) en banc, acting as the National Board
of Canvassers (NBC), continued to conduct canvass proceedings so as to
determine the twelfth and last Senator-elect in the14 May 2007 elections.
c)
d)
e)
in
f)
g)
h)
i)
j)
k)
improper,
PCOC did not reflect the true results of the elections because it was based
on the manufactured Maguindanao MCOCs, the authenticity and due
execution of which had not been duly established. The motion to exclude
made by Pimentels counsel was once again denied by the NBC, and she
was ordered to sit down or she would be forcibly evicted from the session
hall. The secondMaguindanao PCOC was thus included in the canvass
proceedings conducted by the NBC and, resultantly, Pimentels lead
over Zubiri was significantly reduced from 133,000 votes to only 4,000
votes.
I.
II.
III.
Ante Order; thus, said prayer was deemed denied for failure to garner the
required majority vote. The parties were then directed to submit their
respective Memoranda, after which, the case would be deemed submitted
for resolution.[8] All the parties complied, with Zubiri submitting his
Memorandum[9] on 31 July 2007; Pimentel,[10] on 1 August 2007; and the
NBC and SPBOC-Maguindanao,[11] on 10 August 2007.
In the meantime, without any TRO and/or Status Quo Ante Order
from the Court, the canvass proceedings before the NBC continued, and by
14 July 2007, Zubiri (with 11,004,099 votes) and Pimentel (with 10,984,807
votes) were respectively ranked as the twelfth and thirteenth Senatorial
candidates with the highest number of votes in the 14 May 2007
elections. Since the NBC found that the remaining uncanvassed certificates
of canvass would no longer materially affect Zubiris lead of 19,292 votes
over Pimentel, it issued Resolution No. NBC 07-67, [12] dated 14 July 2007,
proclaiming Zubiri as the twelfth duly elected Senator of the Philippines in
the 14 May 2007 elections, to serve for a term of six years beginning 30
June 2007 in accordance with the provisions of the Constitution.
filed his Petition before this Court prior to the proclamation ofZubiri as
Senator. Moreover, Pimentel asserted that his Petition questioned
not Zubiris proclamation, but the conduct of the canvass proceedings
before the NBC and SPBOC-Maguindanao. He maintained that his case was
one of first impression and no existing jurisprudence could be used as
precedent for its summary dismissal. Pimentel then reiterated his
arguments in his Memorandum that Sections 37 and 38 of Republic Act No.
9369,[17] amending Sections 30 and 15 of Republic Act No. 7166,
[18]
respectively, significantly affected and changed the nature of canvass
proceedings, the nature of the duty of canvassing boards, and the extent
of allowable pre-proclamation controversies in Senatorial elections. Based
on the foregoing, Pimentel prayed for the denial of Zubiris Motion to
Dismiss.
After a close scrutiny of the allegations, arguments, and evidence
presented by all the parties before this Court, this Court rules to dismiss
the present Petition.
Pre-proclamation controversy/case
A
pre-proclamation
controversy
has
been
defined
by
Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code
of the Philippines, as follows:
SEC.
241. Definition.
A
pre-proclamation
controversy is any question pertaining to or affecting the
proceeding of the board of canvassers which may be raised
by any candidate or by any registered political party or
coalition of political parties before the board or directly
with the Commission, or any matter raised under Sections
233, 234, 235 and 236 in relation to the preparation,
transmission, receipt, custody and appearance of the
election returns.
Under Republic Act No. 7166, providing for synchronized national and local
elections, pre-proclamation controversies refer to matters relating to the
preparation, transmission, receipt, custody and appearance of election
returns and certificates of canvass.[19]
Essentially reiterating Section 243 of the Omnibus Election Code, but
adding the reference to the certificates of canvass, COMELEC Resolution
No. 7859, dated 17 April 2007, identified the issues that may be subject of
a pre-proclamation controversy, to wit:
SEC. 37. Issues that may be raised in preproclamation controversy. The following shall be proper
issues that may be raised in a pre-proclamation
controversy:
pursuant to Section 30, in relation to Section 15, of Republic Act No. 7166,
as amended by Republic Act No. 9369.
This Court rules for the respondents.
Proceedings before the
SPBOC-Maguindanao
The SPBOC-Maguindanao, in the conduct of its canvass
proceedings,
properly
refused
to
allow
Pimentel
to
contest
the Maguindanao MCOCs at that stage by questioning PES Bedol and the
Chairpersons of the MBOCs-Maguindanao and presenting evidence to
prove the alleged manufactured nature of the said MCOCs, for such would
be tantamount to a pre-proclamation case still prohibited by Section 15 of
Republic Act No. 7166, even after its amendment by Republic Act No. 9369.
The SPBOC-Maguindanao, as its name suggests, was constituted to
be of the same stature and to perform the same function as the PBOCMaguindano:
to
canvass
theMaguindanao MCOCs and
prepare
the Maguindanao PCOC to be submitted to the NBC. Undeniably, the
SPBOC-Maguindanao is not Congress nor COMELEC en banc acting
as the NBC, specifically charged by Section 30 of Republic Act No.
7166, as amended by Republic Act No. 9369, with the duty to
determine the authenticity and due execution of the certificates of
canvass submitted to it in accordance with the four given
criteria. There is no ambiguity in the said provision, at least, as to whom it
imposes the duty, namely: (1) Congress as the NBC for the election for
President and Vice-President; and (2) COMELEC en banc as the NBC for
the election for Senators. This is a case where the law is clear. It speaks in
a language that is categorical. It is quite explicit; it is too plain to be
misread. No interpretation is needed. All that is called for is to apply the
statutory command.[32]
Even if there is still a need for this Court to construe Section 30 of
Republic Act No. 7166, as amended by Republic Act No. 9369, it still cannot
extend the scope of said provision to local boards of canvassers. A preproclamation case under Section 30 is allowed only as an exception to the
prohibition under Section 15 of Republic Act No. 7166, as amended by
Republic Act No. 9369. According to the rules of statutory construction,
exceptions, as a general rule, are strictly, but reasonably construed; they
extend only so far as their language fairly warrants, and all doubts should
be resolved in favor of the general provisions rather than the exception.
Where a general rule is established by statute with exceptions, the court
will not curtail the former nor add to the latter by implication. [33] A maxim
of recognized practicality is the rule that the expressed exception or
exemption
excludes
others. Exceptio firmat regulim in casibus non exceptis.
The
express
mention of exceptions operates to exclude other exceptions; conversely,
those which are not within the enumerated exceptions are deemed
included in the general rule.[34] And, in this case, the exception applies
only to Congress or the COMELEC en bancacting as the NBC, and
wherein the parties may litigate all the legal and factual issues raised by
them in as much detail as they may deem necessary or appropriate. [40]
The
burden
is
upon
Pimentel
to
establish
that
the Maguindanao MCOCs are manufactured, and that it is evident on the
face thereof. Pimentels insistence on being allowed to propound questions
to PES Bedol and the Chairpersons of the MBOCs-Maguindanao and SPBOCMaguindanao reveals that, although he has his suspicions, he has yet no
actual evidence that the Maguindanao MCOCs were indeed manufactured.
Moreover,
Pimentels
main
objection
to
the Maguindanao MCOCs used
in
the
canvass
by
the
SPBOCMaguindanao is that they are mostly copy 2 or the copy intended to be
posted on the wall. According to Section 43 of COMELEC Resolution No.
7859, dated 17 April 2007, the MBOCs must transmit copy 1 of
the MCOCs to the PBOC for use in the provincial canvassing of votes. The
SPBOC-Maguindanao was
compelled
to
use
copy
2
of
the Maguindanao MCOCs in the absence of copy 1 thereof. The fact that
copy 2 of the Maguindanao MCOCs was not the copy meant for the PBOCMaguindanao does not necessarily mean that copy 2 of the
said MCOCs was manufactured, falsified or tampered with. All the seven
copies of the MCOCs required to be prepared by the MBOCs should be
considered duplicate originals.[38] Just like copy 1 of the MCOCs, copy 2
should be afforded the presumption of authenticity as an official document
prepared by the MBOCs-Maguindanao in the regular performance of their
official functions. Copy 2 is no less authentic than all the other copies of
the MCOCs although it may be more susceptible to manufacture,
falsification, or tampering. If the manufacture, falsification, or tampering of
copy 2 of the MCOCs is not apparent on its face, the burden to prove the
same falls on the candidate making the allegation in a regular election
protest. At least as far as the proceedings before the local boards of
canvassers are concerned, this Courts ruling in Pangarungan v.
Commission on Elections[39] still holds true: it is not required that all the
other copies of the election returns or certificates of canvass be taken into
account and compared with one another before one of them, determined
to be authentic, may be used or included in the canvass.
The
SPBOC-Maguindanao determined
that
copy
2
of
the Maguindanao MCOCs is authentic and duly executed on its face, while
Pimentel insists otherwise. This issue involves the appreciation of copy 2 of
the Maguindanao MCOCs by the SPBOC-Maguindanao, the proper subject
of a pre-proclamation controversy, which, as this Court already declared, is
still prohibited in proceedings before local boards of canvassers for
elections for Senators.
The resolution of the issues raised by Pimentel as to the
irregularities
and
suspicious
circumstances
surrounding
the Maguindanao MCOCs, which appear prima facieregular on their face,
compels or necessitates the piercing of the veil of the said MCOCs. These
issues, however, are more appropriate in a regular election protest,
Similarly, the COMELEC en banc acting as the NBC for the election for
Senators, did not violate Section 30 of Republic Act No. 7166, as amended
by Republic Act No. 9369, when it denied Pimentels request to question
PES Bedol and the Chairpersons of the MBOCs-Maguindanao and SPBOCMaguindanao,
and
his
subsequent
motion
to
exclude
the
second Maguindanao PCOC.
As already declared by this Court, the NBC has the duty to
determine the authenticity and due execution of the certificates of canvass
submitted to it in accordance with the four criteria enumerated in Section
30 of Republic Act No. 7166, as amended by Republic Act No. 9369. It has
not been established to the satisfaction of this Court that the NBC failed to
comply with its duty under said provision.
Pimentel asserts that in the absence of all the other copies of
the Maguindanao MCOCs, except copy 2, there is no way to apply the third
criterion under Section 30 of Republic Act No. 7166, as amended by
Republic Act No. 9369. According to this criterion for authenticity and due
execution of a certificate of canvass, there must exist no discrepancy in
other authentic copies of the certificate or in any of its supporting
documents such as the statement of votes by city/municipality/precinct
and no discrepancy in the votes of any candidate in words and figures in
the certificate. Pimentel posits that without any other copies available for
comparison, then copy 2 of the Maguindanao MCOCscannot be deemed
authentic and duly executed.
While it is true that having only one copy of the certificate of
canvass may raise problems as to the determination by the NBC of its
authenticity and due execution since there are no other copies to compare
it with, such is not the situation in the Petition at bar.
According to Section 30 of Republic Act No. 7166, as amended by
Republic Act No. 9369, Congress and the COMELEC en banc, acting as the
NBC, shall determine the authenticity and due execution of the certificates
of canvass for President, Vice-President and Senators, respectively, as
accomplished and transmitted to them by the local boards of
canvassers. For the province of Maguindanao, it is the PBOC which
transmits the PCOC to the NBC. For the 14 May 2007 senatorial elections,
the NBC excluded from the national canvass the Bedol PCOC submitted by
the PBOC-Maguindanao after it found the same to be tainted by
irregularities and statistical improbabilities. Thereafter, the SPBOCMaguindanao was
created,
which
re-canvassed
the Maguindanao MCOCs and prepared and submitted to the NBC the
second Maguindanao PCOC.
Hence, the four criteria enumerated in Section 30 of Republic Act
No. 7166, as amended by Republic Act No. 9369, must be applied by the
NBC to the secondMaguindanao PCOC. The authenticity and due execution
of the Maguindanao MCOCs, which had already been determined by the
SPBOC-Maguindanao, are no longer in issue before the NBC. To allow
Pimentel to revive again before the NBC the issue of authenticity and due
execution of the Maguindanao MCOCs after a determination thereof by the
SPBOC-Maguindanao is like granting him an appeal, a remedy which is
without any statutory or regulatory basis.
The SPBOC-Maguindanao prepared all seven copies of the
second Maguindanao PCOC. It properly submitted the first copy to the NBC
for national canvassing of the votes for Senators. All the six other copies
are in existence and have been distributed to the intended
recipients. There is no allegation or proof that there is a discrepancy
among
the
seven
authentic
copies
of
the
second Maguindanao PCOC. Neither
is
it
shown
that
the
second Maguindanao PCOC contains any discrepancy when compared with
its supporting documents. It would thus appear to this Court that the
second Maguindanao PCOC passed the third criterion for its authenticity
and due execution as provided in Section 30 of Republic Act No. 7166, as
amended by Republic Act No. 9369. As for the three other criteria, there is
no sufficient allegation, much less proof, that the NBC did not apply them
to the second Maguindanao PCOC or that the second Maguindanao PCOC
actually failed to meet any of them.
Given the foregoing, there is indeed no merit in Pimentels request
before the NBC to still question PES Bedol and the Chairpersons of
the MBOCs-Maguindanao and
SPBOC-Maguindanao regarding
the Maguindanao MCOCs. There is also no reason to exclude the
second Maguindanao PCOC from the national canvass of votes for Senators
after its authenticity and due execution had been determined by the NBC
in accordance with the criteria provided by the law.
Due process and equal
protection of the law
Pimentel alleges that the proceedings before the NBC and the
Maguindanao disallowing him from asking certain election officials,
PES Bedol and the Chairpersons of the MBOCs-Maguindanao and
Maguindanao, questions regarding the Maguindanao PCOC and
deprived him of his right to due process.
SPBOCsuch as
SPBOCMCOCs,
on Elections we ruled
winning candidate and
COMELEC is divested of
Thus:
fraught with tension and danger for the public at large. For those who
disagree with that public policy, the appropriate recourse is not to ask this
Court to abandon case law, which merely interprets faithfully existing
statutory norms, to engage in judicial legislation and in effect to rewrite
portions of the Omnibus Election Code. The appropriate recourse is, of
course, to the Legislative Department of the Government and to ask that
Department to strike a new and different equilibrium in the balancing of
the public interests at stake.[51]
IN VIEW OF THE FOREGOING, the present
for Certiorari and Mandamus is hereby DISMISSED. No costs.
SO ORDERED.
Petition
WENCESLAO
RANCAP
LAGUMBAY, petitioner,
vs.
THE COMMISSION ON ELECTIONS and CESAR CLIMACO, respondents.
Wenceslao
R.
Lagumbay
Ambrosio Padilla for the respondents.
for
the
petitioner.
BENGZON, C.J.:
This petition prays for revision of an order of the Commission on Elections
declining to reject the returns of certain precincts of some municipalities in
Mindanao. The Constitution provides for review by this Court of the rulings
of the said Commission.
The matter being urgent, and having reached the conclusion that the
returns of certain questioned precincts were "obviously manufactured"
within the meaning of pertinent jurisprudence, particularly Mitchell v.
Stevens,1 we issued on December 24, 1965, a short resolution upholding
the Commission's power and duty to reject the returns of about fifty
precincts.
It appearing therein that contrary to all statistical probabilities
in the first set, in each precinct the number of registered voters
equalled the number of ballots and the number of votes reportedly
cast and tallied for each and every candidate of the Liberal Party,
the party in power; whereas, all the candidates of the Nacionalista
Party got exactly zero; and in the second set, again contrary to
all statistical probabilities all the reported votes were for
candidates of the Liberal Party, all of whom were credited
with exactly the same number of votes in each precinct, ranging
from 240 in one precinct to 650 in another precinct; whereas, all
the candidates of the Nacionalista Party were given exactly zero in
all said precincts.
We opined that the election result to said precincts as reported, was utterly
improbable and clearly incredible. For it is not likely, in the ordinary course
of things, that all the electors of one precinct would, as one man, vote
for all the eight candidates of the Liberal Party, without giving a single vote
to one of the eight candidates of the Nacionalista Party. Such extraordinary
coincidence was quite impossible to believe, knowing that the Nacionalista
Party had and has a nationwide organization, with branches in every
province, and was, in previous years, the party in power in these islands.
We also know from our experience in examining ballots in the three
Electoral Tribunals (Presidential, Senate, and House) that a large portion of
the electors do not fill all the blanks for senators in their ballots. Indeed,
this observation is confirmed by the big differences in the votes received
by the eight winning senators in this as well as in previous national
elections;2 almost a million votes between the first place and the eight.
Furthermore, in 1965, the total number of electors who cast their votes
was 6,833,369 (more or less). If every voter had written eight names on his
ballot, the total number of votes cast for all the candidates would be that
number multiplied by 8, namely 54,666,952. But the total number of the
votes tallied for the candidates for senator amounted to 49,374,942 only.
The difference between the two sums represents the number of
ballots that did not contain eight names for senators. In other words, some
5 million ballots did not carry eight names. Of course, this is a rough
estimate, because some ballots may have omitted more names, in which
case, the number of incomplete ballots would be less. But the general idea
and the statistical premise is there.
The same statistical result is deducible from the 1963 election data: total
number of electors who voted, 7,712,019; if each of them named eight
senators, the total votes tallied should have been 61,696,152; and yet the
total number tallied for all the senatorial candidates was 45,812,470 only.
A greater number of incomplete ballots.
It must be noted that this is not an instance wherein one return gives to
one candidate all the votes in the precinct, even as it gives exactly zero to
the other. This is not a case where some senatorial candidates obtain
zeroexactly, while some others receive a few scattered votes. Here, all the
eight candidates of one party garnered all the votes, each of them
receiving exactly the same number, whereas all the eight candidates of the
other party got precisely nothing.
The main point to remember is that there is no block-voting nowadays.
What happened to the vote of the Nacionalista inspector? There was one in
every precinct. Evidently, either he became a traitor to his party, or was
made to sign a false return by force or other illegal means. If he signed
voluntarily, but in breach of faith, the Nacionalista inspector betrayed his
party; and, any voting or counting of ballots therein, was a sham and a
mockery of the national suffrage.
Hence, denying prima facie recognition to such returns on the ground that
they are manifestly fabricated or falsified, would constitute a practical
approach to the Commission's mission to insure free and honest elections.
At any rate, fraud or no fraud, the verdict in these fifty precincts may
ultimately be ascertained before the Senate Electoral Tribunal. 4 All we hold
now, is that the returns show "prima facie" that they do not reflect true and
valid reports of regular voting. The contrary may be shown by candidate
Climaco in the corresponding election protest.
MENDOZA, J.:
This is a petition for certiorari, prohibition, and mandamus seeking to set
aside a resolution of the Commission on Elections (COMELEC) which directs
the Municipal Board of Canvassers of Calinog, Iloilo to reconvene for the
purpose of annulling the proclamation of petitioner Nicolas C. Castromayor
as councilor of that municipality and of proclaiming the winner after a
recomputation of the votes.
Petitioner was a candidate for a seat in the eight-member Sangguniang
Bayan of the municipality of Calinog, Iloilo in the elections held on May 8,
1995.
After the votes had been cast, the Municipal Board of Canvassers (MBC)
convened at 6:00 p.m. of that day and began the canvass of the election
returns from the different precincts in the municipality. The canvassing
lasted well into the night of May 9, 1995. The totals of the votes cast were
checked by the Municipal Accountant who acted as recorder of votes. 1
As matters stood, therefore the total number of votes cast for Demorito
was 5,470, or 51 more than the 5,419 votes cast for petitioner. 4
Garin reported the matter to the Regional Election Director, Atty. Rodolfo
Sarroza, who advised her to request authority from the COMELEC to
reconvene for the purpose of correcting the error.
On May 13, 1995, a fax letter was sent to the Law Department of the
COMELEC in Manila. The letter explained the problem and asked for
authority for the MBC to reconvene in order to correct the error, annul the
proclamation of petitioner and proclaim Demorito as the eighth member of
the Sangguniang Bayan.
A formal letter was later sent to the COMELEC on May 17, 1995.
On May 23, 1995, the COMELEC issued the following resolution:
95-2414. In the matter of the Fax-letter
dated 13 May 1995 from Election Officer
Alice M. Carin [sic], requesting for an
authority to reconvene the MBC of Calinog,
Iloilo to annul the proclamation of Nicolas
Castromayor for the No. 8 place for
councilor and to proclaim Nilda C. Demorito
as the duly elected number eight (8) SB
member of said municipality,
RESOLVED:
On May 10, 1995, the winners were proclaimed on the basis of the results
of the canvass which showed that petitioner received 5,419 votes and took
eighth place in the election for members of the Sangguniang Bayan. 2
However, when Alice M. Garin, Chairman of the MBC, rechecked the totals
in the Statement of Votes the following day, she discovered that the
number of votes cast for Nilda C. Demorito, as member of the Sangguniang
Bayan, was 62 more than that credited to her. As Garin later explained to
the Provincial Election Supervisor, the returns from one precinct had been
overlooked in the computation of the totals. 3 Two employees of the
Treasurer's Office, who were assigned to post the returns on the tally board
outside the municipal building, also discovered the error and reported it to
Garin.
To be sure, the COMELEC did not itself annul the proclamation of petitioner,
but, by "direct[ing] the Municipal Board of Canvassers of said municipality
to reconvene to annul the proclamation of Nicolas C. Castromayor," the
COMELEC in effect did so. After all, the authority of the COMELEC was
sought because, without such authority, the MBC would not have the
power to annul the proclamation of petitioner.
Be that as it may and in order to obviate the necessity of remanding this
case to the COMELEC for further proceedings in accordance with due
process, we will accept this representation of the public respondents that
what the COMELEC resolution contemplates is a hearing before the MBC at
which petitioner will be heard on his objection and that only if warranted
will the MBC be authorized to set aside the proclamation of petitioner
previously made on May 10, 1995. We find this to be the expedient course
of action to take, considering that, after all, in its notice to the candidates,
the MBC did not state that it was going to reconvene to annul petitioner's
proclamation and make a new one but only that it was going to do so "for
the correction of the errors noted in the Statement of Votes Per
Precinct/Municipality." 10
The proceedings before the MBC should be summary. Should any party be
dissatisfied with the ruling of the MBC, the party concerned shall have a
right to appeal to the COMELEC en banc, in accordance with Rule 27, 7 of
the COMELEC Rules of Procedure, which provides as follows:
7. Correction of Errors in Tabulation or Tallying of Results
by the Board of Canvassers. (a) Where it is clearly
shown before proclamation that manifest errors were
committed in the tabulation or tallying of election returns,
or certificates of canvass, during the canvassing as where
(1) a copy of the election returns of one precinct or two or
more copies of a certificate of canvass were tabulated
more than once, (2) two copies of the election returns or
certificate of canvass were tabulated separately, (3) there
was a mistake in the adding or copying of the figures into
the certificate of canvass or into the statement of votes by
precinct, or (4) so-called election returns from non-existent
precincts were included in the canvass, the board
may motu propio, or upon verified petition by any
candidate, political party, organization or coalition of
political parties, after due notice and hearing, correct the
errors committed.
Indeed, since the Statement of Votes forms the basis of the Certificate of
Canvass and of the proclamation, any error in the statement ultimately
affects the validity of the proclamation. It begs the question, therefore, to
say that this is not a preproclamation controversy and the procedure for
preproclamation controversies cannot be applied to the correction in the
computation of the totals in the Statement of Votes.
It should be pointed out, in this connection, that what is involved here is a
simple problem of arithmetic. The Statement of Votes is merely a
tabulation per precinct of the votes obtained by the candidates as reflected
in the election returns. In making the correction in computation, the MBC
will be acting in an administrative capacity, under the control and
supervision of the COMELEC. Hence any question pertaining to the
proceedings of the MBC may be raised directly to the COMELEC en banc in
the exercise of its constitutional function to decide questions affecting
elections.
What has just been said also disposes of petitioner's other contention that
because his proclamation has already been made, any remedy of the
losing party is an election protest. As held in the Duremdes case:
SANCHEZ, petitioner,
ENRILE, petitioner,
AND
AUGUSTO
S.
PER CURIAM:
In G.R. No. 78461, candidate Augusto S. Sanchez (Sanchez) filed his
petition on May 28, 1987 praying that respondent Commission on Elections
(Comelec) after due hearing, be directed to conduct a recount of the votes
cast three months ago in the May 11, 1987 senatorial elections to
determine the true number of votes to be credited to him and prayed
further for a restraining order directing the Comelec to withhold the
proclamation of the last four (4) winning candidates on the ground that
votes intended for him were declared as astray votes because of the
sameness of his surname with that of disqualified candidate Gil Sanchez,
whose name had not been crossed out from the Comelec election returns
and other election forms.
Sanchez further alleged that on May 12, 1987, he filed an "Urgent Petition
to Recount and/or Re-appreciate Ballots" with the Comelec; acting on the
petition, the Comelec ordered Sanchez to submit a Bill of Particulars where
votes for "Sanchez" were not counted in his favor. Sanchez' compliance
asserted that the invalidation of "Sanchez" votes occurred in all regions
where the assailed Comelec forms were distributed and cited specific
precincts in Quezon City, Batangas, Pampanga, Cebu, Caloocan, Manila
and Iloilo as examples, without any particulars as to the number of votes.
The Court in its Resolutions of June 25, 1987 and July 10, 1987 sustained
Comelec's position that it be allowed to complete the canvass of the
returns of the senatorial elections, (estimated at about 240,000 votes as of
June 25, 1987) which would be subject thereafter to its resolution of
Sanchez' therein pending petition for recount on the basis of the merits
and relevant facts thereof, and therefore found no basis to issue the
restraining order prayed for by Sanchez.
In the interval, it appears that on June 26, 1987, candidate Santanina T.
Rasul (Rasul) filed her motion for intervention and opposition to Sanchez'
petition for recount pending before respondent Comelec. On July 2, 1987,
Rasul also filed her Supplemental Opposition raising additional grounds
against the recount. On July 2 and 3, 1987, Rasul and candidate Juan Ponce
Enrile (Enrile), then ranked 24th and 23rd, respectively immediate filed a
petition with respondent Comelec praying for their immediate proclamation
as duly-elected senators. The Comelec deferred action on these two
petitions per its resolution dated July 4, 1987, until after the remaining
uncanvassed returns shall have been completely canvassed. On July 11,
1987, Enrile also filed his motion for intervention and a motion to dismiss
the Sanchez petition for recount. On July 13, 1987, the Comelec granted
the motions for intervention filed by candidates Rasul and Enrile.
On July 16, 1987, the Comelec, by a vote of four to three, promulgated its
decision dismissing petitioner Sanchez' petition for recount. On July 20,
1987, petitioner Sanchez filed a motion for reconsideration of the decision
of July 16, 1987, which was opposed by intervenors Rasul and Enrile.
On July 25, 1987, the Comelec proclaimed Rasul as the 23rd senator-elect.
At that time, the lead of Rasul over Enrile was 1,910 votes only while the
lead of Enrile over Sanchez was 73,034 votes with 31,000 votes still to be
canvassed in three (3) municipalities of Sulu, namely, Parang, Maimbung
and Patikul, and in 15 precincts in Lanao del Sur. In proclaiming Rasul as
the 23rd senator-elect, the Comelec, while admitting that it was
mathematically possible for Enrile to overtake Rasul, justified its action by
rationalizing that "this is improbable, if not highly improbable" considering
that the untabulated returns come from Muslim areas or towns "which are
all bailiwicks of candidate Rasul, " and "between a Muslim candidate and a
non-Muslim one, in all probability the Muslim candidate will obtain a higher
percentage of the votes cast."
On July 28, 1987, Enrile filed with this Court his petition [G.R. No. 79146
Juan Ponce Enrile v. Comelec and Santanina Rasul] (1) to compel the
Comelec to complete the canvass of votes cast for senators in the May 11,
1987 elections to determine the 23rd and 24th placers in the senatorial
Here, the election returns are complete and indicate the name of Sanchez
as well as the total number of votesthat were counted and appreciated as
votes in his favor by the boards of inspectors. The fact that some votes
written solely as "Sanchez" were declared stray votes because of the
inspectors' erroneous belief that Gil Sanchez had not been disqualified as a
candidate, involves an erroneous appreciation of the ballots. It is
established by the law as well as jurisprudence (the cited section being a
substantial reproduction of Section 172 of the 1978 Election Code and
previous election laws) that errors in the appreciation of ballots by the
board of inspectors are proper subject for election protest and not for
recount or reappreciation of the ballots.
The basic issue at bar which Sanchez himself avers in his petition is "a
case of first impression" is whether his petition for recount and/or reappreciation of ballots filed with the Comelec may be considered a
summary pre-proclamation controversy falling within the Comelec's
exclusive jurisdiction (Sec. 242, Omnibus Election Code) or properly
pertains to the realm of election protest falling within the exclusive
question of who is entitled to the 24th seat of the Senate would remain
unresolved for how long no one can tell is unthinkable and certainly
contrary to public policy and the mandate of the law that the results of the
election be canvassed and reported immediately on the basis of the
authentic returns which must be accorded prima facie status as bona fide
reports of the votes cast for and obtained by the candidates. 4
6. Election cases involved not only the adjudication of the private interest
of rival candidates but also the paramount need of dispelling the
uncertainty which beclouds the real choice of the electorate with respect to
who shall discharge the prerogatives of the offices within their gift. They
are imbued with public interest (Vda. de Mesa v. Mencias, 18 SCRA 533,
538).
7. The ground for recount relied upon by Sanchez is clearly not among the
issues that may be raised in a pre- proclamation controversy. His allegation
of invalidation of "Sanchez" votes intended for him bear no relation to the
correctness and authenticity of the election returns canvassed. Neither the
Constitution nor statute has granted the Comelec or the board of
canvassers the power in the canvass of election returns to look beyond the
face thereof, once satisfied of their authenticity (Abes v. Comelec, 21 SCRA
1252,1256).
8. In Grand Alliance for Democracy v. Comelec, et al., G.R. No. 78302,
promulgated May 27, 1987, the Court restated certain principles governing
canvass proceedings, which are fully applicable here, mutatis mutandis, to
wit:
The Court has restated the settled doctrine in senatorial
elections in Ilarde v. Commission on Elections, 31 SCRA 72,
thus: "Canvass proceedings are administrative and
summary in nature, and a strong prima facie case backed
up by a specific offer of evidence and indication of its
nature and importance has to be made out to warrant the
reception of evidence aliunde and the presentation of
witnesses and the delays necessarily entailed thereby.
Otherwise,
the
paralyzation
of
canvassing
and
proclamation proceedings leading to a vacuum in so
important and sensitive an office as that of Senator of the
Republic could easily be brought about this time involving
the eight place and next time involving perhaps all the
eight places, when it is considered that the position of
senator is voted for, nationwide by all the voters of the 66
provinces and 57 cities comprising the Philippines."
Sanchez, even if awarded to the latter. There is no need to wait for the
canvass of the votes from the 3 municipalities of Sulu and the 15 precincts
in Lanao del Sur, which still remains up to this late day a big question mark
of when and how they will finally get canvassed, assuming their integrity
has been preserved. Candidate Juan Ponce Enrile is therefore entitled to
proclamation as the 24th senator-elect in the May 11, 1987 elections.
Enrile's petition against Rasul has been rendered moot.
ACCORDINGLY, the Petition in G.R. No. 79212 (Juan Ponce Enrile v.
Commission on Election and Augusto Sanchez) is hereby GRANTED and the
decision of respondent Commission on Elections promulgated on July 30,
1987 granting Sanchez' petition for recount is hereby SET ASIDE. The
respondent Comelec is hereby ordered to proclaim petitioner Juan Ponce
Enrile as a duly elected senator in the May 11, 1987 elections. The
petitions in G.R. No. 78461 (Augusto S. Sanchez v. Commission on Election)
and G.R. No. 79146 (Juan Ponce Enrile v. Commission on Elections and
Santanina T. Rasul) are both DISMISSED. This decision shall be
IMMEDIATELY EXECUTORY upon its promulgation.
Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin and Cortes, JJ., concur.
Melencio-Herrera, J., is on leave.
GRIO-AQUINO, J.:
This petition for certiorari seeks the nullification of the (1) resolution 1 of
the Commission on Elections dated August 2, 1990, and (2)
resolution 2 dated March 7, 1990 issued by Judge Santiago Estrella
dismissing the election protest filed by the petitioners against the private
respondents, Atty. Pedro N. Sales. Engr. Wilfredo E. Soriano, Erlinda C.
Tambaoan, Engr. Emilio M. Angeles, Jr., Eleuterio C. Sison, Manuel Ferrer
and Santos Sibayan.
The seven (7) petitioners, Ramon Veloria, Renato Espejo, Jesus Bandolin,
Segundo Billote, Geronimo Enriquez, Rodolfo Madriaga and Sofronio
Mangonon, as well as the seven (7) private respondents, Pedro Sales,
Wilfredo Soriano, Erlinda Tambaoan, Emilio Angeles, Jr., Eleuterio Sison,
Manuel Ferrer and Santos Sibayan were candidates for municipal mayor
(Veloria and Sales), vice-mayor (Espejo and Soriano) and members of the
Sangguniang Bayan of Manaoag, Pangasinan, in the local elections of
January 18, 1988.
After the canvass of the election returns on January 31, 1988, the private
respondents were proclaimed duly elected to the positions they ran for.
Dissatisfied, the petitioners filed Election Protest No. U-4659 which was
raffled to Branch 48 of the Regional Trial Court of Urdaneta, Pangasinan,
then presided over by the late Hon. Alfredo de Vera.
Several proceedings were had, and some issues were brought up to the
Court of Appeals and this Court for determination.
Finally, the revision of ballots was set on February 26, 1990 by Judge
Santiago Estrella, Presiding Judge of Branch 49, Regional Trial Court of
Urdaneta, Pangasinan, where the Election Protest No. U-4659 was reassigned by raffle after Judge Vera's untimely death.
On February 26, 1990, during the scheduled initial revision of the ballots in
Precinct No. 22, Barangay Licsi, the private respondents, as protestees,
filed a "Motion to Dismiss" on the ground that the RTC had not acquired
jurisdiction over the election protest on account of the following:
(1) that the election protest involves the contests over
three (3) different Municipal Offices joined together in one
(1) single petition namely: the Office of Municipal Mayor,
the Office of Vice Mayor, and the Offices of the
Sangguniang Bayan, in wanton violation and clear
disregard of the specific and mandatory provisions of
Section 2, Rule 35, Part VI of the COMELEC RULES OF
PROCEDURE, and/or Section 2, Rule II of Comelec
Resolution No. 1451 (Procedural Rules for Election
Contests);
(2) that the Election Protest was verified by only four (4) of
the seven (7) protestants in violation of Section 6, Rule 35,
Part VI of the COMELEC RULES OF PROCEDURE, and/or
Section 3, Rule II of Comelec Resolution No. 1451; and
(3) that there is no showing that the protestants paid the
requisite filing fees and legal research fees for each
interest, also in violation of Section 9, Rule 35, Part VI of
the COMELEC RULES OF PROCEDURE, and/or Section 6,
Rule IV of the Procedural Rules for Election Contests.
On March 5, 1990, the private respondents filed a Supplemental Motion to
Dismiss, alleging as additional ground for the dismissal of the protest that:
from
Hence, this special civil action of Certiorari and Prohibition with prayer for a
writ of preliminary injunction and/or temporary restraining order, filed on
August 31, 1990 by the petitioners (protestants below), pursuant to Rule
39, Section 1, COMELEC RULES OF PROCEDURE (on Review of decisions of
the COMELEC) attacking:
The above COMELEC rule implements Section 256 of the Omnibus Election
Code quoted below:
Sec. 256. Appeals. Appeals from any decision rendered
by the regional trial court under Section 251 and paragraph
two,
Section
253
hereof
with
respect
to quowarranto petitions filed in election contests affecting
municipal officers, the aggrieved party may appeal to the
Intermediate Appellate Court [now Commission on
Elections] within five days after receipt of a copy of the
decision. No
motion
for reconsideration
shall
be
entertained by the Court. The appeal shall be decided
within sixty days after the case has been submitted for
decision. (Emphasis supplied.)
Petitioners admitted receipt of the resolution of the trial court dated March
7, 1990 on March 15, 1990 but they filed a notice of appeal on April 3,
1990 only, instead of on or before March 20, 1990 (five days from receipt
of the trial court's decision), because they filed a motion for
reconsideration which, as previously stated, is prohibited by Section 256 of
the Omnibus Election Code and Section 20, Rule 35 of the COMELEC RULES
OF PROCEDURE.
The COMELEC, therefore, correctly ruled that the motion for
reconsideration filed by the petitioners in the trial court on March 20, 1990
did not suspend the period to appeal since a "motion for reconsideration"
is prohibited under Section 256 of the Omnibus Election Code.
Since the right to appeal is not a natural right nor is it a part of due
process, for it is merely a statutory privilege that must be exercised in the
manner and according to procedures laid down by law (Borre vs. Court of
Appeals, 158 SCRA 560), and its timely perfection within the statutory
period is mandatory and jurisdictional (Delgado vs. Republic, 164 SCRA
347; Sembrano vs. Ramirez, 166 SCRA 30; PCI Bank vs. Ortiz, 150 SCRA
380; Quiqui vs. Boncaros, 151 SCRA 416), Judge Abasolo gravely abused
his discretion when he gave due course to the petitioners' tardy appeal
from his predecessor's (Judge Santiago Estrella's) resolution of March 7,
Nevertheless, we must grant this petition for certiorari for the COMELEC
does not possess jurisdiction to grant the private respondents' petition
for certiorari. This Court, through Mme. Justice Ameurfina A. MelencioHerrera, in the consolidated cases of "Garcia, et al. vs. COMELEC, et al."
(G.R. No. 88158)and "Tobon Uy vs. COMELEC and Neyra" (G.R. Nos. 9710809) promulgated on March 4, 1992, ruled that the COMELEC has not been
given, by the Constitution nor by law, jurisdiction to issue writs
of certiorari, prohibition and mandamus:
In the Philippine setting, the authority to issue Writs of
Certiorari, Prohibition and Mandamus involves the exercise
of original jurisdiction. Thus, such authority has always
been expressly conferred, either by the Constitution or by
law. As a matter of fact, the well-settled rule is that
jurisdiction is conferred only by the Constitution or by law.
(Orosa, Jr. vs. Court of Appeals, G.R. Nos. 76828-32, 28
January 1991; Bacalso vs. Ramolete, G.R. No. L-22488, 26
October 1967, 21 SCRA 519). It is never derived by
implication. Indeed, "[w]hile the power to issue the writ
of certiorari is in some instance conferred on all courts by
constitutional or statutory provisions, ordinarily, the
particular courts which have such power are expressly
designated" (J.
Aquino's
Concurring
Opinion
in
Pimentel, supra, citing 14 C.J. S. 202; Emphasis supplied).
Thus, our Courts exercise the power to issue Writs
of Certiorari, Prohibition and Mandamus by virtue of
express constitutional grant or legislative enactments. To
enumerate:
(1) Section 5[l], Article VIII of the 1987 Constitution
conferred upon this Court such jurisdiction;
MAYOR
NOEL
vs.
COMMISSION ON ELECTIONS,
VICTOR IMPERIAL, Respondents.
E.
Second
ROSAL, Petitioner,
Division,
and
MICHAEL
x- - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 172741
MAYOR
NOEL
E.
vs.
COMMISSION
ON
ELECTIONS
and
IMPERIAL, Respondents.
ROSAL, Petitioner,
MICHAEL
VICTOR
DECISION
CORONA, J.:
Petitioner Noel E. Rosal and private respondent Michael Victor C. Imperial
were candidates for mayor of Legaspi City in the May 10, 2004 elections.
After the counting and canvassing of votes, petitioner was proclaimed as
the duly elected mayor of Legaspi City, having received 44,792 votes over
private respondents 33,747 and thereby winning by a margin of 11,045
votes.
On May 24, 2004, private respondent instituted a petition to annul the
proclamation,1 assailing the canvass of election returns in the 520
precincts that had functioned during the election. On July 6, 2004, the case
was superseded by an election protest filed by private respondent with the
Commission on Elections (Comelec) contesting the results of the election in
all 520 precincts on the grounds of miscounting, misreading and
misappreciation of votes, substitute voting, disenfranchisement of voters,
substitution and padding of votes, and other alleged irregularities. The
protest was docketed as EPC No. 2004-61 and raffled to the Second
Division of the Comelec.
After an initial hearing on private respondents protest and petitioners
answer, the Second Division issued on November 17, 2004 an order
directing the collection of the ballot boxes from the contested precincts
and their delivery to the Comelec. On December 16, 2004, private
respondent filed a manifestation2 apprising the Second Division of the fact
that out of the 520 ballot boxes retrieved for delivery to the Comelec, 95
had no plastic seals, 346 had broken plastic seals and only 79 remained
intact with whole plastic seals and padlocks.
Revision of the contested ballots commenced in mid-January of 2005 3 and
concluded on February 2, 2005. The revision report indicated a reduction in
petitioners vote count from 44,792 votes to 39,752 and an increase in that
of private respondent from 22,474 to 39,184 votes. Shortly thereafter,
petitioner filed a "motion for technical examination of contested ballots" on
the ground that thousands of ballots revised by the revision committees
were actually spurious ballots that had been stuffed inside the ballot boxes
sometime after the counting of votes but before the revision proceedings.
The Second Division denied the motion.
After the revision, the case was set for hearing on February 24, 2005. In
that hearing, private respondent manifested that he would no longer
present testimonial evidence and merely asked for time to pre-mark his
documentary evidence. On March 9, 2005, private respondent filed his
formal offer of evidence, thereby resting his case and signaling petitioners
turn to present evidence in his defense.
On March 17, 2005, the first hearing set for the presentation of his
evidence, petitioner was directed to pre-mark his exhibits and formalize his
intention to have his witnesses subpoenaed. Accordingly, petitioner filed
on April 11, 2005 a motion for issuance of subpoena duces tecum and ad
testificandum to witnesses whose testimonies would allegedly prove that a
significant number of the revised ballots were not the same ballots that
had been read and counted by the Board of Election Inspectors (BEI) during
the election.
In an order dated April 25, 2005, 4 the Second Division ruled that the
testimonies of the proposed witnesses were "unnecessary" inasmuch as
the Comelec had the authority and wherewithal to determine by itself the
ballots authenticity and, for that reason, denied the motion and directed
petitioner to file forthwith his formal offer of evidence.
Asserting his right to present evidence in his defense, petitioner filed on
May 6, 2005 a motion for reconsideration of the April 25, 2005 order. In an
order dated May 12, 2005, the Second Division denied the motion.
On June 4, 2005, petitioner filed an Ad Cautela (sic) Offer of Protestees
Evidence5 as a precautionary measure against the foreclosure of his right
to comply with the Second Divisions April 25, 2005 order. Petitioners
Rules of Procedure [which enumerates the cases in which the Comelec may
sit en banc],13 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.14
In fine, Kho tells us that an interlocutory order of a Comelec division should
be challenged at the first instance through a proper motion, such as a
motion for reconsideration, filed with the division that rendered the order. If
that fails and no other plain, speedy and adequate remedy (such as
recourse to the Comelec en banc) is available, the party aggrieved by the
interlocutory order may elevate the matter to the Supreme Court by means
of a petition for certiorari on the ground that the order was issued without
or in excess of jurisdiction or with grave abuse of discretion.
Private respondent asserts, however, that Kho has been superseded by the
more recent case of Repol v. Commission on Elections 15 from which he cites
the dictum that:
[t]he Supreme Court has no power to review via certiorari an interlocutory
order or even a final resolution of a Division of the COMELEC. Failure to
abide by this procedural requirement constitutes a ground for dismissal of
the action.16
Again, we disagree.
There is no contradiction between Kho and Repol that calls for the
application of the doctrine that a later judgment supersedes a prior one in
case of inconsistency. In Repol, the petitioner went directly to the Supreme
Court from an interlocutory order of the Comelec First Division without first
filing a motion for reconsideration with said division. That was properly a
cause for concern inasmuch as failure to move for reconsideration of the
act or order before challenging it through a petition for certiorari often
constitutes a ground for dismissal for non-compliance with the condition in
Rule 65: that resort to certiorari should be justified by the unavailability of
an appeal or any other plain, speedy and adequate remedy in the ordinary
course of law. In the end, however, the Court in Repol applied the ruling
in ABS-CBN Broadcasting Corporation v. COMELEC 17 that an exception to
the procedural requirement of filing a motion for reconsideration was
warranted since there was hardly enough time to move for reconsideration
and obtain a swift resolution in time for the impending elections.
A sensible reading of our decision shows that Repol was not a negation or
repudiation of this Courts jurisdiction over petitions for certiorari from
interlocutory orders rendered by a Comelec division. Had it been so, then
we would have dismissed the petition on the ground that it was beyond our
jurisdiction. Rather, this Court in Repolmerely applied the rule that a
petition for certiorari must be justified by the absence of a plain, speedy
and adequate remedy in the ordinary course of law; we said that the rule
had been satisfied inasmuch as a motion for reconsideration was not a
plain, speedy and adequate remedy under the circumstances.
Repol therefore merely serves as a reminder that, in a petition for certiorari
from an interlocutory order, the petitioner bears the burden of showing
that the remedy of appeal taken after a judgment or final order (as
opposed to an interlocutory one) has been rendered will not afford
adequate and expeditious relief,18 as it is often the better practice for a
party aggrieved by an interlocutory order to continue with the case in due
course and, in the event of an adverse decision, appeal from it and include
the interlocutory order as one of the errors to be corrected by the
reviewing body.
In this instance, petitioner filed a motion for reconsideration of the Second
Divisions order. When that failed, no other speedy and adequate remedy
against the unpardonable vices attending the Second Divisions treatment
of the election protest was left to him except recourse to this Court under
Rule 65. Under the circumstances, he was without the shadow of a doubt
justified in taking it.
Election Protest and Ballots As Evidence
It will be recalled that the Second Division had been apprised of the ballot
boxes impaired condition even prior to the commencement of the revision
proceedings. This notwithstanding, it brushed aside petitioners
protestations that he was the victim of an ingenious post-election fraud
involving infiltration of the ballot boxes and the clever switching of ballots
actually cast with invalid ones to ensure his defeat in the election protest.
The division ruled that:
mere allegations cannot suffice to convince this Commission that switching
of ballots has occurred, absent any positive and direct evidence in the form
of fake ballots themselves being found among genuine ballots. Regardless
of any technical examination that may have been conducted or testimonial
evidence presented, as emphatically moved by the protestee but denied
by the Commission, the best proof of the alleged substitution of ballots is
the ballots themselves. And the process by which this proof is established
The principles of law and the rules of evidence governing cases such as
this have been so often declared that a review of the many authorities is
unnecessary. Those curious or interested in pursuing the subject will find in
the reporter's notes, preceding, many instructive cases collated by the
industry of counsel. Suffice it here to say that, while the ballots are the
best evidence of the manner in which the electors have voted, being silent
witnesses which can neither err nor lie, they are the best evidence only
when their integrity can be satisfactorily established. One who relies,
therefore, upon overcoming the prima facie correctness of the official
canvass by a resort to the ballots must first show that the ballots, as
presented to the court, are intact and genuine. Where a mode of
preservation is enjoined by the statute proof must be made of a substantial
compliance with the requirements of that mode. But such requirements are
construed as directory merely, the object looked to being the preservation
inviolate of the ballots. If this is established it would be manifestly unjust to
reject them merely because the precise mode of reaching it had not been
followed.
So, too, when a substantial compliance with the provisions of the statute
has been shown, the burden of proof shifts to the contestee of establishing
that, notwithstanding this compliance, the ballots have in fact been
tampered with, or that they have been exposed under such circumstances
that a violation of them might have taken place. But this proof is not made
by a naked showing that it was possible for one to have molested them.
The law cannot guard against a mere possibility, and no judgment of any of
its courts is ever rendered upon one.
The probative value of the result of the return made by the board of
inspectors is a question already settled at various times by the courts of
the United States. In the case of Oakes vs. Finlay, the following doctrine
was laid:
"The returns of an election board, when legally and properly authenticated,
are not only conclusive upon the board of canvassing officers, but are also
prima facie evidence of the number of votes cast, in a proceeding to
contest the election; and the burden of proof is upon the person who
assails the correctness of these returns."
In the case of Stafford vs. Sheppard, the court said:
"Certificates of the result of an election, made by the commissioners at the
precincts, are prima facie evidence of the result of the election. The ballots,
if identified as the same cast, are primary and higher evidence; but, in
order to continue the ballots as controlling evidence, it must appear that
they have been preserved in the manner and by the officers prescribed by
the statute, and that, while in such custody, they have not been changed
or tampered with." (internal citations omitted)25
We summarize the foregoing doctrines: (1) the ballots cannot be used to
overturn the official count as reflected in the election returns unless it is
first shown affirmatively that the ballots have been preserved with a care
which precludes the opportunity of tampering and all suspicion of change,
abstraction or substitution; (2) the burden of proving that the integrity of
the ballots has been preserved in such a manner is on the protestant; (3)
where a mode of preserving the ballots is enjoined by law, proof must be
made of such substantial compliance with the requirements of that mode
as would provide assurance that the ballots have been kept inviolate
notwithstanding slight deviations from the precise mode of achieving that
end; (4) it is only when the protestant has shown substantial compliance
with the provisions of law on the preservation of ballots that the burden of
proving actual tampering or the likelihood thereof shifts to the protestee
and (5) only if it appears to the satisfaction of the court or Comelec that
the integrity of the ballots has been preserved should it adopt the result as
shown by the recount and not as reflected in the election returns.
Our election laws are not lacking in provisions for the safekeeping and
preservation of the ballots. Among these are Sections 160, 217, 219 and
220 of the Omnibus Election Code26 which provide:
SECTION 160. Ballot boxes. (a) There shall be in each polling place on
the day of the voting a ballot box one side of which shall be transparent
which shall be set in a manner visible to the voting public containing two
compartments, namely, the compartment for valid ballots which is
indicated by an interior cover painted white and the compartment for
spoiled ballots which is indicated by an interior cover painted red. The
boxes shall be uniform throughout the Philippines and shall be solidly
constructed and shall be closed with three different locks as well as three
numbered security locks and such other safety devices as the Commission
may prescribe in such a way that they can not be opened except by means
of three distinct keys and by destroying such safety devices.
(b) In case of the destruction or disappearance of any ballot box on
election day, the board of election inspectors shall immediately report it to
the city or municipal treasurer who shall furnish another box or receptacle
as equally adequate as possible. The election registrar shall report the
incident and the delivery of a new ballot box by the fastest means of
communication on the same day to the Commission and to the provincial
election supervisor.
protestee to prove that actual tampering took place. If the protestee fails
to discharge this burden, the court or the Comelec, as the case may be,
may proceed on the assumption that the ballots have retained their
integrity and still constitute the best evidence of the election results.
However, where a ballot box is found in such a condition as would raise a
reasonable suspicion that unauthorized persons could have gained
unlawful access to its contents, no evidentiary value can be given to the
ballots in it and the official count reflected in the election return must be
upheld as the better and more reliable account of how and for whom the
electorate voted.
The procedure adopted by the Second Division was a complete inverse of
the one outlined above and was contrary to reason. There was complete
arbitrariness on its part.
First, there was no indication at all that it ever considered the condition of
the ballot boxes at the time they were delivered to the Comelec for
revision. We find this rather puzzling, considering that it had been apprised
of such information even before revision and even its own Rules of
Procedure on election protests requires the revision committee to "make a
statement of the condition in which the ballot boxes and their contents
were found upon the opening of the same"27 in recognition of the vital
significance of such facts.
Second, it placed the burden of proving actual tampering of the ballots on
petitioner herein (the protestee below) notwithstanding private
respondents previous manifestation that most of the ballot boxes bore
"overt signs of tampering"28 and only 79 ballot boxes were found intact.
Third, instead of diligently examining whether the ballot boxes were
preserved with such care as to preclude any reasonable opportunity for
tampering with their contents, the Second Division made the probative
value of the revised ballots dependent solely on whether spurious ballots
were found among them. It failed to recognize that, in view of reports that
the ballot boxes had been tampered with and allegations that their
contents had been switched with genuine but invalid ballots, the question
of whether the revised ballots could be relied on as the same ones cast and
counted during the elections could not obviously be settled by an
examination of the ballots themselves. Clearly, the time when these were
deposited in the ballot boxes a detail of utmost importance could not
possibly have been determined by that means.
These errors on the part of the Second Division were infinitely far from
harmless; the proper legal procedure could have made a substantial
difference in the result of the election protest and most certainly could
have led to a better approximation of the true will of the electorate. This, in
the final analysis, is what election protests are all about.
Under the circumstances, the question as to who between the parties was
duly elected to the office of mayor cannot be settled without further
proceedings in the Comelec. In keeping with the precepts laid down in this
decision, the Comelec must first ascertain, after due hearing, whether it
has before it the same ballots cast and counted in the elections. For this
purpose, it must determine: (1) which ballot boxes sufficiently retained
their integrity as to justify the conclusion that the ballots contained therein
could be relied on as better evidence than the election returns and (2)
which ballot boxes were in such a condition as would afford a reasonable
opportunity for unauthorized persons to gain unlawful access to their
contents. In the latter case, the ballots must be held to have lost all
probative value and cannot be used to set aside the official count reflected
in the election returns.
WHEREFORE, the petitions are GRANTED. The April 25 and May 12, 2005
orders and the January 23, 2006 resolution of the Commission on Elections
Second Division and the May 29, 2006 resolution of the Commission on
Elections en banc in EPC No. 2004-61 are hereby declared null and void.
The Commission on Elections is hereby DIRECTED to determine, with
utmost dispatch and all due regard for the parties right to be heard, the
true result of the 2004 elections for mayor of Legaspi City. To this end, it
shall:
(1) identify the precincts the ballot boxes of which were found
intact with complete and undamaged seals and padlocks or were
otherwise preserved with such substantial compliance with
statutory safety measures as to preclude a reasonable opportunity
for tampering with their contents. The ballots from these precincts
shall be deemed to have retained their integrity in the absence of
evidence to the contrary and the Commission on Elections may
consider them in the recount.
(2) ascertain the precincts the ballot boxes of which were found in
such a condition as would afford a reasonable opportunity for
unlawful access to their contents. The Commission on Elections
shall exclude from the recount the ballots from these precincts and
shall rely instead on the official count stated in the election returns.
The status quo ante order issued by this Court on June 7, 2006 is, for all
intents and purposes consistent with this decision, hereby MAINTAINED.
SO ORDERED.
CRUZ, J.:
Petitioner Juan G. Frivaldo was proclaimed governor-elect of the province of
Sorsogon on January 22, 1988, and assumed office in due time. On October
27, 1988, the League of Municipalities, Sorsogon Chapter (hereafter,
League), represented by its President, Salvador Estuye, who was also suing
in his personal capacity, filed with the Commission on Elections a petition
for the annulment of Frivaldo; election and proclamation on the ground
that he was not a Filipino citizen, having been naturalized in the United
States on January 20, 1983. In his answer dated May 22, 1988, Frivaldo
admitted that he was naturalized in the United States as alleged but
pleaded the special and affirmative defenses that he had sought American
citizenship only to protect himself against President Marcos. His
naturalization, he said, was "merely forced upon himself as a means of
survival against the unrelenting persecution by the Martial Law Dictator's
agents abroad." He added that he had returned to the Philippines after the
EDSA revolution to help in the restoration of democracy. He also argued
that the challenge to his title should be dismissed, being in reality a quo
warranto petition that should have been filed within ten days from his
proclamation, in accordance with Section 253 of the Omnibus Election
Code. The League, moreover, was not a proper party because it was not a
voter and so could not sue under the said section.
Frivaldo moved for a preliminary hearing on his affirmative defenses but
the respondent Commission on Elections decided instead by its Order of
January 20, 1988, to set the case for hearing on the merits. His motion for
reconsideration was denied in another Order dated February 21, 1988. He
then came to this Court in a petition for certiorari and prohibition to ask
that the said orders be set aside on the ground that they had been
Considering the importance and urgency of the question herein raised, the
Court has decided to resolve it directly instead of allowing the normal
circuitous route that will after all eventually end with this Court, albeit only
after a, long delay. We cannot permit this delay. Such delay will be inimical
to the public interest and the vital principles of public office to be here
applied.
OFFICE
OF
THE
UNITED
STATES
DISTRICT
NORTHERN DISTRICT OF CALIFORNIA
It is true that the Commission on Elections has the primary jurisdiction over
this question as the sole judge of all contests relating to the election,
returns and qualifications of the members of the Congress and elective
provincial and city officials. However, the decision on Frivaldo's citizenship
has already been made by the COMELEC through its counsel, the Solicitor
General, who categorically claims that Frivaldo is a foreigner. We assume
this stance was taken by him after consultation with the public respondent
and with its approval. It therefore represents the decision of the COMELEC
itself that we may now review. Exercising our discretion to interpret the
Rules of Court and the Constitution, we shall consider the present petition
as having been filed in accordance with Article IX-A Section 7, of the
Constitution, to challenge the aforementioned Orders of the COMELEC.
The basic question we must resolve is whether or not Juan G. Frivaldo was
a citizen of the Philippines at the time of his election on January 18, 1988,
as provincial governor of Sorsogon. All the other issues raised in this
petition are merely secondary to this basic question.
WILLIAM L. WHITTAKER
Clerk
The reason for this inquiry is the provision in Article XI, Section 9, of the
Constitution that all public officials and employees owe the State and the
Constitution "allegiance at all times" and the specific requirement in
Section 42 of the Local Government Code that a candidate for local
elective office must be inter alia a citizen of the Philippines and a qualified
voter of the constituency where he is running. Section 117 of the Omnibus
Election Code provides that a qualified voter must be, among other
qualifications, a citizen of the Philippines, this being an indispensable
requirement for suffrage under Article V, Section 1, of the Constitution.
In the certificate of candidacy he filed on November 19, 1987, Frivaldo
described himself as a "natural-born" citizen of the Philippines, omitting
mention of any subsequent loss of such status. The evidence shows,
CLERK
COURT
by:
(Sgd.)
ARACELI V. BAREN
Deputy Clerk
PADILLA, J.:
In this special civil action of certiorari, petitioner assails the Resolution
dated 15 May 1990 of the Commission on Elections (Second Division),
issued SPA No. 90-006 entitled "Nur Hussein Ututalum, petitioner vs.
Benjamin Loong, respondent," a petition to disqualify Benjamin Loong,
candidate for Regional Vice-Governor of the Autonomous Government in
Muslim Mindanao. Said assailed resolution ruled that the respondent
Commission has jurisdiction to hear and decide SPA No. 90-006.
On 15 January 1990, petitioner filed with the respondent Commission his
certificate of candidacy for the position of Vice-Governor of the Mindanao
Autonomous Region in the election held on 17 February 1990 (15 January
1990 being the last day for filing said certificate); herein two (2) private
respondents (Ututalum and Edris) were also candidates for the same
position.
On 5 March 1990 (or 16 days after the election), respondent Ututalum filed
before the respondent Commission (Second Division) a petition (docketed
as SPA Case No. 90-006) seeking to disqualify petitioner for the office of
Regional Vice-Governor, on the ground that the latter made a false
representation in his certificate of candidacy as to his age.
On 7 March 1990, the other candidate, respondent Edris, filed a "Petition in
Intervention" in the said SPA No. 90-006, raising therein issues similar to
those raised by respondent Ututalum in his main petition.
On 19 March 1990, 1 petitioner Loong filed in SPA No. 90-006 his answer to
the petition, seeking the dismissal of the petition, and alleging the
following:
1. that it has not been the practice among the Muslim
people in the community where respondent was born to
record the birth of a child with the Office of the Civil
The undisputed facts are as follows: petitioner Loong filed his certificate of
candidacy on 15 January 1990 (The last day for filing the same), the
election for officials of the Muslim Mindanao Autonomous Region being
on 17 February 1990; but private respondent Ututalum filed the petition
(SPA 90-006) to disqualify candidate Loong only on 5 March 1990, or fortynine (49) days from the date Loong's certificate of candidacy was filed (i.e.
15 January 1990), and sixteen (16) days after the election itself.
Petitioner Loong contends that SPA No. 90-006 was filed out of time
because it was filed beyond the 25-day period prescribed by Section 78 of
the Omnibus Election Code. On the other hand, private respondent
Ututalum alleges that SPA No. 90-006, though filed only on 5 March 1990,
was filed when no proclamation of winner had as yet been made and that
the petition is deemed filed on time as Section 3, Rule 25 of the Comelec
Rules of Procedure states that the petition to disqualify a candidate on
grounds of ineligibility "shall be filed any day after the last day for filing of
certificates of candidacy but not later than the date of proclamation."
Clearly, SPA No. 90-006 was filed beyond the 25-day period prescribed by
Section 78 of the Omnibus Election Code.
We do not agree with private respondent Ututalum's contention that the
petition for disqualification, as in the case at bar, may be filed at any time
after the last day for filing a certificate of candidacy but not later than the
date of proclamation, applying Section 3, Rule 25 of the Comelec Rules of
Procedures.
Rule 25 of the Comelec Rules of Procedure refers to Disqualification of
Candidates; and Section 1 of said rule provides that any candidate who
commits any act declared by law to be a ground for disqualification may be
disqualified from continuing as a candidate. The grounds for
disqualification as expressed in Sections 12 and 68 of the Code are the
following:
SEC. 12. Disqualification. Any person who has been
declared by competent authority insane or incompetent, or
has been sentenced by final judgment for subversion,
insurrection, rebellion or for any offense for which he was
sentenced to a penalty of more than eighteen months or
for a crime involving moral turpitude, shall be disqualified
to be a candidate and to hold any office, unless he has
been given plenary pardon or granted amnesty.
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 official performing electoral functions; (b) committed
acts of terrorism to enhance his candidacy; (c) spent in his
election compaign an amount in excess of that allowed by
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 foreign country
shall not be qualified to run for any elective office under
this Code, unless said or immigrant of a foreign country in
accordance with the residence requirement provided for in
the election law.
At the same time, it can not be denied that it is the purpose and intent of
the legislative branch of the government to fix a definite time within which
petitions of protests related to eligibility of candidates for elective offices
must be filed, 10 as seen in Section 78 and 253 of the Code. Respondent
Commission may have seen the need to remedy this so-called "procedural
gap", but it is not for it to prescribed what the law does not provide, its
function not being legislative. The question of whether the time to file
these petitions or protests is too short or ineffective is one for the
Legislature to decide and remedy.
We are aware that in Frivaldo vs. Comelec, 11 this Court held that a petition
to disqualify an elective official, on the ground that he is not a Filipino
citizen, may be file at anytime, even beyond the period prescribed by law,
and office and in fact had long been discharging the duties of said office.
But we disagree with respondent Commission that the Frivaldoruling
applied to the case at bar in all its connotations and implications. For one,
the ground for which disqualification is sought in the present case is
misrepresentation as to the required age of the candidate, whereas,
in Frivaldo the ground for disqualification was lack of Philippine
citizenship. This is an overriding and fundamental desideratum matched
perhaps only by disloyalty to the Republic of the Philippines.
Mr. Justice Gutierrez, Jr., in his concurring opinion in Frivaldo vs.
Comelec 12 said:
It is an established rule of long standing that the period
fixed by law for the filing of a protest whether quo
warranto or election contest is mandatory and
jurisdictional.
As a rule, the quo warranto petition seeking to annul the
petitioner's election and proclamation should have been
filed within ten days after the proclamation of election
results. The purpose of the law in not allowing the filing of
protests beyond the period fixed by law is to have a certain
and definite time within which petitions against the results
of an election should be filed and to provide summary
proceedings for the settlement of such disputes.
xxx xxx xxx
I must emphasize, however, that my concurrence is limited
to a clear case of an alien holding an elective public office.
PUNO, J.:
This is a petition for certiorari and mandamus under Rule 65 of the Revised
Rules of Court to annul and set aside the orders dated September 23, 1993
and January 25, 1994 of respondent Judge Wilfredo D. Reyes, Regional Trial
Court, Branch 36, Manila in Criminal Case No. 93-120275.
The facts reveal that respondent Buenaventura C. Maniego, Collector of
Customs, Collection District II, Bureau of Customs, Manila International
Container Port (MICP), issued MICP Customs Personnel Order No. 21-92
dated January 10, 1992 assigning Jovencio D. Ebio, Customs Operation
Chief, MICP to the Office of the Deputy Collector of Customs for Operations
as Special Assistant. 1 The actual transfer of Ebio was made on January 14,
1992.
On May 4, 1992, Ebio filed with the Commission on Elections (COMELEC) a
letter-complaint protesting his transfer. Ebio claimed that his new
assignment violated COMELEC Resolution No. 2333 and section 261 (h) of
B.P. Blg. 881, the Omnibus Election Code, which prohibit the transfer of any
employee in the civil service 120 days before the May 11, 1992
synchronized national and local elections.
twenty (120) days before the scheduled elections and thirty (30) days
thereafter. It issued Resolution No. 2314 on September 23, 1991 primarily
adopting therein a calendar of activities. In the process, it designated
January 12, 1992 to June 10, 1992 as the election period, viz.:
Date/Period Activities
November 28, 1991 Start of the period of nomination and
selection of official candidates for President, Vice-President and
Senators (165 days, SEC. 6, R.A.7166)
January 2, 1992 Last day for appointment of members of boards
of election inspectors (Sec.164, OEC) (Subject to appointments
which may be extended later in account of lack of public school
teachers and disqualifications due to relationship to candidates.)
January 12, 1992 ELECTION PERIOD (120 (Sunday) todays, per
Res.
No.
____
)
June 10, 1992 Bans on carrying of firearms Wednesday suspension
of elective local officials, organization of strike forces, etc. (Sec.
261,
OEC) 6
xxx xxx xxx
On January 2, 1992, the COMELEC promulgated Resolution No. 2328 for the
sole and specific purpose of fixing for the said elections the election period
from January 12, 1992 to June 10, 1992. 7 This Resolution was published in
the January 5, 1992 issue of the Manila Times and the January 6, 1992
issue of the Philippine Times Journal. 8
On January 2, 1992, the COMELEC also passed Resolution No. 2333 which
promulgated the necessary rules to enforce Section 261 of B.P. Blg. 881.
We quote its pertinent portions:
MELENCIO-HERRERA, J.:
On April 24,1972, the COMELEC filed four (4) criminal Complaints against
one Eden Asuncion for election offenses committed on Election Day,
November 8,1971, at around 10:00 A.M., at Polling Precinct No. 58, Laoag
City. The four (4) cases were filed with said court for preliminary
investigation pursuant to Sections 234 and 236 of the Election Code of
1971 (Republic Act No. 6388. 1
GAUDENCIO
M.
vs.
COMMISSION
ON
ELECTIONS
TAMBUNTING, Respondents.
and
GUSTAVO
S.
DECISION
CARPIO, J.:
The Case
This is a petition for certiorari and mandamus, with prayer for the issuance
of a temporary restraining order under Rule 65 of the 1997 Rules of Civil
Procedure.
In EO Case No. 05-17, Gaudencio M. Cordora (Cordora) accused Gustavo S.
Tambunting (Tambunting) of an election offense for violating Section 74 in
relation to Section 262 of the Omnibus Election Code. The Commission on
Elections (COMELEC) En Banc dismissed Cordoras complaint in a
Resolution1 dated 18 August 2006. The present petition seeks to reverse
the 18 August 2006 Resolution as well as the Resolution 2 dated 20
February 2007 of the COMELEC En Banc which denied Cordoras motion for
reconsideration.
The Facts
Cordora stated that Tambunting was not eligible to run for local public
office because Tambunting lacked the required citizenship and residency
requirements.
To disprove Tambuntings claim of being a natural-born Filipino citizen,
Cordora presented a certification from the Bureau of Immigration which
stated that, in two instances, Tambunting claimed that he is an American:
upon arrival in the Philippines on 16 December 2000 and upon departure
from the Philippines on 17 June 2001. According to Cordora, these travel
dates confirmed that Tambunting acquired American citizenship through
naturalization in Honolulu, Hawaii on 2 December 2000. Cordora
concluded:
That Councilor Gustavo S. Tambunting contrary to the provision of Sec 74
(OEC): [sic] Re: CONTENTS OF CERTIFICATE OF CANDIDACY: which requires
the declarant/affiant to state, among others, under oath, that he is a
Filipino (No. 6), No. 9- residence requirement which he lost when [he
was] naturalized as an American Citizen on December 2, 2000 at [sic]
Honolulu, Hawaii, knowingly and willfully affirmed and reiterated that he
possesses the above basic requirements under No. 12 that he is
indeed eligible for the office to which he seeks to be elected, when
in truth and in fact, the contrary is indubitably established by his own
statementsbefore the Philippine Bureau of Immigration x x x. 4 (Emphases
in the original)
Tambunting, on the other hand, maintained that he did not make any
misrepresentation in his certificates of candidacy. To refute Cordoras claim
that Tambunting is not a natural-born Filipino, Tambunting presented a
copy of his birth certificate which showed that he was born of a Filipino
mother and an American father. Tambunting further denied that he was
naturalized as an American citizen. The certificate of citizenship conferred
by the US government after Tambuntings father petitioned him through
INS Form I-130 (Petition for Relative) merely confirmed Tambuntings
citizenship which he acquired at birth. Tambuntings possession of an
American passport did not mean that Tambunting is not a Filipino citizen.
Tambunting also took an oath of allegiance on 18 November 2003 pursuant
to Republic Act No. 9225 (R.A. No. 9225), or the Citizenship Retention and
Reacquisition Act of 2003.
Tambunting further stated that he has resided in the Philippines since birth.
Tambunting has imbibed the Filipino culture, has spoken the Filipino
The Issue
Cordora submits that the COMELEC acted with grave abuse of discretion
amounting to lack or excess of jurisdiction when it declared that there is no
sufficient evidence to support probable cause that may warrant the
prosecution of Tambunting for an election offense.
Cordoras petition is not an action to disqualify Tambunting because of
Tambuntings failure to meet citizenship and residency requirements.
Neither is the present petition an action to declare Tambunting a nonFilipino and a non-resident. The present petition seeks to prosecute
Tambunting for knowingly making untruthful statements in his certificates
of candidacy.
The Ruling of the Court
The petition has no merit. We affirm the ruling of the COMELEC En Banc.
(3) Those who marry aliens if by the laws of the latters country the
former are considered citizens, unless by their act or omission they
are deemed to have renounced Philippine citizenship.
There may be other situations in which a citizen of the Philippines may,
without performing any act, be also a citizen of another state; but the
above cases are clearly possible given the constitutional provisions on
citizenship.
Dual allegiance, on the other hand, refers to the situation in which a
person simultaneously owes, by some positive act, loyalty to two or more
states. While dual citizenship is involuntary, dual allegiance is the result of
an individuals volition.
xxx
[I]n including 5 in Article IV on citizenship, the concern of the
Constitutional Commission was not with dual citizens per se but with
naturalized citizens who maintain their allegiance to their countries of
origin even after their naturalization. Hence, the phrase "dual citizenship"
in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be understood as
SENATOR PIMENTEL. Well, the very fact that he is running for public office
would, in effect, be an election for him of his desire to be considered a
Filipino citizen.
SENATOR ENRILE. But we are talking from the viewpoint of Philippine law,
Mr. President. He will always have one citizenship, and that is the
citizenship invested upon him or her in the Constitution of the Republic.
SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41,
page 17: "Any person with dual citizenship" is disqualified to run for any
elective local position. Under the present Constitution, Mr. President,
someone whose mother is a citizen of the Philippines but his father is a
foreigner is a natural-born citizen of the Republic. There is no requirement
that such a natural-born citizen, upon reaching the age of majority, must
elect or give up Philippine citizenship.
On the assumption that this person would carry two passports, one
belonging to the country of his or her father and one belonging to the
Republic of the Philippines, may such a situation disqualify the person to
run for a local government position?
SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the
moment when he would want to run for public office, he has to repudiate
one of his citizenships.
SENATOR ENRILE. Suppose he carries only a Philippine passport but the
country of origin or the country of the father claims that person,
nevertheless, as a citizen,? No one can renounce. There are such countries
in the world.1avvphi1
SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not
require an election. Under the Constitution, a person whose mother is a
citizen of the Philippines is, at birth, a citizen without any overt act to claim
the citizenship.
SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the
Gentlemans example, if he does not renounce his other citizenship, then
he is opening himself to question. So, if he is really interested to run, the
first thing he should do is to say in the Certificate of Candidacy that: "I am
a Filipino citizen, and I have only one citizenship."
R.A. No. 9225, or the Citizenship Retention and Reacquisition Act of 2003,
was enacted years after the promulgation of Manzano and Valles. The oath
found in Section 3 of R.A. No. 9225 reads as follows:
of the charge filed against him. Tambunting is eligible for the office which
he sought to be elected and fulfilled the citizenship and residency
requirements prescribed by law.
I __________ , solemnly swear (or affirm) that I will support and defend the
Constitution of the Republic of the Philippines and obey the laws and legal
orders promulgated by the duly constituted authorities of the Philippines;
and I hereby declare that I recognize and accept the supreme authority of
the Philippines and will maintain true faith and allegiance thereto; and that
I impose this obligation upon myself voluntarily without mental reservation
or purpose of evasion.
In Sections 2 and 3 of R.A. No. 9225, the framers were not concerned with
dual citizenship per se, but with the status of naturalized citizens who
maintain their allegiance to their countries of origin even after their
naturalization.12 Section 5(3) of R.A. No. 9225 states that naturalized
citizens who reacquire Filipino citizenship and desire to run for elective
public office in the Philippines shall "meet the qualifications for holding
such public office as required by the Constitution and existing laws and, at
the time of filing the certificate of candidacy, make a personal and sworn
renunciation of any and all foreign citizenship before any public officer
authorized to administer an oath" aside from the oath of allegiance
prescribed in Section 3 of R.A. No. 9225. The twin requirements of swearing
to an Oath of Allegiance and executing a Renunciation of Foreign
Citizenship served as the bases for our recent rulings in Jacot v. Dal and
COMELEC,13 Velasco v. COMELEC,14 and Japzon v. COMELEC,15 all of which
involve natural-born Filipinos who later became naturalized citizens of
another country and thereafter ran for elective office in the Philippines. In
the present case, Tambunting, a natural-born Filipino, did not subsequently
become a naturalized citizen of another country. Hence, the twin
requirements in R.A. No. 9225 do not apply to him.
Tambuntings residency
Cordora concluded that Tambunting failed to meet the residency
requirement because of Tambuntings naturalization as an American.
Cordoras reasoning fails because Tambunting is not a naturalized
American. Moreover, residency, for the purpose of election laws, includes
the twin elements of the fact of residing in a fixed place and the intention
to return there permanently,16 and is not dependent upon citizenship.
In view of the above, we hold that Cordora failed to establish that
Tambunting indeed willfully made false entries in his certificates of
candidacy. On the contrary, Tambunting sufficiently proved his innocence
SO ORDERED.
petitioner Navarosa. The trial court also ordered petitioner Navarosa to pay
respondent Esto actual damages and attorneys fees. The dispositive
portion of the decision provides:
WHEREFORE, judgment is hereby rendered:
a) Declaring the Proclamation of xxx protestee [Navarosa] as the
duly elected Mayor of Libacao, Aklan and the Certificate of
Canvass of Votes and the Proclamation of the Winning
Candidates for Municipal Offices, dated May 17, 2001, as
null and void;
b) Declaring the protestant, Roger M. Esto, as the duly elected
Municipal Mayor of Libacao, Aklan in the May 14, 2001
election;
c) Ordering the protestee [Navarosa] to pay the sum
of P14,215.00 as actual and compensatory damages, and
the amount of P50,000.00 as and for attorneys fees, plus
the cost of suit.[4]
Petitioner Navarosa appealed the trial courts ruling to the COMELEC
(EAC Case No. A-9-2002). Respondent Esto, on the other hand, filed with
the trial court a motion for execution of the judgment pending petitioner
Navarosas appeal. Petitioner Navarosa opposed respondent Estos motion.
In the alternative, petitioner Navarosa offered to file a supersedeas bond to
stay execution pending appeal, should the trial court grant respondent
Estos motion.
In its Order of 22 March 2002 (Order), the trial court granted
respondent Estos motion subject to the filing of a P300,000 bond. However,
in the same order, the trial court also granted petitioner Navarosas prayer
to stay the execution pending appeal, upon filing a P600,000 supersedeas
bond. The Order reads:
The Supreme Court has explicitly recognized and given approval to
execution of judgments pending appeal in election cases, filed under
existing election laws. In these cases, the immediate execution was made
in accordance with Sec. 2, Rule 39 of the Rules of Court (Ramas et al. vs.
COMELEC, et al., G.R. No. 130831, 2/10/98). There is, therefore, no
question now that execution pending appeal may be granted.
xxx
[T]he grant of execution would give substance and meaning to the peoples
mandate specially since the court has established protestants right to the
office (Lindo vs. COMELEC cited in the Ramas case); more than 10 months
or nearly 1/3 of the 3-year term for Mayor had already lapsed (Gutierrez vs.
COMELEC, G.R. 126298, 3-25-97; Tobon Uy vs. COMELEC also cited in the
Ramas case). These are two good reasons to justify execution of the
decision pending appeal.
[P]rotestee [Navarosa] however, prays in the alternative, that should
execution pending appeal be granted, the same be stayed upon his [sic]
filing of supersedeas bond to be fixed by the court under Sec. 3, Rule 39,
1997 Rules of Civil Procedure.
Unlike Sec. 2, Rule 39 where the grant of execution pending appeal is
conditioned upon the presence of the good and valid reason for its grant,
Sec. 3, Rule 39 does not provide for any condition precedent before the
discretionary execution of Rule 2 may be stayed. All that it requires is that
a sufficient supersedeas bond must be approved by the court conditioned
upon the performance of the judgment allowed to be executed in case it
shall be finally sustained in whole or in part. Under this section, therefore,
the filing of a supersedeas bond sufficient in amount is enough to stay the
execution granted under Sec. 2.
Moreover, the margin of 42 votes in the instant case is not so big,
overwhelming or insurmountable as to be practically beyond or improbable
of being overturned by the higher courts. xxx
WHEREFORE, in view of the foregoing[,] the court finds that the protestant,
Roger M. Esto is entitled to the execution of the decision dated March 4,
2002, pending appeal, upon the filing of a bond which covers the salary
and emoluments of the office of the Municipal Mayor of Libacao, Aklan and
or the payment of all damages in the amount of P300,000.00, Philippine
Currency, in cash, surety bond or real property with assessed value in said
amount to be filed on or before April 3, 2002, furnishing copy thereof to the
protestee or his duly authorized representative.
courts jurisdiction before the COMELEC and eventually before this Court. In
contrast, in the instant case, petitioner Navarosa did not raise the
incomplete payment of the COMELEC filing fee in a motion to dismiss.
Consequently, the trial court proceeded with the revision of the contested
ballots and subsequently rendered judgment on the election
protest. Petitioner Navarosa raised for the first time the incomplete
payment of the COMELEC filing fee in her memorandum before the
COMELEC Second Division.
Thus, estoppel has set in precluding petitioner Navarosa from
questioning the incomplete payment of the COMELEC filing fee, and in
effect assailing the exercise of jurisdiction by the trial court over the
election protest. The law vests in the trial court jurisdiction over election
protests although the exercise of such jurisdiction requires the payment of
docket and filing fees by the party invoking the trial courts jurisdiction.
[20]
Estoppel now prevents petitioner Navarosa from questioning the trial
courts exercise of such jurisdiction, which the law and not any act of the
parties has conferred on the trial court. At this stage, the remedy for
respondent Estos incomplete payment is for him to pay the P200
deficiency in the COMELEC filing fee. [21] It is highly unjust to the electorate
of Libacao, Aklan, after the trial court has completed revision of the
contested ballots, to dismiss the election protest and forever foreclose the
determination of the true winner of the election for a mere P200 deficiency
in the COMELEC filing fee. We repeat that:
[E]lection contests involve public interest, and technicalities and
procedural barriers should not be allowed to stand if they constitute an
obstacle to the determination of the true will of the electorate in the choice
of their elective officials. And also settled is the rule that 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. In an election case the court has an imperative duty
to ascertain by all means within its command who is the real candidate
elected by the electorate.[22]
Good Reasons Exist to Grant Execution
Pending Appeal in this Case
To grant execution pending appeal in election protest cases, the
following requisites must concur: (1) there must be a motion by the
prevailing party with notice to the adverse party; (2) there must be good
reasons for the execution pending appeal; and (3) the order granting
execution pending appeal must state the good reasons. [23] Petitioner
Navarosa concedes respondent Estos compliance with the first and third
requisites. What she contests is the trial courts finding that there are good
reasons to order discretionary execution of its decision.
In Ramas v. Commission on Elections,[24] the Court, after reviewing
pertinent jurisprudence, summarized the circumstances qualifying as good
reasons justifying execution pending appeal, thus:
In a nutshell, the following constitute good reasons, and a combination of
two or more of them will suffice to grant execution pending appeal: (1) the
public interest involved or the will of the electorate; (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 trial court in the present case, relying on cases [25] reviewed
in Ramas, invoked two good reasons to justify its order allowing execution
pending appeal. First, the order will give substance and meaning to the
peoples mandate. Second, more than 10 months or nearly 1/3 of the 3year term of the office in question had already lapsed. The COMELEC found
these good reasons sufficient. Being consistent with Ramas, we find no
grave abuse of discretion in the ruling of the trial court or of the COMELEC.
Petitioner Navarosas invocation of Camlian v. Commission on
Elections[26] is unavailing. In Camlian, the COMELEC ruled that
circumstances such as public interest in the true outcome of the
elections[;] that the protestee illegally manufactured votes[;] and that the
appeal was interposed for delay do not suffice to justify execution pending
appeal. On appeal, we sustained the COMELEC, noting that not every
invocation of public interest with x x x 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. The Court
further pointed out that the protestant failed to substantiate his claim that
the appeal is dilatory as it in fact assails the trial courts ruling. These
circumstances
are
absent
in
the
present
case,
precluding Camlians application.
Section 3 of Rule 39 Not Applicable
To Election Protest Cases
Unlike the Election Code of 1971, [27] which expressly provided for
execution pending appeal of trial courts rulings in election protests, the
present election laws are silent on such remedy. Nevertheless, Section 2,
The Omnibus Election Code of the Philippines (B.P. Blg. 881) and the other
election laws do not specifically provide for execution pending appeal of
judgment in election cases, unlike the Election Code of 1971 whose Section
218 made express reference to the Rules of Court on execution pending
appeal; xxx
xxx [T]his innovative provision is the product of the bad experience of the
people under the previous election laws. Public policy underlies it. xxx
[S]omething 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 render
nugatory the peoples verdict against them and persist in continuing in an
office they very well know they have no legitimate right to hold. xxx [T]o
uphold the theory of Protestee that the very nature of the matter in dispute
in election contests, the holding of a public office and the performance of
its functions, makes gravely doubtful the propriety of an execution pending
appeal, what with the possible placing of the corresponding powers of
government in the hands of one who might ultimately turn out not to be
really entitled to the position, is to negate the unquestionable and patent
intent of the legislature to give as much recognition to the worth of a trial
judges decision as that which is initially ascribed by the law to the
proclamation by the board of canvassers. Why should the proclamation by
the board of canvassers suffice as basis of the right to assume office,
subject to future contingencies attendant to a protest, and not the decision
of a court of justice? Indeed, when it is considered that the board of
canvassers is composed of persons who are less technically prepared to
make an accurate appreciation of the ballots, apart from their being more
apt to yield extraneous considerations, that the board must act summarily,
practically [racing] against time, while, on the other hand, the judge has
the benefit of all the evidence the parties can offer and of admittedly
better technical preparation and background, apart from his being allowed
ample time for conscientious study and mature deliberation before
rendering judgment, one cannot but perceive the wisdom of allowing the
immediate execution of decisions in election cases adverse to the
protestees, notwithstanding the perfection and pendency of appeals
therefrom, as long as there are, in the sound discretion of the court, good
reasons therefor. (Emphasis supplied)
The failure of the extant election laws to reproduce Section 218 of the
Election Code of 1971 does not mean that execution of judgment pending
appeal is no longer available in election cases. In election contests
involving elective municipal officials, which are cognizable by courts of
general jurisdiction; and those involving elective barangay officials, which
are cognizable by courts of limited jurisdiction, execution of judgment
pending appeal under Section 2 of Rule 39 of the Rules of Court are
permissible pursuant to Rule 143 of the Rules of Court, which is now
Section 4, Rule 1 of the 1997 Rules of Civil Procedure. This Section 4
provides:
SEC 4. In what cases not applicable.- These Rules shall not apply to
election cases, land registration, cadastral, naturalization and insolvency
proceedings, and other cases not herein provided for, except by analogy or
in a suppletory character and whenever practicable and convenient.
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. [28]