EN BANC

[G.R. No. 162777. August 31, 2004]

FRANCISCO I. CHAVEZ, petitioner, vs. COMMISSION ON ELECTIONS, represented by its
Chairman, BENJAMIN S. ABALOS, ESMERALDA AMORA-LADRA, in her capacity
as Acting Director IV, National Capital Judicial Region, Commission on Elections,
and the SOLICITOR GENERAL, respondents.
DECISION
AZCUNA, J.:
In this petition for prohibition with prayer for the issuance of a writ of preliminary injunction,
Francisco I. Chavez stands as a taxpayer and a citizen asking this Court to enjoin the
Commission on Elections (COMELEC) from enforcing Section 32 of its Resolution No. 6520,
dated January 6, 2004. The assailed provision is, as follows:
Section 32. All propaganda materials such as posters, streamers, stickers or paintings on walls
and other materials showing the picture, image, or name of a person, and all advertisements on
print, in radio or on television showing the image or mentioning the name of a person, who
subsequent to the placement or display thereof becomes a candidate for public office shall be
immediately removed by said candidate and radio station, print media or television station within
3 days after the effectivity of these implementing rules; otherwise, he and said radio station,
print media or television station shall be presumed to have conducted premature campaigning in
violation of Section 80 of the Omnibus Election Code.
Petitioner Chavez, on various dates, entered into formal agreements with certain
establishments to endorse their products. On August 18, 2003, he authorized a certain Andrew
So to use his name and image for 96 North, a clothing company. Petitioner also signed
Endorsement Agreements with Konka International Plastics Manufacturing Corporation and
another corporation involved in the amusement and video games business, G-Box. These last
two agreements were entered into on October 14, 2003 and November 10, 2003,
respectively. Pursuant to these agreements, three billboards were set up along the Balintawak
Interchange of the North Expressway. One billboard showed petitioner promoting the plastic
products of Konka International Plastics Manufacturing Corporation, and the other two showed
petitioner endorsing the clothes of 96 North. One more billboard was set up along Roxas
Boulevard showing petitioner promoting the game and amusement parlors of G-Box.
On December 30, 2003, however, petitioner filed his certificate of candidacy for the position
of Senator under Alyansa ng Pag-asa, a tripartite alliance of three political parties: PROMDI,
REPORMA, and Aksyon Demokratiko.
On January 6, 2004, respondent COMELEC issued Resolution No. 6520, which contained
Section 32, the provision assailed herein. On January 21, 2004, petitioner was directed to
comply with the said provision by the COMELECs Law Department. He replied, on January 29,

2004, by requesting the COMELEC that he be informed as to how he may have violated
assailed provision. He sent another letter dated February 23, 2004, this time asking
COMELEC that he be exempted from the application of Section 32, considering that
billboards adverted to are mere product endorsements and cannot be construed
paraphernalia for premature campaigning under the rules.

the
the
the
as

The COMELEC answered petitioners request by issuing another letter, dated February 27,
2004, wherein it ordered him to remove or cause the removal of the billboards, or to cover them
from public view pending the approval of his request.
Feeling aggrieved, petitioner Chavez asks this Court that the COMELEC be enjoined from
enforcing the assailed provision. He urges this Court to declare the assailed provision
unconstitutional as the same is allegedly (1) a gross violation of the non-impairment clause; (2)
an invalid exercise of police power; (3) in the nature of an ex-post facto law; (4) contrary to the
Fair Elections Act; and (5) invalid due to overbreadth.
Is Section 32 of COMELEC Resolution No. 6520 an invalid exercise of police
power? Petitioner argues that the billboards, while they exhibit his name and image, do not at all
announce his candidacy for any public office nor solicit support for such candidacy from the
electorate. They are, he claims, mere product endorsements and not election
propaganda. Prohibiting, therefore, their exhibition to the public is not within the scope of the
powers of the COMELEC, he concludes.
This Court takes a contrary view. Police power, as an inherent attribute of sovereignty, is
the power to prescribe regulations to promote the health, morals, peace, education, good order,
or safety, and the general welfare of the people. [1] To determine the validity of a police measure,
two questions must be asked: (1) Does the interest of the public in general, as distinguished
from those of a particular class, require the exercise of police power? and (2) Are the means
employed reasonably necessary for the accomplishment of the purpose and not unduly
oppressive upon individuals?
A close examination of the assailed provision reveals that its primary objectives are to
prohibit premature campaigning and to level the playing field for candidates of public office, to
equalize the situation between popular or rich candidates, on one hand, and lesser-known or
poorer candidates, on the other, by preventing the former from enjoying undue advantage in
exposure and publicity on account of their resources and popularity. The latter is a valid reason
for the exercise of police power as held in National Press Club v. COMELEC, [2] wherein the
petitioners questioned the constitutionality of Section 11(b) of Republic Act No. 6646, which
prohibited the sale or donation of print space and air time for campaigning or other political
purposes, except to the COMELEC. The obvious intention of this provision is to equalize, as far
as practicable, the situations of rich and poor candidates by preventing the former from enjoying
the undue advantage offered by huge campaign war chests. This Court ruled therein that this
objective is of special importance and urgency in a country which, like ours, is characterized by
extreme disparity in income distribution between the economic elite and the rest of society, and
by the prevalence of poverty, with so many of our population falling below the poverty line.

Moreover, petitioner cannot claim that the subject billboards are purely product
endorsements and do not announce nor solicit any support for his candidacy. Under the
Omnibus Election Code, election campaign or partisan political activity is defined as an act
designed to promote the election or defeat of a particular candidate or candidates to a public
office. Activities included under this definition are:
(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.
[3]
(underscoring ours)
It is true that when petitioner entered into the contracts or agreements to endorse certain
products, he acted as a private individual and had all the right to lend his name and image to
these products. However, when he filed his certificate of candidacy for Senator, the billboards
featuring his name and image assumed partisan political character because the same indirectly
promoted his candidacy. Therefore, the COMELEC was acting well within its scope of powers
when it required petitioner to discontinue the display of the subject billboards. If the subject
billboards were to be allowed, candidates for public office whose name and image are used to
advertise commercial products would have more opportunity to make themselves known to the
electorate, to the disadvantage of other candidates who do not have the same chance of
lending their faces and names to endorse popular commercial products as image models.
Similarly, an individual intending to run for public office within the next few months, could pay
private corporations to use him as their image model with the intention of familiarizing the public
with his name and image even before the start of the campaign period. This, without a doubt,
would be a circumvention of the rule against premature campaigning:
Sec. 80. Election campaign or partisan political activity outside campaign period. It shall be
unlawful for any person, whether or not a voter or candidate, or for any party, or association of
persons, to engage in an election campaign or partisan political activity except during the
campaign period. x x x [4]
Article IX (C) (4) of the Constitution provides:
Sec. 4. The Commission may, during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities,
media of communication or information, all grants, special privileges, or concessions granted by

the Government or any subdivision, agency, or instrumentality thereof, including any

government-owned or controlled corporation or its subsidiary. Such supervision or regulation
shall aim to ensure equal opportunity, time, and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums among
candidates in connection with the objective of holding free, orderly, honest, peaceful, and
credible elections.
Under the abovementioned Constitutional provision, the COMELEC is expressly authorized
to supervise or regulate the enjoyment or utilization of all media communication or information to
ensure equal opportunity, time, and space. All these are aimed at the holding of free, orderly,
honest, peaceful, and credible elections.
Neither is Section 32 of Resolution No. 6520 a gross violation of the non-impairment
clause. The non-impairment clause of the Constitution must yield to the loftier purposes targeted
by the Government.[5] Equal opportunity to proffer oneself for public office, without regard to the
level of financial resources one may have at his disposal, is indeed of vital interest to the
public. The State has the duty to enact and implement rules to safeguard this interest. Time and
again, this Court has said that contracts affecting public interest contain an implied reservation
of the police power as a postulate of the existing legal order. This power can be activated at
anytime to change the provisions of the contract, or even abrogate it entirely, for the promotion
or protection of the general welfare. Such an act will not militate against the impairment clause,
which is subject to and limited by the paramount police power.[6]
Furthermore, this Court notes that the very contracts entered into by petitioner provide that
the endorsers photograph and image shall be utilized in whatever form, mode and manner in
keeping with norms of decency, reasonableness, morals and law;[7] and in whatever form, mode
and manner not contrary to law and norms of decency,[8] and in whatever form, mode and
manner in keeping with norms of decency, reasonableness, morals and law.[9]
Petitioner also claims that Section 32 of Resolution No. 6520 is in the nature of an ex post
facto law. He urges this Court to believe that the assailed provision makes an individual
criminally liable for an election offense for not removing such advertisement, even if at the time
the said advertisement was exhibited, the same was clearly legal. Hence, it makes a person,
whose name or image is featured in any such advertisement, liable for premature campaigning
under the Omnibus Election Code.[10] A close scrutiny of this rationale, however, demonstrates
its lack of persuasiveness. Section 32, although not penal in nature, defines an offense and
prescribes a penalty for said offense. Laws of this nature must operate prospectively, except
when they are favorable to the accused. It should be noted, however, that the offense defined in
the assailed provision is not the putting up ofpropaganda materials such as posters, streamers,
stickers or paintings on walls and other materials showing the picture, image or name of a
person, and all advertisements on print, in radio or on television showing the image or
mentioning the name of a person, who subsequent to the placement or display thereof becomes
a candidate for public office. Nor does it prohibit or consider an offense the entering of
contracts for such propaganda materials by an individual who subsequently becomes a
candidate for public office. One definitely does not commit an offense by entering into a contract
with private parties to use his name and image to endorse certain products prior to his
becoming a candidate for public office. The offense, as expressly prescribed in the assailed

provision, is the non-removal of the described propaganda materials three (3) days after the
effectivity of COMELEC Resolution No. 6520. If the candidate for public office fails to remove
such propaganda materials after the given period, he shall be liable under Section 80 of the
Omnibus Election Code for premature campaigning. Indeed, nowhere is it indicated in the
assailed provision that it shall operate retroactively. There is, therefore, no ex post facto law in
this case.
Next, petitioner urges that Section 32 is a violation of the Fair Elections Act. According to
him, under this law, billboards are already permitted as lawful election propaganda. He claims,
therefore, that the COMELEC, in effectively prohibiting the use of billboards as a form of
election propaganda through the assailed provision, violated the Fair Elections Act.Petitioners
argument is not tenable. The Solicitor General rightly points out that the assailed provision does
not prohibit billboards as lawful election propaganda. It only regulates their use to prevent
premature campaigning and to equalize, as much as practicable, the situation of all candidates
by preventing popular and rich candidates from gaining undue advantage in exposure and
publicity on account of their resources and popularity.[11] Moreover, by regulating the use of such
election propaganda materials, the COMELEC is merely doing its duty under the law. Under
Sections 3 and 13 of the Fair Elections Act, all election propaganda are subject to the
supervision and regulation by the COMELEC:
SECTION 3. Lawful Election Propaganda. -- Election propaganda, whether on television, cable
television radio, newspapers or any other medium is hereby allowed for all registered political
parties, national, regional, sectoral parties or organizations participating under the party list
elections and for all bona fide candidates seeking national and local elective positions subject to
the limitation on authorized expenses of candidates and political parties observance of truth in
advertising and to the supervision and regulation by the Commission on Elections (COMELEC).
For the purpose of this Act, lawful election propaganda shall include:
3.1. Pamphlets, leaflets, cards, decals, stickers or other written or printed materials the
size of which does not exceed eight and one half inches in width and fourteen
inches in length;
3.2. Handwritten or printed letters urging voters to vote for or against any particular
political party or candidate for public office;
3.3. Cloth, paper or cardboard posters whether framed or posted, with an area not
exceeding two(2) feet by three (3) feet, except that, at the site and on the occasion
of a public meeting or rally, or in announcing the holding of said meeting or rally,
streamers not exceeding three (3) feet by eight (8) feet in size, shall be
allowed: Provided, That said streamers may be displayed five (5) days before the
date of the meeting or rally and shall be removed within twenty-four (24) hours
after said meeting or rally;
3.4. Paid advertisements in print or broadcast media: Provided, That the
advertisements shall follow the requirements set forth in Section 4 of this Act; and

3.5. All other forms of election propaganda not prohibited by the Omnibus Election
Code or this Act.
xxx
SECTION 13. Authority of the COMELEC to Promulgate Rules; Election Offenses. - The
COMELEC shall promulgate and furnish all political parties and candidates and the mass media
entities the rules and regulations for the implementation of this Act, consistent with the criteria
established in Article IX-C, Section 4 of the Constitution and Section 86 of the Omnibus Election
Code (Batas Pambansa Blg. 881).
Rules and regulations promulgated by the COMELEC under and by authority of this Section
shall take effect on the seventh day after their publication in at least two (2) daily newspapers of
general circulation. Prior to effectivity of said rules and regulations, no political advertisement or
propaganda for or against any candidate or political party shall be published or broadcast
through mass media.
Violation of this Act and the rules and regulations of the COMELEC issued to implement this Act
shall be an election offense punishable under the first and second paragraphs of Section 264 of
the Omnibus Election Code (Batas Pambansa Blg. 881).
Finally, petitioner contends that Section 32 of COMELEC Resolution No. 6520 is invalid
because of overbreadth.
A statute or regulation is considered void for overbreadth when it offends the constitutional
principle that a governmental purpose to control or prevent activities constitutionally subject to
State regulations may not be achieved by means that sweep unnecessarily broadly and thereby
invade the area of protected freedoms.[12]
The provision in question is limited in its operation both as to time and scope. It only
disallows the continued display of a persons propaganda materials and advertisements after he
has filed a certificate of candidacy and before the start of the campaign period. Said materials
and advertisements must also show his name and image.
There is no blanket prohibition of the use of propaganda materials and
advertisements. During the campaign period, these may be used subject only to reasonable
limitations necessary and incidental to achieving the purpose of preventing premature
campaigning and promoting equality of opportunities among all candidates.
The provision, therefore, is not invalid on the ground of overbreadth.
WHEREFORE, the petition is DISMISSED and Section 32 of COMELEC Resolution No.
6520 is declared valid and constitutional. The prayer for a Temporary Restraining Order and/or a
Writ of Preliminary Injunction is hereby DENIED. No costs.
SO ORDERED.

G.R. No. 181613

November 25, 2009

ROSALINDA A. PENERA, Petitioner,

vs.
COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, Respondents.
CHICO-NAZARIO, J.:
This Petition for Certiorari with Prayer for the Issuance of a Writ of Preliminary Injunction and/or
Temporary Restraining Order [1] under Rule 65, in relation to Rule 64 of the Rules of Court,
seeks the nullification of the Resolution[2] dated 30 January 2008 of the Commission on
Elections (COMELEC) en banc. Said Resolution denied the Motion for Reconsideration of the
earlier Resolution[3] dated 24 July 2007 of the COMELEC Second Division in SPA No. 07-224,

ordering the disqualification of herein petitioner Rosalinda A. Penera (Penera) as a candidate for
the position of mayor of the Municipality of Sta. Monica, Surigao del Norte (Sta. Monica) in the
2007 Synchronized National and Local Elections.
The antecedents of the case, both factual and procedural, are set forth hereunder:
Penera and private respondent Edgar T. Andanar (Andanar) were mayoralty candidates in Sta.
Monica during the 14 May 2007 elections.
On 2 April 2007, Andanar filed before the Office of the Regional Election Director (ORED),
Caraga Region (Region XIII), a Petition for Disqualification[4] against Penera, as well as the
candidates for Vice-Mayor and Sangguniang Bayan who belonged to her political party,[5] for
unlawfully engaging in election campaigning and partisan political activity prior to the
commencement of the campaign period. The petition was docketed as SPA No. 07-224.
Andanar claimed that on 29 March 2007 a day before the start of the authorized campaign
period on 30 March 2007 Penera and her partymates went around the differentbarangays in
Sta. Monica, announcing their candidacies and requesting the people to vote for them on the
day of the elections. Attached to the Petition were the Affidavits of individuals [6] who witnessed
the said incident.
Penera alone filed an Answer[7] to the Petition on 19 April 2007, averring that the charge
of premature campaigning was not true. Although Penera admitted that a motorcade did take
place, she explained that it was simply in accordance with the usual practice in nearby cities
and provinces, where the filing of certificates of candidacy (COCs) was preceded by a
motorcade, which dispersed soon after the completion of such filing. In fact, Penera claimed, in
the motorcade held by her political party, no person made any speech, not even any of the
candidates. Instead, there was only marching music in the background and a grand standing for
the purpose of raising the hands of the candidates in the motorcade. Finally, Penera
cited Barroso v. Ampig[8] in her defense, wherein the Court supposedly ruled that a motorcade
held by candidates during the filing of their COCs was not a form of political campaigning.
Also on 19 April 2007, Andanar and Penera appeared with their counsels before the
ORED-Region XIII, where they agreed to submit their position papers and other evidence in
support of their allegations.[9]

After the parties filed their respective Position Papers, the records of the case were
transmitted to the COMELEC main office in Manila for adjudication. It was subsequently raffled
to the COMELEC Second Division.
While SPA No. 07-224 was pending before the COMELEC Second Division, the 14 May
2007 elections took place and, as a result thereof, Penera was proclaimed the duly elected
Mayor of Sta. Monica. Penera soon assumed office on 2 July 2002.
On 24 July 2007, the COMELEC Second Division issued its Resolution in SPA No. 07224, penned by Commissioner Nicodemo T. Ferrer (Ferrer), which disqualified Penera from
continuing as a mayoralty candidate in Sta. Monica, for engaging in premature campaigning, in
violation of Sections 80 and 68 of the Omnibus Election Code.
The COMELEC Second Division found that:
On the afternoon of 29 March 2007, the 1st [sic] day to file the certificates
of candidacy for local elective positions and a day before the start of the
campaign period for the May 14, 2007 elections [some of the members of the
political party Partido Padajon Surigao], headed by their mayoralty candidate
Datty Penera, filed their respective Certificates of Candidacy before the Municipal
Election Officer of Sta. Monica, Surigao del Norte.
Accompanied by a bevy of supporters, [Penera and her partymates] came
to the municipal COMELEC office on board a convoy of two (2) trucks and an
undetermined number of motorcycles, laden with balloons ad [sic]
posters/banners containing names and pictures and the municipal positions for
which they were seeking election. Installed with [sic] one of the trucks was a
public speaker sound subsystem which broadcast [sic] the intent the [sic] run in
the coming elections. The truck had the posters of Penera attached to it
proclaiming his [sic] candidacy for mayor. The streamer of [Mar Longos, a
candidate for the position of Board Member,] was proudly seen at the vehicles
side. The group proceeded to motorcade until the barangays of Bailan, Libertad
and as afar [sic] as Mabini almost nine (9) kilometers from Sta. Monica. [Penera
and her partymates] were seen aboard the vehicles and throwing candies to the
residents and onlookers.
Various affidavits and pictures were submitted elucidating the abovementioned facts. The above facts were also admitted in the Answer, the Position
Paper and during the hearings conducted for this case, the only defense
propounded by [Penera] is that such acts allegedly do not constitute campaigning
and is therefore not proscribed by the pertinent election laws.
xxxx
What we however find disturbing is [Peneras] reference to the Ampig
Case as the justification for the acts committed by [her]. There is really no

reference to the acts or similar acts committed by [Penera] as having been

considered as not constituting political campaign or partisan political activity. The
issue in that case is whether or not the defect of the lack of a certification against
non-forum [sic] shopping should result to the immediate dismissal of the election
cases filed in that case. There is nothing in said case justifying a motorcade
during the filing of certificates of candidacy. [Peneras] reliance thereon is
therefore misplaced and of no potency at all.
xxxx
However, the photos submitted by [Andanar] only identified [Penera] and
did not have any notation identifying or indicating any of the other [candidates
from Peneras party]. It cannot be conclusively proven that the other [candidates
from Peneras party] were indeed with Penera during the Motorcade. More
importantly, the Answer and the Position Paper contain admissions referring only
to [Penera]. There is therefore no justification for a whole sale [sic]
disqualification of all the [candidates from Peneras party], as even the petition
failed to mention particularly the participation of the other individual [party
members].[10]

The afore-quoted findings of fact led the COMELEC Second Division to decree:
PREMISES CONSIDERED, this Commission resolves to disqualify [Penera] but
absolves the other [candidates from Peneras party] from violation of section 80
and 68 of the Omnibus Elections [sic] Code.[11]

Commissioner Florentino A. Tuason, Jr. (Tuason) wrote a Separate Opinion [12] on the 24 July
2007 Resolution. Although Commissioner Tuason concurred with theponente, he stressed that,
indeed, Penera should be made accountable for her actions after the filing of her COC on 29
March 2007. Prior thereto, there was no candidate yet whose candidacy would have been
enhanced by the premature campaigning.
It was the third member of the COMELEC Second Division, Commissioner Rene V.
Sarmiento

(Sarmiento)

who

put

forth

Dissenting

Opinion[13] on

the 24

July

2007 Resolution. Commissioner Sarmiento believed that the pieces of evidence submitted by
Andanar did not sufficiently establish probable cause that Penera engaged in premature
campaigning, in violation of Sections 80 and 68 of the Omnibus Election Code. The two
photocopied pictures, purporting to be those of Penera, did not clearly reveal what was actually
happening in the truck or who were the passengers thereof. Likewise, the Affidavits seemed to
have been prepared and executed by one and the same person because they had similar
sentence construction and form, and they were sworn to before the same attesting officer.

Penera filed before the COMELEC en banc a Motion for Reconsideration[14] of the 24
July 2007 Resolution of the COMELEC Second Division, maintaining that she did not make any
admission on the factual matters stated in the appealed resolution. Penera also contended that
the pictures and Affidavits submitted by Andanar should not have been given any credence. The
pictures were mere photocopies of the originals and lacked the proper authentication, while the
Affidavits were taken ex parte, which would almost always make them incomplete and
inaccurate. Subsequently, Penera filed a Supplemental Motion for Reconsideration, [15] explaining
that supporters spontaneously accompanied Penera and her fellow candidates in filing their
COCs, and the motorcade that took place after the filing was actually part of the dispersal of
said supporters and their transportation back to their respective barangays.
In the Resolution dated 30 January 2008, the COMELEC en banc denied Peneras
Motion for Reconsideration, disposing thus:
WHEREFORE, this Commission RESOLVES to DENY the instant Motion
for Reconsideration filed by [Penera] for UTTER LACK OF MERIT.[16]
The COMELEC en banc ruled that Penera could no longer advance the arguments set
forth in her Motion for Reconsideration and Supplemental Motion for Reconsideration, given that
she failed to first express and elucidate on the same in her Answer and Position Paper. Penera
did not specifically deny the material averments that the motorcade went as far as Barangay
Mabini, announcing their candidacy and requesting the people to vote for them on Election Day,
despite the fact that the same were clearly propounded by Andanar in his Petition for
Disqualification and Position Paper. Therefore, these material averments should be considered
admitted. Although the COMELEC en banc agreed that no undue importance should be given to
sworn statements or affidavits submitted as evidence, this did not mean that such affidavits
should not be given any evidentiary weight at all. Since Penera neither refuted the material
averments in Andanars Petition and the Affidavits attached thereto nor submitted countervailing
evidence, then said Affidavits, even if taken ex parte, deserve some degree of importance. The
COMELEC en banc likewise conceded that the pictures submitted by Andanar as evidence
would have been unreliable, but only if they were presented by their lonesome. However, said
pictures, together with Peneras admissions and the Affidavits of Andanars witnesses,
constituted sufficient evidence to establish Peneras violation of the rule against premature
campaigning. Lastly, the COMELEC en banc accused Penera of deliberately trying to mislead

the Commission by citing Barroso, given that the said case was not even remotely applicable to
the case at bar.
Consistent with his previous stand, Commissioner Sarmiento again dissented [17] from
the 30 January 2008 Resolution of the COMELEC en banc. He still believed that Andanar was
not able to adduce substantial evidence that would support the claim of violation of election
laws. Particularly, Commissioner Sarmiento accepted Peneras explanation that the motorcade
conducted after the filing by Penera and the other candidates of their COCs was merely part of
the dispersal of the spontaneous gathering of their supporters. The incident was only in accord
with normal human social experience.
Still undeterred, Penera filed the instant Petition before us, praying that the Resolutions
dated 24 July 2007 and 30 January 2008 of the COMELEC Second Division and en banc,
respectively, be declared null and void for having been issued with grave abuse of discretion
amounting to lack or excess of jurisdiction.
In a Resolution[18] dated 4 March 2008, we issued a Temporary Restraining Order (TRO),
enjoining the COMELEC from implementing the assailed Resolutions, on the condition that
Penera post a bond in the amount of P5,000.00. We also directed COMELEC and Andanar to
comment on the instant Petition.
After the COMELEC, through the Office of the Solicitor General (OSG), and Andanar
filed their respective Comments[19] on the Petition at bar, we required Penera, in a
Resolution[20] dated 17 June 2008, to file a Reply. However, as no Reply was filed in due time,
we dismissed Peneras Petition in a Resolution [21] dated 14 October 2008, in accordance with
Rule 56, Section 5(e) of the Rules of Court. [22] Penera subsequently filed an Ex Parte Motion to
Admit Reply,[23] which we treated as a Motion for Reconsideration of the Resolution dated 14
October 2008. On 11 November 2008, we issued another Resolution reinstating Peneras
Petition.[24]
Penera presents the following issues for our consideration:
I.
Whether or not [Penera] has engaged in an election campaign or partisan
political activity outside the campaign period.
II.

Whether the contents of the complaint are deemed admitted for failure of
[Penera] to specifically deny the same.
III.
Whether or not [Andanar] has presented competent and substantial evidence to
justify a conclusion that [Penera] violated Section 80 and 68 of the Omnibus
Election Code.
IV.
Whether or not [the COMELEC] committed grave abuse of discretion amounting
to lack of or in excess of jurisdiction in finding that the act of [Penera] in
conducting a motorcade before the filing of her certificate of candidacy
constitutes premature campaigning.
V.
Whether or not [the COMELEC] committed grave abuse of discretion amounting
to lack of or in excess of jurisdiction when it resolves [sic] to disqualify [Penera]
despite the failure of [Andanar] to present competent, admissible and substantial
evidence to prove [the] violation of Section 68 and 80 of the Omnibus Election
Code.

Penera claims that the COMELEC exercised its discretion despotically, arbitrarily and
whimsically in disqualifying her as a mayoralty candidate in Sta. Monica on the ground that she
engaged in premature campaigning. She asserts that the evidence adduced by Andanar was
grossly insufficient to warrant the ruling of the COMELEC.
Penera insists that the COMELEC Second Division erred in its findings of fact, basically
adopting Andanars allegations which, contrary to the belief of the COMELEC Second Division,
Penera never admitted. Penera maintains that the motorcade was spontaneous and unplanned,
and the supporters merely joined Penera and the other candidates from her party along the way
to, as well as within the premises of, the office of the COMELEC Municipal Election
Officer. Andanars averments that after Penera and the other candidates from her party filed their
COCs, they held a motorcade in the different barangays of Sta. Monica, waived their hands to
the public and threw candies to the onlookers were not supported by competent substantial
evidence. Echoing Commissioner Sarmientos dissent from the assailed COMELEC Resolutions,
Penera argues that too much weight and credence were given to the pictures and Affidavits
submitted by Andanar. The declaration by the COMELEC that it was Penera in the pictures is
tenuous and erroneous, as the COMELEC has no personal knowledge of Peneras identity, and
the said pictures do not clearly reveal the faces of the individuals and the contents of the

posters therein. In the same vein, the Affidavits of Andanars known supporters, executed almost
a month after Andanar filed his Petition for Disqualification before the ORED-Region XIII, were
obviously prepared and executed by one and the same person, because they have a similar
sentence construction, and computer font and form, and were even sworn to before the same
attesting officer on the same date.
We find no merit in the instant Petition.
The questions of fact
Crystal clear from the above arguments is that Penera is raising only questions of fact in
her Petition presently before us. We do not find any reason to pass upon the same, as this
Court is not a trier of facts. It is not the function of the Court to review, examine and evaluate or
weigh the probative value of the evidence presented. A question of fact would arise in such an
event.
The sole function of a writ of certiorari is to address issues of want of jurisdiction or
grave abuse of discretion, and it does not include a review of the tribunals evaluation of the
evidence.[25] Because of its fact-finding facilities and its knowledge derived from actual
experience, the COMELEC is in a peculiarly advantageous position to evaluate, appreciate and
decide on factual questions before it. Factual findings of the COMELEC, based on its own
assessments and duly supported by evidence, are conclusive on this Court, more so in the
absence of a grave abuse of discretion, arbitrariness, fraud, or error of law in the questioned
resolutions. Unless any of these causes are clearly substantiated, the Court will not interfere
with the findings of fact of the COMELEC.[26]
Grave abuse of discretion is such capricious and whimsical exercise of judgment
equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave, as
when it is exercised arbitrarily or despotically by reason of passion or personal hostility. The
abuse must be so patent and so gross as to amount to an evasion of a positive duty or to a
virtual refusal to perform the duty enjoined or to act at all in contemplation of law.[27]
We find no grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of the COMELEC Second Division in disqualifying Penera as a mayoralty candidate in Sta.
Monica in the Resolution dated 24 July 2007; and also on the part of the COMELEC en banc in
denying Peneras Motion for Reconsideration on the Resolution dated 30 January 2008. Said

Resolutions are sufficiently supported by substantial evidence, meaning, such evidence as a

reasonable mind might accept as adequate to support a conclusion.[28]
The prohibited act of premature campaigning is defined under Section 80 of the
Omnibus Election Code, to wit:
SECTION 80. Election campaign or partisan political activity outside campaign
period. It shall be unlawful for any person, whether or not a voter or
candidate, or for any party, or association of persons, to engage in an
election campaign or partisan political activity except during the campaign
period: Provided, That political parties may hold political conventions or
meetings
to
nominate
their
official
candidates
within thirty
days before the commencement of the campaign period and forty-five days for
Presidential and Vice-Presidential election. (Emphasis ours.)
If the commission of the prohibited act of premature campaigning is duly proven, the
consequence of the violation is clearly spelled out in Section 68 of the said Code, which reads:
SECTION. 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 xxx (e) violated any of Sections 80, 83, 85,
86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified
from continuing as a candidate, or if he has been elected, from holding the
office. Any person who is a permanent resident of or an immigrant to a foreign
country shall not be qualified to run for any elective office under this Code, unless
said person has waived his status as permanent resident or immigrant of a
foreign country in accordance with the residence requirement provided for in the
election laws. (Emphases ours.)

In the case at bar, it had been sufficiently established, not just by Andanars evidence,
but also those of Penera herself, that Penera and her partymates, after filing their COCs on 29
March 2007, participated in a motorcade which passed through the different barangays of Sta.
Monica, waived their hands to the public, and threw candies to the onlookers.
Indeed, Penera expressly admitted in her Position Paper that:
Respondents actually had a motorcade of only two (2) jeppneys [sic]
and ten (10) motorcycles after filing their Certificate of Candidacy at 3:00
P.M., March 29, 2007without any speeches made and only one streamer of a
board member Candidate and multi-colored balloons attached to the jeppneys
[sic] and motorcycles.[29] (Emphasis ours.)

Additionally, the Joint Affidavit of Marcial Dolar, Allan Llatona, and Renante Platil,
attached to Peneras Position Paper, gave an even more straightforward account of the events,
thus:
1.

That on March 29, 2007 at 3:00 P.M. at Sta. Monica, Surigao del Norte,
Mayoralty Candidates Rosalinda CA. Penera [sic] and her parties of four (4)
kagawads filed their certificate of candidacy at the COMELEC Office;

2.

That their [sic] was a motorcade consisting of two jeppneys [sic] and 10
motorcycles after actual registration with the COMELEC with jeeps
decorated with balloons and a streamer of Margarito Longos, Board Member
Candidate;

3.

That the motorcade proceeded to three (3) barangays out of the 11

barangays while supporters were throwing sweet candies to the crowd;

4.

That there was merriment and marching music without mention of any
name of the candidates more particularly lead-candidate Rosalinda CA.
Penera [sic];

5.

That we were in the motorcade on that afternoon only riding in one of the
jeepneys.[30] (Emphases ours.)

In view of the foregoing admissions by Penera and her witnesses, Penera cannot now
be allowed to adopt a conflicting position.
More importantly, the conduct of a motorcade is a form of election campaign or partisan
political activity, falling squarely within the ambit of Section 79(b)(2) of the Omnibus Election
Code, on [h]olding 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[.] A motorcade is a procession or parade of automobiles or other
motor vehicles.[31] The conduct thereof during election periods by the candidates and their
supporters is a fact that need not be belabored due to its widespread and pervasive
practice. The obvious purpose of the conduct of motorcades is to introduce the candidates and
the positions, to which they seek to be elected, to the voting public; or to make them more
visible so as to facilitate the recognition and recollection of their names in the minds of the
voters come election time. Unmistakably, motorcades are undertaken for no other purpose than
to promote the election of a particular candidate or candidates.

In the instant Petition, Penera never denied that she took part in the conduct of the
motorcade after she filed her COC on the day before the start of the campaign period. She
merely claimed that the same was not undertaken for campaign purposes. Penera proffered the
excuse that the motorcade was already part of the dispersal of the supporters who
spontaneously accompanied Penera and her partymates in filing their COCs. The said
supporters were already being transported back to their respectivebarangays after the COC
filing. Penera stressed that no speech was made by any person, and there was only
background marching music and a grand standing for the purpose of raising the hands of the
candidates in the motorcade.
We are not convinced.
As we previously noted, Penera and her witnesses admitted that the vehicles, consisting
of two jeepneys and ten motorcycles, were festooned with multi-colored balloons; the
motorcade went around three barangays in Sta. Monica; and Penera and her partymates waved
their hands and threw sweet candies to the crowd. With vehicles, balloons, and even candies on
hand, Penera can hardly persuade us that the motorcade was spontaneous and unplanned.
For violating Section 80 of the Omnibus Election Code, proscribing election campaign or
partisan political activity outside the campaign period, Penera must be disqualified from holding
the office of Mayor of Sta. Monica.
The questions of law
The dissenting opinion, however, raises the legal issue that Section 15 of Republic Act No.
8436, as amended by Republic Act No. 9369, provides a new definition of the term candidate,
as a result of which, premature campaigning may no longer be committed.
Under Section 79(a) of the Omnibus Election Code, a candidate is 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.
Republic Act No. 8436,[32] enacted on 22 December 1997, authorized the COMELEC to
use an automated election system for the process of voting, counting of votes, and
canvassing/consolidating the results of the national and local elections. The statute also
mandated the COMELEC to acquire automated counting machines, computer equipment,

devices and materials; and to adopt new electoral forms and printing materials. In particular,
Section 11 of Republic Act No. 8436 provided for the specifications of the official ballots to be
used in the automated election system and the guidelines for the printing thereof, the relevant
portions of which state:
SECTION 11. Official ballot. - The Commission shall prescribe the size and form
of the official ballot which shall contain the titles of the positions to be filled and/or
the propositions to be voted upon in an initiative, referendum or plebiscite. Under
each position, the names of candidates shall be arranged alphabetically by
surname and uniformly printed using the same type size. A fixed space where the
chairman of the Board of Election inspectors shall affix his/her signature to
authenticate the official ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of
candidacy/petition for registration/manifestation to participate in the
election shall not be later than one hundred twenty (120) days before the
elections: Provided, That, any elective official, whether national or local, running
for any office other than the one which he/she is holding in a permanent capacity,
except for president and vice-president, shall be deemed resigned only upon the
start of the campaign period corresponding to the position for which he/she is
running:Provided, further, That, unlawful acts or omissions applicable to a
candidate shall take effect upon the start of the aforesaid campaign period:
Provided, finally, That, for purposes of the May 11, 1998 elections, the deadline
for filing of the certificate of candidacy for the positions of President, Vice
President, Senators and candidates under the Party-List System as well as
petitions for registration and/or manifestation to participate in the Party-List
System shall be on February 9, 1998 while the deadline for the filing of certificate
of candidacy for other positions shall be on March 27, 1998. (Emphases ours.)
On 10 February 2007, Republic Act No. 9369[33] took effect. Section 13 of Republic Act No. 9369
amended Section 11 of Republic Act No. 8436 and renumbered the same as the new Section 15
of Republic Act No. 8436. The pertinent portions of Section 15 of Republic Act No. 8436, as
amended by Republic Act No. 9369, now read:
SECTION.15. Official Ballot. - The Commission shall prescribe the format of the
electronic display and/or the size and form of the official ballot, which shall
contain the titles of the position to be filled and/or the proposition to be voted
upon in an initiative, referendum or plebiscite. Where practicable, electronic
displays must be constructed to present the names of all candidates for the same
position in the same page or screen, otherwise, the electronic displays must be
constructed to present the entire ballot to the voter, in a series of sequential
pages, and to ensure that the voter sees all of the ballot options on all pages
before completing his or her vote and to allow the voter to review and change all
ballot choices prior to completing and casting his or her ballot. Under each
position to be filled, the names of candidates shall be arranged alphabetically by
surname and uniformly indicated using the same type size. The maiden or
married name shall be listed in the official ballot, as preferred by the female

candidate. Under each proposition to be vote upon, the choices should be

uniformly indicated using the same font and size.
A fixed space where the chairman of the board of election inspector shall affix
her/her signature to authenticate the official ballot shall be provided.
For this purpose, the Commission shall set the deadline for the filing of certificate
of candidacy/petition of registration/manifestation to participate in the
election. Any person who files his certificate of candidacy within this period
shall only be considered as a candidate at the start of the campaign period
for which he filed his certificate of candidacy:Provided, That, unlawful acts
or omissions applicable to a candidate shall effect only upon the start of
the aforesaid campaign period: Provided, finally, That any person holding a
public appointive office or position, including active members of the armed
forces, and officers, and employees in government-owned or-controlled
corporations, shall be consideredipso factor resigned from his/her office and
must vacate the same at the start of the day of the filing of his/her certification of
candidacy. (Emphases ours.)
In view of the third paragraph of Section 15 of Republic Act No. 8436, as amended, the
Dissenting Opinion argues that Section 80 of the Omnibus Election Code can not be applied to
the present case since, as the Court held in Lanot v. Commission on Elections,[34] the election
campaign or partisan activity, which constitute the prohibited premature campaigning, should be
designed to promote the election or defeat of a particular candidate or candidates. Under
present election laws, while a person may have filed his/her COC within the prescribed period
for doing so, said person shall not be considered a candidate until the start of the campaign
period. Thus, prior to the start of the campaign period, there can be no election campaign or
partisan political activity designed to promote the election or defeat of a particular candidate to
public office because there is no candidate to speak of.
According to the Dissenting Opinion, even if Peneras acts before the start of the
campaign period constitute election campaigning or partisan political activities, these are not
punishable under Section 80 of the Omnibus Election Code given that she was not yet a
candidate at that time. On the other hand, Peneras acts, if committed within the campaign
period, when she was already a candidate, are likewise not covered by Section 80 as this
provision punishes only acts outside the campaign period.
The Dissenting Opinion ultimately concludes that because of Section 15 of Republic Act No.
8436, as amended, the prohibited act of premature campaigning in Section 80 of the Omnibus
Election Code, is practically impossible to commit at any time.
We disagree. Section 80 of the Omnibus Election Code remains relevant and applicable despite
Section 15 of Republic Act No. 8436, as amended.

A close reading of the entire Republic Act No. 9369, which amended Republic Act No. 8436,
would readily reveal that that it did not contain an express repeal of Section 80 of the Omnibus
Election Code. An express repeal is one wherein a statute declares, usually in its repealing
clause, that a particular and specific law, identified by its number or title, is repealed.
[35]

Absent this specific requirement, an express repeal may not be presumed.

Although the title of Republic Act No. 9369 particularly mentioned the amendment of

Batas Pambansa Blg. 881, or the Omnibus Election Code, to wit:

An Act Amending Republic Act No. 8436, Entitled "An Act Authorizing the
Commission on Elections to Use an Automated Election System x x
x, Amending for the Purpose Batas Pambansa Blg. 881, As Amended x x x.
(Emphasis ours.),
said title explicitly mentions, not the repeal, but the amendment of Batas Pambansa Blg.
881. Such fact is indeed very material. Repeal of a law means its complete abrogation by the
enactment of a subsequent statute, whereas the amendment of a statute means an alteration in
the law already existing, leaving some part of the original still standing. [36] Section 80 of the
Omnibus Election Code is not even one of the specific provisions of the said code that were
expressly amended by Republic Act No. 9369.
Additionally, Section 46,[37] the repealing clause of Republic Act No. 9369, states that:
Sec. 46. Repealing Clause. All laws, presidential decrees, executive orders, rules
and regulations or parts thereof inconsistent with the provisions of this Act are
hereby repealed or modified accordingly.
Section 46 of Republic Act No. 9369 is a general repealing clause. It is a clause which
predicates the intended repeal under the condition that a substantial conflict must be found in
existing and prior acts. The failure to add a specific repealing clause indicates that the intent
was not to repeal any existing law, unless an irreconcilable inconsistency and repugnancy exist
in the terms of the new and old laws. This latter situation falls under the category of an implied
repeal.[38]
Well-settled is the rule in statutory construction that implied repeals are disfavored. In order to
effect a repeal by implication, the later statute must be so irreconcilably inconsistent and
repugnant with the existing law that they cannot be made to reconcile and stand together. The
clearest case possible must be made before the inference of implied repeal may be drawn, for

inconsistency is never presumed. There must be a showing of repugnance clear and convincing
in character. The language used in the later statute must be such as to render it irreconcilable
with what had been formerly enacted. An inconsistency that falls short of that standard does not
suffice.[39]
Courts of justice, when confronted with apparently conflicting statutes, should endeavor
to reconcile the same instead of declaring outright the invalidity of one as against the
other. Such alacrity should be avoided. The wise policy is for the judge to harmonize them if
this is possible, bearing in mind that they are equally the handiwork of the same legislature, and
so give effect to both while at the same time also according due respect to a coordinate
department of the government.[40]
To our mind, there is no absolute and irreconcilable incompatibility between Section 15 of
Republic Act No. 8436, as amended, and Section 80 of the Omnibus Election Code, which
defines the prohibited act of premature campaigning. It is possible to harmonize and reconcile
these two provisions and, thus, give effect to both.
The following points are explanatory:
First, Section 80 of the Omnibus Election Code, on premature campaigning, explicitly provides
that [i]t shall be unlawful for any person, whether or not a voter or candidate, or for any party,
or association of persons, to engage in an election campaign or partisan political activity, except
during the campaign period. Very simply, premature campaigning may be committed even by
a person who is not a candidate.
For this reason, the plain declaration in Lanot that [w]hat Section 80 of the Omnibus Election
Code prohibits is an election campaign or partisan political activity by a candidate outside of
the campaign period,[41] is clearly erroneous.
Second, Section 79(b) of the Omnibus Election Code defines election campaign or partisan
political activity in the following manner:
SECTION 79. Definitions. - As used in this Code:
xxxx
(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.
True, that pursuant to Section 15 of Republic Act No. 8436, as amended, even after the filing of
the COC but before the start of the campaign period, a person is not yet officially considered
a candidate. Nevertheless, a person, upon the filing of his/her COC, already explicitly
declares his/her intention to run as a candidate in the coming elections. The commission by
such a person of any of the acts enumerated under Section 79(b) of the Omnibus Election
Code (i.e., holding rallies or parades, making speeches, etc.) can, thus, be logically and
reasonably construed as for the purpose of promoting his/her intended candidacy.
When the campaign period starts and said person proceeds with his/her candidacy, his/her
intent turning into actuality, we can already consider his/her acts, after the filing of his/her
COC and prior to the campaign period, as the promotion of his/her election as a candidate,
hence, constituting premature campaigning, for which he/she may be disqualified. Also,
conversely, if said person, for any reason, withdraws his/her COC before the campaign period,
then there is no point to view his/her acts prior to said period as acts for the promotion of his/her
election as a candidate. In the latter case, there can be no premature campaigning as there is
no candidate, whose disqualification may be sought, to begin with.[42]
Third, in connection with the preceding discussion, the line in Section 15 of Republic Act No.
8436, as amended, which provides that any unlawful act or omission applicable to a candidate
shall take effect only upon the start of the campaign period, does not mean that the acts
constituting premature campaigning can only be committed, for which the offender may be
disqualified, during the

campaign

period. Contrary

to

the

pronouncement

in

the

dissent, nowhere in the said proviso was it stated that campaigning before the start of the
campaign period is lawful, such that the offender may freely carry out the same with impunity.

As previously established, a person, after filing his/her COC but prior to his/her becoming a
candidate (thus, prior to the start of the campaign period), can already committhe acts
described under Section 79(b) of the Omnibus Election Code as election campaign or partisan
political activity. However, only after said person officially becomes a candidate, at the beginning
of the campaign period, can said acts be given effect as premature campaigning under Section
80 of the Omnibus Election Code. Only after said person officially becomes a candidate, at the
start of the campaign period, can his/her disqualification be sought for acts constituting
premature campaigning.Obviously, it is only at the start of the campaign period, when the
person officially becomes a candidate, that the undue and iniquitous advantages of
his/her prior acts, constituting premature campaigning, shall accrue to his/her
benefit. Compared to the other candidates who are only about to begin their election campaign,
a candidate who had previously engaged in premature campaigning already enjoys an unfair
headstart in promoting his/her candidacy.
As can be gleaned from the foregoing disquisition, harmony in the provisions of Sections 80 and
79 of the Omnibus Election Code, as well as Section 15 of Republic Act No. 8436, as amended,
is not only very possible, but in fact desirable, necessary and consistent with the legislative
intent and policy of the law.
The laudable and exemplary intention behind the prohibition against premature campaigning, as
declared in Chavez v. Commission on Elections,[43] is to level the playing field for candidates of
public office, to equalize the situation between the popular or rich candidates, on one hand, and
lesser-known or poorer candidates, on the other, by preventing the former from enjoying undue
advantage in exposure and publicity on account of their resources and popularity. The intention
for prohibiting premature campaigning, as explained in Chavez, could not have been
significantly altered or affected by Republic Act No. 8436, as amended by Republic Act No.
9369, the avowed purpose of which is to carry-on the automation of the election
system. Whether the election would be held under the manual or the automated system,
the need for prohibiting premature campaigning to level the playing field between the
popular or rich candidates, on one hand, and the lesser-known or poorer candidates, on
the other, by allowing them to campaign only within the same limited period remains.
We cannot stress strongly enough that premature campaigning is a pernicious act that is
continuously threatening to undermine the conduct of fair and credible elections in our country,
no matter how great or small the acts constituting the same are. The choice as to who among
the candidates will the voting public bestow the privilege of holding public office should not be

swayed by the shrewd conduct, verging on bad faith, of some individuals who are able to spend
resources to promote their candidacies in advance of the period slated for campaign activities.
Verily, the consequences provided for in Section 68[44] of the Omnibus Election Code for the
commission of the prohibited act of premature campaigning are severe: the candidate who is
declared guilty of committing the offense shall be disqualified from continuing as a candidate, or,
if he/she has been elected, from holding office. Not to mention that said candidate also faces
criminal prosecution for an election offense under Section 262 of the same Code.
The Dissenting Opinion, therefore, should not be too quick to pronounce the
ineffectiveness or repeal of Section 80 of the Omnibus Election Code just because of a
change in the meaning of candidate by Section 15 of Republic Act No. 8436, as amended,
primarily, for administrative purposes. An interpretation should be avoided under which a
statute or provision being construed is defeated, or as otherwise expressed, nullified, destroyed,
emasculated, repealed, explained away, or rendered insignificant, meaningless, inoperative, or
nugatory.[45] Indeed, not only will the prohibited act of premature campaigning be officially
decriminalized, the value and significance of having a campaign period before the conduct of
elections would also be utterly negated. Any unscrupulous individual with the deepest of
campaign war chests could then afford to spend his/her resources to promote his/her candidacy
well ahead of everyone else. Such is the very evil that the law seeks to prevent. Our lawmakers
could not have intended to cause such an absurd situation.

The Dissenting Opinion attempts to brush aside our preceding arguments by contending that
there is no room for statutory construction in the present case since Section 15 of Republic Act
No. 8436,[46] as amended by Section 13 of Republic Act No. 9369, [47] is crystal clear in its
meaning. We disagree. There would only be no need for statutory construction if there is a
provision in Republic Act No. 8436 or Republic Act No. 9369 that explicitly states that there shall
be no more premature campaigning.But absent the same, our position herein, as well as that of
the Dissenting Opinion, necessarily rest on our respective construction of the legal provisions
involved in this case.
Notably, while faulting us for resorting to statutory construction to resolve the instant
case, the Dissenting Opinion itself cites a rule of statutory construction, particularly, that penal
laws should be liberally construed in favor of the offender. The Dissenting Opinion asserts that
because of the third paragraph in Section 15 of Republic Act No. 8436, as amended, the

election offense described in Section 80 of the Omnibus Election Code is practically impossible
to commit at any time and that this flaw in the law, which defines a criminal act, must be
construed in favor of Penera, the offender in the instant case.
The application of the above rule is uncalled for. It was acknowledged in Lanot that a
disqualification case has two aspects: one, electoral;[48] the other, criminal.[49] The instant case
concerns only the electoral aspect of the disqualification case. Any discussion herein on the
matter of Peneras criminal liability for premature campaigning would be nothing more
than obiter dictum. More importantly, as heretofore already elaborated upon, Section 15 of
Republic Act No. 8436, as amended, did not expressly or even impliedly repeal Section 80 of
the Omnibus Election Code, and these two provisions, based on legislative intent and policy,
can be harmoniously interpreted and given effect. Thus, there is no flaw created in the law,
arising from Section 15 of Republic Act No. 8436, as amended, which needed to be construed in
Peneras favor.
The Dissenting Opinion further expresses the fear that pursuant to our theory, all the politicians
with infomercials prior to the filing of their COCs would be subject to disqualification, and this
would involve practically all the prospective presidential candidates who are now leading in the
surveys.
This fear is utterly unfounded. It is the filing by the person of his/her COC through
which he/she explicitly declares his/her intention to run as a candidate in the coming
elections. It is such declaration which would color the subsequent acts of said person to be
election campaigning or partisan political activities as described under Section 79(b) of the
Omnibus Election Code. It bears to point out that, at this point, no politician has yet
submitted his/her COC. Also, the plain solution to this rather misplaced apprehension is for the
politicians themselves to adhere to the letter and intent of the law and keep within the bounds of
fair play in the pursuit of their candidacies. This would mean that after filing their COCs, the
prudent and proper course for them to take is to wait for the designated start of the campaign
period before they commence their election campaign or partisan political activities. Indeed,
such is the only way for them to avoid disqualification on the ground of premature
campaigning. It is not for us to carve out exceptions to the law, much more to decree away the
repeal thereof, in order to accommodate any class of individuals, where no such exception or
repeal is warranted.

Lastly, as we have observed at the beginning, Peneras Petition is essentially grounded on

questions of fact. Peneras defense against her disqualification, before the COMELEC and this
Court, rests on the arguments that she and her partymates did not actually hold a motorcade;
that their supporters spontaneously accompanied Penera and the other candidates from her
political party when they filed their certificates of candidacy; that the alleged motorcade was
actually the dispersal of the supporters of Penera and the other candidates from her party as
said supporters were dropped off at their respective barangays; and that Andanar was not able
to present competent, admissible, and substantial evidence to prove that Penera committed
premature campaigning. Penera herself never raised the argument that she can no longer
be disqualified for premature campaigning under Section 80, in relation to Section 68, of
the Omnibus Election Code, since the said provisions have already been, in the words of
the Dissenting Opinion, rendered inapplicable, repealed, and done away with by Section
15 of Republic Act No. 8436, as amended. This legal argument was wholly raised by the
Dissenting Opinion.
As a rule, a party who deliberately adopts a certain theory upon which the case is tried and
decided by the lower court will not be permitted to change theory on appeal.Points of law,
theories, issues, and arguments not brought to the attention of the lower court need not be, and
ordinarily will not be, considered by a reviewing court, as these cannot be raised for the first
time at such late stage. Basic considerations of due process underlie this rule.[50] If we do not
allow and consider the change in theory of a case by a party on appeal, should we not also
refrain from motu proprio adopting a theory which none of the parties even raised before us?
Nonetheless, the questions of fact raised by Penera and questions of law raised by the
Dissenting Opinion must all be resolved against Penera. Penera should be disqualified from
holding office as Mayor of Sta. Monica for having committed premature campaigning when, right
after she filed her COC, but still a day before the start of the campaign period, she took part in a
motorcade, which consisted of two jeepneys and ten motorcycles laden with multi-colored
balloons that went around several barangaysof Sta. Monica, and gave away candies to the
crowd.
Succession
Despite the disqualification of Penera, we cannot grant Andanars prayer to be allowed to
assume the position of Mayor of Sta. Monica. The well-established principle is that the
ineligibility of a candidate receiving majority votes does not entitle the candidate receiving the
next highest number of votes to be declared elected.[51]

In this case, the rules on succession under the Local Government Code shall apply, to wit:
SECTION 44. Permanent Vacancies in the Offices of the Governor, ViceGovernor, Mayor, and Vice-Mayor. If a permanent vacancy occurs in the
office of the xxx mayor, the x x xvice-mayor concerned shall become the x x
x mayor.
xxxx
For purposes of this Chapter, a permanent vacancy arises when an elective local
official fills a higher vacant office, refuses to assume office, fails to qualify or is
removed from office, voluntarily resigns, or is otherwise permanently
incapacitated to discharge the functions of his office. (Emphases ours.)

Considering Peneras disqualification from holding office as Mayor of Sta. Monica, the
proclaimed Vice-Mayor shall then succeed as Mayor.
WHEREFORE,

premises

considered,

the

instant

Petition

for Certiorari is

hereby DISMISSED. The Resolutions dated 24 July 2007 and 30 January 2008 of the
COMELEC

Second

Division and en

banc,

respectively,

in

SPA

No.

07-224

are

hereby AFFIRMED. In view of the disqualification of petitioner Rosalinda A. Penera from

running for the office of Mayor of Sta. Monica, Surigao del Norte, and the resulting permanent
vacancy therein, it is hereby DECLARED that the proclaimed Vice-Mayor is the rightful
successor to said office. The Temporary Restraining Order issued on 4 March 2008 is
hereby ORDERED lifted. Costs against the petitioner.

G.R. No. 181613

November 25, 2009

ROSALINDA A. PENERA, Petitioner,

vs.
COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, Respondents.
RESOLUTION

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

Decision considers a person who files a certificate of candidacy already a "candidate" even
before the start of the campaign period. lawphil
The assailed Decision is contrary to the clear intent and letter of the law.
The Decision reverses Lanot v. COMELEC,2 which held that a person who files a certificate of
candidacy is not a candidate until the start of the campaign period. In Lanot, this
Court explained:
Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are: (1) a
person engages in an election campaign or partisan political activity; (2) the act is designed to
promote the election or defeat of a particular candidate or candidates; (3) the act is done
outside the campaign period.
The second element requires the existence of a "candidate." Under Section 79(a), a candidate
is one who "has filed a certificate of candidacy" to an elective public office. Unless one has filed
his certificate of candidacy, he is not a "candidate." The third element requires that the
campaign period has not started when the election campaign or partisan political activity is
committed.
Assuming that all candidates to a public office file their certificates of candidacy on the last day,
which under Section 75 of the Omnibus Election Code is the day before the start of the
campaign period, then no one can be prosecuted for violation of Section 80 for acts done prior
to such last day. Before such last day, there is no "particular candidate or candidates" to
campaign for or against. On the day immediately after the last day of filing, the campaign period
starts and Section 80 ceases to apply since Section 80 covers only acts done "outside" the
campaign period.
Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only
apply to acts done on such last day, which is before the start of the campaign period and after at
least one candidate has filed his certificate of candidacy. This is perhaps the reason why those
running for elective public office usually file their certificates of candidacy on the last day or
close to the last day.
There is no dispute that Eusebios acts of election campaigning or partisan political activities
were committed outside of the campaign period. The only question is whether Eusebio, who
filed his certificate of candidacy on 29 December 2003, was a "candidate" when he committed
those acts before the start of the campaign period on 24 March 2004.
Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of certificates
of candidacy to 120 days before election day. Thus, the original deadline was moved from 23
March 2004 to 2 January 2004, or 81 days earlier. The crucial question is: did this change in the
deadline for filing the certificate of candidacy make one who filed his certificate of candidacy
before 2 January 2004 immediately liable for violation of Section 80 if he engaged in election
campaign or partisan political activities prior to the start of the campaign period on 24 March
2004?

Section 11 of RA 8436 provides:

SECTION 11. Official Ballot. The Commission shall prescribe the size and form of the official
ballot which shall contain the titles of the positions to be filled and/or the propositions to be
voted upon in an initiative, referendum or plebiscite. Under each position, the names of
candidates shall be arranged alphabetically by surname and uniformly printed using the same
type size. A fixed space where the chairman of the Board of Election Inspectors shall affix
his/her signature to authenticate the official ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/
manifestation to participate in the election shall not be later than one hundred twenty (120) days
before the elections: Provided, That, any elective official, whether national or local, running for
any office other than the one which he/she is holding in a permanent capacity, except for
president and vice-president, shall be deemed resigned only upon the start of the campaign
period corresponding to the position for which he/she is running: Provided, further, That,
unlawful acts or omissions applicable to a candidate shall take effect upon the start of the
aforesaid campaign period: Provided, finally, That, for purposes of the May 11, 1998 elections,
the deadline for filing of the certificate of candidacy for the positions of President, VicePresident, Senators and candidates under the party-list system as well as petitions for
registration and/or manifestation to participate in the party-list system shall be on February 9,
1998 while the deadline for the filing of certificate of candidacy for other positions shall be on
March 27, 1998.
The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng
Pilipinas at the price comparable with that of private printers under proper security measures
which the Commission shall adopt. The Commission may contract the services of private
printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it
cannot meet the printing requirements. Accredited political parties and deputized citizens arms
of the Commission may assign watchers in the printing, storage and distribution of official
ballots.
To prevent the use of fake ballots, the Commission through the Committee shall ensure that the
serial number on the ballot stub shall be printed in magnetic ink that shall be easily detectable
by inexpensive hardware and shall be impossible to reproduce on a photocopying machine, and
that identification marks, magnetic strips, bar codes and other technical and security markings,
are provided on the ballot.
The official ballots shall be printed and distributed to each city/municipality at the rate of one (1)
ballot for every registered voter with a provision of additional four (4) ballots per precinct.
Under Section 11 of RA 8436, the only purpose for the early filing of certificates of candidacy is
to give ample time for the printing of official ballots. This is clear from the following deliberations
of the Bicameral Conference Committee:

SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the same[,]
uniform for local and national officials?
THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the present
periods.
SENATOR GONZALES. But the moment one files a certificate of candidacy, hes already a
candidate, and there are many prohibited acts on the part of candidate.
THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .
SENATOR GONZALES. And you cannot say that the campaign period has not yet began (sic).
THE CHAIRMAN (REP. TANJUATCO). If we dont provide that the filing of the certificate will not
bring about ones being a candidate.
SENATOR GONZALES. If thats a fact, the law cannot change a fact.
THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the certificate
of candidacy will not result in that official vacating his position, we can also provide that insofar
he is concerned, election period or his being a candidate will not yet commence. Because here,
the reason why we are doing an early filing is to afford enough time to prepare this machine
readable ballots.
So, with the manifestations from the Commission on Elections, Mr. Chairman, the House Panel
will withdraw its proposal and will agree to the 120-day period provided in the Senate version.
THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.
xxxx
SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts
which apply immediately upon being a candidate?
THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to afford
the Comelec enough time to print the ballots, this provision does not intend to change the
campaign periods as presently, or rather election periods as presently fixed by existing law.
THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other prohibition.
THE CHAIRMAN (REP. TANJUATCO). Thats right.
THE ACTING CHAIRMAN (SEN. FERNAN). Okay.
THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict
anymore because we are talking about the 120-day period before election as the last day of

filing a certificate of candidacy, election period starts 120 days also. So that is election period
already. But he will still not be considered as a candidate.
Thus, because of the early deadline of 2 January 2004 for purposes of printing of official ballots,
Eusebio filed his certificate of candidacy on 29 December 2003. Congress, however, never
intended the filing of a certificate of candidacy before 2 January 2004 to make the person filing
to become immediately a "candidate" for purposes other than the printing of ballots. This
legislative intent prevents the immediate application of Section 80 of the Omnibus Election Code
to those filing to meet the early deadline. The clear intention of Congress was to preserve the
"election periods as x x x fixed by existing law" prior to RA 8436 and that one who files to meet
the early deadline "will still not be considered as a candidate."3 (Emphasis in the original)
Lanot was decided on the ground that one who files a certificate of candidacy is not a candidate
until the start of the campaign period. This ground was based on the deliberations of the
legislators who explained the intent of the provisions of RA 8436, which laid the legal framework
for an automated election system. There was no express provision in the original RA 8436
stating that one who files a certificate of candidacy is not a candidate until the start of the
campaign period.
When Congress amended RA 8436, Congress decided to expressly incorporate the Lanot
doctrine into law, realizing that Lanot merely relied on the deliberations of Congress in holding
that
The clear intention of Congress was to preserve the "election periods as x x x fixed by existing
law" prior to RA 8436 and that one who files to meet the early deadline "will still not be
considered as a candidate."4 (Emphasis supplied)
Congress wanted to insure that no person filing a certificate of candidacy under the early
deadline required by the automated election system would be disqualified or penalized for any
partisan political act done before the start of the campaign period. Thus, in enacting RA 9369,
Congress expressly wrote the Lanot doctrine into the second sentence, third paragraph of the
amended Section 15 of RA 8436, thus:
xxx
For this purpose, the Commission shall set the deadline for the filing of certificate of
candidacy/petition for registration/manifestation to participate in the election. Any person who
files his certificate of candidacy within this period shall only be considered as a candidate at the
start of the campaign period for which he filed his certificate of candidacy: Provided, That,
unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the
aforesaid campaign period: Provided, finally, That any person holding a public appointive office
or position, including active members of the armed forces, and officers and employees in
government-owned or -controlled corporations, shall be considered ipso facto resigned from
his/her office and must vacate the same at the start of the day of the filing of his/her certificate of
candidacy. (Boldfacing and underlining supplied)

Congress elevated the Lanot doctrine into a statute by specifically inserting it as the second
sentence of the third paragraph of the amended Section 15 of RA 8436, which cannot be
annulled by this Court except on the sole ground of its unconstitutionality. The Decision cannot
reverse Lanot without repealing this second sentence, because to reverse Lanot would mean
repealing this second sentence.
The assailed Decision, however, in reversing Lanot does not claim that this second sentence or
any portion of Section 15 of RA 8436, as amended by RA 9369, is unconstitutional. In fact, the
Decision considers the entire Section 15 good law. Thus, the Decision is self-contradictory
reversing Lanot but maintaining the constitutionality of the second sentence, which embodies
the Lanot doctrine. In so doing, the Decision is irreconcilably in conflict with the clear intent and
letter of the second sentence, third paragraph, Section 15 of RA 8436, as amended by RA 9369.
In enacting RA 9369, Congress even further clarified the first proviso in the third paragraph of
Section 15 of RA 8436. The original provision in RA 8436 states
x x x Provided, further, That, unlawful acts or omissions applicable to a candidate shall take
effect upon the start of the aforesaid campaign period, x x x.
In RA 9369, Congress inserted the word "only" so that the first proviso now reads
x x x Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only
upon the start of the aforesaid campaign period x x x. (Emphasis supplied)
Thus, Congress not only reiterated but also strengthened its mandatory directive that election
offenses can be committed by a candidate "only" upon the start of the campaign period. This
clearly means that before the start of the campaign period, such election offenses cannot be so
committed.
When the applicable provisions of RA 8436, as amended by RA 9369, are read together, these
provisions of law do not consider Penera a candidate for purposes other than the printing of
ballots, until the start of the campaign period. There is absolutely no room for any other
interpretation.
We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio:
x x x The definition of a "candidate" in Section 79(a) of the Omnibus Election Code should be
read together with the amended Section 15 of RA 8436. A "candidate refers to any person
aspiring for or seeking an elective public office, who has filed a certificate of candidacy by
himself or through an accredited political party, aggroupment or coalition of parties." However, it
is no longer enough to merely file a certificate of candidacy for a person to be considered a
candidate because "any person who files his certificate of candidacy within [the filing] period
shall only be considered a candidate at the start of the campaign period for which he filed his
certificate of candidacy." Any person may thus file a certificate of candidacy on any day within
the prescribed period for filing a certificate of candidacy yet that person shall be considered a
candidate, for purposes of determining ones possible violations of election laws, only during the
campaign period. Indeed, there is no "election campaign" or "partisan political activity" designed

to promote the election or defeat of a particular candidate or candidates to public office simply
because there is no "candidate" to speak of prior to the start of the campaign period. Therefore,
despite the filing of her certificate of candidacy, the law does not consider Penera a candidate at
the time of the questioned motorcade which was conducted a day before the start of the
campaign period. x x x
The campaign period for local officials began on 30 March 2007 and ended on 12 May 2007.
Penera filed her certificate of candidacy on 29 March 2007. Penera was thus a candidate on 29
March 2009 only for purposes of printing the ballots. On 29 March 2007, the law still did not
consider Penera a candidate for purposes other than the printing of ballots. Acts committed by
Penera prior to 30 March 2007, the date when she became a "candidate," even if constituting
election campaigning or partisan political activities, are not punishable under Section 80 of the
Omnibus Election Code. Such acts are within the realm of a citizens protected freedom of
expression. Acts committed by Penera within the campaign period are not covered by Section
80 as Section 80 punishes only acts outside the campaign period.5
The assailed Decision gives a specious reason in explaining away the first proviso in the third
paragraph, the amended Section 15 of RA 8436 that election offenses applicable to candidates
take effect only upon the start of the campaign period. The Decision states that:
x x x [T]he line in Section 15 of Republic Act No. 8436, as amended, which provides that "any
unlawful act or omission applicable to a candidate shall take effect only upon the start of the
campaign period," does not mean that the acts constituting premature campaigning can only be
committed, for which the offender may be disqualified, during the campaign period. Contrary to
the pronouncement in the dissent, nowhere in said proviso was it stated that campaigning
before the start of the campaign period is lawful, such that the offender may freely carry out the
same with impunity.
As previously established, a person, after filing his/her COC but prior to his/her becoming a
candidate (thus, prior to the start of the campaign period), can already commit the acts
described under Section 79(b) of the Omnibus Election Code as election campaign or partisan
political activity, However, only after said person officially becomes a candidate, at the beginning
of the campaign period, can said acts be given effect as premature campaigning under Section
80 of the Omnibus Election Code. Only after said person officially becomes a candidate, at the
start of the campaign period, can his/her disqualification be sought for acts constituting
premature campaigning. Obviously, it is only at the start of the campaign period, when the
person officially becomes a candidate, that the undue and iniquitous advantages of his/her prior
acts, constituting premature campaigning, shall accrue to his/her benefit. Compared to the other
candidates who are only about to begin their election campaign, a candidate who had previously
engaged in premature campaigning already enjoys an unfair headstart in promoting his/her
candidacy.6 (Emphasis supplied)
It is a basic principle of law that any act is lawful unless expressly declared unlawful by law. This
is specially true to expression or speech, which Congress cannot outlaw except on very narrow
grounds involving clear, present and imminent danger to the State. The mere fact that the law
does not declare an act unlawful ipso facto means that the act is lawful. Thus, there is no need
for Congress to declare in Section 15 of RA 8436, as amended by RA 9369, that political

partisan activities before the start of the campaign period are lawful. It is sufficient for Congress
to state that "any unlawful act or omission applicable to a candidate shall take effect only upon
the start of the campaign period." The only inescapable and logical result is that the same acts,
if done before the start of the campaign period, are lawful.
In laymans language, this means that a candidate is liable for an election offense only for acts
done during the campaign period, not before. The law is clear as daylight any election
offense that may be committed by a candidate under any election law cannot be committed
before the start of the campaign period. In ruling that Penera is liable for premature
campaigning for partisan political acts before the start of the campaigning, the assailed Decision
ignores the clear and express provision of the law.
The Decision rationalizes that a candidate who commits premature campaigning can be
disqualified or prosecuted only after the start of the campaign period. This is not what the law
says. What the law says is "any unlawful act or omission applicable to a candidate shall take
effect only upon the start of the campaign period." The plain meaning of this provision is that the
effective date when partisan political acts become unlawful as to a candidate is when the
campaign period starts. Before the start of the campaign period, the same partisan political acts
are lawful.
The law does not state, as the assailed Decision asserts, that partisan political acts done by a
candidate before the campaign period are unlawful, but may be prosecuted only upon the start
of the campaign period. Neither does the law state that partisan political acts done by a
candidate before the campaign period are temporarily lawful, but becomes unlawful upon the
start of the campaign period. This is clearly not the language of the law. Besides, such a law as
envisioned in the Decision, which defines a criminal act and curtails freedom of expression and
speech, would be void for vagueness.
Congress has laid down the law a candidate is liable for election offenses only upon the start
of the campaign period. This Court has no power to ignore the clear and express mandate of
the law that "any person who files his certificate of candidacy within [the filing] period shall only
be considered a candidate at the start of the campaign period for which he filed his certificate of
candidacy." Neither can this Court turn a blind eye to the express and clear language of the law
that "any unlawful act or omission applicable to a candidate shall take effect only upon the start
of the campaign period."
The forum for examining the wisdom of the law, and enacting remedial measures, is not this
Court but the Legislature. This Court has no recourse but to apply a law that is as clear, concise
and express as the second sentence, and its immediately succeeding proviso, as written in the
third paragraph of Section 15 of RA 8436, as amended by RA 9369.
WHEREFORE, we GRANT petitioner Rosalinda A. Peneras Motion for Reconsideration. We
SET ASIDE the Decision of this Court in G.R. No. 181613 promulgated on 11 September 2009,
as well as the Resolutions dated 24 July 2007 and 30 January 2008 of the COMELEC Second
Division and the COMELEC En Banc, respectively, in SPA No. 07-224. Rosalinda A. Penera
shall continue as Mayor of Sta. Monica, Surigao del Norte.

SO ORDERED.

G.R. No. 147571

May 5, 2001

SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING

CORPORATION, doing business as MANILA STANDARD, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
MENDOZA, J.:
Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social research
institution conducting surveys in various fields, including economics, politics, demography, and social
development, and thereafter processing, analyzing, and publicly reporting the results thereof. On the
other hand, petitioner Kamahalan Publishing Corporation publishes the Manila Standard, a
newspaper of general circulation, which features news- worthy items of information including election
surveys.
1wphi1.nt

Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing
5.4 of RA. No.9006 (Fair Election Act), which provides:
Surveys affecting national candidates shall not be published fifteen (15) days before an
election and surveys affecting local candidates shall not be published seven (7) days be- fore
an election.
The term "election surveys" is defined in 5.1 of the law as follows:
Election surveys refer to the measurement of opinions and perceptions of the voters as
regards a candidate's popularity, qualifications, platforms or a matter of public discussion in
relation to the election, including voters preference for candidates or publicly discussed
issues during the campaign period (hereafter referred to as "Survey").

The implement 5.4, Resolution 3636, 24(h), dated March I, 2001, of the COMELEC enjoins
Surveys affecting national candidates shall not be published fifteen (15) days before an
election and surveys affecting local candidates shall not be published seven (7) days be- fore
an election.
Petitioner SWS states that it wishes to conduct an election survey throughout the period of the
elections both at the national and local levels and release to the media the results of such survey as
well as publish them directly. Petitioner Kamahalan Publishing Corporation, on the other hand, states
that it intends to publish election survey results up to the last day of the elections on May 14,2001.
Petitioners argue that the restriction on the publication of election survey results constitutes a prior
restraint on the exercise of freedom of speech without any clear and present danger to justify such
restraint. They claim that SWS and other pollsters conducted and published the results of surveys
prior to the 1992, 1995, and 1998 elections up to as close as two days before the election day
without causing confusion among the voters and that there is neither empirical nor historical
evidence to support the conclusion that there is an immediate and inevitable danger to tile voting
process posed by election surveys. They point out that no similar restriction is imposed on politicians
from explaining their opinion or on newspapers or broadcast media from writing and publishing
articles concerning political issues up to the day of the election. Consequently, they contend that
there is no reason for ordinary voters to be denied access to the results of election surveys, which
are relatively objective.
1wphi1.nt

Respondent Commission on Elections justifies the restrictions in 5.4 of R.A. No. 9006 as necessary
to prevent the manipulation and corruption of the electoral process by unscrupulous and erroneous
surveys just before the election. It contends that (1) the prohibition on the publication of election
survey results during the period proscribed by law bears a rational connection to the objective of the
law, i.e., the prevention of the debasement of the electoral process resulting from manipulated
surveys, bandwagon effect, and absence of reply; (2) it is narrowly tailored to meet the "evils" sought
to be prevented; and (3) the impairment of freedom of expression is minimal, the restriction being
limited both in duration, i.e., the last 15 days before the national election and the last 7 days before a
local election, and in scope as it does not prohibit election survey results but only require timeliness.
Respondent claims that in National Press Club v. COMELEC,1 a total ban on political
advertisements, with candidates being merely allocated broadcast time during the so-called
COMELEC space or COMELEC hour, was upheld by this Court. In contrast, according to
respondent, it states that the prohibition in 5.4 of RA. No. 9006 is much more limited.
For reasons hereunder given, we hold that 5.4 of R.A. No. 9006 constitutes an unconstitutional
abridgment of freedom of speech, expression, and the press.
To be sure, 5.4Iays a prior restraint on freedom of speech, expression, and the press prohibiting the
publication of election survey results affecting candidates within the prescribed periods of fifteen (15)
days immediately preceding a national election seven (7) days before a local election. Because of
tile preferred status of tile constitutional rights of speech, expression, and he press, such a measure
is vitiated by a weighty presumption of invalidity.2 Indeed, any system of prior restraints of expression
comes to this Court bearing a heavy Presumption against its constitutional validity. ...The
Government thus carries a heavy burden of showing justification for in enforcement of such restraint.
"'3 There, thus a reversal of the normal presumption of validity that inheres in every legislation.

Nor may it be argued that because of Art. IX-C, 4 of the Constitution, which gives the COMELEC
supervisory power to regulate the enjoyment or utilization of franchise for the operation of media of
communication, no presumption of invalidity attaches to a measure like 5.4. For as we have pointed
out in sustaining tile ban on media political advertisements, the grant of power to the COMELEC
under Art. IX-C, 4 is limited to ensuring "equal opportunity, time, space, and the right to reply" as
well as uniform and reasonable rates of charges for the use of such media facilities "public
information campaigns and forums among candidates." 4 This Court stated:
The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no
presumption of invalidity arises in respect of exercises of supervisory or regulatory authority
on the part of the Comelec for the Purpose of securing equal opportunity among candidates
for political office, although such supervision or regulation may result in some limitation of the
rights of free speech and free press.5
MR JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present danger
for determining the validity of 5.4. Indeed, as has been pointed out in Osmea v. COMELEC,6 this
test was originally formulated for the criminal law and only later appropriated for free speech cases.
Hence, while it may be useful for determining the validity of laws dealing with inciting to sedition or
incendiary speech, it may not be adequate for such regulations as the one in question. For such
a test is concerned with questions of the gravity and imminence of the danger as basis for curtailing
free speech, which is not the case of 5.4 and similar regulations.
Instead, MR JUSTICE KAPUNAN purports to engage in a form of balancing by "weighing and
balancing the circumstances to determine whether public interest [in free, orderly, honest, peaceful
and credible elections] is served by the regulation of the free enjoyment of the rights" (page 7). After
canvassing the reasons for the prohibition, i.e., to prevent last-minute pressure on voters, the
creation of bandwagon effect to favor candidates, misinformation, the junking" of weak and "losing"
candidates by their parties, and the form of election cheating called "dagdag-bawas" and invoking
the State's power to supervise media of information during the election period (pages 11-16), the
dissenting opinion simply concludes:
Viewed in the light of the legitimate and significant objectives of Section 5.4, It may be seen
that its limitingimpact on the rights of free speech and of the press is not unduly repressive or
unreasonable. In Indeed, it is a mere restriction, not an absolute prohibition, on the
publication of election surveys. It is limited in duration; it applies only during the period when
the voters are presumably contemplating whom they should elect and when they are most
susceptible to such unwarranted persuasion. These surveys may be published thereafter.
(Pages 17-18)
The dissent does not, however, show why, on balance, these considerations should outweigh the
value of freedom of expression. Instead, reliance is placed on Art. IX-C, 4. As already stated, the
purpose of Art. IX-C, 4 is to "ensure equal opportunity, time, and space and the right of reply,
including reasonable, equal rates therefor for public information campaigns and forums among
candidates. " Hence the validity of the ban on media advertising. It is noteworthy that R.A. No. 9006,
14 has lifted the ban and now allows candidates to advertise their candidacies in print and
broadcast media. Indeed, to sustain the ban on the publication of survey results would sanction the
censorship of all speaking by candidates in an election on the ground that the usual bombasts and
hyperbolic claims made during the campaigns can confuse voters and thus debase the electoral
process.

In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc balancing
predictably results in sustaining the challenged legislation and leaves freedom of speech,
expression, and the press with little protection. For anyone who can bring a plausible justification
forward can easily show a rational connection between the statute and a legitimate governmental
purpose. In contrast, the balancing of interest undertaken by then Justice Castro
in Gonzales v. COMELEC,7 from which the dissent in this case takes its cue, was a strong one
resulting in his conclusion that , 50-B of R.A. No. 4880, which limited the period of election
campaign and partisan political activity, was an unconstitutional abridgment of freedom of
expression.
Nor can the ban on election surveys be justified on the ground that there are other countries - 78,
according to the Solicitor General, while the dissent cites 28 - which similarly impose restrictions on
the publication of election surveys. At best this survey is inconclusive. It is note worthy that in the
United States no restriction on the publication of election survey results exists. It cannot be argued
that this is because the United States is a mature democracy. Neither are there laws imposing an
embargo on survey results, even for a limited period, in other countries. As pointed out by
petitioners, the United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland, Ireland,
Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden, and Ukraine, some of which are no
older nor more mature than the Philippines in political development, do not restrict the publication of
election survey results.
What test should then be employed to determine the constitutional validity of 5.4? The United
States Supreme Court, through Chief Justice Warren, held in United States v. O 'Brien:
[A] Government regulation is sufficiently justified [1] if it is within the constitutional power of
the Government; [2] if it furthers an important or substantial governmental interest; [3] if the
governmental interest is unrelated to the suppression of free expression; and [4] if the
incidental restriction on alleged First Amendment freedoms [of speech, expression and
press] is no greater than is essential to the furtherance of that interest. 8
This is so far the most influential test for distinguishing content-based from content neutral
regulations and is said to have "become canonical in the review of such laws." 9 is noteworthy that
the O 'Brien test has been applied by this Court in at least two cases.10
Under this test, even if a law furthers an important or substantial governmental interest, it should be
invalidated if such governmental interest is "not unrelated to the Expression of free expression."
Moreover, even if the purpose is unrelated to the suppression of free speech, the law should
nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to
achieve the governmental purpose in question.
Our inquiry should accordingly focus on these two considerations as applied to 5.4.
>First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the causal connection of
expression to the asserted governmental interest makes such interest "not related to the
suppression of free expression." By prohibiting the publication of election survey results because of
the possibility that such publication might undermine the integrity of the election, 5.4 actually
suppresses a whole class of expression, while allowing the expression of opinion concerning the
same subject matter by newspaper columnists, radio and TV commentators, armchair theorists, and
other opinion takers. In effect, 5.4 shows a bias for a particular subject matter, if not viewpoint, by

referring personal opinion to statistical results. The constitutional guarantee of freedom of expression
means that "the government has no power to restrict expression because of its message, its ideas,
its subject matter, or its content."11 The inhibition of speech should be upheld only if the expression
falls within one of the few unprotected categories dealt with in Chaplinsky v. New Hampshire, 12 thus:
There are certain well-defined and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any Constitutional problem. These
include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words those which by their very utterance inflict injury or tend to incite an immediate breach of the
peace. [S]uch utterances are no essential part of any exposition of ideas, and are of such
slight social value as a step to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality
Nor is there justification for the prior restraint which 5.4Iays on protected speech. Near v.
Minnesota,13 it was held:
[The] protection even as to previous restraint is not absolutely unlimited. But the limitation
has been recognized only in exceptional cases. No one would question but that a
government might prevent actual obstruction to its recruiting service or the publication of the
sailing dates transports or the number and location of troops. On similar grounds, the
primary requirements of decency may be enforced against obscene publications. The
security of the community life may be protected against incitements to acts of violence and
overthrow by force of orderly government
Thus, contrary to the claim of the Solicitor General, the prohibition imposed by 5.4 cannot be
justified on the ground that it is only for a limited period and is only incidental. The prohibition may be
for a limited time, but the curtailment of the right of expression is direct, absolute, and substantial. It
constitutes a total suppression of a category of speech and is not made less so because it is only for
a period of fifteen (15) days immediately before a national election and seven (7) days immediately
before a local election. ..
This sufficiently distinguishes 5.4 from R.A. No. 6646, 11(b), which this Court found to be valid
in National Press Club v. COMELEC,14 and Osmea v. COMELEC.15 For the ban imposed by R.A.
No. 6646, 11(b) is not only authorized by a specific constitutional provision, 16 but it also provided an
alternative so that, as this Court pointed out in Osmea, there was actually no ban but only a
substitution of media advertisements by the COMELEC space and COMELEC hour.
Second. Even if the governmental interest sought to be promoted is unrelated to the suppression of
speech and the resulting restriction of free expression is only incidental, 5.4 nonetheless fails to
meet criterion [4] of the O'Brien test, namely, that the restriction be not greater than is necessary to
further the governmental interest. As already stated, 5.4 aims at the prevention of last-minute
pressure on voters, the creation of bandwagon effect, "junking" of weak or "losing" candidates, and
resort to the form of election cheating called "dagdag-bawas." Praiseworthy as these aims of the
regulation might be, they cannot be attained at the sacrifice of the fundamental right of expression,
when such aim can be more narrowly pursued by punishing unlawful acts, rather
than speechbecause of apprehension that such speech creates the danger of such evils. Thus,
under the Administrative Code of 1987,17 the COMELEC is given the power:

To stop any illegal activity, or confiscate, tear down, and stop

any unlawful, libelous, misleading or false election propaganda, after due notice and hearing.
This is surely a less restrictive means than the prohibition contained in 5.4. Pursuant to this power
of the COMELEC, it can confiscate bogus survey results calculated to mislead voters. Candidates
can have their own surveys conducted. No right of reply can be invoked by others. No principle of
equality is involved. It is a free market to which each candidate brings his ideas. As for the purpose
of the law to prevent bandwagon effects, it is doubtful whether the Government can deal with this
natural-enough tendency of some voters. Some voters want to be identified with the "winners."
Some are susceptible to the herd mentality. Can these be legitimately prohibited by suppressing the
publication of survey results, which are a form of expression? It has been held that "[mere] legislative
preferences or beliefs respecting matters of public convenience may well support regulation directed
at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so
vital to the maintenance of democratic institutions."18
To summarize then, we hold that 5.4 is invalid because (1) it imposes a prior restraint on the
freedom of expression, (2) it is a direct and total suppression of a category of expression even
though such suppression is only for a limited period, and (3) the governmental interest sought to be
promoted can be achieved by means other than suppression of freedom of expression.
On the other hand, the COMELEC contends that under Art. IX-A, 7 of the Constitution, its
decisions, orders, or resolution may be reviewed by this Court only certiorari. The flaws in this
argument is that it assumes that its Resolution 3636, March 1, 2001 is a "decision, order, or
resolution" within the meaning of Art. IX-A, 7. Indeed, counsel for COMELEC maintain that
Resolution 3636 was "rendered" by the Commission. However, the Resolution does not purport to
adjudicate the right of any party. It is not an exercise by the COMELEC of its adjudicatory power to
settle the claims of parties. To the contrary, Resolution 3636 clearly states that it is promulgated to
implement the provisions of R.A. No. 9006. Hence, there is no basis for COMELEC's claim that this
petition for prohibition is inappropriate. Prohibition has been fund appropriate for testing the
constitutionality of various election laws, rules, and regulations.19
WHEREFORE, the petition for prohibited GRANTED and 5.4 of R.A. No. 9006 24(h) of
COMELEC Resolution 3636, March 1, 2001, are declared unconstitutional.
1wphi1.nt

SO ORDERED.

1wphi1.nt

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 205357

September 2, 2014

GMA NETWORK, INC., Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.
SENATOR ALAN PETER "COMPAERO" S. CAYETANO,Petitioner-Intervenor.
x-----------------------x
G.R. No. 205374

ABC DEVELOPMENT CORPORATION, Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 205592
MANILA BROADCASTING COMPANY, INC. and NEWSOUNDS BROADCASTING NETWORK,
INC., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 205852
KAPISANAN NG MGA BRODKASTER NG PILIPINAS (KBP) and ABS-CBN
CORPORATION, Petitioners,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 206360
RADIO MINDANAO NETWORK, INC., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
DECISION
PERALTA, J.:
"The clash of rights demands a delicate balancing of interests approach which is a 'fundamental
postulate of constitutional law.'"
1

Once again the Court is asked to draw a carefully drawn balance in the incessant conflicts between
rights and regulations, liberties and limitations, and competing demands of the different segments of
society. Here, we are confronted with the need to strike a workable and viable equilibrium between a
constitutional mandate to maintain free, orderly, honest, peaceful and credible elections, together
with the aim of ensuring equal opportunity, time and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums among
candidates, on one hand, and the imperatives of a republican and democratic state, together with
its guaranteed rights of suffrage, freedom of speech and of the press, and the people's right to
information, on the other.
2

In a nutshell, the present petitions may be seen as in search of the answer to the question - how
does the Charter of a republican and democratic State achieve a viable and acceptable balance
between liberty, without which, government becomes an unbearable tyrant, and authority, without
which, society becomes an intolerable and dangerous arrangement?

Assailed in these petitions are certain regulations promulgated by the Commission on Elections
(COMELEC) relative to the conduct of the 2013 national and local elections dealing with political
advertisements. Specifically, the petitions question the constitutionality of the limitations placed on
aggregate airtime allowed to candidates and political parties, as well as the requirements incident
thereto, such as the need to report the same, and the sanctions imposed for violations.
The five (5) petitions before the Court put in issue the alleged unconstitutionality of Section 9 (a) of
COMELEC Resolution No. 9615 (Resolution) limiting the broadcast and radio advertisements of
candidates and political parties for national election positions to an aggregate total of one hundred
twenty (120) minutes and one hundred eighty (180) minutes, respectively. They contend that such
restrictive regulation on allowable broadcast time violates freedom of the press, impairs the people's
right to suffrage as well as their right to information relative to the exercise of their right to choose
who to elect during the forth coming elections.
The heart of the controversy revolves upon the proper interpretation of the limitation on the number
of minutes that candidates may use for television and radio advertisements, as provided in Section 6
of Republic Act No. 9006 (R.A. No. 9006), otherwise known as the Fair Election Act. Pertinent
portions of said provision state, thus:
Sec. 6. Equal Access to Media Time and Space. - All registered parties and bona fide candidates
shall have equal access to media time and space. The following guidelines may be amplified on by
the COMELEC:
xxxx
6.2 (a) Each bona fide candidate or registered political party for a nationally elective office shall be
entitled to not more than one hundred twenty (120) minutes of television advertisement and one
hundred eighty (180) minutes of radio advertisement whether by purchase or donation.
b. Each bona fide candidate or registered political party for a locally elective office shall be entitled to
not more than sixty ( 60) minutes of television advertisement and ninety (90) minutes of radio
advertisement whether by purchase or donation.
For this purpose, the COMELEC shall require any broadcast station or entity to submit to the
COMELEC a copy of its broadcast logs and certificates of performance for the review and
verification of the frequency, date, time and duration of advertisements broadcast for any candidate
or political party.
During the previous elections of May 14, 2007 and May 10, 2010, COMELEC issued Resolutions
implementing and interpreting Section 6 of R.A. No. 9006, regarding airtime limitations, to mean that
a candidate is entitled to the aforestated number of minutes "per station." For the May 2013
elections, however, respondent COMELEC promulgated Resolution No. 9615 dated January 15,
2013, changing the interpretation of said candidates' and political parties' airtime limitation for
political campaigns or advertisements from a "per station" basis, to a "total aggregate" basis.
7

Petitioners ABS-CBN Corporation (ABS-CBN), ABC Development Corporation (ABC), GMA Network,
Incorporated ( GMA), Manila Broadcasting Company, Inc. (MBC), Newsounds Broadcasting
Network, Inc. (NBN), and Radio Mindanao Network, Inc. (RMN) are owners/operators of radio and
television networks in the Philippines, while petitioner Kapisanan ng mga Brodkaster ng Pilipinas
(KBP) is the national organization of broadcasting companies in the Philippines representing
operators of radio and television stations and said stations themselves. They sent their respective
letters to the COMELEC questioning the provisions of the aforementioned Resolution, thus, the

COMELEC held public hearings. Thereafter, on February 1, 2013, respondent issued Resolution No.
9631 amending provisions of Resolution No. 9615. Nevertheless, petitioners still found the
provisions objectionable and oppressive, hence, the present petitions.
All of the petitioners assail the following provisions of the Resolution:
a) Section 7 (d), which provides for a penalty of suspension or revocation of an offender's
franchise or permit, imposes criminal liability against broadcasting entities and their officers
in the event they sell airtime in excess of the size, duration, or frequency authorized in the
new rules;
8

b) Section 9 (a), which provides for an "aggregate total" airtime instead of the previous "per
station" airtime for political campaigns or dvertisements, and also required prior COMELEC
approval for candidates' television and radio guestings and appearances; and
9

c) Section 14, which provides for a candidate's "right to reply."

10

In addition, petitioner ABC also questions Section 1 (4) thereof, which defines the term "political
advertisement" or "election propaganda," while petitioner GMA further assails Section 35, which
states that any violation of said Rules shall constitute an election offense.
11

12

On March 15, 2013, Senator Alan Peter S. Cayetano (Petitioner-Intervenor) filed a Motion for Leave
to Intervene and to File and Admit the Petition-in-Intervention, which was granted by the Court per its
Resolution dated March 19, 2013. Petitioner-Intervenor also assails Section 9 (a) of the Resolution
changing the interpretation of candidates' and political parties' airtime limitation for political
campaigns or advertisements from a "per station" basis, to a "total aggregate" basis. Petitioners
allege that Resolutions No. 9615 and 9631, amending the earlier Resolution, are unconstitutional
and issued without jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction, for the reasons set forth hereunder.
Petitioners posit that Section 9 (a) of the assailed Resolution provides for a very restrictive
aggregate airtime limit and a vague meaning for a proper computation of "aggregate total" airtime,
and violates the equal protection guarantee, thereby defeating the intent and purpose of R.A. No.
9006.
Petitioners contend that Section 9 (a), which imposes a notice requirement, is vague and infringes
on the constitutionally protected freedom of speech, of the press and of expression, and on the right
of people to be informed on matters of public concern
Also, Section 9 (a) is a cruel and oppressive regulation as it imposes an unreasonable and almost
impossible burden on broadcast mass media of monitoring a candidate's or political party's
aggregate airtime, otherwise, it may incur administrative and criminal liability.
Further, petitioners claim that Section 7 (d) is null and void for unlawfully criminalizing acts not
prohibited and penalized as criminal offenses by R.A. No. 9006.
Section 14 of Resolution No. 9615, providing for a candidate's or political party's "right to reply," is
likewise assailed to be unconstitutional for being an improper exercise of the COMELEC's regulatory
powers; for constituting prior restraint and infringing petitioners' freedom of expression, speech and
the press; and for being violative of the equal protection guarantee. In addition to the foregoing,
petitioner GMA further argues that the Resolution was promulgated without public consultations, in

violation of petitioners' right to due process. Petitioner ABC also avers that the Resolution's definition
of the terms "political advertisement" and "election propaganda" suffers from overbreadth, thereby
producing a "chilling effect," constituting prior restraint.
On the other hand, respondent posits in its Comment and Opposition dated March 8, 2013, that the
petition should be denied based on the following reasons:
13

Respondent contends that the remedies of certiorari and prohibition are not available to petitioners,
because the writ of certiorari is only available against the COMELEC's adjudicatory or quasi-judicial
powers, while the writ of prohibition only lies against the exercise of judicial, quasijudicial or
ministerial functions. Said writs do not lie against the COMELEC's administrative or rule-making
powers.
Respondent likewise alleges that petitioners do not have locus standi, as the constitutional rights
and freedoms they enumerate are not personal to them, rather, they belong to candidates, political
parties and the Filipino electorate in general, as the limitations are imposed on candidates, not on
media outlets. It argues that petitioners' alleged risk of exposure to criminal liability is insufficient to
give them legal standing as said "fear of injury" is highly speculative and contingent on a future act.
Respondent then parries petitioners' attack on the alleged infirmities of the Resolution's provisions.
Respondent maintains that the per candidate rule or total aggregate airtime limit is in accordance
with R.A. No. 9006 as this would truly give life to the constitutional objective to equalize access to
media during elections. It sees this as a more effective way of levelling the playing field between
candidates/political parties with enormous resources and those without much. Moreover, the
COMELEC's issuance of the assailed Resolution is pursuant to Section 4, Article IX (C) of the
Constitution which vests on the COMELEC the power to supervise and regulate, during election
periods, transportation and other public utilities, as well as mass media, to wit:
Sec. 4. The Commission may, during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities,
media of communication or information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any government-owned
or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, and equal rates therefor, for public information campaigns and forums among
candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible
elections.
This being the case, then the Resolutions cannot be said to have been issued with grave abuse of
discretion amounting to lack of jurisdiction.
Next, respondent claims that the provisions are not vague because the assailed Resolutions have
given clear and adequate mechanisms to protect broadcast stations from potential liability arising
from a candidate's or party's violation of airtime limits by putting in the proviso that the station "may
require buyer to warrant under oath that such purchase [of airtime] is not in excess of size, duration
or frequency authorized by law or these rules." Furthermore, words should be understood in the
sense that they have in common usage, and should be given their ordinary meaning. Thus, in the
provision for the right to reply, "charges" against candidates or parties must be understood in the
ordinary sense, referring to accusations or criticisms.
Respondent also sees no prior restraint in the provisions requiring notice to the COMELEC for
appearances or guestings of candidates in bona fide news broadcasts. It points out that the fact that

notice may be given 24 hours after first broadcast only proves that the mechanism is for monitoring
purposes only, not for censorship. Further, respondent argues, that for there to be prior restraint,
official governmental restrictions on the press or other forms of expression must be done in advance
of actual publication or dissemination. Moreover, petitioners are only required to inform the
COMELEC of candidates'/parties' guestings, but there is no regulation as to the content of the news
or the expressions in news interviews or news documentaries. Respondent then emphasized that
the Supreme Court has held that freedom of speech and the press may be limited in light of the duty
of the COMELEC to ensure equal access to opportunities for public service.
With regard to the right to reply provision, respondent also does not consider it as restrictive of the
airing of bona fide news broadcasts. More importantly, it stressed, the right to reply is enshrined in
the Constitution, and the assailed Resolutions provide that said right can only be had after going
through administrative due process. The provision was also merely lifted from Section 10 of R.A. No.
9006, hence, petitioner ABC is actually attacking the constitutionality of R.A. No. 9006, which cannot
be done through a collateral attack.
Next, respondent counters that there is no merit to ABC's claim that the Resolutions' definition of
"political advertisement" or "election propaganda" suffers from overbreadth, as the extent or scope of
what falls under said terms is clearly stated in Section 1 (4) of Resolution No. 9615.
It is also respondent's view that the nationwide aggregate total airtime does not violate the equal
protection clause, because it does not make any substantial distinctions between national and
regional and/or local broadcast stations, and even without the aggregate total airtime rule,
candidates and parties are likely to be more inclined to advertise in national broadcast stations.
Respondent likewise sees no merit in petitioners' claim that the Resolutions amount to taking of
private property without just compensation. Respondent emphasizes that radio and television
broadcasting companies do not own the airwaves and frequencies through which they transmit
broadcast signals; they are merely given the temporary privilege to use the same. Since they are
merely enjoying a privilege, the same may be reasonably burdened with some form of public service,
in this case, to provide candidates with the opportunity to reply to charges aired against them.
Lastly, respondent contends that the public consultation requirement does not apply to constitutional
commissions such as the COMELEC, pursuant to Section 1, Chapter I, Book VII of the
Administrative Code of 1987. Indeed, Section 9, Chapter II, Book VII of said Code provides, thus:
Section 9. Public Participation. - (1) If not otherwise required by law, an agency shall, as far
as practicable, publish or circulate notices of proposed rules and afford interested parties the
opportunity to submit their views prior to the adoption of any rule.
However, Section 1, Chapter 1, Book VII of said Code clearly provides:
Section 1. Scope. -This Book shall be applicable to all agencies as defined in the next
succeeding section, except the Congress, the Judiciary, the Constitutional Commissions,
military establishments in all matters relating exclusively to Armed Forces personnel, the
Board of Pardons and Parole, and state universities and colleges.
Nevertheless, even if public participation is not required, respondent still conducted a meeting with
representatives of the KBP and various media outfits on December 26, 2012, almost a month before
the issuance of Resolution No. 9615.
On April 2, 2013, petitioner GMA filed its Reply, where it advanced the following counter-arguments:
14

According to GMA, a petition for certiorari is the proper remedy to question the herein assailed
Resolutions, which should be considered as a "decision, order or ruling of the Commission" as
mentioned in Section 1, Rule 37 of the COMELEC Rules of Procedure which provides:
Section 1. Petition for Certiorari, and Time to File. - Unless otherwise provided by law, or by any
specific provisions in these Rules, any decision, order or ruling of the Commission may be brought to
the Supreme Court on certiorari by the aggrieved party within thirty (30) days from its promulgation.
GMA further stressed that this case involves national interest, and the urgency of the matter justifies
its resort to the remedy of a petition for certiorari.
Therefore, GMA disagrees with the COMELEC's position that the proper remedy is a petition for
declaratory relief because such action only asks the court to make a proper interpretation of the
rights of parties under a statute or regulation. Such a petition does not nullify the assailed statute or
regulation, or grant injunctive relief, which petitioners are praying for in their petition. Thus, GMA
maintains that a petition for certiorari is the proper remedy.
GMA further denies that it is making a collateral attack on the Fair Election Act, as it is not attacking
said law. GMA points out that it has stated in its petition that the law in fact allows the sale or
donation of airtime for political advertisements and does not impose criminal liability against radio
and television stations. What it is assailing is the COMELEC's erroneous interpretation of the law's
provisions by declaring such sale and/or donation of airtime unlawful, which is contrary to the
purpose of the Fair Election Act.
GMA then claims that it has legal standing to bring the present suit because:
x x x First, it has personally suffered a threatened injury in the form of risk of criminal liability
because of the alleged unconstitutional and unlawful conduct of respondent COMELEC in expanding
what was provided for in R.A. No. 9006. Second, the injury is traceable to the challenged action of
respondent COMELEC, that is, the issuance of the assailed Resolutions. Third, the injury is likely to
be redressed by the remedy sought in petitioner GMA's Petition, among others, for the Honorable
Court to nullify the challenged pertinent provisions of the assailed Resolutions.
15

On substantive issues, GMA first argues that the questioned Resolutions are contrary to the
objective and purpose of the Fair Election Act. It points out that the Fair Election Act even repealed
the political ad ban found in the earlier law, R.A. No. 6646. The Fair Election Act also speaks of
"equal opportunity" and "equal access,'' but said law never mentioned equalizing the economic
station of the rich and the poor, as a declared policy. Furthermore, in its opinion, the supposed
correlation between candidates' expenditures for TV ads and actually winning the elections, is a
mere illusion, as there are other various factors responsible for a candidate's winning the election.
GMA then cites portions of the deliberations of the Bicameral Conference Committee on the bills that
led to the enactment of the Fair Election Act, and alleges that this shows the legislative intent that
airtime allocation should be on a "per station" basis. Thus, GMA claims it was arbitrary and a grave
abuse of discretion for the COMELEC to issue the present Resolutions imposing airtime limitations
on an "aggregate total" basis.
It is likewise insisted by GMA that the assailed Resolutions impose an unconstitutional burden on
them, because their failure to strictly monitor the duration of total airtime that each candidate has
purchased even from other stations would expose their officials to criminal liability and risk losing the
station's good reputation and goodwill, as well as its franchise. It argues that the wordings of the
Resolutions belie the COMELEC's claim that petitioners would only incur liability if they "knowingly"
sell airtime beyond the limits imposed by the Resolutions, because the element of knowledge is

clearly absent from the provisions thereof. This makes the provisions have the nature of malum
prohibitum.
Next, GMA also says that the application of the aggregate airtime limit constitutes prior restraint and
is unconstitutional, opining that "[t]he reviewing power of respondent COMELEC and its sole
judgment of a news event as a political advertisement are so pervasive under the assailed
Resolutions, and provoke the distastes or chilling effect of prior restraint" as even a legitimate
exercise of a constitutional right might expose it to legal sanction. Thus, the governmental interest of
leveling the playing field between rich and poor candidates cannot justify the restriction on the
freedoms of expression, speech and of the press.
16

On the issue of lack of prior public participation, GMA cites Section 82 of the Omnibus Election
Code, pertinent portions of which provide, thus:
Section 82. Lawful election propaganda. - Lawful election propaganda shall include:
xxxx
All other forms of election propaganda not prohibited by this Code as the Commission may authorize
after due notice to all interested parties and hearing where all the interested parties were given an
equal opportunity to be heard: Provided, That the Commission's authorization shall be published in
two newspapers of general circulation throughout the nation for at least twice within one week after
the authorization has been granted.
There having been no prior public consultation held, GMA contends that the COMELEC is guilty of
depriving petitioners of its right to due process of law.
GMA then concludes that it is also entitled to a temporary restraining order, because the
implementation of the Resolutions in question will cause grave and irreparable damage to it by
disrupting and emasculating its mandate to provide television and radio services to the public, and
by exposing it to the risk of incurring criminal and administrative liability by requiring it to perform the
impossible task of surveillance and monitoring, or the broadcasts of other radio and television
stations.
Thereafter, on April 4, 2013, the COMELEC, through the Office of the Solicitor General (OSG), filed a
Supplemental Comment and Opposition where it further expounded on the legislative intent behind
the Fair Election Act, also quoting portions of the deliberations of the Bicameral Conference
Committee, allegedly adopting the Senate Bill version setting the computation of airtime limits on a
per candidate, not per station, basis. Thus, as enacted into law, the wordings of Section 6 of the Fair
Election Act shows that the airtime limit is imposed on a per candidate basis, rather than on a per
station basis. Furthermore, the COMELEC states that petitioner intervenor Senator Cayetano is
wrong in arguing that there should be empirical data to support the need to change the computation
of airtime limits from a per station basis to a per candidate basis, because nothing in law obligates
the COMELEC to support its Resolutions with empirical data, as said airtime limit was a policy
decision dictated by the legislature itself, which had the necessary empirical and other data upon
which to base said policy decision.
17

The COMELEC then points out that Section 2 (7), Article IX (C) of the Constitution empowers it to
recommend to Congress effective measures to minimize election spending and in furtherance of
such constitutional power, the COMELEC issued the questioned Resolutions, in faithful
implementation of the legislative intent and objectives of the Fair Election Act.
18

The COMELEC also dismisses Senator Cayetano's fears that unauthorized or inadvertent inclusion
of his name, initial, image, brand, logo, insignia and/or symbol in tandem advertisements will be
charged against his airtime limits by pointing out that what will be counted against a candidate's
airtime and expenditures are those advertisements that have been paid for or donated to them to
which the candidate has given consent.
With regard to the attack that the total aggregate airtime limit constitutes prior restraint or undue
abridgement of the freedom of speech and expression, the COMELEC counters that "the
Resolutions enjoy constitutional and congressional imprimatur. It is the Constitution itself that
imposes the restriction on the freedoms of speech and expression, during election period, to
promote an important and significant governmental interest, which is to equalize, as far as
practicable, the situation of rich and poor candidates by preventing the former from enjoying the
undue advantage offered by huge campaign 'war chests."'
19

Lastly, the COMELEC also emphasizes that there is no impairment of the people's right to
information on matters of public concern, because in this case, the COMELEC is not withholding
access to any public record.
On April 16, 2013, this Court issued a Temporary Restraining Order (TRO) in view of the urgency
involved and to prevent irreparable injury that may be caused to the petitioners if respondent
COMELEC is not enjoined from implementing Resolution No. 9615.
20

On April 19, 2013 respondent filed an Urgent Motion to Lift Temporary Restraining Order and Motion
for Early Resolution of the Consolidated Petitions.
21

On May 8, 2013, petitioners ABS-CBN and the KBP filed its Opposition/Comment to the said
Motion. Not long after, ABC followed suit and filed its own Opposition to the Motion filed by the
respondent.
22

23

In the interim, respondent filed a Second Supplemental Comment and Opposition dated April 8,
2013.
24

In the Second Supplemental Comment and Opposition, respondent delved on points which were not
previously discussed in its earlier Comment and Supplemental Comment, particularly those raised in
the petition filed by petitioner ABS-CBN and KBP.
Respondent maintains that certiorari in not the proper remedy to question the Constitutionality of the
assailed Resolutions and that petitioners ABS-CBN and KBP have no locus standi to file the present
petition.
Respondent posits that contrary to the contention of petitioners, the legislative history of R.A. No.
9006 conclusively shows that congress intended the airtime limits to be computed on a "per
candidate" and not on a "per station" basis. In addition, the legal duty of monitoring lies with the
COMELEC. Broadcast stations are merely required to submit certain documents to aid the
COMELEC in ensuring that candidates are not sold airtime in excess of the allowed limits.
Also, as discussed in the earlier Comment, the prior notice requirement is a mechanism designed to
inform the COMELEC of the appearances or guesting of candidates in bona fide news broadcasts. It
is for monitoring purposes only, not censorship. It does not control the subject matter of news
broadcasts in anyway. Neither does it prevent media outlets from covering candidates in news

interviews, news events, and news documentaries, nor prevent the candidates from appearing
thereon.
As for the right to reply, respondent insists that the right to reply provision cannot be considered a
prior restraint on the freedoms of expression, speech and the press, as it does not in any way restrict
the airing of bona fide new broadcasts. Media entities are free to report any news event, even if it
should turn out to be unfavourable to a candidate or party. The assailed Resolutions merely give the
candidate or party the right to reply to such charges published or aired against them in news
broadcasts.
Moreover, respondent contends that the imposition of the penalty of suspension and revocation of
franchise or permit for the sale or donation of airtime beyond the allowable limits is sanctioned by the
Omnibus Election Code.
Meanwhile, RMN filed its Petition on April 8, 2013. On June 4, 2013, the Court issued a
Resolution consolidating the case with the rest of the petitions and requiring respondent to
comment thereon.
25

On October 10, 2013, respondent filed its Third Supplemental Comment and Opposition. Therein,
respondent stated that the petition filed by RMN repeats the issues that were raised in the previous
petitions. Respondent, likewise, reiterated its arguments that certiorari in not the proper remedy to
question the assailed resolutions and that RMN has no locus standi to file the present petition.
Respondent maintains that the arguments raised by RMN, like those raised by the other petitioners
are without merit and that RMN is not entitled to the injunctive relief sought.
26

The petition is partly meritorious.

At the outset, although the subject of the present petit10ns are Resolutions promulgated by the
COMELEC relative to the conduct of the 2013 national and local elections, nevertheless the issues
raised by the petitioners have not been rendered moot and academic by the conclusion of the 2013
elections. Considering that the matters elevated to the Court for resolution are susceptible to
repetition in the conduct of future electoral exercises, these issues will be resolved in the present
action.
PROCEDURAL ASPECTS
Matters of procedure and technicalities normally take a backseat when issues of substantial and
transcendental importance are presented before the Court. So the Court does again in this particular
case.
Proper Remedy
Respondent claims that certiorari and prohibition are not the proper remedies that petitioners have
taken to question the assailed Resolutions of the COMELEC. Technically, respondent may have a
point. However, considering the very important and pivotal issues raised, and the limited time, such
technicality should not deter the Court from having to make the final and definitive pronouncement
that everyone else depends for enlightenment and guidance. "[T]his Court has in the past seen fit to
step in and resolve petitions despite their being the subject of an improper remedy, in view of the
public importance of the tile issues raised therein.
27

It has been in the past, we do so again.

Locus Standi
Every time a constitutional issue is brought before the Court, the issue of locus standi is raised to
question the personality of the parties invoking the Court's jurisdiction. The Court has routinely made
reference to a liberalized stance when it comes to petitions raising issues of transcendental
importance to the country. Invariably, after some discussions, the Court would eventually grant
standing.
28

In this particular case, respondent also questions the standing of the petitioners. We rule for the
petitioners. For petitioner-intervenor Senator Cayetano, he undoubtedly has standing since he is a
candidate whose ability to reach out to the electorate is impacted by the assailed Resolutions.
For the broadcast companies, they similarly have the standing in view of the direct injury they may
suffer relative to their ability to carry out their tasks of disseminating information because of the
burdens imposed on them. Nevertheless, even in regard to the broadcast companies invoking the
injury that may be caused to their customers or the public - those who buy advertisements and the
people who rely on their broadcasts - what the Court said in White Light Corporation v. City of
Manila may dispose of the question. In that case, there was an issue as to whether owners of
establishments offering "wash-up" rates may have the requisite standing on behalf of their patrons'
equal protection claims relative to an ordinance of the City of Manila which prohibited "short-time" or
"wash-up" accommodation in motels and similar establishments. The Court essentially condensed
the issue in this manner: "[T]he crux of the matter is whether or not these establishments have the
requisite standing to plead for protection of their patrons' equal protection rights." The Court then
went on to hold:
29

30

Standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to
and harm from the law or action challenged to support that party's participation in the case. More
importantly, the doctrine of standing is built on the principle of separation of powers, sparing as it
does unnecessary interference or invalidation by the judicial branch of the actions rendered by its
co-equal branches of government.
The requirement of standing is a core component of the judicial system derived directly from the
Constitution. The constitutional component of standing doctrine incorporates concepts which
concededly are not susceptible of precise definition. In this jurisdiction, the extancy of "a direct and
personal interest" presents the most obvious cause, as well as the standard test for a petitioner's
standing. In a similar vein, the United States Supreme Court reviewed and elaborated on the
meaning of the three constitutional standing requirements of injury, causation, and redressability in
Allen v. Wright.
Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth
doctrine, taxpayer suits, third party standing and, especially in the Philippines, the doctrine of
transcendental importance.
For this particular set of facts, the concept of third party standing as an exception and the
overbreadth doctrine are appropriate. x x x
xxxx
American jurisprudence is replete with examples where parties-ininterest were allowed standing to
advocate or invoke the fundamental due process or equal protection claims of other persons or
classes of persons injured by state action. x x x

xxxx
Assuming arguendo that petitioners do not have a relationship with their patrons for the former to
assert the rights of the latter, the overbreadth doctrine comes into play. In overbreadth analysis,
challengers to government action are in effect permitted to raise the rights of third parties. Generally
applied to statutes infringing on the freedom of speech, the overbreadth doctrine applies when a
statute needlessly restrains even constitutionally guaranteed rights. In this case, the petitioners claim
that the Ordinance makes a sweeping intrusion into the right to liberty of their clients. We can see
that based on the allegations in the petition, the Ordinance suffers from overbreadth.
We thus recognize that the petitioners have a right to assert the constitutional rights of their clients to
patronize their establishments for a "wash-rate" time frame.
31

If in regard to commercial undertakings, the owners may have the right to assert a constitutional right
of their clients, with more reason should establishments which publish and broadcast have the
standing to assert the constitutional freedom of speech of candidates and of the right to information
of the public, not to speak of their own freedom of the press. So, we uphold the standing of
petitioners on that basis.
SUBSTANTIVE ASPECTS
Aggregate Time Limits
COMELEC Resolution No. 9615 introduced a radical departure from the previous COMELEC
resolutions relative to the airtime limitations on political advertisements. This essentially consists in
computing the airtime on an aggregate basis involving all the media of broadcast communications
compared to the past where it was done on a per station basis. Thus, it becomes immediately
obvious that there was effected a drastic reduction of the allowable minutes within which candidates
and political parties would be able to campaign through the air. The question is accordingly whether
this is within the power of the COMELEC to do or not. The Court holds that it is not within the power
of the COMELEC to do so.
a. Past elections and airtime limits
The authority of the COMELEC to impose airtime limits directly flows from the Fair Election Act (R.A.
No. 9006 [2001]) - one hundred (120) minutes of television advertisement and one-hundred eighty
(180) minutes for radio advertisement. For the 2004 elections, the respondent COMELEC
promulgated Resolution No. 6520 implementing the airtime limits by applying said limitation on a per
station basis. Such manner of determining airtime limits was likewise adopted for the 2007
elections, through Resolution No. 7767. In the 2010 elections, under Resolution No. 8758, the
same was again adopted. But for the 2013 elections, the COMELEC, through Resolution No. 9615,
as amended by Resolution No. 9631, chose to aggregate the total broadcast time among the
different broadcast media, thus: Section 9. Requirements and/or Limitations on the Use of Election
Propaganda through Mass Media. - All parties and bona fide candidates shall have equal access to
media time and space for their election propaganda during the campaign period subject to the
following requirements and/or limitations:
32

33

34

35

36

a. Broadcast Election Propaganda

The duration of an air time that a candidate, or party may use for their broadcast advertisements or
election propaganda shall be, as follows:

For Candidates/Registered
Political parties for a National Not more than an aggregate total of one
Elective Position
hundred (120) minutes of television advertising,
whether appearing on national, regional, or
local, free or cable television, and one hundred
eighty (180) minutes of radio advertising,
whether airing on national, regional, or local
radio, whether by purchase or donation
For Candidates/Registered
Political parties for a Local
Elective Position

Not more than an aggregate total of sixty (60)

minutes of television advertising, whether
appearing on national, regional, or local, free or
cable television, and ninety (90) minutes of
radio advertising, whether airing on national,
regional, or local radio, whether by purchase or
donation.

In cases where two or more candidates or parties whose names, initials, images, brands, logos,
insignias, color motifs, symbols, or forms of graphical representations are displayed, exhibited, used,
or mentioned together in the broadcast election propaganda or advertisements, the length of time
during which they appear or are being mentioned or promoted will be counted against the airtime
limits allotted for the said candidates or parties and the cost of the said advertisement will likewise
be considered as their expenditures, regardless of whoever paid for the advertisements or to whom
the said advertisements were donated.
xxxx

37

Corollarily, petitioner-intervenor, Senator Cayetano, alleges:

6.15. The change in the implementation of Section 6 of R.A. 9006 was undertaken by respondent
Comelec without consultation with the candidates for the 2013 elections, affected parties such as
media organizations, as well as the general public. Worse, said change was put into effect without
explaining the basis therefor and without showing any data in support of such change. Respondent
Comelec merely maintained that such action "is meant to level the playing field between the
moneyed candidates and those who don i have enough resources," without particularizing the
empirical data upon which such a sweeping statement was based. This was evident in the public
hearing held on 31 January 2013 where petitioner GMA, thru counsel, explained that no empirical
data on he excesses or abuses of broadcast media were brought to the attention of the public by
respondent Comelec, or even stated in the Comelec
Resolution No. 9615. Thus
xxxx
Chairman Brillantes

So if we can regulate and amplify, we may amplify meaning we can expand if we want to. But the
authority of the Commission is if we do not want to amplify and we think that the 120 or 180 is okay
we cannot be compelled to amplify. We think that 120 or 180 is okay, is enough.
Atty. Lucila
But with due respect Your Honor, I think the basis of the resolution is found in the law and the law
has been enterpreted (sic) before in 2010 to be 120 per station, so why the change, your Honor?
Chairman Brillantes
No, the change is not there, the right to amplify is with the Commission on Elections. Nobody can
encroach in our right to amplify. Now, if in 2010 the Commission felt that per station or per network is
the rule then that is the prerogative of the Commission then they could amplify it to expand it. If the
current Commission feels that 120 is enough for the particular medium like TV and 180 for radio, that
is our prerogative. How can you encroach and what is unconstitutional about it?
Atty. Lucila
We are not questioning the authority of the Honorable Commission to regulate Your Honor, we are
just raising our concern on the manner of regulation because as it is right now, there is a changing
mode or sentiments of the Commission and the public has the right to know, was there rampant
overspending on political ads in 2010, we were not informed Your Honor. Was there abuse of the
media in 2010, we were not informed Your Honor. So we would like to know what is the basis of the
sudden change in this limitation, Your Honor .. And law must have a consistent interpretation that
[is]our position, Your Honor.
Chairman Brillantes
But my initial interpretation, this is personal to this representation counsel, is that if the Constitution
allows us to regulate and then it gives us the prerogative to amplify then the prerogative to amplify
you should leave this to the discretion of the Commission. Which means if previous Commissions
felt that expanding it should be part of our authority that was a valid exercise if we reduce it to what
is provided for by law which is 120-180 per medium, TV, radio, that is also within the law and that is
still within our prerogative as provided for by the Constitution. If you say we have to expose the
candidates to the public then I think the reaction should come, the negative reaction should come
from the candidates not from the media, unless you have some interest to protect directly. Is there
any interest on the part of the media to expand it?
Atty. Lucila
Well, our interest Your Honor is to participate in this election Your Honor and we have been
constantly (sic) as the resolution says and even in the part involved because you will be getting
some affirmative action time coming from the media itself and Comelec time coming from the media
itself. So we could like to be both involved in the whole process of the exercise of the freedom of
suffrage Your Honor.
Chairman Brillantes
Yes, but the very essence of the Constitutional provision as well as the provision of 9006 is actually
to level the playing field. That should be the paramount consideration. If we allow everybody to make

use of all their time and all radio time and TV time then there will be practically unlimited use of the
mass media ....
Atty. Lucila
Was there in 2010 Your Honor, was there any data to support that there was an unlimited and abuse
of a (sic) political ads in the mass media that became the basis of this change in interpretation Your
Honor? We would like to know about it Your Honor.
Chairman Brillantes
What do you think there was no abuse in 201 O?
Atty. Lucila
As far as the network is concern, there was none Your Honor.
Chairman Brillantes
There was none ..... .
Atty. Lucila
I'm sorry, Your Honor ...
Chairman Brillantes
Yes, there was no abuse, okay, but there was some advantage given to those who took ... who had
the more moneyed candidates took advantage of it.
Atty. Lucila
But that is the fact in life, Your Honor there are poor candidates, there are rich candidates. No
amount of law or regulation can even level the playing filed (sic) as far as the economic station in life
of the candidates are concern (sic) our Honor.
38

Given the foregoing observations about what happened during the hearing, Petitioner-Intervenor
went on to allege that:
6.16. Without any empirical data upon which to base the regulatory measures in Section 9 (a),
respondent Comelec arbitrarily changed the rule from per station basis to aggregate airtime basis.
Indeed, no credence should be given to the cliched explanation of respondent Comelec (i.e. leveling
the playing field) in its published statements which in itself is a mere reiteration of the rationale for
the enactment of the political ad ban of Republic Act No. 6646, and which has likewise been foisted
when said political ad ban was lifted by R.A. 9006.
39

From the foregoing, it does appear that the COMELEC did not have any other basis for coming up
with a new manner of determining allowable time limits except its own idea as to what should be the
maximum number of minutes based on its exercise of discretion as to how to level the playing field.
The same could be encapsulized in the remark of the COMELEC Chairman that "if the Constitution

allows us to regulate and then it gives us the prerogative to amplify then the prerogative to amplify
you should leave this to the discretion of the Commission."
40

The Court could not agree with what appears as a nonchalant exercise of discretion, as expounded
anon.
b. COMELEC is duty bound to come up with reasonable basis for changing the interpretation and
implementation of the airtime limits
There is no question that the COMELEC is the office constitutionally and statutorily authorized to
enforce election laws but it cannot exercise its powers without limitations - or reasonable basis. It
could not simply adopt measures or regulations just because it feels that it is the right thing to do, in
so far as it might be concerned. It does have discretion, but such discretion is something that must
be exercised within the bounds and intent of the law. The COMELEC is not free to simply change the
rules especially if it has consistently interpreted a legal provision in a particular manner in the past. If
ever it has to change the rules, the same must be properly explained with sufficient basis.
Based on the transcripts of the hearing conducted by the COMELEC after it had already
promulgated the Resolution, the respondent did not fully explain or justify the change in computing
the airtime allowed candidates and political parties, except to make reference to the need to "level
the playing field." If the "per station" basis was deemed enough to comply with that objective in the
past, why should it now be suddenly inadequate? And, the short answer to that from the respondent,
in a manner which smacks of overbearing exercise of discretion, is that it is within the discretion of
the COMELEC. As quoted in the transcript, "the right to amplify is with the COMELEC. Nobody can
encroach in our right to amplify. Now, if in 2010 the Commission felt that per station or per network is
the rule then that is the prerogative of the Commission then they could amplify it to expand it. If the
current Commission feels that 120 is enough for the particular medium like TV and 180 for radio, that
is our prerogative. How can you encroach and what is unconstitutional about it?"
41

There is something basically wrong with that manner of explaining changes in administrative rules.
For one, it does not really provide a good basis for change. For another, those affected by such rules
must be given a better explanation why the previous rules are no longer good enough. As the Court
has said in one case:
While stability in the law, particularly in the business field, is desirable, there is no demand that the
NTC slavishly follow precedent. However, we think it essential, for the sake of clarity and intellectual
honesty, that if an administrative agency decides inconsistently with previous action, that it explain
thoroughly why a different result is warranted, or ?f need be, why the previous standards should no
longer apply or should be overturned. Such explanation is warranted in order to sufficiently establish
a decision as having rational basis. Any inconsistent decision lacking thorough, ratiocination in
support may be struck down as being arbitrary. And any decision with absolutely nothing to support it
is a nullity.
42

What the COMELEC came up with does not measure up to that level of requirement and
accountability which elevates administrative rules to the level of respectability and acceptability.
Those governed by administrative regulations are entitled to a reasonable and rational basis for any
changes in those rules by which they are supposed to live by, especially if there is a radical
departure from the previous ones.
c. The COMELEC went beyond the authority granted it by the law in adopting "aggregate" basis in
the determination of allowable airtime

The law, which is the basis of the regulation subject of these petitions, pertinently provides:
6.2. (a) Each bona fide candidate or registered political party for a nationally elective office shall be
entitled to not more than one hundred twenty (120) minutes of television advertisement and one
hundred eighty (180) minutes of radio advertisement whether by purchase or donation.
(b) Each bona fide candidate or registered political party for a locally elective office shall be entitled
to not more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio
advertisement whether by purchase or donation; x x x
The law, on its face, does not justify a conclusion that the maximum allowable airtime should be
based on the totality of possible broadcast in all television or radio stations. Senator Cayetano has
called our attention to the legislative intent relative to the airtime allowed - that it should be on a "per
station" basis.
43

This is further buttressed by the fact that the Fair Election Act (R.A. No. 9006) actually repealed the
previous provision, Section ll(b) of Republic Act No. 6646, which prohibited direct political
advertisements -the so-called "political ad ban." If under the previous law, no candidate was allowed
to directly buy or procure on his own his broadcast or print campaign advertisements, and that he
must get it through the COMELEC Time or COMELEC Space, R.A. No. 9006 relieved him or her
from that restriction and allowed him or her to broadcast time or print space subject to the limitations
set out in the law. Congress, in enacting R.A. No. 9006, felt that the previous law was not an
effective and efficient way of giving voice to the people. Noting the debilitating effects of the previous
law on the right of suffrage and Philippine democracy, Congress decided to repeal such rule by
enacting the Fair Election Act.
44

In regard to the enactment of the new law, taken in the context of the restrictive nature of the
previous law, the sponsorship speech of Senator Raul Roco is enlightening:
The bill seeks to repeal Section 85 of the Omnibus Election Code and Sections 10 and 11 of RA
6646. In view of the importance of their appeal in connection with the thrusts of the bill, I hereby
quote these sections in full:
"SEC. 85. Prohibited forms of election propaganda. - It shall be unlawful:
"(a) To print, publish, post or distribute any poster, pamphlet, circular, handbill, or
printed matter urging voters to vote for or against any candidate unless they hear the
names and addresses of the printed and payor as required in Section 84 hereof;
"(b) To erect, put up, make use of, attach, float or display any billboard, tinplateposter, balloons and the like, of whatever size, shape, form or kind, advertising for or
against any candidate or political party;
"(c) To purchase, manufacture, request, distribute or accept electoral propaganda
gadgets, such as pens, lighters, fans of whatever nature, flashlights, athletic goods or
materials, wallets, shirts, hats, bandannas, matches, cigarettes and the like, except
that campaign supporters accompanying a candidate shall be allowed to wear hats
and/or shirts or T-shirts advertising a candidate;

"(d) To show or display publicly any advertisement or propaganda for or against any
candidate by means of cinematography, audio-visual units or other screen
projections except telecasts which may be allowed as hereinafter provided; and
"(e) For any radio broadcasting or television station to sell or give free of charge
airtime for campaign and other political purposes except as authorized in this Code
under the rules and regulations promulgated by the Commission pursuant thereto;
"Any prohibited election propaganda gadget or advertisement shall be stopped, confiscated or tom
down by the representative of the Commission upon specific authority of the Commission." "SEC.
10. Common Poster Areas. - The Commission shall designate common poster areas in strategic
public places such as markets, barangay centers and the like wherein candidates can post, display
or exhibit election propaganda to announce or further their candidacy.
"Whenever feasible, common billboards may be installed by the Commission and/or non-partisan
private or civic organizations which the Commission may authorize whenever available, after due
notice and hearing, in strategic areas where it may readily be seen or read, with the heaviest
pedestrian and/or vehicular traffic in the city or municipality.
The space in such common poster areas or billboards shall be allocated free of charge, if feasible,
equitably and impartially among the candidates in the province, city or municipality. "SEC. 11.
Prohibite,d Forms of Election Propaganda. - In addition to the forms of election propaganda
prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint,
inscribe, write, post, display or puolicly exhibit any election propaganda in any place, whether private
or public, except in common poster areas and/or billboards provided in the immediately preceding
section, at the candidate's own residence, or at the campaign headquarters of the candidate or
political party: Provided, That such posters or election propaganda shall in no case exceed two (2)
feet by three (3) feet in area; Provided, further, That at the site of and on the occasion of a public
meeting or rally, streamers, not more than two (2) feet and not exceeding three (3) feet by eight (8)
each may be displayed five (5) days before the date of the meeting or rally, and shall be removed
within twenty-four (24) hours after said meeting or rally; and
"(b) For any newspapers, radio broadcasting or television station, or other mass media, or any
person making use of the mass media to sell or give for free of charge print space or air time for
campaign or other political purposes except to the Commission as provided under Section 90 and 92
of Batas Pambansa Big. 881. Any mass media columnist, commentator, announcer or personality
who is a candidate for any elective public office shall take a leave of absence from his work as such
during the campaign."
The repeal of the provision on the Common Poster Area implements the strong recommendations of
the Commission on Elections during the hearings. It also seeks to apply the doctrine enunciated by
the Supreme Court in the case of Blo Umpar Adiong vs. Commission on Elections, 207 SCRA 712,
31 March 1992. Here a unanimous Supreme Court ruled: The COMELEC's prohibition on the
posting of decals and stickers on "mobile" places whether public or private except [in] designated
areas provided for by the COMELEC itself is null and void on constitutional grounds.
For the foregoing reasons, we commend to our colleagues the early passage of Senate Bill No.
1742. In so doing, we move one step towards further ensuring "free, orderly, honest, peaceful and
credible elections" as mandated by the Constitution.
45

Given the foregoing background, it is therefore ineluctable to conclude that Congress intended to
provide a more expansive and liberal means by which the candidates, political parties, citizens and

other stake holders in the periodic electoral exercise may be given a chance to fully explain and
expound on their candidacies and platforms of governance, and for the electorate to be given a
chance to know better the personalities behind the candidates. In this regard, the media is also given
a very important part in that undertaking of providing the means by which the political exercise
becomes an interactive process. All of these would be undermined and frustrated with the kind of
regulation that the respondent came up with.
The respondent gave its own understanding of the import of the legislative deliberations on the
adoption of R.A. No. 9006 as follows:
The legislative history of R.A. 9006 clearly shows that Congress intended to impose the per
candidate or political party aggregate total airtime limits on political advertisements and election
propaganda. This is evidenced by the dropping of the "per day per station" language embodied in
both versions of the House of Representatives and Senate bills in favour of the "each candidate" and
"not more than" limitations now found in Section 6 of R.A. 9006.
The pertinent portions of House Bill No. 9000 and Senate Bill No. 1742 read as follows:
House Bill No. 9000:
SEC. 4. Section 86 of the same Batas is hereby amended to read as follows:
Sec. 86. Regulation of Election Propaganda Through Mass Media.
xxx

xxx

xxx

A) The total airtime available to the candidate and political party, whether by purchase or by
donation, shall be limited to five (5) minutes per day in each television, cable television and radio
stations during the applicable campaign period.
Senate Bill No. 1742:
SEC. 5. Equal Access to Media Space and Time. -All registered parties and bona fide candidates
shall have equal access to media space and time. The following guidelines may be amplified by the
COMELEC.
xxx

xxx

xxx

2. The total airtime available for each registered party and bona fide candidate whether by purchase
or donation shall not exceed a total of one (1) minute per day per television or radio station.
(Emphasis supplied.)
As Section 6 of R.A. 9006 is presently worded, it can be clearly seen that the legislature intended the
aggregate airtime limits to be computed on per candidate or party basis. Otherwise, if the legislature
intended the computation to be on per station basis, it could have left the original "per day per
station" formulation.
46

The Court does not agree. It cannot bring itself to read the changes in the bill as disclosing an intent
that the COMELEC wants this Court to put on the final language of the law. If anything, the change
in language meant that the computation must not be based on a "per day" basis for each television
or radio station. The same could not therefore lend itself to an understanding that the total allowable

time is to be done on an aggregate basis for all television or radio stations. Clearly, the respondent in
this instance went beyond its legal mandate when it provided for rules beyond what was
contemplated by the law it is supposed to implement. As we held in Lakin, Jr. v. Commission on
Elections:
47

The COMELEC, despite its role as the implementing arm of the Government in the enforcement and
administration of all laws and regulations relative to the conduct of an election, has neither the
authority nor the license to expand, extend, or add anything to the law it seeks to implement thereby.
The IRRs the COMELEC issued for that purpose should always be in accord with the law to be
implemented, and should not override, supplant, or modify the law. It is basic that the IRRs should
remain consistent with the law they intend to carry out.
Indeed, administrative IRRs adopted by a particular department of the Government under legislative
authority must be in harmony with the provisions of the law, and should be for the sole purpose of
carrying the law's general provisions into effect. The law itself cannot be expanded by such IRRs,
because an administrative agency cannot amend an act of Congress.
48

In the case of Lakin, Jr., the COMELEC's explanation that the Resolution then in question did not
add anything but merely reworded and rephrased the statutory provision did not persuade the Court.
With more reason here since the COMELEC not only reworded or rephrased the statutory provision it practically replaced it with its own idea of what the law should be, a matter that certainly is not
within its authority. As the Court said in Villegas v. Subido:
49

One last word. Nothing is better settled in the law than that a public official exercises power, not
rights. The government itself is merely an agency through which the will of the state is expressed
and enforced. Its officers therefore are likewise agents entrusted with the responsibility of
discharging its functions. As such there is no presumption that they are empowered to act. There
must be a delegation of such authority, either express or implied. In the absence of a valid grant,
they are devoid of power. What they do suffers from a fatal infirmity. That principle cannot be
sufficiently stressed. In the appropriate language of Chief Justice Hughes: "It must be conceded that
departmental zeal may not be permitted to outrun the authority conferred by statute." Neither the
high dignity of the office nor the righteousness of the motive then is an acceptable substitute.
Otherwise the rule of law becomes a myth. Such an eventuality, we must take all pains to avoid.
50

So it was then. So does the rule still remains the same.

d. Section 9 (a) of COMELEC Resolution No. 9615 on airtime limits also goes against the
constitutional guaranty of freedom of expression, of speech and of the press
The guaranty of freedom to speak is useless without the ability to communicate and disseminate
what is said. And where there is a need to reach a large audience, the need to access the means
and media for such dissemination becomes critical. This is where the press and broadcast media
come along. At the same time, the right to speak and to reach out would not be meaningful if it is just
a token ability to be heard by a few. It must be coupled with substantially reasonable means by
which the communicator and the audience could effectively interact. Section 9 (a) of COMELEC
Resolution No. 9615, with its adoption of the "aggregate-based" airtime limits unreasonably restricts
the guaranteed freedom of speech and of the press.
Political speech is one of the most important expressions protected by the Fundamental Law.
"[F]reedom of speech, of expression, and of the press are at the core of civil liberties and have to be
protected at all costs for the sake of democracy." Accordingly, the same must remain unfettered
unless otherwise justified by a compelling state interest.
51

In regard to limitations on political speech relative to other state interests, an American case
observed:
A restriction on the amount of money a person or group can spend on political communication during
a campaign necessarily reduces the quantity of expression by restricting the number of issues
discussed, the depth of their exploration, and the size of the audience reached. This is because
virtually every means of communicating ideas in today's mass society requires the expenditure of
money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation
costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The
electorate's increasing dependence on television, radio, and other mass media for news and
information has made these expensive modes of communication indispensable instruments of
effective political speech.
The expenditure limitations contained in the Act represent substantial, rather than merely theoretical
restraints on the quantity and diversity of political speech. The $1,000 ceiling on spending "relative to
a clearly identified candidate," 18 U.S.C. 608(e)(l) (1970 ed., Supp. IV), would appear to exclude
all citizens and groups except candidates, political parties, and the institutional press from any
significant use of the most effective modes of communication. Although the Act's limitations on
expenditures by campaign organizations and political parties provide substantially greater room for
discussion and debate, they would have required restrictions in the scope of a number of past
congressional and Presidential campaigns and would operate to constrain campaigning by
candidates who raise sums in excess of the spending ceiling.
52

Section 9 (a) ofCOMELEC Resolution No. 9615 comes up with what is challenged as being an
unreasonable basis for determining the allowable air time that candidates and political parties may
avail of. Petitioner GMA came up with its analysis of the practical effects of such a regulation:
5.8. Given the reduction of a candidate's airtime minutes in the New Rules, petitioner GMA
estimates that a national candidate will only have 120 minutes to utilize for his political
advertisements in television during the whole campaign period of 88 days, or will only have
81.81 seconds per day TV exposure allotment. If he chooses to place his political
advertisements in the 3 major TV networks in equal allocation, he will only have 27.27
seconds of airtime per network per day. This barely translates to 1 advertisement spot on a
30-second spot basis in television.
5.9. With a 20-hour programming per day and considering the limits of a station's coverage,
it will be difficult for 1 advertising spot to make a sensible and feasible communication to the
public, or in political propaganda, to "make known [a candidate's] qualifications and stand on
public issues".
5.10 If a candidate loads all of his 81.81 seconds per day in one network, this will translate to
barely three 30-second advertising spots in television on a daily basis using the same
assumptions above.
5.11 Based on the data from the 2012 Nielsen TV audience measurement in Mega Manila,
the commercial advertisements in television are viewed by only 39.2% of the average total
day household audience if such advertisements are placed with petitioner GMA, the leading
television network nationwide and in Mega Manila. In effect, under the restrictive aggregate
airtime limits in the New Rules, the three 30-second political advertisements of a candidate
in petitioner GMA will only be communicated to barely 40% of the viewing audience, not
even the voting population, but only in Mega Manila, which is defined by AGB Nielsen
Philippines to cover Metro Manila and certain urban areas in the provinces of Bulacan,

Cavite, Laguna, Rizal, Batangas and Pampanga. Consequently, given the voting population
distribution and the drastically reduced supply of airtime as a result of the New Rules'
aggregate airtime limits, a national candidate will be forced to use all of his airtime for
political advertisements in television only in urban areas such as Mega Manila as a political
campaign tool to achieve maximum exposure.
5.12 To be sure, the people outside of Mega Manila or other urban areas deserve to be
informed of the candidates in the national elections, and the said candidates also enjoy the
right to be voted upon by these informed populace.
53

The Court agrees. The assailed rule on "aggregate-based" airtime limits is unreasonable and
arbitrary as it unduly restricts and constrains the ability of candidates and political parties to reach
out and communicate with the people. Here, the adverted reason for imposing the "aggregatebased" airtime limits - leveling the playing field - does not constitute a compelling state interest which
would justify such a substantial restriction on the freedom of candidates and political parties to
communicate their ideas, philosophies, platforms and programs of government. And, this is specially
so in the absence of a clear-cut basis for the imposition of such a prohibitive measure. In this
particular instance, what the COMELEC has done is analogous to letting a bird fly after one has
clipped its wings.
It is also particularly unreasonable and whimsical to adopt the aggregate-based time limits on
broadcast time when we consider that the Philippines is not only composed of so many islands.
There are also a lot of languages and dialects spoken among the citizens across the country.
Accordingly, for a national candidate to really reach out to as many of the electorates as possible,
then it might also be necessary that he conveys his message through his advertisements in
languages and dialects that the people may more readily understand and relate to. To add all of
these airtimes in different dialects would greatly hamper the ability of such candidate to express
himself - a form of suppression of his political speech.
Respondent itself states that "[t]elevision is arguably the most costeffective medium of
dissemination. Even a slight increase in television exposure can significantly boost a candidate's
popularity, name recall and electability." If that be so, then drastically curtailing the ability of a
candidate to effectively reach out to the electorate would unjustifiably curtail his freedom to speak as
a means of connecting with the people.
54

Finally on this matter, it is pertinent to quote what Justice Black wrote in his concurring opinion in the
landmark Pentagon Papers case: "In the First Amendment, the Founding Fathers gave the free
press the protection it must have to fulfill its essential role in our democracy. The press was to serve
the governed, not the governors. The Government's power to censor the press was abolished so
that the press would remain forever free to censure the Government. The press was protected so
that it could bare the secrets of government and inform the people. Only a free and unrestrained
press can effectively expose deception in government."
55

In the ultimate analysis, when the press is silenced, or otherwise muffled in its undertaking of acting
as a sounding board, the people ultimately would be the victims.
e. Section 9 (a) of Resolution 9615 is violative of the people's right to suffrage
Fundamental to the idea of a democratic and republican state is the right of the people to determine
their own destiny through the choice of leaders they may have in government. Thus, the primordial
importance of suffrage and the concomitant right of the people to be adequately informed for the
intelligent exercise of such birthright. It was said that:

x x x As long as popular government is an end to be achieved and safeguarded, suffrage, whatever

may be the modality and form devised, must continue to be the means by which the great reservoir
of power must be emptied into the receptacular agencies wrought by the people through their
Constitution in the interest of good government and the common weal. Republicanism, in so far as it
implies the adoption of a representative type of government, necessarily points to the enfranchised
citizen as a particle of popular sovereignty and as the ultimate source of the established authority.
He has a voice in his Government and whenever possible it is the solemn duty of the judiciary, when
called upon to act in justifiable cases, to give it efficacy and not to stifle or frustrate it. This,
fundamentally, is the reason for the rule that ballots should be read and appreciated, if not with
utmost, with reasonable, liberality. x x x It has also been said that "[ c ]ompetition in ideas and
governmental policies is at the core of our electoral process and of the First Amendment
freedoms." Candidates and political parties need adequate breathing space - including the means
to disseminate their ideas. This could not be reasonably addressed by the very restrictive manner by
which the respondent implemented the time limits in regard to political advertisements in the
broadcast media.
56

57

f. Resolution No. 9615 needs prior hearing before adoption

The COMELEC promulgated Resolution No. 9615 on January 15, 2013 then came up with a public
hearing on January 31, 2013 to explain what it had done, particularly on the aggregate-based air
time limits. This circumstance also renders the new regulation, particularly on the adoption of the
aggregate-based airtime limit, questionable. It must not be overlooked that the new Resolution
introduced a radical change in the manner in which the rules on airtime for political advertisements
are to be reckoned. As such there is a need for adequate and effective means by which they may be
adopted, disseminated and implemented. In this regard, it is not enough that they be published - or
explained - after they have been adopted.
While it is true that the COMELEC is an independent office and not a mere administrative agency
under the Executive Department, rules which apply to the latter must also be deemed to similarly
apply to the former, not as a matter of administrative convenience but as a dictate of due process.
And this assumes greater significance considering the important and pivotal role that the COMELEC
plays in the life of the nation. Thus, whatever might have been said in Commissioner of Internal
Revenue v. Court of Appeals, should also apply mutatis mutandis to the COMELEC when it comes
to promulgating rules and regulations which adversely affect, or impose a heavy and substantial
burden on, the citizenry in a matter that implicates the very nature of government we have adopted:
58

It should be understandable that when an administrative rule is merely interpretative in nature, its
applicability needs nothing further than its bare issuance for it gives no real consequence more than
what the law itself has already prescribed. When, upon the other hand, the administrative rule goes
beyond merely providing for the means that can facilitate or render least cumbersome the
implementation of the law but substantially adds to or increases the burden of those governed, it
behooves the agency to accord at least to those directly affected a chance to be heard, and
thereafter to be duly informed, before that new issuance is given the force and effect of law.
A reading of RMC 37-93, particularly considering the circumstances under which it has been issued,
convinces us that the circular cannot be viewed simply as a corrective measure (revoking in the
process the previous holdings of past Commissioners) or merely as construing Section 142(c)(l) of
the NIRC, as amended, but has, in fact and most importantly, been made in order to place "Hope
Luxury," "Premium More" and "Champion" within the classification of locally manufactured cigarettes
bearing foreign brands and to thereby have them covered by RA 7654. Specifically, the new law
would have its amendatory provisions applied to locally manufactured cigarettes which at the time of
its effectivity were not so classified as bearing foreign brands. x x x In so doing, the BIR not simply

interpreted the law; verily, it legislated under its quasi-legislative authority. The due observance of
the requirements of notice, of hearing, and of publication should not have been then ignored.
59

For failing to conduct prior hearing before coming up with Resolution No. 9615, said Resolution,
specifically in regard to the new rule on aggregate airtime is declared defective and ineffectual.
g. Resolution No. 9615 does not impose an unreasonable burden on the broadcast industry
It is a basic postulate of due process, specifically in relation to its substantive component, that any
governmental rule or regulation must be reasonable in its operations and its impositions. Any
restrictions, as well as sanctions, must be reasonably related to the purpose or objective of the
government in a manner that would not work unnecessary and unjustifiable burdens on the citizenry.
Petitioner GMA assails certain requirements imposed on broadcast stations as unreasonable. It
explained:
5.40 Petitioner GMA currently operates and monitors 21 FM and AM radio stations
nationwide and 8 originating television stations (including its main transmitter in Quezon City)
which are authorized to dechain national programs for airing and insertion of local content
and advertisements.
5.41 In light of the New Rules wherein a candidate's airtime minutes are applied on an
aggregate basis and considering that said Rules declare it unlawful in Section 7( d) thereof
for a radio, television station or other mass media to sell or give for free airtime to a
candidate in excess of that allowed by law or by said New Rules:
"Section 7. Prohibited Forms of Election Propaganda -During the campaign period, it is
unlawful: x x x x x x x x x
(d) for any newspaper or publication, radio, television or cable television station, or other
mass media, or any person making use of the mass media to sell or to give free of charge
print space or air time for campaign or election propaganda purposes to any candidate or
party in excess of the size, duration or frequency authorized by law or these rules;
xxx

xxx

xxx

(Emphasis supplied)
petitioner GMA submits that compliance with the New Rules in order to avoid administrative
or criminal liability would be unfair, cruel and oppressive.
x x x x.
5.43 In the present situation wherein airtime minutes shall be shared by all television and
radio stations, broadcast mass media organizations would surely encounter insurmountable
difficulties in monitoring the airtime minutes spent by the numerous candidates for various
elective positions, in real time.
5.44 An inquiry with the National Telecommunications Commission (NTC) bears out that
there are 372 television stations and 398 AM and 800 FM radio stations nationwide as of
June 2012. In addition, there are 1, 113 cable TV providers authorized by the NTC to operate
within the country as of the said date.

5.45 Given such numbers of broadcast entities and the necessity to monitor political
advertisements pursuant to the New Rules, petitioner OMA estimates that monitoring
television broadcasts of all authorized television station would involve 7,440 manhours per
day. To aggravate matters, since a candidate may also spend his/her broadcasting minutes
on cable TV, additional 281,040 manhours per day would have to be spent in monitoring the
various channels carried by cable TV throughout the Philippines. As far as radio broadcasts
(both AM and FM stations) are concerned, around 23,960 manhours per day would have to
be devoted by petitioner OMA to obtain an accurate and timely determination of a political
candidate's remaining airtime minutes. During the campaign period, petitioner OMA would
have to spend an estimated 27,494,720 manhours in monitoring the election campaign
commercials of the different candidates in the country.
1wphi1

5.46 In order to carry-out the obligations imposed by the New Rules, petitioner OMA further
estimates that it would need to engage and train 39,055 additional persons on an eight-hour
shift, and assign them all over the country to perform the required monitoring of radio,
television and cable TV broadcasts. In addition, it would likewise need to allot radio,
television, recording equipment and computers, as well as telecommunications equipment,
for this surveillance and monitoring exercise, thus imputing additional costs to the company.
Attached herewith are the computations explaining how the afore-said figures were derived
and the conservative assumptions made by petitioner OMA in reaching said figures, as
Annex "H".
5.47 Needless to say, such time, manpower requirements, expense and effort would have to
be replicated by each and every radio station to ensure that they have properly monitored
around 33 national and more than 40,000 local candidates' airtime minutes and thus, prevent
any risk of administrative and criminal liability.
60

The Court cannot agree with the contentions of GMA. The apprehensions of the petitioner appear
more to be the result of a misappreciation of the real import of the regulation rather than a real and
present threat to its broadcast activities. The Court is more in agreement with the respondent when it
explained that:
The legal duty of monitoring lies with the Comelec. Broadcast stations are merely required to submit
certain documents to aid the Comelec in ensuring that candidates are not sold airtime in excess of
the allowed limits. These documents include: (1) certified true copies of broadcast logs, certificates
of performance, and certificates of acceptance, or other analogous record on specified dates
(Section 9[d][3], Resolution No. 9615, in relation to Section 6.2, R.A. 9006; and (2) copies of all
contract for advertising, promoting or opposing any political party or the candidacy of any person for
public office within five (5) days after its signing (Section 6.3, R.A. 9006).
*****
[T]here is absolutely no duty on the broadcast stations to do monitoring, much less monitoring in real
time. GMA grossly exaggerates when it claims that the non-existent duty would require them to hire
and train an astounding additional 39,055 personnel working on eight-hour shifts all over the
country.
61

The Court holds, accordingly, that, contrary to petitioners' contention, the Reporting Requirement for
the COMELEC's monitoring is reasonable.
Further, it is apropos to note that, pursuant to Resolution No. 9631, the respondent revised the third
paragraph of Section 9 (a). As revised, the provision now reads:
62

Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona
fide news documentary, if the appearance of the candidate is incidental to the presentation of the
subject or subjects covered by the news documentary, or on-the-spot coverage of bona fide news
events, including but not limited to events sanctioned by the Commission on Elections, political
conventions, and similar activities, shall not be deemed to be broadcast election propaganda within
the meaning of this provision. For purposes of monitoring by the COMELEC and ensuring that
parties and candidates were afforded equal opportunities to promote their candidacy, the media
entity shall give prior notice to the COMELEC, through the appropriate Regional Election Director
(RED), or in the case of the National Capital Region (NCR), the Education and Information
Department (EID). If such prior notice is not feasible or practicable, the notice shall be sent within
twenty-four (24) hours from the first broadcast or publication. Nothing in the foregoing sentence
shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news
interviews, news documentaries, and on-the-spot coverage of news events, from the obligation
imposed upon them under Sections 10 and 14 of these Rules."
1awp++i1

63

Further, the petitioner in G.R. No. 205374 assails the constitutionality of such monitoring
requirement, contending, among others, that it constitutes prior restraint. The Court finds otherwise.
Such a requirement is a reasonable means adopted by the COMELEC to ensure that parties and
candidates are afforded equal opportunities to promote their respective candidacies. Unlike the
restrictive aggregate-based airtime limits, the directive to give prior notice is not unduly burdensome
and unreasonable, much less could it be characterized as prior restraint since there is no restriction
on dissemination of information before broadcast. Additionally, it is relevant to point out that in the
original Resolution No. 9615, the paragraph in issue was worded in this wise:
Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona
fide news documentary, if the appearance of the candidate is incidental to the presentation of the
subject or subjects covered by the news documentary, or on-the-spot coverage of bona fide news
events, including but not limited to events sanctioned by the Commission on Elections, political
conventions, and similar activities, shall not be deemed to be broadcast election propaganda within
the meaning of this provision. To determine whether the appearance or guesting in a program is
bona fide, the broadcast stations or entities must show that (1) prior approval of the Commission
was secured; and (2) candidates and parties were afforded equal opportunities to promote their
candidacy. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in
connection with the presentation of newscasts, news interviews, news documentaries, and on-thespot coverage of news events, from the obligation imposed upon them under Sections 10 and 14 of
these Rules.
64

Comparing the original with the revised paragraph, one could readily appreciate what the COMELEC
had done - to modify the requirement from "prior approval" to "prior notice." While the former may be
suggestive of a censorial tone, thus inviting a charge of prior restraint, the latter is more in the nature
of a content-neutral regulation designed to assist the poll body to undertake its job of ensuring fair
elections without having to undertake any chore of approving or disapproving certain expressions.
Also, the right to reply provision is reasonable
In the same way that the Court finds the "prior notice" requirement as not constitutionally infirm, it
similarly concludes that the "right to reply" provision is reasonable and consistent with the
constitutional mandate.
Section 14 of Resolution No. 9615, as revised by Resolution No. 9631, provides:

SECTION 14. Right to Reply. - All registered political parties, party-list groups or coalitions and bona
fide candidates shall have the right to reply to charges published or aired against them. The reply
shall be given publicity by the newspaper, television, and/or radio station which first printed or aired
the charges with the same prominence or in the same page or section or in the same time slot as the
first statement.
Registered political parties, party-list groups or coalitions and bona fide candidates may invoke the
right to reply by submitting within a nonextendible period of forty-eight hours from first broadcast or
publication, a formal verified claim against the media outlet to the COMELEC, through the
appropriate RED. The claim shall include a detailed enumeration of the circumstances and
occurrences which warrant the invocation of the right to reply and must be accompanied by
supporting evidence, such a copy of the publication or recording of the television or radio broadcast,
as the case may be. If the supporting evidence is not yet available due to circumstances beyond the
power of the claimant, the latter shall supplement his claim as soon as the supporting evidence
becomes available, without delay on the part of the claimant. The claimant must likewise furnish a
copy of the verified claim and its attachments to the media outlet concerned prior to the filing of the
claim with the COMELEC.
The COMELEC, through the RED, shall view the verified claim within forty-eight ( 48) hours from
receipt thereof, including supporting evidence, and if circumstances warrant, give notice to the media
outlet involved for appropriate action, which shall, within forty-eight ( 48) hours, submit its comment,
answer or response to the RED, explaining the action it has taken to address the claim. The media
outlet must likewise furnish a copy of the said comment, answer or response to the claimant invoking
the right to reply.
Should the claimant insist that his/her right to reply was not addressed, he/she may file the
appropriate petition and/or complaint before the Commission on Elections or its field offices, which
shall be endorsed to the Clerk of Court.
The attack on the validity of the "right to reply" provision is primarily anchored on the alleged ground
of prior restraint, specifically in so far as such a requirement may have a chilling effect on speech or
of the freedom of the press.
Petitioner ABC states, inter alia:
5 .14 5. A "conscious and detailed consideration" of the interplay of the relevant interests the constitutional mandate granting candidates the right to reply and the inviolability of the
constitutional freedom of expression, speech, and the press - will show that the Right to
Reply, as provided for in the Assailed Resolution, is an impermissible restraint on these
fundamental freedoms.
5.146. An evaluation of the factors set forth in Soriano (for the balancing of interests test)
with respect to the present controversy will show that the Constitution does not tilt the
balance in favor of the Right to Reply provision in the Assailed Resolution and the supposed
governmental interest it attempts to further.
65

The Constitution itself provides as part of the means to ensure free, orderly, honest, fair and credible
elections, a task addressed to the COMELEC to provide for a right to reply. Given that express
constitutional mandate, it could be seen that the Fundamental Law itself has weighed in on the
balance to be struck between the freedom of the press and the right to reply. Accordingly, one is not
merely to see the equation as purely between the press and the right to reply. Instead, the
constitutionallymandated desiderata of free, orderly, honest, peaceful, and credible elections would
66

necessarily have to be factored in trying to see where the balance lies between press and the
demands of a right-to-reply.
Moreover, as already discussed by the Court in Telecommunications and Broadcast Attorneys of the
Philippines, Inc. v. Commission on Elections.
67

In truth, radio and television broadcasting companies, which are given franchises, do not own the
airwaves and frequencies through which they transmit broadcast signals and images. They are
merely given the temporary privilege of using them. Since a franchise is a mere privilege, the
exercise of the privilege may reasonably be burdened with the performance by the grantee of some
form of public service. x x x
68

Relevant to this aspect are these passages from an American Supreme Court decision with regard
to broadcasting, right to reply requirements, and the limitations on speech:
We have long recognized that each medium of expression presents special First Amendment
problems. Joseph Burstyn, Inc. v. Wilson, 343 US 495, 502-503, 96 L Ed 1098, 72 S Ct 777. And of
all forms of communication, it is broadcasting that has received the most limited First Amendment
protection. Thus, although other speakers cannot be licensed except under laws that carefully define
and narrow official discretion, a broadcaster may be deprived of his license and his forum if the
Commission decides that such an action would serve "the public interest, convenience, and
necessity." Similarly, although the First Amendment protects newspaper publishers from being
required to print the replies of those whom they criticize, Miami Herald Publishing Co. v. Tornillo, 418
US 241, 41 L Ed 2d 730, 94 S Ct 2831, it affords no such protection to broadcasters; on the contrary,
they must give free time to the victims of their criticism. Red Lion Broadcasting Co. v. FCC, 395 US.
367, 23 L Ed 2d 371, 89 S Ct 1794.
The reasons for these distinctions are complex, but two have relevance to the present case. First,
the broadcast media have established a uniquely pervasive presence in the lives of all Americans.
Patently offensive, indecent material presented over the airwaves confronts the citizen not only in
public, but also in the privacy of the home, where the individual's right to be left alone plainly
outweighs the First Amendment rights of an intruder. Rowan v. Post Office Dept., 397 US 728, 25 L
Ed 2d 736, 90 S Ct 1484. Because the broadcast audience is constantly tuning in and out, prior
warnings cannot completely protect the listener or viewer from unexpected program content. To say
that one may avoid further offense by turning off the radio when he hears indecent language is like
saying that the remedy for an assault is to run away after the first blow. One may hang up on an
indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm
that has already taken place.
Second, broadcasting is uniquely accessible to children, even those too young to read. Although
Cohen's written message might have been incomprehensible to a first grader, Pacifica's broadcast
could have enlarged a child's vocabulary in an instant. Other forms of offensive expression may be
withheld from the young without restricting the expression at its source. Bookstores and motion
picture theaters, for example, may be prohibited from making indecent material available to children.
We held in Ginsberg v. New York, 390 US 629, that the government's interest in the "well-being of its
youth" and in supporting "parents' claim to authority in their own household" justified the regulation of
otherwise protected expression. The ease with which children may obtain access to broadcast
material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of
indecent broadcasting.
69

Given the foregoing considerations, the traditional notions of preferring speech and the press over
so many other values of society do not readily lend itself to this particular matter. Instead, additional

weight should be accorded on the constitutional directive to afford a right to reply. If there was no
such mandate, then the submissions of petitioners may more easily commend themselves for this
Court's acceptance. But as noted above, this is not the case. Their arguments simplistically provide
minimal importance to that constitutional command to the point of marginalizing its importance in the
equation.
In fine, when it comes to election and the exercise of freedom of speech, of expression and of the
press, the latter must be properly viewed in context as being necessarily made to accommodate the
imperatives of fairness by giving teeth and substance to the right to reply requirement.
WHEREFORE, premises considered, the petitions are PARTIALLY GRANTED, Section 9 (a) of
Resolution No. 9615, as amended by Resolution No. 9631, is declared UNCONSTITUTIONAL and,
therefore, NULL and VOID. The constitutionality of the remaining provisions of Resolution No. 9615,
as amended by Resolution No. 9631, is upheld and remain in full force and effect.
In view of this Decision, the Temporary Restraining Order issued by the Court on April 16, 2013 is
hereby made PERMANENT.
SO ORDERED.

EN BANC
G.R. No. 212398, November 25, 2014
EMILIO RAMON E.R. P. EJERCITO, Petitioner, v. HON. COMMISSION ON ELECTIONS AND EDGAR
EGAY S. SAN LUIS, Respondents.
DECISION
PERALTA, J.:
Contested in this petition for certiorari under Rule 64, in relation to Rule 65 of the Rules of Court (Rules), is
the May 21, 2014 Resolution1 of the Commission on Elections (COMELEC) En Banc in SPA No. 13-306 (DC),

which affirmed the September 26, 2013 Resolution2 of the COMELEC First Division granting the petition for
disqualification filed by private respondent Edgar Egay S. San Luis (San Luis) against petitioner Emilio
Ramon E.R. P. Ejercito (Ejercito).
Three days prior to the May 13, 2013 National and Local Elections, a petition for disqualification was filed by
San Luis before the Office of the COMELEC Clerk in Manila against Ejercito, who was a fellow gubernatorial
candidate and, at the time, the incumbent Governor of the Province of Laguna. 3 Alleged in his Petition are as
follows:
FIRST CAUSE OF ACTION
5. [Ejercito], during the campaign period for 2013 local election, distributed to the electorates of the
province of Laguna the so-called Orange Card with an intent to influence, induce or corrupt the voters in
voting for his favor. Copy thereof is hereto attached and marked as Annex C and made as an integral part
hereof;
6. In furtherance of his candidacy for the position of Provincial Governor of Laguna, [Ejercito] and his
cohorts claimed that the said Orange Card could be used in any public hospital within the Province of
Laguna for their medical needs as declared by the statements of witnesses which are hereto attached and
marked as Annex D as integral part hereof;
7. The so-called Orange Card is considered a material consideration in convincing the voters to cast their
votes for [Ejercitos] favor in clear violation of the provision of the Omnibus Election Code which provides
and I quote:
Sec. 68. Disqualifications. Any candidate who, in an action or protest in which he is a party is declared by
final decision by a competent court guilty of, or found by the Commission of having (a) given money or other
material consideration to influence, induce or corrupt the voters or public officials performing electoral
functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an
amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited
under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86, and 261, paragraphs
d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign
country shall not be qualified to run for any elective office under this Code, unless said person has waived
his status as permanent resident or immigrant of a foreign country in accordance with the residence
requirement provided for in the election laws. (emphasis ours)
8. Thus, pursuant to the mandate of the aforesaid law, [Ejercito] should be disqualified;
SECOND CAUSE OF ACTION
9. Based on the records of the Provincial COMELEC, the Province of Laguna has a total of 1,525,522
registered electorate. A certification issued by the Provincial Election Supervisor is hereto attached and
marked as Annex E as an integral part hereof;
10. In this regard, par. (a), Section 5 of COMELEC Resolution No. 9615, otherwise known as the Rules and
Regulations Implementing FAIR ELECTION ACT provides and I quote:
Authorized Expenses of Candidates and Parties. The aggregate amount that a candidate or party may
spent for election campaign shall be as follows:
a.

For candidates Three pesos (P3.00) for every voter currently registered in the
constituency where the candidate filed his certificate of candidacy.

b.

For other candidates without any political party and without any support from any
political party Five pesos (P5.00) for every voter currently registered in the
constituency where the candidate filed his certificate of candidacy.

c.

For Political Parties and party-list groups Five pesos (P5.00) for every voter
currently registered in the constituency or constituencies where it has official
candidates. (underscoring mine for emphasis)

11. Accordingly, a candidate for the position of Provincial Governor of Laguna is only authorized to incur an
election expense amounting to FOUR MILLION FIVE HUNDRED SEVENTY-SIX THOUSAND FIVE HUNDRED

SIXTY-SIX (P4,576,566.00) PESOS.

12. However, in total disregard and violation of the afore-quoted provision of law, [Ejercito] exceeded his
expenditures in relation to his campaign for the 2013 election. For television campaign commercials alone,
[Ejercito] already spent the sum of PhP23,730.784 based on our partys official monitoring on the following
dates[:] April 28, May 4 & May 5, 2013.

Network
ABS-CBN
ABS-CBN
GMA
GMA
GMA
GMA
ABS-CBN
ABS-CBN

Date
April 28,
2013
April 28,
2013
April 28,
2013
April 28,
2013
April 28,
2013
April 28,
2013
May 4,
2013
May 5,
2013

Program
TV Patrol
Sundays Best
(local
specials)
Sunday Night
Box Office
Sunday Night
Box Office
Sunday Night
Box Office
Sunday Night
Box Office
TODA MAX
Rated K

Time

Duration
Amount*
4 minutes
5:58 p.m.
P3,297,496
(approximately)
10:40
p.m.

4 minutes
P3,297,496
(approximately)

10:46
p.m.
11:06
p.m.
11:18
p.m.
11:47
p.m.
11:26
p.m.

3 minutes
P2,635,200
(approximately)
4 minutes
P2,635,200
(approximately)
4 minutes
P2,635,200
(approximately)
4 minutes
P2,635,200
(approximately)
4 minutes
P3,297,496
(approximately)
4 minutes
8:06 p.m.
P3,297,496
(approximately)
Total
P23,730.784

* Total cost based on published rate card;

13. Even assuming that [Ejercito] was given 30% discount as prescribed under the Fair Election Act, he still
exceeded in the total allowable expenditures for which he paid the sum of P16,611,549;
14. In view of the foregoing disquisitions, it is evident that [Ejercito] committed an election offense as
provided for under Section 35 of COMELEC Resolution No. 9615, which provides and I quote:
Election Offense. Any violation of R.A. No. 9006 and these Rules shall constitute an election offense
punishable under the first and second paragraph of Section 264 of the Omnibus Election Code in addition to
administrative liability, whenever applicable. x x x
15. Moreover, it is crystal clear that [Ejercito] violated Sec. 68 of the Omnibus Election Code which provides
and I quote:
Sec. 68. Disqualifications. Any candidate who, in an action or protest in which he is a party is declared by
final decision by a competent court guilty of, or found by the Commission of having (a) given money or other
material consideration to influence, induce or corrupt the voters or public officials performing electoral
functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an
amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited
under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86, and 261, paragraphs
d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign
country shall not be qualified to run for any elective office under this Code, unless said person has waived
his status as permanent resident or immigrant of a foreign country in accordance with the residence
requirement provided for in the election laws. (emphasis ours)
16. On the other hand, the effect of disqualification is provided under Sec. 6 of Republic Act No. 6646, which
states and I quote:

Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he is voted for and receives the winning
number of votes in such election, the Court or Commission shall continue with the trial and hearing of the
action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate whenever the evidence of [his] guilt is
strong. (emphasis mine)
PRAYER
WHEREFORE, premises considered, it is respectfully prayed that:

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1. Upon filing of this petition, a declaration by the Honorable Commission of the existence of probable cause
be made against [Ejercito] for violating the afore-quoted provisions of laws;
2. In the event that [Ejercito] will be able to get a majority vote of the electorate of the Province of Laguna
on May 13, 2013, his proclamation be suspended until further order of the Honorable Commission pursuant
to Sec. 6 of Republic Act No. 6646;
3. Lastly, a criminal case for VIOLATION OF ELECTION LAWS be filed against [Ejercito] before the proper
court[;] [and]
4. Other relief, just and equitable under the premises, are also prayed for.4
Subsequently, on May 16, 2013, San Luis filed a Very Urgent Ex-Parte Motion to Issue Suspension of
Possible Proclamation of Respondent and Supplemental to the Very Urgent Ex-Parte Motion to Issue
Suspension of Possible Proclamation of Respondent.5 However, these were not acted upon by the COMELEC.
The next day, Ejercito and Ramil L. Hernandez were proclaimed by the Provincial Board of Canvassers as the
duly-elected Governor and Vice-Governor, respectively, of Laguna. 6 Based on the Provincial/District
Certificate of Canvass, Ejercito obtained 549,310 votes compared with San Luis 471,209 votes. 7
chanrobleslaw

The COMELEC First Division issued a Summons with Notice of Conference on June 4, 2013.8 Ejercito then
filed his Verified Answer on June 13, 2013 that prayed for the dismissal of the petition due to procedural and
substantive irregularities and taking into account his proclamation as Provincial Governor.9 He countered that
the petition was improperly filed because, based on the averments and relief prayed for, it is in reality a
complaint for election offenses; thus, the case should have been filed before the COMELEC Law Department,
or the election registrar, provincial election supervisor or regional election director, or the state, provincial or
city prosecutor in accordance with Laurel v. Presiding Judge, RTC, Manila, Br. 10.10 Assuming that the
petition could be given due course, Ejercito argued that San Luis failed to show, conformably with Codilla,
Sr. v. Hon. De Venecia,11 that he (Ejercito) was previously convicted or declared by final judgment of a
competent court for being guilty of, or found by the COMELEC of having committed, the punishable acts
under Section 68 of Batas Pambansa (B.P.) Bilang 881, or the Omnibus Election Code of the Philippines, as
amended (OEC).12
chanroble slaw

As to the acts he allegedly committed, Ejercito claimed that the same are baseless, unfounded, and totally
speculative. He stated that the Health Access Program or the E.R. Orange Card was a priority project of his
administration as incumbent Governor of Laguna and was never intended to influence the electorate during
the May 2013 elections. He added that the Orange Card, which addressed the increasing need for and the
high cost of quality health services, provides the Laguneos not only access to medical services but also the
privilege to avail free livelihood seminars to help them find alternative sources of income. With respect to
the charge of having exceeded the total allowable election expenditures, Ejercito submitted that the
accusation deserves no consideration for being speculative, self-serving, and uncorroborated by any other
substantial evidence.
Citing Sinaca v. Mula,13 Ejercito asserted that the petition questioning his qualification was rendered moot
and academic by his proclamation as the duly-elected Provincial Governor of Laguna for the term 20132016. He perceived that his successful electoral bid substantiates the fact that he was an eligible candidate
and that his victory is a testament that he is more than qualified and competent to hold public office.
Lastly, Ejercito considered San Luis petition for disqualification as purely frivolous and with no plain and
clear purpose but to harass and cause undue hardship. According to him, the fact that it was filed only a few
days before the May 13, 2013 elections evidently shows that it was lodged as a last-ditch effort to baselessly
derail and obstruct his assumption of office and function as the duly-elected Laguna Governor.

The scheduled case conference between the parties on June 13, 2013 was reset to June 27, 2013. 14 In the
latter date, all the documentary exhibits were marked in evidence and the parties agreed to file their
respective memorandum within ten (10) days.15
chanroble slaw

San Luis substantially reiterated the content of the Petition in his Memorandum.16 Additionally, he alleged
that:
15. After the election, [San Luis] was able to secure documents from the Information and Education
Department of the Commission on Elections showing that [Ejercito] have incurred advertising expenses with
ABS-CBN in the amount of [P20,197,170.25] not to mention his advertisement with GMA 7. Copies of the
summary report, media purchase order, advertising contract[,] and official receipt are marked as EXHS. B1, B-2, B-3, and B-4 (Annexes A, B, C, and D, supplemental to the very urgent ex-parte
motion)[.]17
It was stressed that the case is a Special Action for Disqualification seeking to disqualify Ejercito as
gubernatorial candidate for violation of Section 68 (a) (c) of the OEC. He prayed that [t]he Petition BE
GRANTED [and] x x x [Ejercito] BE DISQUALIFIED, and PREVENTED from further holding office as Governor
of Laguna.18 In refutation of Ejercitos defenses, San Luis argued that it is precisely because of the
commission of the election offenses under Section 68 of the OEC that he (Ejercito) should be disqualified.
Also, citing Section 6 of Republic Act (R.A.) No. 6646,19 San Luis contended that Ejercitos proclamation and
assumption of office do not affect the COMELECs jurisdiction to continue with the trial and hearing of the
action until it is finally resolved.
For his part, Ejercito filed a Manifestation (In Lieu of Memorandum)20 restating all the arguments set forth in
his Verified Answer.
On September 26, 2013, the COMELEC First Division promulgated a Resolution, the dispositive portion of
which reads:
WHEREFORE, premises considered, the Commission (First Division) RESOLVED, as it hereby RESOLVES,
to:
chanroble svirtuallawlibrary

(1) GRANT the Petition for Disqualification filed against respondent Emilio
Ramon E.R. P. Ejercito;
(2) DISQUALIFY respondent Ejercito from holding the Office of the
Provincial Governor of Laguna, pursuant to Section 68 of the Omnibus
Election Code;
(3) ORDER respondent Ejercito to CEASE and DESIST from performing the
functions of the Office of the Provincial Governor of Laguna;
(4) DECLARE a permanent VACANCY in the Office of the Provincial
Governor of Laguna;
(5) DIRECT the duly elected Vice Governor of Laguna to assume the Office
of the Provincial Governor by virtue of succession as provided in Section
44 of the Local Government Code; and
(6) DIRECT the Campaign Finance Unit to coordinate with the Law
Department of this Commission for the conduct of a preliminary
investigation into the alleged violations of campaign finance laws, rules
and regulations committed by respondent Ejercito.
SO ORDERED.21

On procedural matters, the COMELEC First Division held that the title of San Luis petition and its reliance on
Section 68 (a) (c) of the OEC as grounds for his causes of action clearly show that the case was brought
under Rule 25 of the COMELEC Rules of Procedure, 22 as amended by COMELEC Resolution No. 9523,23 which
allows petitions for disqualification to be filed any day after the last day for filing of certificates of candidacy,
but not later than the date of proclamation. No credence was given to Ejercitos contention that the petition
was mooted by his proclamation as Governor of Laguna. The COMELEC First Division opined that the case
of Sinaca is inapplicable, because it was not about Sinacas eligibility or whether he committed any of the
acts enumerated in Section 68 of the OEC. Consistent with Maquiling v. Commission on Elections,24 it was
declared that Ejercitos garnering of more votes than San Luis in the May 2013 elections is not tantamount
to condonation of any act or acts that he committed which may be found to be a ground for disqualification
or election offense.
The COMELEC First Division settled the substantive issues put forth in the petition for disqualification in this
wise:
Anent [San Luis] first cause of action, [San Luis] presented the Sworn Statement dated [May 7, 2013] of a
certain Mrs. Daisy A. Cornelio, together with the Orange Card issued to Mrs. Cornelio, marked respectively
as Exhibits A-4 and A-3 as per [San Luis] Summary of Exhibits to prove that [Ejercito] committed the
act described in Section 68 (a) of the OEC. After reviewing Mrs. Cornelios Sworn Statement, we do not find
any averment to the effect that the Orange Card was given to the affiant to influence or induce her to vote
for [Ejercito]. Affiant only stated that she was given the Orange Card last April of this year and that she
was not able to use it during those times when [she] or one of [her] family members got sick and needed
hospital assistance. Aside from Mrs. Cornelios Sworn Statement, there is no other evidence to support [San
Luis] claim, leading us to reject [San Luis] first cause of action.
With respect to the second cause of action, [San Luis] presented Exhibits B-1 to B-4, which are
submissions made by the ABS-CBN Corporation as mandated by Section 6 of Republic Act No. 9006 (RA
9006 or the Fair Election Act), implemented through Section 9 (a) of Resolution No. 9615. Exhibit B-3 is
an Advertising Contract between ABS-CBN Corporation and Scenema Concept International, Inc. (SCI).
The details of the Contract are as follows:
chanroble svirtuallawlibrary

Payor/Advertiser
Beneficiary
Broadcast Schedule
Number of Spots
Unit Cost per Spot
Total Cost of Contract

Scenema Concept International, Inc.

Jeorge ER Ejercito Estregan
April 27, 28, May 3, 4, 10 & 11, 2013
6 spots of 3.5 minutes each
PhP 3,366,195.04
PhP 20,197,170.25 plus VAT

The Contract contains the signature of [Ejercito] signifying his acceptance of the donation by SCI, the latter
represented by its Executive Vice President, Ms. Maylyn Enriquez. In addition to the advertising contract,
Exhibit B-4 was submitted, which is a photocopy of an Official Receipt issued by ABS-CBN for the contract,
with the following details:
chanroblesvirtuallawlibrary

Date of the Receipt

Received From
Amount Received
Official Receipt No.

[April 26, 2013]

Scenema Concept International, Inc.
PhP 6,409,235.28
278499

Upon verification of the submitted Exhibits B-1 to B-4 with this Commissions Education and Information
Department (EID), the latter having custody of all advertising contracts submitted by broadcast stations and
entities in relation to the [May 13, 2013] National and Local Elections, we find the said Exhibits to be faithful
reproductions of our file copy of the same. A comparison of [Ejercitos] signature on the Advertising
Contractand that on his Certificate of Candidacy show them to be identical to each other, leading us to the
conclusion that [Ejercito] had indeed accepted the PhP 20,197,170.25 donation in the form of television
advertisements to be aired on ABS-CBNs Channel 2. Even if we were to assume that only PhP 6,409,235.28

was actually paid out of PhP 20,197,170.25 advertising contract, this amount is still more than PhP
4,576,566.00, which is [Ejercitos] total authorized aggregate amount allowed for his election campaign,
computed as follows:
chanroble svirtuallawlibrary

Number of registered
voters for the whole
Province of Laguna

Authorized expense
Total amount of
x per voter registered in = spending allowed for
the constituency
election campaign

1,525,522 registered

x PhP 3.00 per voter

= PhP 4,576,566.00

While not presented as evidence in this case, we cannot deny the existence of anotherAdvertising Contract
dated [May 8, 2013] for one (1) spot of a 3.5-minute advertisement scheduled for broadcast on [May 9,
2013], amounting to PhP 3,366,195.05. This Contract also contains the signature of [Ejercito] accepting the
donation from SCI and is accompanied by an ABS-CBN-issued Official Receipt No. 279513 dated [May 7,
2013] in SCIs name for PhP 6,409,235.28. If we add the amounts from both contracts, we arrive at a total
cost of PhP 23,563,365.29, which, coincidentally, is the product of:
chanroblesvirtuallawlibrary

Number of spots

x Unit cost per spot

= Total contract cost

Seven (7) spots

x PhP 3,366,195.04

= PhP 23,563,365.28

This matches the data gathered by the Commissions EID from the reports and logs submitted by broadcast
stations as required by the Fair Election Act. According to the 99-page Daily Operations Log for Channel 2
submitted by ABS-CBN covering the period of [April 27, 2013] to [May 11, 2013], [Ejercitos] 3.5-minute or
210-second advertisement was aired seven (7) times. The specific details on the dates of airing, program or
time slot when the advertisements were aired, and the time when the advertisements as culled from the 99page Daily Operations Log are summarized as thus:
chanroble svirtuallawlibrary

Date aired
28 Apr 2013
28 Apr 2013
04 May 2013
05 May 2013
09 May 2013
10 May 2013
11 May 2013

Program/Time Slot
TV Patrol Linggo/5:20-5:30 pm
Harapan: Senatorial Debate/9:3011:30 pm
TODA MAX/10:30-11:15 pm
Rated K-Handa Na Ba Kayo/7:15-8:15
pm
TV Patrol/6:30-7:45 pm
TV Patrol/6:30-7:45 pm
TV Patrol Sabado/5:30-6:00 pm

Airtime
05:54:40 PM
10:40:13 PM
11:26:43 PM
08:06:42 PM
07:35:56 PM
07:44:50 PM
06:12:30 PM

Source: Pages 6, 8, 43, 47, 75, 84, and 93 of ABS-CBN Channel 2 Daily Operations Log for [April 27, 2013]
to [May 11, 2013].
Assuming arguendo, that the actual cost of both contracts only amounted to PhP 12,818,470.56 as
substantiated by the two (2) Official Receipts issued by the ABS-CBN on [April 26] and [May 7, 2013], or
even if we were only to consider Exhibit [B-4] or the Php 6,409,235.28 payment to ABS-CBN on [April 26,
2013], it nevertheless supports our finding that [Ejercito] exceeded his authorized expenditure limit of PhP
4,576,566.00 which is a ground for disqualification under Section 68 (c) and concurrently an election offense
pursuant to Section 100 in relation to Section 262 of the Omnibus Election Code. 25
Only Ejercito filed a Verified Motion for Reconsideration before the COMELEC En Banc.26 After the parties
exchange of pleadings,27 the Resolution of the COMELEC First Division was unanimously affirmed on May 21,
2014.
The COMELEC En Banc agreed with the findings of its First Division that San Luis petition is an action to
disqualify Ejercito, reasoning that:

x x x First, the title of the petition indicating that it is a petition for disqualification clearly expresses the
objective of the action. Second, it is manifest from the language of the petition that the causes of action
have relied primarily on Section 68 (a) and (c) of the OEC[,] which are grounds for disqualification x x x.
Third, notwithstanding that the relief portion of the petition sounded vague in its prayer for the
disqualification of Ejercito, the allegations and arguments set forth therein are obviously geared towards
seeking his disqualification for having committed acts listed as grounds for disqualification in Section 68 of
OEC. Lastly, as correctly observed by the COMELEC First Division, San LuisMemorandum addresses and
clarifies the intention of the petition when it prayed for Ejercito to be disqualified and prevented from
holding office as Governor of Laguna. While there is a prayer seeking that Ejercito be held accountable for
having committed election offenses, there can be no doubt that the petition was primarily for his
disqualification.
Section 68 of the OEC expressly grants COMELEC the power to take cognizance of an action or protest
seeking the disqualification of a candidate who has committed any of the acts listed therein from continuing
as one, or if he or she has been elected, from holding office. One ground for disqualification listed in Section
68 is spending in an election campaign an amount in excess of that allowed by law. It is exactly on said
ground that San Luis is seeking the disqualification of Ejercito. The jurisdiction of COMELEC over the
petition, therefore, is clear.28
The alleged violation of Ejercitos constitutional right to due process was also not sustained:
Ejercito insists that he was deprived of his right to notice and hearing and was not informed of the true
nature of the case filed against him when San Luis was allegedly allowed in his memorandum to make as
substantial amendment in the reliefs prayed for in his petition. San Luis was allegedly allowed to seek for
Ejercitos disqualification instead of the filing of an election offense against him.
As discussed above, the allegations in the petition, particularly the causes of action, clearly show that it is
not merely a complaint for an election offense but a disqualification case against Ejercito as well. San Luis
memorandum merely amplified and clarified the allegations and arguments in his petition. There was no
change in the cause or causes of action. Ejercito[,] therefore, cannot claim that he was not aware of the true
nature of the petition filed against him.
Likewise, Ejercito cannot complain that he was deprived of his right to notice and hearing. He cannot feign
ignorance that the COMELEC First Division, throughout the trial, was hearing the petition as a disqualification
case and not as an election offense case. He was served with Summons with Notice of Conference on [June
4, 2013] and was given a copy of the petition. He likewise submitted to the jurisdiction of the Commission
when he filed his Verified Answer. He also participated in the Preliminary Conference on [June 27, 2013]
wherein he examined evidence on record and presented his own documentary exhibits. Lastly, he filed
a Manifestation (in lieu of Memorandum) incorporating all his allegations and defenses.
Ejercito contends that amending the reliefs prayed for is prohibited under Section 2, Rule 9 of the 1993
COMELEC Rules of Procedure. He asserts that the relief prayed for in the memorandum is not the same as
that in the petition. However, a scrutiny of said amendment shows that no new issues were introduced.
Moreover, there was no departure from the causes of action and no material alterations on the grounds of
relief. The amendment[,] therefore[,] is not substantial as it merely rectifies or corrects the true nature of
reliefs being prayed for as set forth in the petition.
The records of the case will show that Ejercito has been afforded the opportunity to contest and rebut all the
allegations against him. He was never deprived of his right to have access to the evidence against him. He
was adequately aware of the nature and implication of the disqualification case against him. Thus, Ejercito
cannot say that he was denied of his constitutional right to due process.
It is important to note at this point that Ejercito, in his motion for reconsideration, deliberately did not tackle
the merit and substance of the charges against him. He limited himself to raising procedural issues. This is
despite all the opportunity that he was given to confront the evidence lodged against him. Therefore, there
is no reason for the COMELEC En Banc to disturb the findings of the COMELEC First Division on whether
Ejercito indeed over-spent in his campaign for governorship of Laguna in the [May 13, 2013] National and
Local Elections.29
Anchoring on the case of Lanot v. Commission on Elections,30 the COMELEC En Banc likewise debunked
Ejercitos assertion that the petition was prematurely and improperly filed on the ground that the filing of an
election offense and the factual determination on the existence of probable cause are required before a
disqualification case based on Section 68 of the OEC may proceed. It held:

As discussed in the case of Lanot vs. Comelec, each of the acts listed as ground for disqualification under
Section 68 of the OEC has two aspects electoral and criminal which may proceed independently from each
other, to wit:
x x x The electoral aspect of a disqualification case determines whether the offender should be disqualified
from being a candidate or from holding office. Proceedings are summary in character and require only clear
preponderance of evidence. An erring candidate may be disqualified even without prior
determination of probable cause in a preliminary investigation. The electoral aspect may proceed
independently of the criminal aspect, and vice-versa.
The criminal aspect of a disqualification case determines whether there is probable cause to charge a
candidate for an election offense. The prosecutor is the COMELEC, through its Law Department, which
determines whether probable cause exists. If there is probable cause, the COMELEC, through its Law
Department, files the criminal information before the proper court. Proceedings before the proper court
demand a full-blown hearing and require proof beyond reasonable doubt to convict. A criminal conviction
shall result in the disqualification of the offender, which may even include disqualification from holding a
future public office. (Emphasis supplied)31
The petition for disqualification against Ejercito for campaign over-spending before the Commission is heard
and resolved pursuant to the electoral aspect of Section 68 of the OEC. It is an administrative proceeding
separate and distinct from the criminal proceeding through which Ejercito may be made to undergo in order
to determine whether he can be held criminally liable for the same act of over-spending. It is through this
administrative proceeding that this Commission, initially through its divisions, makes a factual determination
on the veracity of the parties respective allegations in a disqualification case. There is no need for a
preliminary investigation finding on the criminal aspect of the offenses in Section 68 before the Commission
can act on the administrative or electoral aspect of the offense. All that is needed is a complaint or a
petition. As enunciated in Lanot, (a)n erring candidate may be disqualified even without prior determination
of probable cause in a preliminary investigation. The electoral aspect may proceed independently of the
criminal aspect, and vice-versa.
Moreover, Ejercitos reliance on Codilla is misplaced. The COMELEC En Banc opined that the portion of
the Codilla decision that referred to the necessity of the conduct of preliminary investigation pertains to
cases where the offenders are charged with acts not covered by Section 68 of the OEC, and are, therefore,
beyond the ambit of the COMELECs jurisdiction. It said that the decision refers to this type of cases as
criminal (not administrative) in nature, and, thus, should be handled through the criminal process.
Further rejected was Ejercitos argument that the COMELEC lost its jurisdiction over the petition for
disqualification the moment he was proclaimed as the duly-elected Governor of Laguna. For the
COMELEC En Banc, its First Division thoroughly and sufficiently addressed the matter when it relied
onMaquiling instead of Sinaca. It maintained that Section 5 of COMELEC Resolution No. 9523, not COMELEC
Resolution No. 2050,32 is relevant to the instant case as it states that the COMELEC shall continue the trial
and hearing of a pending disqualification case despite the proclamation of a winner. It was noted that the
proper application of COMELEC Resolution No. 2050 was already clarified inSunga v. COMELEC.33
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Finally, the COMELEC En Banc ruled on one of San Luis contentions in his Comment/Opposition to Ejercitos
motion for reconsideration. He argued that he becomes the winner in the gubernatorial election upon the
disqualification of Ejercito. Relying on Maquiling, San Luis declared that he was not the second placer as he
obtained the highest number of valid votes cast from among the qualified candidates. In denying
that Maquiling is on all fours with this case, the COMELEC En Banc said:
In the instant case, Ejercito cannot be considered as a non-candidate by reason of his disqualification under
Section 68 of the OEC. He was a candidate who filed a valid certificate of candidacy which was never
cancelled.
Ejercito was a bona fide candidate who was disqualified, not because of any ineligibility existing at the time
of the filing of the certificate of candidacy, but because he violated the rules of candidacy. His disqualifying
circumstance, that is, his having over-spent in his campaign, did not exist at the time of the filing of his
certificate of candidacy. It did not affect the validity of the votes cast in his favor. Notwithstanding his
disqualification, he remains the candidate who garnered the highest number of votes.
Ejercito cannot be on the same footing with Arnado in the Maquiling case. Arnado was disqualified from
running for Mayor of Kauswagan, Lanao Del Sur because he was a dual citizen not qualified to run for
election. His disqualification existed at the time of the filing of the certificate of candidacy. The effect,
pursuant to the Maquiling case, is that the votes he garnered are void, which in turn resulted in having
considered the second placer Maquiling as the candidate who obtained the highest number of valid

votes cast.
San Luis is in a different circumstance. The votes for the disqualified winning candidate remained valid.
Ergo, San Luis, being the second placer in the vote count, remains the second placer. He cannot[,] thus[,]
be named the winner.
Section 6, Rule 25 of the COMELEC Resolution No. 9523, which governs Section 68 petitions for
disqualification, enunciates the rule succinctly, to wit:
Section 6. Effect of Granting of Petition. In the event a Petition to disqualify a candidate is granted by final
judgment as defined under Section 8 of Rule 23 and the disqualified candidate obtains the highest number
of votes, the candidate with the second highest number of votes cannot be proclaimed and the rule of
succession, if allowed by law, shall be observed. In the event the rule of succession is not allowed, a vacancy
shall exist for such position.34
On May 23, 2014, Ejercito filed before this Court a Petition for certiorari with application for the issuance of
a status quo ante order or temporary restraining order (TRO)/writ of preliminary injunction (WPI).35 Without
issuing a TRO/WPI, the Honorable Chief Justice, Maria Lourdes P. A. Sereno, issued on May 28, 2014 an
order to respondents to comment on the petition within a non-extendible period of ten (10) days from
notice.36 Such order was confirmed nunc pro tunc by the Court En Banc on June 3, 2014.37
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Meantime, on May 26, 2014, Ejercito filed before the COMELEC En Banc an Omnibus Motion to suspend
proceedings and to defer the implementation of the May 21, 2014 Resolution. 38 On the same day, San Luis
also filed an Extremely Urgent Motion to Declare COMELEC En Banc Resolution of May 21, 2014 and First
Division Resolution of September 26, 2013 Final and Executory and to Issue Forthwith Writ of Execution or
Implementing Order39 invoking Paragraph 2, Section 8 of COMELEC Resolution No. 9523, in relation to
Section 13 (b), Rule 18 of the COMELEC Rules of Procedure. 40 On May 27, 2014, the COMELEC En
Banc issued an Order denying Ejercitos omnibus motion, granted San Luis extremely urgent motion, and
directed the Clerk of the Commission to issue the corresponding writ of execution. 41 On even date, ViceGovernor Hernandez was sworn in as the Governor of Laguna at the COMELEC Main Office in Manila. The
service of the writ was deemed completed and validly served upon Ejercito on May 28, 2014. 42
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In his petition before Us, Ejercito raised the following issues for resolution:
THE COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION IN THAT:

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(I) IT VIOLATED THE RIGHT OF PETITIONER TO DUE PROCESS WHEN IT RULED FOR THE
DISQUALIFICATION OF PETITIONER EVEN IF IT WAS NEVER PRAYED FOR IN THE PETITION. WORSE, THERE
IS YET NO FINDING OF GUILT BY A COMPETENT COURT OR A FINDING OF FACT STATING THAT PETITIONER
ACTUALLY COMMITTED THE ALLEGED ELECTION OFFENSE OF OVERSPENDING;
(II) IT RELIED ON A DOCUMENTARY EXHIBIT (ADVERTISING CONTRACT) WHICH WAS NOT EVEN FORMALLY
OFFERED AS EVIDENCE; [AND]
(III) IT DISQUALIFIED PETITIONER FOR AN ACT DONE BY A THIRD PARTY WHO SIMPLY EXERCISED ITS
RIGHT TO FREE EXPRESSION WITHOUT THE KNOWLEDGE AND CONSENT OF PETITIONER[.] 43
The petition is unmeritorious.
A special civil action for certiorari under Rule 64, in relation to Rule 65, is an independent action that is
available only if there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course
of law.44 It is a legal remedy that is limited to the resolution of jurisdictional issues and is not meant to
correct simple errors of judgment.45 More importantly, it will only prosper if grave abuse of discretion is
alleged and is actually proved to exist.46
Grave abuse of discretion arises when a lower court or tribunal violates the Constitution, the law or existing
jurisprudence. It means such capricious and whimsical exercise of judgment as would amount to lack of
jurisdiction; it contemplates a situation where the power is exercised in an arbitrary or despotic manner by
reason of passion or personal hostility, so patent and gross as to amount to an evasion of positive duty or a
virtual refusal to perform the duty enjoined by law. x x x. 47
Ejercito failed to prove that the COMELEC rendered its assailed Resolution with grave abuse of discretion.
We now explain.
The petition filed by San Luis against Ejercito is for the latters disqualification and prosecution
for election offense

Ejercito insists that his alleged acts of giving material consideration in the form of Orange Cards and
election overspending are considered as election offenses under Section 35 of COMELEC Resolution No.
9615,48 in relation to Section 1349 of R.A. No. 9006, and punishable under Section 26450 of the OEC.
Considering that San Luis petition partakes of the nature of a complaint for election offenses, the COMELEC
First Division has no jurisdiction over the same based on COMELEC Resolution No. 9386 51 and Section
26552 of the OEC.
Still, Ejercito contends that the COMELEC erroneously sanctioned a change in San Luis cause of action by
the mere expedient of changing the prayer in the latters Memorandum. According to him, San Luis
additional prayer for disqualification in the Memorandum is a substantial amendment to the Petition as it
constitutes a material deviation from the original cause of action from a complaint for election offenses to
a petition for disqualification. Since such substantial amendment was effected after the case was set for
hearing, Ejercito maintains that the same should have been allowed only with prior leave of the COMELEC
First Division pursuant to Section 2, Rule 953 of the COMELEC Rules of Procedure, which San Luis never did.
The arguments are untenable.
The purpose of a disqualification proceeding is to prevent the candidate from running or, if elected, from
serving, or to prosecute him for violation of the election laws. 54 A petition to disqualify a candidate may be
filed pursuant to Section 68 of the OEC, which states:
SEC. 68. Disqualifications. -- Any candidate who, in an action or protest in which he is a party is declared
by final decision of a competent court guilty of, or found by the Commission of having: (a) given money or
other material consideration to influence, induce or corrupt the voters or public officials performing electoral
functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an
amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited
under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs
d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign
country shall not be qualified to run for any elective office under this Code, unless said person has waived
his status as permanent resident or immigrant of a foreign country in accordance with the residence
requirement provided for in the election laws.
The prohibited acts covered by Section 68 (e) refer to election campaign or partisan political activity outside
the campaign period (Section 80); removal, destruction or defacement of lawful election propaganda
(Section 83); certain forms of election propaganda (Section 85); violation of rules and regulations on
election propaganda through mass media; coercion of subordinates (Section 261 [d]); threats, intimidation,
terrorism, use of fraudulent device or other forms of coercion (Section 261 [e]); unlawful electioneering
(Section 261 [k]); release, disbursement or expenditure of public funds (Section 261 [v]); solicitation of
votes or undertaking any propaganda on the day of the election within the restricted areas (Section 261
[cc], sub-par.6). All the offenses mentioned in Section 68 refer to election offenses under the OEC, not to
violations of other penal laws. In other words, offenses that are punished in laws other than in the OEC
cannot be a ground for a Section 68 petition. Thus, We have held:
x x x [T]he jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section 68
of the [OEC]. All other election offenses are beyond the ambit of COMELEC jurisdiction. They are criminal
and not administrative in nature. Pursuant to Sections 265 and 268 of the [OEC], the power of the COMELEC
is confined to the conduct of preliminary investigation on the alleged election offenses for the purpose of
prosecuting the alleged offenders before the regular courts of justice, viz:
Section 265. Prosecution. The Commission shall, through its duly authorized legal officers, have the
exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and
to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the
government: Provided, however, That in the event that the Commission fails to act on any complaint within
four months from its filing, the complainant may file the complaint with the office of the fiscal or with the
Ministry of Justice for proper investigation and prosecution, if warranted.
xxxxxxxxx
Section 268. Jurisdiction. The regional trial court shall have the exclusive original jurisdiction to try and
decide any criminal action or proceeding for violation of this Code, except those relating to the offense of
failure to register or failure to vote which shall be under the jurisdictions of metropolitan or municipal trial
courts. From the decision of the courts, appeal will lie as in other criminal cases.55

In the case at bar, the COMELEC First Division and COMELEC En Banc correctly ruled that the petition filed
by San Luis against Ejercito is not just for prosecution of election offense but for disqualification as well.
Indeed, the following are clear indications:
1.

The title of San Luis petition shows that the case was brought under Rule 25 of the COMELEC Rules
of Procedure, as amended by COMELEC Resolution No. 9523. 56 This expresses the objective of the
action since Rule 25 is the specific rule governing the disqualification of candidates.

2.

The averments of San Luis petition rely on Section 68 (a) and (c) of the OEC as grounds for its
causes of action. Section 68 of the OEC precisely enumerates the grounds for the disqualification of
a candidate for elective position and provides, as penalty, that the candidate shall be disqualified
from continuing as such, or if he or she has been elected, from holding the office.

3.

Paragraph 2 of San Luis prayer in the petition states that [in the event that [Ejercito] will be able
to get a majority vote of the electorate of the Province of Laguna on May 13, 2013, his proclamation
be suspended until further order of the Honorable Commission. San Luis reiterated this plea when
he later filed a Very Urgent Ex-Parte Motion to Issue Suspension of Possible Proclamation of
Respondent and Supplemental to the Very Urgent Ex-Parte Motion to Issue Suspension of Possible
Proclamation of Respondent. The relief sought is actually pursuant to Section 657 of R.A. No. 6646
and Section 5 Rule 2558 of COMELEC Resolution No. 9523, both of which pertain to the effect of a
disqualification case when the petition is unresolved by final judgment come election day.

4.

San Luis Memorandum emphasized that the case is a Special Action for Disqualification, praying
that [t]he Petition BE GRANTED [and] x x x [Ejercito] BE DISQUALIFIED, and PREVENTED from
further holding office as Governor of Laguna.

With the foregoing, Ejercito cannot feign ignorance of the true nature and intent of San Luis petition. This
considering, it is unnecessary for Us to discuss the applicability of Section 2, Rule 9 of the COMELEC Rules of
Procedure, there being no substantial amendment to San Luis petition that constitutes a material deviation
from his original causes of action. Likewise, COMELEC Resolution No. 9386 and Section 265 of the OEC do
not apply since both refer solely to the prosecution of election offenses. Specifically, COMELEC Resolution
No. 9386 is an amendment to Rule 34 of the COMELEC Rules of Procedure on the prosecution of election
offenses, while Section 265 of the OEC is found under Article XXII of said law pertaining also to election
offenses.
The conduct of preliminary investigation is not required in the resolution of the electoral aspect
of a disqualification case
Assuming, arguendo, that San Luis petition was properly instituted as an action for disqualification, Ejercito
asserts that the conduct of preliminary investigation to determine whether the acts enumerated under
Section 68 of the OEC were indeed committed is a requirement prior to actual disqualification. He posits that
Section 5, Rule 25 of COMELEC Resolution No. 9523 is silent on the matter of preliminary investigation;
hence, the clear import of this is that the necessity of preliminary investigation provided for in COMELEC
Resolution No. 2050 remains undisturbed and continues to be in full force and effect.
We are not persuaded.
Section 5, Rule 25 of COMELEC Resolution No. 9523 states:
Section 5. Effect of Petition if Unresolved Before Completion of Canvass. If a Petition for
Disqualification is unresolved by final judgment on the day of elections, the petitioner may file a motion with
the Division or Commission En Banc where the case is pending, to suspend the proclamation of the
candidate concerned, provided that the evidence for the grounds to disqualify is strong. For this purpose, at
least three (3) days prior to any election, the Clerk of the Commission shall prepare a list of pending cases
and furnish all Commissioners copies of said the list.
In the event that a candidate with an existing and pending Petition to disqualify is proclaimed winner, the
Commission shall continue to resolve the said Petition.
It is expected that COMELEC Resolution No. 9523 is silent on the conduct of preliminary investigation
because it merely amended, among others, Rule 25 of the COMELEC Rules of Procedure, which deals with
disqualification of candidates. In disqualification cases, the COMELEC may designate any of its officials, who

are members of the Philippine Bar, to hear the case and to receive evidence only in cases involving barangay
officials.59 As aforementioned, the present rules of procedure in the investigation and prosecution of election
offenses in the COMELEC, which requires preliminary investigation, is governed by COMELEC Resolution No.
9386. Under said Resolution, all lawyers in the COMELEC who are Election Officers in the National Capital
Region ("NCR"), Provincial Election Supervisors, Regional Election Attorneys, Assistant Regional Election
Directors, Regional Election Directors and lawyers of the Law Department are authorized to conduct
preliminary investigation of complaints involving election offenses under the election laws which may be filed
directly with them, or which may be indorsed to them by the COMELEC. 60
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Similarly, Ejercitos reliance on COMELEC Resolution No. 2050 is misplaced. COMELEC Resolution No. 2050,
which was adopted on November 3, 1988, reads:
WHEREAS, there remain pending before the Commission, a number of cases of disqualification filed by virtue
of the provisions of Section 68 of the Omnibus Election Code in relation to Section 6 of R.A. 6646, otherwise
known as the Electoral Reforms Law of 1987;
WHEREAS, opinions of the members of the Commission on matters of procedure in dealing with cases of this
nature and the manner of disposing of the same have not been uniform;
WHEREAS, in order to avoid conflicts of opinion in the disposition [of] disqualification cases contemplated
under Section 68 of the Omnibus Election Code in relation to Section 6 of Rep. Act 6646, there is a strongly
felt need to lay down a definite policy in the disposition of this specific class of disqualification cases;
NOW, THEREFORE, on motion duly seconded, the Commission en banc:

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RESOLVED, as it hereby resolves, to formulate the following rules governing the disposition of cases of
disqualification filed by virtue of Section 68 of the Omnibus Election Code in relation to Section 6 of R.A. No.
6646, otherwise known as the Electoral Reforms Law of 1987:
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1. Any complaint for the disqualification of a duly registered candidate based upon any of the grounds
specifically enumerated under Section 68 of the Omnibus Election Code, filed directly with the Commission
before an election in which the respondent is a candidate, shall be inquired into by the Commission for the
purpose of determining whether the acts complained of have in fact been committed. Where the inquiry by
the Commission results in a finding before election, that the respondent candidate did in fact commit the
acts complained, the Commission shall order the disqualification of the respondent candidate from
continuing as such candidate.
In case such complaint was not resolved before the election, the Commission may motu proprio, or [on]
motion of any of the parties, refer the complaint to the [Law] Department of the Commission as the
instrument of the latter in the exercise of its exclusive power to conduct a preliminary investigation of all
cases involving criminal infractions of the election laws. Such recourse may be availed of irrespective of
whether the respondent has been elected or has lost in the election.
2. Any complaint for disqualification based on Section 68 of the Omnibus Election Code in relation to Section
6 of Rep. Act No. 6646 filed after the election against a candidate who has already been proclaimed as
winner shall be dismissed as a disqualification case. However, the complaint shall be referred for preliminary
investigation to the Law Department of the Commission.
Where a similar complaint is filed after election but before proclamation of the respondent candidate, the
complaint shall, nevertheless, be dismissed as a disqualification case. However, the complaint shall be
referred for preliminary investigation to the Law Department. If, before proclamation, the Law Department
makes a prima facie finding of guilt and the corresponding information has been filed with the appropriate
trial court, the complainant may file a petition for suspension of the proclamation of the respondent with the
court before which the criminal case is pending and the said court may order the suspension of the
proclamation if the evidence of guilt is strong.
3. The Law Department shall terminate the preliminary investigation within thirty (30) days from receipt of
the referral and shall submit its study, report and recommendation to the Commission en banc within five
(5) days from the conclusion of the preliminary investigation. If it makes a prima facie finding of guilt, it
shall submit with such study the Information for filing with the appropriate court. 61
In Bagatsing v. COMELEC,62 the Court stated that the above-quoted resolution covers two (2) different
scenarios:

First, as contemplated in paragraph 1, a complaint for disqualification filed before the election which must be
inquired into by the COMELEC for the purpose of determining whether the acts complained of have in fact
been committed. Where the inquiry results in a finding before the election, the COMELEC shall order the
candidate's disqualification. In case the complaint was not resolved before the election, the COMELEC
may motu propio or on motion of any of the parties, refer the said complaint to the Law Department of the
COMELEC for preliminary investigation.
Second, as laid down in paragraph 2, a complaint for disqualification filed after the election against a
candidate (a) who has not yet been proclaimed as winner, or (b) who has already been proclaimed as
winner. In both cases, the complaint shall be dismissed as a disqualification case but shall be referred to the
Law Department of the COMELEC for preliminary investigation. However, if before proclamation, the Law
Department makes a prima facie finding of guilt and the corresponding information has been filed with the
appropriate trial court, the complainant may file a petition for suspension of the proclamation of the
respondent with the court before which the criminal case is pending and the said court may order the
suspension of the proclamation if the evidence of guilt is strong. 63
However, with respect to Paragraph 1 of COMELEC Resolution No. 2050, which is the situation in this case,
We held in Sunga:
x x x Resolution No. 2050 as interpreted in Silvestre v. Duavit infringes on Sec. 6 of RA No. 6646, which
provides:
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SEC. 6. Effects of Disqualification Case. - Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the Court or Commission shall continue with the trial
and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may
during the pendency thereof order the suspension of the proclamation of such candidate whenever the
evidence of his guilt is strong (italics supplied).
Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification
case to its conclusion, i.e., until judgment is rendered thereon. The word shall signifies that this
requirement of the law is mandatory, operating to impose a positive duty which must be enforced. The
implication is that the COMELEC is left with no discretion but to proceed with the disqualification case even
after the election. Thus, in providing for the outright dismissal of the disqualification case which remains
unresolved after the election, Silvestre v. Duavit in effect disallows what RA No. 6646 imperatively requires.
This amounts to a quasi-judicial legislation by the COMELEC which cannot be countenanced and is invalid for
having been issued beyond the scope of its authority. Interpretative rulings of quasi-judicial bodies or
administrative agencies must always be in perfect harmony with statutes and should be for the sole purpose
of carrying their general provisions into effect. By such interpretative or administrative rulings, of course,
the scope of the law itself cannot be limited. Indeed, a quasi-judicial body or an administrative agency for
that matter cannot amend an act of Congress. Hence, in case of a discrepancy between the basic law and an
interpretative or administrative ruling, the basic law prevails.
Besides, the deleterious effect of the Silvestre ruling is not difficult to foresee. A candidate guilty of election
offenses would be undeservedly rewarded, instead of punished, by the dismissal of the disqualification case
against him simply because the investigating body was unable, for any reason caused upon it, to determine
before the election if the offenses were indeed committed by the candidate sought to be disqualified. All that
the erring aspirant would need to do is to employ delaying tactics so that the disqualification case based on
the commission of election offenses would not be decided before the election. This scenario is productive of
more fraud which certainly is not the main intent and purpose of the law. 64
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The exclusive power [of the COMELEC] to conduct a preliminary investigation of all cases involving criminal
infractions of the election laws stated in Par. 1 of COMELEC Resolution No. 2050 pertains to
the criminal aspect of a disqualification case. It has been repeatedly underscored that an election offense
has its criminal and electoral aspects. While its criminal aspect to determine the guilt or innocence of the
accused cannot be the subject of summary hearing, its electoral aspect to ascertain whether the offender
should be disqualified from office can be determined in an administrative proceeding that is summary in
character. This Court said in Sunga:
It is worth to note that an election offense has criminal as well as electoral aspects. Its criminal aspect
involves the ascertainment of the guilt or innocence of the accused candidate. Like in any other criminal
case, it usually entails a full-blown hearing and the quantum of proof required to secure a conviction is
beyond reasonable doubt. Its electoral aspect, on the other hand, is a determination of whether the offender
should be disqualified from office. This is done through an administrative proceeding which is summary in

character and requires only a clear preponderance of evidence. Thus, under Sec. 4 of the COMELEC Rules of
Procedure, petitions for disqualification "shall be heard summarily after due notice." It is the electoral aspect
that we are more concerned with, under which an erring candidate may be disqualified even without prior
criminal conviction.65
and equally in Lanot:
x x x The electoral aspect of a disqualification case determines whether the offender should be disqualified
from being a candidate or from holding office. Proceedings are summary in character and require only clear
preponderance of evidence. An erring candidate may be disqualified even without prior determination of
probable cause in a preliminary investigation. The electoral aspect may proceed independently of the
criminal aspect, and vice-versa.
The criminal aspect of a disqualification case determines whether there is probable cause to charge a
candidate for an election offense. The prosecutor is the COMELEC, through its Law Department, which
determines whether probable cause exists. If there is probable cause, the COMELEC, through its Law
Department, files the criminal information before the proper court. Proceedings before the proper court
demand a full-blown hearing and require proof beyond reasonable doubt to convict. A criminal conviction
shall result in the disqualification of the offender, which may even include disqualification from holding a
future public office.
The two aspects account for the variance of the rules on disposition and resolution of disqualification cases
filed before or after an election. When the disqualification case is filed before the elections, the question of
disqualification is raised before the voting public. If the candidate is disqualified after the election, those who
voted for him assume the risk that their votes may be declared stray or invalid. There is no such risk if the
petition is filed after the elections. x x x.66
We cannot accept Ejercitos argument that Lanot did not categorically pronounce that the conduct of a
preliminary investigation exclusively pertains to the criminal aspect of an action for disqualification or that a
factual finding by the authorized legal officers of the COMELEC may be dispensed with in the proceedings for
the administrative aspect of a disqualification case. According to him, a close reading of said case would
reveal that upon filing of the petition for disqualification with the COMELEC Division, the latter referred the
matter to the Regional Election Director for the purpose of preliminary investigation;
therefore, Lanot contemplates two referrals for the conduct of investigation first, to the Regional Election
Director, prior to the issuance of the COMELEC First Divisions resolution, andsecond, to the Law
Department, following the reversal by the COMELEC En Banc.
For easy reference, the factual antecedents of Lanot are as follows:

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On March 19, 2004, a little less than two months before the May 10, 2004 elections, Henry P. Lanot, et al.
filed a Petition for Disqualification under Sections 68 and 80 of the OEC against then incumbent Pasig City
Mayor Vicente P. Eusebio. National Capital Region Director Esmeralda Amora-Ladra conducted hearings on
the petition. On May 4, 2004, she recommended Eusebios disqualification and the referral of the case to the
COMELEC Law Department for the conduct of a preliminary investigation on the possible violation of Section
261 (a) of the OEC. When the COMELEC First Division issued a resolution adopting Director Ladras
recommendations on May 5, 2004, then COMELEC Chairman Benjamin S. Abalos informed the pertinent
election officers through an Advisory dated May 8, 2004. Eusebio filed a Motion for Reconsideration on May
9, 2004. On election day, Chairman Abalos issued a memorandum to Director Ladra enjoining her from
implementing the May 5, 2004 COMELEC First Division resolution. The petition for disqualification was not
yet finally resolved at the time of the elections. Eusebio's votes were counted and canvassed. After which,
Eusebio was proclaimed as the winning candidate for city mayor. On August 20, 2004, the COMELEC En
Banc annulled the COMELEC First Division's order to disqualify Eusebio and referred the case to the
COMELEC Law Department for preliminary investigation.
When the issue was elevated to Us, the Court agreed with Lanot that the COMELEC En Banc committed
grave abuse of discretion when it ordered the dismissal of the disqualification case pending preliminary
investigation of the COMELEC Law Department. Error was made when it ignored the electoral aspect of the
disqualification case by setting aside the COMELEC First Division's resolution and referring the entire case to
the COMELEC Law Department for the criminal aspect. We noted that COMELEC Resolution No. 2050, upon
which the COMELEC En Banc based its ruling, is procedurally inconsistent with COMELEC Resolution No.
6452, which was the governing rule at the time. The latter resolution delegated to the COMELEC Field
Officials the hearing and reception of evidence of the administrative aspect of disqualification cases in the
May 10, 2004 National and Local Elections. In marked contrast, in the May 2013 elections, it was only in
cases involving barangay officials that the COMELEC may designate any of its officials, who are members of

the Philippine Bar, to hear the case and to receive evidence.67

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The COMELEC En Banc properly considered as evidence the Advertising Contract dated May 8,
2013
Ejercito likewise asserts that the Advertising Contract dated May 8, 2013 should not have been relied upon
by the COMELEC. First, it was not formally offered in evidence pursuant to Section 34, Rule 132 68 of the
Rules and he was not even furnished with a copy thereof, depriving him of the opportunity to examine its
authenticity and due execution and object to its admissibility. Second, even if Section 34, Rule 132 does not
apply, administrative bodies exercising quasi-judicial functions are nonetheless proscribed from rendering
judgment based on evidence that was never presented and could not be controverted. There is a need to
balance the relaxation of the rules of procedure with the demands of administrative due process, the tenets
of which are laid down in the seminal case of Ang Tibay v. Court of Industrial Relations.69 And third, the
presentation of the advertising contracts, which are highly disputable and on which no hearing was held for
the purpose of taking judicial notice in accordance with Section 3, Rule 129 70 of the Rules, cannot be
dispensed with by COMELECs claim that it could take judicial notice.
Contrary to Ejercitos claim, Section 34, Rule 132 of the Rules is inapplicable. Section 4, Rule 1 71 of the Rules
of Court is clear enough in stating that it shall not apply to election cases except by analogy or in a
suppletory character and whenever practicable and convenient. In fact, nowhere from COMELEC Resolution
No. 9523 requires that documentary evidence should be formally offered in evidence. 72 We remind again
that the electoral aspect of a disqualification case is done through an administrative proceeding which is
summary in character.
Granting, for arguments sake, that Section 4, Rule 1 of the Rules of Court applies, there have been
instances when We suspended the strict application of the rule in the interest of substantial justice, fairness,
and equity.73 Since rules of procedure are mere tools designed to facilitate the attainment of justice, it is well
recognized that the Court is empowered to suspend its rules or to exempt a particular case from the
application of a general rule, when the rigid application thereof tends to frustrate rather than promote the
ends of justice.74 The fact is, even Sections 3 and 4, Rule 1 of the COMELEC Rules of Procedure fittingly
declare that [the] rules shall be liberally construed in order to promote the effective and efficient
implementation of the objectives of ensuring the holding of free, orderly, honest, peaceful and credible
elections and to achieve just, expeditious and inexpensive determination and disposition of every action and
proceeding brought before the Commission and that [in] the interest of justice and in order to obtain
speedy disposition of all matters pending before the Commission, these rules or any portion thereof may be
suspended by the Commission. This Court said in Hayudini v. Commission on Elections:75
Settled is the rule that the COMELEC Rules of Procedure are subject to liberal construction. The COMELEC
has the power to liberally interpret or even suspend its rules of procedure in the interest of justice, including
obtaining a speedy disposition of all matters pending before it. This liberality is for the purpose of promoting
the effective and efficient implementation of its objectives ensuring the holding of free, orderly, honest,
peaceful, and credible elections, as well as achieving just, expeditious, and inexpensive determination and
disposition of every action and proceeding brought before the COMELEC. Unlike an ordinary civil action, an
election contest is imbued with public interest. It involves not only the adjudication of private and pecuniary
interests of rival candidates, but also the paramount need of dispelling the uncertainty which beclouds the
real choice of the electorate. And the tribunal has the corresponding duty to ascertain, by all means within
its command, whom the people truly chose as their rightful leader.76
Further, Ejercitos dependence on Ang Tibay is weak. The essence of due process is simply an opportunity to
be heard, or, as applied to administrative proceedings, an opportunity to explain one's side or an opportunity
to seek for a reconsideration of the action or ruling complained of.77 Any seeming defect in its observance is
cured by the filing of a motion for reconsideration and denial of due process cannot be successfully invoked
by a party who had the opportunity to be heard thereon. 78 In this case, it is undisputed that Ejercito filed a
motion for reconsideration before the COMELEC En Banc. Despite this, he did not rebut the authenticity and
due execution of the advertising contracts when he decided not to discuss the factual findings of the
COMELEC First Division on the alleged ground that it may be construed as a waiver of the jurisdictional
issues that he raised.79
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We agree with San Luis and the Office of the Solicitor General that, pursuant to Section 2, Rule 129, 80the
COMELEC has the discretion to properly take judicial notice of the Advertising Contract dated May 8, 2013.
In accordance with R.A. No. 9006, the COMELEC, through its Campaign Finance Unit, is empowered to:
a.

Monitor fund raising and spending activities;

b.

Receive and keep reports and statements of candidates, parties, contributors and election
contractors, and advertising contracts of mass media entities;

c.

Compile and analyze the reports and statements as soon as they are received and make an
initial determination of compliance;

d.

Develop and manage a recording system for all reports, statements, and contracts received
by it and to digitize information contained therein;

e.

Publish the digitized information gathered from the reports, statements and contracts and
make them available to the public;

f.

Develop a reportorial and monitoring system;

g.

Audit all reports, statements and contracts and determine compliance by the candidates,
parties, contributors, and election contractors, including the inspection of Books and records
of candidates, parties and mass media entities and issue subpoenas in relation thereto and
submit its findings to the CommissionEn Banc;

h.

Coordinate with and/or assist other departments/offices of the Commission receiving

related reports on Campaign Finance including prosecution of violators and collection of
fines and/or imposition of perpetual disqualification; and

i.

Perform other functions as ordered by the Commission.81

The COMELEC may properly take and act on the advertising contracts without further proof from the parties
herein. Aside from being considered as an admission 82 and presumed to be proper submissions from them,
the COMELEC already has knowledge of the contracts for being ascertainable from its very own records. Said
contracts are ought to be known by the COMELEC because of its statutory function as the legal custodian of
all advertising contracts promoting or opposing any candidate during the campaign period. As what
transpired in this case, the COMELEC has the authority and discretion to compare the submitted advertising
contracts with the certified true copies of the broadcast logs, certificates of performance or other analogous
records which a broadcast station or entity is required to submit for the review and verification of the
frequency, date, time and duration of advertisements aired.
To be precise, R.A. No. 9006 provides:
Sec. 4. Requirements for Published or Printed and Broadcast Election Propaganda.
xxxx
4.3 Print, broadcast or outdoor advertisements donated to the candidate or political party shall not be
printed, published, broadcast or exhibited without the written acceptance by the said candidate or political
party. Such written acceptance shall be attached to the advertising contract and shall be submitted to the
COMELEC as provided in Subsection 6.3 hereof.
Sec. 6. Equal Access to Media Time and Space. All registered parties and bona fidecandidates shall have
equal access to media time and space. The following guidelines may be amplified on by the COMELEC:
xxxx
6.2
xxxx
(b.) Each bona fide candidate or registered political party for a locally elective office shall be entitled to not
more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement
whether by purchase or donation.
For this purpose, the COMELEC shall require any broadcast station or entity to submit to the COMELEC a
copy of its broadcast logs and certificates of performance for the review and verification of the frequency,
date, time and duration of advertisements broadcast for any candidate or political party.

6.3 All mass media entities shall furnish the COMELEC with a copy of all contracts for advertising, promoting
or opposing any political party or the candidacy of any person for public office within five (5) days after its
signing. x x x.
The implementing guidelines of the above-quoted provisions are found in Rule 5 of COMELEC Resolution No.
9476
Section 2. Submission of Copies of Advertising Contracts. All media entities shall submit a copy of its
advertising and or broadcast contracts, media purchase orders, booking orders, or other similar documents
to the Commission through its Campaign Finance Unit, accompanied by a summary report in the prescribed
form (Annex E) together with official receipts issued for advertising, promoting or opposing a party, or the
candidacy of any person for public office, within five (5) days after its signing, through:
a. For Media Entities in the NCR
The Education and Information Department (EID), which shall furnish copies thereof to the Campaign
Finance Unit of the Commission.
b. For Media Entities outside of the NCR
The City/Municipal Election Officer (EO) concerned who shall furnish copies thereof to the Education and
Information Department of the Commission within five (5) days after the campaign periods. The EID shall
furnish copies thereof to the Campaign Finance Unit of the Commission.
cralawre d

xxxx
It shall be the duty of the EID to formally inform media entities that the latters failure to comply with the
mandatory provisions of this Section shall be considered an election offense punishable pursuant to Section
13 of Republic Act No. 9006. [RA 9006, Secs. 6.3 and 13]
and in COMELEC Resolution No. 9615
SECTION 9. Requirements and/or Limitations on the Use of Election Propaganda through Mass
Media. All parties and bona fide candidates shall have equal access to media time and space for their
election propaganda during the campaign period subject to the following requirements and/or limitations:
a. Broadcast Election Propaganda
xxx
Provided, further, that a copy of the broadcast advertisement contract be furnished to the Commission, thru
the Education and Information Department, within five (5) days from contract signing.
cralawre d

xxx
d. Common requirements/limitations:

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xxx
(3) For the above purpose, each broadcast entity and website owner or administrator shall submit to the
Commission a certified true copy of its broadcast logs, certificates of performance, or other analogous
record,including certificates of acceptance as required in Section 7(b) of these Guidelines, for the
review and verification of the frequency, date, time and duration of advertisements aired for any candidate
or party through:
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For Broadcast Entities in the NCR

The Education and Information Department (EID) which in turn shall furnish copies thereof to the Campaign
Finance Unit (CFU) of the Commission within five days from receipt thereof.
For Broadcast Entities outside of the NCR
The City/Municipal Election Officer (EO) concerned, who in turn, shall furnish copies thereof to the Education
and Information Department (EID) of the Commission which in turn shall furnish copies thereof to the
Campaign Finance Unit (CFU) of the Commission within five (5) days from the receipt thereof.
For website owners or administrators

The City/Municipal Election Officer (EO) concerned, who in turn, shall furnish copies thereof to the Education
and Information Department (EID) of the Commission which in turn shall furnish copies thereof to the
Campaign Finance Unit (CFU) of the Commission within five (5) days from the receipt thereof.
All broadcast entities shall preserve their broadcast logs for a period of five (5) years from the date of
broadcast for submission to the Commission whenever required.
Certified true copies of broadcast logs, certificates of performance, and certificates of acceptance, or other
analogous record shall be submitted, as follows:
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1st Report

Candidates for
National Positions

2nd Report
3rd Report
Last Report
1st Report

Candidates for
Local Positions

2nd Report
3rd Report
Last Report

3 weeks after start

of campaign
period
3 weeks after 1st
filing week
1 week before
election day
Election week
1 week after start
of campaign
period
1 week after 1st
filing week
Election week
1 week after
election day

March 4 - 11
April 3 - 10
May 2 - 9
May 14 - 17
April 15 - 22
April 30 - May 8
May 9 - 15
May 16 - 22

For subsequent elections, the schedule for the submission of reports shall be prescribed by the Commission.
Ejercito should be disqualified for spending in his election campaign an amount in excess of what
is allowed by the OEC
Ejercito claims that the advertising contracts between ABS-CBN Corporation and Scenema Concept
International, Inc. were executed by an identified supporter without his knowledge and consent as, in fact,
his signature thereon was obviously forged. Even assuming that such contract benefited him, Ejercito alleges
that he should not be penalized for the conduct of third parties who acted on their own without his consent.
Citing Citizens United v. Federal Election Commission83 decided by the US Supreme Court, he argues that
every voter has the right to support a particular candidate in accordance with the free exercise of his or her
rights of speech and of expression, which is guaranteed in Section 4, Article III of the 1987
Constitution.84 He believes that an advertising contract paid for by a third party without the candidates
knowledge and consent must be considered a form of political speech that must prevail against the laws
suppressing it, whether by design or inadvertence. Further, Ejercito advances the view that COMELEC
Resolution No. 947685 distinguishes between contribution and expenditure and makes no proscription on
the medium or amount of contribution.86 He also stresses that it is clear from COMELEC Resolution No. 9615
that the limit set by law applies only to election expenditures of candidates and not to contributions made by
third parties. For Ejercito, the fact that the legislature imposes no legal limitation on campaign donations is
presumably because discussion of public issues and debate on the qualifications of candidates are integral to
the operation of the government.
We refuse to believe that the advertising contracts between ABS-CBN Corporation and Scenema Concept
International, Inc. were executed without Ejercitos knowledge and consent. As found by the COMELEC First
Division, the advertising contracts submitted in evidence by San Luis as well as those in legal custody of the
COMELEC belie his hollow assertion. His express conformity to the advertising contracts is actually a must

because non-compliance is considered as an election offense. 87

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Notably, R.A. No. 9006 explicitly directs that broadcast advertisements donated to the candidate shall not be
broadcasted without the written acceptance of the candidate, which shall be attached to the advertising
contract and shall be submitted to the COMELEC, and that, in every case, advertising contracts shall be
signed by the donor, the candidate concerned or by the duly-authorized representative of the political
party.88 Conformably with the mandate of the law, COMELEC Resolution No. 9476 requires that election
propaganda materials donated to a candidate shall not be broadcasted unless it is accompanied by the
written acceptance of said candidate, which shall be in the form of an official receipt in the name of the
candidate and must specify the description of the items donated, their quantity and value, and that, in every
case, the advertising contracts, media purchase orders or booking orders shall be signed by the candidate
concerned or by the duly authorized representative of the party and, in case of a donation, should be
accompanied by a written acceptance of the candidate, party or their authorized representatives. 89 COMELEC
Resolution No. 9615 also unambiguously states that it shall be unlawful to broadcast any election
propaganda donated or given free of charge by any person or broadcast entity to a candidate without the
written acceptance of the said candidate and unless they bear and be identified by the words airtime for
this broadcast was provided free of charge by followed by the true and correct name and address of the
donor.90
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This Court cannot give weight to Ejercitos representation that his signature on the advertising contracts was
a forgery. The issue is a belated claim, raised only for the first time in this petition forcertiorari. It is a
rudimentary principle of law that matters neither alleged in the pleadings nor raised during the proceedings
below cannot be ventilated for the first time on appeal before the Supreme Court. 91 It would be offensive to
the basic rules of fair play and justice to allow Ejercito to raise an issue that was not brought up before the
COMELEC.92 While it is true that litigation is not a game of technicalities, it is equally true that elementary
considerations of due process require that a party be duly apprised of a claim against him before judgment
may be rendered.93
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Likewise, whether the advertising contracts were executed without Ejercitos knowledge and consent, and
whether his signatures thereto were fraudulent, are issues of fact. Any factual challenge has no place in a
Rule 65 petition. This Court is not a trier of facts and is not equipped to receive evidence and determine the
truth of factual allegations.94 Instead, the findings of fact made by the COMELEC, or by any other
administrative agency exercising expertise in its particular field of competence, are binding on the Court. As
enunciated in Juan v. Commission on Election:95
Findings of facts of administrative bodies charged with their specific field of expertise, are afforded great
weight by the courts, and in the absence of substantial showing that such findings are made from an
erroneous estimation of the evidence presented, they are conclusive, and in the interest of stability of the
governmental structure, should not be disturbed. The COMELEC, as an administrative agency and a
specialized constitutional body charged with the enforcement and administration of all laws and regulations
relative to the conduct of an election, plebiscite, initiative, referendum, and recall, has more than enough
expertise in its field that its findings or conclusions are generally respected and even given finality. x x x. 96
Having determined that the subject TV advertisements were done and broadcasted with Ejercitos consent, it
follows that Citizens United does not apply. In said US case, a non-profit corporation sued the Federal
Election Commission, assailing, among others, the constitutionality of a ban on
corporateindependent expenditures for electioneering communications under 2 U.S.C.S. 441b. The
corporation released a documentary film unfavorable of then-Senator Hillary Clinton, who was a candidate
for the Democratic Party's Presidential nomination. It wanted to make the film available through video-ondemand within thirty (30) days of the primary elections, and it produced advertisements to promote the
film. However, federal law prohibits all corporations including non-profit advocacy corporations from
using their general treasury funds to make independentexpenditures for speech that is an "electioneering
communication"97 or for speech that expressly advocates the election or defeat of a candidate within thirty
(30) days of a primary election and sixty (60) days of a general election. The US Supreme Court held that
the ban imposed under 441b on corporate independent expenditures violated the First
Amendment98 because the Government could not suppress political speech on the basis of the speaker's
identity as a non-profit or for-profit corporation. It was opined:
Section 441b's prohibition on corporate independent expenditures is thus a ban on speech. As a "restriction
on the amount of money a person or group can spend on political communication during a campaign," that
statute "necessarily reduces the quantity of expression by restricting the number of issues discussed, the
depth of their exploration, and the size of the audience reached." Buckley v. Valeo, 424 U.S. 1, 19, 96 S. Ct.
612, 46 L. Ed. 2d 659 (1976) (per curiam). Were the Court to uphold these restrictions, the Government
could repress speech by silencing certain voices at any of the various points in the speech process.
See McConnell, supra, at 251, 124 S. Ct. 619, 517 L. Ed. 2d 491 (opinion of Scalia, J.) (Government could

repress speech by "attacking all levels of the production and dissemination of ideas," for "effective public
communication requires the speaker to make use of the services of others"). If 441bapplied to individuals,
no one would believe that it is merely a time, place, or manner restriction on speech. Its purpose and effect
are to silence entities whose voices the Government deems to be suspect.
Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the
people. See Buckley, supra, at 14-15, 96 S. Ct. 612, 46 L. Ed. 2d 659("In a republic where the people are
sovereign, the ability of the citizenry to make informed choices among candidates for office is essential").
The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a
precondition to enlightened self-government and a necessary means to protect it. The First
Amendment "'has its fullest and most urgent application' to speech uttered during a campaign for political
office." Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 223, 109 S. Ct. 1013, 103 L.
Ed. 2d 271 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S. Ct. 621, 28 L. Ed. 2d 35
(1971)); see Buckley, supra, at 14, 96 S. Ct. 612, 46 L. Ed. 2d 659 ("Discussion of public issues and debate
on the qualifications of candidates are integral to the operation of the system of government established by
our Constitution").
For these reasons, political speech must prevail against laws that would suppress it, whether by design or
inadvertence. Laws that burden political speech are "subject to strict scrutiny," which requires the
Government to prove that the restriction "furthers a compelling interest and is narrowly tailored to achieve
that interest." WRTL, 551 U.S., at 464, 127 S. Ct. 2652, 168 L. Ed. 2d 329 (opinion of Roberts, C. J.). While
it might be maintained that political speech simply cannot be banned or restricted as a categorical matter,
see Simon & Schuster, 502 U.S., at 124, 112 S. Ct. 501, 116 L. Ed. 2d 476 (Kennedy, J., concurring in
judgment), the quoted language from WRTL provides a sufficient framework for protecting the relevant First
Amendment interests in this case. We shall employ it here.
Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor
certain subjects or viewpoints. See, e.g., United States v. Playboy Entertainment Group, Inc., 529 U.S. 803,
813, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000) (striking down content-based restriction). Prohibited, too,
are restrictions distinguishing among different speakers, allowing speech by some but not others. See First
Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 784, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978). As instruments
to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all
too often simply a means to control content.
Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a
constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from
some and giving it to others, the Government deprives the disadvantaged person or class of the right to use
speech to strive to establish worth, standing, and respect for the speaker's voice. The Government may not
by these means deprive the public of the right and privilege to determine for itself what speech and
speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that
flow from each.
The Court has upheld a narrow class of speech restrictions that operate to the disadvantage of certain
persons, but these rulings were based on an interest in allowing governmental entities to perform their
functions. See, e.g., Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 683, 106 S. Ct. 3159, 92 L. Ed. 2d
549 (1986) (protecting the "function of public school education"); Jones v. North Carolina Prisoners' Labor
Union, Inc., 433 U.S. 119, 129, 97 S. Ct. 2532, 53 L. Ed. 2d 629 (1977) (furthering "the legitimate
penological objectives of the corrections system" (internal quotation marks omitted)); Parker v. Levy, 417
U.S. 733, 759, 94 S. Ct. 2547, 41 L. Ed. 2d 439 (1974) (ensuring "the capacity of the Government to
discharge its [military] responsibilities" (internal quotation marks omitted)); Civil Service Comm'n v. Letter
Carriers, 413 U.S. 548, 557, 93 S. Ct. 2880, 37 L. Ed. 2d 796 (1973) ("[F]ederal service should depend
upon meritorious performance rather than political service"). The corporate independent expenditures at
issue in this case, however, would not interfere with governmental functions, so these cases are inapposite.
These precedents stand only for the proposition that there are certain governmental functions that cannot
operate without some restrictions on particular kinds of speech. By contrast, it is inherent in the nature of
the political process that voters must be free to obtain information from diverse sources in order to
determine how to cast their votes. At least before Austin, the Court had not allowed the exclusion of a class
of speakers from the general public dialogue.
We find no basis for the proposition that, in the context of political speech, the Government may impose
restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion.

The previous decisions of the US Supreme Court in Austin v. Michigan Chamber of Commerce 99(which ruled
that political speech may be banned based on the speaker's corporate identity) and the relevant portion of
McConnell v. Federal Election Commission100 (which upheld the limits on electioneering communications in a
facial challenge) were, in effect, overruled by Citizens United.
Like Citizens United is the 1976 case of Buckley v. Valeo. 101 In this much earlier case, the US Supreme Court
ruled, among other issues elevated to it for resolution, on a provision of the Federal Election Campaign Act
of 1971, as amended, (FECA)102 which limits independent political expenditures by an individual or group
advocating the election or defeat of a clearly identified candidate for federal office to $1,000 per year.
Majority of the US Supreme Court expressed the view that the challenged provision is unconstitutional as it
impermissibly burdens the right of free expression under the First Amendment, and could not be sustained
on the basis of governmental interests in preventing the actuality or appearance of corruption or in
equalizing the resources of candidates.103
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Even so, the rulings in Citizens United and Buckley find bearing only on matters related to independent
expenditures, an election law concept which has no application in this jurisdiction. In the US context,
independent expenditures for or against a particular candidate enjoy constitutional protection. They refer to
those expenses made by an individual, a group or a legal entity which are not authorized or requested by
the candidate, an authorized committee of the candidate, or an agent of the candidate; they are
expenditures that are not placed in cooperation with or with the consent of a candidate, his agents, or an
authorized committee of the candidate.104 In contrast, there is no similar provision here in the Philippines. In
fact, R.A. No. 9006105 and its implementing rules and regulations106 specifically make it unlawful to print,
publish, broadcast or exhibit any print, broadcast or outdoor advertisements donated to the candidate
without the written acceptance of said candidate.
If at all, another portion of the Buckley decision is significant to this case. One of the issues resolved therein
is the validity of a provision of the FECA which imposes $1,000 limitation on political contributions by
individuals and groups to candidates and authorized campaign committees. 107 Five justices of the ninemember US Supreme Court sustained the challenged provision on the grounds that it does not violate First
Amendment speech and association rights or invidiously discriminate against non-incumbent candidates and
minority party candidates but is supported by substantial governmental interests in limiting corruption and
the appearance of corruption. It was held:
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As the general discussion in Part I-A, supra, indicated, the primary First Amendment problem raised by the
Act's contribution limitations is their restriction of one aspect of the contributor's freedom of political
association. The Court's decisions involving associational freedoms establish that the right of association is a
"basic constitutional freedom," Kusper v. Pontikes, 414 U.S. at 57, that is "closely allied to freedom of
speech and a right which, like free speech, lies at the foundation of a free society." Shelton v. Tucker, 364
U.S. 479, 486 (1960). See, e.g., Bates v. Little Rock, 361 U.S. 516, 522-523 (1960); NAACP v. Alabama,
supra at 460-461; NAACP v. Button, supra, at 452 (Harlan, J., dissenting). In view of the fundamental
nature of the right to associate, governmental "action which may have the effect of curtailing the freedom to
associate is subject to the closest scrutiny." NAACP v. Alabama, supra, at 460-461. Yet, it is clear that
"<[n]either the right to associate nor the right to participate in political activities is absolute." CSC v. Letter
Carriers, 413 U.S. 548, 567 (1973). Even a "significant interference' with protected rights of political
association" may be sustained if the State demonstrates a sufficiently important interest and employs means
closely drawn to avoid unnecessary abridgment of associational freedoms. Cousins v. Wigoda, supra, at 488;
NAACP v. Button, supra, at 438; Shelton v. Tucker, supra, at 488.
Appellees argue that the Act's restrictions on large campaign contributions are justified by three
governmental interests. According to the parties and amici, the primary interest served by the limitations
and, indeed, by the Act as a whole, is the prevention of corruption and the appearance of corruption
spawned by the real or imagined coercive influence of large financial contributions on candidates' positions
and on their actions if elected to office. Two "ancillary" interests underlying the Act are also allegedly
furthered by the $ 1,000 limits on contributions. First, the limits serve to mute the voices of affluent persons
and groups in the election process and thereby to equalize the relative ability of all citizens to affect the
outcome of elections. Second, it is argued, the ceilings may to some extent act as a brake on the
skyrocketing cost of political campaigns and thereby serve to open the political system more widely to
candidates without access to sources of large amounts of money.
It is unnecessary to look beyond the Act's primary purpose -- to limit the actuality and appearance of
corruption resulting from large individual financial contributions -- in order to find a constitutionally sufficient
justification for the $ 1,000 contribution limitation. Under a system of private financing of elections, a

candidate lacking immense personal or family wealth must depend on financial contributions from others to
provide the resources necessary to conduct a successful campaign. The increasing importance of the
communications media and sophisticated mass-mailing and polling operations to effective campaigning
make the raising of large sums of money an ever more essential ingredient of an effective candidacy. To the
extent that large contributions are given to secure political quid pro quo's from current and potential office
holders, the integrity of our system of representative democracy is undermined. Although the scope of such
pernicious practices can never be reliably ascertained, the deeply disturbing examples surfacing after the
1972 election demonstrate that the problem is not an illusory one.
Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance
of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large
individual financial contributions. In CSC v. Letter Carriers, supra, the Court found that the danger to "fair
and effective government" posed by partisan political conduct on the part of federal employees charged with
administering the law was a sufficiently important concern to justify broad restrictions on the employees'
right of partisan political association. Here, as there, Congress could legitimately conclude that the
avoidance of the appearance of improper influence "is also critical... if confidence in the system of
representative Government is not to be eroded to a disastrous extent." 413 U.S. at 565.
Appellants contend that the contribution limitations must be invalidated because bribery laws and narrowly
drawn disclosure requirements constitute a less restrictive means of dealing with "proven and suspected
quid pro quo arrangements." But laws making criminal the giving and taking of bribes deal with only the
most blatant and specific attempts of those with money to influence governmental action. And while
disclosure requirements serve the many salutary purposes discussed elsewhere in this opinion, Congress
was surely entitled to conclude that disclosure was only a partial measure, and that contribution ceilings
were a necessary legislative concomitant to deal with the reality or appearance of corruption inherent in a
system permitting unlimited financial contributions, even when the identities of the contributors and the
amounts of their contributions are fully disclosed.
The Act's $ 1,000 contribution limitation focuses precisely on the problem of large campaign contributions -the narrow aspect of political association where the actuality and potential for corruption have been
identified -- while leaving persons free to engage in independent political expression, to associate actively
through volunteering their services, and to assist to a limited but nonetheless substantial extent in
supporting candidates and committees with financial resources. Significantly, the Act's contribution
limitations in themselves do not undermine to any material degree the potential for robust and effective
discussion of candidates and campaign issues by individual citizens, associations, the institutional press,
candidates, and political parties.
We find that, under the rigorous standard of review established by our prior decisions, the weighty interests
served by restricting the size of financial contributions to political candidates are sufficient to justify the
limited effect upon First Amendment freedoms caused by the $ 1,000 contribution ceiling. (Emphasis
supplied)
Until now, the US Supreme Court has not overturned the ruling that, with respect to limiting political
contributions by individuals and groups, the Governments interest in preventing quid pro quo corruption or
its appearance was sufficiently important or compelling so that the interest would satisfy even strict
scrutiny.108
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In any event, this Court should accentuate that resort to foreign jurisprudence would be proper only if no
law or jurisprudence is available locally to settle a controversy and that even in the absence of local statute
and case law, foreign jurisprudence are merely persuasive authority at best since they furnish an uncertain
guide.109 We prompted in Republic of the Philippines v. Manila Electric Company: 110
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x x x American decisions and authorities are not per se controlling in this jurisdiction. At best, they are
persuasive for no court holds a patent on correct decisions. Our laws must be construed in accordance with
the intention of our own lawmakers and such intent may be deduced from the language of each law and the
context of other local legislation related thereto. More importantly, they must be construed to serve our own
public interest which is the be-all and the end-all of all our laws. And it need not be stressed that our public
interest is distinct and different from others. 111
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and once more in Central Bank Employees Assoc., Inc. v. Bangko Sentral Ng Pilipinas: 112

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x x x [A]merican jurisprudence and authorities, much less the American Constitution, are of dubious

application for these are no longer controlling within our jurisdiction and have only limited persuasive merit
insofar as Philippine constitutional law is concerned.... [I]n resolving constitutional disputes, [this Court]
should not be beguiled by foreign jurisprudence some of which are hardly applicable because they have been
dictated by different constitutional settings and needs. Indeed, although the Philippine Constitution can
trace its origins to that of the United States, their paths of development have long since diverged. 113
chanrobleslaw

Indeed, in Osmea v. COMELEC, 114 this Court, in reaffirming its ruling in National Press Club v. Commission
on Elections115 that Section 11 (b) of R.A. No. 6646116 does not invade and violate the constitutional
guarantees comprising freedom of expression, remarked in response to the dissent of Justice Flerida Ruth P.
Romero:
chanroble svirtuallawlibrary

On the other hand, the dissent of Justice Romero in the present case, in batting for an uninhibited market
place of ideas, quotes the following from Buckley v. Valeo:
chanroble svirtuallawlibrary

[T]he concept that the government may restrict the speech of some elements in our society in order to
enhance the relative voice of the others is wholly foreign to the First Amendment which was designed to
secure the widest possible dissemination of information from diverse and antagonistic sources and to
assure unfettered interchange of ideas for the bringing about of political and social changes desired by the
people.
ChanRoblesVirtualawlibrary

But do we really believe in that? That statement was made to justify striking down a limit on campaign
expenditure on the theory that money is speech. Do those who endorse the view that government may not
restrict the speech of some in order to enhance the relative voice of others also think that the campaign
expenditure limitation found in our election laws is unconstitutional? How about the principle of one person,
one vote, is this not based on the political equality of voters? Voting after all is speech. We speak of it as the
voice of the people even of God. The notion that the government may restrict the speech of some in order
to enhance the relative voice of others may be foreign to the American Constitution. It is not to the
Philippine Constitution, being in fact an animating principle of that document.
Indeed, Art. IX-C, 4 is not the only provision in the Constitution mandating political equality. Art. XIII, 1
requires Congress to give the highest priority to the enactment of measures designed to reduce political
inequalities, while Art. II, 26 declares as a fundamental principle of our government equal access to
opportunities for public service. Access to public office will be denied to poor candidates if they cannot even
have access to mass media in order to reach the electorate. What fortress principle trumps or overrides
these provisions for political equality?
Unless the idealism and hopes which fired the imagination of those who framed the Constitution now appear
dim to us, how can the electoral reforms adopted by them to implement the Constitution, of which 11(b) of
R.A. No. 6646, in relation to 90 and 92 are part, be considered infringements on freedom of speech? That
the framers contemplated regulation of political propaganda similar to 11(b) is clear from the following
portion of the sponsorship speech of Commissioner Vicente B. Foz:
chanroble svirtuallawlibrary

MR. FOZ. . . . Regarding the regulation by the Commission of the enjoyment or utilization of franchises or
permits for the operation of transportation and other public utilities, media of communication or information,
all grants, special privileges or concessions granted by the Government, there is a provision that during the
election period, the Commission may regulate, among other things, the rates, reasonable free space, and
time allotments for public information campaigns and forums among candidates for the purpose of ensuring
free, orderly, honest and peaceful elections. This has to do with the media of communication or
information.117
chanrobleslaw

Proceeding from the above, the Court shall now rule on Ejercitos proposition that the legislature imposes no
legal limitation on campaign donations. He vigorously asserts that COMELEC Resolution No. 9476
distinguishes between contribution and expenditure and makes no proscription on the medium or
amount of contribution made by third parties in favor of the candidates, while the limit set by law, as
appearing in COMELEC Resolution No. 9615, applies only to election expenditures of candidates.
We deny.
Section 13 of R.A. No. 7166118 sets the current allowable limit on expenses of candidates and political parties
for election campaign, thus:
chanroblesvirtuallawlibrary

SEC. 13. Authorized Expenses of Candidates and Political Parties. The aggregate amount that a candidate

or registered political party may spend for election campaign shall be as follows:

chanroblesvirtuallawlibrary

(a) For candidates Ten pesos (P10.00) for President and Vice President; and for other candidates, Three
pesos (P3.00) for every voter currently registered in the constituency where he filed his certificate of
candidacy: Provided, That, a candidate without any political party and without support from any political
party may be allowed to spend Five pesos (P5.00) for every such voter; and
(b) For political parties - Five pesos (P5.00) for every voter currently registered in the constituency or
constituencies where it has official candidates.
Any provision of law to the contrary notwithstanding, any contribution in cash or in kind to any candidate or
political party or coalition of parties for campaign purposes, duly reported to the Commission, shall not be
subject to the payment of any gift tax.119
chanrobleslaw

Sections 100, 101, and 103 of the OEC are not repealed by R.A. No. 7166. 120 These provisions, which are
merely amended insofar as the allowable amount is concerned, read:
chanroblesvirtuallawlibrary

SECTION 100. Limitations upon expenses of candidates. No candidate shall spend for his election
campaign an aggregate amount exceeding one peso and fifty centavos for every voter currently registered in
the constituency where he filed his candidacy: Provided, That the expenses herein referred to shall include
those incurred or caused to be incurred by the candidate, whether in cash or in kind, including the use,
rental or hire of land, water or aircraft, equipment, facilities, apparatus and paraphernalia used in the
campaign: Provided, further, That where the land, water or aircraft, equipment, facilities, apparatus and
paraphernalia used is owned by the candidate, his contributor or supporter, the Commission is hereby
empowered to assess the amount commensurate with the expenses for the use thereof, based on the
prevailing rates in the locality and shall be included in the total expenses incurred by the candidate.
SECTION 101. Limitations upon expenses of political parties. A duly accredited political party may spend
for the election of its candidates in the constituency or constituencies where it has official candidates an
aggregate amount not exceeding the equivalent of one peso and fifty centavos for every voter currently
registered therein. Expenses incurred by branches, chapters, or committees of such political party shall be
included in the computation of the total expenditures of the political party.
Expenses incurred by other political parties shall be considered as expenses of their respective individual
candidates and subject to limitation under Section 100 of this Code.
SECTION 103. Persons authorized to incur election expenditures. No person, except the candidate, the
treasurer of a political party or any person authorized by such candidate or treasurer, shall make any
expenditure in support of or in opposition to any candidate or political party. Expenditures duly authorized by
the candidate or the treasurer of the party shall be considered as expenditures of such candidate or political
party.
The authority to incur expenditures shall be in writing, copy of which shall be furnished the Commission
signed by the candidate or the treasurer of the party and showing the expenditures so authorized, and shall
state the full name and exact address of the person so designated. (Emphasis supplied)121
chanrobleslaw

The focal query is: How shall We interpret the expenses herein referred to shall include those incurred or
caused to be incurred by the candidate and except the candidate, the treasurer of a political party or any
person authorized by such candidate or treasurer found in Sections 100 and 103, respectively, of the OEC?
Do these provisions exclude from the allowable election expenditures the contributions of third parties made
with the consent of the candidate? The Court holds not.
When the intent of the law is not apparent as worded, or when the application of the law would lead to
absurdity, impossibility or injustice, extrinsic aids of statutory construction may be resorted to such as the
legislative history of the law for the purpose of solving doubt, and that courts may take judicial notice of the
origin and history of the law, the deliberations during the enactment, as well as prior laws on the same
subject matter in order to ascertain the true intent or spirit of the law.122
chanrobleslaw

Looking back, it could be found that Sections 100, 101, and 103 of the OEC are substantially lifted from P.D.
No. 1296,123 as amended. Sections 51, 52 and 54 of which specifically provide:
chanroblesvirtuallawlibrary

Section 51. Limitations upon expenses of candidates. No candidate shall spend for his election campaign an

amount more than the salary or the equivalent of the total emoluments for one year attached to the office
for which he is a candidate: Provided, That the expenses herein referred to shall include those incurred by
the candidate, his contributors and supporters, whether in cash or in kind, including the use, rental or hire of
land, water or air craft, equipment, facilities, apparatus and paraphernalia used in the campaign: Provided,
further, That, where the land, water or air craft, equipment, facilities, apparatus and paraphernalia used is
owned by the candidate, his contributor or supporter, the Commission is hereby empowered to assess the
amount commensurate with the expenses for the use thereof, based on the prevailing rates in the locality
and shall be included in the total expenses incurred by the candidate.
In the case of candidates for the interim Batasang Pambansa, they shall not spend more than sixty thousand
pesos for their election campaign.
Section 52. Limitation upon expenses of political parties, groups or aggrupations. A political party, group or
aggrupation may not spend for the election of its candidates in the constituency or constituencies where it
has official candidates an aggregate amount more than the equivalent of fifty centavos for every voter
currently registered therein: Provided, That expenses incurred by such political party, group or aggrupation
not duly registered with the Commission and/or not presenting or supporting a complete list of candidates
shall be considered as expenses of its candidates and subject to the limitation under Section 51 of this Code.
Expenses incurred by branches, chapters or committees of a political party, group or aggrupation shall be
included in the computation of the total expenditures of the political party, group or aggrupation. (Emphasis
supplied)
Section 54. Persons authorized to incur election expenditures. No person, except the candidate or any
person authorized by him or the treasurer of a political party, group or aggrupation, shall make any
expenditure in support of, or in opposition to any candidate or political party, group or aggrupation.
Expenditures duly authorized by the candidate of the treasurer of the party, group or aggrupation shall be
considered as expenditure of such candidate or political party, group or aggrupation.
The authority to incur expenditures shall be in writing, copy of which shall be furnished the Commission,
signed by the candidate or the treasurer of the party, group or aggrupation and showing the expenditure so
authorized, and shall state the full name and exact address of the person so designated. (Emphasis
supplied)
Prior to P.D. No. 1296, R.A. No. 6388 (otherwise known as the Election Code of 1971) was
enacted.124 Sections 41 and 42 of which are relevant, to quote:
chanroble svirtuallawlibrary

Section 41. Limitation Upon Expenses of Candidates. No candidate shall spend for his election campaign
more than the total amount of salary for the full term attached to the office for which he is a candidate.
Section 42. Limitation Upon Expenses of Political Parties and Other Non-political Organizations. No political
party as defined in this Code shall spend for the election of its candidates an aggregate amount more than
the equivalent of one peso for every voter currently registered throughout the country in case of a regular
election, or in the constituency in which the
election shall be held in case of a special election which is not held in conjunction with a regular election.
Any other organization not connected with any political party, campaigning for or against a candidate, or for
or against a political party shall not spend more than a total amount of five thousand pesos. (Emphasis
supplied)
Much earlier, Section 12 (G) of R.A. No. 6132,125 which implemented the resolution of both Houses of
Congress calling for a constitutional convention, explicitly stated:
chanroblesvirtuallawlibrary

Section 12. Regulations of Election Spending and Propaganda. The following provisions shall govern election
spending and propaganda in the election provided for in this Act:
chanroblesvirtuallawlibrary

xxx
(G) All candidates and all other persons making or receiving expenditures, contributions or donations which
in their totality exceed fifty pesos, in order to further or oppose the candidacy of any candidate, shall file a
statement of all such expenditures and contributions made or received on such dates and with such details
as the Commission on Elections shall prescribe by rules. The total expenditures made by a candidate, or by
any other person with the knowledge and consent of the candidate, shall not exceed thirty-two thousand

pesos. (Emphasis supplied)

In tracing the legislative history of Sections 100, 101, and 103 of the OEC, it can be said, therefore, that the
intent of our lawmakers has been consistent through the years: to regulate not just the election expenses of
the candidate but also of his or her contributor/supporter/donor as well as by including in the aggregate
limit of the formers election expenses those incurred by the latter. The phrase those incurred or caused to
be incurred by the candidate is sufficiently adequate to cover those expenses which are contributed or
donated in the candidates behalf. By virtue of the legal requirement that a contribution or donation should
bear the written conformity of the candidate, a contributor/supporter/donor certainly qualifies as any
person authorized by such candidate or treasurer. Ubi lex non distinguit, nec nos distinguere
debemus.126 (Where the law does not distinguish, neither should We.) There should be no distinction in the
application of a law where none is indicated.
The inclusion of the amount contributed by a donor to the candidates allowable limit of election expenses
does not trample upon the free exercise of the voters rights of speech and of expression under Section 4,
Artticle III of the Constitution. As a content-neutral regulation, 127 the laws concern is not to curtail the
message or content of the advertisement promoting a particular candidate but to ensure equality between
and among aspirants with deep pockets and those with less financial resources. Any restriction on speech
or expression is only incidental and is no more than necessary to achieve the substantial governmental
interest of promoting equality of opportunity in political advertising. It bears a clear and reasonable
connection with the constitutional objectives set out in Section 26, Article II, Section 4, Article IX-C, and
Section 1, Art. XIII of the Constitution.128 Indeed, to rule otherwise would practically result in an unlimited
expenditure for political advertising, which skews the political process and subverts the essence of a truly
democratic form of government.
WHEREFORE, the Petition is DENIED. The May 21, 2014 Resolution of the COMELEC En Banc in SPA No. 13306 (DC), which upheld the September 26, 2013 Resolution of the COMELEC First Division, granting the
petition for disqualification filed by private respondent Edgar Egay S. San Luis against petitioner Emilio
Ramon E.R. P. Ejercito, is hereby AFFIRMED.
SO ORDERED.

G.R. No. 205728

January 21, 2015

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M.

NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY.
MAVIL V. MAJARUCON, Respondents.
DECISION
LEONEN, J.:
"The Philippines is a democratic and republican State. Sovereignty resides in the people and all
government authority emanates from them." Article II, Section 1, Constitution
All governmental authority emanates from our people. No unreasonable restrictions of the
fundamental and preferred right to expression of the electorate during political contests no matter
how seemingly benign will be tolerated.
This case defines the extent that our people may shape the debates during elections. It is significant
and of first impression. We are asked to decide whether the Commission on Elections (COMELEC)
has the competence to limit expressions made by the citizens who are not candidates during
elections.
Before us is a special civil action for certiorari and prohibition with application for preliminary
injunction and temporary restraining order under Rule 65 of the Rules of Court seeking to nullify
COMELECs Notice to Remove Campaign Materials dated February 22, 2013 and letter issued on
February 27, 2013.
1

The facts are not disputed.

On February 21, 2013, petitioners posted two (2) tarpaulins within a private compound housing the
San Sebastian Cathedral of Bacolod. Each tarpaulin was approximately six feet (6') by ten feet (10')
in size. They were posted on the front walls of the cathedral within public view. The first tarpaulin
contains the message "IBASURA RH Law" referring to the Reproductive Health Law of 2012 or
Republic Act No. 10354. The second tarpaulin is the subject of the present case. This tarpaulin
contains the heading "Conscience Vote" and lists candidates as either "(Anti-RH) Team Buhay" with
a check mark, or "(Pro-RH) Team Patay" with an "X" mark. The electoral candidates were classified
according to their vote on the adoption of Republic Act No. 10354, otherwise known as the RH
Law. Those who voted for the passing of the law were classified by petitioners as comprising "Team
Patay," while those who voted against it form "Team Buhay":
4

TEAM BUHAY

TEAM PATAY

Estrada, JV

Angara, Juan Edgardo

Honasan, Gregorio

Casio, Teddy

Magsaysay, Mitos

Cayetano, Alan Peter

Pimentel, Koko

Enrile, Jackie

Trillanes, Antonio

Escudero, Francis

Villar, Cynthia

Hontiveros, Risa

Party List Buhay

Legarda, Loren

Party List Ang Pamilya

Party List Gabriela

Party List Akbayan
Party List Bayan Muna
Party List Anak Pawis

During oral arguments, respondents conceded that the tarpaulin was neither sponsored nor paid for
by any candidate. Petitioners also conceded that the tarpaulin contains names ofcandidates for the
2013 elections, but not of politicians who helped in the passage of the RH Law but were not
candidates for that election.
On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as Election Officer of
Bacolod City, issued a Notice to Remove Campaign Materials addressed to petitioner Most Rev.
Bishop Vicente M. Navarra. The election officer ordered the tarpaulins removal within three (3) days
from receipt for being oversized. COMELEC Resolution No. 9615 provides for the size requirement
of two feet (2) by three feet (3).
8

On February 25, 2013, petitioners replied requesting, among others, that (1) petitioner Bishop be
given a definite ruling by COMELEC Law Department regarding the tarpaulin; and (2) pending this
opinion and the availment of legal remedies, the tarpaulin be allowed to remain.
10

11

On February 27, 2013, COMELEC Law Department issued a letter ordering the immediate removal
of the tarpaulin; otherwise, it will be constrained to file an election offense against petitioners. The
letter of COMELEC Law Department was silenton the remedies available to petitioners. The letter
provides as follows:
12

Dear Bishop Navarra:

It has reached this Office that our Election Officer for this City, Atty. Mavil Majarucon, had already
given you notice on February 22, 2013 as regards the election propaganda material posted on the
church vicinity promoting for or against the candidates and party-list groups with the following names
and messages, particularly described as follows:
Material size : six feet (6) by ten feet (10)
Description : FULL COLOR TARPAULIN
Image of : SEE ATTACHED PICTURES
Message : CONSCIENCE VOTE (ANTI RH) TEAM
BUHAY; (PRO RH) TEAM PATAY
Location : POSTED ON THE CHURCH VICINITY
OF THE DIOCESE OF BACOLOD CITY
The three (3) day notice expired on February 25, 2013.

Considering that the above-mentioned material is found to be in violation of Comelec Resolution No.
9615 promulgated on January 15, 2013 particularly on the size (even with the subsequent division of
the said tarpaulin into two), as the lawful size for election propaganda material is only two feet (2) by
three feet (3), please order/cause the immediate removal of said election propaganda material,
otherwise, we shall be constrained to file an election offense case against you.
We pray that the Catholic Church will be the first institution to help the Commission on Elections
inensuring the conduct of peaceful, orderly, honest and credible elections.
Thank you and God Bless!
[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV
13

Concerned about the imminent threatof prosecution for their exercise of free speech, petitioners
initiated this case through this petition for certiorari and prohibition with application for preliminary
injunction and temporary restraining order. They question respondents notice dated February 22,
2013 and letter issued on February 27, 2013. They pray that: (1) the petition be given due course;
(2) a temporary restraining order (TRO) and/or a writ of preliminary injunction be issued restraining
respondents from further proceeding in enforcing their orders for the removal of the Team Patay
tarpaulin; and (3) after notice and hearing, a decision be rendered declaring the questioned orders of
respondents as unconstitutional and void, and permanently restraining respondents from enforcing
them or any other similar order.
14

15

After due deliberation, this court, on March 5, 2013, issued a temporary restraining order enjoining
respondents from enforcing the assailed notice and letter, and set oral arguments on March 19,
2013.
16

On March 13, 2013, respondents filed their comment 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 IX-C, Section 4 of the Constitution.
Hence, respondents claim that the issuances ordering its removal for being oversized are valid and
constitutional.
17

18

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.
The issues, which also served as guide for the oral arguments, are:

19

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;

B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS ARE NOT

CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE COMELEC,
WHETHER THERE ARE EXCEPTIONAL CIRCUMSTANCES WHICH WOULD
ALLOW THIS COURT TO TAKE COGNIZANCE OF THE CASE[;]
II.
WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS ARE "POLITICAL
ADVERTISEMENT" OR "ELECTION PROPAGANDA" CONSIDERING THAT PETITIONER IS NOT
A POLITICAL CANDIDATE[;]
III.
WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED SPEECH), OR
ELECTION PROPAGANDA/POLITICAL ADVERTISEMENT[;]
A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF
EXPRESSION, WHETHER THE COMELEC POSSESSES THE AUTHORITY TO
REGULATE THE SAME[;]
B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]
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. 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.
22

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." 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 on COMELECs power to decide all questions affecting
elections. Respondents invoke the cases of Ambil, Jr. v. COMELEC, Repol v. COMELEC, Soriano,
Jr. v. COMELEC, Blanco v. COMELEC, and Cayetano v. COMELEC, to illustrate how
judicialintervention is limited to final decisions, orders, rulings and judgments of the COMELEC En
Banc.
23

24

25

26

28

29

27

30

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. At issue was the validity of the promulgation of a COMELEC Division
resolution. 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:
32

33

We have interpreted [Section 7, Article IX-A of the Constitution] 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. (Emphasis in the original, citations omitted)
34

35

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. This 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. This courts ponencia discussed the general rule enunciated in Ambil, Jr. that it
cannot take jurisdiction to review interlocutory orders of a COMELEC Division. However, consistent
with ABS-CBN Broadcasting Corporation v. COMELEC, it clarified the exception:
36

37

38

39

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

Based on ABS-CBN, this court could review orders and decisions of COMELEC in electoral
contests despite not being reviewed by the COMELEC En Banc, if:
1) It will prevent the miscarriage of justice;
2) The issue involves a principle of social justice;
3) The issue involves the protection of labor;
4) The decision or resolution sought tobe set aside is a nullity; or
5) The need for relief is extremely urgent and certiorari is the only adequate and speedy
remedy available.

Ultimately, this court took jurisdiction in Repoland decided that the status quo anteorder issued by
the COMELEC Division was unconstitutional.
Respondents also cite Soriano, Jr. v. COMELEC.This case was also an election protest case
involving candidates for the city council of Muntinlupa City. Petitioners in Soriano, Jr.filed before this
court a petition for certiorari against an interlocutory order of the COMELEC First
41

Division. While the petition was pending in this court, the COMELEC First Division dismissed the
main election protest case. Sorianoapplied the general rule that only final orders should be
questioned with this court. The ponencia for this court, however, acknowledged the exceptions to the
general rule in ABS-CBN.
42

43

44

Blanco v. COMELEC, another case cited by respondents, was a disqualification case of one of the
mayoralty candidates of Meycauayan, Bulacan. The COMELEC Second Division ruled that
petitioner could not qualify for the 2007 elections due to the findings in an administrative case that he
engaged in vote buying in the 1995 elections. No motion for reconsideration was filed before the
COMELEC En Banc. This court, however, took cognizance of this case applying one of the
exceptions in ABS-CBN: The assailed resolution was a nullity.
45

46

47

Finally, respondents cited Cayetano v. COMELEC, a recent election protest case involving the
mayoralty candidates of Taguig City. Petitioner assailed a resolution of the COMELEC denying her
motion for reconsideration to dismiss the election protest petition for lack of form and
substance. This court clarified the general rule and refused to take cognizance of the review of the
COMELEC order. While recognizing the exceptions in ABS-CBN, this court ruled that these
exceptions did not apply.
48

49

50

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 dated February 22,2013 and letter dated February 27, 2013
ordering the removal of the tarpaulin. It is their position that these infringe on their fundamental right
51

52

53

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." Definitely, the subject matter in this case is different
from the cases cited by respondents.
55

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. (Emphasis supplied)
56

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:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
....
(3) Decide, except those involving the right to vote, all questions affecting elections, including
determination of the number and location of polling places, appointment of election officials and
inspectors, and registration of voters.
Respondents reliance on this provision is misplaced.
We are not confronted here with the question of whether the COMELEC, in its exercise of
jurisdiction, gravely abused it. We are confronted with the question as to whether the COMELEC had

any jurisdiction at all with its acts threatening imminent criminal action effectively abridging
meaningful political speech.
It is clear that the subject matter of the controversy is the effect of COMELECs notice and letter on
free speech. This does not fall under Article IX-C, Section 2(3) of the Constitution. The use of the
word "affecting" in this provision cannot be interpreted to mean that COMELEC has the exclusive
power to decide any and allquestions that arise during elections. COMELECs constitutional
competencies during elections should not operate to divest this court of its own jurisdiction.
The more relevant provision for jurisdiction in this case is Article VIII, Section 5(1) of the
Constitution.This provision provides for this courts original jurisdiction over petitions for certiorari and
prohibition. This should be read alongside the expanded jurisdiction of the court in Article VIII,
Section 1 of the Constitution.
Certainly, a breach of the fundamental right of expression by COMELEC is grave abuse of
discretion. Thus, the constitutionality of the notice and letter coming from COMELEC is within this
courts power to review.
During elections, we have the power and the duty to correct any grave abuse of discretion or any act
tainted with unconstitutionality on the part of any government branch or instrumentality. This includes
actions by the COMELEC. Furthermore, it is this courts constitutional mandate to protect the people
against governments infringement of their fundamental rights. This constitutional mandate out
weighs the jurisdiction vested with the COMELEC.
It will, thus, be manifest injustice if the court does not take jurisdiction over this case.
I.C
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. They add that observation of the
hierarchy of courts is compulsory, citing Heirs of Bertuldo Hinog v. Melicor. While respondents claim
that while there are exceptions to the general rule on hierarchy of courts, none of these are present
in this case.
57

58

59

On the other hand, petitioners cite Fortich v. Corona 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. . . ." Petitioners submit that there are "exceptional and compelling
reasons to justify a direct resort [with] this Court."
60

61

62

In Baez, Jr. v. Concepcion, we explained the necessity of the application of the hierarchy of courts:
63

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. (Emphasis omitted)
66

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. 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 allimportant 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.
67

The Court of Appeals is primarily designed as an appellate court that reviews the determination of
facts and law made by the trial courts. It is collegiate in nature. This nature ensures more
standpoints in the review of the actions of the trial court. But the Court of Appeals also has original
jurisdiction over most special civil actions. Unlike the trial courts, its writs can have a nationwide
scope. It is competent to determine facts and, ideally, should act on constitutional issues thatmay not
necessarily be novel unless there are factual questions to determine.
This court, on the other hand, leads the judiciary by breaking new ground or further reiterating in
the light of new circumstances or in the light of some confusions of bench or bar existing
precedents. Rather than a court of first instance or as a repetition of the actions of the Court of
Appeals, this court promulgates these doctrinal devices in order that it truly performs that role.
In other words, the Supreme Courts role to interpret the Constitution and act in order to protect
constitutional rights when these become exigent should not be emasculated by the doctrine in
respect of the hierarchy of courts. That has never been the purpose of such doctrine.
Thus, the doctrine of hierarchy of courts is not an iron-clad rule. This court has "full discretionary
power to take cognizance and assume jurisdiction [over] special civil actions for certiorari . . .filed
directly with it for exceptionally compelling reasons or if warranted by the nature of the issues
68

69

clearly and specifically raised in the petition." As correctly pointed out by petitioners, we have
provided exceptions to this doctrine:
70

71

First, a direct resort to this court is allowed when there are genuine issues of constitutionality that
must be addressed at the most immediate time. A direct resort to this court includes availing of the
remedies of certiorari and prohibition toassail the constitutionality of actions of both legislative and
executive branches of the government.
72

In this case, the assailed issuances of respondents prejudice not only petitioners right to freedom of
expression in the present case, but also of others in future similar cases. The case before this court
involves an active effort on the part of the electorate to reform the political landscape. This has
become a rare occasion when private citizens actively engage the public in political discourse. To
quote an eminent political theorist:
[T]he theory of freedom of expression involves more than a technique for arriving at better social
judgments through democratic procedures. It comprehends a vision of society, a faith and a whole
way of life. The theory grew out of an age that was awakened and invigorated by the idea of new
society in which man's mind was free, his fate determined by his own powers of reason, and his
prospects of creating a rational and enlightened civilization virtually unlimited. It is put forward as a
prescription for attaining a creative, progressive, exciting and intellectually robust community. It
contemplates a mode of life that, through encouraging toleration, skepticism, reason and initiative,
will allow man to realize his full potentialities.It spurns the alternative of a society that is tyrannical,
conformist, irrational and stagnant.
73

In a democracy, the citizens right tofreely participate in the exchange of ideas in furtherance of
political decision-making is recognized. It deserves the highest protection the courts may provide, as
public participation in nation-building isa fundamental principle in our Constitution. As such, their
right to engage in free expression of ideas must be given immediate protection by this court.
A second exception is when the issuesinvolved are of transcendental importance. In these cases,
the imminence and clarity of the threat to fundamental constitutional rights outweigh the necessity for
prudence. The doctrine relating to constitutional issues of transcendental importance prevents courts
from the paralysis of procedural niceties when clearly faced with the need for substantial protection.
74

In the case before this court, there is a clear threat to the paramount right of freedom of speech and
freedom of expression which warrants invocation of relief from this court. The principles laid down in
this decision will likely influence the discourse of freedom of speech in the future, especially in the
context of elections. The right to suffrage not only includes the right to vote for ones chosen
candidate, but also the right to vocalize that choice to the public in general, in the hope of influencing
their votes. It may be said that in an election year, the right to vote necessarily includes the right to
free speech and expression. The protection of these fundamental constitutional rights, therefore,
allows for the immediate resort to this court.
Third, cases of first impression warrant a direct resort to this court. In cases of first impression, no
jurisprudence yet exists that will guide the lower courts on this matter. In Government of the United
States v. Purganan, this court took cognizance of the case as a matter of first impression that may
guide the lower courts:
75

76

In the interest of justice and to settle once and for all the important issue of bail in extradition
proceedings, we deem it best to take cognizance of the present case. Such proceedings constitute a
matter of first impression over which there is, as yet, no local jurisprudence to guide lower courts.
77

This court finds that this is indeed a case of first impression involving as it does the issue of whether
the right of suffrage includes the right of freedom of expression. This is a question which this court
has yet to provide substantial answers to, through jurisprudence. Thus, direct resort to this court is
allowed.
Fourth, the constitutional issues raisedare better decided by this court. In Drilon v. Lim, this court
held that:
78

. . . it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher
judgmentof this Court in the consideration of its validity, which is better determined after a thorough
deliberation by a collegiate body and with the concurrence of the majority of those who participated
in its discussion. (Citation omitted)
79

In this case, it is this court, with its constitutionally enshrined judicial power, that can rule with finality
on whether COMELEC committed grave abuse of discretion or performed acts contrary to the
Constitution through the assailed issuances.
Fifth, the time element presented in this case cannot be ignored. This case was filed during the 2013
election period. Although the elections have already been concluded, future cases may be filed that
necessitate urgency in its resolution. Exigency in certain situations would qualify as an exception for
direct resort to this court.
Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a constitutional body.
In Albano v. Arranz, cited by petitioners, this court held that "[i]t is easy to realize the chaos that
would ensue if the Court of First Instance ofeach and every province were [to] arrogate itself the
power to disregard, suspend, or contradict any order of the Commission on Elections: that
constitutional body would be speedily reduced to impotence."
80

81

In this case, if petitioners sought to annul the actions of COMELEC through pursuing remedies with
the lower courts, any ruling on their part would not have been binding for other citizens whom
respondents may place in the same situation. Besides, thiscourt affords great respect to the
Constitution and the powers and duties imposed upon COMELEC. Hence, a ruling by this court
would be in the best interest of respondents, in order that their actions may be guided accordingly in
the future.
Seventh, petitioners rightly claim that they had no other plain, speedy, and adequate remedy in the
ordinary course of law that could free them from the injurious effects of respondents acts in violation
of their right to freedom of expression.
In this case, the repercussions of the assailed issuances on this basic right constitute an
exceptionally compelling reason to justify the direct resort to this court. The lack of other sufficient
remedies in the course of law alone is sufficient ground to allow direct resort to this court.
Eighth, the petition includes questionsthat are "dictated by public welfare and the advancement of
public policy, or demanded by the broader interest of justice, or the orders complained of were found
to be patent nullities, or the appeal was consideredas clearly an inappropriate remedy." In the past,
questions similar to these which this court ruled on immediately despite the doctrine of hierarchy of
courts included citizens right to bear arms, government contracts involving modernization of voters
registration lists, and the status and existence of a public office.
82

83

84

85

This case also poses a question of similar, if not greater import. Hence, a direct action to this court is
permitted.
It is not, however, necessary that all of these exceptions must occur at the same time to justify a
direct resort to this court. While generally, the hierarchy of courts is respected, the present case falls
under the recognized exceptions and, as such, may be resolved by this court directly.
I.D
The concept of a political question
Respondents argue further that the size limitation and its reasonableness is a political question,
hence not within the ambit of this courts power of review. They cite Justice Vitugs separate opinion
in Osmea v. COMELEC to support their position:
86

It might be worth mentioning that Section 26, Article II, of the Constitution also states that the "State
shall guarantee equal access to opportunities for public service, and prohibit political dynasties as
may be defined by law." I see neither Article IX (C)(4) nor Section 26, Article II, of the Constitution to
be all that adversarial or irreconcilably inconsistent with the right of free expression. In any event, the
latter, being one of general application, must yield to the specific demands of the Constitution. The
freedom of expression concededly holds, it is true, a vantage point in hierarchy of constitutionallyenshrined rights but, like all fundamental rights, it is not without limitations.
The case is not about a fight between the "rich" and the "poor" or between the "powerful" and the
"weak" in our society but it is to me a genuine attempt on the part of Congress and the Commission
on Elections to ensure that all candidates are given an equal chance to media coverage and thereby
be equally perceived as giving real life to the candidates right of free expression rather than being
viewed as an undue restriction of that freedom. The wisdom in the enactment of the law, i.e., that
which the legislature deems to be best in giving life to the Constitutional mandate, is not for the
Court to question; it is a matter that lies beyond the normal prerogatives of the Court to pass upon.
87

This separate opinion is cogent for the purpose it was said. But it is not in point in this case.
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, this court previously elaborated on the concept of what constitutes a political
question:
88

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. (Emphasis omitted)
89

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.
Marcos v. Manglapus limited the use of the political question doctrine:
90

When political questions are involved, the Constitution limits the determination to whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
the official whose action is being questioned. If grave abuse is not established, the Court will not
substitute its judgment for that of the official concerned and decide a matter which by its nature or by
law is for the latter alone to decide.
91

How this court has chosen to address the political question doctrine has undergone an evolution
since the timethat it had been first invoked in Marcos v. Manglapus. Increasingly, this court has taken
the historical and social context of the case and the relevance of pronouncements of carefully and
narrowly tailored constitutional doctrines. This trend was followed in cases such as Daza v.
Singson and Coseteng v. Mitra Jr.
92

93

Daza and Coseteng involved a question as to the application of Article VI, Section 18 of the 1987
Constitution involving the removal of petitioners from the Commission on Appointments. In times
past, this would have involved a quint essentially political question as it related to the dominance of
political parties in Congress. However, in these cases, this court exercised its power of judicial
review noting that the requirement of interpreting the constitutional provision involved the legality and
not the wisdom of a manner by which a constitutional duty or power was exercised. This approach
was again reiterated in Defensor Santiago v. Guingona, Jr.
94

In Integrated Bar of the Philippines v. Zamora, this court declared again that the possible existence
ofa political question did not bar an examination of whether the exercise of discretion was done with
grave abuse of discretion. In that case, this court ruled on the question of whether there was grave
abuse of discretion in the Presidents use of his power to call out the armed forces to prevent and
suppress lawless violence.
95

In Estrada v. Desierto, this court ruled that the legal question as to whether a former President
resigned was not a political question even if the consequences would be to ascertain the political
legitimacy of a successor President.
96

Many constitutional cases arise from political crises. The actors in such crises may use the
resolution of constitutional issues as leverage. But the expanded jurisdiction of this court now
mandates a duty for it to exercise its power of judicial review expanding on principles that may avert
catastrophe or resolve social conflict.
This courts understanding of the political question has not been static or unbending. In Llamas v.
Executive Secretary Oscar Orbos, this court held:
97

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. 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:
99

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. (Emphasis in the
original, citations omitted)
100

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 Court,under previous constitutions, would have normally left to the
political departments to decide. x x x
In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this Court declared:

The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "(t)he political question doctrine neither interposes
an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987
Constitution, although said provision by no means does away with the applicability of the principle in
appropriate cases." (Emphasis and italics supplied)
And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The
reason is that, even if we were to assume that the issue presented before us was political in nature,
we would still not be precluded from resolving it under the expanded jurisdiction conferred upon us
that now covers, in proper cases, even the political question.x x x (Emphasis and italics supplied.)
....
In our jurisdiction, the determination of whether an issue involves a truly political and non-justiciable
question lies in the answer to the question of whether there are constitutionally imposed limits on
powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to
examine whether the branch or instrumentality of the government properly acted within such
limits. (Citations omitted)
101

As stated in Francisco, a political question will not be considered justiciable if there are no
constitutionally imposed limits on powers or functions conferred upon political bodies. Hence, the
existence of constitutionally imposed limits justifies subjecting the official actions of the body to the
scrutiny and review of this court.
In this case, the Bill of Rights gives the utmost deference to the right to free speech. Any instance
that this right may be abridged demands judicial scrutiny. It does not fall squarely into any doubt that
a political question brings.
I.E
Exhaustion of administrative remedies
Respondents allege that petitioners violated the principle of exhaustion of administrative remedies.
Respondents insist that petitioners should have first brought the matter to the COMELEC En Banc or
any of its divisions.
102

Respondents point out that petitioners failed to comply with the requirement in Rule 65 that "there is
no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law." They add that
the proper venue to assail the validity of the assailed issuances was in the course of an
administrative hearing to be conducted by COMELEC. In the event that an election offense is filed
against petitioners for posting the tarpaulin, they claim that petitioners should resort to the remedies
prescribed in Rule 34 of the COMELEC Rules of Procedure.
103

104

105

The argument on exhaustion of administrative remedies is not proper in this case.

Despite the alleged non-exhaustion of administrative remedies, it is clear that the controversy is
already ripe for adjudication. Ripeness is the "prerequisite that something had by then been

accomplished or performed by either branch [or in this case, organ of government] before a court
may come into the picture."
106

Petitioners exercise of their rightto speech, given the message and their medium, had
understandable relevance especially during the elections. COMELECs letter threatening the filing of
the election offense against petitioners is already an actionable infringement of this right. The
impending threat of criminal litigation is enough to curtail petitioners speech.
In the context of this case, exhaustion of their administrative remedies as COMELEC suggested in
their pleadings prolongs the violation of their freedom of speech.
Political speech enjoys preferred protection within our constitutional order. In Chavez v.
Gonzales, Justice Carpio in a separate opinion emphasized: "[i]f everthere is a hierarchy of
protected expressions, political expression would occupy the highest rank, and among different kinds
of political expression, the subject of fair and honest elections would be at the top." Sovereignty
resides in the people. Political speech is a direct exercise of the sovereignty. The principle of
exhaustion of administrative remedies yields in order to protect this fundamental right.
107

108

109

Even assuming that the principle of exhaustion of administrative remedies is applicable, the current
controversy is within the exceptions to the principle. In Chua v. Ang, this court held:
110

On the other hand, prior exhaustion of administrative remedies may be dispensed with and judicial
action may be validly resorted to immediately: (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." (Emphasis supplied, citation omitted)
111

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". 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.
112

II
SUBSTANTIVE ISSUES
II.A

COMELEC had no legal basis to regulate expressions made by private citizens

Respondents cite the Constitution, laws, and jurisprudence to support their position that they had the
power to regulate the tarpaulin. However, all of these provisions pertain to candidates and political
parties. Petitioners are not candidates. Neither do theybelong to any political party. COMELEC does
not have the authority to regulate the enjoyment of the preferred right to freedom of expression
exercised by a non-candidate in this case.
113

II.A.1
First, respondents cite Article IX-C, Section 4 of the Constitution, which provides:
Section 4. The Commission may,during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities,
media of communication or information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any government-owned
or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible elections. (Emphasis supplied)
114

Sanidad v. COMELEC involved the rules promulgated by COMELEC during the plebiscite for the
creation of the Cordillera Autonomous Region. Columnist Pablito V. Sanidad questioned the
provision prohibiting journalists from covering plebiscite issues on the day before and on plebiscite
day. Sanidad argued that the prohibition was a violation of the "constitutional guarantees of the
freedom of expression and of the press. . . ." We held that the "evil sought to be prevented by this
provision is the possibility that a franchise holder may favor or give any undue advantage to a
candidate in terms of advertising space or radio or television time." This court found that "[m]edia
practitioners exercising their freedom of expression during plebiscite periods are neither the
franchise holders nor the candidates[,]" thus, their right to expression during this period may not be
regulated by COMELEC.
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Similar to the media, petitioners in the case at bar are neither franchise holders nor candidates.
II.A.2
Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as follows:

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Sec. 2. The Commission on Elections shall exercise the following powers and functions:
....
(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)
Based on the enumeration made on actsthat may be penalized, it will be inferred that this provision
only affects candidates.
Petitioners assail the "Notice to Remove Campaign Materials" issued by COMELEC. This was
followed bythe assailed letter regarding the "election propaganda material posted on the church
vicinity promoting for or against the candidates and party-list groups. . . ."
123

Section 9 of the Fair Election Act on the posting of campaign materials only mentions "parties" and
"candidates":
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Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties and party-list
groups to erect common poster areas for their candidates in not more than ten (10) public places
such as plazas, markets, barangay centers and the like, wherein candidates can post, display or
exhibit election propaganda: Provided, That the size ofthe poster areas shall not exceed twelve (12)
by sixteen (16) feet or its equivalent. Independent candidates with no political parties may likewise
be authorized to erect common poster areas in not more than ten (10) public places, the size of
which shall not exceed four (4) by six (6) feet or its equivalent. Candidates may post any lawful
propaganda material in private places with the consent of the owner thereof, and in public places or
property which shall be allocated equitably and impartially among the candidates. (Emphasis
supplied)
Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and regulations implementing the
Fair Election Act, provides as follows:
SECTION 17. Posting of Campaign Materials. - Parties and candidates may post any lawful
campaign material in:
a. Authorized common poster areasin public places subject to the requirements and/or
limitations set forth in the next following section; and
b. Private places provided it has the consent of the owner thereof.
The posting of campaign materials in public places outside of the designated common poster areas
and those enumerated under Section 7 (g) of these Rules and the like is prohibited. Persons posting
the same shall be liable together with the candidates and other persons who caused the posting. It
will be presumed that the candidates and parties caused the posting of campaign materials outside
the common poster areas if they do not remove the same within three (3) days from notice which
shall be issued by the Election Officer of the city or municipality where the unlawful election
propaganda are posted or displayed.
Members of the PNP and other law enforcement agencies called upon by the Election Officeror other
officials of the COMELEC shall apprehend the violators caught in the act, and file the appropriate
charges against them. (Emphasis supplied)
Respondents considered the tarpaulin as a campaign material in their issuances. The above
provisions regulating the posting of campaign materials only apply to candidates and political parties,
and petitioners are neither of the two.
Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also states that these are
"allowed for all registered political parties, national, regional, sectoral parties or organizations
participating under the party-list elections and for all bona fide candidates seeking national and local
elective positions subject to the limitation on authorized expenses of candidates and political parties.
. . ." Section 6 of COMELEC Resolution No. 9615 provides for a similar wording. These provisions
show that election propaganda refers to matter done by or on behalf of and in coordination with
candidates and political parties. Some level of coordination with the candidates and political parties
for whom the election propaganda are released would ensure that these candidates and political
parties maintain within the authorized expenses limitation.

The tarpaulin was not paid for byany candidate or political party. 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 in arguing that its regulatory power under
the Constitution, to some extent, set a limit on the right to free speech during election period.
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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, only refers to a particular kind of media such as newspapers, radio broadcasting, or
television. 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.
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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.
Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code,
defines an"election campaign" as follows:
....
(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."
In this case, the tarpaulin contains speech on a matter of public concern, that is, a statement of
either appreciation or criticism on votes made in the passing of the RH law. Thus, petitioners invoke
their right to freedom of expression.
II.B
The violation of the constitutional right
to freedom of speech and expression
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.
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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.
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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, 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. 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. What was questioned
was not a law but the Mayors refusal to issue a permit for the holding of petitioners public
meeting. Nevertheless, this court recognized the constitutional right to freedom of speech, to
peaceful assembly and to petition for redress of grievances, albeit not absolute, and the petition for
mandamus to compel respondent Mayor to issue the permit was granted.
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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 ABSCBN from conducting exit surveys. The right to freedom of expression was similarly upheld in this
case and, consequently, the assailed resolution was nullified and set aside.
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. . . 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.
THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?
FR. BERNAS: "Expression" is more broad than speech. We accept it.
MR. BROCKA: Thank you.
THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?
FR. BERNAS: Yes.
THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence) The Chair hears none;
the amendment is approved.
FR. BERNAS: So, that provision will now read: "No law shall be passed abridging the freedom of
speech, expression or of the press . . . ." Speech may be said to be inextricably linked to freedom
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."
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II.B.2
Communication is an essential outcome of protected speech. 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." "[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."
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Speech is not limited to vocal communication. "[C]onduct is treated as a form of speech sometimes
referred to as symbolic speech[,]" 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]."
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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, 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. In his concurring opinion, Justice
Cruz discussed how the salute is a symbolic manner of communication and a valid form of
expression. He adds that freedom of speech includes even the right to be silent:
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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.
In the 1985 case of Gonzalez v. Chairman Katigbak, petitioners objected to the classification of the
motion picture "Kapit sa Patalim" as "For Adults Only." They contend that the classification "is without
legal and factual basis and is exercised as impermissible restraint of artistic expression." This court
recognized that "[m]otion pictures are important both as a medium for the communication of ideas
and the expression of the artistic impulse." It adds that "every writer,actor, or producer, no matter
what medium of expression he may use, should be freed from the censor." This court found that
"[the Boards] perception of what constitutes obscenity appears to be unduly restrictive." However,
the petition was dismissed solely on the ground that there were not enough votes for a ruling of
grave abuse of discretion in the classification made by the Board.
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II.B.3
Size does matter
The form of expression is just as important as the information conveyed that it forms part of the
expression. The present case is in point.
It is easy to discern why size matters.

First, it enhances efficiency in communication. A larger tarpaulin allows larger fonts which make it
easier to view its messages from greater distances. Furthermore, a larger tarpaulin makes it easier
for passengers inside moving vehicles to read its content. Compared with the pedestrians, the
passengers inside moving vehicles have lesser time to view the content of a tarpaulin. The larger the
fonts and images, the greater the probability that it will catch their attention and, thus, the greater the
possibility that they will understand its message.
Second, the size of the tarpaulin may underscore the importance of the message to the reader. From
an ordinary persons perspective, those who post their messages in larger fonts care more about
their message than those who carry their messages in smaller media. The perceived importance
given by the speakers, in this case petitioners, to their cause is also part of the message. The
effectivity of communication sometimes relies on the emphasis put by the speakers and onthe
credibility of the speakers themselves. Certainly, larger segments of the public may tend to be more
convinced of the point made by authoritative figures when they make the effort to emphasize their
messages.
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. They are fundamentally part of
expression protected under Article III, Section 4 of the Constitution.
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II.B.4
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." 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." It anchors on the principle that the cornerstone of every
democracy is that sovereignty resides in the people. 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
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the right of the people to make government accountable. Necessarily, this includes the right of the
people to criticize acts made pursuant to governmental functions.
Speech that promotes dialogue on publicaffairs, or airs out grievances and political discontent,
should thus be protected and encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope and
imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable
government; that the path of safety lies in the opportunity to discuss freely supposed grievances and
proposed remedies."
162

In this jurisdiction, this court held that "[t]he interest of society and the maintenance of good
government demand a full discussion of public affairs." This court has, thus, adopted the principle
that "debate on public issues should be uninhibited, robust,and wide open . . . [including even]
unpleasantly sharp attacks on government and public officials."
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164

Second, free speech should be encouraged under the concept of a market place of ideas. This
theory was articulated by Justice Holmes in that "the ultimate good desired is better reached by [the]
free trade in ideas:"
165

When men have realized that time has upset many fighting faiths, they may come to believe even
more than they believe the very foundations of their own conduct that the ultimate good desired is
better reached by free trade in ideas - that the best test of truth is the power of the thought to get
itself accepted in the competition of the market, and that truth is the only ground upon which their
wishes safely can be carried out.
166

The way it works, the exposure to the ideas of others allows one to "consider, test, and develop their
own conclusions." A free, open, and dynamic market place of ideas is constantly shaping new
ones. This promotes both stability and change where recurring points may crystallize and weak ones
may develop. Of course, free speech is more than the right to approve existing political beliefs and
economic arrangements as it includes, "[t]o paraphrase Justice Holmes, [the] freedom for the
thought that we hate, no less than for the thought that agrees with us." In fact, free speech may
"best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger." It is in this context that we should guard
against any curtailment of the peoples right to participate in the free trade of ideas.
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Third, free speech involves self-expression that enhances human dignity. This right is "a means of
assuring individual self-fulfillment," among others. In Philippine Blooming Mills Employees
Organization v. Philippine Blooming Mills Co., Inc, this court discussed as follows:
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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. (Emphasis supplied)
172

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." They also "provide a buffer between individuals and the state - a free
173

space for the development of individual personality, distinct group identity, and dissident ideas - and
a potential source of opposition to the state." 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.
174

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]." 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" and the minorities who may be oppressed by "dominant factions of the
electorate [that] capture [the] government for their own selfish ends[.]" 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." 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.
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Lastly, free speech must be protected under the safety valve theory. This provides that "nonviolent
manifestations of dissent reduce the likelihood of violence[.]" "[A] dam about to burst . . . resulting
in the banking up of a menacing flood of sullen anger behind the walls of restriction" has been
used to describe the effect of repressing nonviolent outlets. 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" 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[,]" and conduct peaceful rallies and
other similar acts. 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.
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183

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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. As such, it is
subject to regulation by COMELEC under its constitutional mandate. Election propaganda is
defined under Section 1(4) of COMELEC Resolution No. 9615 as follows: SECTION 1. Definitions . .
.
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....
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." They argue that the tarpaulin was their statement of
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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. It was "part of their advocacy campaign against the
RH Law," which was not paid for by any candidate or political party. Thus, "the questioned orders
which . . . effectively restrain[ed] and curtail[ed] [their] freedom of expression should be declared
unconstitutional and void."
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This court has held free speech and other intellectual freedoms as "highly ranked in our scheme of
constitutional values." These rights enjoy precedence and primacy. In Philippine Blooming Mills,
this court discussed the preferred position occupied by freedom of expression:
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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." (Citations omitted)
195

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." A similar
idea appeared in our jurisprudence as early as 1969, which was Justice Barredos concurring and
dissenting opinion in Gonzales v. COMELEC:
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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. (Emphasis
supplied)
198

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 the equal right of others or those of the community or

society. The difference in treatment is expected because the relevant interests of one type of
speech, e.g., political speech, may vary from those of another, e.g., obscene speech.
Distinctionshave therefore been made in the treatment, analysis, and evaluation ofthe permissible
scope of restrictions on various categories of speech. We have ruled, for example, that in our
jurisdiction slander or libel, lewd and obscene speech, as well as "fighting words" are not entitled to
constitutional protection and may be penalized. (Citations omitted)
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We distinguish between politicaland commercial speech. Political speech refers to speech "both
intended and received as a contribution to public deliberation about some issue," "foster[ing]
informed and civicminded deliberation." On the other hand, commercial speech has been defined
as speech that does "no more than propose a commercial transaction." The expression resulting
from the content of the tarpaulin is, however, definitely political speech. In Justice Brions dissenting
opinion, he discussed that "[t]he content of the tarpaulin, as well as the timing of its posting, makes it
subject of the regulations in RA 9006 and Comelec Resolution No. 9615." He adds that "[w]hile
indeed the RH issue, by itself,is not an electoralmatter, the slant that the petitioners gave the issue
converted the non-election issue into a live election one hence, Team Buhay and Team Patay and
the plea to support one and oppose the other."
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While the tarpaulin may influence the success or failure of the named candidates and political
parties, this does not necessarily mean it is election propaganda. The tarpaulin was not paid for or
posted "in return for consideration" by any candidate, political party, or party-list group.
The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or the rules and
regulations implementing Republic Act No. 9006 as an aid to interpret the law insofar as the facts of
this case requires, states:
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. (Emphasis supplied)
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, 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:
205

The interest of society and the maintenance of good government demand a full discussion of public
affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of official dom. Men in public life may
suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear
conscience. A public officer must not be too thin-skinned with reference to comment upon his official
acts. Only thus can the intelligence and dignity of the individual be exalted.
206

Subsequent jurisprudence developed the right to petition the government for redress of grievances,
allowing for criticism, save for some exceptions. In the 1951 case of Espuelas v. People, this
court noted every citizens privilege to criticize his or her government, provided it is "specific and
therefore constructive, reasoned or tempered, and not a contemptuous condemnation of the entire
government set-up."
207

208

209

The 1927 case of People v. Titular involved an alleged violation of the Election Law provision
"penaliz[ing] the anonymous criticism of a candidate by means of posters or circulars." This court
explained that it is the posters anonymous character that is being penalized. The ponente adds
that he would "dislike very muchto see this decision made the vehicle for the suppression of public
opinion."
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211

212

213

In 1983, Reyes v. Bagatsing 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."
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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. This 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."
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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." At the heart of democracy is every advocates right to make known what
the people need to know, 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.
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219

Thus, in Adiong v. COMELEC, 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:
220

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 dissemination of information to make more meaningful the equally
vital right of suffrage. (Emphasis supplied, citations omitted)
221

Speech with political consequences isat the core of the freedom of expression and must be
protected by this court.
Justice Brion pointed out that freedomof expression "is not the god of rights to which all other rights
and even government protection of state interest must bow."
222

The right to freedom of expression isindeed not absolute. Even some forms of protected speech are
still subjectto some restrictions. The degree of restriction may depend on whether the regulation is
content-based or content-neutral. Content-based regulations can either be based on the viewpoint
of the speaker or the subject of the expression.
223

II.B.6
Content-based regulation
COMELEC contends that the order for removal of the tarpaulin is a content-neutral regulation. The
order was made simply because petitioners failed to comply with the maximum size limitation for
lawful election propaganda.
224

On the other hand, petitioners argue that the present size regulation is content-based as it applies
only to political speech and not to other forms of speech such as commercial speech. "[A]ssuming
arguendo that the size restriction sought to be applied . . . is a mere time, place, and manner
regulation, its still unconstitutional for lack of a clear and reasonable nexus with a constitutionally
sanctioned objective."
225

226

The regulation may reasonably be considered as either content-neutral or contentbased. Regardless, the disposition of this case will be the same. Generally, compared with other
forms of speech, the proposed speech is content-based.
227

As pointed out by petitioners, the interpretation of COMELEC contained in the questioned order
applies only to posters and tarpaulins that may affect the elections because they deliver opinions
that shape both their choices. It does not cover, for instance, commercial speech.
Worse, COMELEC does not point to a definite view of what kind of expression of non-candidates will
be adjudged as "election paraphernalia." There are no existing bright lines to categorize speech as
election-related and those that are not. This is especially true when citizens will want to use their
resources to be able to raise public issues that should be tackled by the candidates as what has
happened in this case. COMELECs discretion to limit speech in this case is fundamentally
unbridled.
Size limitations during elections hit ata core part of expression. The content of the tarpaulin is not
easily divorced from the size of its medium.
Content-based regulation bears a heavy presumption of invalidity, and this court has used the clear
and present danger rule as measure. Thus, in Chavez v. Gonzales:
228

A content-based regulation, however, bears a heavy presumption of invalidity and is measured

against the clear and present danger rule. The latter will pass constitutional muster only if justified by
a compelling reason, and the restrictions imposedare neither overbroad nor vague. (Citations
omitted)
229

Under this rule, "the evil consequences sought to be prevented must be substantive, extremely
serious and the degree of imminence extremely high." "Only when the challenged act has
overcome the clear and present danger rule will it pass constitutional muster, with the government
having the burden of overcoming the presumed unconstitutionality."
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231

Even with the clear and present danger test, respondents failed to justify the regulation. There is no
compelling and substantial state interest endangered by the posting of the tarpaulinas to justify
curtailment of the right of freedom of expression. There is no reason for the state to minimize the
right of non-candidate petitioners to post the tarpaulin in their private property. The size of the
tarpaulin does not affect anyone elses constitutional rights.
Content-based restraint or censorship refers to restrictions "based on the subject matter of the
utterance or speech." In contrast, content-neutral regulation includes controls merely on the
incidents of the speech such as time, place, or manner of the speech.
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This court has attempted to define "content-neutral" restraints starting with the 1948 case of
Primicias v. Fugoso. The ordinance in this case was construed to grant the Mayor discretion only to
determine the public places that may be used for the procession ormeeting, but not the power to
refuse the issuance of a permit for such procession or meeting. This court explained that free
speech and peaceful assembly are "not absolute for it may be so regulated that it shall not
beinjurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the
community or society."
234

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236

The earlier case of Calalang v. Williams involved the National Traffic Commission resolution that
prohibited the passing of animal-drawn vehicles along certain roads at specific hours. This court
similarly 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."
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As early as 1907, United States v. Apurado 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. . . ." It is with this backdrop
that the state is justified in imposing restrictions on incidental matters as time, place, and manner of
the speech.
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241

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. 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. This ruling was practically
codified in Batas Pambansa No. 880, otherwise known as the Public Assembly Act of 1985.
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243

Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid content-neutral
regulation. In the 2006 case of Bayan v. Ermita, this court discussed how Batas Pambansa No. 880
does not prohibit assemblies but simply regulates their time, place, and manner. In 2010, this court
found in Integrated Bar of the Philippines v. Atienza 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.
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245

246

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. "When the speech
restraints take the form of a content-neutral regulation, only a substantial governmental interest is
required for its validity," and it is subject only to the intermediate approach.
249

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251

This intermediate approach is based on the test that we have prescribed in several cases. A
content-neutral government regulation is sufficiently justified:
252

[1] if it is within the constitutional power of the Government; [2] if it furthers an important or
substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of
free expression; and [4] if the incident restriction on alleged [freedom of speech & expression] is no
greater than is essential to the furtherance of that interest.
253

On the first requisite, it is not within the constitutional powers of the COMELEC to regulate the
tarpaulin. As discussed earlier, this is protected speech by petitioners who are non-candidates. On
the second requirement, not only must the governmental interest be important or substantial, it must
also be compelling as to justify the restrictions made.
Compelling governmental interest would include constitutionally declared principles. We have held,
for example, that "the welfare of children and the States mandate to protect and care for them, as
parens patriae, constitute a substantial and compelling government interest in regulating . . .
utterances in TV broadcast."
254

255

Respondent invokes its constitutional mandate to ensure equal opportunity for public information
campaigns among candidates in connection with the holding of a free, orderly, honest, peaceful, and
credible election.
256

Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters are necessary to ensure
equality of public information campaigns among candidates, as allowing posters with different sizes
gives candidates and their supporters the incentive to post larger posters[,] [and] [t]his places
candidates with more money and/or with deep-pocket supporters at an undue advantage against
candidates with more humble financial capabilities."
257

First, Adiong v. COMELEC has held that this interest is "not as important as the right of [a private
citizen] to freely express his choice and exercise his right of free speech." In any case, faced with
both rights to freedom of speech and equality, a prudent course would be to "try to resolve the
tension in a way that protects the right of participation."
258

259

Second, the pertinent election lawsrelated to private property only require that the private property
owners consent be obtained when posting election propaganda in the property. This is consistent
with the fundamental right against deprivation of property without due process of law. The present
facts do not involve such posting of election propaganda absent consent from the property owner.
Thus, this regulation does not apply in this case.
260

261

Respondents likewise cite the Constitution on their authority to recommend effective measures to
minimize election spending. Specifically, Article IX-C, Section 2(7) provides:
262

Sec. 2. The Commission on Elections shall exercise the following powers and functions:
....
(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." 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.
264

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 action of the COMELEC in thiscase is a strong deterrent to further speech by the electorate.
Given the stature of petitioners and their message, there are indicators that this will cause a "chilling
effect" on robust discussion during elections.
The form of expression is just as important as the message itself. In the words of Marshall McLuhan,
"the medium is the message." McLuhans colleague and mentor Harold Innis has earlier asserted
that "the materials on which words were written down have often counted for more than the words
themselves."
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267

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 the candidate or political party

would have doneso. This may effectively skirt the constitutional and statutory limits of campaign
spending.
Again, this is not the situation in this case.
The message of petitioners in thiscase will certainly not be what candidates and political parties will
carry in their election posters or media ads. The message of petitioner, taken as a whole, is an
advocacy of a social issue that it deeply believes. Through rhetorical devices, it communicates the
desire of Diocese that the positions of those who run for a political position on this social issue be
determinative of how the public will vote. It primarily advocates a stand on a social issue; only
secondarily even almost incidentally will cause the election or non-election of a candidate.
The twin tarpaulins consist of satire of political parties. Satire is a "literary form that employs such
devices as sarcasm, irony and ridicule to deride prevailing vices or follies," and this may target any
individual or group in society, private and government alike. It seeks to effectively communicate a
greater purpose, often used for "political and social criticism" "because it tears down facades,
deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more thoroughly democratic than to
have the high-and-mighty lampooned and spoofed." Northrop Frye, wellknown in this literary field,
claimed that satire had two defining features: "one is wit or humor founded on fantasy or a sense of
the grotesque and absurd, the other is an object of attack." Thus, satire frequently uses
exaggeration, analogy, and other rhetorical devices.
268

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270

271

The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead individuals nor could
the Archbishop of the Diocese of Bacolod have intended it to mean that the entire plan of the
candidates in his list was to cause death intentionally. The tarpaulin caricatures political parties and
parodies the intention of those in the list. Furthermore, the list of "Team Patay" is juxtaposed with the
list of "Team Buhay" that further emphasizes the theme of its author: Reproductive health is an
important marker for the church of petitioners to endorse.
The messages in the tarpaulins are different from the usual messages of candidates. Election
paraphernalia from candidates and political parties are more declarative and descriptive and contain
no sophisticated literary allusion to any social objective. Thus, they usually simply exhort the public
to vote for a person with a brief description of the attributes of the candidate. For example "Vote for
[x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba kami sa Makati."
This courts construction of the guarantee of freedom of expression has always been wary of
censorship or subsequent punishment that entails evaluation of the speakers viewpoint or the
content of ones speech. This is especially true when the expression involved has political
consequences. 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." 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. 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.
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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 communities is not new only to law. It has always been
a philosophical problematique.
In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert Marcuse
recognized how institutionalized inequality exists as a background limitation, rendering freedoms
exercised within such limitation as merely "protect[ing] the already established machinery of
discrimination." In his view, any improvement "in the normal course of events" within an unequal
society, without subversion, only strengthens existing interests of those in power and control.
275

276

In other words, abstract guarantees of fundamental rights like freedom of expression may become
meaningless if not taken in a real context. This tendency to tackle rights in the abstract compromises
liberties. In his words:
Liberty is self-determination, autonomythis is almost a tautology, but a tautology which results from
a whole series of synthetic judgments. It stipulates the ability to determine ones own life: to be able
to determine what to do and what not to do, what to suffer and what not. But the subject of this
autonomy is never the contingent, private individual as that which he actually is or happens to be; it
is rather the individual as a human being who is capable of being free with the others. And the
problem of making possible such a harmony between every individual liberty and the other is not that
of finding a compromise between competitors, or between freedom and law, between general and
individual interest, common and private welfare in an established society, but of creating the society
in which man is no longer enslaved by institutions which vitiate self-determination from the
beginning. In other words, freedom is still to be created even for the freest of the existing
societies. (Emphasis in the original)
277

Marcuse suggests that the democratic argument with all opinions presented to and deliberated by
the people "implies a necessary condition, namely, that the people must be capable of

deliberating and choosing on the basis of knowledge, that they must have access to authentic
information, and that, on this basis, their evaluation must be the result of autonomous thought." He
submits that "[d]ifferent opinions and philosophies can no longer compete peacefully for adherence
and persuasion on rational grounds: the marketplace of ideas is organized and delimited by those
who determine the national and the individual interest." A slant toward left manifests from his belief
that "there is a natural right of resistance for oppressed and overpowered minorities to use
extralegal means if the legal ones have proved to be inadequate." Marcuse, thus, stands for an
equality that breaks away and transcends from established hierarchies, power structures, and
indoctrinations. The tolerance of libertarian society he refers to as "repressive tolerance."
278

279

280

Legal scholars
The 20th century also bears witness to strong support from legal scholars for "stringent protections
of expressive liberty," especially by political egalitarians. Considerations such as "expressive,
deliberative, and informational interests," costs or the price of expression, and background facts,
when taken together, produce bases for a system of stringent protections for expressive liberties.
281

282

283

Many legal scholars discuss the interest and value of expressive liberties. Justice Brandeis proposed
that "public discussion is a political duty." Cass Sustein placed political speech on the upper tier of
his twotier model for freedom of expression, thus, warranting stringent protection. He defined
political speech as "both intended and received as a contribution to public deliberation about some
issue."
284

285

286

But this is usually related also tofair access to opportunities for such liberties. 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." Justice Brandeis solution is to
"remedy the harms of speech with more speech." This 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." 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." Professor Catherine A. MacKinnon adds that
"equality continues to be viewed in a formal rather than a substantive sense." Thus, more speech
can only mean more speech from the few who are dominant rather than those who are not.
287

288

289

290

291

292

Our jurisprudence
This court has tackled these issues.
Osmea v. COMELEC affirmed National Press Club v. COMELEC on the validity of Section 11(b)
ofthe Electoral Reforms Law of 1987. This section "prohibits mass media from selling or giving free
of charge print space or air time for campaign or other political purposes, except to the Commission
on Elections." This court explained that this provision only regulates the time and manner of
advertising in order to ensure media equality among candidates. This court grounded this measure
on constitutional provisions mandating political equality: Article IX-C, Section 4
293

294

295

296

Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities,
media of communication or information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any government-owned
or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal

opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible elections. (Emphasis supplied)
Article XIII, Section 1
Section 1. The Congress shall give highest priorityto the enactment of measures that protect and
enhance the right of all the people to human dignity, reducesocial, economic, and political
inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the
common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and
its increments. (Emphasis supplied)
Article II, Section 26
Section 26. The State shall guarantee equal access to opportunities for public service, and prohibit
political dynasties as may be defined by law. (Emphasis supplied)
Thus, in these cases, we have acknowledged the Constitutions guarantee for more substantive
expressive freedoms that take equality of opportunities into consideration during elections.
The other view
However, there is also the other view. This is that considerations of equality of opportunity or equality
inthe ability of citizens as speakers should not have a bearing in free speech doctrine. Under this
view, "members of the public are trusted to make their own individual evaluations of speech, and
government is forbidden to intervene for paternalistic or redistributive reasons . . . [thus,] ideas are
best left to a freely competitive ideological market." This is consistent with the libertarian suspicion
on the use of viewpoint as well as content to evaluate the constitutional validity or invalidity of
speech.
297

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. Consequently, the Constitution protects
free speech per se, indifferent to the types, status, or associations of its speakers. Pursuant to this,
"government must leave speakers and listeners in the private order to their own devices in sorting
out the relative influence of speech."
298

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300

Justice Romeros dissenting opinion in Osmea v. COMELEC formulates this view that freedom of
speech includes "not only the right to express ones views, but also other cognate rights relevant to
the free communication [of] ideas, not excluding the right to be informed on matters of public
concern." She adds:
301

And since so many imponderables may affect the outcome of elections qualifications of voters
and candidates, education, means of transportation, health, public discussion, private animosities,
the weather, the threshold of a voters resistance to pressure the utmost ventilation of opinion of
men and issues, through assembly, association and organizations, both by the candidate and the
voter, becomes a sine qua non for elections to truly reflect the will of the electorate. (Emphasis
supplied)
302

Justice Romeros dissenting opinion cited an American case, if only to emphasize free speech
primacy such that"courts, as a rule are wary to impose greater restrictions as to any attempt to
curtail speeches with political content," thus:
303

the concept that the government may restrict the speech of some elements in our society in order to
enhance the relative voice of the others is wholly foreign to the First Amendment which was
designed to "secure the widest possible dissemination of information from diverse and antagonistic
sources" and "to assure unfettered interchange of ideas for the bringing about of political and social
changes desired by the people."
304

This echoes Justice Oliver Wendell Holmes submission "that the market place of ideas is still the
best alternative to censorship."
305

Parenthetically and just to provide the whole detail of the argument, the majority of the US Supreme
Court in the campaign expenditures case of Buckley v. Valeo "condemned restrictions (even if
content-neutral) on expressive liberty imposed in the name of enhanc[ing] the relative voice of
others and thereby equaliz[ing] access to the political arena." The majority did not use the
equality-based paradigm.
306

One flaw of campaign expenditurelimits is that "any limit placed on the amount which a person can
speak, which takes out of his exclusive judgment the decision of when enough is enough, deprives
him of his free speech."
307

Another flaw is how "[a]ny quantitative limitation on political campaigning inherently constricts the
sum of public information and runs counter to our profound national commitment that debate on
public issues should be uninhibited, robust, and wide-open."
308

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." 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."
309

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 effect of our rulings in Osmea v. COMELEC and National Press Club v.
COMELEC.
Regulation of speech in the context of electoral campaigns made by persons who are not candidates
or who do not speak as members of a political party which are, taken as a whole, principally
advocacies of a social issue that the public must consider during elections is unconstitutional. Such
regulation is inconsistent with the guarantee of according the fullest possible range of opinions
coming from the electorate including those that can catalyze candid, uninhibited, and robust debate
in the criteria for the choice of a candidate.
This does not mean that there cannot be a specie of speech by a private citizen which will not
amount toan election paraphernalia to be validly regulated by law.
Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of
persons who are not candidates or who do not speak as members of a political party if they are not
candidates, only if what is regulated is declarative speech that, taken as a whole, has for its principal
object the endorsement of a candidate only. The regulation (a) should be provided by law, (b)
reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of all candidates
to be heard and considering the primacy of the guarantee of free expression, and (d) demonstrably
the least restrictive means to achieve that object. The regulation must only be with respect to the
time, place, and manner of the rendition of the message. In no situation may the speech be
prohibited or censored onthe basis of its content. For this purpose, it will notmatter whether the
speech is made with or on private property.
This is not the situation, however, in this case for two reasons. First, as discussed, the principal
message in the twin tarpaulins of petitioners consists of a social advocacy.
Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the present law
Section 3.3 of Republic Act No. 9006 and Section 6(c) of COMELEC Resolution No. 9615 if
applied to this case, will not pass the test of reasonability. A fixed size for election posters or
tarpaulins without any relation to the distance from the intended average audience will be arbitrary.
At certain distances, posters measuring 2 by 3 feet could no longer be read by the general public
and, hence, would render speech meaningless. It will amount to the abridgement of speech with
political consequences.
IV
Right to property
Other than the right to freedom of expression and the meaningful exercise of the right to
suffrage, the present case also involves ones right to property.
311

312

313

Respondents argue that it is the right of the state to prevent the circumvention of regulations relating
to election propaganda by applying such regulations to private individuals. Certainly, any provision
or regulation can be circumvented. But we are not confronted with this possibility. Respondents
agree that the tarpaulin in question belongs to petitioners. Respondents have also agreed, during
the oral arguments, that petitioners were neither commissioned nor paid by any candidate or political
party to post the material on their walls.
314

Even though the tarpaulin is readily seen by the public, the tarpaulin remains the private property of
petitioners. Their right to use their property is likewise protected by the Constitution.
In Philippine Communications Satellite Corporation v. Alcuaz:

315

Any regulation, therefore, which operates as an effective confiscation of private property or

constitutes an arbitrary or unreasonable infringement of property rights is void, because it is
repugnant to the constitutional guaranties of due process and equal protection of the laws. (Citation
omitted)
316

This court in Adiong held that a restriction that regulates where decals and stickers should be posted
is "so broad that it encompasses even the citizens private property." Consequently, it violates
Article III, Section 1 of the Constitution which provides thatno person shall be deprived of his
property without due process of law. This court explained:
317

Property is more than the mere thing which a person owns, it includes the right to acquire, use, and
dispose of it; and the Constitution, in the 14th Amendment, protects these essential attributes.
Property is more than the mere thing which a person owns. It is elementary that it includes the right
to acquire, use, and dispose of it. The Constitution protects these essential attributes of property.
Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of
the free use, enjoyment, and disposal of a persons acquisitions without control or diminution save
by the law of the land. 1 Cooleys Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917])
318

This court ruled that the regulation in Adiong violates private property rights:
The right to property may be subject to a greater degree of regulation but when this right is joined by
a "liberty" interest, the burden of justification on the part of the Government must be exceptionally
convincing and irrefutable. The burden is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display
of election propaganda in any place, whether public or private, except inthe common poster areas
sanctioned by COMELEC. This means that a private person cannot post his own crudely prepared
personal poster on his own front dooror on a post in his yard. While the COMELEC will certainly
never require the absurd, there are no limits to what overzealous and partisan police officers, armed
with a copy of the statute or regulation, may do. Respondents ordered petitioners, who are private
citizens, to remove the tarpaulin from their own property. The absurdity of the situation is in itself an
indication of the unconstitutionality of COMELECs interpretation of its powers.
319

Freedom of expression can be intimately related with the right to property. There may be no
expression when there is no place where the expression may be made. COMELECs infringement
upon petitioners property rights as in the present case also reaches out to infringement on their
fundamental right to speech.

Respondents have not demonstrated thatthe present state interest they seek to promote justifies the
intrusion into petitioners property rights. Election laws and regulations must be reasonable. It must
also acknowledge a private individuals right to exercise property rights. Otherwise, the due process
clause will be violated.
COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the posting of election
propaganda in private property without the consent of the owners of such private property.
COMELEC has incorrectly implemented these regulations. Consistent with our ruling in Adiong, we
find that the act of respondents in seeking to restrain petitioners from posting the tarpaulin in their
own private property is an impermissible encroachments on the right to property.
V
Tarpaulin and its message are not religious speech
We proceed to the last issues pertaining to whether the COMELEC in issuing the questioned notice
and letter violated the right of petitioners to the free exercise of their religion.
At the outset, the Constitution mandates the separation of church and state. This takes many
forms. Article III, Section 5 of the Constitution, for instance provides:
320

Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. Noreligious test shall be required for the
exercise of civil or political rights.
There are two aspects of this provision. The first is the none stablishment clause. Second is the
free exercise and enjoyment of religious profession and worship.
321

322

323

The second aspect is atissue in this case.

Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any other religious
make such act immune from any secular regulation. The religious also have a secular existence.
They exist within a society that is regulated by law.
324

The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a bishop amounts to
religious expression. This notwithstanding petitioners claim that "the views and position of the
petitioners, the Bishop and the Diocese of Bacolod, on the RH Bill is inextricably connected to its
Catholic dogma, faith, and moral teachings. . . ."
325

The difficulty that often presents itself in these cases stems from the reality that every act can be
motivated by moral, ethical, and religious considerations. In terms of their effect on the corporeal
world, these acts range from belief, to expressions of these faiths, to religious ceremonies, and then
to acts of a secular character that may, from the point of view of others who do not share the same
faith or may not subscribe to any religion, may not have any religious bearing.
Definitely, the characterizations ofthe religious of their acts are not conclusive on this court. Certainly,
our powers of adjudication cannot be blinded by bare claims that acts are religious in nature.
Petitioners erroneously relied on the case of Ebralinag v. The Division Superintendent of Schools of
Cebu in claiming that the court "emphatically" held that the adherents ofa particular religion shall be
the ones to determine whether a particular matter shall be considered ecclesiastical in nature. This
326

327

court in Ebralinagexempted Jehovahs Witnesses from participating in the flag ceremony "out of
respect for their religious beliefs, [no matter how] "bizarre" those beliefsmay seem to others." This
court found a balance between the assertion of a religious practice and the compelling necessities of
a secular command. It was an early attempt at accommodation of religious beliefs.
328

In Estrada v. Escritor, this court adopted a policy of benevolent neutrality:

329

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

As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not convey any religious
doctrine of the Catholic church." 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.
332

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
Commission 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."
333

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.
COMELECs general role includes a mandate to ensure equal opportunities and reduce spending
among candidates and their registered political parties. It is not to regulate or limit the speech of the
electorate as it strives to participate inthe electoral exercise.

The tarpaulin in question may be viewed as producing a caricature of those who are running for
public office.Their message may be construed generalizations of very complex individuals and partylist organizations.
They are classified into black and white: as belonging to "Team Patay" or "Team Buhay."
But this caricature, though not agreeable to some, is still protected speech.
That petitioners chose to categorize them as purveyors of death or of life on the basis of a single
issue and a complex piece of legislation at that can easily be interpreted as anattempt to
stereo type the candidates and party-list organizations. Not all may agree to the way their thoughts
were expressed, as in fact there are other Catholic dioceses that chose not to follow the example of
petitioners.
Some may have thought that there should be more room to consider being more broad-minded and
non-judgmental. Some may have expected that the authors would give more space to practice
forgiveness and humility.
But, the Bill of Rights enumerated in our Constitution is an enumeration of our fundamental liberties.
It is not a detailed code that prescribes good conduct. It provides space for all to be guided by their
conscience, not only in the act that they do to others but also in judgment of the acts of others.
Freedom for the thought we can disagree with can be wielded not only by those in the minority. This
can often be expressed by dominant institutions, even religious ones. That they made their point
dramatically and in a large way does not necessarily mean that their statements are true, or that they
have basis, or that they have been expressed in good taste.
Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a specie of
expression protected by our fundamental law. It is an expression designed to invite attention, cause
debate, and hopefully, persuade. It may be motivated by the interpretation of petitioners of their
ecclesiastical duty, but their parishioners actions will have very real secular consequences.
Certainly, provocative messages do matter for the elections.
What is involved in this case is the most sacred of speech forms: expression by the electorate that
tends to rouse the public to debate contemporary issues. This is not speechby candidates or political
parties to entice votes. It is a portion of the electorate telling candidates the conditions for their
election. It is the substantive content of the right to suffrage.
This. is a form of speech hopeful of a quality of democracy that we should all deserve. It is protected
as a fundamental and primordial right by our Constitution. The expression in the medium chosen by
petitioners deserves our protection.
WHEREFORE, the instant petition is GRANTED. The temporary restraining order previously issued
is hereby made permanent. The act of the COMELEC in issuing the assailed notice dated February
22, 2013 and letter dated February 27, 2013 is declared unconstitutional.
SO ORDERED.

G.R. No. 206020

April 14, 2015

1-UNITED TRANSPORT KOALISYON (1-UTAK), Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.
DECISION
REYES, J.:
The right to participate in electoral processes is a basic and fundamental right in any democracy. It
includes not only the right to vote, but also the right to urge others to vote for a particular candidate.
The right to express ones preference for a candidate is likewise part of the fundamental right to free
speech. Thus, any governmental restriction on the right to convince others to vote for a candidate
carries with it a heavy presumption of invalidity.
This is a petition for certiorari under Rule 64 and Rule 65 of the Rules of Court filed by 1-United
Transport Koalisyon (petitioner), a party-list organization, assailing Section 7(g) items (5) and (6), in
relation to Section 7(f), of Resolution No. 9615 of the Commission on Elections (COMELEC).
1

The Facts
On February 12, 2001, Republic Act (R.A.) No. 9006, otherwise known as the "Fair Elections Act",
was passed. Section 9 thereof provides:
Sec. 9. Posting of Campaign Materials. The COMELEC may authorize political parties and party-list
groups to erect common poster areas for their candidates in not more than ten (10) public places
such as plazas, markets, barangay centers and the like, wherein candidates can post, display or
exhibit election propaganda: Provided that the size of the poster areas shall not exceed twelve (12)
by sixteen (16) feet or its equivalent.
Independent candidates with no political parties may likewise be authorized to erect common poster
areas in not more than ten (10) public places, the size of which shall not exceed four (4) by six (6)
feet or its equivalent.
Candidates may post any lawful propaganda material in private places with the consent of the owner
thereof, and in public places or property which shall be allocated equitably and impartially among the
candidates.

On January 15, 2013, the COMELEC promulgated Resolution No. 9615, which provided for the rules
implementing R.A. No. 9006 in connection with the May 13, 2013 national and local elections and
subsequent elections. Section 7 thereof, which enumerates the prohibited forms of election
propaganda, pertinently provides:
SEC. 7. Prohibited Forms of Election Propaganda. During the campaign period, it is unlawful:
xxxx
(f) To post, display or exhibit any election campaign or propaganda material outside of
authorized common poster areas, in public places, or in private properties without the
consent of the owner thereof.
(g) Public places referred to in the previous subsection (f) include any of the following:
xxxx
5. Public utility vehicles such as buses, jeepneys, trains, taxi cabs, ferries, pedicabs and
tricycles, whether motorized or not;
6. Within the premises of public transport terminals, such as bus terminals, airports,
seaports, docks, piers, train stations, and the like.
The violation of items [5 and 6]under subsection (g) shall be a cause for the revocation of the
public utility franchise and will make the owner and/or operator of the transportation service
and/or terminal liable for an election offense under Section 9 of Republic Act No. 9006 as
implemented by Section 18 (n) of these Rules.
3

In its letter dated January 30, 2013, the petitioner, through its president, Melencio F. Vargas, sought
clarification from the COMELEC as regards the application of Resolution No. 9615, particularly
Section 7(g) items (5) and (6), in relation to Section 7(f), vis--vis privately owned public utility
vehicles (PUVs) and transport terminals. The petitioner explained that the prohibition stated in the
aforementioned provisions impedes the right to free speech of the private owners of PUVs and
transport terminals. The petitioner then requested the COMELEC to reconsider the implementation
of the assailed provisions and allow private owners of PUVs and transport terminals to post election
campaign materials on their vehicles and transport terminals. On February 5, 2013, the COMELEC
en banc issued Minute Resolution No. 13-0214, which denied the petitioners request to reconsider
the implementation of Section 7(g) items(5) and (6), in relation to Section 7(f), of Resolution No.
9615. The COMELEC en banc, adopting the recommendation of Commissioner Christian Robert S.
Lim, opined that:
4

From the foregoing, x x x the primary fact in consideration here is actually whether 1-UTAK or any
other [PUV] owners in the same position do in fact possess a franchise and/or certificate of public
convenience and operate as a public utility. If it does not, then the ruling in Adiong applies squarely.
If it does, then its operations, pursuant to Section 4, Article IX-C of the Constitution, will be placed
directly under the supervision and regulation of the Commission for the duration of the election
period so as to ensure equality of opportunity, time, and space for all candidates in the placement of
political advertisements. Having placed their property for use by the general public and having
secured a license or permit to do so, 1-UTAK and other PUV owners, as well as transport terminal
owners, cannot now complain that their property is subject to regulation by the State. Securing a
franchise or a certificate of public convenience in their favor does not exempt them from the burdens

imposed by the Constitution, Republic Act No. 9006 x x x, and other related statutes. It must be
stressed that the Constitution itself, under Section 6, Article XII, commands that the use of property
bears a social function and all economic agents shall contribute to the common good; and there is
no higher common good than that as espoused in R.A. No. 9006 the equalization of opportunities
for all candidates for political office during elections a policy which Res. No. 9615 merely
implements.
As required in Adiong, and in compliance with the OBrien standards, the prohibition furthers two
important and substantial governmental interests equalizing opportunity, time, and space for all
candidates, and putting to a stop excessive campaign spending. The regulation bears a clear and
reasonable nexus with these Constitutionally- and statutorily-sanctioned objectives, and the
infringement of freedom is merely incidental and limited as to time. The Commission has not taken
away all avenues of expression available to PUV and transport terminal owners. They may express
their political preferences elsewhere.
The exact purpose for placing political advertisements on a PUV or in transport terminals is exactly
because it is public and can be seen by all; and although it is true that private vehicles ply the same
route as public vehicles, the exposure of a [PUV] servicing the general, riding public is much more
compared to private vehicles. Categorizing PUVs and transport terminals as public places under
Section 7 (f) of Reso. No. 9615 is therefore logical. The same reasoning for limiting political
advertisements in print media, in radio, and in television therefore holds true for political
advertisements in PUVs and transport terminals.
6

Hence, the instant petition.

Arguments of the Petitioner
The petitioner maintains that Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution
No. 9615 violate the right to free speech of the owners of PUVs and transport terminals; that the
prohibition curtails their ideas of who should be voted by the public. The petitioner also claims that
there is no substantial public interest threatened by the posting of political advertisements on PUVs
and transport terminals to warrant the prohibition imposed by the COMELEC. Further, the petitioner
posits that the ownership of the PUVs per se, as well as the transport terminals, remains private and,
hence, the owners thereof could not be prohibited by the COMELEC from expressing their political
opinion lest their property rights be unduly intruded upon.
Further, assuming that substantial public interest exists in the said prohibition imposed under
Resolution No. 9615, the petitioner claims that the curtailment of the right to free speech of the
owners of PUVs and transport terminals is much greater than is necessary to achieve the desired
governmental purpose, i.e., ensuring equality of opportunity to all candidates in elective office.
Arguments of COMELEC
On the other hand, the COMELEC posits that privately-owned PUVs and transport terminals are
public spaces that are subject to its regulation. It explains that under the Constitution, the COMELEC
has the power to enforce and administer all laws and regulations relative to the conduct of an
election, including the power to regulate the enjoyment or utilization of all franchises and permits for
the operation of transportation utilities.
The COMELEC points out that PUVs and private transport terminals hold a captive audience the
commuters, who have no choice but be subjected to the blare of political propaganda. Thus, the
COMELEC avers, it is within its constitutional authority to prevent privately-owned PUVs and

transport terminals from concurrently serving campaign materials to the captive audience that they
transport.
The COMELEC further claims that Resolution No. 9615 is a valid content-neutral regulation and,
thus, does not impinge on the constitutional right to freedom of speech. It avers that the assailed
regulation is within the constitutional power of the COMELEC pursuant to Section 4, Article IX-C of
the Constitution. The COMELEC alleges that the regulation simply aims to ensure equal campaign
opportunity, time, and space for all candidates an important and substantial governmental interest,
which is totally unrelated to the suppression of free expression; that any restriction on free speech is
merely incidental and is no greater than is essential to the furtherance of the said governmental
interest.
The Issue
The petitioner presents the following issues for the Courts resolution:
I. [WHETHER] RESOLUTIONNO. 9615 VIOLATES THE RIGHT TO FREE SPEECH OF THE
OWNERS OF [PUVs] AND TRANSPORT TERMINALS.
II. [WHETHER] RESOLUTION NO. 9615 IS VOID AS A RESTRAINT TO FREE SPEECH
AND EXPRESSION FOR FAILURE TO SATISFY THE OBRIEN TEST.
III. [WHETHER] THE CONSTITUTIONAL OBJECTIVE TO GIVE AN EQUAL OPPORTUNITY
TO INFORM THE ELECTORATE IS NOT IMPAIRED BY POSTING POLITICAL
ADVERTISEMENTS ON PUVs AND TRANSPORT TERMINALS.
IV. [WHETHER] THE OWNERSHIP OF FACILITIES IS DIFFERENT AND INDEPENDENT
FROM THE FRANCHISE OR OPERATION OFTHE PUBLIC UTILITY, THE FORMER BEING
BEYOND THE POWER OF REGULATION BYTHE COMELEC.
7

In sum, the issue presented for the Courts resolution is whether Section 7(g) items (5) and (6), in
relation to Section 7(f),of Resolution No. 9615, which prohibits the posting of any election campaign
or propaganda material, inter alia, in PUVs and public transport terminals are valid regulations.
Ruling of the Court
The petition is meritorious.
Resolution No. 9615, which was promulgated pursuant to Section 4, Article IX-C of the Constitution
and the provisions of R.A. No. 9006, lays down the administrative rules relative to the COMELECs
exercise of its supervisory and regulatory powers over all franchises and permits for the operation of
transportation and other public utilities, media of communication or information, and all grants,
special privileges, or concessions granted by the Government.
Like any other administrative regulations, Resolution No. 9615, or any part thereof, must not run
counter to the Constitution. It is basic that if a law or an administrative rule violates any norm of the
Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to
which all laws must conform; no act shall be valid if it conflicts with the Constitution. In this regard,
an administrative regulation, even if it purports to advance a legitimate governmental interest, may
not be permitted to run roughshod over the cherished rights of the people enshrined in the
Constitution.
8

Section 7(g) items (5) and (6), in

relation to Section 7(f), of
Resolution No. 9615 are prior
restraints on speech.
Free speech may be identified with the liberty to discuss publicly and truthfully any matter of public
concern without prior restraint or censorship and subsequent punishment. Prior restraint refers to
official governmental restrictions on the press or other forms of expression in advance of actual
publication or dissemination. Freedom from prior restraint is largely freedom from government
censorship of publications, whatever the form of censorship, and regardless of whether it is wielded
by the executive, legislative or judicial branch of the government. Any system of prior restraints of
expression comes to this Court bearing a heavy presumption against its validity.
9

10

11

Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 unduly infringe on
the fundamental right of the people to freedom of speech. Central to the prohibition is the freedom of
individuals, i.e., the owners of PUVs and private transport terminals, to express their preference,
through the posting of election campaign material in their property, and convince others to agree with
them.
Pursuant to the assailed provisions of Resolution No. 9615, posting an election campaign material
during an election period in PUVs and transport terminals carries with it the penalty of revocation of
the public utility franchise and shall make the owner thereof liable for an election offense.
The prohibition constitutes a clear prior restraint on the right to free expression of the owners of
PUVs and transport terminals. As a result of the prohibition, owners of PUVs and transport terminals
are forcefully and effectively inhibited from expressing their preferences under the pain of indictment
for an election offense and the revocation of their franchise or permit to operate.
It is now deeply embedded in our jurisprudence that freedom of speech and of the press enjoys a
preferred status in our hierarchy of rights. The rationale is that the preservation of other rights
depends on how well we protect our freedom of speech and of the press. It has been our constant
holding that this preferred freedom calls all the more for utmost respect when what may be curtailed
is the dissemination of information to make more meaningful the equally vital right of suffrage.
12

13

Thus, in Adiong v. COMELEC, the Court struck down the COMELECs prohibition against the
posting of decals and stickers on "mobile places." The Court ratiocinated that:
14

Significantly, the freedom of expression curtailed by the questioned prohibition is not so much that of
the candidate or the political party. The regulation strikes at the freedom of an individual to express
his preference and, by displaying it on his car, to convince others to agree with him. A sticker may be
furnished by a candidate but once the car owner agrees to have it placed on his private vehicle, the
expression becomes a statement by the owner, primarily his own and not of anybody else. If, in the
National Press Club case, the Court was careful to rule out restrictions on reporting by newspaper or
radio and television stations and commentators or columnists as long as these are not correctly
paid-for advertisements or purchased opinions with less reason can we sanction the prohibition
against a sincere manifestation of support and a proclamation of belief by an individual person who
pastes a sticker or decal on his private property. (Emphases ours)
15

The assailed prohibition on posting

election campaign materials is an
invalid content-neutral regulation
repugnant to the free speech clause.

The COMELEC claims that while Section 7(g) items (5) and (6) of Resolution No. 9615 may
incidentally restrict the right to free speech of owners of PUVs and transport terminals, the same is
nevertheless constitutionally permissible since it is a valid content-neutral regulation.
The Court does not agree.
A content-neutral regulation, i.e., which is merely concerned with the incidents of the speech, or one
that merely controls the time, place or manner, and under well-defined standards, is constitutionally
permissible, even if it restricts the right to free speech, provided that the following requisites concur:
first, the government regulation is within the constitutional power of the Government; second, it
furthers an important or substantial governmental interest; third, the governmental interest is
unrelated to the suppression of free expression; and fourth, the incidental restriction on freedom of
expression is no greater than is essential to the furtherance of that interest.
16

17

Section 7(g) items (5) and (6) of Resolution No. 9615 are content-neutral regulations since they
merely control the place where election campaign materials may be posted. However, the prohibition
is still repugnant to the free speech clause as it fails to satisfy all of the requisites for a valid contentneutral regulation.
It is conceded that Resolution No. 9615, including the herein assailed provisions, furthers an
important and substantial governmental interest, i.e., ensuring equal opportunity, time and space
among candidates aimed at the holding of free, orderly, honest, peaceful, and credible elections. It is
further conceded that the governmental interest in imposing the said prohibition is unrelated to the
suppression of free expression. However, Section 7(g) items (5) and (6), in relation to Section 7(f), of
Resolution No. 9615, are not within the constitutionally delegated power of the COMELEC under
Section 4, Article IX-C of the Constitution. Also, there is absolutely no necessity to restrict the right to
free speech of the owners of PUVs and transport terminals.
The COMELEC may only regulate
the franchise or permit to operate
and not the ownership per se of
PUVs and transport terminals.
The prohibition under Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No.
9615is not within the COMELECs constitutionally delegated power of supervision or regulation. It is
not disputed that the COMELEC has the power to supervise or regulate the enjoyment or utilization
of all franchises or permits for the operation of transportation utilities during an election period.
Section 4, Article IX-C of the Constitution, thus provides:
Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities,
media of communication or information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any government-owned
or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible elections. Nevertheless, the constitutional grant
of supervisory and regulatory powers to the COMELEC over franchises and permits to operate,
though seemingly unrestrained, has its limits. Notwithstanding the ostensibly broad supervisory and
regulatory powers granted to the COMELEC during an election period under Section 4, Article IX-C
of the Constitution, the Court had previously set out the limitations thereon. In Adiong, the Court,
while recognizing that the COMELEC has supervisory power vis--vis the conduct and manner of

elections under Section 4, Article IX-C of the Constitution, nevertheless held that such supervisory
power does not extend to the very freedom of an individual to express his preference of candidates
in an election by placing election campaign stickers on his vehicle.
In National Press Club v. COMELEC, while the Court upheld the constitutionality of a prohibition on
the selling or giving free of charge, except to the COMELEC, of advertising space and commercial
time during an election period, it was emphasized that the grant of supervisory and regulatory
powers to the COMELEC under Section 4, Article IX-C of the Constitution, is limited to ensuring
equal opportunity, time, space, and the right to reply among candidates. Further, in Social Weather
Stations, Inc. v. COMELEC, the Court, notwithstanding the grant of supervisory and regulatory
powers to the COMELEC under Section 4, Article IX-C of the Constitution, declared unconstitutional
a regulation prohibiting the release of election surveys prior to the election since it "actually
suppresses a whole class of expression, while allowing the expression of opinion concerning the
same subject matter by newspaper columnists, radio and [television (TV)] commentators, armchair
theorists, and other opinion makers."
18

19

20

In the instant case, the Court further delineates the constitutional grant of supervisory and regulatory
powers to the COMELEC during an election period. As worded, Section 4, Article IX-C of the
Constitution only grants COMELEC supervisory and regulatory powers over the enjoyment or
utilization "of all franchises or permits for the operation," inter alia, of transportation and other public
utilities. The COMELECs constitutionally delegated powers of supervision and regulation do not
extend to the ownership per se of PUVs and transport terminals, but only to the franchise or permit
to operate the same.
1wphi1

There is a marked difference between the franchise or permit to operate transportation for the use of
the public and the ownership per se of the vehicles used for public transport. Thus, in Tatad v.
Garcia, Jr., the Court explained that:
21

What private respondent owns are the rail tracks, rolling stocks like the coaches, rail stations,
terminals and the power plant, not a public utility. While a franchise is needed to operate these
facilities to serve the public, they do not by themselves constitute a public utility. What constitutes a
public utility is not their ownership but their use to serve the public x x x.
The Constitution, in no uncertain terms, requires a franchise for the operation of a public utility.
However, it does not require a franchise before one can own the facilities needed to operate a public
utility so long as it does not operate them to serve the public.
xxxx
In law, there is a clear distinction between the "operation" of a public utility and the ownership of the
facilities and equipment used to serve the public.
xxxx
The right to operate a public utility may exist independently and separately from the ownership of the
facilities thereof. One can own said facilities without operating them as a public utility, or conversely,
one may operate a public utility without owning the facilities used to serve the public. The devotion of
property to serve the public may be done by the owner or by the person in control thereof who may
not necessarily be the owner thereof.

This dichotomy between the operation of a public utility and the ownership of the facilities used to
serve the public can be very well appreciated when we consider the transportation industry.
Enfranchised airline and shipping companies may lease their aircraft and vessels instead of owning
them themselves. (Emphases ours)
22

The franchise or permit to operate transportation utilities is a privilege granted to certain persons to
engage in the business of transporting people or goods; it does not refer to the ownership of the
vehicle per se. Ownership is a relation in private law by virtue of which a thing pertaining to one
person is completely subjected to his will in everything not prohibited by public law or the
concurrence with the rights of another. Thus, the owner of a thing has the right to enjoy and dispose
of a thing, without other limitations than those established by law.
23

24

One such limitation established by law, as regards PUVs, is the franchise or permit to operate.
However, a franchise or permit to operate a PUV is a limitation only on certain aspects of the
ownership of the vehicle pertinent to the franchise or permit granted, but not on the totality of the
rights of the owner over the vehicle. Otherwise stated, a restriction on the franchise or permit to
operate transportation utilities is necessarily a limitation on ownership, but a limitation on the rights
of ownership over the PUV is not necessarily a regulation on the franchise or permit to operate the
same.
A franchise or permit to operate transportation utilities pertains to considerations affecting the
operation of the PUV as such, e.g., safety of the passengers, routes or zones of operation,
maintenance of the vehicle, of reasonable fares, rates, and other charges, or, in certain cases,
nationality. Thus, a government issuance, which purports to regulate a franchise or permit to
operate PUVs, must pertain to the considerations affecting its operation as such. Otherwise, it
becomes a regulation or supervision not on the franchise or permit to operate, but on the very
ownership of the vehicle used for public transport.
25

The expression of ideas or opinion of an owner of a PUV, through the posting of election campaign
materials on the vehicle, does not affect considerations pertinent to the operation of the PUV. Surely,
posting a decal expressing support for a certain candidate in an election will not in any manner affect
the operation of the PUV as such. Regulating the expression of ideas or opinion in a PUV, through
the posting of an election campaign material thereon, is not a regulation of the franchise or permit to
operate, but a regulation on the very ownership of the vehicle.
The dichotomy between the regulation of the franchise or permit to operate of a PUV and that of the
very ownership thereof is better exemplified in the case of commercial advertisements posted on the
vehicle. A prohibition on the posting of commercial advertisements on a PUV is considered a
regulation on the ownership of the vehicle per se; the restriction on the enjoyment of the ownership
of the vehicle does not have any relation to its operation as a PUV.
On the other hand, prohibitions on the posting of commercial advertisements on windows of buses,
because it hinders police authorities from seeing whether the passengers inside are safe, is a
regulation on the franchise or permit to operate. It has a direct relation to the operation of the vehicle
as a PUV, i.e., the safety of the passengers.
In the same manner, the COMELEC does not have the constitutional power to regulate public
transport terminals owned by private persons. The ownership of transport terminals, even if made
available for use by the public commuters, likewise remains private. Although owners of public
transport terminals may be required by local governments to obtain permits in order to operate, the
permit only pertains to circumstances affecting the operation of the transport terminal as such. The
regulation of such permit to operate should similarly be limited to circumstances affecting the

operation of the transport terminal. A regulation of public transport terminals based on extraneous
circumstances, such as prohibiting the posting of election campaign materials thereon, amounts to
regulating the ownership of the transport terminal and not merely the permit to operate the same.
Accordingly, Section 7(g) items (5) and (6) of Resolution No. 9615 are not within the constitutionally
delegated power of the COMELEC to supervise or regulate the franchise or permit to operate of
transportation utilities. The posting of election campaign material on vehicles used for public
transport or on transport terminals is not only a form of political expression, but also an act of
ownership it has nothing to do with the franchise or permit to operate the PUV or transport
terminal.
The rulings in National Press Club
and Osmea v. COMELEC find no
application to this case.
26

The COMELEC pointed out that the issue presented in the instant case is akin to the Courts rulings
in National Press Club and Osmea. It explained that in both cases, the Court sustained Section
11(b) of R.A. No. 6646 or the Electoral Reforms Law of1997, which prohibits newspapers, radio
broadcasting or TV stations, and other mass media from selling or giving print space or airtime for
campaign or other political purposes, except to the COMELEC, during the election campaign. The
COMELEC averred that if the legislature can empower it to impose an advertising ban on mass
media, it could likewise empower it to impose a similar ban on PUVs and transport terminals.
The Court does not agree.
The restriction imposed under Section 11(b) of R.A. No. 6646 has a direct relation to the enjoyment
and utilization of the franchise or permit to operate of newspapers, radio broadcasting and TV
stations, and other mass media, which the COMELEC has the power to regulate pursuant to Section
4, Article IX-C of the Constitution. The print space or airtime is an integral part of the franchise or
permit to operate of mass media utilities. Thus, the restriction under Section 11(b) of R.A. No. 6646
is within the confines of the constitutionally delegated power of the COMELEC under Section 4,
Article IX-C of the Constitution.
On the other hand, the prohibition on the posting of election campaign materials under Section 7(g)
items (5) and (6) of Resolution No. 9615, as already explained, does not have any relation to the
franchise or permit of PUVs and transport terminals to operate as such and, hence, is beyond the
power of the COMELEC under Section 4,Article IX-C of the Constitution.
The restriction on free speech of
owners of PUVs and transport
terminals is not necessary to further
the stated governmental interest.
Section 7(g) items (5) and (6) of Resolution No. 9615 likewise failed to satisfy the fourth requisite of
a valid content-neutral regulation, i.e., the incidental restriction on freedom of expression is no
greater than is essential to the furtherance of that interest. There is absolutely no necessity to restrict
the right of the owners of PUVs and transport terminals to free speech to further the governmental
interest. While ensuring equality of time, space, and opportunity to candidates is an important and
substantial governmental interest and is essential to the conduct of an orderly election, this lofty aim
may be achieved sans any intrusion on the fundamental right of expression.

First, while Resolution No. 9615 was promulgated by the COMELEC to implement the provisions of
R.A. No. 9006, the prohibition on posting of election campaign materials on PUVs and transport
terminals was not provided for therein.
Second, there are more than sufficient provisions in our present election laws that would ensure
equal time, space, and opportunity to candidates in elections. Section 6 of R.A. No. 9006 mandates
that "all registered parties and bona fide candidates shall have equal access to media time and
space" and outlines the guidelines to be observed in the implementation thereof, viz: Section 6.
Equal Access to Media Time and Space. All registered parties and bona fide candidates shall have
equal access to media time and space. The following guidelines may be amplified on by the
COMELEC:
6.1 Print advertisements shall not exceed one-fourth (1/4) page in broad sheet and one-half (1/2)
page in tabloids thrice a week per newspaper, magazine or other publications, during the campaign
period.
6.2 a. Each bona fide candidate or registered political party for a nationally elective office shall be
entitled to not more than one hundred twenty (120) minutes of television advertisement and one
hundred eighty (180) minutes of radio advertisement whether by purchase or donation.
b. Each bona fide candidate or registered political party for a locally elective office shall be entitled to
not more than sixty (60) minutes of television advertisement and ninety(90) minutes of radio
advertisement whether by purchase or donation.
For this purpose, the COMELEC shall require any broadcast station or entity to submit to the
COMELEC a copy of its broadcast logs and certificates of performance for the review and
verification of the frequency, date, time and duration of advertisements broadcast for any candidate
or political party.
6.3 All mass media entities shall furnish the COMELEC with a copy of all contracts for advertising,
promoting or opposing any political party or the candidacy of any person for public office within five
(5) days after its signing. In every case, it shall be signed by the donor, the candidate concerned or
by the duly authorized representative of the political party.
6.4 No franchise or permit to operate a radio or television station shall be granted or issued,
suspended or cancelled during the election period. In all instances, the COMELEC shall supervise
the use and employment of press, radio and television facilities insofar as the placement of political
advertisements is concerned to ensure that candidates are given equal opportunities under equal
circumstances to make known their qualifications and their stand on public issues within the limits
set forth in the Omnibus Election Code and Republic Act No. 7l66 on election spending.
The COMELEC shall ensure that radio or television or cable television broadcasting entities shall not
allow the scheduling of any program or permit any sponsor to manifestly favor or oppose any
candidate or political party by unduly or repeatedly referring to or including said candidate and/or
political party in such program respecting, however, in all instances the right of said broadcast
entities to air accounts of significant news or news worthy events and views on matters of public
interest.
6.5 All members of media, television, radio or print, shall scrupulously report and interpret the news,
taking care not to suppress essential facts nor to distort the truth by omission or improper emphasis.
They shall recognize the duty to air the other side and the duty to correct substantive errors
promptly.

6.6 Any mass media columnist, commentator, announcer, reporter, on-air correspondent or
personality who is a candidate for any elective public office or is a campaign volunteer for or
employed or retained in any capacity by any candidate or political party shall be deemed resigned, if
so required by their employer, or shall take a leave of absence from his/her work as such during the
campaign period: Provided, That any media practitioner who is an official of a political party or a
member of the campaign staff of a candidate or political party shall not use his/her time or space to
favor any candidate or political party.
6.7 No movie, cinematograph or documentary portraying the life or biography of a candidate shall be
publicly exhibited in a theater, television station or any public forum during the campaign period.
6.8 No movie, cinematograph or documentary portrayed by an actor or media personality who is
himself a candidate shall likewise be publicly exhibited in a theater or any public forum during the
campaign period.
Section 9 of R.A. No. 9006 authorizes political parties and party-list groups and independent
candidates to erect common poster areas and candidates to post lawful election campaign materials
in private places, with the consent of the owner thereof, and in public places or property, which are
allocated equitably and impartially.
Further, Section 13 of R.A. No. 7166 provides for the authorized expenses of registered political
parties and candidates for every voter; it affords candidates equal opportunity in their election
campaign by regulating the amount that should be spent for each voter.
27

28

Likewise, Section 14 of R.A. No. 7166 requires all candidates and treasurers of registered political
parties to submit a statement of all contributions and expenditures in connection with the election.
Section 14 is a post-audit measure that aims to ensure that the candidates did not overspend in their
election campaign, thereby enforcing the grant of equal opportunity to candidates under Section 13.
29

A strict implementation of the foregoing provisions of law would suffice to achieve the governmental
interest of ensuring equal time, space, and opportunity for candidates in elections. There is thus no
necessity of still curtailing the right to free speech of the owners of PUVs and transport terminals by
prohibiting them from posting election campaign materials on their properties.
Section 7(g) items (5) and (6) of
Resolution No. 9615 are not
justified under the captive-audience
doctrine.
The COMELEC further points out that PUVs and transport terminals hold a "captive audience"
commuters who have no choice but be subjected to the blare of political propaganda. The
COMELEC further claims that while owners of privately owned PUVs and transport terminals have a
right to express their views to those who wish to listen, they have no right to force their message
upon an audience incapable of declining to receive it.
The COMELECs claim is untenable.
The captive-audience doctrine states that when a listener cannot, as a practical matter, escape from
intrusive speech, the speech can be restricted. The "captive-audience" doctrine recognizes that a
listener has a right not to be exposed to an unwanted message in circumstances in which the
communication cannot be avoided.
30

31

A regulation based on the captive-audience doctrine is in the guise of censorship, which undertakes
selectively to shield the public from some kinds of speech on the ground that they are more offensive
than others. Such selective restrictions have been upheld only when the speaker intrudes on the
privacy of the home or the degree of captivity makes it either impossible or impractical for the
unwilling viewer or auditor to avoid exposure.
32

In Consolidated Edison Co. v. Public Service Commission, the Supreme Court of the United States
of America (U.S. Supreme Court) struck down the order of New York Public Service Commission,
which prohibits public utility companies from including inserts in monthly bills discussing
controversial issues of public policy. The U.S. Supreme Court held that "[t]he prohibition cannot be
justified as being necessary to avoid forcing appellants views on a captive audience, since
customers may escape exposure to objectionable material simply by throwing the bill insert into a
wastebasket."
33

34

Similarly, in Erznoznik v. City of Jacksonville, the U.S. Supreme Court nullified a city ordinance,
which made it a public nuisance and a punishable offense for a drive-in movie theater to exhibit films
containing nudity, when the screen is visible from a public street or place. The U.S. Supreme Court
opined that the degree of captivity is not so great as to make it impracticable for an unwilling viewer
to avoid exposure, thus:
35

The Jacksonville ordinance discriminates among movies solely on the basis of content. Its effect is to
deter drive-in theaters from showing movies containing any nudity, however innocent or even
educational. This discrimination cannot be justified as a means of preventing significant intrusions on
privacy. The ordinance seeks only to keep these films from being seen from public streets and
places where the offended viewer readily can avert his eyes. In short, the screen of a drive-in theater
is not "so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it." x x x
Thus, we conclude that the limited privacy interest of persons on the public streets cannot justify this
censorship of otherwise protected speech on the basis of its content. (Emphasis ours)
36

Thus, a government regulation based on the captive-audience doctrine may not be justified if the
supposed "captive audience" may avoid exposure to the otherwise intrusive speech. The prohibition
under Section 7(g) items (5) and (6) of Resolution No. 9615 is not justified under the captiveaudience doctrine; the commuters are not forced or compelled to read the election campaign
materials posted on PUVs and transport terminals. Nor are they incapable of declining to receive the
messages contained in the posted election campaign materials since they may simply avert their
eyes if they find the same unbearably intrusive.
The COMELEC, in insisting that it has the right to restrict the posting of election campaign materials
on PUVs and transport terminals, cites Lehman v. City of Shaker Heights, a case decided by the
U.S. Supreme Court. In Lehman, a policy of the city government, which prohibits political
advertisements on government-run buses, was upheld by the U.S. Supreme Court. The U.S.
Supreme Court held that the advertising space on the buses was not a public forum, pointing out
that advertisement space on government-run buses, "although incidental to the provision of public
transportation, is a part of commercial venture." In the same way that other commercial ventures
need not accept every proffer of advertising from the general public, the citys transit system has the
discretion on the type of advertising that may be displayed on its vehicles.
37

38

Concurring in the judgment, Justice Douglas opined that while Lehman, a candidate for state office
who sought to avail himself of advertising space on government-run buses, "clearly has a right to
express his views to those who wish to listen, he has no right to force his message upon an
audience incapable of declining to receive it." Justice Douglas concluded: "the right of the
commuters to be free from forced intrusions on their privacy precludes the city from transforming its
39

vehicles of public transportation into forums for the dissemination of ideas upon this captive
audience."
40

The COMELECs reliance on Lehman is utterly misplaced.

In Lehman, the political advertisement was intended for PUVs owned by the city government; the
city government, as owner of the buses, had the right to decide which type of advertisements would
be placed on its buses. The U.S. Supreme Court gave primacy to the city governments exercise of
its managerial decision, viz:
Revenue earned from long-term commercial advertising could be jeopardized by a requirement that
short-term candidacy or issue-oriented advertisements be displayed on car cards. Users would be
subjected to the blare of political propaganda. There could be lurking doubts about favoritism, and
sticky administrative problems might arise in parceling out limited space to eager politicians. In these
circumstances, the managerial decision to limit car card space to innocuous and less controversial
commercial and service-oriented advertising does not rise to the dignity of First Amendment
violation. Were we to hold to the contrary, display cases in public hospitals, libraries, office buildings,
military compounds, and other public facilities immediately would become Hyde Parks open to every
would be pamphleteer and politician. This the Constitution does not require. (Emphasis ours)
41

Lehman actually upholds the freedom of the owner of the utility vehicles, i.e., the city government, in
choosing the types of advertisements that would be placed on its properties. In stark contrast,
Section 7(g) items (5) and (6) of Resolution No. 9615 curtail the choice of the owners of PUVs and
transport terminals on the advertisements that may be posted on their properties.
Also, the city government in Lehman had the right, nay the duty, to refuse political advertisements on
their buses. Considering that what were involved were facilities owned by the city government,
impartiality, or the appearance thereof, was a necessity. In the instant case, the ownership of PUVs
and transport terminals remains private; there exists no valid reason to suppress their political views
by proscribing the posting of election campaign materials on their properties.
Prohibiting owners of PUVs and
transport terminals from posting
election campaign materials violates
the equal protection clause.
Section 7(g) items (5) and (6) of Resolution No. 9615 do not only run afoul of the free speech clause,
but also of the equal protection clause. One of the basic principles on which this government was
founded is that of the equality of right, which is embodied in Section 1, Article III of the 1987
Constitution. "Equal protection requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other
words, should not be treated differently, so as to give undue favor to some and unjustly discriminate
against others."
42

43

"The equal protection clause is aimed at all official state actions, not just those of the legislature. Its
inhibitions cover all the departments of the government including the political and executive
departments, and extend to all actions of a state denying equal protection of the laws, through
whatever agency or whatever guise is taken."
44

Nevertheless, the guaranty of equal protection of the laws is not a guaranty of equality in the
application of the laws to all citizens of the state. Equality of operation of statutes does not mean
their indiscriminate operation on persons merely as such, but on persons according to the

circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does
not require that things, which are different in fact, be treated in law as though they were the same.
The equal protection clause does not forbid discrimination as to things that are different.
45

In order that there can be valid classification so that a discriminatory governmental act may pass the
constitutional norm of equal protection, it is necessary that the four requisites of valid classification
be complied with, namely: (1) it must be based upon substantial distinctions; (2) it must be germane
to the purposes of the law; (3) it must not be limited to existing conditions only; and (4) it must apply
equally to all members of the class.
46

It is conceded that the classification under Section 7(g) items (5) and (6) of Resolution No. 9615 is
not limited to existing conditions and applies equally to the members of the purported class.
However, the classification remains constitutionally impermissible since it is not based on substantial
distinction and is not germane to the purpose of the law.
A distinction exists between PUVs and transport terminals and private vehicles and other properties
in that the former, to be considered as such, needs to secure from the government either a franchise
or a permit to operate. Nevertheless, as pointed out earlier, the prohibition imposed under Section
7(g) items (5) and (6) of Resolution No. 9615 regulates the ownership per se of the PUV and
transport terminals; the prohibition does not in any manner affect the franchise or permit to operate
of the PUV and transport terminals.
As regards ownership, there is no substantial distinction between owners of PUVs and transport
terminals and owners of private vehicles and other properties. As already explained, the ownership
of PUVs and transport terminals, though made available for use by the public, remains private. If
owners of private vehicles and other properties are allowed to express their political ideas and
opinion by posting election campaign materials on their properties, there is no cogent reason to deny
the same preferred right to owners of PUVs and transport terminals. In terms of ownership, the
distinction between owners of PUVs and transport terminals and owners of private vehicles and
properties is merely superficial. Superficial differences do not make for a valid classification.
47

The fact that PUVs and transport terminals are made available for use by the public is likewise not
substantial justification to set them apart from private vehicles and other properties. Admittedly, any
election campaign material that would be posted on PUVs and transport terminals would be seen by
many people. However, election campaign materials posted on private vehicles and other places
frequented by the public, e.g., commercial establishments, would also be seen by many people.
Thus, there is no reason to single out owners of PUVs and transport terminals in the prohibition
against posting of election campaign materials.
Further, classifying owners of PUVs and transport terminals apart from owners of private vehicles
and other properties bears no relation to the stated purpose of Section 7(g) items(5) and (6) of
Resolution No. 9615, i.e., to provide equal time, space and opportunity to candidates in elections. To
stress, PUVs and transport terminals are private properties. Indeed, the nexus between the
restriction on the freedom of expression of owners of PUVs and transport terminals and the
governments interest in ensuring equal time, space, and opportunity for candidates in elections was
not established by the COMELEC.
In sum, Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 violate the
free speech clause; they are content-neutral regulations, which are not within the constitutional
power of the COMELEC issue and are not necessary to further the objective of ensuring equal time,
space and opportunity to the candidates. They are not only repugnant to the free speech clause, but

are also violative of the equal protection clause, as there is no substantial distinction between
owners of PUV s and transport terminals and owners of private vehicles and other properties.
On a final note, it bears stressing that the freedom to advertise one's political candidacy is clearly a
significant part of our freedom of expression. A restriction on this freedom without rhyme or reason is
a violation of the most valuable feature of the democratic way of life. WHEREFORE, in light of the
foregoing disquisitions, the instant petition is hereby GRANTED. Section 7(g) items (5) and (6), in
relation to Section 7(f), of Resolution No. 9615 issued by the Commission on Elections are hereby
declared NULL and VOID for being repugnant to Sections 1 and 4, Article III of the 1987
Constitution.
48

SO ORDERED.

[G.R. No. 136781. October 6, 2000]

VETERANS FEDERATION PARTY, ALYANSANG BAYANIHAN NG MGA

MAGSASAKA, MANGGAGAWANG BUKID AT MANGINGISDA,
ADHIKAIN AT KILUSAN NG ORDINARYONG TAO PARA SA
LUPA, PABAHAY AT KAUNLARAN, and LUZON FARMERS
PARTY, petitioners, vs.COMMISSION ON ELECTIONS, PAG-ASA,
SENIOR CITIZENS, AKAP AKSYON, PINATUBO, NUPA, PRP,
AMIN, PAG-ASA, MAHARLIKA, OCW-UNIFIL, PCCI, AMMAKATIPUNAN, KAMPIL, BANTAY-BAYAN, AFW, ANG LAKAS OCW,
WOMEN-POWER, INC., FEJODAP, CUP, VETERANS CARE, 4L,
AWATU, PMP, ATUCP, NCWP, ALU, BIGAS, COPRA, GREEN,
ANAKBAYAN, ARBA, MINFA, AYOS, ALL COOP, PDP-LABAN,
KATIPUNAN, ONEWAY PRINT, AABANTE KA PILIPINAS -- All
Being Party-List Parties/Organizations -- and Hon. MANUEL B.
VILLAR, JR. in His Capacity as Speaker of the House of
Representatives, respondents.

[G.R. No. 136786. October 6, 2000]

AKBAYAN! (CITIZENS' ACTION PARTY), ADHIKAIN AT KILUSAN NG

ORDINARYONG TAO PARA SA LUPA, PABAHAY AT

KAUNLARAN (AKO), and ASSOCIATION OF PHILIPPINE

ELECTRIC
COOPERATIVES
(APEC), petitioners,
vs. COMMISSION ON ELECTIONS (COMELEC), HOUSE OF
REPRESENTATIVES represented by Speaker Manuel B. Villar,
PAG-ASA, SENIOR CITIZENS, AKAP, AKSYON, PINATUBO,
NUPA, PRP, AMIN, MAHARLIKA, OCW, UNIFIL, PCCI, AMMAKATIPUNAN, KAMPIL, BANTAY-BAYAN, AFW, ANG LAKAS OCW,
WOMENPOWER INC., FEJODAP, CUP, VETERANS CARE, FOUR
"L", AWATU, PMP, ATUCP, NCWP, ALU, BIGAS, COPRA, GREEN,
ANAK-BAYAN, ARBA, MINFA, AYOS, ALL COOP, PDP-LABAN,
KATIPUNAN,
ONEWAY
PRINT,
AABANTE
KA
PILIPINAS, respondents.

[G.R. No. 136795. October 6, 2000]

ALAGAD (PARTIDO NG MARALITANG-LUNGSOD), NATIONAL

CONFEDERATION
OF
SMALL
COCONUT
FARMERS'
ORGANIZATIONS (NCSFCO), and LUZON FARMERS' PARTY
(BUTIL), petitioners, vs. COMMISSION ON ELECTIONS, SENIOR
CITIZENS, AKAP, AKSYON, PINATUBO, NUPA, PRP, AMIN, PAGASA, MAHARLIKA, OCW, UNIFIL, PCCI, AMMA-KATIPUNAN,
KAMPIL,
BANTAY-BAYAN,
AFW,
ANG
LAKAS
OCW,
WOMENPOWER INC., FEJODAP, CUP, VETERANS CARE, 4L,
AWATU, PMP, ATUCP, NCWP, ALU, BIGAS, COPRA, GREEN,
ANAK-BAYAN, ARBA, MINFA, AYOS, ALL COOP, PDP-LABAN,
KATIPUNAN,
ONEWAY
PRINT,
and
AABANTE
KA
PILIPINAS, respondents.
DECISION
PANGANIBAN, J.:*
Prologue
To determine the winners in a Philippine-style party-list election, the
Constitution and Republic Act (RA) No. 7941 mandate at least four inviolable
parameters. These are:

First, the twenty percent allocation - the combined number of all partylist congressmen shall not exceed twenty percent of the total membership of
the House of Representatives, including those elected under the party list.
Second, the two percent threshold - only those parties garnering a
minimum of two percent of the total valid votes cast for the party-list system
are qualified to have a seat in the House of Representatives;
Third, the three-seat limit - each qualified party, regardless of the number
of votes it actually obtained, is entitled to a maximum of three seats; that is,
one qualifying and two additional seats.
Fourth, proportional representation - the additional seats which a
qualified party is entitled to shall be computed in proportion to their total
number of votes.
Because the Comelec violated these legal parameters, the assailed
Resolutions must be struck down for having been issued in grave abuse of
discretion. The poll body is mandated to enforce and administer electionrelated laws. It has no power to contravene or amend them. Neither does it
have authority to decide the wisdom, propriety or rationality of the acts of
Congress.
Its bounden duty is to craft rules, regulations, methods and formulas to
implement election laws -- not to reject, ignore, defeat, obstruct or circumvent
them.
In fine, the constitutional introduction of the party-list system - a normal
feature of parliamentary democracies - into our presidential form of
government, modified by unique Filipino statutory parameters, presents new
paradigms and novel questions, which demand innovative legal solutions
convertible into mathematical formulations which are, in turn, anchored on
time-tested jurisprudence.
The Case
Before the Court are three consolidated Petitions for Certiorari (with
applications for the issuance of a temporary restraining order or writ of
preliminary injunction) under Rule 65 of the Rules of Court, assailing (1) the
October 15, 1998 Resolution[1] of the Commission on Elections (Comelec),
Second Division, in Election Matter 98-065; [2] and (2) the January 7, 1999
Resolution[3] of the Comelec en banc, affirming the said disposition. The
assailed Resolutions ordered the proclamation of thirty-eight (38) additional

party-list representatives "to complete the full complement of 52 seats in the

House of Representatives as provided under Section 5, Article VI of the 1987
Constitution and R.A. 7941.
The Facts and the Antecedents
Our 1987 Constitution introduced a novel feature into our presidential
system of government -- the party-list method of representation. Under this
system, any national, regional or sectoral party or organization registered with
the Commission on Elections may participate in the election of party-list
representatives who, upon their election and proclamation, shall sit in the
House of Representatives as regular members.[4] In effect, a voter is given two
(2) votes for the House -- one for a district congressman and another for a
party-list representative.[5]
Specifically, this system of representation is mandated by Section 5, Article
VI of the Constitution, which provides:
Sec. 5. (1) The House of Representatives shall be composed of not more than two
hundred and fifty members, unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective inhabitants, and on the
basis of a uniform and progressive ratio, and those who, as provided by law, shall be
elected by a party-list system of registered national, regional, and sectoral parties or
organizations.
(2) The party-list representatives shall constitute twenty per centum of the total
number of representatives including those under the party-list. For three consecutive
terms after the ratification of this Constitution, one half of the seats allocated to partylist representatives shall be filled, as provided by law, by selection or election from the
labor, peasant, urban poor, indigenous cultural communities, women, youth, and such
other sectors as may be provided by law, except the religious sector.
Complying with its constitutional duty to provide by law the selection or
election of party-list representatives, Congress enacted RA 7941 on March 3,
1995. Under
this
statutes
policy declaration,
the
State
shall
"promote proportional representation in the election of representatives to the
House of Representatives through a party-list system of registered national,
regional and sectoral parties or organizations or coalitions thereof, which will
enable Filipino citizens belonging to marginalized and underrepresented
sectors, organizations and parties, and who lack well-defined political

constituencies but who could contribute to the formulation and enactment of

appropriate legislation that will benefit the nation as a whole, to become
members of the House of Representatives. Towards this end, the State shall
develop and guarantee a full, free and open party system in order to attain the
broadest possible representation of party, sectoral or group interests in the
House of Representatives by enhancing their chances to compete for and win
seats in the legislature, and shall provide the simplest scheme possible.
(italics ours.)
The requirements for entitlement to a party-list seat in the House are
prescribed by this law (RA 7941) in this wise:
Sec. 11. Number of Party-List Representatives. -- The party-list representatives shall
constitute twenty per centum (20%) of the total number of the members of the House
of Representatives including those under the party-list.
For purposes of the May 1998 elections, the first five (5) major political parties on the
basis of party representation in the House of Representatives at the start of the Tenth
Congress of the Philippines shall not be entitled to participate in the party-list system.
In determining the allocation of seats for the second vote, the following procedure
shall be observed:
(a) The parties, organizations, and coalitions shall be ranked from the highest to the
lowest based on the number of votes they garnered during the elections.
(b) The parties, organizations, and coalitions receiving at least two percent (2%) of the
total votes cast for the party-list system shall be entitled to one seat each; Provided,
That those garnering more than two percent (2%) of the votes shall be entitled to
additional seats in proportion to their total number of votes; Provided, finally, That
each party, organization, or coalition shall be entitled to not more than three (3) seats.
Pursuant to Section 18 of RA 7941, the Comelec en banc promulgated
Resolution No. 2847, prescribing the rules and regulations governing the
election of party-list representatives through the party-list system.
Election of the Fourteen Party-List Representatives
On May 11, 1998, the first election for party-list representation was held
simultaneously with the national elections. A total of one hundred twenty-three
(123) parties, organizations and coalitions participated. On June 26, 1998, the

Comelec en banc proclaimed thirteen (13) party-list representatives from

twelve (12) parties and organizations, which had obtained at least two percent
of the total number of votes cast for the party-list system. Two of the
proclaimed representatives belonged to Petitioner APEC, which obtained 5.5
percent of the votes. The proclaimed winners and the votes cast in their favor
were as follows:[6]
Party/Organization/ Number of Percentage of Nominees
Coalition Votes Obtained Total Votes
1. APEC 503,487 5.5% Rene M. Silos
Melvyn D. Eballe
2. ABA 321,646 3.51% Leonardo Q. Montemayor
3. ALAGAD 312,500 3.41% Diogenes S. Osabel
4. VETERANS 304,802 3.33% Eduardo P. Pilapil
FEDERATION
5. PROMDI 255,184 2.79% Joy A.G. Young
6. AKO 239,042 2.61% Ariel A. Zartiga
7. NCSCFO 238,303 2.60% Gorgonio P. Unde
8. ABANSE! PINAY 235,548 2.57% Patricia M. Sarenas
9. AKBAYAN 232,376 2.54% Loreta Ann P. Rosales
10. BUTIL 215,643 2.36% Benjamin A. Cruz
11. SANLAKAS 194,617 2.13% Renato B. Magtubo
12. COOP-NATCCO 189,802 2.07% Cresente C. Paez
After passing upon the results of the special elections held on July 4, 18,
and 25, 1998, the Comelec en banc further determined that COCOFED
(Philippine Coconut Planters Federation, Inc.) was entitled to one party-list
seat for having garnered 186,388 votes, which were equivalent to 2.04
percent of the total votes cast for the party-list system. Thus, its first nominee,
Emerito S. Calderon, was proclaimed on September 8, 1998 as the 14th
party-list representative.[7]
On July 6, 1998, PAG-ASA (Peoples Progressive Alliance for Peace and
Good Government Towards Alleviation of Poverty and Social Advancement)
filed with the Comelec a "Petition to Proclaim [the] Full Number of Party-List
Representatives provided by the Constitution." It alleged that the filling up of
the twenty percent membership of party-list representatives in the House of
Representatives, as provided under the Constitution, was mandatory. It further
claimed that the literal application of the two percent vote requirement and the
three-seat limit under RA 7941 would defeat this constitutional provision, for
only 25 nominees would be declared winners, short of the 52 party-list
representatives who should actually sit in the House.

Thereafter, nine other party-list organizations[8] filed their respective

Motions for Intervention, seeking the same relief as that sought by PAG-ASA
on substantially the same grounds. Likewise, PAG-ASAs Petition was joined
by other party-list organizations in a Manifestation they filed on August 28,
1998. These organizations were COCOFED, Senior Citizens, AKAP,
AKSYON, PINATUBO, NUPA, PRP, AMIN, PCCI, AMMA-KATIPUNAN, OCWUNIFIL, KAMPIL, MAHARLIKA, AFW, Women Power, Inc., Ang Lakas OCW,
FEJODAP, CUP, Veterans Care, Bantay Bayan, 4L, AWATU, PMP, ATUCP,
ALU and BIGAS.
On October 15, 1998, the Comelec Second Division promulgated the
present assailed Resolution granting PAG-ASA's Petition. It also ordered the
proclamation of herein 38 respondents who, in addition to the 14 already
sitting, would thus total 52 party-list representatives. It held that "at all times,
the total number of congressional[9] seats must be filled up by eighty (80%)
percent district representatives and twenty (20%) percent party-list
representatives." In allocating the 52 seats, it disregarded the two percentvote requirement prescribed under Section 11 (b) of RA 7941. Instead, it
identified three "elements of the party-list system," which should supposedly
determine "how the 52 seats should be filled up."First, "the system was
conceived to enable the marginalized sectors of the Philippine society to be
represented in the House of Representatives." Second, "the system should
represent the broadest sectors of the Philippine society." Third, "it should
encourage [the] multi-party system. (Boldface in the original.) Considering
these elements, but ignoring the two percent threshold requirement of RA
7941, it concluded that "the party-list groups ranked Nos. 1 to 51 x x x should
have at least one representative. It thus disposed as follows:
"WHEREFORE, by virtue of the powers vested in it by the Constitution, the Omnibus
Election Code (B.P. 881), Republic Act No. 7941 and other election laws, the
Commission (Second Division) hereby resolves to GRANT the instant petition and
motions for intervention, to include those similarly situated.
ACCORDINGLY, the nominees from the party-list hereinbelow enumerated based on
the list of names submitted by their respective parties, organizations and coalitions are
PROCLAIMED as party-list representatives, to wit:
1. SENIOR CITIZENS
2. AKAP
3. AKSYON
4. PINATUBO

5. NUPA
6. PRP
7. AMIN
8. PAG-ASA
9. MAHARLIKA
10. OCW-UNIFIL
11. FCL
12. AMMA-KATIPUNAN
13. KAMPIL
14. BANTAY BAYAN
15. AFW
16. ANG LAKAS OCW
17. WOMENPOWER, INC.
18. FEJODAP
19. CUP
20. VETERANS CARE
21. 4L
22. AWATU
23. PMP
24. ATUCP
25. NCWP
26. ALU
27. BIGAS
28. COPRA
29. GREEN
30. ANAKBAYAN
31. ARBA
32. MINFA
33. AYOS
34. ALL COOP
35. PDP-LABAN
36. KATIPUNAN
37. ONEWAY PRINT

38. AABANTE KA PILIPINAS

to complete the full complement of 52 seats in the House of Representatives as

provided in Section 5, Article VI of the 1987 Constitution and R.A. 7941.
The foregoing disposition sums up a glaring bit of inconsistency and flipflopping. In its Resolution No. 2847 dated June 25, 1996, the Comelec en
banc had unanimously promulgated a set of Rules and Regulations Governing
the Election of x x x Party-List Representatives Through the Party-List
System. Under these Rules and Regulations, one additional seat shall be
given for every two percent of the vote, a formula the Comelec illustrated in its
Annex A. It apparently relied on this method when it proclaimed the 14
incumbent party-list solons (two for APEC and one each for the 12 other
qualified parties). However, for inexplicable reasons, it abandoned said
unanimous Resolution and proclaimed, based on its three elements, the
Group of 38 private respondents.[10]
The twelve (12) parties and organizations, which had earlier been
proclaimed winners on the basis of having obtained at least two percent of the
votes cast for the party-list system, objected to the proclamation of the 38
parties and filed separate Motions for Reconsideration. They contended that
(1) under Section 11 (b) of RA 7941, only parties, organizations or coalitions
garnering at least two percent of the votes for the party-list system were
entitled to seats in the House of Representatives; and (2) additional seats, not
exceeding two for each, should be allocated to those which had garnered the
two percent threshold in proportion to the number of votes cast for the winning
parties, as provided by said Section 11.
Ruling of the Comelec En Banc
Noting that all the parties -- movants and oppositors alike - had agreed
that the twenty percent membership of party-list representatives in the House
"should be filled up, the Comelec en banc resolved only the issue concerning
the apportionment or allocation of the remaining seats. In other words, the
issue was: Should the remaining 38 unfilled seats allocated to party-list solons
be given (1) to the thirteen qualified parties that had each garnered at least
two percent of the total votes, or (2) to the Group of 38 - herein private
respondents - even if they had not passed the two percent threshold?
The poll body held that to allocate the remaining seats only to those who
had hurdled the two percent vote requirement "will mean the concentration of

representation of party, sectoral or group interests in the House of

Representatives to thirteen organizations representing two political parties,
three coalitions and four sectors: urban poor, veterans, women and peasantry
x x x. Such strict application of the 2% 'threshold' does not serve the essence
and object of the Constitution and the legislature -- to develop and guarantee
a full, free and open party system in order to attain the broadest possible
representation of party, sectoral or group interests in the House of
Representatives x x x. Additionally, it "will also prevent this Commission from
complying with the constitutional and statutory decrees for party-list
representatives to compose 20% of the House of Representatives.
Thus, in its Resolution dated January 7, 1999, the Comelec en banc, by a
razor-thin majority -- with three commissioners concurring[11] and two
members[12] dissenting -- affirmed the Resolution of its Second Division. It,
however, held in abeyance the proclamation of the 51st party (AABANTE KA
PILIPINAS), "pending the resolution of petitions for correction of manifest
errors.
Without expressly declaring as unconstitutional or void the two percent
vote requirement imposed by RA 7941, the Commission blithely rejected and
circumvented its application, holding that there were more important
considerations than this statutory threshold.
Consequently, several petitions for certiorari, prohibition and mandamus,
with prayers for the issuance of temporary restraining orders or writs of
preliminary injunction, were filed before this Court by the parties and
organizations that had obtained at least two per cent of the total votes cast for
the party-list system.[13] In the suits, made respondents together with the
Comelec were the 38 parties, organizations and coalitions that had been
declared by the poll body as likewise entitled to party-list seats in the House of
Representatives.Collectively, petitioners sought the proclamation of additional
representatives from each of their parties and organizations, all of which had
obtained at least two percent of the total votes cast for the party-list system.
On January 12, 1999, this Court issued a Status Quo Order directing the
Comelec to CEASE and DESIST from constituting itself as a National Board of
Canvassers on 13 January 1999 or on any other date and proclaiming as
winners the nominees of the parties, organizations and coalitions enumerated
in the dispositive portions of its 15 October 1998 Resolution or its 7 January
1999 Resolution, until further orders from this Court.
On July 1, 1999, oral arguments were heard from the parties. Atty.
Jeremias U. Montemayor appeared for petitioners in GR No. 136781; Atty.
Gregorio A. Andolana, for petitioners in GR No. 136786; Atty. Rodante D.

Marcoleta for petitioners in GR No. 136795; Attys. Ricardo Blancaflor and

Pete Quirino Quadra, for all the private respondents; Atty. Porfirio V. Sison for
Intervenor NACUSIP; and Atty. Jose P. Balbuena for Respondent
Comelec. Upon invitation of the Court, retired Comelec Commissioner
Regalado E. Maambong acted as amicus curiae. Solicitor General Ricardo P.
Galvez appeared, not for any party but also as a friend of the Court.
Thereafter, the parties and the amici curiae were required to submit their
respective Memoranda in amplification of their verbal arguments.[14]
The Issues
The Court believes, and so holds, that the main question of how to
determine the winners of the subject party-list election can be fully settled by
addressing the following issues:
1. Is the twenty percent allocation for party-list representatives mentioned in Section 5
(2), Article VI of the Constitution, mandatory or is it merely a ceiling? In other words,
should the twenty percent allocation for party-list solons be filled up completely and
all the time?
2. Are the two percent threshold requirement and the three-seat limit provided in
Section 11 (b) of RA 7941 constitutional?
3. If the answer to Issue 2 is in the affirmative, how should the additional seats of a
qualified party be determined?
The Courts Ruling
The Petitions are partly meritorious. The Court agrees with petitioners that
the assailed Resolutions should be nullified, but disagrees that they should all
be granted additional seats.
First Issue: Whether the Twenty Percent Constitutional Allocation Is
Mandatory
The pertinent provision[15] of the Constitution on the composition of the
House of Representatives reads as follows:

Sec. 5. (1) The House of Representatives shall be composed of not more than two
hundred and fifty members, unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective inhabitants, and on the
basis of a uniform and progressive ratio, and those who, as provided by law, shall be
elected by a party-list system of registered national, regional, and sectoral parties or
organizations.
(2) The party-list representatives shall constitute twenty per centum of the total
number of representatives including those under the party-list. For three consecutive
terms after the ratification of this Constitution, one half of the seats allocated to partylist representatives shall be filled, as provided by law, by selection or election from the
labor, peasant, urban poor, indigenous cultural communities, women, youth, and such
other sectors as may be provided by law, except the religious sector.
Determination of the Total Number of Party-List Lawmakers
Clearly, the Constitution makes the number of district representatives the
determinant in arriving at the number of seats allocated for party-list
lawmakers, who shall comprise "twenty per centum of the total number of
representatives including those under the party-list." We thus translate this
legal provision into a mathematical formula, as follows:
No. of district representatives
---------------------------------- x .20 = No. of party-list
.80 representatives
This formulation[16] means that any increase in the number of district
representatives, as may be provided by law, will necessarily result in a
corresponding increase in the number of party-list seats. To illustrate,
considering that there were 208 district representatives to be elected during
the 1998 national elections, the number of party-list seats would be 52,
computed as follows:
208
-------- x .20 = 52
.80
The foregoing computation of seat allocation is easy enough to
comprehend. The problematic question, however, is this: Does the
Constitution require all such allocated seats to be filled up all the time and
under all circumstances? Our short answer is No.

Twenty Percent Allocation a Mere Ceiling

The Constitution simply states that "[t]he party-list representatives shall
constitute twenty per centum of the total number of representatives including
those under the party-list.
According to petitioners, this percentage is a ceiling; the mechanics by
which it is to be filled up has been left to Congress. In the exercise of its
prerogative, the legislature enacted RA 7941, by which it prescribed that a
party, organization or coalition participating in the party-list election must
obtain at least two percent of the total votes cast for the system in order to
qualify for a seat in the House of Representatives.
Petitioners further argue that the constitutional provision must be
construed together with this legislative requirement. If there is no sufficient
number of participating parties, organizations or coalitions which could hurdle
the two percent vote threshold and thereby fill up the twenty percent party-list
allocation in the House, then naturally such allocation cannot be filled up
completely. The Comelec cannot be faulted for the "incompleteness," for
ultimately the voters themselves are the ones who, in the exercise of their
right of suffrage, determine who and how many should represent them.
On the other hand, Public Respondent Comelec, together with the
respondent parties, avers that the twenty percent allocation for party-list
lawmakers is mandatory, and that the two percent vote requirement in RA
7941 is unconstitutional, because its strict application would make it
mathematically impossible to fill up the House party-list complement.
We rule that a simple reading of Section 5, Article VI of the Constitution,
easily conveys the equally simple message that Congress was vested with the
broad power to define and prescribe the mechanics of the party-list system of
representation. The Constitution explicitly sets down only the percentage of
the total membership in the House of Representatives reserved for party-list
representatives.
In the exercise of its constitutional prerogative, Congress enacted RA
7941. As said earlier, Congress declared therein a policy to promote
"proportional representation" in the election of party-list representatives in
order to enable Filipinos belonging to the marginalized and underrepresented
sectors to contribute legislation that would benefit them. It however deemed it
necessary to require parties, organizations and coalitions participating in the
system to obtain at least two percent of the total votes cast for the party-list
system in order to be entitled to a party-list seat. Those garnering more than

this percentage could have "additional seats in proportion to their total number
of votes. Furthermore, no winning party, organization or coalition can have
more than three seats in the House of Representatives. Thus the relevant
portion of Section 11(b) of the law provides:
(b) The parties, organizations, and coalitions receiving at least two percent (2%) of the
total votes cast for the party-list system shall be entitled to one seat each; Provided,
That those garnering more than two percent (2%) of the votes shall be entitled to
additional seats in proportion to their total number of votes; Provided, finally, That
each party, organization, or coalition shall be entitled to not more than three (3) seats.
Considering the foregoing statutory requirements, it will be shown
presently that Section 5 (2), Article VI of the Constitution is not mandatory. It
merely provides a ceiling for party-list seats in Congress.
On the contention that a strict application of the two percent threshold may
result in a mathematical impossibility, suffice it to say that the prerogative to
determine whether to adjust or change this percentage requirement rests in
Congress.[17] Our task now, as should have been the Comelecs, is not to find
fault in the wisdom of the law through highly unlikely scenarios of clinical
extremes, but to craft an innovative mathematical formula that can, as far as
practicable, implement it within the context of the actual election process.
Indeed, the function of the Supreme Court, as well as of all judicial and
quasi-judicial agencies, is to apply the law as we find it, not to reinvent or
second-guess it. Unless declared unconstitutional, ineffective, insufficient or
otherwise void by the proper tribunal, a statute remains a valid command of
sovereignty that must be respected and obeyed at all times. This is the
essence of the rule of law.
Second Issue: The Statutory Requirement and Limitation
The Two Percent Threshold
In imposing a two percent threshold, Congress wanted to ensure that only
those parties, organizations and coalitions having a sufficient number of
constituents deserving of representation are actually represented in
Congress. This intent can be gleaned from the deliberations on the proposed
bill. We quote below a pertinent portion of the Senate discussion:

SENATOR GONZALES: For purposes of continuity, I would want to follow up a

point that was raised by, I think, Senator Osmea when he said that a political party
must have obtained at least a minimum percentage to be provided in this law in order
to qualify for a seat under the party-list system.
They do that in many other countries. A party must obtain at least 2 percent of the
votes cast, 5 percent or 10 percent of the votes cast. Otherwise, as I have said, this will
actually proliferate political party groups and those who have not really been given by
the people sufficient basis for them to represent their constituents and, in turn, they
will be able to get to the Parliament through the backdoor under the name of the partylist system, Mr. President."[18]
A similar intent is clear from the statements of the bill sponsor in the
House of Representatives, as the following shows:
MR. ESPINOSA. There is a mathematical formula which this computation is based at,
arriving at a five percent ratio which would distribute equitably the number of seats
among the different sectors.There is a mathematical formula which is, I think,
patterned after that of the party list of the other parliaments or congresses, more
particularly the Bundestag of Germany.[19]
Moreover, even the framers of our Constitution had in mind a minimumvote requirement, the specification of which they left to Congress to properly
determine. Constitutional Commissioner Christian S. Monsod explained:
MR. MONSOD. x x x We are amenable to modifications in the minimum percentage
of votes. Our proposal is that anybody who has two-and-a-half percent of the votes
gets a seat. There are about 20 million who cast their votes in the last elections. Twoand-a-half percent would mean 500,000 votes. Anybody who has a constituency of
500,000 votes nationwide deserves a seat in the Assembly. If we bring that down to
two percent, we are talking about 400,000 votes. The average vote per family is
three. So, here we are talking about 134,000 families. We believe that there are many
sectors who will be able to get seats in the Assembly because many of them have
memberships of over 10,000. In effect, that is the operational implication of our
proposal. What we are trying to avoid is this selection of sectors, the reserve seat
system. We believe that it is our job to open up the system and that we should not
have within that system a reserve seat. We think that people should organize, should
work hard, and should earn their seats within that system. [20]
The two percent threshold is consistent not only with the intent of the
framers of the Constitution and the law, but with the very essence of
"representation." Under a republican or representative state, all government

authority emanates from the people, but is exercised by representatives

chosen by them.[21] But to have meaningful representation, the elected persons
must have the mandate of a sufficient number of people. Otherwise, in a
legislature that features the party-list system, the result might be the
proliferation of small groups which are incapable of contributing significant
legislation, and which might even pose a threat to the stability of
Congress. Thus, even legislative districts are apportioned according to "the
number of their respective inhabitants, and on the basis of a uniform and
progressive ratio"[22] to ensure meaningful local representation.
All in all, we hold that the statutory provision on this two percent
requirement is precise and crystalline. When the law is clear, the function of
courts is simple application, not interpretation or circumvention.[23]
The Three-Seat-Per-Party Limit
An important consideration in adopting the party-list system is to promote
and encourage a multiparty system of representation. Again, we quote
Commissioner Monsod:
MR. MONSOD. Madam President, I just want to say that we suggested or proposed
the party list system because we wanted to open up the political system to a pluralistic
society through a multiparty system. But we also wanted to avoid the problems of
mechanics and operation in the implementation of a concept that has very serious
shortcomings of classification and of double or triple votes. We are for opening up the
system, and we would like very much for the sectors to be there. That is why one of
the ways to do that is to put a ceiling on the number of representatives from any single
party that can sit within the 50 allocated under the party list system. This way, we will
open it up and enable sectoral groups, or maybe regional groups, to earn their seats
among the fifty. x x x.[24]
Consistent with the Constitutional Commission's pronouncements,
Congress set the seat-limit to three (3) for each qualified party, organization or
coalition. "Qualified" means having hurdled the two percent vote
threshold. Such three-seat limit ensures the entry of various interestrepresentations into the legislature; thus, no single group, no matter how large
its membership, would dominate the party-list seats, if not the entire House.
We shall not belabor this point, because the validity of the three-seat limit
is not seriously challenged in these consolidated cases.

Third Issue: Method of Allocating Additional Seats

Having determined that the twenty percent seat allocation is merely a
ceiling, and having upheld the constitutionality of the two percent vote
threshold and the three-seat limit imposed under RA 7941, we now proceed to
the method of determining how many party-list seats the qualified parties,
organizations and coalitions are entitled to. The very first step - there is no
dispute on this - is to rank all the participating parties, organizations and
coalitions (hereafter collectively referred to as "parties") according to the votes
they each obtained. The percentage of their respective votes as against the
total number of votes cast for the party-list system is then determined. All
those that garnered at least two percent of the total votes cast have an
assured or guaranteed seat in the House of Representatives. Thereafter,
"those garnering more than two percent of the votes shall be entitled to
additional seats in proportion to their total number of votes." The problem is
how to distribute additional seats "proportionally," bearing in mind the threeseat limit further imposed by the law.
One Additional Seat Per Two Percent Increment
One proposed formula is to allocate one additional seat for every
additional proportion of the votes obtained equivalent to the two percent vote
requirement for the first seat.[25]Translated in figures, a party that wins at least
six percent of the total votes cast will be entitled to three seats; another party
that gets four percent will be entitled to two seats; and one that gets two
percent will be entitled to one seat only. This proposal has the advantage of
simplicity and ease of comprehension. Problems arise, however, when the
parties get very lop-sided votes -- for example, when Party A receives 20
percent of the total votes cast; Party B, 10 percent; and Party C, 6
percent. Under the method just described, Party A would be entitled to 10
seats; Party B, to 5 seats and Party C, to 3 seats. Considering the three-seat
limit imposed by law, all the parties will each uniformly have three seats
only. We would then have the spectacle of a party garnering two or more
times the number of votes obtained by another, yet getting the same number
of seats as the other one with the much lesser votes. In effect, proportional
representation will be contravened and the law rendered nugatory by this
suggested solution. Hence, the Court discarded it.
The Niemeyer Formula

Another suggestion that the Court considered was the Niemeyer formula,
which was developed by a German mathematician and adopted by Germany
as its method of distributing party-list seats in the Bundestag. Under this
formula, the number of additional seats to which a qualified party would be
entitled is determined by multiplying the remaining number of seats to be
allocated by the total number of votes obtained by that party and dividing the
product by the total number of votes garnered by all the qualified parties. The
integer portion of the resulting product will be the number of additional seats
that the party concerned is entitled to. Thus:
No. of remaining seats
to be allocated No. of additional
--------------------------- x No. of votes of = seats of party
Total no. of votes of party concerned concerned
qualified parties (Integer.decimal)
The next step is to distribute the extra seats left among the qualified
parties in the descending order of the decimal portions of the resulting
products. Based on the 1998 election results, the distribution of party-list seats
under the Niemeyer method would be as follows:
Party Number of Guaranteed Additional Extra Total
Votes Seats Seats Seats
1. APEC 503,487 1 5.73 1 7
2. ABA 321,646 1 3.66 1 5
3. ALAGAD 312,500 1 3.55 4
4. VETERANS 304,802 1 3.47 4
FEDERATION
5. PROMDI 255,184 1 2.90 1 4
6. AKO 239,042 1 2.72 1 4
7. NCSCFO 238,303 1 2.71 1 4
8. ABANSE! PINAY 235,548 1 2.68 1 4
9. AKBAYAN 232,376 1 2.64 1 4
10. BUTIL 215,643 1 2.45 3
11. SANLAKAS 194,617 1 2.21 3
12. COOP-NATCCO 189,802 1 2.16 3
13. COCOFED 186,388 1 2.12 3
Total 3,429,338 13 32 7 52
However, since Section 11 of RA 7941 sets a limit of three (3) seats for
each party, those obtaining more than the limit will have to give up their
excess seats. Under our present set of facts, the thirteen qualified parties will
each be entitled to three seats, resulting in an overall total of 39. Note that like

the previous proposal, the Niemeyer formula would violate the principle of
"proportional representation," a basic tenet of our party-list system.
The Niemeyer formula, while no doubt suitable for Germany, finds no
application in the Philippine setting, because of our three-seat limit and the
non-mandatory character of the twenty percent allocation. True, both our
Congress and the Bundestag have threshold requirements -- two percent for
us and five for them. There are marked differences between the two models,
however. As ably pointed out by private respondents,[26] one half of the
German Parliament is filled up by party-list members. More important, there
are no seat limitations, because German law discourages the proliferation of
small parties. In contrast, RA 7941, as already mentioned, imposes a threeseat limit to encourage the promotion of the multiparty system. This major
statutory difference makes the Niemeyer formula completely inapplicable to
the Philippines.
Just as one cannot grow Washington apples in the Philippines or
Guimaras mangoes in the Arctic because of fundamental environmental
differences, neither can the Niemeyer formula be transplanted in toto here
because of essential variances between the two party-list models.
The Legal and Logical Formula for the Philippines
It is now obvious that the Philippine style party-list system is a unique
paradigm which demands an equally unique formula. In crafting a legally
defensible and logical solution to determine the number of additional seats
that a qualified party is entitled to, we need to review the parameters of the
Filipino party-list system.
As earlier mentioned in the Prologue, they are as follows:
First, the twenty percent allocation - the combined number of all partylist congressmen shall not exceed twenty percent of the total membership of
the House of Representatives, including those elected under the party list.
Second, the two percent threshold - only those parties garnering a
minimum of two percent of the total valid votes cast for the party-list system
are qualified to have a seat in the House of Representatives;
Third, the three-seat limit - each qualified party, regardless of the number
of votes it actually obtained, is entitled to a maximum of three seats; that is,
one qualifying and two additional seats.

Fourth, proportional representation - the additional seats which a

qualified party is entitled to shall be computed in proportion to their total
number of votes.
The problem, as already stated, is to find a way to translate proportional
representation into a mathematical formula that will not contravene,
circumvent or amend the above-mentioned parameters.
After careful deliberation, we now explain such formula, step by step.
Step One. There is no dispute among the petitioners, the public and the
private respondents, as well as the members of this Court, that the initial step
is to rank all the participating parties, organizations and coalitions from the
highest to the lowest based on the number of votes they each received. Then
the ratio for each party is computed by dividing its votes by the total votes cast
for all the parties participating in the system. All parties with at least two
percent of the total votes are guaranteed one seat each. Only these parties
shall be considered in the computation of additional seats. The party receiving
the highest number of votes shall thenceforth be referred to as the first party.
Step Two. The next step is to determine the number of seats the first party
is entitled to, in order to be able to compute that for the other parties. Since
the distribution is based on proportional representation, the number of seats to
be allotted to the other parties cannot possibly exceed that to which the first
party is entitled by virtue of its obtaining the most number of votes.
For example, the first party received 1,000,000 votes and is determined to
be entitled to two additional seats. Another qualified party which received
500,000 votes cannot be entitled to the same number of seats, since it
garnered only fifty percent of the votes won by the first party. Depending on
the proportion of its votes relative to that of the first party whose number of
seats has already been predetermined, the second party should be given less
than that to which the first one is entitled.
The other qualified parties will always be allotted less additional seats than
the first party for two reasons: (1) the ratio between said parties and the first
party will always be less than 1:1, and (2) the formula does not admit of
mathematical rounding off, because there is no such thing as a fraction of a
seat. Verily, an arbitrary rounding off could result in a violation of the twenty
percent allocation. An academic mathematical demonstration of such incipient
violation is not necessary because the present set of facts, given the number
of qualified parties and the voting percentages obtained, will definitely not end
up in such constitutional contravention.

The Court has previously ruled in Guingona Jr. v. Gonzales[27] that a

fractional membership cannot be converted into a whole membership of one
when it would, in effect, deprive another party's fractional membership. It
would be a violation of the constitutional mandate of proportional
representation. We said further that "no party can claim more than what it is
entitled to x x x.
In any case, the decision on whether to round off the fractions is better left
to the legislature. Since Congress did not provide for it in the present law,
neither will this Court. The Supreme Court does not make the law; it merely
applies it to a given set of facts.
Formula for Determining Additional Seats for the First Party
Now, how do we determine the number of seats the first party is entitled
to? The only basis given by the law is that a party receiving at least two
percent of the total votes shall be entitled to one seat. Proportionally, if the first
party were to receive twice the number of votes of the second party, it should
be entitled to twice the latter's number of seats and so on.The formula,
therefore, for computing the number of seats to which the first party is entitled
is as follows:
Number of votes
of first party Proportion of votes of
-------------------- = first party relative to
Total votes for total votes for party-list system
party-list system
If the proportion of votes received by the first party without rounding it off is
equal to at least six percent of the total valid votes cast for all the party list
groups, then the first party shall be entitled to two additional seats or a total of
three seats overall. If the proportion of votes without a rounding off is equal to
or greater than four percent, but less than six percent, then the first party shall
have one additional or a total of two seats. And if the proportion is less than
four percent, then the first party shall not be entitled to any additional seat.
We adopted this six percent bench mark, because the first party is not
always entitled to the maximum number of additional seats. Likewise, it would
prevent the allotment of more than the total number of available seats, such
as in an extreme case wherein 18 or more parties tie for the highest rank and
are thus entitled to three seats each. In such scenario, the number of seats to

which all the parties are entitled may exceed the maximum number of partylist seats reserved in the House of Representatives.
Applying the above formula, APEC, which received 5.5% of the total votes
cast, is entitled to one additional seat or a total of two seats.
Note that the above formula will be applicable only in determining the
number of additional seats the first party is entitled to. It cannot be used to
determine the number of additional seats of the other qualified parties. As
explained earlier, the use of the same formula for all would contravene the
proportional representation parameter. For example, a second party obtains
six percent of the total number of votes cast. According to the above formula,
the said party would be entitled to two additional seats or a total of three seats
overall. However, if the first party received a significantly higher amount of
votes -- say, twenty percent -- to grant it the same number of seats as the
second party would violate the statutory mandate of proportional
representation, since a party getting only six percent of the votes will have an
equal number of representatives as the one obtaining twenty percent.The
proper solution, therefore, is to grant the first party a total of three seats; and
the party receiving six percent, additional seats in proportion to those of the
first party.
Formula for Additional Seats of Other Qualified Parties
Step Three The next step is to solve for the number of additional seats
that the other qualified parties are entitled to, based on proportional
representation. The formula is encompassed by the following complex
fraction:
No. of votes of
concerned party
-----------------Total no. of votes
Additional seats for party-list system No. of additional
for concerned = ----------------------- x seats allocated to
party No. of votes of the first party
first party
-----------------Total no. of votes
for party list system
In simplified form, it is written as follows:

No. of votes of
Additional seats concerned party No. of additional
for concerned = ------------------ x seats allocated to
party No. of votes of the first party
first party
Thus, in the case of ABA, the additional number of seats it would be
entitled to is computed as follows:
No. of votes of
Additional seats ABA No. of additional
for concerned = -------------------- x seats allocated to
party (ABA) No. of votes of the first party
first party (APEC)
Substituting actual values would result in the following equation:
Additional seats 321,646
for concerned = ----------- x 1 = .64 or 0 additional seat, since
party (ABA) 503,487 rounding off is not to be applied
Applying the above formula, we find the outcome of the 1998 party-list
election to be as follows:
Organization Votes %age of Initial No. Additional Total
Garnered Total Votes of Seats Seats
1. APEC 503,487 5.50% 1 1 2
2. ABA 321,646 3.51% 1 321,646 / 503,487 * 1 = 0.64 1
3. ALAGAD 312,500 3.41% 1 312,500 / 503,487 * 1 = 0.62 1
4. VETERANS 304,802 3.33% 1 304,802 / 503,487 * 1 = 0.61 1
FEDERATION
5. PROMDI 255,184 2.79% 1 255,184 / 503,487 * 1 = 0.51 1
6. AKO 239,042 2.61% 1 239,042 / 503,487 * 1 = 0.47 1
7. NCSFO 238,303 2.60% 1 238,303 / 503,487 * 1 = 0.47 1
8. ABANSE! 235,548 2.57% 1 321,646 / 503,487 * 1 = 0.47 1
PINAY
9. AKBAYAN! 232,376 2.54% 1 232,376 / 503,487 * 1 = 0.46 1
10. BUTIL 215,643 2.36% 1 215,643 / 503,487 * 1 = 0.43 1
11. SANLAKAS 194,617 2.13% 1 194,617 / 503,487 * 1 = 0.39 1
12. COOP- 189,802 2.07% 1 189,802 / 503,487 * 1 = 0.38 1
NATCCO
13. COCOFED 186,388 2.04% 1 186,388 / 503,487 * 1 = 0.37 1
Incidentally, if the first party is not entitled to any additional seat, then the
ratio of the number of votes for the other party to that for the first one is

multiplied by zero. The end result would be zero additional seat for each of the
other qualified parties as well.
The above formula does not give an exact mathematical representation of
the number of additional seats to be awarded since, in order to be entitled to
one additional seat, an exact whole number is necessary. In fact, most of the
actual mathematical proportions are not whole numbers and are not rounded
off for the reasons explained earlier. To repeat, rounding off may result in the
awarding of a number of seats in excess of that provided by the
law. Furthermore, obtaining absolute proportional representation is restricted
by the three-seat-per-party limit to a maximum of two additional slots. An
increase in the maximum number of additional representatives a party may be
entitled to would result in a more accurate proportional representation. But the
law itself has set the limit: only two additional seats. Hence, we need to work
within such extant parameter.
The net result of the foregoing formula for determining additional seats
happily coincides with the present number of incumbents; namely, two for
the first party (APEC) and one each for the twelve other qualified
parties. Hence, we affirm the legality of the incumbencies of their nominees,
albeit through the use of a different formula and methodology.
In his Dissent, Justice Mendoza criticizes our methodology for being too
strict. We say, however, that our formula merely translated the Philippine legal
parameters into a mathematical equation, no more no less. If Congress in its
wisdom decides to modify RA 7941 to make it less strict, then the formula will
also be modified to reflect the changes willed by the lawmakers.
Epilogue
In sum, we hold that the Comelec gravely abused its discretion in ruling
that the thirty-eight (38) herein respondent parties, organizations and
coalitions are each entitled to a party-list seat, because it glaringly violated
two requirements of RA 7941: the two percent threshold and proportional
representation.
In disregarding, rejecting and circumventing these statutory provisions, the
Comelec effectively arrogated unto itself what the Constitution expressly and
wholly vested in the legislature: the power and the discretion to define the
mechanics for the enforcement of the system. The wisdom and the propriety
of these impositions, absent any clear transgression of the Constitution or

grave abuse of discretion amounting to lack or excess of jurisdiction, are

beyond judicial review.[28]
Indeed, the Comelec and the other parties in these cases - both
petitioners and respondents - have failed to demonstrate that our
lawmakers gravely abused
their
discretion
in
prescribing
such
requirements. By grave abuse of discretion is meant such capricious or
whimsical exercise of judgment equivalent to lack or excess of jurisdiction.[29]
The Comelec, which is tasked merely to enforce and administer electionrelated laws,[30] cannot simply disregard an act of Congress exercised within
the bounds of its authority.As a mere implementing body, it cannot judge the
wisdom, propriety or rationality of such act. Its recourse is to draft an
amendment to the law and lobby for its approval and enactment by the
legislature.
Furthermore, a reading of the entire Constitution reveals no violation of
any of its provisions by the strict enforcement of RA 7941. It is basic that to
strike down a law or any of its provisions as unconstitutional, there must be a
clear and unequivocal showing that what the Constitution prohibits, the statute
permits.[31]
Neither can we grant petitioners prayer that they each be given additional
seats (for a total of three each), because granting such plea would plainly and
simply violate the proportional representation mandated by Section 11 (b) of
RA 7941.
The low turnout of the party-list votes during the 1998 elections should not
be interpreted as a total failure of the law in fulfilling the object of this new
system of representation. It should not be deemed a conclusive indication that
the requirements imposed by RA 7941 wholly defeated the implementation of
the system. Be it remembered that the party-list system, though already
popular in parliamentary democracies, is still quite new in our presidential
system. We should allow it some time to take root in the consciousness of our
people and in the heart of our tripartite form of republicanism. Indeed, the
Comelec and the defeated litigants should not despair.
Quite the contrary, the dismal result of the first election for party-list
representatives should serve as a challenge to our sectoral parties and
organizations. It should stir them to be more active and vigilant in their
campaign for representation in the State's lawmaking body. It should also
serve as a clarion call for innovation and creativity in adopting this novel
system of popular democracy.

With adequate information dissemination to the public and more active

sectoral parties, we are confident our people will be more responsive to future
party-list elections. Armed with patience, perseverance and perspicacity, our
marginalized sectors, in time, will fulfill the Filipino dream of full representation
in Congress under the aegis of the party-list system, Philippine style.
WHEREFORE, the Petitions are hereby partially GRANTED. The assailed
Resolutions of the Comelec are SET ASIDE and NULLIFIED. The
proclamations of the fourteen (14) sitting party-list representatives - two for
APEC and one each for the remaining twelve (12) qualified parties are AFFIRMED. No pronouncement as to costs.
SO ORDERED.

G.R. No. 147589

June 26, 2001

ANG BAGONG BAYANI-OFW LABOR PARTY (under the acronym OFW), represented herein by its
secretary-general, MOHAMMAD OMAR FAJARDO, petitioner,
vs.
ANG BAGONG BAYANI-OFW LABOR PARTY GO! GO! PHILIPPINES; THE TRUE MARCOS
LOYALIST ASSOCIATION OF THE PHILIPPINES; PHILIPPINE LOCAL AUTONOMY; CITIZENS
MOVEMENT FOR JUSTICE, ECONOMY, ENVIRONMENT AND PEACE; CHAMBER OF REAL
ESTATE BUILDERS ASSOCIATION; SPORTS & HEALTH ADVANCEMENT FOUNDATION, INC.;
ANG LAKAS NG OVERSEAS CONTRACT WORKERS (OCW); BAGONG BAYANI
ORGANIZATION and others under "Organizations/Coalitions" of Omnibus Resolution No.
3785; PARTIDO NG MASANG PILIPINO; LAKAS NUCD-UMDP; NATIONALIST PEOPLE'S
COALITION; LABAN NG DEMOKRATIKONG PILIPINO; AKSYON DEMOKRATIKO; PDPLABAN; LIBERAL PARTY; NACIONALISTA PARTY; ANG BUHAY HAYAANG YUMABONG; and
others under "Political Parties" of Omnibus Resolution No. 3785. respondents.
x---------------------------------------------------------x

G.R. No. 147613 June 26, 2001

BAYAN MUNA, petitioner,
vs.
COMMISSION ON ELECTIONS; NATIONALIST PEOPLE'S COALITION (NPC); LABAN NG
DEMOKRATIKONG PILIPINO (LDP); PARTIDO NG MASANG PILIPINO (PMP); LAKAS-NUCDUMDP; LIBERAL PARTY; MAMAMAYANG AYAW SA DROGA; CREBA; NATIONAL
FEDERATION OF SUGARCANE PLANTERS; JEEP; and BAGONG BAYANI
ORGANIZATION, respondents.
PANGANIBAN, J.:
The party-list system is a social justice tool designed not only to give more law to the great masses
of our people who have less in life, but also to enable them to become veritable lawmakers
themselves, empowered to participate directly in the enactment of laws designed to benefit them. It
intends to make the marginalized and the underrepresented not merely passive recipients of the
State's benevolence, but active participants in the mainstream of representative democracy. Thus,
allowing all individuals and groups, including those which now dominate district elections, to have
the same opportunity to participate in party-list elections would desecrate this lofty objective and
mongrelize the social justice mechanism into an atrocious veneer for traditional politics.
The Case
Before us are two Petitions under Rule 65 of the Rules of Court, challenging Omnibus Resolution
No. 3785 1issued by the Commission on Elections (Comelec) on March 26, 2001. This Resolution
approved the participation of 154 organizations and parties, including those herein impleaded, in the
2001 party-list elections. Petitioners seek the disqualification of private respondents, arguing mainly
that the party-list system was intended to benefit the marginalized and underrepresented; not the
mainstream political parties, the non-marginalized or overrepresented.
The Factual Antecedents
With the onset of the 2001 elections, the Comelec received several Petitions for registration filed by
sectoral parties, organizations and political parties. According to the Comelec, "[v]erifications were
made as to the status and capacity of these parties and organizations and hearings were scheduled
day and night until the last party w[as] heard. With the number of these petitions and the observance
of the legal and procedural requirements, review of these petitions as well as deliberations takes a
longer process in order to arrive at a decision and as a result the two (2) divisions promulgated a
separate Omnibus Resolution and individual resolution on political parties. These numerous petitions
and processes observed in the disposition of these petition[s] hinder the early release of the
Omnibus Resolutions of the Divisions which were promulgated only on 10 February 2001." 2
Thereafter, before the February 12, 2001 deadline prescribed under Comelec Resolution No. 3426
dated December 22, 2000, the registered parties and organizations filed their respective
Manifestations, stating their intention to participate in the party-list elections. Other sectoral and
political parties and organizations whose registrations were denied also filed Motions for
Reconsideration, together with Manifestations of their intent to participate in the party-list elections.
Still other registered parties filed their Manifestations beyond the deadline.
The Comelec gave due course or approved the Manifestations (or accreditations) of 154 parties and
organizations, but denied those of several others in its assailed March 26, 2001 Omnibus Resolution
No. 3785, which we quote:

"We carefully deliberated the foregoing matters, having in mind that this system of proportional
representation scheme will encourage multi-partisan [sic] and enhance the inability of small, new or
sectoral parties or organization to directly participate in this electoral window.
"It will be noted that as defined, the 'party-list system' is a 'mechanism of proportional representation'
in the election of representatives to the House of Representatives from national, regional, and
sectoral parties or organizations or coalitions thereof registered with the Commission on Elections.
"However, in the course of our review of the matters at bar, we must recognize the fact that there is a
need to keep the number of sectoral parties, organizations and coalitions, down to a manageable
level, keeping only those who substantially comply with the rules and regulations and more
importantly the sufficiency of the Manifestations or evidence on the Motions for Reconsiderations or
Oppositions." 3
On April 10, 2001, Akbayan Citizens Action Party filed before the Comelec a Petition praying that
"the names of [some of herein respondents] be deleted from the 'Certified List of Political
Parties/Sectoral Parties/Organizations/Coalitions Participating in the Party List System for the May
14, 2001 Elections' and that said certified list be accordingly amended." It also asked, as an
alternative, that the votes cast for the said respondents not be counted or canvassed, and that the
latter's nominees not be proclaimed. 4 On April 11, 2001, Bayan Muna and Bayan Muna-Youth also
filed a Petition for Cancellation of Registration and Nomination against some of herein respondents. 5
On April 18, 2001, the Comelec required the respondents in the two disqualification cases to file
Comments within three days from notice. It also set the date for hearing on April 26, 2001, 6 but
subsequently reset it to May 3, 2001. 7 During the hearing, however, Commissioner Ralph C. Lantion
merely directed the parties to submit their respective memoranda. 8
Meanwhile, dissatisfied with the pace of the Comelec, Ang Bagong Bayani-OFW Labor Party filed a
Petition 9before this Court on April 16, 2001. This Petition, docketed as GR No. 147589, assailed
Comelec Omnibus Resolution No. 3785. In its Resolution dated April 17, 2001, 10 the Court directed
respondents to comment on the Petition within a non-extendible period of five days from notice. 11
On April 17, 2001, Petitioner Bayan Muna also filed before this Court a Petition, 12 docketed as GR
No. 147613, also challenging Comelec Omnibus Resolution No. 3785. In its Resolution dated May 9,
2001, 13 the Court ordered the consolidation of the two Petitions before it; directed respondents
named in the second Petition to file their respective Comments on or before noon of May 15, 2001;
and called the parties to an Oral Argument on May 17, 2001. It added that the Comelec may proceed
with the counting and canvassing of votes cast for the party-list elections, but barred the
proclamation of any winner therein, until further orders of the Court.
Thereafter, Comments 14 on the second Petition were received by the Court and, on May 17, 2001,
the Oral Argument was conducted as scheduled. In an Order given in open court, the parties were
directed to submit their respective Memoranda simultaneously within a non-extendible period of five
days. 15
Issues:
During the hearing on May 17, 2001, the Court directed the parties to address the following issues:
"1. Whether or not recourse under Rule 65 is proper under the premises. More specifically, is
there no other plain, speedy or adequate remedy in the ordinary course of law?

"2. Whether or not political parties may participate in the party-list elections.
"3. Whether or not the party-list system is exclusive to 'marginalized and underrepresented'
sectors and organizations.
"4. Whether or not the Comelec committed grave abuse of discretion in promulgating
Omnibus Resolution No. 3785." 16
The Court's Ruling
The Petitions are partly meritorious. These cases should be remanded to the Comelec which will
determine, after summary evidentiary hearings, whether the 154 parties and organizations
enumerated in the assailed Omnibus Resolution satisfy the requirements of the Constitution and RA
7941, as specified in this Decision.
First Issue:
Recourse Under Rule 65
Respondents contend that the recourse of both petitioners under Rule 65 is improper because there
are other plain, speedy and adequate remedies in the ordinary course of law. 17 The Office of the
Solicitor General argues that petitioners should have filed before the Comelec a petition either for
disqualification or for cancellation of registration, pursuant to Sections 19, 20, 21 and 22 of Comelec
Resolution No. 3307-A 18 dated November 9, 2000. 19
We disagree. At bottom, petitioners attack the validity of Comelec Omnibus Resolution 3785 for
having been issued with grave abuse of discretion, insofar as it allowed respondents to participate in
the party-list elections of 2001. Indeed, under both the Constitution 20 and the Rules of Court, such
challenge may be brought before this Court in a verified petition for certiorari under Rule 65.
Moreover, the assailed Omnibus Resolution was promulgated by Respondent Commission en banc;
hence, no motion for reconsideration was possible, it being a prohibited pleading under Section 1
(d), Rule 13 of the Comelec Rules of Procedure. 21
The Court also notes that Petitioner Bayan Muna had filed before the Comelec a Petition for
Cancellation of Registration and Nomination against some of herein respondents. 22 The Comelec,
however, did not act on that Petition. In view of the pendency of the elections, Petitioner Bayan
Muna sought succor from this Court, for there was no other adequate recourse at the time.
Subsequent events have proven the urgency of petitioner's action; to this date, the Comelec has not
yet formally resolved the Petition before it. But a resolution may just be a formality because the
Comelec, through the Office of the Solicitor General, has made its position on the matter quite clear.
In any event, this case presents an exception to the rule that certiorari shall lie only in the absence of
any other plain, speedy and adequate remedy. 23 It has been held that certiorari is available,
notwithstanding the presence of other remedies, "where the issue raised is one purely of law, where
public interest is involved, and in case of urgency." 24 Indeed, the instant case is indubitably imbued
with public interest and with extreme urgency, for it potentially involves the composition of 20 percent
of the House of Representatives.

Moreover, this case raises transcendental constitutional issues on the party-list system, which this
Court must urgently resolve, consistent with its duty to "formulate guiding and controlling
constitutional principles, precepts, doctrines, or rules." 25
Finally, procedural requirements "may be glossed over to prevent a miscarriage of justice, when the
issue involves the principle of social justice x x x when the decision 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." 26
Second Issue:
Participation of Political Parties
In its Petition, Ang Bagong Bayani-OFW Labor Party contends that "the inclusion of political parties
in the party-list system is the most objectionable portion of the questioned Resolution." 27 For its part,
Petitioner Bayan Muna objects to the participation of "major political parties." 28 On the other hand,
the Office of the Solicitor General, like the impleaded political parties, submits that the Constitution
and RA No. 7941 allow political parties to participate in the party-list elections. It argues that the
party-list system is, in fact, open to all "registered national, regional and sectoral parties or
organizations." 29
We now rule on this issue. Under the Constitution and RA 7941, private respondents cannot be
disqualified from the party-list elections, merely on the ground that they are political parties. Section
5, Article VI of the Constitution provides that members of the House of Representatives may "be
elected through a party-list system of registered national, regional, and sectoral parties or
organizations."
Furthermore, under Sections 7 and 8, Article IX (C) of the Constitution, political parties may be
registered under the party-list system.
"Sec. 7. No votes cast in favor of a political party, organization, or coalition shall be valid,
except for those registered under the party-list system as provided in this Constitution.
"Sec. 8. Political parties, or organizations or coalitions registered under the party-list system,
shall not be represented in the voters' registration boards, boards of election inspectors,
boards of canvassers, or other similar bodies. However, they shall be entitled to appoint poll
watchers in accordance with law." 30
During the deliberations in the Constitutional Commission, Comm. Christian S. Monsod pointed out
that the participants in the party-list system may "be a regional party, a sectoral party, a national
party, UNIDO, 31Magsasaka, or a regional party in Mindanao." 32 This was also clear from the
following exchange between Comms. Jaime Tadeo and Blas Ople: 33
"MR. TADEO. Naniniwala ba kayo na ang party list ay pwedeng paghati-hatian ng UNIDO, PDPLaban, PNP, Liberal at Nacionalista?
MR. OPLE. Maaari yan sapagkat bukas ang party list system sa lahat ng mga partido."
Indeed, Commissioner Monsod stated that the purpose of the party-list provision was to open up the
system, in order to give a chance to parties that consistently place third or fourth in congressional
district elections to win a seat in Congress. 34 He explained: "The purpose of this is to open the

system. In the past elections, we found out that there were certain groups or parties that, if we count
their votes nationwide, have about 1,000,000 or 1,500,000 votes. But they were always third or
fourth place in each of the districts. So, they have no voice in the Assembly. But this way, they would
have five or six representatives in the Assembly even if they would not win individually in legislative
districts. So, that is essentially the mechanics, the purpose and objectives of the party-list system."
For its part, Section 2 of RA 7941 also provides for "a party-list system of registered national,
regional and sectoral parties or organizations or coalitions thereof, x x x." Section 3 expressly states
that a "party" is "either a political party or a sectoral party or a coalition of parties." More to the point,
the law defines "political party" as "an organized group of citizens advocating an ideology or
platform, principles and policies for the general conduct of government and which, as the most
immediate means of securing their adoption, regularly nominates and supports certain of its leaders
and members as candidates for public office."
Furthermore, Section 11 of RA 7941 leaves no doubt as to the participation of political parties in the
party-list system. We quote the pertinent provision below:
"x x x
"For purposes of the May 1998 elections, the first five (5) major political parties on the basis of party
representation in the House of Representatives at the start of the Tenth Congress of the Philippines
shall not be entitled to participate in the party-list system.
x x x"
Indubitably, therefore, political parties even the major ones -- may participate in the party-list
elections.
Third Issue:
Marginalized and Underrepresented
That political parties may participate in the party-list elections does not mean, however, that any
political party -- or any organization or group for that matter -- may do so. The requisite character of
these parties or organizations must be consistent with the purpose of the party-list system, as laid
down in the Constitution and RA 7941. Section 5, Article VI of the Constitution, provides as follows:
"(1) The House of Representatives shall be composed of not more than two hundred and fifty
members, unless otherwise fixed by law, who shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan Manila area in accordance
with the number of their respective inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by law, shall be elected through a party-list
system of registered national, regional, and sectoral parties or organizations.
(2) The party-list representatives shall constitute twenty per centum of the total number of
representatives including those under the party list. For three consecutive terms after the
ratification of this Constitution, one-half of the seats allocated to party-list representatives
shall be filled, as provided by law, by selection or election from the labor, peasant, urban
poor, indigenous cultural communities, women, youth, and such other sectors as may be
provided by law, except the religious sector." (Emphasis supplied.)

Notwithstanding the sparse language of the provision, a distinguished member of the Constitutional
Commission declared that the purpose of the party-list provision was to give "genuine power to our
people" in Congress. Hence, when the provision was discussed, he exultantly announced: "On this
first day of August 1986, we shall, hopefully, usher in a new chapter to our national history, by giving
genuine power to our people in the legislature."35
The foregoing provision on the party-list system is not self-executory. It is, in fact, interspersed with
phrases like "in accordance with law" or "as may be provided by law"; it was thus up to Congress to
sculpt in granite the lofty objective of the Constitution. Hence, RA 7941 was enacted. It laid out the
statutory policy in this wise:
"SEC. 2. Declaration of Policy. -- The State shall promote proportional representation in the election
of representatives to the House of Representatives through a party-list system of registered national,
regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens
belonging to marginalized and underrepresented sectors, organizations and parties, and who lack
well-defined political constituencies but who could contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a whole, to become members of the House of
Representatives. Towards this end, the State shall develop and guarantee a full, free and open party
system in order to attain the broadest possible representation of party, sectoral or group interests in
the House of Representatives by enhancing their chances to compete for and win seats in the
legislature, and shall provide the simplest scheme possible."
The Marginalized and Underrepresented to Become Lawmakers Themselves
The foregoing provision mandates a state policy of promoting proportional representation by means
of the Filipino-style party-list system, which will "enable" the election to the House of
Representatives of Filipino citizens,
1. who belong to marginalized and underrepresented sectors, organizations and parties; and
2. who lack well-defined constituencies; but
3. who could contribute to the formulation and enactment of appropriate legislation that will
benefit the nation as a whole.
The key words in this policy are "proportional representation," "marginalized and underrepresented,"
and "lack ofwell-defined constituencies."
"Proportional representation" here does not refer to the number of people in a particular district,
because the party-list election is national in scope. Neither does it allude to numerical strength in a
distressed or oppressed group. Rather, it refers to the representation of the "marginalized and
underrepresented" as exemplified by the enumeration in Section 5 of the law; namely, "labor,
peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women,
youth, veterans, overseas workers, and professionals."
However, it is not enough for the candidate to claim representation of the marginalized and
underrepresented, because representation is easy to claim and to feign. The party-list organization
or party must factually and truly represent the marginalized and underrepresented constituencies
mentioned in Section 5. 36 Concurrently, the persons nominated by the party-list candidateorganization must be "Filipino citizens belonging to marginalized and underrepresented sectors,
organizations and parties."

Finally, "lack of well-defined constituenc[y] " refers to the absence of a traditionally identifiable
electoral group, like voters of a congressional district or territorial unit of government. Rather, it
points again to those with disparate interests identified with the "marginalized or underrepresented."
In the end, the role of the Comelec is to see to it that only those Filipinos who are "marginalized and
underrepresented" become members of Congress under the party-list system, Filipino-style.
The intent of the Constitution is clear: to give genuine power to the people, not only by giving more
law to those who have less in life, but more so by enabling them to become veritable lawmakers
themselves. Consistent with this intent, the policy of the implementing law, we repeat, is likewise
clear: "to enable Filipino citizens belonging to marginalized and underrepresented sectors,
organizations and parties, x x x, to become members of the House of Representatives." Where the
language of the law is clear, it must be applied according to its express terms. 37
The marginalized and underrepresented sectors to be represented under the party-list system are
enumerated in Section 5 of RA 7941, which states:
"SEC. 5. Registration. -- Any organized group of persons may register as a party, organization or
coalition for purposes of the party-list system by filing with the COMELEC not later than ninety (90)
days before the election a petition verified by its president or secretary stating its desire to participate
in the party-list system as a national, regional or sectoral party or organization or a coalition of such
parties or organizations, attaching thereto its constitution, by-laws, platform or program of
government, list of officers, coalition agreement and other relevant information as the COMELEC
may require: Provided, that the sector shall include labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and
professionals."
While the enumeration of marginalized and underrepresented sectors is not exclusive, it
demonstrates the clear intent of the law that not all sectors can be represented under the party-list
system. It is a fundamental principle of statutory construction that words employed in a statute are
interpreted in connection with, and their meaning is ascertained by reference to, the words and the
phrases with which they are associated or related. Thus, the meaning of a term in a statute may be
limited, qualified or specialized by those in immediate association. 38
The Party-List System Desecrated by the OSG Contentions
Notwithstanding the unmistakable statutory policy, the Office of the Solicitor General submits that RA
No. 7941 "does not limit the participation in the party-list system to the marginalized and
underrepresented sectors of society." 39 In fact, it contends that any party or group that is not
disqualified under Section 6 40 of RA 7941 may participate in the elections. Hence, it admitted during
the Oral Argument that even an organization representing the super rich of Forbes Park or
Dasmarias Village could participate in the party-list elections. 41
The declared policy of RA 7941 contravenes the position of the Office of the Solicitor General (OSG).
We stress that the party-list system seeks to enable certain Filipino citizens specifically those
belonging to marginalized and underrepresented sectors, organizations and parties to be elected
to the House of Representatives. The assertion of the OSG that the party-list system is not exclusive
to the marginalized and underrepresented disregards the clear statutory policy. Its claim that even
the super-rich and overrepresented can participate desecrates the spirit of the party-list system.
Indeed, the law crafted to address the peculiar disadvantages of Payatas hovel dwellers cannot be
appropriated by the mansion owners of Forbes Park. The interests of these two sectors are

manifestly disparate; hence, the OSG's position to treat them similarly defies reason and common
sense. In contrast, and with admirable candor, Atty. Lorna Patajo-Kapunan 42 admitted during the Oral
Argument that a group of bankers, industrialists and sugar planters could not join the party-list
system as representatives of their respective sectors. 43
While the business moguls and the mega-rich are, numerically speaking, a tiny minority, they are
neither marginalized nor underrepresented, for the stark reality is that their economic clout
engenders political power more awesome than their numerical limitation. Traditionally, political power
does not necessarily emanate from the size of one's constituency; indeed, it is likely to arise more
directly from the number and amount of one's bank accounts.
It is ironic, therefore, that the marginalized and underrepresented in our midst are the majority who
wallow in poverty, destitution and infirmity. It was for them that the party-list system was enacted -- to
give them not only genuine hope, but genuine power; to give them the opportunity to be elected and
to represent the specific concerns of their constituencies; and simply to give them a direct voice in
Congress and in the larger affairs of the State. In its noblest sense, the party-list system truly
empowers the masses and ushers a new hope for genuine change. Verily, it invites those
marginalized and underrepresented in the past the farm hands, the fisher folk, the urban poor,
even those in the underground movement to come out and participate, as indeed many of them
came out and participated during the last elections. The State cannot now disappoint and frustrate
them by disabling and desecrating this social justice vehicle.
Because the marginalized and underrepresented had not been able to win in the congressional
district elections normally dominated by traditional politicians and vested groups, 20 percent of the
seats in the House of Representatives were set aside for the party-list system. In arguing that even
those sectors who normally controlled 80 percent of the seats in the House could participate in the
party-list elections for the remaining 20 percent, the OSG and the Comelec disregard the
fundamental difference between the congressional district elections and the party-list elections.
As earlier noted, the purpose of the party-list provision was to open up the system, 44 in order to
enhance the chance of sectoral groups and organizations to gain representation in the House of
Representatives through the simplest scheme possible. 45 Logic shows that the system has been
opened to those who have never gotten a foothold within it -- those who cannot otherwise win in
regular elections and who therefore need the "simplest scheme possible" to do so. Conversely, it
would be illogical to open the system to those who have long been within it -- those privileged
sectors that have long dominated the congressional district elections.
The import of the open party-list system may be more vividly understood when compared to a
student dormitory "open house," which by its nature allows outsiders to enter the facilities. Obviously,
the "open house" is for the benefit of outsiders only, not the dormers themselves who can enter the
dormitory even without such special privilege. In the same vein, the open party-list system is only for
the "outsiders" who cannot get elected through regular elections otherwise; it is not for the nonmarginalized or overrepresented who already fill the ranks of Congress.
Verily, allowing the non-marginalized and overrepresented to vie for the remaining seats under the
party-list system would not only dilute, but also prejudice the chance of the marginalized and
underrepresented, contrary to the intention of the law to enhance it. The party-list system is a tool for
the benefit of the underprivileged; the law could not have given the same tool to others, to the
prejudice of the intended beneficiaries.
This Court, therefore, cannot allow the party-list system to be sullied and prostituted by those who
are neither marginalized nor underrepresented. It cannot let that flicker of hope be snuffed out. The

clear state policy must permeate every discussion of the qualification of political parties and other
organizations under the party-list system.
Refutation of the Separate Opinions
The Separate Opinions of our distinguished colleagues, Justices Jose C. Vitug and Vicente V.
Mendoza, are anchored mainly on the supposed intent of the framers of the Constitution as culled
from their deliberations.
The fundamental principle in constitutional construction, however, is that the primary source from
which to ascertain constitutional intent or purpose is the language of the provision itself. The
presumption is that the words in which the constitutional provisions are couched express the
objective sought to be attained. 46 In other words, verba legis still prevails. Only when the meaning of
the words used is unclear and equivocal should resort be made to extraneous aids of construction
and interpretation, such as the proceedings of the Constitutional Commission or Convention, in order
to shed light on and ascertain the true intent or purpose of the provision being construed. 47
Indeed, as cited in the Separate Opinion of Justice Mendoza, this Court stated in Civil Liberties
Union v. Executive Secretary 48 that "the debates and proceedings of the constitutional convention
[may be consulted] in order to arrive at the reason and purpose of the resulting Constitution x x x
only when other guides fail as said proceedings are powerless to vary the terms of the Constitution
when the meaning is clear. Debates in the constitutional convention 'are of value as showing the
views of the individual members, and as indicating the reason for their votes, but they give us no
light as to the views of the large majority who did not talk, much less of the mass or our fellow
citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer
to construe the constitution from what appears upon its face.' The proper interpretation therefore
depends more on how it was understood by the people adopting it than in the framers'
understanding thereof."
Section 5, Article VI of the Constitution, relative to the party-list system, is couched in clear terms:
the mechanics of the system shall be provided by law. Pursuant thereto, Congress enacted RA
7941. In understanding and implementing party-list representation, we should therefore look at the
law first. Only when we find its provisions ambiguous should the use of extraneous aids of
construction be resorted to.
But, as discussed earlier, the intent of the law is obvious and clear from its plain words. Section 2
thereof unequivocally states that the party-list system of electing congressional representatives was
designed to "enable underrepresented sectors, organizations and parties, and who lack well-defined
political constituencies but who could contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole x x x." The criteria for participation is well defined.
Thus, there is no need for recourse to constitutional deliberations, not even to the proceedings of
Congress. In any event, the framers' deliberations merely express their individual opinions and are,
at best, only persuasive in construing the meaning and purpose of the constitution or statute.
Be it remembered that the constitutionality or validity of Sections 2 and 5 of RA 7941 is not an issue
here. Hence, they remain parts of the law, which must be applied plainly and simply.
Fourth Issue:
Grave Abuse of Discretion

From its assailed Omnibus Resolution, it is manifest that the Comelec failed to appreciate fully the
clear policy of the law and the Constitution. On the contrary, it seems to have ignored the facet of the
party-list system discussed above. The OSG as its counsel admitted before the Court that any
group, even the non-marginalized and overrepresented, could field candidates in the party-list
elections.
When a lower court, or a quasi-judicial agency like the Commission on Elections, violates or ignores
the Constitution or the law, its action can be struck down by this Court on the ground of grave abuse
of discretion. 49Indeed, the function of all judicial and quasi-judicial instrumentalities is to apply the
law as they find it, not to reinvent or second-guess it. 50
In its Memorandum, Petitioner Bayan Muna passionately pleads for the outright disqualification of
the major political parties Respondents Lakas-NUCD, LDP, NPC, LP and PMP on the ground
that under Comelec Resolution No. 4073, they have been accredited as the five (six, including PDPLaban) major political parties in the May 14, 2001 elections. It argues that because of this, they have
the "advantage of getting official Comelec Election Returns, Certificates of Canvass, preferred poll
watchers x x x." We note, however, that this accreditation does not refer to the party-list election, but,
inter alia, to the election of district representatives for the purpose of determining which parties
would be entitled to watchers under Section 26 of Republic Act No. 7166.
What is needed under the present circumstances, however, is a factual determination of whether
respondents herein and, for that matter, all the 154 previously approved groups, have the necessary
qualifications to participate in the party-list elections, pursuant to the Constitution and the law.
Bayan Muna also urges us to immediately rule out Respondent Mamamayan Ayaw sa Droga (MAD),
because "it is a government entity using government resources and privileges." This Court, however,
is not a trier of facts. 51It is not equipped to receive evidence and determine the truth of such factual
allegations.
Basic rudiments of due process require that respondents should first be given an opportunity to
show that they qualify under the guidelines promulgated in this Decision, before they can be
deprived of their right to participate in and be elected under the party-list system.
Guidelines for Screening Party-List Participants
The Court, therefore, deems it proper to remand the case to the Comelec for the latter to determine,
after summary evidentiary hearings, whether the 154 parties and organizations allowed to participate
in the party-list elections comply with the requirements of the law. In this light, the Court finds it
appropriate to lay down the following guidelines, culled from the law and the Constitution, to assist
the Comelec in its work.
First, the political party, sector, organization or coalition must represent the marginalized and
underrepresented groups identified in Section 5 of RA 7941. In other words, it must show -- through
its constitution, articles of incorporation, bylaws, history, platform of government and track record -that it represents and seeks to uplift marginalized and underrepresented sectors. Verily, majority of
its membership should belong to the marginalized and underrepresented. And it must demonstrate
that in a conflict of interests, it has chosen or is likely to choose the interest of such sectors.
Second, while even major political parties are expressly allowed by RA 7941 and the Constitution to
participate in the party-list system, they must comply with the declared statutory policy of enabling
"Filipino citizens belonging to marginalized and underrepresented sectors x x x to be elected to the
House of Representatives." In other words, while they are not disqualified merely on the ground that

they are political parties, they must show, however, that they represent the interests of the
marginalized and underrepresented. The counsel of Aksyon Demokratiko and other similarly situated
political parties admitted as much during the Oral Argument, as the following quote shows:
"JUSTICE PANGANIBAN: I am not disputing that in my question. All I am saying is, the political party
must claim to represent the marginalized and underrepresented sectors?
ATTY. KAPUNAN: Yes, Your Honor, the answer is yes."52
Third, in view of the objections53 directed against the registration of Ang Buhay Hayaang Yumabong,
which is allegedly a religious group, the Court notes the express constitutional provision that the
religious sector may not be represented in the party-list system. The extent of the constitutional
proscription is demonstrated by the following discussion during the deliberations of the Constitutional
Commission:
"MR. OPLE. x x x
In the event that a certain religious sect with nationwide and even international networks of members
and supporters, in order to circumvent this prohibition, decides to form its own political party in
emulation of those parties I had mentioned earlier as deriving their inspiration and philosophies from
well-established religious faiths, will that also not fall within this prohibition?
MR. MONSOD. If the evidence shows that the intention is to go around the prohibition, then certainly
the Comelec can pierce through the legal fiction."54
The following discussion is also pertinent:
"MR. VILLACORTA. When the Commissioner proposed "EXCEPT RELIGIOUS GROUPS," he is not,
of course, prohibiting priests, imams or pastors who may be elected by, say, the indigenous
community sector to represent their group.
REV. RIGOS. Not at all, but I am objecting to anybody who represents the Iglesia ni Kristo, the
Catholic Church, the Protestant Church et cetera." 55
Furthermore, the Constitution provides that "religious denominations and sects shall not be
registered."56 The prohibition was explained by a member57 of the Constitutional Commission in this
wise: "[T] he prohibition is on any religious organization registering as a political party. I do not see
any prohibition here against a priest running as a candidate. That is not prohibited here; it is the
registration of a religious sect as a political party." 58
Fourth, a party or an organization must not be disqualified under Section 6 of RA 7941, which
enumerates the grounds for disqualification as follows:
"(1) It is a religious sect or denomination, organization or association organized for religious
purposes;
(2) It advocates violence or unlawful means to seek its goal;
(3) It is a foreign party or organization;

(4) It is receiving support from any foreign government, foreign political party, foundation,
organization, whether directly or through any of its officers or members or indirectly through
third parties for partisan election purposes;
(5) It violates or fails to comply with laws, rules or regulations relating to elections;
(6) It declares untruthful statements in its petition;
(7) It has ceased to exist for at least one (1) year; or
(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two
per centum (2%) of the votes cast under the party-list system in the two (2) preceding
elections for the constituency in which it has registered."59
Note should be taken of paragraph 5, which disqualifies a party or group for violation of or failure to
comply with election laws and regulations. These laws include Section 2 of RA 7941, which states
that the party-list system seeks to "enable Filipino citizens belonging to marginalized and
underrepresented sectors, organizations and parties x x x to become members of the House of
Representatives." A party or an organization, therefore, that does not comply with this policy must be
disqualified.
Fifth, the party or organization must not be an adjunct of, or a project organized or an entity funded
or assisted by, the government. By the very nature of the party-list system, the party or organization
must be a group of citizens, organized by citizens and operated by citizens. It must be independent
of the government. The participation of the government or its officials in the affairs of a party-list
candidate is not only illegal60 and unfair to other parties, but also deleterious to the objective of the
law: to enable citizens belonging to marginalized and underrepresented sectors and organizations to
be elected to the House of Representatives.
Sixth, the party must not only comply with the requirements of the law; its nominees must likewise do
so. Section 9 of RA 7941 reads as follows:
"SEC. 9. Qualifications of Party-List Nominees. No person shall be nominated as party-list
representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of
the Philippines for a period of not less than one (1) year immediately preceding the day of the
election, able to read and write, a bona fide member of the party or organization which he seeks to
represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five
(25) years of age on the day of the election.
In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty
(30) years of age on the day of the election. Any youth sectoral representative who attains the age of
thirty (30) during his term shall be allowed to continue in office until the expiration of his term."
Seventh, not only the candidate party or organization must represent marginalized and
underrepresented sectors; so also must its nominees. To repeat, under Section 2 of RA 7941, the
nominees must be Filipino citizens "who belong to marginalized and underrepresented sectors,
organizations and parties." Surely, the interests of the youth cannot be fully represented by a retiree;
neither can those of the urban poor or the working class, by an industrialist. To allow otherwise is to
betray the State policy to give genuine representation to the marginalized and underrepresented.

Eighth, as previously discussed, while lacking a well-defined political constituency, the nominee must
likewise be able to contribute to the formulation and enactment of appropriate legislation that will
benefit the nation as a whole. Senator Jose Lina explained during the bicameral committee
proceedings that "the nominee of a party, national or regional, is not going to represent a particular
district x x x."61
Epilogue
The linchpin of this case is the clear and plain policy of the law: "to enable Filipino citizens belonging
to marginalized and underrepresented sectors, organizations and parties, and who lack well-defined
political constituencies but who could contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole, to become members of the House of
Representatives."
Crucial to the resolution of this case is the fundamental social justice principle that those who have
less in life should have more in law. The party-list system is one such tool intended to benefit those
who have less in life. It gives the great masses of our people genuine hope and genuine power. It is
a message to the destitute and the prejudiced, and even to those in the underground, that change is
possible. It is an invitation for them to come out of their limbo and seize the opportunity.
Clearly, therefore, the Court cannot accept the submissions of the Comelec and the other
respondents that the party-list system is, without any qualification, open to all. Such position does
not only weaken the electoral chances of the marginalized and underrepresented; it also prejudices
them. It would gut the substance of the party-list system. Instead of generating hope, it would create
a mirage. Instead of enabling the marginalized, it would further weaken them and aggravate their
marginalization.
In effect, the Comelec would have us believe that the party-list provisions of the Constitution and RA
7941 are nothing more than a play on dubious words, a mockery of noble intentions, and an empty
offering on the altar of people empowerment. Surely, this could not have been the intention of the
framers of the Constitution and the makers of RA 7941.
WHEREFORE, this case is REMANDED to the Comelec, which is hereby DIRECTED to
immediately conduct summary evidentiary hearings on the qualifications of the party-list participants
in the light of the guidelines enunciated in this Decision. Considering the extreme urgency of
determining the winners in the last party-list elections, the Comelec is directed to begin its hearings
for the parties and organizations that appear to have garnered such number of votes as to qualify for
seats in the House of Representatives. The Comelec is further DIRECTED to submit to this Court its
compliance report within 30 days from notice hereof.
1wphi1.nt

The Resolution of this Court dated May 9, 2001, directing the Comelec "to refrain from proclaiming
any winner" during the last party-list election, shall remain in force until after the Comelec itself will
have complied and reported its compliance with the foregoing disposition.
This Decision is immediately executory upon the Commission on Elections' receipt thereof. No
pronouncement as to costs.
SO ORDERED.
Bellosillo, Melo, Puno, Kapunan, Pardo, Buena, and Gonzaga-Reyes, JJ., concur.
Davide, Jr., C.J., in the result.

Vitug and Mendoza, JJ., see dissenting opinion.

Quisumbing, De Leon, Jr., and Sandoval-Gutierrez, JJ., join the dissent of J. Vicente M. Mendoza.
Ynares-Santiago, J., abroad on official business.

EN BANC

BARANGAY ASSOCIATION FOR G.R. No. 179271

NATIONAL ADVANCEMENT
AND TRANSPARENCY (BANAT),
Petitioner,
- versus COMMISSION ON ELECTIONS
(sitting as the National Board of

Canvassers),
Respondent.
ARTS BUSINESS AND SCIENCE
PROFESSIONALS,
Intervenor.
AANGAT TAYO,
Intervenor.
COALITION OF ASSOCIATIONS
OF SENIOR CITIZENS IN THE
PHILIPPINES, INC. (SENIOR
CITIZENS),
Intervenor.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - x
BAYAN MUNA, ADVOCACY FOR G.R. No. 179295
TEACHER EMPOWERMENT
THROUGH ACTION, COOPERATION Present:
AND HARMONY TOWARDS
EDUCATIONAL REFORMS, INC., PUNO, C.J.,
and ABONO, QUISUMBING,
Petitioners, YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
- versus - CARPIO MORALES,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA, and
BERSAMIN, JJ.

COMMISSION ON ELECTIONS, Promulgated:

Respondent.
_______________________
x---------------------------------------------------x

DECISION
CARPIO, J.:
The Case
Petitioner in G.R. No. 179271 Barangay Association for National Advancement
and Transparency (BANAT) in a petition for certiorari and mandamus,[1] assails the
Resolution[2] promulgated on 3 August 2007 by the Commission on Elections
(COMELEC) in NBC No. 07-041 (PL). The COMELECs resolution in NBC No.
07-041 (PL) approved the recommendation of Atty. Alioden D. Dalaig, Head of the
National Board of Canvassers (NBC) Legal Group, to deny the petition of BANAT
for being moot. BANAT filed before the COMELEC En Banc, acting as NBC,
a Petition to Proclaim the Full Number of Party-List Representatives Provided by
the Constitution.
The following are intervenors in G.R. No. 179271: Arts Business and Science
Professionals (ABS), Aangat Tayo (AT), and Coalition of Associations of Senior
Citizens in the Philippines, Inc. (Senior Citizens).
Petitioners in G.R. No. 179295 Bayan Muna, Abono, and Advocacy for Teacher
Empowerment Through Action, Cooperation and Harmony Towards Educational
Reforms (A Teacher) in a petition for certiorari with mandamus and prohibition,
[3]
assails NBC Resolution No. 07-60[4] promulgated on 9 July 2007. NBC No. 0760 made a partial proclamation of parties, organizations and coalitions that
obtained at least two percent of the total votes cast under the Party-List
System. The COMELEC announced that, upon completion of the canvass of the
party-list results, it would determine the total number of seats of each winning

party, organization, or coalition in accordance with Veterans Federation Party v.

COMELEC[5] (Veterans).
Estrella DL Santos, in her capacity as President and First Nominee of the Veterans
Freedom Party, filed a motion to intervene in both G.R. Nos. 179271 and 179295.
The Facts
The 14 May 2007 elections included the elections for the party-list
representatives. The COMELEC counted 15,950,900 votes cast for 93 parties
under the Party-List System.[6]
On 27 June 2002, BANAT filed a Petition to Proclaim the Full Number of PartyList Representatives Provided by the Constitution, docketed as NBC No. 07-041
(PL) before the NBC. BANAT filed its petition because [t]he Chairman and the
Members of the [COMELEC] have recently been quoted in the national papers that
the [COMELEC] is duty bound to and shall implement the Veterans ruling, that is,
would apply the Panganiban formula in allocating party-list seats. [7] There were no
intervenors in BANATs petition before the NBC. BANAT filed a memorandum on
19 July 2007.
On 9 July 2007, the COMELEC, sitting as the NBC, promulgated NBC Resolution
No. 07-60. NBC Resolution No. 07-60 proclaimed thirteen (13) parties as winners
in the party-list elections, namely: Buhay Hayaan Yumabong (BUHAY), Bayan
Muna, Citizens Battle Against Corruption (CIBAC), Gabrielas Women Party
(Gabriela), Association of Philippine Electric Cooperatives (APEC), A Teacher,
Akbayan! Citizens Action Party (AKBAYAN), Alagad, Luzon Farmers Party
(BUTIL), Cooperative-Natco Network Party (COOP-NATCCO), Anak Pawis,
Alliance of Rural Concerns (ARC), and Abono. We quote NBC Resolution No. 0760 in its entirety below:
WHEREAS, the Commission on Elections sitting en banc as National
Board of Canvassers, thru its Sub-Committee for Party-List, as of 03
July 2007, had officially canvassed, in open and public proceedings, a
total of fifteen million two hundred eighty three thousand six
hundred fifty-nine (15,283,659) votes under the Party-List System of
Representation, in connection with the National and Local Elections
conducted last 14 May 2007;
WHEREAS, the study conducted by the Legal and Tabulation Groups of
the National Board of Canvassers reveals that the projected/maximum

total party-list votes cannot go any higher than sixteen million seven
hundred twenty three thousand one hundred twenty-one
(16,723,121) votes given the following statistical data:
Projected/Maximum Party-List Votes for May 2007 Elections
i. Total party-list votes already canvassed/tabulated

15,283,659

ii. Total party-list votes remaining uncanvassed/

untabulated (i.e. canvass deferred)

1,337,032

iii. Maximum party-list votes (based on 100%

outcome) from areas not yet submitted for canvass
(Bogo, Cebu; Bais City; Pantar, Lanao del Norte; and
Pagalungan, Maguindanao)

102,430

Maximum Total Party-List Votes

16,723,121

WHEREAS, Section 11 of Republic Act No. 7941 (Party-List System

Act) provides in part:
The parties, organizations, and coalitions receiving at least
two percent (2%) of the total votes cast for the party-list
system shall be entitled to one seat each: provided, that those
garnering more than two percent (2%) of the votes shall be
entitled to additional seats in proportion to their total number
of votes: provided, finally, that each party, organization, or
coalition shall be entitled to not more than three (3) seats.
WHEREAS, for the 2007 Elections, based on the above projected total
of party-list votes, the presumptive two percent (2%) threshold can be
pegged at three hundred thirty four thousand four hundred sixty-two
(334,462) votes;
WHEREAS, the Supreme Court, in Citizens Battle Against Corruption
(CIBAC) versus COMELEC, reiterated its ruling in Veterans Federation
Party versus COMELEC adopting a formula for the additional seats of
each party, organization or coalition receving more than the required two
percent (2%) votes, stating that the same shall be determined only after
all party-list ballots have been completely canvassed;

WHEREAS, the parties, organizations, and coalitions that have thus far
garnered at least three hundred thirty four thousand four hundred
sixty-two (334,462) votes are as follows:
RANK

PARTY/ORGANIZATION/
COALITION

VOTES
RECEIVED

BUHAY

1,163,218

BAYAN MUNA

972,730

CIBAC

760,260

GABRIELA

610,451

APEC

538,971

A TEACHER

476,036

AKBAYAN

470,872

ALAGAD

423,076

BUTIL

405,052

10

COOP-NATCO

390,029

11

BATAS

386,361

12

ANAK PAWIS

376,036

13

ARC

338,194

14

ABONO

337,046

WHEREAS, except for Bagong Alyansang Tagapagtaguyod ng

Adhikaing Sambayanan (BATAS), against which an URGENT
PETITION FOR CANCELLATION/REMOVAL OF REGISTRATION
AND DISQUALIFICATION OF PARTY-LIST NOMINEE (With Prayer
for the Issuance of Restraining Order) has been filed before the
Commission, docketed as SPC No. 07-250, all the parties, organizations
and coalitions included in the aforementioned list are therefore entitled
to at least one seat under the party-list system of representation in the
meantime.

NOW, THEREFORE, by virtue of the powers vested in it by the

Constitution, the Omnibus Election Code, Executive Order No. 144,
Republic Act Nos. 6646, 7166, 7941, and other election laws, the
Commission on Elections, sitting en banc as the National Board of
Canvassers, hereby RESOLVES to PARTIALLY PROCLAIM, subject to
certain conditions set forth below, the following parties, organizations
and coalitions participating under the Party-List System:
1 Buhay Hayaan Yumabong

BUHAY

2 Bayan Muna

BAYAN MUNA

3 Citizens Battle Against Corruption

CIBAC

4 Gabriela Womens Party

5 Association
Cooperatives

of

Philippine

GABRIELA
Electric

6 Advocacy for Teacher Empowerment

Through Action, Cooperation and Harmony
Towards Educational Reforms, Inc.

APEC
A TEACHER

7 Akbayan! Citizens Action Party

AKBAYAN

8 Alagad

ALAGAD

9 Luzon Farmers Party

10 Cooperative-Natco Network Party
11 Anak Pawis
12 Alliance of Rural Concerns
13 Abono

BUTIL
COOP-NATCCO
ANAKPAWIS
ARC
ABONO

This is without prejudice to the proclamation of other parties,

organizations, or coalitions which may later on be established to have
obtained at least two percent (2%) of the total actual votes cast under the
Party-List System.
The total number of seats of each winning party, organization or
coalition shall be determined pursuant to Veterans Federation Party

versus COMELEC formula upon completion of the canvass of the partylist results.
The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing
Sambayanan (BATAS) is hereby deferred until final resolution of SPC
No. 07-250, in order not to render the proceedings therein moot and
academic.
Finally, all proclamation of the nominees of concerned parties,
organizations and coalitions with pending disputes shall likewise be held
in abeyance until final resolution of their respective cases.
Let the Clerk of the Commission implement this Resolution, furnishing a
copy thereof to the Speaker of the House of Representatives of the
Philippines.
SO ORDERED.[8] (Emphasis in the original)

Pursuant to NBC Resolution No. 07-60, the COMELEC, acting as NBC,

promulgated NBC Resolution No. 07-72, which declared the additional seats
allocated to the appropriate parties. We quote from the COMELECs interpretation
of the Veterans formula as found in NBC Resolution No. 07-72:

WHEREAS, on July 9, 2007, the Commission on Elections sitting en

banc as the National Board of Canvassers proclaimed thirteen (13)
qualified parties, organization[s] and coalitions based on the presumptive
two percent (2%) threshold of 334,462 votes from the projected
maximum total number of party-list votes of 16,723,121, and were thus
given one (1) guaranteed party-list seat each;
WHEREAS, per Report of the Tabulation Group and Supervisory
Committee of the National Board of Canvassers, the projected maximum
total party-list votes, as of July 11, 2007, based on the votes actually
canvassed, votes canvassed but not included in Report No. 29, votes
received but uncanvassed, and maximum votes expected for Pantar,
Lanao del Norte, is 16,261,369; and that the projected maximum total
votes for the thirteen (13) qualified parties, organizations and coalition[s]
are as follows:

Party-List

Projected total number of votes

BUHAY

1,178,747

BAYAN MUNA

977,476

CIBAC

755,964

GABRIELA

621,718

APEC

622,489

A TEACHER

492,369

AKBAYAN

462,674

ALAGAD

423,190

BUTIL

409,298

10

COOP-NATCO

412,920

11

ANAKPAWIS

370,165

12

ARC

375,846

13

ABONO

340,151

WHEREAS, based on the above Report, Buhay Hayaan

Yumabong (Buhay) obtained the highest number of votes among the
thirteen (13) qualified parties, organizations and coalitions, making it the
first party in accordance with Veterans Federation Party versus
COMELEC, reiterated in Citizens Battle Against Corruption (CIBAC)
versus COMELEC;
WHEREAS, qualified parties, organizations and coalitions participating
under the party-list system of representation that have obtained one
guaranteed (1) seat may be entitled to an additional seat or seats based
on the formula prescribed by the Supreme Court in Veterans;
WHEREAS, in determining the additional seats for the first party, the
correct formula as expressed in Veterans, is:
Number of votes of first party Proportion of votes of first
- - - - - - - - - - - - - - - - - - - - - = party relative to total votes for
Total votes for party-list system party-list system

wherein the proportion of votes received by the first party (without

rounding off) shall entitle it to additional seats:
Proportion of votes received
by the first party

Additional seats

Equal to or at least 6%

Two (2) additional seats

Equal to or greater than 4% but less than 6%

One (1) additional seat

Less than 4%

No additional seat

WHEREAS, applying the above formula, Buhay obtained the following

percentage:
1,178,747
- - - - - - - - = 0.07248 or 7.2%
16,261,369
which entitles it to two (2) additional seats.
WHEREAS, in determining the additional seats for the other qualified
parties, organizations and coalitions, the correct formula as expressed
in Veterans and reiterated in CIBAC is, as follows:
No. of votes of
concerned party No. of additional
Additional seats for = ------------------- x seats allocated to
a concerned party No. of votes of first party
first party
WHEREAS, applying the above formula, the results are as follows:
Party List

Percentage

Additional Seat

BAYAN MUNA

1.65

CIBAC

1.28

GABRIELA

1.05

APEC

1.05

A TEACHER

0.83

AKBAYAN

0.78

ALAGAD

0.71

BUTIL

0.69

COOP-NATCO

0.69

ANAKPAWIS

0.62

ARC

0.63

ABONO

0.57

NOW THEREFORE, by virtue of the powers vested in it by the

Constitution, Omnibus Election Code, Executive Order No. 144,
Republic Act Nos. 6646, 7166, 7941 and other elections laws, the
Commission on Elections en banc sitting as the National Board of
Canvassers, hereby RESOLVED, as it hereby RESOLVES, to proclaim
the following parties, organizations or coalitions as entitled to additional
seats, to wit:
Party List

Additional Seats

BUHAY

BAYAN MUNA

CIBAC

GABRIELA

APEC

This is without prejudice to the proclamation of other parties,

organizations or coalitions which may later on be established to have
obtained at least two per cent (2%) of the total votes cast under the partylist system to entitle them to one (1) guaranteed seat, or to the
appropriate percentage of votes to entitle them to one (1) additional seat.
Finally, all proclamation of the nominees of concerned parties,
organizations and coalitions with pending disputes shall likewise be held
in abeyance until final resolution of their respective cases.

Let the National Board of Canvassers Secretariat implement this

Resolution, furnishing a copy hereof to the Speaker of the House of
Representatives of the Philippines.
SO ORDERED.[9]

Acting on BANATs petition, the NBC promulgated NBC Resolution No. 07-88 on
3 August 2007, which reads as follows:

This pertains to the Petition to Proclaim the Full Number of Party-List

Representatives Provided by the Constitution filed by the Barangay
Association for National Advancement and Transparency (BANAT).
Acting on the foregoing Petition of the Barangay Association for
National Advancement and Transparency (BANAT) party-list, Atty.
Alioden D. Dalaig, Head, National Board of Canvassers Legal Group
submitted his comments/observations and recommendation thereon
[NBC 07-041 (PL)], which reads:
COMMENTS / OBSERVATIONS:
Petitioner Barangay Association for National Advancement
and Transparency (BANAT), in its Petition to Proclaim the
Full Number of Party-List Representatives Provided by the
Constitution prayed for the following reliefs, to wit:
1. That the full number -- twenty percent (20%) -- of PartyList representatives as mandated by Section 5, Article VI of
the Constitution shall be proclaimed.
2. Paragraph (b), Section 11 of RA 7941 which prescribes
the 2% threshold votes, should be harmonized with Section
5, Article VI of the Constitution and with Section 12 of the
same RA 7941 in that it should be applicable only to the
first party-list representative seats to be allotted on the basis
of their initial/first ranking.
3. The 3-seat limit prescribed by RA 7941 shall be applied;
and

4. Initially, all party-list groups shall be given the number of

seats corresponding to every 2% of the votes they received
and the additional seats shall be allocated in accordance
with Section 12 of RA 7941, that is, in proportion to the
percentage of votes obtained by each party-list group in
relation to the total nationwide votes cast in the party-list
election, after deducting the corresponding votes of those
which were allotted seats under the 2% threshold rule. In
fine, the formula/procedure prescribed in the
ALLOCATION OF PARTY-LIST SEATS, ANNEX A of
COMELEC RESOLUTION 2847 dated 25 June 1996, shall
be used for [the] purpose of determining how many seats
shall be proclaimed, which party-list groups are entitled to
representative seats and how many of their nominees shall
seat [sic].
5. In the alternative, to declare as unconstitutional Section
11 of Republic Act No. 7941 and that the procedure in
allocating seats for party-list representative prescribed by
Section 12 of RA 7941 shall be followed.
RECOMMENDATION:
The petition of BANAT is now moot and academic.
The Commission En Banc in NBC Resolution No. 07-60
promulgated July 9, 2007 re In the Matter of the Canvass of
Votes and Partial Proclamation of the Parties, Organizations
and Coalitions Participating Under the Party-List System
During the May 14, 2007 National and Local
Elections resolved among others that the total number of
seats of each winning party, organization or coalition shall
be determined pursuant to the Veterans Federation
Party versus COMELEC formula upon completion of the
canvass of the party-list results.
WHEREFORE, premises considered, the National Board of Canvassers
RESOLVED, as it hereby RESOLVES, to approve and adopt the
recommendation of Atty. Alioden D. Dalaig, Head, NBC Legal Group, to
DENY the herein petition of BANAT for being moot and academic.
Let the Supervisory Committee implement this resolution.
SO ORDERED.[10]

BANAT filed a petition for certiorari and mandamus assailing the ruling in NBC
Resolution No. 07-88. BANAT did not file a motion for reconsideration of NBC
Resolution No. 07-88.
On 9 July 2007, Bayan Muna, Abono, and A Teacher asked the COMELEC, acting
as NBC, to reconsider its decision to use the Veterans formula as stated in its NBC
Resolution No. 07-60 because the Veterans formula is violative of the Constitution
and of Republic Act No. 7941 (R.A. No. 7941). On the same day, the COMELEC
denied reconsideration during the proceedings of the NBC.[11]
Aside from the thirteen party-list organizations proclaimed on 9 July 2007, the
COMELEC proclaimed three other party-list organizations as qualified parties
entitled to one guaranteed seat under the Party-List System: Agricultural Sector
Alliance of the Philippines, Inc. (AGAP),[12] Anak Mindanao (AMIN),[13] and An
Waray.[14] Per the certification[15] by COMELEC, the following party-list
organizations have been proclaimed as of 19 May 2008:
Party-List

No. of Seat(s)

1.1

Buhay

1.2

Bayan Muna

1.3

CIBAC

1.4

Gabriela

1.5

APEC

1.6

A Teacher

1.7

Akbayan

1.8

Alagad

1.9

Butil

1.10

Coop-Natco [sic]

1.11

Anak Pawis

1.12

ARC

1.13

Abono

1.14

AGAP

1.15

AMIN

The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing

Sambayanan (BATAS), against which an Urgent Petition for Cancellation/Removal
of Registration and Disqualification of Party-list Nominee (with Prayer for the
Issuance of Restraining Order) has been filed before the COMELEC, was deferred
pending final resolution of SPC No. 07-250.
Issues
BANAT brought the following issues before this Court:
1. Is the twenty percent allocation for party-list representatives provided
in Section 5(2), Article VI of the Constitution mandatory or is it merely a
ceiling?
2. Is the three-seat limit provided in Section 11(b) of RA
7941 constitutional?
3. Is the two percent threshold and qualifier votes prescribed by the same
Section 11(b) of RA 7941 constitutional?
4. How shall the party-list representatives be allocated? [16]

Bayan Muna, A Teacher, and Abono, on the other hand, raised the following issues
in their petition:
I. Respondent Commission on Elections, acting as National Board
of Canvassers, committed grave abuse of discretion amounting to lack or
excess of jurisdiction when it promulgated NBC Resolution No. 07-60 to
implement the First-Party Rule in the allocation of seats to qualified
party-list organizations as said rule:
A. Violates the constitutional principle of proportional representation.

B. Violates the provisions of RA 7941 particularly:

1. The 2-4-6 Formula used by the First Party Rule in allocating
additional seats for the First Party violates the principle of proportional
representation under RA 7941.
2. The use of two formulas in the allocation of additional seats, one for
the First Party and another for the qualifying parties, violates
Section 11(b) of RA 7941.
3. The proportional relationships under the First Party Rule are different
from those required under RA 7941;
C. Violates the Four Inviolable Parameters of the Philippine party-list
system as provided for under the same case of Veterans Federation
Party, et al. v. COMELEC.
II. Presuming that the Commission on Elections did not commit
grave abuse of discretion amounting to lack or excess of
jurisdiction when it implemented the First-Party Rule in the allocation of
seats to qualified party-list organizations, the same being merely
in consonance with the ruling in Veterans Federations Party, et al.
v. COMELEC, the instant Petition is a justiciable case as the
issues involved herein are constitutional in nature, involving the
correct interpretation and implementation of RA 7941, and are
of transcendental importance to our nation.[17]

Considering the allegations in the petitions and the comments of the parties in
these cases, we defined the following issues in our advisory for the oral arguments
set on 22 April 2008:
1. Is the twenty percent allocation for party-list representatives
in Section 5(2), Article VI of the Constitution mandatory or merely
a ceiling?
2. Is the three-seat limit in Section 11(b) of RA 7941 constitutional?
3. Is the two percent threshold prescribed in Section 11(b) of RA 7941 to
qualify for one seat constitutional?

4. How shall the party-list representative seats be allocated?

5. Does the Constitution prohibit the major political parties
from participating in the party-list elections? If not, can the
major political parties be barred from participating in the partylistelections?[18]

The Ruling of the Court

The petitions have partial merit. We maintain that a Philippine-style party-list
election has at least four inviolable parameters as clearly stated in Veterans. For
easy reference, these are:
First, the twenty percent allocation the combined number of all party-list
congressmen shall not exceed twenty percent of the total membership of
the House of Representatives, including those elected under the party
list;
Second, the two percent threshold only those parties garnering a
minimum of two percent of the total valid votes cast for the party-list
system are qualified to have a seat in the House of Representatives;
Third, the three-seat limit each qualified party, regardless of the number
of votes it actually obtained, is entitled to a maximum of three seats; that
is, one qualifying and two additional seats;
Fourth, proportional representation the additional seats which a qualified
party is entitled to shall be computed in proportion to their total number
of votes.[19]

However, because the formula in Veterans has flaws in its mathematical

interpretation of the term proportional representation, this Court is compelled to
revisit the formula for the allocation of additional seats to party-list organizations.
Number of Party-List Representatives:
The Formula Mandated by the Constitution

Section 5, Article VI of the Constitution provides:

Section 5. (1) The House of Representatives shall be composed of not
more than two hundred and fifty members, unless otherwise fixed by
law, who shall be elected from legislative districts apportioned among
the provinces, cities, and the Metropolitan Manila area in accordance
with the number of their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as provided by law, shall
be elected through a party-list system of registered national, regional,
and sectoral parties or organizations.
(2) The party-list representatives shall constitute twenty per centum of
the total number of representatives including those under the partylist. For three consecutive terms after the ratification of this Constitution,
one-half of the seats allocated to party-list representatives shall be filled,
as provided by law, by selection or election from the labor, peasant,
urban poor, indigenous cultural communities, women, youth, and such
other sectors as may be provided by law, except the religious sector.

The first paragraph of Section 11 of R.A. No. 7941 reads:

Section 11. Number of Party-List Representatives. The party-list
representatives shall constitute twenty per centum (20%) of the total
number of the members of the House of Representatives including those
under the party-list.
xxx

Section 5(1), Article VI of the Constitution states that the House of Representatives
shall be composed of not more than two hundred and fifty members, unless
otherwise fixed by law. The House of Representatives shall be composed of district
representatives and party-list representatives. The Constitution allows the
legislature to modify the number of the members of the House of Representatives.
Section 5(2), Article VI of the Constitution, on the other hand, states the ratio of
party-list representatives to the total number of representatives. We compute the
number of seats available to party-list representatives from the number of

legislative districts. On this point, we do not deviate from the first formula
in Veterans, thus:
Number of seats available
to legislative districts

x .20 =

Number of seats available to

party-list representatives

.80

This formula allows for the corresponding increase in the number of seats available
for party-list representatives whenever a legislative district is created by law. Since
the 14th Congress of the Philippines has 220 district representatives, there are 55
seats available to party-list representatives.
220

x .20 =

55

.80

After prescribing the ratio of the number of party-list representatives to the total
number of representatives, the Constitution left the manner of allocating the
seats available to party-list representatives to the wisdom of the legislature.
Allocation of Seats for Party-List Representatives:
The Statutory Limits Presented by the Two Percent Threshold
and the Three-Seat Cap

All parties agree on the formula to determine the maximum number of seats
reserved under the Party-List System, as well as on the formula to determine the
guaranteed seats to party-list candidates garnering at least two-percent of the total
party-list votes. However, there are numerous interpretations of the provisions of
R.A. No. 7941 on the allocation of additional seats under the Party-List
System. Veterans produced the First Party Rule,[20] and Justice Vicente V.
Mendozas dissent in Veterans presented Germanys Niemeyer formula[21] as an
alternative.

The Constitution left to Congress the determination of the manner of allocating the
seats for party-list representatives. Congress enacted R.A. No. 7941, paragraphs (a)
and (b) of Section 11 and Section 12 of which provide:
Section 11. Number of Party-List Representatives. x x x
In determining the allocation of seats for the second vote, [22] the
following procedure shall be observed:
(a) The parties, organizations, and coalitions shall be ranked from the
highest to the lowest based on the number of votes they garnered during
the elections.
(b) The parties, organizations, and coalitions receiving at least two
percent (2%) of the total votes cast for the party-list system shall be
entitled to one seat each: Provided, That those garnering more than
two percent (2%) of the votes shall be entitled to additional seats in
proportion to their total number of votes: Provided, finally, That each
party, organization, or coalition shall be entitled to not more than three
(3) seats.
Section 12. Procedure in Allocating Seats for Party-List
Representatives. The COMELEC shall tally all the votes for the parties,
organizations, or coalitions on a nationwide basis, rank them according
to the number of votes received and allocate party-list representatives
proportionately according to the percentage of votes obtained by each
party, organization, or coalition as against the total nationwide votes cast
for the party-list system. (Emphasis supplied)

In G.R. No. 179271, BANAT presents two interpretations through three formulas
to allocate party-list representative seats.
The first interpretation allegedly harmonizes the provisions of Section 11(b) on the
2% requirement with Section 12 of R.A. No. 7941. BANAT described this
procedure as follows:
(a) The party-list representatives shall constitute twenty percent (20%) of
the total Members of the House of Representatives including those from

the party-list groups as prescribed by Section 5, Article VI of the

Constitution, Section 11 (1 st par.) of RA 7941 and Comelec Resolution
No. 2847 dated 25 June 1996. Since there are 220 District
Representatives in the 14thCongress, there shall be 55 Party-List
Representatives. All seats shall have to be proclaimed.
(b) All party-list groups shall initially be allotted one (1) seat for every
two per centum (2%) of the total party-list votes they obtained; provided,
that no party-list groups shall have more than three (3) seats (Section 11,
RA 7941).
(c) The remaining seats shall, after deducting the seats obtained by the
party-list groups under the immediately preceding paragraph and after
deducting from their total the votes corresponding to those seats, the
remaining seats shall be allotted proportionately to all the party-list
groups which have not secured the maximum three (3) seats under the
2% threshold rule, in accordance with Section 12 of RA 7941. [23]

Forty-four (44) party-list seats will be awarded under BANATs first interpretation.
The second interpretation presented by BANAT assumes that the 2% vote
requirement is declared unconstitutional, and apportions the seats for party-list
representatives by following Section 12 of R.A. No. 7941. BANAT states that the
COMELEC:
(a) shall tally all the votes for the parties, organizations, or coalitions on
a nationwide basis;
(b) rank them according to the number of votes received; and,
(c) allocate party-list representatives proportionately according to
the percentage of votes obtained by each party, organization or coalition
as against the total nationwide votes cast for the party-list system.[24]

BANAT used two formulas to obtain the same results: one is based on the
proportional percentage of the votes received by each party as against the total
nationwide party-list votes, and the other is by making the votes of a party-list with
a median percentage of votes as the divisor in computing the allocation of seats.
[25]
Thirty-four (34) party-list seats will be awarded under BANATs second
interpretation.

In G.R. No. 179295, Bayan Muna, Abono, and A Teacher criticize both the
COMELECs original 2-4-6 formula and the Veterans formula for systematically
preventing all the party-list seats from being filled up. They claim that both
formulas do not factor in the total number of seats alloted for the entire Party-List
System. Bayan Muna, Abono, and A Teacher reject the three-seat cap, but accept
the 2% threshold. After determining the qualified parties, a second percentage is
generated by dividing the votes of a qualified party by the total votes of all
qualified parties only. The number of seats allocated to a qualified party is
computed by multiplying the total party-list seats available with the second
percentage. There will be a first round of seat allocation, limited to using the whole
integers as the equivalent of the number of seats allocated to the concerned partylist. After all the qualified parties are given their seats, a second round of seat
allocation is conducted. The fractions, or remainders, from the whole integers are
ranked from highest to lowest and the remaining seats on the basis of this ranking
are allocated until all the seats are filled up.[26]
We examine what R.A. No. 7941 prescribes to allocate seats for party-list
representatives.
Section 11(a) of R.A. No. 7941 prescribes the ranking of the participating parties
from the highest to the lowest based on the number of votes they garnered during
the elections.

Table 1. Ranking of the participating parties from the highest to the

lowest based on the number of votes garnered during the elections. [27]

Rank

Party

Votes
Rank
Garnered

1 BUHAY

1,169,234

2 BAYAN
MUNA

979,039

Party

Votes
Garnered

48 KALAHI

88,868

49 APOI

79,386

3 CIBAC

755,686

50 BP

78,541

4 GABRIELA

621,171

51 AHONBAYAN

78,424

5 APEC

619,657

52 BIGKIS

77,327

6 A TEACHER

490,379

53 PMAP

75,200

7 AKBAYAN

466,112

54 AKAPIN

74,686

8 ALAGAD

423,149

55 PBA

71,544

9 COOPNATCCO

409,883

56 GRECON

62,220

10 BUTIL

409,160

57 BTM

60,993

11 BATAS

385,810

58 A SMILE

58,717

12 ARC

374,288

59 NELFFI

57,872

13 ANAKPAWIS

370,261

60 AKSA

57,012

14 ABONO

339,990

61 BAGO

55,846

15 AMIN

338,185

62 BANDILA

54,751

16 AGAP

328,724

63 AHON

54,522

17 AN WARAY

321,503

64 ASAHAN MO

51,722

18 YACAP

310,889

65 AGBIAG!

50,837

19 FPJPM

300,923

66 SPI

50,478

20 UNI-MAD

245,382

67 BAHANDI

46,612

21 ABS

235,086

68 ADD

45,624

22 KAKUSA

228,999

69 AMANG

43,062

23 KABATAAN

228,637

70 ABAY PARAK

42,282

24 ABA-AKO

218,818

71 BABAE KA

36,512

25 ALIF

217,822

72 SB

34,835

26 SENIOR
CITIZENS

213,058

73 ASAP

34,098

27 AT

197,872

74 PEP

33,938

28 VFP

196,266

75 ABA
ILONGGO

33,903

29 ANAD

188,521

76 VENDORS

33,691

30 BANAT

177,028

77 ADD-TRIBAL

32,896

31 ANG
KASANGGA

170,531

78 ALMANA

32,255

32 BANTAY

169,801

79 AANGAT KA
PILIPINO

29,130

33 ABAKADA

166,747

80 AAPS

26,271

34 1-UTAK

164,980

81 HAPI

25,781

35 TUCP

162,647

82 AAWAS

22,946

36 COCOFED

155,920

83 SM

20,744

37 AGHAM

146,032

84 AG

16,916

38 ANAK

141,817

85 AGING PINOY

16,729

39 ABANSE!
PINAY

130,356

86 APO

16,421

40 PM

119,054

87 BIYAYANG
BUKID

16,241

41 AVE

110,769

88 ATS

14,161

42 SUARA

110,732

89 UMDJ

9,445

43 ASSALAM

110,440

90 BUKLOD
FILIPINA

8,915

44 DIWA

107,021

91 LYPAD

8,471

45 ANC

99,636

92 AA-KASOSYO

8,406

46 SANLAKAS

97,375

93 KASAPI

6,221

47 ABC

90,058

TOTAL

15,950,900

The first clause of Section 11(b) of R.A. No. 7941 states that parties, organizations,
and coalitions receiving at least two percent (2%) of the total votes cast for the
party-list system shall be entitled to one seat each. This clause guarantees a seat to
the two-percenters. In Table 2 below, we use the first 20 party-list candidates for
illustration purposes. The percentage of votes garnered by each party is arrived at
by dividing the number of votes garnered by each party by 15,950,900, the total
number of votes cast for all party-list candidates.
Table 2. The first 20 party-list candidates and their respective percentage
of votes garnered over the total votes for the party-list. [28]

Rank

Party

1 BUHAY

Votes Garnered
Votes
over Total Votes Guaranteed
Garnered for Party-List,
Seat
in %
1,169,234

7.33%

2 BAYAN MUNA

979,039

6.14%

3 CIBAC

755,686

4.74%

4 GABRIELA

621,171

3.89%

5 APEC

619,657

3.88%

6 A TEACHER

490,379

3.07%

7 AKBAYAN

466,112

2.92%

8 ALAGAD

423,149

2.65%

9 COOP-NATCCO

409,883

2.57%

10 BUTIL

409,160

2.57%

11 BATAS[29]

385,810

2.42%

12 ARC

374,288

2.35%

13 ANAKPAWIS

370,261

2.32%

14 ABONO

339,990

2.13%

15 AMIN

338,185

2.12%

16 AGAP

328,724

2.06%

17 AN WARAY

321,503

2.02%

Total

17

18 YACAP

310,889

1.95%

19 FPJPM

300,923

1.89%

20 UNI-MAD

245,382

1.54%

From Table 2 above, we see that only 17 party-list candidates received at least 2%
from the total number of votes cast for party-list candidates. The 17 qualified
party-list candidates, or the two-percenters, are the party-list candidates that are
entitled to one seat each, or the guaranteed seat. In this first round of seat
allocation, we distributed 17 guaranteed seats.
The second clause of Section 11(b) of R.A. No. 7941 provides that those garnering
more than two percent (2%) of the votes shall be entitled to additional seats in
proportion to their total number of votes. This is where petitioners and
intervenors problem with the formula in Veterans lies. Veterans interprets the
clause in proportion to their total number of votes to be in proportion to the votes
of the first party. This interpretation is contrary to the express language of R.A.
No. 7941.
We rule that, in computing the allocation of additional seats, the continued
operation of the two percent threshold for the distribution of the additional seats as
found in the second clause of Section 11(b) of R.A. No. 7941
is unconstitutional. This Court finds that the two percent threshold makes it
mathematically impossible to achieve the maximum number of available party list
seats when the number of available party list seats exceeds 50. The continued
operation of the two percent threshold in the distribution of the additional seats
frustrates the attainment of the permissive ceiling that 20% of the members of the
House of Representatives shall consist of party-list representatives.
To illustrate: There are 55 available party-list seats. Suppose there are 50 million
votes cast for the 100 participants in the party list elections. A party that has two

percent of the votes cast, or one million votes, gets a guaranteed seat. Let us further
assume that the first 50 parties all get one million votes. Only 50 parties get a seat
despite the availability of 55 seats. Because of the operation of the two percent
threshold, this situation will repeat itself even if we increase the available party-list
seats to 60 seats and even if we increase the votes cast to 100 million. Thus, even if
the maximum number of parties get two percent of the votes for every party, it is
always impossible for the number of occupied party-list seats to exceed 50 seats as
long as the two percent threshold is present.
We therefore strike down the two percent threshold only in relation to the
distribution of the additional seats as found in the second clause of Section 11(b) of
R.A. No. 7941. The two percent threshold presents an unwarranted obstacle to the
full implementation of Section 5(2), Article VI of the Constitution and prevents the
attainment of the broadest possible representation of party, sectoral or group
interests in the House of Representatives.[30]
In determining the allocation of seats for party-list representatives under Section 11
of R.A. No. 7941, the following procedure shall be observed:
1.
The parties, organizations, and coalitions shall be ranked from the highest
to the lowest based on the number of votes they garnered during the elections.
2.
The parties, organizations, and coalitions receiving at least two percent
(2%) of the total votes cast for the party-list system shall be entitled to one
guaranteed seat each.
3.
Those garnering sufficient number of votes, according to the ranking in
paragraph 1, shall be entitled to additional seats in proportion to their total number
of votes until all the additional seats are allocated.
4.
Each party, organization, or coalition shall be entitled to not more than three
(3) seats.
In computing the additional seats, the guaranteed seats shall no longer be included
because they have already been allocated, at one seat each, to every twopercenter. Thus, the remaining available seats for allocation as additional

seats are the maximum seats reserved under the Party List System less the
guaranteed seats. Fractional seats are disregarded in the absence of a provision in
R.A. No. 7941 allowing for a rounding off of fractional seats.
In declaring the two percent threshold unconstitutional, we do not limit our
allocation of additional seats in Table 3 below to the two-percenters. The
percentage of votes garnered by each party-list candidate is arrived at by dividing
the number of votes garnered by each party by 15,950,900, the total number of
votes cast for party-list candidates. There are two steps in the second round of seat
allocation. First, the percentage is multiplied by the remaining available seats, 38,
which is the difference between the 55 maximum seats reserved under the PartyList System and the 17 guaranteed seats of the two-percenters. The whole integer
of the product of the percentage and of the remaining available seats corresponds
to a partys share in the remaining available seats. Second, we assign one party-list
seat to each of the parties next in rank until all available seats are completely
distributed. We distributed all of the remaining 38 seats in the second round of seat
allocation. Finally, we apply the three-seat cap to determine the number of seats
each qualified party-list candidate is entitled. Thus:

Table 3. Distribution of Available Party-List Seats

Rank

Party

Votes

Votes

(B)

Applyin

al

plus

g the

Seats

(C), in

three

Total

whole

seat

Votes

integer

cap

for Party

Garnered Garnere

Guarantee Addition
d Seat

d over

List, in
%

(First

(Second

Round)

(A)

Round)

(B)

(C)

(E)

(D)

BUHAY

1,169,234

7.33%

2.79

N.A.

BAYAN

979,039

6.14%

2.33

N.A.

MUNA
3

CIBAC

755,686

4.74%

1.80

N.A.

GABRIELA

621,171

3.89%

1.48

N.A.

APEC

619,657

3.88%

1.48

N.A.

A Teacher

490,379

3.07%

1.17

N.A.

AKBAYAN

466,112

2.92%

1.11

N.A.

ALAGAD

423,149

2.65%

1.01

N.A.

COOP-

409,883

2.57%

N.A.

9[31]

NATCCO
10

BUTIL

409,160

2.57%

N.A.

11

BATAS

385,810

2.42%

N.A.

12

ARC

374,288

2.35%

N.A.

13

ANAKPAWIS

370,261

2.32%

N.A.

14

ABONO

339,990

2.13%

N.A.

15

AMIN

338,185

2.12%

N.A.

16

AGAP

328,724

2.06%

N.A.

17

AN WARAY

321,503

2.02%

N.A.

18

YACAP

310,889

1.95%

N.A.

19

FPJPM

300,923

1.89%

N.A.

20

UNI-MAD

245,382

1.54%

N.A.

21

ABS

235,086

1.47%

N.A.

22

KAKUSA

228,999

1.44%

N.A.

23

KABATAAN

228,637

1.43%

N.A.

24

ABA-AKO

218,818

1.37%

N.A.

25

ALIF

217,822

1.37%

N.A.

26

SENIOR

213,058

1.34%

N.A.

CITIZENS
27

AT

197,872

1.24%

N.A.

28

VFP

196,266

1.23%

N.A.

29

ANAD

188,521

1.18%

N.A.

30

BANAT

177,028

1.11%

N.A.

31

ANG

170,531

1.07%

N.A.

KASANGGA
32

BANTAY

169,801

1.06%

N.A.

33

ABAKADA

166,747

1.05%

N.A.

34

1-UTAK

164,980

1.03%

N.A.

35

TUCP

162,647

1.02%

N.A.

36

COCOFED

155,920

0.98%

N.A.

Total

17

55

Applying the procedure of seat allocation as illustrated in Table 3 above, there are
55 party-list representatives from the 36 winning party-list organizations. All 55
available party-list seats are filled. The additional seats allocated to the parties with
sufficient number of votes for one whole seat, in no case to exceed a total of three
seats for each party, are shown in column (D).
Participation of Major Political Parties in Party-List Elections

The Constitutional Commission adopted a multi-party system that allowed all

political parties to participate in the party-list elections. The deliberations of
the Constitutional Commission clearly bear this out, thus:
MR. MONSOD. Madam President, I just want to say that we suggested
or proposed the party list system because we wanted to open up the
political system to a pluralistic society through a multiparty system. x x
x We are for opening up the system, and we would like very much
for the sectors to be there. That is why one of the ways to do that is
to put a ceiling on the number of representatives from any single
party that can sit within the 50 allocated under the party list system.
x x x.
xxx
MR. MONSOD. Madam President, the candidacy for the 198 seats is not
limited to political parties. My question is this: Are we going to classify
for example Christian Democrats and Social Democrats as political
parties? Can they run under the party list concept or must they be under
the district legislation side of it only?
MR. VILLACORTA. In reply to that query, I think these parties that the
Commissioner mentioned can field candidates for the Senate as well as
for the House of Representatives.Likewise, they can also field sectoral
candidates for the 20 percent or 30 percent, whichever is adopted, of
the seats that we are allocating under the party list system.
MR. MONSOD. In other words, the Christian Democrats can field
district candidates and can also participate in the party list system?
MR. VILLACORTA. Why not? When they come to the party list
system, they will be fielding only sectoral candidates.
MR. MONSOD. May I be clarified on that? Can UNIDO participate in
the party list system?
MR. VILLACORTA. Yes, why not? For as long as they field
candidates who come from the different marginalized sectors that
we shall designate in this Constitution.

MR. MONSOD. Suppose Senator Taada wants to run under BAYAN

group and says that he represents the farmers, would he qualify?
MR. VILLACORTA. No, Senator Taada would not qualify.
MR. MONSOD. But UNIDO can field candidates under the party list
system and say Juan dela Cruz is a farmer. Who would pass on whether
he is a farmer or not?
MR. TADEO. Kay Commissioner Monsod, gusto ko lamang linawin
ito. Political parties, particularly minority political parties, are not
prohibited to participate in the party list election if they can prove
that they are also organized along sectoral lines.
MR. MONSOD. What the Commissioner is saying is that all political
parties can participate because it is precisely the contention of political
parties that they represent the broad base of citizens and that all sectors
are represented in them. Would the Commissioner agree?
MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang UNIDO
na isang political party, it will dominate the party list at mawawalang
saysay din yung sector. Lalamunin mismo ng political parties ang party
list system. Gusto ko lamang bigyan ng diin ang reserve. Hindi ito
reserve seat sa marginalized sectors. Kung titingnan natin itong 198
seats, reserved din ito sa political parties.
MR. MONSOD. Hindi po reserved iyon kasi anybody can run there. But
my question to Commissioner Villacorta and probably also to
Commissioner Tadeo is that under this system, would UNIDO be banned
from running under the party list system?
MR. VILLACORTA. No, as I said, UNIDO may field sectoral
candidates. On that condition alone, UNIDO may be allowed to
register for the party list system.
MR. MONSOD. May I inquire from Commissioner Tadeo if he shares
that answer?
MR. TADEO. The same.
MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral lines.

xxxx
MR. OPLE. x x x In my opinion, this will also create the stimulus for
political parties and mass organizations to seek common ground. For
example, we have the PDP-Laban and the UNIDO. I see no reason why
they should not be able to make common goals with mass organizations
so that the very leadership of these parties can be transformed through
the participation of mass organizations. And if this is true of the
administration parties, this will be true of others like the Partido ng
Bayan which is now being formed. There is no question that they will be
attractive to many mass organizations. In the opposition parties to which
we belong, there will be a stimulus for us to contact mass organizations
so that with their participation, the policies of such parties can be
radically transformed because this amendment will create conditions that
will challenge both the mass organizations and the political parties to
come together. And the party list system is certainly available, although
it is open to all the parties. It is understood that the parties will enter in
the roll of the COMELEC the names of representatives of mass
organizations affiliated with them. So that we may, in time, develop this
excellent system that they have in Europe where labor organizations and
cooperatives, for example, distribute themselves either in the Social
Democratic Party and the Christian Democratic Party in Germany, and
their very presence there has a transforming effect upon the philosophies
and the leadership of those parties.
It is also a fact well known to all that in the United States, the AFL-CIO
always vote with the Democratic Party. But the businessmen, most of
them, always vote with the Republican Party, meaning that there is no
reason at all why political parties and mass organizations should not
combine, reenforce, influence and interact with each other so that the
very objectives that we set in this Constitution for sectoral representation
are achieved in a wider, more lasting, and more institutionalized way.
Therefore, I support this [Monsod-Villacorta] amendment. It installs
sectoral representation as a constitutional gift, but at the same time, it
challenges the sector to rise to the majesty of being elected
representatives later on through a party list system; and even beyond
that, to become actual political parties capable of contesting political
power in the wider constitutional arena for major political parties.
x x x [32] (Emphasis supplied)

R.A. No. 7941 provided the details for the concepts put forward by the
Constitutional Commission. Section 3 of R.A. No. 7941 reads:
Definition of Terms. (a) The party-list system is a mechanism of
proportional representation in the election of representatives to the
House of Representatives from national, regional and sectoral parties or
organizations or coalitions thereof registered with the Commission on
Elections (COMELEC). Component parties or organizations of a
coalition may participate independently provided the coalition of which
they form part does not participate in the party-list system.
(b) A party means either a political party or a sectoral party or a coalition
of parties.
(c) A political party refers to an organized group of citizens advocating
an ideology or platform, principles and policies for the general conduct
of government and which, as the most immediate means of securing their
adoption, regularly nominates and supports certain of its leaders and
members as candidates for public office.
It is a national party when its constituency is spread over the
geographical territory of at least a majority of the regions. It is a regional
party when its constituency is spread over the geographical territory of at
least a majority of the cities and provinces comprising the region.
(d) A sectoral party refers to an organized group of citizens belonging to
any of the sectors enumerated in Section 5 hereof whose principal
advocacy pertains to the special interests and concerns of their sector,
(e) A sectoral organization refers to a group of citizens or a coalition of
groups of citizens who share similar physical attributes or characteristics,
employment, interests or concerns.
(f) A coalition refers to an aggrupation of duly registered national,
regional, sectoral parties or organizations for political and/or election
purposes.

Congress, in enacting R.A. No. 7941, put the three-seat cap to prevent any party
from dominating the party-list elections.

Neither the Constitution nor R.A. No. 7941 prohibits major political parties from
participating in the party-list system. On the contrary, the framers of the
Constitution clearly intended the major political parties to participate in party-list
elections through their sectoral wings. In fact, the members of the Constitutional
Commission voted down, 19-22, any permanent sectoral seats, and in the
alternative the reservation of the party-list system to the sectoral groups. [33] In
defining a party that participates in party-list elections as either a political party or
a sectoral party, R.A. No. 7941 also clearly intended that major political parties
will participate in the party-list elections.Excluding the major political parties in
party-list elections is manifestly against the Constitution, the intent of the
Constitutional Commission, and R.A. No. 7941. This Court cannot engage in
socio-political engineering and judicially legislate the exclusion of major political
parties from the party-list elections in patent violation of the Constitution and the
law.
Read together, R.A. No. 7941 and the deliberations of the Constitutional
Commission state that major political parties are allowed to establish, or form
coalitions with, sectoral organizations for electoral or political purposes. There
should not be a problem if, for example, the Liberal Party participates in the partylist election through the Kabataang Liberal ng Pilipinas (KALIPI), its sectoral
youth wing. The other major political parties can thus organize, or affiliate with,
their chosen sector or sectors. To further illustrate, the Nacionalista Party can
establish a fisherfolk wing to participate in the party-list election, and this
fisherfolk wing can field its fisherfolk nominees.Kabalikat ng Malayang Pilipino
(KAMPI) can do the same for the urban poor.
The qualifications of party-list nominees are prescribed in Section 9 of R.A. No.
7941:

Qualifications of Party-List Nominees. No person shall be nominated as

party-list representative unless he is a natural born citizen of the
Philippines, a registered voter, a resident of the Philippines for a period
of not less than one (1) year immediately preceding the day of the
elections, able to read and write, bona fide member of the party or
organization which he seeks to represent for at least ninety (90) days

preceding the day of the election, and is at least twenty-five (25) years of
age on the day of the election.
In case of a nominee of the youth sector, he must at least be twenty-five
(25) but not more than thirty (30) years of age on the day of the
election. Any youth sectoral representative who attains the age of thirty
(30) during his term shall be allowed to continue until the expiration of
his term.

Under Section 9 of R.A. No. 7941, it is not necessary that the party-list
organizations nominee wallow in poverty, destitution and infirmity [34] as there is no
financial status required in the law. It is enough that the nominee of the sectoral
party/organization/coalition belongs to the marginalized and underrepresented
sectors,[35] that is, if the nominee represents the fisherfolk, he or she must be a
fisherfolk, or if the nominee represents the senior citizens, he or she must be a
senior citizen.
Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the entire
20% allocation of party-list representatives found in the Constitution. The
Constitution, in paragraph 1, Section 5 of Article VI, left the determination of the
number of the members of the House of Representatives to Congress: The House
of Representatives shall be composed of not more than two hundred and fifty
members, unless otherwise fixed by law, x x x. The 20% allocation of party-list
representatives is merely a ceiling; party-list representatives cannot be more than
20% of the members of the House of Representatives. However, we cannot allow
the continued existence of a provision in the law which will systematically prevent
the constitutionally allocated 20% party-list representatives from being filled. The
three-seat cap, as a limitation to the number of seats that a qualified party-list
organization may occupy, remains a valid statutory device that prevents any party
from dominating the party-list elections. Seats for party-list representatives shall
thus be allocated in accordance with the procedure used in Table 3 above.
However, by a vote of 8-7, the Court decided to continue the ruling
in Veterans disallowing major political parties from participating in the party-list
elections, directly or indirectly. Those who voted to continue disallowing major
political parties from the party-list elections joined Chief Justice Reynato S. Puno

in his separate opinion. On the formula to allocate party-list seats, the Court is
unanimous in concurring with this ponencia.
WHEREFORE, we PARTIALLY GRANT the petition. We SET ASIDE the
Resolution of the COMELEC dated 3 August 2007 in NBC No. 07-041 (PL) as
well as the Resolution dated 9 July 2007 in NBC No. 07-60. We declare
unconstitutional the two percent threshold in the distribution of additional party-list
seats. The allocation of additional seats under the Party-List System shall be in
accordance with the procedure used in Table 3 of this Decision. Major political
parties are disallowed from participating in party-list elections. This Decision is
immediately executory. No pronouncement as to costs.
SO ORDERED.

G.R. No. 203766

April 2, 2013

ATONG PAGLAUM, INC., represented by its President, Mr. Alan Igot, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. Nos. 203818-19
AKO BICOL POLITICAL PARTY (AKB), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 203922
ASSOCIATION OF PHILIPPINE ELECTRIC COOPERATIVES (APEC),represented by its
President Congressman Ponciano D. Payuyo, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 203936
AKSYON MAGSASAKA-PARTIDO TINIG NG MASA, represented by its President Michael Abas
Kida,Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 203958

KAPATIRAN NG MGA NAKULONG NA WALANG SALA, INC. (KAKUSA), Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 203960
1st CONSUMERS ALLIANCE FOR RURAL ENERGY, INC. (1-CARE), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 203976
ALLIANCE FOR RURAL AND AGRARIAN RECONSTRUCTION, INC. (ARARO), Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 203981
ASSOCIATION FOR RIGHTEOUSNESS ADVOCACY ON LEADERSHIP (ARAL) PARTY-LIST,
represented herein by Ms. Lourdes L. Agustin, the partys Secretary General, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204002
ALLIANCE FOR RURAL CONCERNS, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204094
ALLIANCE FOR NATIONALISM AND DEMOCRACY (ANAD), Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204100

1-BRO PHILIPPINE GUARDIANS BROTHERHOOD, INC., (1BRO-PGBI) formerly

PGBI, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204122
1 GUARDIANS NATIONALIST PHILIPPINES, INC., (1GANAP/GUARDIANS), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC composed of SIXTO S. BRILLANTES, JR., Chairman,
RENE V. SARMIENTO, Commissioner,LUCENITO N. TAGLE, Commissioner,ARMANDO C.
VELASCO, Commissioner,ELIAS R. YUSOPH, Commissioner, andCHRISTIAN ROBERT S. LIM,
Commissioner,Respondents.
x-----------------------x
G.R. No. 204125
AGAPAY NG INDIGENOUS PEOPLES RIGHTS ALLIANCE, INC. (A-IPRA), represented by its
Secretary General,Ronald D. Macaraig, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204126
KAAGAPAY NG NAGKAKAISANG AGILANG PILIPINONG MAGSASAKA (KAP), formerly
known as AKO AGILA NG NAGKAKAISANG MAGSASAKA (AKO AGILA), represented by its
Secretary General, Leo R. San Buenaventura, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204139
ALAB NG MAMAMAHAYAG (ALAM), represented by Atty. Berteni Catalua
Causing, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204141
BANTAY PARTY LIST, represented by Maria Evangelina F. Palparan, President, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

x-----------------------x
G.R. No. 204153
PASANG MASDA NATIONWIDE PARTY by its President Roberto "Ka Obet" Martin, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondents.
x-----------------------x
G.R. No. 204158
ABROAD PARTY LIST, Petitioner,
vs.
COMMISSION ON ELECTIONS, CHAIRMAN SIXTO S. BRILLANTES, JR., COMMISSIONERS
RENE V. SARMIENTO, ARMANDO C. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S.
LIM, MARIA GRACIA CIELO M. PADACA, LUCENITO TAGLE, AND ALL OTHER PERSONS
ACTING ON THEIR BEHALF,Respondents.
x-----------------------x
G.R. No. 204174
AANGAT TAYO PARTY LIST-PARTY, represented by its President Simeon T. Silva,
Jr., Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204216
COCOFED-PHILIPPINE COCONUT PRODUCERS FEDERATION, INC., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204220
ABANG LINGKOD PARTY-LIST, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204236

FIRM 24-K ASSOCIATION, INC., Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204238
ALLIANCE OF BICOLNON PARTY (ABP), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204239
GREEN FORCE FOR THE ENVIRONMENT SONS AND DAUGHTERS OF MOTHER EARTH
(GREENFORCE),Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204240
AGRI-AGRA NA REPORMA PARA SA MAGSASAKA NG PILIPINAS MOVEMENT (AGRI),
represented by its Secretary General, Michael Ryan A. Enriquez, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204263
A BLESSED PARTY LIST A.K.A. BLESSEDFEDERATION OF FARMERS AND FISHERMEN
INTERNATIONAL, INC., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204318
UNITED MOVEMENT AGAINST DRUGS FOUNDATION (UNIMAD) PARTY-LIST, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204321

ANG AGRIKULTURA NATIN ISULONG (AANI), represented by its Secretary General Jose C.
Policarpio, Jr.,Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204323
BAYANI PARTYLIST as represented byHomer Bueno, Fitrylin Dalhani,Israel de Castro, Dante
Navarroand Guiling Mamondiong, Petitioner,
vs.
COMMISSION ON ELECTIONS, CHAIRMAN SIXTO S. BRILLANTES, JR., COMMISSIONERS
RENE V. SARMIENTO, LUCENITO N. TAGLE, ARMANDO C. VELASCO, ELIAS R. YUSOPH,
CHRISTIAN ROBERT S. LIM, and MARIA GRACIA CIELO M. PADACA, Respondents.
x-----------------------x
G.R. No. 204341
ACTION LEAGUE OF INDIGENOUS MASSES(ALIM) PARTY-LIST, represented herein by its
President Fatani S. Abdul Malik, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204356
BUTIL FARMERS PARTY, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204358
ALLIANCE OF ADVOCATES IN MININGADVANCEMENT FOR NATIONAL PROGRESS
(AAMA), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204359
SOCIAL MOVEMENT FOR ACTIVEREFORM AND TRANSPARENCY (SMART), represented by
its Chairman, Carlito B. Cubelo, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

x-----------------------x
G.R. No. 204364
ADHIKAIN AT KILUSAN NG ORDINARYONG-TAO, PARA SA LUPA, PABAHAY, HANAPBUHAY
AT KAUNLARAN (AKO BUHAY), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, SIXTO S. BRILLANTES, JR., RENE V. SARMIENTO,
LUCENITO N. TAGLE, ARMANDO C. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S.
LIM, and MA. GRACIA CIELO M. PADACA, in their capacities as Commissioners
thereof, Respondents.
x-----------------------x
G.R. No. 204367
AKBAY KALUSUGAN INCORPORATION(AKIN), Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204370
AKO AN BISAYA (AAB), represented by itsSecretary General, Rodolfo T. Tuazon, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204374
BINHI-PARTIDO NG MGA MAGSASAKA PARA SA MGA MAGSASAKA, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204379
ALAGAD NG SINING (ASIN) represented by its President, Faye Maybelle Lorenz, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204394
ASSOCIATION OF GUARD UTILITY HELPER, AIDER, RIDER, DRIVER/DOMESTIC HELPER,
JANITOR, AGENT AND NANNY OF THE PHILIPPINES, INC. (GUARDJAN), Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204402
KALIKASAN PARTY-LIST, represented by its President, Clemente G. Bautista, Jr., and
Secretary General, Frances Q. Quimpo, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204408
PILIPINO ASSOCIATION FOR COUNTRY-URBAN POOR YOUTH ADVANCEMENT AND
WELFARE (PACYAW),Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204410
1-UNITED TRANSPORT KOALISYON (1-UTAK), Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204421
COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE PHILIPPINES, INC. SENIOR
CITIZEN PARTY-LIST, represented herein by its 1st nominee and Chairman, Francisco G.
Datol, Jr., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204425
COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE PHILIPPINES, INC., Petitioner,
vs.
COMMISSION ON ELECTIONS and ANY OF ITS OFFICERS AND AGENTS, ACTING FOR AND
IN ITS BEHALF, INCLUDING THE CHAIR AND MEMBERSOF THE COMMISSION, Respondents.
x-----------------------x

G.R. No. 204426

ASSOCIATION OF LOCAL ATHLETICS ENTREPRENEURS AND HOBBYISTS, INC. (ALAEH), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, SIXTO S. BRILLANTES, JR., RENE V. SARMIENTO,
LUCENITO N. TAGLE, ARMANDO C. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S.
LIM, and MA. GRACIA CIELO M. PADACA, in their respective capacities as COMELEC
Chairperson and Commissioners, Respondents.
x-----------------------x
G.R. No. 204428
ANG GALING PINOY (AG), represented by its Secretary General, Bernardo R. Corella,
Jr., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204435
1 ALLIANCE ADVOCATING AUTONOMY PARTY (1AAAP), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204436
ABYAN ILONGGO PARTY (AI), represented byits Party President, Rolex T. Suplico, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204455
MANILA TEACHER SAVINGS AND LOAN ASSOCIATION, INC., Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204484
PARTIDO NG BAYAN ANG BIDA (PBB), represented by its Secretary General, Roger M.
Federazo,Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

x-----------------------x
G.R. No. 204485
ALLIANCE OF ORGANIZATIONS, NETWORKS AND ASSOCIATIONS OF THE PHILIPPINES,
INC. (ALONA),Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204486
1st KABALIKAT NG BAYAN GINHAWANG SANGKATAUHAN (1st KABAGIS), Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204490
PILIPINAS PARA SA PINOY (PPP), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
PERLAS-BERNABE,*
DECISION
CARPIO, J.:
The Cases
These cases constitute 54 Petitions for Certiorari and Petitions for Certiorari and Prohibition1 filed by
52 party-list groups and organizations assailing the Resolutions issued by the Commission on
Elections (COMELEC) disqualifying them from participating in the 13 May 2013 party-list elections,
either by denial of their petitions for registration under the party-list system, or cancellation of their
registration and accreditation as party-list organizations.
This Court resolved to consolidate the 54 petitions in the Resolutions dated 13 November 2012, 2 20
November 2012,3 27 November 2012,4 4 December 2012,5 11 December 2012,6 and 19 February
2013.7
The Facts Pursuant to the provisions of Republic Act No. 7941 (R.A. No. 7941) and COMELEC
Resolution Nos. 9366 and 9531, approximately 280 groups and organizations registered and
manifested their desire to participate in the 13 May 2013 party-list elections.
G.R.
No.

SPP No.

Group

Grounds for Denial

A. Via the COMELEC En Bancs automatic review of the COMELEC

Divisions resolutions approving registration of groups/organizations
Resolution dated 23 November 20128
1

204379

12-099
(PLM)

Alagad ng
Sining (ASIN)

- The "artists" sector is not

considered marginalized and
underrepresented;
- Failure to prove track
record; and
- Failure of the nominees to
qualify under RA 7941 and
Ang Bagong Bayani.

Omnibus Resolution dated 27 November 20129

2

204455

12-041
(PLM)

Manila Teachers
Savings and
Loan
Association, Inc.
(Manila
Teachers)

- A non-stock savings and

loan association cannot be
considered marginalized and
underrepresented; and
- The first and second
nominees are not teachers by
profession.

204426

12-011
(PLM)

Association of
Local Athletics
Entrepreneurs
and Hobbyists,
Inc. (ALA-EH)

- Failure to show that its

members belong to the
marginalized; and
- Failure of the nominees to
qualify.

Resolution dated 27 November 201210

4

204435

12-057
(PLM)

1 Alliance
Advocating
Autonomy Party
(1AAAP)

- Failure of the nominees to

qualify: although registering
as a regional political party,
two of the nominees are not
residents of the region; and
four of the five nominees do
not belong to the
marginalized and underrepresented.

Resolution dated 27 November 201211

5

204367

12-104 (PL) Akbay

Kalusugan
(AKIN), Inc.

- Failure of the group to show

that its nominees belong to
the urban poor sector.

Resolution dated 29 November 201212

6

204370

12-011 (PP) Ako An Bisaya

(AAB)

- Failure to represent a
marginalized sector of
society, despite the formation
of a sectoral wing for the
benefit of farmers of Region
8;
- Constituency has district
representatives;

- Lack of track record in

representing peasants and
farmers; and
- Nominees are neither
farmers nor peasants.
Resolution dated 4 December 201213
7

204436

12-009
(PP),
12-165
(PLM)

Abyan Ilonggo
Party (AI)

- Failure to show that the

party represents a
marginalized and
underrepresented sector, as
the Province of Iloilo has
district representatives;
- Untruthful statements in the
memorandum; and
- Withdrawal of three of its
five nominees.

Resolution dated 4 December 201214

8

204485

12-175 (PL) Alliance of

Organizations,
Networks and Associations
of
the Philippines,
Inc. (ALONA)

- Failure to establish that the

group can represent 14
sectors; - The sectors of
homeowners
associations, entrepreneurs
and cooperatives are not
marginalized and
underrepresented; and
- The nominees do not belong
to the marginalized and
underrepresented.

B. Via the COMELEC En Bancs review on motion for reconsideration

of the COMELEC Divisions resolutions denying registration of groups
and organizations
Resolution dated 7 November 201215
9

204139

12-127 (PL) Alab ng

Mamamahayag
(ALAM)

- Failure to prove track

record as an organization;
- Failure to show that the
group actually represents the
marginalized and
underrepresented; and
- Failure to establish that the
group can represent all
sectors it seeks to represent.

Resolution dated 7 November 201216

1
0

204402

12-061 (PP) Kalikasan Party-List

(KALIKASAN)

- The group reflects an

advocacy for the
environment, and is not
representative of the
marginalized and

underrepresented;
- There is no proof that
majority of its members
belong to the marginalized
and underrepresented;
- The group represents
sectors with conflicting
interests; and
- The nominees do not belong
to the sector which the group
claims to represent.
Resolution dated 14 November 201217
11 204394

12-145 (PL) Association of

Guard, Utility
Helper, Aider,
Rider, Driver/
Domestic
Helper,
Janitor, Agent
and
Nanny of the
Philippines, Inc.
(GUARDJAN)

- Failure to prove
membership base and track
record;
- Failure to present activities
that sufficiently benefited its
intended constituency; and
- The nominees do not belong
to any of the sectors which
the group seeks to represent.

Resolution dated 5 December 201218

1
2

204490

12-073
(PLM)

Pilipinas Para sa
Pinoy (PPP)

- Failure to show that the

group represents a
marginalized and
underrepresented sector, as
Region 12 has district
representatives; and
- Failure to show a track
record of undertaking
programs for the welfare of
the sector the group seeks to
represent.

In a Resolution dated 5 December 2012,19 the COMELEC En Banc affirmed the COMELEC Second
Divisions resolution to grant Partido ng Bayan ng Bidas (PBB) registration and accreditation as a
political party in the National Capital Region. However, PBB was denied participation in the 13 May
2013 party-list elections because PBB does not represent any "marginalized and underrepresented"
sector; PBB failed to apply for registration as a party-list group; and PBB failed to establish its track
record as an organization that seeks to uplift the lives of the "marginalized and underrepresented." 20
These 13 petitioners (ASIN, Manila Teachers, ALA-EH, 1AAAP, AKIN, AAB, AI, ALONA, ALAM,
KALIKASAN, GUARDJAN, PPP, and PBB) were not able to secure a mandatory injunction from this
Court. The COMELEC, on 7 January 2013 issued Resolution No. 9604,21 and excluded the names of
these 13 petitioners in the printing of the official ballot for the 13 May 2013 party-list elections.
Pursuant to paragraph 222 of Resolution No. 9513, the COMELEC En Banc scheduled summary
evidentiary hearings to determine whether the groups and organizations that filed manifestations of
intent to participate in the 13 May 2013 party-list elections have continually complied with the
requirements of R.A. No. 7941 and Ang Bagong Bayani-OFW Labor Party v. COMELEC 23 (Ang

Bagong Bayani). The COMELEC disqualified the following groups and organizations from
participating in the 13 May 2013 party-list elections:
G.R. No.

SPP
No.

Group

Grounds for Denial

Resolution dated 10 October 201224

1

20381819

12-154
(PLM)
12-177
(PLM)

AKO Bicol
Political Party
(AKB)

Retained registration and

accreditation as a political
party, but denied participation
in the May 2013 party-list
elections
- Failure to represent any
marginalized and
underrepresented sector;
- The Bicol region already
has representatives in
Congress; and
- The nominees are not
marginalized and
underrepresented.

Omnibus Resolution dated 11 October 201225

2

203766

12-161
(PLM)

Atong Paglaum,
Inc. (Atong
Paglaum)

Cancelled registration and

accreditation
- The nominees do not belong
to the sectors which the party
represents; and
- The party failed to file its
Statement of Contributions
and Expenditures for the
2010 Elections.

203981

12-187
(PLM)

Association for
Righteousness
Advocacy on
Leadership
(ARAL)

Cancelled registration and

accreditation
- Failure to comply, and for
violation of election laws;
- The nominees do not
represent the sectors which
the party represents; and
- There is doubt that the party
is organized for religious
purposes.

204002

12-188
(PLM)

Alliance for
Rural Concerns
(ARC)

Cancelled registration and

accreditation
- Failure of the nominees to
qualify; and
- Failure of the party to prove
that majority of its members
belong to the sectors it seeks
to represent.

204318

12-220
(PLM)

United
Movement
Against Drugs
Foundation
(UNIMAD)

Cancelled registration and

accreditation
- The sectors of drug
counsellors and lecturers,
veterans and the youth, are
not marginalized and
underrepresented;
- Failure to establish track
record; and
- Failure of the nominees to
qualify as representatives of
the youth and young urban
professionals.

Omnibus Resolution dated 16 October 201226

6

204100

12-196
(PLM)

1-Bro Philippine
Guardians
Brotherhood,
Inc. (1BRO-PGBI)

Cancelled registration
- Failure to define the sector
it seeks to represent; and
- The nominees do not belong
to a marginalized and
underrepresented sector.

204122

12-223
(PLM)

1 Guardians
Nationalist
Philippines, Inc.
(1GANAP/
GUARDIANS)

Cancelled registration
- The party is a military
fraternity;
- The sector of community
volunteer workers is too
broad to allow for meaningful
representation; and
- The nominees do not appear
to belong to the sector of
community volunteer
workers.

20426

12-257
(PLM)

Blessed
Federation of
Farmers and
Fishermen
International,
Inc. (A
BLESSED
Party-List)

Cancelled registration
- Three of the seven
nominees do not belong to
the sector of farmers and
fishermen, the sector sought
to be represented; and
- None of the nominees are
registered voters of Region
XI, the region sought to be
represented.

Resolution dated 16 October 201227

9

203960

12-260
(PLM)

1st
Consumers
Alliance for
Rural Energy,
Inc. (1-CARE)

Cancelled registration
- The sector of rural energy
consumers is not
marginalized and
underrepresented;
- The partys track record is
related to electric

cooperatives and not rural

energy consumers; and
- The nominees do not belong
to the sector of rural energy
consumers.
Resolution dated 16 October 201228
10 203922

12-201
(PLM)

Association of
Philippine
Electric
Cooperatives
(APEC)

Cancelled registration and

accreditation
- Failure to represent a
marginalized and
underrepresented sector; and
- The nominees do not belong
to the sector that the party
claims to represent.

Resolution dated 23 October 201229

11 204174

12-232
(PLM)

Aangat Tayo
Party-List Party
( AT )

Cancelled registration and

accreditation
- The incumbent
representative in Congress
failed to author or sponsor
bills that are beneficial to the
sectors that the party
represents (women, elderly,
youth, urban poor); and
- The nominees do not belong
to the marginalized sectors
that the party seeks to
represent.

Omnibus Resolution dated 24 October 201230

12 203976

12-288
(PLM)

Alliance for
Rural and
Agrarian
Reconstruction,
Inc. (ARARO)

Cancelled registration and

accreditation
- The interests of the peasant
and urban poor sectors that
the party represents differ;
- The nominees do not belong
to the sectors that the party
seeks to represent;
- Failure to show that three of
the nominees are bona fide
party members; and
- Lack of a Board resolution
to participate in the party-list
elections.

Omnibus Resolution dated 24 October 201231

13 204240

12-279
(PLM)

Agri-Agra na
Reporma Para sa
Magsasaka ng

Cancelled registration
- The party ceased to exist for
more than a year immediately

Pilipinas
Movement
(AGRI)

after the May 2010 elections;

- The nominees do not belong
to the sector of peasants and
farmers that the party seeks to
represent;
- Only four nominees were
submitted to the COMELEC;
and
- Failure to show meaningful
activities for its constituency.

14 203936

12-248
(PLM)

Aksyon
Magsasaka-Partido
Tinig ng
Masa (AKMA-PTM)

Cancelled registration
- Failure to show that
majority of its members are
marginalized and
underrepresented;
- Failure to prove that four of
its nine nominees actually
belong to the farmers sector;
and
- Failure to show that five of
its nine nominees work on
uplifting the lives of the
members of the sector.

15 204126

12-263
(PLM)

Kaagapay ng
Nagkakaisang
Agilang
Pilipinong
Magsasaka
(KAP)

Cancelled registration
- The Manifestation of Intent
and Certificate of Nomination
were not signed by an
appropriate officer of the
party;
- Failure to show track record
for the farmers and peasants
sector; and
- Failure to show that
nominees actually belong to
the sector, or that they have
undertaken meaningful
activities for the sector.

16 204364

12-180
(PLM)

Adhikain at
Kilusan ng
Ordinaryong
Tao Para sa
Lupa, Pabahay,
Hanapbuhay at
Kaunlaran
(AKO-BAHAY)

Cancelled registration
- Failure to show that
nominees actually belong to
the sector, or that they have
undertaken meaningful
activities for the sector.

17 204141

12-229
(PLM)

The True
Marcos Loyalist
(for God,
Country and
People)

Cancelled registration
- Failure to show that
majority of its members are
marginalized and
underrepresented; and

Association of
the Philippines,
Inc. (BANTAY)

- Failure to prove that two of

its nominees actually belong
to the marginalized and
underrepresented.

18 204408

12-217
(PLM)

Pilipino
Association for
Country Urban
Poor Youth
Advancement
and Welfare
( PA C YAW )

Cancelled registration
- Change of sector (from
urban poor youth to urban
poor) necessitates a new
application;
- Failure to show track record
for the marginalized and
underrepresented;
- Failure to prove that
majority of its members and
officers are from the urban
poor sector; and
- The nominees are not
members of the urban poor
sector.

19 204153

12-277
(PLM)

Pasang Masda
Nationwide
Party (PASANG
MASDA)

Cancelled registration
- The party represents drivers
and operators, who may have
conflicting interests; and
- Nominees are either
operators or former operators.

20 203958

12-015
(PLM)

Kapatiran ng
mga Nakulong
na Walang Sala,
Inc. (KAKUSA)

Cancelled registration
- Failure to prove that
na Walang Sala,
Inc. (KAKUSA)
majority of its officers and
members belong to the
marginalized and
underrepresented;
- The incumbent
representative in Congress
failed to author or sponsor
bills that are beneficial to the
sector that the party
represents (persons
imprisoned without proof of
guilt beyond reasonable
doubt);
- Failure to show track record
for the marginalized and
underrepresented; and
- The nominees did not
appear to be marginalized and
underrepresented.

Resolution dated 30 October 201232

21 204428

12-256
(PLM)

Ang Galing
Pinoy (AG)

Cancelled registration and

accreditation
- Failure to attend the
summary hearing;
- Failure to show track record
for the marginalized and
underrepresented; and
- The nominees did not
appear to be marginalized and
underrepresented.

Resolution dated 7 November 201233

22 204094

12-185
(PLM)

Alliance for
Nationalism and
Democracy
(ANAD)

Cancelled registration and

accreditation
- Failure to represent an
identifiable marginalized and
underrepresented sector;
- Only three nominees were
submitted to the COMELEC;
- The nominees do not
belong to the marginalized
and underrepresented; and
- Failure to submit its
Statement of Contribution
and Expenditures for the
2007 Elections.

Omnibus Resolution dated 7 November 201234

23 204239

12-060
(PLM)

Green Force for

the Environment
Sons and
Daughters of
Mother Earth
(GREENFORCE)

Cancelled registration and

accreditation
- The party is an advocacy
group and does not represent
the marginalized and
underrepresented;
- Failure to comply with the
track record requirement; and
- The nominees are not
marginalized citizens.

24 204236

12-254
(PLM)

Firm 24-K
Association, Inc.
(FIRM 24-K)

Cancelled registration and

accreditation
- The nominees do not
belong to the sector that the
party seeks to represent
(urban poor and peasants of
the National Capital Region);
- Only two of its nominees
reside in the National Capital
Region; and
- Failure to comply with the
track record requirement.

25 204341

12-269

Action League

Cancelled registration and

(PLM)

of Indigenous
Masses (ALIM)

accreditation
- Failure to establish that its
nominees are members of the
indigenous people in the
Mindanao and Cordilleras
sector that the party seeks to
represent;
- Only two of the partys
nominees reside in the
Mindanao and Cordilleras;
and
- Three of the nominees do
not appear to belong to the
marginalized.

Resolution dated 7 November 201235

26 204358

12-204
(PLM)

Alliance of
Advocates in
Mining
Advancement
for National
Progress
(AAMA)

Cancelled registration
- The sector it represents is a
specifically defined group
which may not be allowed
registration under the party-list system; and
- Failure to establish that the
nominees actually belong to
the sector.

Resolution dated 7 November 201236

27 204359

12-272
(PLM)

Social
Movement for
Active Reform
and
Transparency
(SMART)

Cancelled registration
- The nominees are
disqualified from
representing the sectors that
the party represents;
- Failure to comply with the
track record requirement; and
- There is doubt as to whether
majority of its members are
marginalized and
underrepresented.

Resolution dated 7 November 201237

28 204238

12-173
(PLM)

Alliance of
Bicolnon Party
(ABP)

Resolution dated 7 November 201238

Cancelled registration and

accreditation
- Defective registration and
accreditation dating back to
2010;
- Failure to represent any
sector; and
- Failure to establish that the
nominees are employed in the construction
industry, the
sector it claims to represent.

29 204323

12-210
(PLM)

Bayani Party
List (BAYANI)

Cancelled registration and

accreditation
- Failure to prove a track
record of trying to uplift the
marginalized and
underrepresented sector of
professionals; and
- One nominee was declared
unqualified to represent the
sector of professionals.

Resolution dated 7 November 201239

30 204321

12-252
(PLM)

Ang Agrikultura
Natin Isulong
(AANI)

Cancelled registration and

accreditation
- Failure to establish a track
record of enhancing the lives
of the marginalized and
underrepresented farmers
which it claims to represent;
and
- More than a majority of the
partys nominees do not
belong to the farmers sector.

Resolution dated 7 November 201240

31 204125

12-292
(PLM)

Agapay ng
Indigenous
Peoples Rights
Alliance, Inc.
(A-IPRA)

Cancelled registration and

accreditation
- Failure to prove that its five
nominees are members of the
indigenous people sector;
- Failure to prove that its five
nominees actively
participated in the
undertakings of the party; and
- Failure to prove that its five nominees are
bona fide
members.

Resolution dated 7 November 201241

32 204216

12-202
(PLM)

Philippine
Coconut
Producers
Federation, Inc.
(COCOFED)

Cancelled registration and

accreditation
- The party is affiliated with
private and government
agencies and is not
marginalized;
- The party is assisted by the
government in various
projects; and
- The nominees are not
members of the marginalized
sector of coconut farmers and
producers.

Resolution dated 7 November 201242

33 204220

12-238
(PLM)

Abang Lingkod
Party-List
(ABANG
LINGKOD)

Cancelled registration
- Failure to establish a track
record of continuously
representing the peasant
farmers sector;
- Failure to show that its
members actually belong to
the peasant farmers sector;
and
- Failure to show that its
nominees are marginalized
and underrepresented, have
actively participated in
programs for the
advancement of farmers, and
adhere to its advocacies.

Resolution dated 14 November 201243

34 204158

12-158
(PLM)

Action
Brotherhood for Active
Dreamers, Inc.
(ABROAD)

Cancelled registration and

accreditation - Failure to show that the
party is actually able to
represent all of the sectors it
claims to represent;
- Failure to show a complete
track record of its activities
since its registration; and
- The nominees are not part
of any of the sectors which
the party seeks to represent.

Resolution dated 28 November 201244

35 204374

12-228
(PLM)

Binhi-Partido ng
mga Magsasaka
Para sa mga
Magsasaka
(BINHI)

Cancelled registration and

accreditation
- The party receives
assistance from the
government through the
Department of Agriculture;
and
- Failure to prove that the
group is marginalized and
underrepresented.

Resolution dated 28 November 201245

36 204356

12-136
(PLM)

Butil Farmers
Party (BUTIL)

Cancelled registration and

accreditation
- Failure to establish that the
agriculture and cooperative
sectors are marginalized and
underrepresented; and
- The partys nominees

neither appear to belong to

the sectors they seek to
represent, nor to have
actively participated in the
undertakings of the party.
Resolution dated 3 December 201246
37 204486

12-194
(PLM)

1st
Kabalikat ng
Bayan
Ginhawang
Sangkatauhan
(1st
KABAGIS)

Cancelled registration and

accreditation
- Declaration of untruthful
statements;
- Failure to exist for at least
one year; and
- None of its nominees
belong to the labor,
fisherfolk, and urban poor
indigenous cultural
communities sectors which it
seeks to represent.

Resolution dated 4 December 201247

38 204410

12-198
(PLM)

1-United
Transport
Koalisyon (1-UTAK)

Cancelled accreditation
- The party represents drivers
and operators, who may have
conflicting interests; and
- The partys nominees do not
belong to any marginalized
and underrepresented sector.

Resolution dated 4 December 201248

39 204421,
204425

12-157
(PLM),
12-191
(PLM)

Coalition of
Senior Citizens
in the
Philippines, Inc.
(SENIOR
CITIZENS)

Cancelled registration
- The party violated election
laws because its nominees
had a term-sharing
agreement.

These 39 petitioners (AKB, Atong Paglaum, ARAL, ARC, UNIMAD, 1BRO-PGBI,

1GANAP/GUARDIANS, A BLESSED Party-List, 1-CARE, APEC, AT, ARARO, AGRI, AKMA-PTM,
KAP, AKO-BAHAY, BANTAY, PACYAW, PASANG MASDA, KAKUSA, AG, ANAD, GREENFORCE,
FIRM 24-K, ALIM, AAMA, SMART, ABP, BAYANI, AANI, A-IPRA, COCOFED, ABANG LINGKOD,
ABROAD, BINHI, BUTIL, 1st KABAGIS, 1-UTAK, SENIOR CITIZENS) were able to secure a
mandatory injunction from this Court, directing the COMELEC to include the names of these 39
petitioners in the printing of the official ballot for the 13 May 2013 party-list elections.
Petitioners prayed for the issuance of a temporary restraining order and/or writ of preliminary
injunction. This Court issued Status Quo Ante Orders in all petitions. This Decision governs only the
54 consolidated petitions that were granted Status Quo Ante Orders, namely:
G.R. No.

SPP No.

Resolution dated 13 November 2012

Group

203818-19

12-154
(PLM)
12-177
(PLM)

AKO Bicol Political Party (AKB)

203981

12-187
(PLM)

Association for Righteousness Advocacy on

Leadership (ARAL)

204002

12-188
(PLM)

Alliance for Rural Concerns (ARC)

203922

12-201
(PLM)

Association of Philippine Electric Cooperatives

(APEC)

203960

12-260
(PLM)

1st
Consumers Alliance for Rural Energy, Inc.
(1-CARE)

203936

12-248
(PLM)

Aksyon Magsasaka-Partido Tinig ng Masa

(AKMA-PTM)

203958

12-015
(PLM)

Kapatiran ng mga Nakulong na Walang Sala,

Inc. (KAKUSA)

203976

12-288
(PLM)

Alliance for Rural and Agrarian Reconstruction,

Inc. (ARARO)

Resolution dated 20 November 2012

204094

12-185
(PLM)

Alliance for Nationalism and Democracy

(ANAD)

204125

12-292
(PLM)

Agapay ng Indigenous Peoples Rights Alliance,

Inc. (A-IPRA)

204100

12-196
(PLM)

1-Bro Philippine Guardians Brotherhood, Inc.

(1BRO-PGBI)

Resolution dated 27 November 2012

204141

12-229
(PLM)

The True Marcos Loyalist (for God, Country

and People) Association of the Philippines, Inc.
(BANTAY)

204240

12-279
(PLM)

Agri-Agra na Reporma Para sa Magsasaka ng

Pilipinas Movement (AGRI)

204216

12-202
(PLM)

Philippine Coconut Producers Federation, Inc.

(COCOFED)

204158

12-158
(PLM)

Action Brotherhood for Active Dreamer, Inc.

(ABROAD)

Resolutions dated 4 December 2012

204122

12-223
(PLM)

1 Guardians Nationalist Philippines, Inc.

(1GANAP/GUARDIANS)

203766

12-161
(PLM)

Atong Paglaum, Inc. (Atong Paglaum)

204318

12-220
(PLM)

United Movement Against Drugs Foundation

(UNIMAD)

204263

12-257
(PLM)

Blessed Federation of Farmers and Fishermen

International, Inc. (A BLESSED Party-List)

204174

12-232
(PLM)

Aangat Tayo Party-List Party (AT)

204126

12-263
(PLM)

Kaagapay ng Nagkakaisang Agilang Pilipinong

Magsasaka (KAP)

204364

12-180
(PLM)

Adhikain at Kilusan ng Ordinaryong Tao Para sa

Lupa, Pabahay, Hanapbuhay at Kaunlaran
(AKO-BAHAY)

204139

12-127 (PL)

Alab ng Mamamahayag (ALAM)

204220

12-238
(PLM)

Abang Lingkod Party-List (ABANG

LINGKOD)

204236

12-254
(PLM)

Firm 24-K Association, Inc. (FIRM 24-K)

204238

12-173
(PLM)

Alliance of Bicolnon Party (ABP)

204239

12-060
(PLM)

Green Force for the Environment Sons and

Daughters of Mother Earth (GREENFORCE)

204321

12-252
(PLM)

Ang Agrikultura Natin Isulong (AANI)

204323

12-210
(PLM)

Bayani Party List (BAYANI)

204341

12-269
(PLM)

Action League of Indigenous Masses (ALIM)

204358

12-204
(PLM)

Alliance of Advocates in Mining Advancement

for National Progress (AAMA)

204359

12-272
(PLM)

Social Movement for Active Reform and

Transparency (SMART)

204356

12-136
(PLM)

Butil Farmers Party (BUTIL)

Resolution dated 11 December 2012

204402

12-061 (PL)

Kalikasan Party-List (KALIKASAN)

204394

12-145 (PL)

Association of Guard, Utility Helper, Aider,

Rider, Driver/Domestic Helper, Janitor, Agent
and Nanny of the Philippines, Inc.
(GUARDJAN)

204408

12-217
(PLM)

Pilipino Association for Country Urban Poor

Youth Advancement and Welfare (PACYAW)

204428

12-256
(PLM)

Ang Galing Pinoy (AG)

204490

12-073
(PLM)

Pilipinas Para sa Pinoy (PPP)

204379

12-099
(PLM)

Alagad ng Sining (ASIN)

204367

12-104 (PL)

Akbay Kalusugan (AKIN)

204426

12-011
(PLM)

Association of Local Athletics Entrepreneurs

and Hobbyists, Inc. (ALA-EH)

204455

12-041
(PLM)

Manila Teachers Savings and Loan Association,

Inc. (Manila Teachers)

204374

12-228
(PLM)

Binhi-Partido ng mga Magsasaka Para sa mga

Magsasaka (BINHI)

204370

12-011 (PP)

Ako An Bisaya (AAB)

204435

12-057
(PLM)

1 Alliance Advocating Autonomy Party

(1AAAP)

204486

12-194
(PLM)

1st Kabalikat ng Bayan Ginhawang

Sangkatauhan (1st KABAGIS)

204410

12-198
(PLM)

1-United Transport Koalisyon (1-UTAK)

204421,
204425

12-157
(PLM)
12-191
(PLM)

Coalition of Senior Citizens in the Philippines,

Inc. (SENIOR CITIZENS)

204436

12-009 (PP),
12-165
(PLM)

Abyan Ilonggo Party (AI)

204485

12-175 (PL)

Alliance of Organizations, Networks and

Associations of the Philippines, Inc. (ALONA)

204484

11-002

Partido ng Bayan ng Bida (PBB)

Resolution dated 11 December 2012

204153

12-277
(PLM)

Pasang Masda Nationwide Party (PASANG

MASDA)
The Issues

We rule upon two issues: first, whether the COMELEC committed grave abuse of discretion
amounting to lack or excess of jurisdiction in disqualifying petitioners from participating in the 13 May
2013 party-list elections, either by denial of their new petitions for registration under the party-list
system, or by cancellation of their existing registration and accreditation as party-list organizations;
and second, whether the criteria for participating in the party-list system laid down in Ang Bagong
Bayani and Barangay Association for National Advancement and Transparency v. Commission on

Elections49 (BANAT) should be applied by the COMELEC in the coming 13 May 2013 party-list
elections.
The Courts Ruling
We hold that the COMELEC did not commit grave abuse of discretion in following prevailing
decisions of this Court in disqualifying petitioners from participating in the coming 13 May 2013
party-list elections. However, since the Court adopts in this Decision new parameters in the
qualification of national, regional, and sectoral parties under the party-list system, thereby
abandoning the rulings in the decisions applied by the COMELEC in disqualifying petitioners, we
remand to the COMELEC all the present petitions for the COMELEC to determine who are qualified
to register under the party-list system, and to participate in the coming 13 May 2013 party-list
elections, under the new parameters prescribed in this Decision.
The Party-List System
The 1987 Constitution provides the basis for the party-list system of representation. Simply put, the
party-list system is intended to democratize political power by giving political parties that cannot win
in legislative district elections a chance to win seats in the House of Representatives. 50 The voter
elects two representatives in the House of Representatives: one for his or her legislative district, and
another for his or her party-list group or organization of choice. The 1987 Constitution provides:
Section 5, Article VI
(1) The House of Representatives shall be composed of not more than two hundred and fifty
members, unless otherwise fixed by law, who shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan Manila area in accordance
with the number of their respective inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by law, shall be elected through a party-list
system of registered national, regional, and sectoral parties or organizations.
(2) The party-list representatives shall constitute twenty per centum of the total number of
representatives including those under the party list. For three consecutive terms after the
ratification of this Constitution, one-half of the seats allocated to party-list representatives
shall be filled, as provided by law, by selection or election from the labor, peasant, urban
poor, indigenous cultural communities, women, youth, and such other sectors as may be
provided by law, except the religious sector.
Sections 7 and 8, Article IX-C
Sec. 7. No votes cast in favor of a political party, organization, or coalition shall be valid, except for
those registered under the party-list system as provided in this Constitution.
Sec. 8. Political parties, or organizations or coalitions registered under the party-list system, shall not
be represented in the voters registration boards, boards of election inspectors, boards of
canvassers, or other similar bodies. However, they shall be entitled to appoint poll watchers in
accordance with law.
Commissioner Christian S. Monsod, the main sponsor of the party-list system, stressed that "the
party-list system is not synonymous with that of the sectoral representation."51 The

constitutional provisions on the party-list system should be read in light of the following discussion
among its framers:
MR. MONSOD: x x x.
I would like to make a distinction from the beginning that the proposal for the party list system is not
synonymous with that of the sectoral representation. Precisely, the party list system seeks to avoid
the dilemma of choice of sectors and who constitute the members of the sectors. In making the
proposal on the party list system, we were made aware of the problems precisely cited by
Commissioner Bacani of which sectors will have reserved seats. In effect, a sectoral representation
in the Assembly would mean that certain sectors would have reserved seats; that they will choose
among themselves who would sit in those reserved seats. And then, we have the problem of which
sector because as we will notice in Proclamation No. 9, the sectors cited were the farmers,
fishermen, workers, students, professionals, business, military, academic, ethnic and other similar
groups. So these are the nine sectors that were identified here as "sectoral representatives" to be
represented in this Commission. The problem we had in trying to approach sectoral representation in
the Assembly was whether to stop at these nine sectors or include other sectors. And we went
through the exercise in a caucus of which sector should be included which went up to 14 sectors.
And as we all know, the longer we make our enumeration, the more limiting the law become
because when we make an enumeration we exclude those who are not in the enumeration. Second,
we had the problem of who comprise the farmers. Let us just say the farmers and the laborers.
These days, there are many citizens who are called "hyphenated citizens." A doctor may be a
farmer; a lawyer may also be a farmer. And so, it is up to the discretion of the person to say "I am a
farmer" so he would be included in that sector.
The third problem is that when we go into a reserved seat system of sectoral representation in the
Assembly, we are, in effect, giving some people two votes and other people one vote. We sought to
avoid these problems by presenting a party list system. Under the party list system, there are no
reserved seats for sectors. Let us say, laborers and farmers can form a sectoral party or a sectoral
organization that will then register and present candidates of their party. How do the mechanics go?
Essentially, under the party list system, every voter has two votes, so there is no discrimination. First,
he will vote for the representative of his legislative district. That is one vote. In that same ballot, he
will be asked: What party or organization or coalition do you wish to be represented in the
Assembly? And here will be attached a list of the parties, organizations or coalitions that have been
registered with the COMELEC and are entitled to be put in that list. This can be a regional party, a
sectoral party, a national party, UNIDO, Magsasaka or a regional party in Mindanao. One need not
be a farmer to say that he wants the farmers' party to be represented in the Assembly. Any citizen
can vote for any party. At the end of the day, the COMELEC will then tabulate the votes that had
been garnered by each party or each organization one does not have to be a political party and
register in order to participate as a party and count the votes and from there derive the
percentage of the votes that had been cast in favor of a party, organization or coalition.
When such parties register with the COMELEC, we are assuming that 50 of the 250 seats will be for
the party list system. So, we have a limit of 30 percent of 50. That means that the maximum that any
party can get out of these 50 seats is 15. When the parties register they then submit a list of 15
names. They have to submit these names because these nominees have to meet the minimum
qualifications of a Member of the National Assembly. At the end of the day, when the votes are
tabulated, one gets the percentages. Let us say, UNIDO gets 10 percent or 15 percent of the votes;
KMU gets 5 percent; a womens party gets 2 1/2 percent and anybody who has at least 2 1/2
percent of the vote qualifies and the 50 seats are apportioned among all of these parties who get at
least 2 1/2 percent of the vote.

What does that mean? It means that any group or party who has a constituency of, say, 500,000
nationwide gets a seat in the National Assembly. What is the justification for that? When we allocate
legislative districts, we are saying that any district that has 200,000 votes gets a seat. There is no
reason why a group that has a national constituency, even if it is a sectoral or special interest group,
should not have a voice in the National Assembly. It also means that, let us say, there are three or
four labor groups, they all register as a party or as a group. If each of them gets only one percent or
five of them get one percent, they are not entitled to any representative. So, they will begin to think
that if they really have a common interest, they should band together, form a coalition and get five
percent of the vote and, therefore, have two seats in the Assembly. Those are the dynamics of a
party list system.
We feel that this approach gets around the mechanics of sectoral representation while at the same
time making sure that those who really have a national constituency or sectoral constituency will get
a chance to have a seat in the National Assembly. These sectors or these groups may not have the
constituency to win a seat on a legislative district basis. They may not be able to win a seat on a
district basis but surely, they will have votes on a nationwide basis.
The purpose of this is to open the system. In the past elections, we found out that there were certain
groups or parties that, if we count their votes nationwide; have about 1,000,000 or 1,500,000 votes.
But they were always third place or fourth place in each of the districts. So, they have no voice in the
Assembly. But this way, they would have five or six representatives in the Assembly even if they
would not win individually in legislative districts. So, that is essentially the mechanics, the purpose
and objectives of the party list system.
BISHOP BACANI: Madam President, am I right in interpreting that when we speak now of party list
system though we refer to sectors, we would be referring to sectoral party list rather than sectors
and party list?
MR. MONSOD: As a matter of fact, if this body accepts the party list system, we do not even have to
mention sectors because the sectors would be included in the party list system. They can be
sectoral parties within the party list system.
xxxx
MR. MONSOD. Madam President, I just want to say that we suggested or proposed the party list
system because we wanted to open up the political system to a pluralistic society through a
multiparty system. x x x We are for opening up the system, and we would like very much for the
sectors to be there. That is why one of the ways to do that is to put a ceiling on the number of
representatives from any single party that can sit within the 50 allocated under the party list
system. x x x.
xxx
MR. MONSOD. Madam President, the candidacy for the 198 seats is not limited to political
parties. My question is this: Are we going to classify for example Christian Democrats and
Social Democrats as political parties? Can they run under the party list concept or must they
be under the district legislation side of it only?
MR. VILLACORTA. In reply to that query, I think these parties that the Commissioner
mentioned can field candidates for the Senate as well as for the House of Representatives.
Likewise, they can also field sectoral candidates for the 20 percent or 30 percent, whichever
is adopted, of the seats that we are allocating under the party list system.

MR. MONSOD. In other words, the Christian Democrats can field district candidates and can
also participate in the party list system?
MR. VILLACORTA. Why not? When they come to the party list system, they will be fielding
only sectoral candidates.
MR. MONSOD. May I be clarified on that? Can UNIDO participate in the party list system?
MR. VILLACORTA. Yes, why not? For as long as they field candidates who come from the
different marginalized sectors that we shall designate in this Constitution.
MR. MONSOD. Suppose Senator Taada wants to run under BAYAN group and says that he
represents the farmers, would he qualify?
MR. VILLACORTA. No, Senator Taada would not qualify.
MR. MONSOD. But UNIDO can field candidates under the party list system and say Juan dela Cruz
is a farmer. Who would pass on whether he is a farmer or not?
MR. TADEO. Kay Commissioner Monsod, gusto ko lamang linawin ito. Political parties,
particularly minority political parties, are not prohibited to participate in the party list election
if they can prove that they are also organized along sectoral lines.
MR. MONSOD. What the Commissioner is saying is that all political parties can participate because
it is precisely the contention of political parties that they represent the broad base of citizens and that
all sectors are represented in them. Would the Commissioner agree?
MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang UNIDO na isang political party, it will
dominate the party list at mawawalang saysay din yung sector. Lalamunin mismo ng political parties
ang party list system. Gusto ko lamang bigyan ng diin ang "reserve." Hindi ito reserve seat sa
marginalized sectors. Kung titingnan natin itong 198 seats, reserved din ito sa political parties.
MR. MONSOD. Hindi po reserved iyon kasi anybody can run there. But my question to
Commissioner Villacorta and probably also to Commissioner Tadeo is that under this system, would
UNIDO be banned from running under the party list system?
MR. VILLACORTA. No, as I said, UNIDO may field sectoral candidates. On that condition
alone, UNIDO may be allowed to register for the party list system.
MR. MONSOD. May I inquire from Commissioner Tadeo if he shares that answer?
MR. TADEO. The same.
MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral lines.
MR. MONSOD: Sino po ang magsasabi kung iyong kandidato ng UNIDO ay hindi talagang labor
leader or isang laborer? Halimbawa, abogado ito.
MR. TADEO: Iyong mechanics.

MR. MONSOD: Hindi po mechanics iyon because we are trying to solve an inherent problem of
sectoral representation. My question is: Suppose UNIDO fields a labor leader, would he qualify?
MR. TADEO: The COMELEC may look into the truth of whether or not a political party is really
organized along a specific sectoral line. If such is verified or confirmed, the political party
may submit a list of individuals who are actually members of such sectors. The lists are to be
published to give individuals or organizations belonging to such sector the chance to
present evidence contradicting claims of membership in the said sector or to question the
claims of the existence of such sectoral organizations or parties. This proceeding shall be
conducted by the COMELEC and shall be summary in character. In other words, COMELEC
decisions on this matter are final and unappealable.52 (Emphasis supplied)
Indisputably, the framers of the 1987 Constitution intended the party-list system to include not only
sectoral parties but also non-sectoral parties. The framers intended the sectoral parties to constitute
a part, but not the entirety, of the party-list system. As explained by Commissioner Wilfredo
Villacorta, political parties can participate in the party-list system "For as long as they field
candidates who come from the different marginalized sectors that we shall designate in this
Constitution."53
In fact, the framers voted down, 19-22, a proposal to reserve permanent seats to sectoral parties in
the House of Representatives, or alternatively, to reserve the party-list system exclusively to sectoral
parties. As clearly explained by Justice Jose C. Vitug in his Dissenting Opinion in Ang Bagong
Bayani:
The draft provisions on what was to become Article VI, Section 5, subsection (2), of the 1987
Constitution took off from two staunch positions the first headed by Commissioner Villacorta,
advocating that of the 20 per centum of the total seats in Congress to be allocated to party-list
representatives half were to be reserved to appointees from the marginalized and underrepresented
sectors. The proposal was opposed by some Commissioners. Mr. Monsod expressed the difficulty in
delimiting the sectors that needed representation. He was of the view that reserving seats for the
marginalized and underrepresented sectors would stunt their development into full-pledged parties
equipped with electoral machinery potent enough to further the sectoral interests to be represented.
The Villacorta group, on the other hand, was apprehensive that pitting the unorganized and lessmoneyed sectoral groups in an electoral contest would be like placing babes in the lion's den, so to
speak, with the bigger and more established political parties ultimately gobbling them up. R.A. 7941
recognized this concern when it banned the first five major political parties on the basis of party
representation in the House of Representatives from participating in the party-list system for the first
party-list elections held in 1998 (and to be automatically lifted starting with the 2001 elections). The
advocates for permanent seats for sectoral representatives made an effort towards a compromise
that the party-list system be open only to underrepresented and marginalized sectors. This proposal
was further whittled down by allocating only half of the seats under the party-list system to
candidates from the sectors which would garner the required number of votes. The majority was
unyielding. Voting 19-22, the proposal for permanent seats, and in the alternative the reservation of
the party-list system to the sectoral groups, was voted down. The only concession the Villacorta
group was able to muster was an assurance of reserved seats for selected sectors for three
consecutive terms after the enactment of the 1987 Constitution, by which time they would be
expected to gather and solidify their electoral base and brace themselves in the multi-party electoral
contest with the more veteran political groups.54(Emphasis supplied)
Thus, in the end, the proposal to give permanent reserved seats to certain sectors was outvoted.
Instead, the reservation of seats to sectoral representatives was only allowed for the first three
consecutive terms.55 There can be no doubt whatsoever that the framers of the 1987 Constitution

expressly rejected the proposal to make the party-list system exclusively for sectoral parties only,
and that they clearly intended the party-list system to include both sectoral and non-sectoral parties.
The common denominator between sectoral and non-sectoral parties is that they cannot expect to
win in legislative district elections but they can garner, in nationwide elections, at least the same
number of votes that winning candidates can garner in legislative district elections. The party-list
system will be the entry point to membership in the House of Representatives for both these nontraditional parties that could not compete in legislative district elections.
The indisputable intent of the framers of the 1987 Constitution to include in the party-list system both
sectoral and non-sectoral parties is clearly written in Section 5(1), Article VI of the Constitution,
which states:
Section 5. (1) The House of Representative shall be composed of not more that two hundred and
fifty members, unless otherwise fixed by law, who shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the
number of their respective inhabitants, and on the basis of a uniform and progressive ratio,
and those who, as provided by law, shall be elected through a party-list system of registered
national, regional, and sectoral parties or organizations. (Emphasis supplied)
Section 5(1), Article VI of the Constitution is crystal-clear that there shall be "a party-list system of
registered national, regional, and sectoral parties or organizations." The commas after the
words "national," and "regional," separate national and regional parties from sectoral parties. Had
the framers of the 1987 Constitution intended national and regional parties to be at the same time
sectoral, they would have stated "national and regional sectoral parties." They did not, precisely
because it was never their intention to make the party-list system exclusively sectoral.
What the framers intended, and what they expressly wrote in Section 5(1), could not be any clearer:
the party-list system is composed of three different groups, and the sectoral parties belong to only
one of the three groups. The text of Section 5(1) leaves no room for any doubt that national and
regional parties are separate from sectoral parties.
Thus, the party-list system is composed of three different groups: (1) national parties or
organizations; (2) regional parties or organizations; and (3) sectoral parties or organizations.
National and regional parties or organizations are different from sectoral parties or organizations.
National and regional parties or organizations need not be organized along sectoral lines and need
not represent any particular sector.
Moreover, Section 5(2), Article VI of the 1987 Constitution mandates that, during the first three
consecutive terms of Congress after the ratification of the 1987 Constitution, "one-half of the seats
allocated to party-list representatives shall be filled, as provided by law, by selection or election from
the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other
sectors as may be provided by law, except the religious sector." This provision clearly shows again
that the party-list system is not exclusively for sectoral parties for two obvious reasons.
First, the other one-half of the seats allocated to party-list representatives would naturally be open to
non-sectoral party-list representatives, clearly negating the idea that the party-list system is
exclusively for sectoral parties representing the "marginalized and underrepresented." Second, the
reservation of one-half of the party-list seats to sectoral parties applies only for the first "three
consecutive terms after the ratification of this Constitution," clearly making the party-list system fully
open after the end of the first three congressional terms. This means that, after this period, there will

be no seats reserved for any class or type of party that qualifies under the three groups constituting
the party-list system.
Hence, the clear intent, express wording, and party-list structure ordained in Section 5(1) and
(2), Article VI of the 1987 Constitution cannot be disputed: the party-list system is not for
sectoral parties only, but also for non-sectoral parties.
Republic Act No. 7941 or the Party-List System Act, which is the law that implements the party-list
system prescribed in the Constitution, provides:
Section 3. Definition of Terms. (a) The party-list system is a mechanism of proportional
representation in the election of representatives to the House of Representatives from national,
regional and sectoral parties or organizations or coalitions thereof registered with the Commission
on Elections (COMELEC). Component parties or organizations of a coalition may participate
independently provided the coalition of which they form part does not participate in the party-list
system.
(b) A party means either a political party or a sectoral party or a coalition of parties.
(c) A political party refers to an organized group of citizens advocating an ideology or
platform, principles and policies for the general conduct of government and which, as
the most immediate means of securing their adoption, regularly nominates and
supports certain of its leaders and members as candidates for public office.
It is a national party when its constituency is spread over the geographical territory of at least
a majority of the regions. It is a regional party when its constituency is spread over the
geographical territory of at least a majority of the cities and provinces comprising the region.
(d) A sectoral party refers to an organized group of citizens belonging to any of the
sectors enumerated in Section 5 hereof whose principal advocacy pertains to the
special interest and concerns of their sector.
(e) A sectoral organization refers to a group of citizens or a coalition of groups of citizens who
share similar physical attributes or characteristics, employment, interests or concerns.
(f) A coalition refers to an aggrupation of duly registered national, regional, sectoral parties or
organizations for political and/or election purposes. (Emphasis supplied)
Section 3(a) of R.A. No. 7941 defines a "party" as "either a political party or a sectoral party or a
coalition of parties." Clearly, a political party is different from a sectoral party. Section 3(c) of R.A. No.
7941 further provides that a "political party refers to an organized group of citizens advocating
an ideology or platform, principles and policies for the general conduct of government." On
the other hand, Section 3(d) of R.A. No. 7941 provides that a "sectoral party refers to an organized
group of citizens belonging to any of the sectors enumerated in Section 5 hereof whose principal
advocacy pertains to the special interest and concerns of their sector." R.A. No. 7941 provides
different definitions for a political and a sectoral party. Obviously, they are separate and distinct from
each other.
R.A. No. 7941 does not require national and regional parties or organizations to represent the
"marginalized and underrepresented" sectors. To require all national and regional parties under
the party-list system to represent the "marginalized and underrepresented" is to deprive and

exclude, by judicial fiat, ideology-based and cause-oriented parties from the party-list system. How
will these ideology-based and cause-oriented parties, who cannot win in legislative district elections,
participate in the electoral process if they are excluded from the party-list system? To exclude them
from the party-list system is to prevent them from joining the parliamentary struggle, leaving as their
only option the armed struggle. To exclude them from the party-list system is, apart from being
obviously senseless, patently contrary to the clear intent and express wording of the 1987
Constitution and R.A. No. 7941.
Under the party-list system, an ideology-based or cause-oriented political party is clearly different
from a sectoral party. A political party need not be organized as a sectoral party and need not
represent any particular sector. There is no requirement in R.A. No. 7941 that a national or regional
political party must represent a "marginalized and underrepresented" sector. It is sufficient that the
political party consists of citizens who advocate the same ideology or platform, or the same
governance principles and policies, regardless of their economic status as citizens.
Section 5 of R.A. No. 7941 states that "the sectors shall include labor, peasant, fisherfolk, urban
poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas
workers, and professionals."56The sectors mentioned in Section 5 are not all necessarily
"marginalized and underrepresented." For sure, "professionals" are not by definition "marginalized
and underrepresented," not even the elderly, women, and the youth. However, professionals, the
elderly, women, and the youth may "lack well-defined political constituencies," and can thus organize
themselves into sectoral parties in advocacy of the special interests and concerns of their respective
sectors.
Section 6 of R.A. No. 7941 provides another compelling reason for holding that the law does not
require national or regional parties, as well as certain sectoral parties in Section 5 of R.A. No. 7941,
to represent the "marginalized and underrepresented." Section 6 provides the grounds for the
COMELEC to refuse or cancel the registration of parties or organizations after due notice and
hearing.
Section 6. Refusal and/or Cancellation of Registration. The COMELEC may, motu proprio or upon
verified complaint of any interested party, refuse or cancel, after due notice and hearing, the
registration of any national, regional or sectoral party, organization or coalition on any of the
following grounds:
(1) It is a religious sect or denomination, organization or association organized for religious
purposes;
(2) It advocates violence or unlawful means to seek its goal;
(3) It is a foreign party or organization;
(4) It is receiving support from any foreign government, foreign political party, foundation,
organization, whether directly or through any of its officers or members or indirectly through
third parties for partisan election purposes;
(5) It violates or fails to comply with laws, rules or regulations relating to elections;
(6) It declares untruthful statements in its petition;
(7) It has ceased to exist for at least one (1) year; or

(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two
per centum (2%) of the votes cast under the party-list system in the two (2) preceding
elections for the constituency in which it has registered.
None of the 8 grounds to refuse or cancel registration refers to non-representation of the
"marginalized and underrepresented."
The phrase "marginalized and underrepresented" appears only once in R.A. No. 7941, in Section
2 on Declaration of Policy.57 Section 2 seeks "to promote proportional representation in the election
of representatives to the House of Representatives through the party-list system," which will enable
Filipinos belonging to the"marginalized and underrepresented sectors, organizations and
parties, and who lack well-defined political constituencies," to become members of the House
of Representatives. While the policy declaration in Section 2 of R.A. No. 7941 broadly refers to
"marginalized and underrepresented sectors, organizations and parties," the specific implementing
provisions of R.A. No. 7941 do not define or require that the sectors, organizations or parties must
be "marginalized and underrepresented." On the contrary, to even interpret that all the sectors
mentioned in Section 5 are "marginalized and underrepresented" would lead to absurdities.
How then should we harmonize the broad policy declaration in Section 2 of R.A. No. 7941 with its
specific implementing provisions, bearing in mind the applicable provisions of the 1987 Constitution
on the matter?
The phrase "marginalized and underrepresented" should refer only to the sectors in Section 5
that are, by their nature, economically "marginalized and underrepresented." These sectors
are: labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans,
overseas workers, and other similar sectors. For these sectors, a majority of the members of the
sectoral party must belong to the "marginalized and underrepresented." The nominees of the
sectoral party either must belong to the sector, or must have a track record of advocacy for
the sector represented. Belonging to the "marginalized and underrepresented" sector does not
mean one must "wallow in poverty, destitution or infirmity." It is sufficient that one, or his or her
sector, is below the middle class. More specifically, the economically "marginalized and
underrepresented" are those who fall in the low income group as classified by the National Statistical
Coordination Board.58
The recognition that national and regional parties, as well as sectoral parties of professionals, the
elderly, women and the youth, need not be "marginalized and underrepresented" will allow small
ideology-based and cause-oriented parties who lack "well-defined political constituencies" a chance
to win seats in the House of Representatives. On the other hand, limiting to the "marginalized and
underrepresented" the sectoral parties for labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, handicapped, veterans, overseas workers, and other sectors that by their nature are
economically at the margins of society, will give the "marginalized and underrepresented" an
opportunity to likewise win seats in the House of Representatives.
This interpretation will harmonize the 1987 Constitution and R.A. No. 7941 and will give rise to a
multi-party system where those "marginalized and underrepresented," both in economic and
ideological status, will have the opportunity to send their own members to the House of
Representatives. This interpretation will also make the party-list system honest and transparent,
eliminating the need for relatively well-off party-list representatives to masquerade as "wallowing in
poverty, destitution and infirmity," even as they attend sessions in Congress riding in SUVs.
The major political parties are those that field candidates in the legislative district elections. Major
political parties cannot participate in the party-list elections since they neither lack "well-defined

political constituencies" nor represent "marginalized and underrepresented" sectors. Thus, the
national or regional parties under the party-list system are necessarily those that do not
belong to major political parties. This automatically reserves the national and regional parties
under the party-list system to those who "lack well-defined political constituencies," giving them the
opportunity to have members in the House of Representatives.
To recall, Ang Bagong Bayani expressly declared, in its second guideline for the accreditation of
parties under the party-list system, that "while even major political parties are expressly allowed by
RA 7941 and the Constitution to participate in the party-list system, they must comply with the
declared statutory policy of enabling Filipino citizens belonging to marginalized and
underrepresented sectors xxx to be elected to the House of Representatives. "However, the
requirement in Ang Bagong Bayani, in its second guideline, that "the political party xxx must
represent the marginalized and underrepresented," automatically disqualified major political parties
from participating in the party-list system. This inherent inconsistency in Ang Bagong Bayani has
been compounded by the COMELECs refusal to register sectoral wings officially organized by major
political parties. BANAT merely formalized the prevailing practice when it expressly
prohibited major political parties from participating in the party-list system, even through their
sectoral wings.
Section 11 of R.A. No. 7941 expressly prohibited the "first five (5) major political parties on the
basis of party representation in the House of Representatives at the start of the Tenth Congress"
from participating in the May 1988 party-list elections.59 Thus, major political parties can
participate in subsequent party-list elections since the prohibition is expressly limited only to
the 1988 party-list elections. However, major political parties should participate in party-list
elections only through their sectoral wings. The participation of major political parties through their
sectoral wings, a majority of whose members are "marginalized and underrepresented" or lacking in
"well-defined political constituencies," will facilitate the entry of the "marginalized and
underrepresented" and those who "lack well-defined political constituencies" as members of the
House of Representatives.
The 1987 Constitution and R.A. No. 7941 allow major political parties to participate in party-list
elections so as to encourage them to work assiduously in extending their constituencies to the
"marginalized and underrepresented" and to those who "lack well-defined political constituencies."
The participation of major political parties in party-list elections must be geared towards the entry, as
members of the House of Representatives, of the "marginalized and underrepresented" and those
who "lack well-defined political constituencies," giving them a voice in law-making. Thus,to
participate in party-list elections, a major political party that fields candidates in the legislative district
elections must organize a sectoral wing, like a labor, peasant, fisherfolk, urban poor, professional,
women or youth wing, that can register under the party-list system.
Such sectoral wing of a major political party must have its own constitution, by-laws, platform or
program of government, officers and members, a majority of whom must belong to the sector
represented. The sectoral wing is in itself an independent sectoral party, and is linked to a major
political party through a coalition. This linkage is allowed by Section 3 of R.A. No. 7941, which
provides that "component parties or organizations of a coalition may participate independently (in
party-list elections) provided the coalition of which they form part does not participate in the party-list
system."
Section 9 of R.A. No. 7941 prescribes the qualifications of party-list nominees. This provision
prescribes a special qualification only for the nominee from the youth sector.

Section 9. Qualifications of Party-List Nominees. No person shall be nominated as party-list

representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of
the Philippines for a period of not less than one (1) year immediately preceding the day of the
election, able to read and write, a bona fide member of the party or organization which he seeks to
represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five
(25) years of age on the day of the election.
In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty
(30) years of age on the day of the election.
Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed
to continue in office until the expiration of his term.
1wphi1

A party-list nominee must be a bona fide member of the party or organization which he or she seeks
to represent.In the case of sectoral parties, to be a bona fide party-list nominee one must
either belong to the sector represented, or have a track record of advocacy for such sector.
In disqualifying petitioners, the COMELEC used the criteria prescribed in Ang Bagong Bayani and
BANAT. Ang Bagong Bayani laid down the guidelines for qualifying those who desire to participate in
the party-list system:
First, the political party, sector, organization or coalition must represent the marginalized and
underrepresented groups identified in Section 5 of RA 7941. x x x
Second, while even major political parties are expressly allowed by RA 7941 and the Constitution to
participate in the party-list system, they must comply with the declared statutory policy of enabling
"Filipino citizens belonging to marginalized and underrepresented sectors x x x to be elected to the
House of Representatives." x x x.
xxxx
Third, x x x the religious sector may not be represented in the party-list system. x x x.
xxxx
Fourth, a party or an organization must not be disqualified under Section 6 of RA 7941, which
enumerates the grounds for disqualification as follows:
"(1) It is a religious sect or denomination, organization or association, organized for religious
purposes;
(2) It advocates violence or unlawful means to seek its goal;
(3) It is a foreign party or organization;
(4) It is receiving support from any foreign government, foreign political party, foundation,
organization, whether directly or through any of its officers or members or indirectly through
third parties for partisan election purposes;
(5) It violates or fails to comply with laws, rules or regulations relating to elections;

(6) It declares untruthful statements in its petition;

(7) It has ceased to exist for at least one (1) year; or
(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two
per centum (2%) of the votes cast under the party-list system in the two (2) preceding
elections for the constituency in which it has registered."
Fifth, the party or organization must not be an adjunct of, or a project organized or an entity funded
or assisted by, the government. x x x.
xxxx
Sixth, the party must not only comply with the requirements of the law; its nominees must likewise do
so. Section 9 of RA 7941 reads as follows:
"SEC 9. Qualifications of Party-List Nominees. - No person shall be nominated as party-list
representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of
the Philippines for a period of not less than one (1)year immediately preceding the day of the
election, able to read and write, a bona fide member of the party or organization which he seeks to
represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five
(25) years of age on the day of the election.
In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty
(30) years of age on the day of the election. Any youth sectoral representative who attains the age of
thirty (30) during his term shall be allowed to continue in office until the expiration of his term."
Seventh, not only the candidate party or organization must represent marginalized and
underrepresented sectors; so also must its nominees. x x x.
Eighth, x x x the nominee must likewise be able to contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a whole. (Emphasis supplied)
In 2009, by a vote of 8-7 in BANAT, this Court stretched the Ang Bagong Bayani ruling further. In
BANAT, the majority officially excluded major political parties from participating in party-list
elections,60 abandoning even the lip-service that Ang Bagong Bayani accorded to the 1987
Constitution and R.A.No. 7941 that major political parties can participate in party-list elections.
The minority in BANAT, however, believed that major political parties can participate in the party-list
system through their sectoral wings. The minority expressed that "[e]xcluding the major political
parties in party-list elections is manifestly against the Constitution, the intent of the Constitutional
Commission, and R.A. No. 7941. This Court cannot engage in socio-political engineering and
judicially legislate the exclusion of major political parties from the party-list elections in patent
violation of the Constitution and the law."61 The experimentations in socio-political engineering have
only resulted in confusion and absurdity in the party-list system. Such experimentations, in clear
contravention of the 1987 Constitution and R.A. No. 7941, must now come to an end.
We cannot, however, fault the COMELEC for following prevailing jurisprudence in disqualifying
petitioners. In following prevailing jurisprudence, the COMELEC could not have committed grave
abuse of discretion. However, for the coming 13 May 2013 party-list elections, we must now impose
and mandate the party-list system actually envisioned and authorized under the 1987 Constitution

and R.A. No. 7941. In BANAT, this Court devised a new formula in the allocation of party-list seats,
reversing the COMELEC's allocation which followed the then prevailing formula in Ang Bagong
Bayani. In BANAT, however, the Court did not declare that the COMELEC committed grave abuse of
discretion. Similarly, even as we acknowledge here that the COMELEC did not commit grave abuse
of discretion, we declare that it would not be in accord with the 1987 Constitution and R.A. No. 7941
to apply the criteria in Ang Bagong Bayani and BANAT in determining who are qualified to
participate in the coming 13 May 2013 party-list elections. For this purpose, we suspend our
rule62 that a party may appeal to this Court from decisions or orders of the COMELEC only if the
COMELEC committed grave abuse of discretion.
Thus, we remand all the present petitions to the COMELEC. In determining who may participate in
the coming 13 May 2013 and subsequent party-list elections, the COMELEC shall adhere to the
following parameters:
1. Three different groups may participate in the party-list system: (1) national parties or
organizations, (2) regional parties or organizations, and (3) sectoral parties or organizations.
2. National parties or organizations and regional parties or organizations do not need to
organize along sectoral lines and do not need to represent any "marginalized and
underrepresented" sector.
3. Political parties can participate in party-list elections provided they register under the
party-list system and do not field candidates in legislative district elections. A political party,
whether major or not, that fields candidates in legislative district elections can participate in
party-list elections only through its sectoral wing that can separately register under the partylist system. The sectoral wing is by itself an independent sectoral party, and is linked to a
political party through a coalition.
4. Sectoral parties or organizations may either be "marginalized and underrepresented" or
lacking in "well-defined political constituencies." It is enough that their principal advocacy
pertains to the special interest and concerns of their sector. The sectors that are
"marginalized and underrepresented" include labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, handicapped, veterans, and overseas workers. The sectors
that lack "well-defined political constituencies" include professionals, the elderly, women, and
the youth.
5. A majority of the members of sectoral parties or organizations that represent the
"marginalized and underrepresented" must belong to the "marginalized and
underrepresented" sector they represent. Similarly, a majority of the members of sectoral
parties or organizations that lack "well-defined political constituencies" must belong to the
sector they represent. The nominees of sectoral parties or organizations that represent the
"marginalized and underrepresented," or that represent those who lack "well-defined political
constituencies," either must belong to their respective sectors, or must have a track record of
advocacy for their respective sectors. The nominees of national and regional parties or
organizations must be bona-fide members of such parties or organizations.
6. National, regional, and sectoral parties or organizations shall not be disqualified if some of
their nominees are disqualified, provided that they have at least one nominee who remains
qualified.
The COMELEC excluded from participating in the 13 May 2013 party-list elections those that did not
satisfy these two criteria: (1) all national, regional, and sectoral groups or organizations must

represent the "marginalized and underrepresented" sectors, and (2) all nominees must belong to the
"marginalized and underrepresented" sector they represent. Petitioners may have been disqualified
by the COMELEC because as political or regional parties they are not organized along sectoral lines
and do not represent the "marginalized and underrepresented." Also, petitioners' nominees who do
not belong to the sectors they represent may have been disqualified, although they may have a track
record of advocacy for their sectors. Likewise, nominees of non-sectoral parties may have been
disqualified because they do not belong to any sector. Moreover, a party may have been disqualified
because one or more of its nominees failed to qualify, even if the party has at least one remaining
qualified nominee. As discussed above, the disqualification of petitioners, and their nominees, under
such circumstances is contrary to the 1987 Constitution and R.A. No. 7941.
This Court is sworn to uphold the 1987 Constitution, apply its provisions faithfully, and desist from
engaging in socio-economic or political experimentations contrary to what the Constitution has
ordained. Judicial power does not include the power to re-write the Constitution. Thus, the present
petitions should be remanded to the COMELEC not because the COMELEC committed grave abuse
of discretion in disqualifying petitioners, but because petitioners may now possibly qualify to
participate in the coming 13 May 2013 party-list elections under the new parameters prescribed by
this Court.
WHEREFORE, all the present 54 petitions are GRANTED. The 13 petitions, which have been
granted Status Quo Ante Orders but without mandatory injunction to include the names of petitioners
in the printing of ballots, are remanded to the Commission on Elections only for determination
whether petitioners are qualified to register under the party-list system under the parameters
prescribed in this Decision but they shall not participate in the 13 May 2013 part-list elections. The
41 petitions, which have been granted mandatory injunctions to include the names of petitioners in
the printing of ballots, are remanded to the Commission on Elections for determination whether
petitioners are qualified to register under the party-list system and to participate in the 13 May 2013
party-list elections under the parameters prescribed in this Decision. The Commission on Elections
may conduct summary evidentiary hearings for this purpose. This Decision is immediately executory.
SO ORDERED.

G.R. No. 189466

February 11, 2010

DARYL GRACE J. ABAYON, Petitioner,

vs.
THE HONORABLE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL, PERFECTO C.
LUCABAN, JR., RONYL S. DE LA CRUZ and AGUSTIN C. DOROGA, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 189506
CONGRESSMAN JOVITO S. PALPARAN, JR., Petitioner,
vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL (HRET), DR. REYNALDO LESACA,
JR., CRISTINA PALABAY, RENATO M. REYES, JR., ERLINDA CADAPAN, ANTONIO FLORES
and JOSELITO USTAREZ,Respondents.
DECISION
ABAD, J.:
These two cases are about the authority of the House of Representatives Electoral Tribunal (HRET)
to pass upon the eligibilities of the nominees of the party-list groups that won seats in the lower
house of Congress.
The Facts and the Case
In G.R. 189466, petitioner Daryl Grace J. Abayon is the first nominee of the Aangat Tayo party-list
organization that won a seat in the House of Representatives during the 2007 elections.
Respondents Perfecto C. Lucaban, Jr., Ronyl S. Dela Cruz, and Agustin C. Doroga, all registered
voters, filed a petition for quo warranto with respondent HRET against Aangat Tayo and its nominee,
petitioner Abayon, in HRET Case 07-041. They claimed that Aangat Tayo was not eligible for a partylist seat in the House of Representatives, since it did not represent the marginalized and
underrepresented sectors.
Respondent Lucaban and the others with him further pointed out that petitioner Abayon herself was
not qualified to sit in the House as a party-list nominee since she did not belong to the marginalized
and underrepresented sectors, she being the wife of an incumbent congressional district

representative. She moreover lost her bid as party-list representative of the party-list organization
called An Waray in the immediately preceding elections of May 10, 2004.
Petitioner Abayon countered that the Commission on Elections (COMELEC) had already confirmed
the status of Aangat Tayo as a national multi-sectoral party-list organization representing the
workers, women, youth, urban poor, and elderly and that she belonged to the women sector. Abayon
also claimed that although she was the second nominee of An Waray party-list organization during
the 2004 elections, she could not be regarded as having lost a bid for an elective office.
Finally, petitioner Abayon pointed out that respondent HRET had no jurisdiction over the petition for
quo warranto since respondent Lucaban and the others with him collaterally attacked the registration
of Aangat Tayo as a party-list organization, a matter that fell within the jurisdiction of the COMELEC.
It was Aangat Tayo that was taking a seat in the House of Representatives, and not Abayon who was
just its nominee. All questions involving her eligibility as first nominee, said Abayon, were internal
concerns of Aangat Tayo.
On July 16, 2009 respondent HRET issued an order, dismissing the petition as against Aangat Tayo
but upholding its jurisdiction over the qualifications of petitioner Abayon. 1 The latter moved for
reconsideration but the HRET denied the same on September 17, 2009, 2 prompting Abayon to file
the present petition for special civil action of certiorari.
In G.R. 189506, petitioner Jovito S. Palparan, Jr. is the first nominee of the Bantay party-list group
that won a seat in the 2007 elections for the members of the House of Representatives.
Respondents Reynaldo Lesaca, Jr., Cristina Palabay, Renato M. Reyes, Jr., Erlinda Cadapan,
Antonio Flores, and Joselito Ustarez are members of some other party-list groups.
Shortly after the elections, respondent Lesaca and the others with him filed with respondent HRET a
petition forquo warranto against Bantay and its nominee, petitioner Palparan, in HRET Case 07-040.
Lesaca and the others alleged that Palparan was ineligible to sit in the House of Representatives as
party-list nominee because he did not belong to the marginalized and underrepresented sectors that
Bantay represented, namely, the victims of communist rebels, Civilian Armed Forces Geographical
Units (CAFGUs), former rebels, and security guards. Lesaca and the others said that Palparan
committed gross human rights violations against marginalized and underrepresented sectors and
organizations.
Petitioner Palparan countered that the HRET had no jurisdiction over his person since it was actually
the party-list Bantay, not he, that was elected to and assumed membership in the House of
Representatives. Palparan claimed that he was just Bantays nominee. Consequently, any question
involving his eligibility as first nominee was an internal concern of Bantay. Such question must be
brought, he said, before that party-list group, not before the HRET.
On July 23, 2009 respondent HRET issued an order dismissing the petition against Bantay for the
reason that the issue of the ineligibility or qualification of the party-list group fell within the jurisdiction
of the COMELEC pursuant to the Party-List System Act. HRET, however, defended its jurisdiction
over the question of petitioner Palparans qualifications.3 Palparan moved for reconsideration but the
HRET denied it by a resolution dated September 10, 2009, 4 hence, the recourse to this Court
through this petition for special civil action of certiorari and prohibition.
Since the two cases raise a common issue, the Court has caused their consolidation.
The Issue Presented

The common issue presented in these two cases is:

Whether or not respondent HRET has jurisdiction over the question of qualifications of petitioners
Abayon and Palparan as nominees of Aangat Tayo and Bantay party-list organizations, respectively,
who took the seats at the House of Representatives that such organizations won in the 2007
elections.
The Courts Ruling
Petitioners Abayon and Palparan have a common theory: Republic Act (R.A.) 7941, the Party-List
System Act, vests in the COMELEC the authority to determine which parties or organizations have
the qualifications to seek party-list seats in the House of Representatives during the elections.
Indeed, the HRET dismissed the petitions for quo warranto filed with it insofar as they sought the
disqualifications of Aangat Tayo and Bantay. Since petitioners Abayon and Palparan were not
elected into office but were chosen by their respective organizations under their internal rules, the
HRET has no jurisdiction to inquire into and adjudicate their qualifications as nominees.
If at all, says petitioner Abayon, such authority belongs to the COMELEC which already upheld her
qualification as nominee of Aangat Tayo for the women sector. For Palparan, Bantays personality is
so inseparable and intertwined with his own person as its nominee so that the HRET cannot dismiss
the quo warranto action against Bantay without dismissing the action against him.
But, although it is the party-list organization that is voted for in the elections, it is not the organization
that sits as and becomes a member of the House of Representatives. Section 5, Article VI of the
Constitution,5 identifies who the "members" of that House are:
Sec. 5. (1). The House of Representatives shall be composed of not more than two hundred and
fifty members, unless otherwise fixed by law, who shall be elected from legislative
districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance
with the number of their respective inhabitants, and on the basis of a uniform and progressive
ratio, and those who, as provided by law, shall be elected through a party-list system of registered
national, regional, and sectoral parties or organizations. (Underscoring supplied)
Clearly, the members of the House of Representatives are of two kinds: "members x x x who shall be
elected from legislative districts" and "those who x x x shall be elected through a party-list
system of registered national, regional, and sectoral parties or organizations." This means
that, from the Constitutions point of view, it is the party-list representatives who are "elected" into
office, not their parties or organizations. These representatives are elected, however, through that
peculiar party-list system that the Constitution authorized and that Congress by law established
where the voters cast their votes for the organizations or parties to which such party-list
representatives belong.
Once elected, both the district representatives and the party-list representatives are treated in like
manner. They have the same deliberative rights, salaries, and emoluments. They can participate in
the making of laws that will directly benefit their legislative districts or sectors. They are also subject
to the same term limitation of three years for a maximum of three consecutive terms.
It may not be amiss to point out that the Party-List System Act itself recognizes party-list nominees
as "members of the House of Representatives," thus:

Sec. 2. Declaration of Policy. - The State shall promote proportional representation in the election of
representatives to the House of Representatives through a party-list system of registered national,
regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens
belonging to the marginalized and underrepresented sectors, organizations and parties, and who
lack well-defined political constituencies but who could contribute to the formulation and enactment
of appropriate legislation that will benefit the nation as a whole, to become members of the House of
Representatives. Towards this end, the State shall develop and guarantee a full, free and open party
system in order to attain the broadest possible representation of party, sectoral or group interests in
the House of Representatives by enhancing their chances to compete for and win seats in the
legislature, and shall provide the simplest scheme possible. (Underscoring supplied)
As this Court also held in Bantay Republic Act or BA-RA 7941 v. Commission on Elections,6 a partylist representative is in every sense "an elected member of the House of Representatives." Although
the vote cast in a party-list election is a vote for a party, such vote, in the end, would be a vote for its
nominees, who, in appropriate cases, would eventually sit in the House of Representatives.
Both the Constitution and the Party-List System Act set the qualifications and grounds for
disqualification of party-list nominees. Section 9 of R.A. 7941, echoing the Constitution, states:
Sec. 9. Qualification of Party-List Nominees. No person shall be nominated as party-list
representative unless he is a natural-born citizen of the Philippines, a registered voter, a
resident of the Philippines for a period of not less than one (1) year immediately preceding
the day of the election, able to read and write, bona fide member of the party or organization
which he seeks to represent for at least ninety (90) days preceding the day of the election,
and is at least twenty-five (25) years of age on the day of the election.
1avvphi1

In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more
than thirty (30) years of age on the day of the election. Any youth sectoral representative who
attains the age of thirty (30) during his term shall be allowed to continue until the expiration
of his term.
In the cases before the Court, those who challenged the qualifications of petitioners Abayon and
Palparan claim that the two do not belong to the marginalized and underrepresented sectors that
they ought to represent. The Party-List System Act provides that a nominee must be a "bona fide
member of the party or organization which he seeks to represent." 7
It is for the HRET to interpret the meaning of this particular qualification of a nomineethe need for
him or her to be a bona fide member or a representative of his party-list organizationin the context
of the facts that characterize petitioners Abayon and Palparans relation to Aangat Tayo and Bantay,
respectively, and the marginalized and underrepresented interests that they presumably embody.
Petitioners Abayon and Palparan of course point out that the authority to determine the qualifications
of a party-list nominee belongs to the party or organization that nominated him. This is true, initially.
The right to examine the fitness of aspiring nominees and, eventually, to choose five from among
them after all belongs to the party or organization that nominates them.8 But where an allegation is
made that the party or organization had chosen and allowed a disqualified nominee to become its
party-list representative in the lower House and enjoy the secured tenure that goes with the position,
the resolution of the dispute is taken out of its hand.
Parenthetically, although the Party-List System Act does not so state, the COMELEC seems to
believe, when it resolved the challenge to petitioner Abayon, that it has the power to do so as an

incident of its authority to approve the registration of party-list organizations. But the Court need not
resolve this question since it is not raised here and has not been argued by the parties.
What is inevitable is that Section 17, Article VI of the Constitution9 provides that the HRET shall be
the sole judge of all contests relating to, among other things, the qualifications of the members of the
House of Representatives. Since, as pointed out above, party-list nominees are "elected members"
of the House of Representatives no less than the district representatives are, the HRET has
jurisdiction to hear and pass upon their qualifications. By analogy with the cases of district
representatives, once the party or organization of the party-list nominee has been proclaimed and
the nominee has taken his oath and assumed office as member of the House of Representatives,
the COMELECs jurisdiction over election contests relating to his qualifications ends and the HRETs
own jurisdiction begins.10
The Court holds that respondent HRET did not gravely abuse its discretion when it dismissed the
petitions for quo warranto against Aangat Tayo party-list and Bantay party-list but upheld its
jurisdiction over the question of the qualifications of petitioners Abayon and Palparan.
WHEREFORE, the Court DISMISSES the consolidated petitions and AFFIRMS the Order dated July
16, 2009 and Resolution 09-183 dated September 17, 2009 in HRET Case 07-041 of the House of
Representatives Electoral Tribunal as well as its Order dated July 23, 2009 and Resolution 09-178
dated September 10, 2009 in HRET Case 07-040.

H. HARRY L. ROQUE, JR., JOEL

R. BUTUYAN, ROMEL R.
BAGARES, ALLAN JONES F.
LARDIZABAL, GILBERT T.
ANDRES, IMMACULADA D.
GARCIA, ERLINDA T.
MERCADO, FRANCISCO A.
ALCUAZ, MA. AZUCENA P.
MACEDA, and ALVIN A.
PETERS,
Petitioners,
- versus COMMISSION ON ELECTIONS,
Represented by HON. CHAIRMAN
JOSE MELO, COMELEC
SPECIAL BIDS and AWARDS
COMMITTEE, represented by its
CHAIRMAN HON. FERDINAND
RAFANAN, DEPARTMENT OF
BUDGET and MANAGEMENT,
represented by HON. ROLANDO
ANDAYA, TOTAL
INFORMATION MANAGEMENT
CORPORATION and
SMARTMATIC
INTERNATIONAL
CORPORATION,

G.R. No. 188456

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

Respondents.
PETE QUIRINO-QUADRA,
Petitioner-in-Intervention.
SENATE OF THE PHILIPPINES,
represented by its President, JUAN
PONCE ENRILE,
Movant-Intervenor.

Promulgated:
September 10, 2009

x-----------------------------------------------------------------------------------------x
DECISION
VELASCO, JR., J.:
In a democratic system of government, the peoples voice is sovereign.
Corollarily, choosing through the ballots the men and women who are to govern
the country is perhaps the highest exercise of democracy. It is thus the interest of
the state to insure honest, credible and peaceful elections, where the sanctity of the
votes and the secrecy of the ballots are safeguarded, where the will of the
electorate is not frustrated or undermined. For when the popular will itself is
subverted by election irregularities, then the insidious seeds of doubt are sown and
the ideal of a peaceful and smooth transition of power is placed in jeopardy. To
automate, thus breaking away from a manual system of election, has been viewed
as a significant step towards clean and credible elections, unfettered by the travails
of the long wait and cheating that have marked many of our electoral exercises.
The Commission on Elections (Comelec), private respondents,
the National Computer Center and other computer wizards are confident that
nationwide automated elections can be successfully implemented. Petitioners and
some skeptics in the information technology (IT) industry have, however, their
reservations, which is quite understandable. To them, the automated election
system and the untested technology Comelec has chosen and set in motion are
pregnant with risks and could lead to a disastrous failure of elections. Comelec,
they allege, would not be up to the challenge. Cheating on a massive scale, but this
time facilitated by a machine, is perceived to be a real possibility.

In this petition for certiorari, prohibition and mandamus with prayer for a
restraining order and/or preliminary injunction, petitioners H. Harry L. Roque,
Jr., et al., suing as taxpayers and concerned citizens, seek to nullify respondent
Comelecs award of the 2010 Elections Automation Project (automation project) to
the joint venture of Total Information Management Corporation (TIM) and
Smartmatic International Corporation (Smartmatic)[1] and to permanently prohibit
the Comelec, TIM and Smartmatic from signing and/or implementing the
corresponding contract-award.
By Resolution[2] of July 14, 2009, the Court directed the respondents as well
as the University of the Philippines (UP) Computer Center, National Computer
Center (NCC) and Information Technology Foundation of the Philippines
(Infotech, hereinafter) to submit their collective or separate comments to the
petition on or before July 24, 2009. Before any of the comments could actually be
filed, Atty. Pete Quirino-Quadra sought leave to intervene. In another resolution,
the Court allowed the intervention and admitted the corresponding petition-inintervention.[3]
On July 29, 2009, the Court heard the principal parties in oral arguments
which was followed by the submission of their and the resource persons
instructive, albeit clashing, memoranda. The Senate, through the Senate President,
would later join the fray via a Motion for Leave to Intervene. In a Resolution of
August 25, 2009, the Court admitted the Senates comment-in-intervention.
From the petition, the separate comments thereon, with their respective
annexes, and other pleadings, as well as from admissions during the oral
arguments, the Courtgathers the following facts:
On December 22, 1997, Congress enacted Republic Act No. (RA) 8436
authorizing the adoption of an automated election system (AES) in the May 11,
1998 national and local elections and onwards. The 1998, 2001, and 2004 national
and local polls, however, came and went but purely manual elections were still the
order of the day. On January 23, 2007, the amendatory RA 9369 [4] was passed
authorizing anew the Comelec to use an AES. Of particular relevance are Sections
6 and 10 of RA 9369originally Secs. 5 and 8, respectively of RA 8436, as
amendedeach defining Comelecs specific mandates insofar as automated elections

are concerned. The AES was not utilized in the May 10, 2000 elections, as funds
were not appropriated for that purpose by Congress and due to time constraints.
RA 9369 calls for the creation of the Comelec Advisory Council [5] (CAC).
CAC is to recommend, among other functions, the most appropriate, applicable
and cost-effective technology to be applied to the AES.[6] To be created by Comelec
too is the Technical Evaluation Committee (TEC) [7] which is tasked to certify,
through an established international certification committee, not later than three
months before the elections, by categorically stating that the AES, inclusive of its
hardware and software components, is operating properly and accurately based on
defined and documented standards.[8]
In August 2008, Comelec managed to automate the regional polls in the
Autonomous Region of Muslim Mindanao[9] (ARMM), using direct recording
electronics (DRE) technology[10] in the province of Maguindanao; and the optical
mark reader/recording (OMR) system, particularly the Central Count Optical Scan
(CCOS),[11] in the rest of ARMM.[12] What scores hailed as successful automated
ARMM 2008 elections paved the way for Comelec, with some prodding from
senators,[13] to prepare for a nationwide computerized run for the 2010
national/local polls, with the many lessons learned from the ARMM experience
influencing, according to the NCC, the technology selection for the 2010
automated elections.[14]
Accordingly, in early March 2009, the Comelec released the Request for
Proposal (RFP), also known as Terms of Reference (TOR), for the nationwide
automation of the voting, counting, transmission, consolidation and canvassing of
votes for the May 10, 2010 Synchronized National and Local Elections. What is
referred to also in the RFP and other contract documents as the 2010 Elections
Automation Project (Automation Project) consists of three elaborate components,
as follows:
Component 1: Paper-Based AES.[15] 1-A. Election Management System (EMS); 1B
Precinct-Count
Optic
Scan (PCOS) [16] System
and
1-C.
Consolidation/Canvassing System (CCS);

Component 2: Provision for Electronic Transmission of Election Results using

Public Telecommunications Network; and
Component 3: Overall Project Management
And obviously to address the possibility of systems failure, the RFP required
interested bidders to submit, among other things: a continuity plan[17] and a backup plan. [18]
Under the two-envelope system designed under the RFP,[19] each
participating bidder shall submit, as part of its bid, an Eligibility Envelope[20] that
should inter alia establish the bidders eligibility to bid. On the other hand, the
second envelope, or the Bid Envelope itself, shall contain two envelopes that, in
turn, shall contain the technical proposal and the financial proposal, respectively.[21]
Subsequently, the Comelec Special Bids and Awards Committee (SBAC),
earlier constituted purposely for the aforesaid project, caused the publication in
different newspapers of the Invitation to Apply for Eligibility and to Bid[22] for the
procurement of goods and services to be used in the automation project.
[23]
Meanwhile, Congress enacted RA 9525 appropriating some PhP 11.3 billion as
supplemental budget for the May 10, 2010 automated national and local elections.
Of the ten (10) invitation-responding consortia which obtained the bid
documents, only seven (7) submitted sealed applications for eligibility and
bids[24] which, per Bid Bulletin No. 24, were to be opened on a pre-set date,
following the convening of the pre-bid conference. Under the RFP, among those
eligible to participate in the bidding are manufacturers, suppliers and/or
distributors forming themselves into a joint venture. A joint venture is defined as a
group of two or more manufacturers, suppliers and/or distributors that intend to be
jointly and severally responsible or liable for a particular contract.[25]
Among the submitted bids was that of the joint venture (JV) of TIM and
Smartmatic, the former incorporated under the Corporation Code of
the Philippines. Smartmatic, on the other hand, was organized under the laws
of Barbados.[26] For a stated amount, said JV proposed to undertake the whole
automation project, inclusive of the delivery of 82,200 PCOS machines. After the

conclusion of the eligibility evaluation process, only three consortia [27] were found
and thus declared as eligible. Further on, following the opening of the passing
bidders Bid Envelope and evaluating the technical and financial proposals therein
contained, the SBAC, per its Res. No. 09-001, s.-2009, declared the above-stated
bid of the JV of TIM-Smartmatic as the single complying calculated bid.[28] As
required by the RFP, the bid envelope contained an outline of the joint ventures
back-up and continuity or contingency plans,[29] in case of a systems breakdown or
any such eventuality which shall result in the delay, obstruction or nonperformance
of the electoral process.
After declaring TIM-Smartmatic as the best complying bidder, the SBAC
then directed the joint venture to undertake post-qualification screening, and its
PCOS prototype machinesthe Smarmatic Auditable Electronic System (SAES)
1800to undergo end-to-end[30] testing to determine compliance with the pre-set
criteria.
In its Memorandum of June 01, 2009, on the Subject: Systems Evaluation
Consolidated Report and Status Report on the Post-Qualification Evaluation
Procedures,the SBAC Technical Working Group (TWG) stated that it was
undertaking a 4-day (May 27 to May 30, 2009) test evaluation of TIM and
Smartmatics proposed PCOS project machines. Its conclusion: The demo systems
presented PASSED all tests as required in the 26-item criteria specified in the
[RFP] with 100% accuracy rating.[31]The TWG also validated the eligibility, and
technical and financial qualifications of the TIM-Smartmatic joint venture.
On June 9, 2009, Comelec, upon the recommendation of its SBAC, the CAC
and other stakeholders, issued Resolution No. (Res.) 8608[32] authorizing the SBAC
to issue, subject to well-defined conditions, the notice of award and notice to
proceed in favor of the winning joint venture.
Soon after, TIM wrote Comelec expressing its desire to quit the JV
partnership. In time, however, the parties were able to patch up what TIM earlier
described as irreconcilable differences between partners.
What followed was that TIM and Smartmatic, pursuant to the Joint Venture
Agreement (JVA),[33] caused the incorporation of a joint venture corporation (JVC)

that would enter into a contract with the Comelec. On July 8, 2009, the Securities
and Exchange Commission issued a certificate of incorporation in favor of
Smartmatic TIM Corporation. Two days after, or on July 10, 2009, Comelec and
Smartmatic TIM Corporation, as provider, executed a contract [34] for the lease of
goods and services under the contract for the contract amount of PhP
7,191,484,739.48, payable as the Goods and Services are delivered and/or progress
is made in accordance [with pre-set] Schedule of Payments.[35] On the same date,
a Notice to Proceed[36] was sent to, and received by, Smartmatic TIM Corporation.
Meanwhile, or on July 9, 2009, petitioners interposed the instant recourse
which, for all intents and purposes, impugns the validity and seeks to nullify the
July 10, 2009 Comelec-Smartmatic-TIM Corporation automation contract adverted
to. Among others, petitioners pray that respondents be permanently enjoined from
implementing the automation project on the submission that:
PUBLIC RESPONDENTS COMELEC AND COMELEC-SBAC
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION IN AWARDING THE 2010
ELECTIONS
AUTOMATION
PROJECT
TO
PRIVATE
RESPONDENTS TIM AND SMARTMATIC FOR THE FOLLOWING
REASONS:
x x x COMELEC DID NOT CONDUCT ANY PILOT TESTING
OF THE x x x PCOS MACHINES OFFERED BY PRIVATE
RESPONDENTS SMARTMATIC AND TIM, IN VIOLATION
OF [RA] 8436 (AS AMENDED BY [RA] 9369)
THE [PCOS] MACHINES [THUS] OFFERED BY PRIVATE
RESPONDENTS x x x DO NOT SATISFY THE MINIMUM
SYSTEM CAPABILITIES SET BY [RA] NO. 8436 (AS
AMENDED BY [RA] 9369).
PRIVATE RESPONDENTS x x x DID NOT SUBMIT THE
REQUIRED DOCUMENTS DURING THE BIDDING
PROCESS THAT SHOULD ESTABLISH THE DUE
EXISTENCE, COMPOSITION, AND SCOPE OF THEIR JOINT
VENTURE, IN VIOLATION OF THE SUPREME COURTS
HOLDING IN INFORMATION TECHNOLOGY FOUNDATION
OF THE PHILIPPINES, vs. COMELEC (G.R. No. 159139, Jan.
13, 2004).
THERE WAS NO VALID JOINT VENTURE AGREEMENT
[JVA] BETWEEN PRIVATE RESPONDENTS SMARTMATIC
AND TIM DURING THE BIDDING, IN VIOLATION OF THE

SUPREME
COURTS
HOLDING
IN INFORMATION
TECHNOLOGY FOUNDATION OF THE PHILIPPINES vs.
COMELEC x x x WHICH REQUIRES A JOINT VENTURE TO
INCLUDE A COPY OF ITS [JVA] DURING THE BIDDING.
THE ALLEGED JOINT VENTURE COMPOSED OF PRIVATE
RESPONDENTS SMARTMATIC AND TIM, DOES NOT
SATISFY THE SUPREME COURTS DEFINITION OF A JOINT
VENTURE IN INFORMATION TECHNOLOGY FOUNDATION
OF THE PHILIPPINES vs. COMELEC x x x WHICH
REQUIRES A COMMUNITY OF INTEREST IN THE
PERFORMANCE OF THE SUBJECT MATTER.

Filed as it was before contract signing, the petition understandably did not
implead Smartmatic TIM Corporation, doubtless an indispensable party to these
proceedings, an incident that did not escape Comelecs notice.[37]
As a preliminary counterpoint, either or both public and private respondents
question the legal standing or locus standi of petitioners, noting in this regard that
the petition did not even raise an issue of transcendental importance, let alone a
constitutional question.
As an additional point, respondents also urge the dismissal of the petition on
the ground of prematurity, petitioners having failed to avail themselves of the
otherwise mandatory built-in grievance mechanism under Sec. 55 in relation to
Sec. 58 of RA 9184, also known as the Government Procurement Reform Act, as
shall be discussed shortly.
PROCEDURAL GROUNDS
The Court is not disposed to dismiss the petition on procedural grounds
advanced by respondents.
Locus Standi and Prematurity

It is true, as postulated, that to have standing, one must, as a rule, establish

having suffered some actual or threatened injury as a result of the alleged illegal
government conduct; that the injury is fairly traceable to the challenged action; and
that the injury is likely to be redressed by a favorable action. [38] The prescription on
standing, however, is a matter of procedure. Hence, it may be relaxed, as the Court
has often relaxed the rule for non-traditional plaintiffs, like ordinary citizens and
taxpayers, when the public interest so requires, such as when the matter is of
transcendental importance, of overarching significance to society, or of paramount
public interest.[39] As we wrote in Chavez v. PCGG,[40] where issues of public
importance are presented, there is no necessity to show that the suitor has
experienced or is in actual danger of suffering direct and personal injury as the
requisite injury is assumed.
Petitioners counsel, when queried, hedged on what specific constitutional
proscriptions or concepts had been infringed by the award of the subject
automation project to Smartmatic TIM Corporation, although he was heard to say
that our objection to the system is anchored on the Constitution itself a
violation [sic] of secrecy of voting and the sanctity of the ballot.[41] Petitioners also
depicted the covering automation contract as constituting an abdication by the
Comelec of its election-related mandate under the Constitution, which is to enforce
and administer all laws relative to the conduct of elections. Worse still, according
to the petitioners, the abdication, with its anti-dummy dimension, is in favor of a
foreign corporation that will be providing the hardware and software requirements.
[42]
And when pressed further, petitioners came out with the observation that, owing
in part to the sheer length of the ballot, the PCOS would not comply with Art. V,
Sec. 2 of the Constitution[43] prescribing secrecy of voting and sanctity of the
ballot.[44]
There is no doubt in our mind, however, about the compelling significance
and the transcending public importance of the one issue underpinning this petition:
the successand the far-reaching grim implications of the failureof the nationwide

automation project that will be implemented via the challenged automation

contract.
The doctrinal formulation may vary, but the bottom line is that the Court
may except a particular case from the operations of its rules when the demands of
justice so require.[45] Put a bit differently, rules of procedure are merely tools
designed to facilitate the attainment of justice. [46] Accordingly, technicalities and
procedural barriers should not be allowed to stand in the way, if the ends of justice
would not be subserved by a rigid adherence to the rules of procedure. [47] This
postulate on procedural technicalities applies to matters of locus standi and the
presently invoked principle of hierarchy of courts, which discourages direct resort
to the Court if the desired redress is within the competence of lower courts to
grant. The policy on the hierarchy of courts, which petitioners indeed failed to
observe, is not an iron-clad rule. For indeed the Court has full discretionary power
to take cognizance and assume jurisdiction of special civil actions
for certiorari and mandamus filed directly with it for exceptionally compelling
reasons[48] or if warranted by the nature of the issues clearly and specifically raised
in the petition.[49]
The exceptions that justify a deviation from the policy on hierarchy appear
to obtain under the premises. The Court will for the nonce thus turn a blind eye to
the judicial structure intended, first and foremost, to provide an orderly
dispensation of justice.

Hierarchy of Courts
At this stage, we shall dispose of another peripheral issue before plunging
into the core substantive issues tendered in this petition.
Respondents contend that petitioners should have availed themselves of the
otherwise mandatory protest mechanism set forth in Sections 55 and 58 of the
procurement law (RA 9184) and the counterpart provisions found in its
Implementing Rules and Regulations (IRR)-A before seeking judicial
remedy. Insofar as relevant, Sec. 55 of RA 9184 provides that decisions of the bids

and awards committee (BAC) in all stages of procurement may be protested, via
a verified position paper, to the head of the procuring agency. On the other hand,
the succeeding Sec. 58 states that court action may be resorted to only after the
protest contemplated in Sec. 55 shall have been completed. Petitioners except. As
argued, the requirement to comply with the protest mechanism, contrary to what
may have been suggested in Infotech, is imposed on the bidders.[50]
Petitioners position is correct. As a matter of common sense, only a bidder is
entitled to receive a notice of the protested BAC action. Only a losing bidder
would be aggrieved by, and ergo would have the personality to challenge, such
action. This conclusion finds adequate support from the ensuing provisions of the
aforesaid IRR-A:
55.2. The verified position paper shall contain the following
documents:
a) The name of bidder;
b) The office address of the bidder x x x.

SUBSTANTIVE ISSUES
We now turn to the central issues tendered in the petition which, in terms of
subject matter, revolved around two concerns, viz: (1) the Joint Venture Agreement
(JVA) of Smartmatic and TIM; and (2) the PCOS machines to be used. Petitioners
veritably introduced another issue during the oral arguments, as amplified in their
memorandum, i.e. the constitutionality and statutory flaw of the automation
contract itself. The petition-in-intervention confined itself to certain features of the
PCOS machines.
The Joint Venture Agreement: Its Existence and Submission
The issue respecting the existence and submission of the TIM-Smartmatic
JVA does not require an extended disquisition, as repairing to the records would

readily provide a satisfactory answer. We note in fact that the petitioners do not
appear to be earnestly pressing the said issue anymore, as demonstrated by their
counsels practically cavalier discussion thereof during the oral argument. When
reminded, for instance, of private respondents insistence on having in fact
submitted their JVA dated April 23, 2009, petitioners counsel responded as
follows: We knew your honor that there was, in fact, a joint venture agreement
filed. However, because of the belated discovery that [there] were irreconcilable
differences, we then made a view that this joint venture agreement was a sham, at
best pro forma because it did not contain all the required stipulations in order to
evidence unity of interest x x x.[51]
Indeed, the records belie petitioners initial posture that TIM and Smartmatic,
as joint venture partners, did not include in their submitted eligibility envelope a
copy of their JVA. The SBACs Post Qualification Evaluation Report
(Eligibility) on TIM-Smartmatic, on page 10, shows the following entry: Valid
Joint Venture Agreement, stating among things, that the members are jointly and
severally liable for the whole obligation, in case of joint venture Documents
verified compliance.[52]
Contrary to what the petitioners posit, the duly notarized JVA, as couched,
explained the nature and the limited purpose [53] of the joint venture and expressly
defined, among other things, the composition, scope, and the 60-40 capital
structure of the aggroupment.[54] The JVA also contains provisions on the
management[55] and division of profits.[56] Article 3[57] of the JVA delineates the
respective participations and responsibilities of the joint venture partners in the
automation project.
Given the foregoing perspective, the Court is at a loss to understand how
petitioners can assert that the Smartmatic-TIM consortium has failed to prove its
joint venture existence and/or to submit evidence as would enable the Comelec to

know such items as who it is dealing with, which between the partners has control
over the decision-making process, the amount of investment to be contributed by
each partner, the parties shares in the profits and like details. Had petitioners only
bothered to undertake the usual due diligence that comes with good judgment and
examined the eligibility envelope of the Smartmatic-TIM joint venture, they would
have discovered that their challenge to and arguments against the joint venture and
its JVA have really no factual basis.
It may be, as petitioners observed, that the TIM-Smartmatic joint venture
remained an unincorporated aggroupment during the bid-opening and evaluation
stages. It ought to be stressed, however, that the fact of non-incorporation was
without a vitiating effect on the validity of the tender offers. For the bidding
ground rules, as spelled out primarily in the RFP and the clarificatory bid bulletins,
does not require, for bidding purposes, that there be an incorporation of the bidding
joint ventures or consortiums. In fact, Bid Bulletin Nos. 19 and 20 recognize the
existence and the acceptability of proposals of unincorporated joint ventures. In
response to a poser, for example, regarding the 60% Filipino ownership
requirement in a joint venture arrangement, the SBAC, in its Bid Bulletin No. 22,
stated: In an unincorporated joint venture, determination of the required Filipino
participation may be made by examining the terms and conditions of the [JVA]
and other supporting financial documents submitted by the joint venture.
(Emphasis ours.) Petitioners, to be sure, have not shown that incorporation is part
of the pass/fail criteria used in determining eligibility.
Petitioners have made much of the Courts ruling in Information Technology
Foundation of the Philippines [Infotech] v. Comelec,[58] arguing in relation thereto
that the partnership of Smartmatic and TIM does not meet the Courts definition of
a joint venture which requires community of interest in the performance of the
subject matter.

Petitioners invocation of Infotech is utterly misplaced. Albeit Infotech and this case
are both about modernizing the election process and bidding joint ventures, the
relevant parallelism ends there. Cast as they are against dissimilar factual milieu,
one cannot plausibly set Infotech side with and contextually apply to this
case the ratio of Infotech. Suffice it to delve on the most glaring of differences.
In Infotech, the winning bid pertained to the consortium of Mega Pacific, a
purported joint venture. Extant records, however, do not show the formation of
such joint venture, let alone its composition. To borrow from the ponencia of then
Justice, later Chief Justice, Artemio Panganiban,there is no sign whatsoever of any
[JVA], consortium agreement [or] memorandum agreement x x x executed among
the members of the purported consortium.[59] There was in fine no evidence to
show that the alleged joint venture partners agreed to constitute themselves into a
single entity solidarily responsible for the entirety of the automation contract.
Unlike the purported Mega Pacific consortium in Infotech, the existence in this
case of the bidding joint venture of Smarmatic and TIM is properly documented
and spread all over the bid documents. And to stress, TIM and Smartmatic, in their
JVA, unequivocally agreed between themselves to perform their respective
undertakings. And over and beyond their commitments to each other, they
undertook to incorporate, if called for by the bidding results, a JVC that shall be
solidarily liable with them for any actionable breach of the automation contract.
In Infotech, the Court chastised the Comelec for dealing with an entity, the full
identity of which the poll body knew nothing about. Taking a cue from this
holding, petitioners tag the TIM-Smartmatic JVA as flawed and as one that would
leave the Comelec hanging for the non-inclusion, as members of the joint venture,
of three IT providers. The three referred to are Jarltech International, Inc.
(Jarltech), a subsidiary of Smartmatic that manufactures the Smartmatic voting
machines; Dominion Voting Systems (Domino), the inventor of said PCOS
machines; and 2GO Transportation System Corporation (2GO), the subcontractor
responsible for the distribution of the PCOS machines throughout the country.
Petitioners beef against the TIM-Smartmatic JVA is untenable. First off, the
Comelec knows the very entities whom they are dealing with, which it can hold
solidary liable under the automation contract, should there be contract violation.

Secondly, there is no requirement under either RA 8436, as amended, or the RFP,

that all the suppliers, manufacturers or distributors involved in the transaction
should be part of the joint venture. On the contrary, the Instruction to Biddersas
petitioners themselves admit[60]allows the bidder to subcontract portions of the
goods or services under the automation project.[61]
To digress a bit, petitioners have insisted on the non-existence of a bona fide JVA
between TIM and Smarmatic. Failing to gain traction for their indefensible posture,
they would thrust on the Court the notion of an invalid joint venture due to the
non-inclusion of more companies in the existing TIM-Smartmatic joint venture.
The irony is not lost on the Court.
This brings us to the twin technical issues tendered herein bearing on the
PCOS machines of Smartmatic.
At its most basic, the petition ascribes grave abuse of discretion to the
Comelec for, among other things, awarding the automation project in violation of
RA 8436, as amended. Following their line, no pilot test of the PCOS technology
Smartmatic-TIM offered has been undertaken; hence, the Comelec cannot conduct
a nationwide automation of the 2010 polls using the machines thus offered. Hence,
the contract award to Smartmatic-TIM with their untested PCOS machines violated
RA 8436, as amended by RA 9369, which mandates that with respect to the May
2010 elections and onwards, the system procured must have been piloted in at least
12 areas referred to in Sec. 6 of RA 8436, as amended. What is more, petitioners
assert, private respondents PCOS machines do not satisfy the minimum system
capabilities set by the same law envisaged to ensure transparent and credible
voting, counting and canvassing of votes. And as earlier narrated, petitioners would
subsequently add the abdication angle in their bid to nullify the automation
contract.
Pilot Testing Not Necessary
Disagreeing, as to be expected, private respondents maintain that there is
nothing in the applicable law requiring, as a pre-requisite for the 2010 election
automation project award, that the prevailing bidders automation system, the
PCOS in this case, be subjected to pilot testing. Comelec echoes its co-respondents
stance on pilot testing, with the added observation that nowhere in the statutory

provision relied upon are the words pilot testing used. [62] The Senates position and
its supporting arguments match those of private respondents.
The respondents thesis on pilot testing and the logic holding it together are
well taken. There can be no argument about the phrase pilot test not being found in
the law. But does it necessarily follow that a pilot test is absolutely not
contemplated in the law? We repair to the statutory provision petitioners cited as
requiring a pilot run, referring to Sec. 6 of RA 8436, as amended by RA 9369,
reading as follows:
Sec. 5. Authority to use an Automated Election System.- To carry
out the above stated-policy, the [Comelec], x x x is hereby authorized to
use an automated election system or systems in the same election in
different provinces, whether paper-based or a direct recording electronic
election system as it may deem appropriate and practical for the process
of voting, counting of votes and canvassing/consolidation and transmittal
of results of electoral exercises: Provided, that for the regular national
and local elections, which shall be held immediately after
the effectivity of this Act, the AES shall be used in at least two highly
urbanized cities and two provinces each in Luzon, Visayas, and
Mindanao to be chosen by the [Comelec]: Provided, further, That local
government units whose officials have been the subject of administrative
charges within sixteen (16) month prior to the May 14, 2007 elections
shall not be chosen. Provided, finally, That no area shall be chosen
without the consent of the Sanggunian of the local government unit
concerned. The term local government unit as used in this provision shall
refer to a highly urbanized city or province. In succeeding regular
national or local elections, the AES shall be implemented. (Emphasis and
underscoring added.)

RA 9369, which envisages an AES, be it paper-based or direct-recording

electronic, took effect in the second week of February 2007 or thereabout.
[63]
The regular national and local elections referred to after the effectivity of this
Act can be no other than the May 2007 regular elections, during which time the
AES shall, as the law is worded, be used in at least two highly urbanized cities and
provinces in Luzon, Visayas and Mindanao. The Court takes judicial notice that the
May 2007 elections did not deploy AES, evidently due to the mix of time and
funding constraints.

To the petitioners, the underscored portion of the aforequoted Sec. 6 of RA

8436 is the pilot-testing provision that Comelec failed to observe.
We are not persuaded.
From the practical viewpoint, the pilot testing of the technology in question
in an actual, scheduled electoral exercise under harsh conditions would have been
the ideal norm in computerized system implementation. The underscored proviso
of Sec. 6 of RA 8436 is not, however, an authority for the proposition that the pilot
testing of the PCOS in the 2007 national elections in the areas thus specified is an
absolute must for the machines use in the 2010 national/local elections. The Court
can concede that said proviso, with respect to the May 2007 elections, commands
the Comelec to automate in at least 12 defined areas of the country. But the bottom
line is that the required 2007 automation, be it viewed in the concept of a pilot test
or not, is not a mandatory requirement for the choice of system in, or a prerequisite
for, the full automation of the May 2010 elections.
As may be noted, Sec. 6 of RA 8436 may be broken into three essential
parts, the first partaking of the nature of a general policy declaration: that Comelec
is authorized to automate the entire elections. The second part states that for the
regular national and local elections that shall be held in May 2007, Comelec shall
use the AES, with an option, however, to undertake automation, regardless of the
technology to be selected, in a limited area or, to be more precise, in at least two
highly urbanized cities and two provinces each in Luzon, Visayas, and
Mindanao to be chosen by the Comelec. On the other hand, the last part,
phrased sans reference
to
the
May
2007
elections,
commands
thus: [I]n succeeding regular national or local elections, the [automated election
system] shall be implemented. Taken in its proper context, the last part is indicative
of the legislative intent for the May 2010 electoral exercise to be fully automated,
regardless of whether or not pilot testing was run in the 2007 polls.
To argue that pilot testing is a condition precedent to a full automation in
2010 would doubtless undermine the purpose of RA 9369. For, as aptly observed

during the oral arguments, if there was no political exercise in May 2007, the
country would theoretically be barred forever from having full automation.
Sec. 6 of the amended RA 8436, as couched, therefore, unmistakably
conveys the idea of unconditional full automation in the 2010 elections. A
construal making pilot testing of the AES a prerequisite or condition sine qua
non to putting the system in operation in the 2010 elections is tantamount to
reading into said section something beyond the clear intention of Congress, as
expressed in the provision itself. We reproduce with approval the following
excerpts from the comment of the Senate itself:
The plain wordings of RA 9369 (that amended RA 8436)
commands that the 2010 elections shall be fully automated, and such full
automation is not conditioned on pilot testing in the May 2007 elections.
Congress merely gave COMELEC the flexibility to partially use the AES
in some parts of the country for the May 2007 elections. [64]

Lest it be overlooked, an AES is not synonymous to and ought not to be

confused with the PCOS. Sec. 2(a) of RA 8436, as amended, defines an AES as a
system using appropriate technology which has been demonstrated in the voting,
counting, consolidating, canvassing and transmission of election results, and other
electoral processes. On the other hand, PCOS refers to a technology wherein an
optical ballot scanner, into which optical scan paper ballots marked by hand by the
voter are inserted to be counted.[65] What may reasonably be deduced from these
definitions is that PCOS is merely one of several automated voting, counting or
canvassing technologies coming within the term AES, implying in turn that the
automated election system or technology that the Comelec shall adopt in future
elections need not, as a matter of mandatory arrangement, be piloted in the
adverted two highly urbanized cities and provinces.
In perspective, what may be taken as mandatory prerequisite for the full
automation of the 2010 regular national/ local elections is that the system to be
procured for that exercise be a technology tested either here or abroad. The ensuing
Section 8 of RA 8436, as amended, says so.

SEC 12. Procurement of Equipment and Materials. To achieve the

purpose of this Act, the Commission is authorized to procure, xxx, by
purchase, lease, rent or other forms of acquisition, supplies, equipment,
materials, software, facilities, and other services, from local or foreign
sources xxx. With respect to the May 10, 2010 elections and
succeeding electoral exercises, the system procured must have
demonstrated capability and been successfully used in prior
electoral exercise here or abroad. Participation in the 2007 pilot
exercise shall not be conclusive of the systems fitness. (Emphasis
supplied).

While the underscored portion makes reference to a 2007 pilot exercise, what it
really exacts is that, for the automation of the May 2010 and subsequent elections,
the PCOS or any AES to be procured must have demonstrated its capability and
success in either a local or a foreign electoral exercise. And as expressly declared
by the provision, participation in the 2007 electoral exercise is not a guarantee nor
is it conclusive of the systems fitness. In this regard, the Court is inclined to agree
with private respondents interpretation of the underscored portion in question: The
provision clearly conveys that the [AES] to be used in the 2010 elections need not
have been used in the 2007 elections, and that the demonstration of its capability
need not be in a previous Philippine election. Demonstration of the success and
capability of the PCOS may be in an electoral exercise in a foreign jurisdiction.
[66]
As determined by the Comelec, the PCOS system had been successfully
deployed in previous electoral exercises in foreign countries, such
as Ontario, Canada; and New York, USA,[67] albeit Smartmatic was not necessarily
the system provider. But then, RA 9369 does not call for the winning bidder of the
2010 automation project and the deploying entity/provider in the foreign electoral
exercise to be one and the same entity. Neither does the law incidentally require
that the system be first used in an archipelagic country or with a topography or a
voting population similar to or approximating that of the Philippines.
At any event, any lingering doubt on the issue of whether or not full
automation of the 2010 regular elections can validly proceed without a pilot run of
the AES should be put to rest with the enactment in March 2009 of RA 9525, [68] in
which Congress appropriated PhP 11.301 billion to automate the 2010 elections,

subject to compliance with the transparency and accuracy requirements in selecting

the relevant technology of the machines, thus:
Sec. 2. Use of Funds. x x x Provided, however, That disbursement of the
amounts herein appropriated or any part thereof shall be authorized only
in strict compliance with the Constitution, the provisions of [RA] No.
9369 and other election laws incorporated in said Act as to ensure the
conduct of a free, orderly, clean, honest and credible election and shall
adopt such measures that will guaranty transparency and accuracy in
the selection of the relevant technology of the machines to be used on
May 10, 2010 automated national and local elections. (Emphasis added.)
It may safely be assumed that Congress approved the bill that eventually became
RA 9525, fully aware that the system using the PCOS machines were not piloted in
the 2007 electoral exercise. The enactment of RA 9525 is to us a compelling
indication that it was never Congress intent to make the pilot testing of a particular
automated election system in the 2007 elections a condition precedent to its use or
award of the 2010 Automation Project. The comment-in-intervention of the Senate
says as much.
Further, the highly charged issue of whether or not the 2008 ARMM
electionscovering, as NCC observed, three conflict-ridden island provincesmay be
treated as substantial compliance with the pilot test requirement must be answered
in the affirmative. No less than Senator Richard J. Gordon himself, the author of
the law, said that the system has been tried and tested in the ARMM elections last
year, so we have to proceed with the total implementation of the law.[69]
We note, though, the conflicting views of the NCC[70] and ITFP[71] on the
matter. Suffice it to state at this juncture that the system used in the 2008 ARMM
election exercise bears, as petitioners to an extent grudgingly admit, [72] a similarity
with the PCOS. The following, lifted from the Comelecs comment, is to us a fair
description of how the two systems (PCOS and CCOS) work and where the
difference lies:
xxx the elections in the [ARMM] utilized the Counting Center Optical
Scan (CCOS), a system which uses the Optical Mark Reader (OMR), the
same technology as the PCOS.
Under the CCOS, the voters cast their votes by shading or
marking the circles in the paper ballots which corresponded to the names

of their chosen candidates [like in PCOS]. Thereafter, the ballot boxes

were brought to the counting centers where they were scanned, counted
and canvassed.
xxx Under the PCOS, the counting, consolidation and canvassing of the votes
are done at the precinct level. The election results at the precincts are
then electronically transmitted to the next level, and so on. xxx PCOS
dispenses with the physical transportation of ballot boxes from the
precincts to the counting centers.[73]

Moreover, it has been proposed that a partial automation be implemented for the
May 2010 elections in accordance with Section 5 of RA 8436, as amended by RA
9369 instead of full automation. The Court cannot agree as such proposition has no
basis in law. Section 5, as worded, does not allow for partial automation. In fact,
Section 5 clearly states that the AES shall be implemented nationwide.[74] It
behooves this Court to follow the letter and intent of the law for full automation in
the May 2010 elections.
PCOS Meets Minimum Capabilities Standards
As another ground for the nullification of the automation contract, petitioners posit
the view that the PCOS machines do not satisfy the minimum system capabilities
prescribed by RA 8436, as amended. To a specific point, they suggest that the
PCOS system offered and accepted lacks the features that would assure accuracy in
the recording and reading of votes, as well as in the tabulation,
consolidation/canvassing, electronic transmission, storage results and accurate
ballot counting.[75] In this particular regard, petitioners allege that, based on
Smartmatics website, the PCOS has a margin of error of from 2% to 10%, way
beyond that of the required 99.99% accuracy in the counting of votes.[76]
The minimum system capabilities provision cited is Sec. 7 of RA 8436, as
amended, and the missing features referred to by petitioners are pars. (b) and (j). In
full, Sec. 7 of RA 8436, as amended, reads:
SEC. 6. Minimum System Capabilities. - The automated
election system must at least have the following functional capabilities:

(a) Adequate security against unauthorized access;

(b) Accuracy in recording and reading of votes as well as in the
tabulation, consolidation/canvassing, electronic transmission, and
storage of results;
(c) Error recovery in case of non-catastrophic failure of device;
(d) System integrity which ensures physical stability and functioning of
the vote recording and counting process;
(e) Provision for voter verified paper audit trail;
(f) System auditability which provides supporting documentation for
verifying the correctness of reported election results;
(g) An election management system for preparing ballots and programs
for use in the casting and counting of votes and to consolidate, report
and display election result in the shortest time possible;
(h) Accessibility to illiterates and disabled voters;
(i) Vote tabulating program for election, referendum or plebiscite;
(j) Accurate ballot counters;
(k) Data retention provision;
(l) Provide for the safekeeping, storing and archiving of physical or paper
resource used in the election process;
(m) Utilize or generate official ballots as herein defined;
(a) Provide the voter a system of verification to find out whether or not
the machine has registered his choice; and

(o) Configure access control for sensitive system data and

function.
In the procurement of this system, the Commission shall develop and
adopt an evaluation system to ascertain that the above minimum system
capabilities are met. The evaluation system shall be developed with the
assistance of an advisory council.
From the records before us, the Court is fairly satisfied that the Comelec has
adopted a rigid technical evaluation mechanism, a set of 26-item/check list criteria,
as will be enumerated shortly, to ensure compliance with the above minimum
systems capabilities.

The SBAC Memorandum[77] of June 03, 2009, as approved by Comelec Res. 8608,
[78]
categorically stated that the SBAC-TWG submitted its report that
TIM/Smartmatics proposed systems and machines PASSED all the end-to-end
demo tests using the aforementioned 26-item criteria, inclusive of the accuracy
rating test of at least 99.955%. As appearing in the SBAC-TWG report, the
corresponding answers/remarks to each of the 26 individual items are as herein
indicated:[79]

ITEM

REQUIREMENT

Does the system allow manual

feeding of a ballot into the PCOS
machine?
Does the system scan a ballot sheet at
the speed of at least 2.75 inches per
second?

REMARK/DESCRIPTION

Yes. The proposed PCOS machine

accepted the test ballots which were
manually fed one at a time.
Yes. A 30-inch ballot was used in this
test. Scanning the 30-inch ballot took
2.7 seconds, which translated to
11.11inches per second.
Is the system able to capture and store Yes the system captured the images of
in an encrypted format the digital
the 1,000 ballots in encrypted format.
images of the ballot for at least 2,000 Each of the 1,000 images filescontained
ballot sides (1,000 ballots, with back
the images of the front and back sides
to back printing)?
of the ballot, totaling to 2,000 ballot
side.

Is the system a fully integrated single

device as described in item no. 4 of
Component 1-B?

Does the system have a scanning

resolution of at least 200 dpi?

Does the system scan in grayscale?

Does the system require authorization

and authentication of all operators,
such as, but not limited to, usernames
and passwords, with multiple user

To verify the captured ballot images,

decrypted copies of the encrypted files
were also provided. The same were
found to be digitized representations of
the ballots cast.
Yes. The proposed PCOS is a fully
integrated single device, with built-in
printer and built-in data
communications ports (Ethernet and
USB).
Yes. A portion of a filled up marked
oval was blown up using image editor
software to reveal the number of dots
per inch. The sample image showed
200 dpi.
File properties of the decrypted image
file also revealed 200 dpi.
Yes. 30 shades of gray were scanned in
the test PCOS machine, 20 of which
were required, exceeding the required
4-bit/16 levels of gray as specified in
the Bid Bulletin No. 19.
Yes. The system required the use of a
security key with different sets
ofpasswords/PINs for Administrator
and Operator users.

access levels?
Does the system have an electronic
display?

Does the system employ error

handling procedures, including, but
not limited to, the use of error
prompts and other related
instructions?

10

Does the system count the voters vote

as marked on the ballot with an
accuracy rating of at least 99.995%?

Yes. The PCOS machine makes use of

an LCD display to show information:
if a ballot may be inserted into
the machine;
if a ballot is being processed; if
a ballot is being rejected;
on other instructions and
information to the voter/operator.
Yes. The PCOS showed error messages
on its screen whenever a ballot
is rejected by the machine and gives
instructions to the voter on what to do
next, or when there was a ballot jam
error.
Yes. The two rounds of tests were
conducted for this test using only valid
marks/shades on the ballots. 20,000
marks were required to complete this
test, with only one (1) allowable
reading error.
625 ballots with 32 marks each were
used for this test. During the
comparison of the PCOS-generated
results with the manually
prepared/predetermined results, it was
found out that there were seven (7)
marks which were inadvertently missed
out during ballot preparation by the
TWG. Although the PCOS-generated
results turned out to be 100% accurate,
the 20,000-mark was not met thereby
requiring the test to be repeated.

11

Does the system detect and reject

fake or spurious, and previously
scanned ballots?

12

Does the system scan both sides of a

ballot and in any orientation in one

To prepare for other possible missed

out marks,650 ballots with (20,800
marks) were used for the next round of
test, which also yielded 100% accuracy.
Yes. This test made use of one (1)
photocopied ballot and one (1) recreated ballot. Both were rejected by
the PCOS.
Yes. Four (4) ballots with valid marks
were fed into the PCOS machine in the

pass?

13

14

Does the system have necessary

safeguards to determine the
authenticity of a ballot, such as, but
not limited to, the use of bar codes,
holograms, color shifting ink, micro
printing, to be provided on the ballot,
which can be recognized by the
system?

Are the names of the candidates preprinted on the ballot?

four (4) portrait orientations specified

in Bid Bulletin No. 4 (either back or
front, upside down or right side up),
and all were accurately captured.
Yes. The system was able to recognize
if the security features on the ballot are
missing.
Aside from the test on the fake or
spurious ballots (Item No. 11), three (3)
test ballots with tampered bar codesand
timing marks were used and were all
rejected by the PCOS machine.
The photocopied ballot in the test for
Item No. 11 was not able to replicate
the UV ink pattern on top portion of the
ballot causing the rejection of the
ballot.
Yes. The Two sample test ballots of
different lengths were provided:
one (1) was 14 inches long while
the other was 30 inches long.
Both were 8.5 inches wide.
The first showed 108 pre-printed
candidate names for the fourteen
(14) contests/positions, including
two (2) survey questions on
gender and age group, and a
plebiscite question.

15

Does each side of the ballot sheet

accommodate at least 300 names of
candidates with a minimum font size
of 10, in addition to other mandatory
information required by law?

The other showed 609 pre-printed

candidate names, also for fourteen
(14) positions including three (3)
survey questions.
Yes. The 30-inch ballot, which was
used to test Item No. 2, contained 309
names for the national positions and
300 names for local positions. The total
pre-printed names on the ballot totaled
609.
This type of test ballot was also used
for test voting by the public,
including members of the media.

16

Does the system recognize full shade

marks on the appropriate space on the
ballot opposite the name of the
candidate to be voted for?

17

Does the system recognize partial

shade marks on the appropriate space
on the ballot opposite the name of the
candidate to be voted for?

Arial Narrow, font size 10, was used in

the printing of the candidate
names.
Yes. The ballots used for the accuracy
test (Item No. 10), which made use of
full shade marks, were also used in this
test and were accurately recognized by
the PCOS machine.
Yes. Four (4) test ballots were used
with one (1) mark each per ballot
showing the following pencil marks:
top half shade;
bottom half shade;
left half shade; and
right half shade

18

19

20

21

Does the system recognize check

()marks on the appropriate space on
the ballot opposite the name of the
candidate to be voted for?
Does the system recognize x marks
on the appropriate space on the ballot
opposite the name of the candidate to
be voted for?
Does the system recognize both
pencil and ink marks on the ballot?

In a simulation of a system shut

down, does the system have error
recovery features?

These partial shade marks were all

recognized by the PCOS machine
Yes. One (1) test ballot with one check
() mark, using a pencil, was used for
this test.
The mark was recognized successfully.
Yes. One (1) test ballot with one x
mark, using a pencil, was used for this
test.
The mark was recognized successfully.
Yes. The 1000 ballots used in the
accuracy test (Item No. 10) were
marked using the proposed marking
pen by the bidder.
A separate ballot with one (1) pencil
mark was also tested. This mark was
also recognized by the PCOS machine.
Moreover, the tests for Items No. 17, 18
and 19 were made using pencil marks
on the ballots.
Yes. Five (5) ballots were used in this
test. The power cord was pulled from
the PCOS while the 3rd ballot was in the
middle of the scanning procedure, such
that it was left hanging in the ballot
reader.

After resumption of regular power

supply, the PCOS machine was able to
restart successfully with notification to
the operator that there were two (2)
ballots already cast in the machine. The
hanging 3rd ballot was returned to the
operator and was able to be re-fed into
the PCOS machine. The marks on all
five (5) were all accurately recognized.
Yes. The PCOS was able to transmit to
the CCS during the end-to-end
demonstration using GLOBE prepaid
Internet kit.

22

Does the system have transmission

and consolidation/canvassing
capabilities?

23

Does the system generate a backup

copy of the generated reports, in a
removable data storage device?

Yes. The PCOS saves a backup copy of

the ERs, ballot images, statistical report
and audit log into a Compact Flash
(CF) Card.

24

Does the system have alternative

power sources, which will enable it to
fully operate for at least 12 hours?

Yes. A 12 bolt 18AH battery lead acid

was used in this test. The initial test had
to be repeated due to a short circuit,
after seven (7) hours from start-up
without ballot scanning. This was
explained by TIM-Smartmatic to be
caused by non-compatible wiring of the
battery to the PCOS. A smaller wire
than what is required was inadvertently
used, likening the situation to incorrect
wiring of a car battery. Two (2)
COMELEC electricians were called to
confirm TIM-Smartmatics explanation.
The PCOS machine was connected to
regular power and started successfully.
The following day, the re-test was
completed in 12 hours and 40 minutes
xxx 984 ballots were fed into the
machine. The ER, as generated by the
PCOS
was
compared
with
predetermined result, showed 100%
accuracy.

25

Is the system capable of generating

and printing reports?

26

Did the bidder successfully

Yes. The PCOS prints reports via its

built-in printer which includes:
1. Initialization Report; 2. Election
Returns (ER); 3. PCOS Statistical
Report; 4. Audit Log.
Yes. An end-to-end demonstration of all

demonstrate EMS, voting counting,

consolidation/canvassing and
transmission?

proposed systems was presented

covering: importing of election data
into the EMS; creation of election
configuration data for the PCOS and
the CCS using EMS; creation of ballot
faces using EMS; configuring the
PCOS and the CCS using the EMSgenerated election configuration file;
initialization, operation, generation of
reports and backup using the PCOS;
electronic transmission of results to the:
[1] from the PCOS to city/municipal
CCS and the central server. [2] from the
city/municipal CCS to the provincial
CCS. [3] from the provincial CCS to
the national CCS; receipt and canvass
of transmitted results: [1] by the
city/municipal CCS from the PCOS. [2]
by the provincial CCS from the
city/municipal CCS. [3] by the national
CCS from the provincial CCS; receipt
of the transmittal results by the central
server from the PCOS.

Given the foregoing and absent empirical evidence to the contrary, the
Court, presuming regularity in the performance of regular duties, takes the demotesting thus conducted by SBAC-TWG as a reflection of the capability of the
PCOS machines, although the tests, as Comelec admits,[80] were done literally in
the Palacio del Governador building, where a room therein simulated a town, the
adjoining room a city, etc. Perusing the RFP, however, the real worth of the PCOS
system and the machines will of course come after they shall have been subjected
to the gamut of acceptance tests expressly specified in the RFP, namely, the lab
test, field test, mock election test, transmission test and, lastly, the final test and
sealing procedure of all PCOS and CCS units using the actual Election Day
machine configuration.[81]
Apropos the counting-accuracy feature of the PCOS machines, petitioners
no less impliedly admit that the web page they appended to their petition, showing
a 2% to 10% failing rate, is no longer current. [82] And if they bothered to examine
the current website of Smartmatic specifically dealing with its SAES 1800, the

PCOS system it offered, they would have readily seen that the advertised accuracy
rating is over 99.99999%.[83] Moreover, a careful scrutiny of the old webpage of
Smarmatic reveals that the 2% to 10% failure rate applied to optical scanners and
not to SAES. Yet the same page discloses that the SAES has 100% accuracy.
Clearly, the alleged 2% to 10% failing rate is now irrelevant and the Court need not
belabor this and the equally irrelevant estoppel principle petitioners impose on us.
Intervenor Cuadras concern relates to the auditability of the election results.
In this regard, it may suffice to point out that PCOS, being a paper-based
technology, affords audit since the voter would be able, if need be, to verify if the
machine had scanned, recorded and counted his vote properly. Moreover, it should
also be noted that the PCOS machine contains an LCD screen, one that can be
programmed or configured to display to the voter his votes as read by the
machine. [84]
No Abdication of Comelecs Mandate and Responsibilty
As a final main point, petitioners would have the Comelec-Smartmatic-TIM
Corporation automation contract nullified since, in violation of the Constitution, it
constitutes a wholesale abdication of the poll bodys constitutional mandate for
election law enforcement. On top of this perceived aberration, the mechanism of
the PCOS machines would infringe the constitutional right of the people to the
secrecy of the ballot which, according to the petitioners, is provided in Sec. 2, Art.
V of the Constitution.[85]
The above contention is not well taken.
The first function of the Comelec under the Constitution [86]and the Omnibus
Election Code for that matterrelates to the enforcement and administration of all
laws and regulations relating to the conduct of elections to public office to
ensure a free, orderly and honest electoral exercise. And how did petitioners
come to their conclusion about their abdication theory? By acceding to Art. 3.3
of the automation contract, Comelec relinquished, so petitioners claim,
supervision and control of the system to be used for the automated elections. To
a more specific point, the loss of control, as may be deduced from the ensuing

exchanges, arose from the fact that Comelec would not be holding possession of
what in IT jargon are the public and private keys pair.
CHIEF JUSTICE: Well, more specifically are you saying that the
main course of this lost of control is the fact that SMARTMATIC holds
the public and private keys to the sanctity of this system?
ATTY. ROQUE: Yes, Your Honor, as well as the fact that they
control the program embedded in the key cost that will read their votes
by which the electorate may verify that their votes were counted.
CHIEF JUSTICE: You are saying that SMARTMATIC and not its
partner TIM who hold these public and private keys?
ATTY. ROQUE: Yes, Your Honor.

The Court is not convinced. There is to us nothing in Art 3.3 of the automation
contract, even if read separately from other stipulations and the provisions of the
bid documents and the Constitution itself, to support the simplistic conclusion of
abdication of control pressed on the Court. Insofar as pertinent, Art 3.3 reads:
3.3 The PROVIDER shall be liable for all its obligations under this Project
and the performance of portions thereof by other persons or entities not
parties to this Contract shall not relieve the PROVIDER of said
obligations and concomitant liabilities.
SMARTMATIC, as the joint venture partner with the greater track
record in automated elections, shall be in charge of the technical
aspects of the counting and canvassing software and hardware,
including transmission configuration and system integration.
SMARTMATIC shall also be primarily responsible for preventing and
troubleshooting technical problems that may arise during the elections.
(Emphasis added.)

The proviso designating Smartmatic as the joint venture partner in charge of

the technical aspect of the counting and canvassing wares does not to us translate,
without more, to ceding control of the electoral process to Smartmatic. It bears to
stress that the aforesaid designation of Smartmatic was not plucked from thin air,
as it was in fact an eligibility requirement imposed, should the bidder be a joint
venture. Part 5, par. 5.4 (e) of the Instruction to Bidders on the subject Eligible
Bidders, whence the second paragraph of aforequoted Art. 3.3 came from, reads:

5.4 A JV of two or more firms as partners shall comply with the

following requirements.
xxxx
(e) The JV member with a greater track record in automated
elections, shall be in-charge of the technical aspects of the counting and
canvassing software and hardware, including transmission configuration
and system integration

And lest it be overlooked, the RFP, which forms an integral part of the
automation contract,[87] has put all prospective bidders on notice of Comelecs intent
to automate and to accept bids that would meet several needs, among which is a
complete solutions provider which can provide effective overall nationwide project
management service under COMELEC supervision and control, to ensure
effective and successful implementation of the [automation] Project.
[88]
Complementing this RFP advisory as to control of the election process is Art.
6.7 of the automation contract, providing:
6.7 Subject to the provisions of the General Instructions to be
issued by the Commission En Banc, the entire processes of
voting, counting, transmission, consolidation and canvassing of votes
shall be conducted by COMELECs personnel and officials, and their
performance, completion and final results according to specifications
and within the specified periods shall be the shared responsibility of
COMELEC and the PROVIDER. (Emphasis added.)

But not one to let an opportunity to score points pass by, petitioners rhetorically
ask: Where does Public Respondent Comelec intend to get this large number of
professionals, many of whom are already gainfully employed abroad? [89] The
Comelec, citing Sec. 3[90] and Sec. 5 of RA 8436,[91] as amended, aptly answered
this poser in the following wise:
x x x [P]ublic respondent COMELEC, in the implementation of the
automated project, will forge partnerships with various entities in different
fields to bring about the success of the 2010 automated elections.

Public respondent COMELEC will partner with Smartmatic TIM

Corporation for the training and hiring of the IT personnel as well as for
the massive voter-education campaign. There is in fact a budget allocation
x x x for these undertakings. x x x
As regards the requirement of RA 9369 that IT-capable personnel shall be
deputized as a member of the BEI and that another IT-capable person shall
assist the BOC, public respondent COMELEC shall partner with DOST
and other agencies and instrumentalities of the government.

In not so many words during the oral arguments and in their respective
Memoranda, public and private respondents categorically rejected outright
allegations of abdication by the Comelec of its constitutional duty. The petitioners,
to stress, are strangers to the automation contract. Not one participated in the
bidding conference or the bidding proper or even perhaps examined the bidding
documents and, therefore, none really knows the real intention of the parties. As
case law tells us, the court has to ferret out the real intent of the parties. What is
fairly clear in this case, however, is that petitioners who are not even privy to the
bidding process foist upon the Court their own view on the stipulations of the
automation contract and present to the Court what they think are the parties true
intention. It is a study of outsiders appearing to know more than the parties do, but
actually speculating what the parties intended. The following is self-explanatory:

CHIEF JUSTICE: Why did you say that it did not, did you talk with the
Chairman and Commissioners of COMELEC that they failed to perform
this duty, they did not exercise this power of control?
ATTY. ROQUE : Your Honor, I based it on the fact that it was the
COMELEC in fact that entered into this contract .
CHIEF JUSTICE : Yes, but my question is did you confront the
COMELEC officials that they forfeited their power of control in over our
election process?
ATTY. ROQUE : We did not confront, your Honor. We impugned their
acts, Your Honor.[92]

Just as they do on the issue of control over the electoral process, petitioners also
anchor on speculative reasoning their claim that Smartmatic has possession and
control over the public and private keys pair that will operate the PCOS machines.

Consider: Petitioners counsel was at the start cocksure about Smartmatics control
of these keys and, with its control, of the electoral process.[93]
Several questions later, his answers had a qualifying tone:
JUSTICE NACHURA: And can COMELEC under the contract not
demand that it have access, that it be given access to and in fact generate
its own keys independently with SMARTMATIC so that it would be
COMELEC and not SMARTMATIC that would have full control of the
technology insofar as the keys are concerned xxx?
ATTY. ROQUE: I do not know if COMELEC will be in a position to
generate these keys, xxx. [94]

And subsequently, the speculative nature of petitioners position as to who

would have possession and control of the keys became apparent.
CHIEF JUSTICE: Yes, but did you check with the COMELEC who will
be holding these two keys x x x did you check with COMELEC whether
this system is correct?
ATTY.ROQUE: We have not had occasion to do so, x x x Your Honor.
xxxx
CHIEF JUSTICE: Why do you make that poor conclusion against the
COMELEC x x x May not the COMELEC hire the services of experts in
order for the institution to be able to discharge its constitutional
functions?
ATTY. ROQUE: That is true, but x x x there is too much reliance on
individuals who do not have the same kind of accountability as public
officers x x x
CHIEF JUSTICE: Are you saying that the COMELEC did not consult
with available I.T. experts in the country before it made the bidding rules
before it conducted the bidding and make the other policy judgments?

ATTY. ROQUE: Your Honor, what I am sure is that they did not confer
with the I.T. Foundation x x x.
CHIEF JUSTICE: But is that foundation the only expert, does it have a
monopoly of knowledge?[95]

The Court, to be sure, recognizes the importance of the vote-security issue

revolving around the issuance of the public and private keys pair to the Board of
Election Inspectors, including the digital signatures. The NCC comment on the
matter deserves mention, appearing to hew as it does to what appear on the
records. The NCC wrote:
The RFP/TOR used in the recent bidding for the AES to be used
in the 2010 elections specifically mandated the use of public key
cryptography. However, it was left to the discretion of the bidder to
propose an acceptable manner of utilization for approval/acceptance of
the Comelec. Nowhere in the RFP/TOR was it indicated that COMELEC
would delegate to the winning bidder the full discretion, supervision and
control over the manner of PKI [Public Key Infrastructure] utilization.

With the view we take of the automation contract, the role of Smartmatic
TIM Corporation is basically to supply the goods necessary for the automation
project, such as but not limited to the PCOS machines, PCs, electronic
transmission devices and related equipment, both hardware and software, and the
technical services pertaining to their operation. As lessees of the goods and the
back-up equipment, the corporation and its operators would provide assistance
with respect to the machines to be used by the Comelec which, at the end of the
day, will be conducting the election thru its personnel and whoever it deputizes.
And if only to emphasize a point, Comelecs contract is with Smartmatic
TIM Corporation of which Smartmatic is a 40% minority owner, per the JVA of
TIM and Smartmatic and the Articles of Incorporation of Smartmatic TIM
Corporation. Accordingly, any decision on the part or on behalf of Smartmatic will
not be binding on Comelec. As a necessary corollary, the board room voting
arrangement that Smartmatic and TIM may have agreed upon as joint venture
partners, inclusive of the veto vote that one may have power over the other, should
really be the least concern of the Comelec.

Parenthetically, the contention that the PCOS would infringe on the secrecy
and sanctity of the ballot because, as petitioners would put it, the voter would be
confronted with a three feet long ballot, [96] does not commend itself for
concurrence. Surely, the Comelec can put up such infrastructure as to insure that
the voter can write his preference in relative privacy. And as demonstrated during
the oral arguments, the voter himself will personally feed the ballot into the
machine. A voter, if so minded to preserve the secrecy of his ballot, will always
devise a way to do so. By the same token, one with least regard for secrecy will
likewise have a way to make his vote known.
During the oral arguments, the notion of a possible violation of the AntiDummy Law cropped up, given the RFP requirement of a joint venture bidder to
be at least be 60% Filipino. On the other hand, the winning bidder, TIMSmartmatic joint venture, has Smartmatic, a foreign corporation, owning 40% of
the equity in, first, the joint venture partnership, and then in Smartmatic TIM
Corporation.
The Anti-Dummy Law[97] pertinently states:
Section 1. Penalty. In all cases in which any constitutional or
legal provision requires Philippine or any other specific citizenship
as a requisite for the exercise or enjoyment of a right, franchise or
privilege, any citizen of the Philippines or of any other specific country
who allows his name or citizenship to be used for the purpose of evading
such provision, and any alien or foreigner profiting thereby, shall be
punished by imprisonment xxx and by a fine xxx.
SECTION 2. Simulation of minimum capital stock In all cases in
which a constitutional or legal provision requires that a corporation
or association may exercise or enjoy a right, franchise or privilege,
not less than a certain per centum of its capital must be owned
by citizens of the Philippines or any other specific country, it shall be
unlawful to falsely simulate the existence of such minimum stock or
capital as owned by such citizen for the purpose of evading such
provision. xxx

SECTION 2-A. Unlawful use, Exploitation or Enjoyment. Any

person, corporation, or association which, having in its name or under its
control, a right, franchise, privilege, property or business, the
exercise or enjoyment of which is expressly reserved by the
Constitution or the laws to citizens of the Philippines or of any other
specific country, or to corporations or associations at least sixty per
centum of the capital of which is owned by such citizens, permits or
allows the use, exploitation or enjoyment thereof by a person,
corporation, or association not possessing the requisites prescribed by
the Constitution or the laws of the Philippines; or leases, or in any other
way, transfers or conveys said right, franchise, privilege, property or
business to a person, corporation or association not otherwise qualified
under the Constitution xxx shall be punished by imprisonment xxx
(Emphasis added.)

The Anti-Dummy Law has been enacted to limit the enjoyment of certain
economic activities to Filipino citizens or corporations. For liability for violation of
the law to attach, it must be established that there is a law limiting or reserving the
enjoyment or exercise of a right, franchise, privilege, or business to citizens of
the Philippines or to corporations or associations at least 60 per centum of the
capital of which is owned by such citizens. In the case at bench, the Court is not
aware of any constitutional or statutory provision classifying as a nationalized
activity the lease or provision of goods and technical services for the automation of
an election. In fact, Sec. 8 of RA 8436, as amended, vests the Comelec with
specific authority to acquire AES from foreign sources, thus:
SEC 12. Procurement of Equipment and Materials. To achieve the
purpose of this Act, the Commission is authorized to procure, xxx,
by purchase, lease, rent or other forms of acquisition, supplies,
equipment, materials, software, facilities, and other services, from local
or foreign sources xxx. (Emphasis added.)

Petitioners cite Executive Order No. (EO) 584, [98] Series of 2006,
purportedly limiting contracts for the supply of materials, goods and commodities
to government-owned or controlled corporation, company, agency or municipal
corporation to corporations that are 60% Filipino. We do not quite see the
governing relevance of EO 584. For let alone the fact that RA 9369 is, in relation

to EO 584, a subsequent enactment and, therefore, enjoys primacy over the

executive issuance, the Comelec does fall under the category of a governmentowned and controlled corporation, an agency or a municipal corporation
contemplated in the executive order.
A view has been advanced regarding the susceptibility of the AES to
hacking, just like the voting machines used in certain precincts in Florida, USA in
the Gore-Bush presidential contests. However, an analysis of post-election reports
on the voting system thus used in the US during the period material and the AES to
be utilized in the 2010 automation project seems to suggest stark differences
between the two systems. The first relates to the Source Code, defined in RA 9369
as human readable instructions that define what the computer equipment will do.
[99]
The Source Code for the 2010 AES shall be available and opened for review by
political parties, candidates and the citizens arms or their representatives;
[100]
whereas in the US precincts aforementioned, the Source Code was alleged to
have been kept secret by the machine manufacture company, thus keeping the
American public in the dark as to how exactly the machines counted their votes.
And secondly, in the AES, the PCOS machines found in the precincts will also be
the same device that would tabulate and canvass the votes; whereas in the US, the
machines in the precincts did not count the votes. Instead the votes cast appeared to
have been stored in a memory card that was brought to a counting center at the end
of the day. As a result, the hacking and cheating may have possibly occurred at the
counting center.
Additionally, with the AES, the possibility of system hacking is very slim.
The PCOS machines are only online when they transmit the results, which would
only take around one to two minutes. In order to hack the system during this tiny
span of vulnerability, a super computer would be required. Noteworthy also is the
fact that the memory card to be used during the elections is encrypted and readonlymeaning no illicit program can be executed or introduced into the memory
card.
Therefore, even though the AES has its flaws, Comelec and Smartmatic have
seen to it that the system is well-protected with sufficient security measures in
order to ensure honest elections.

And as indicated earlier, the joint venture provider has formulated and put in
place a continuity and back-up plans that would address the understandable
apprehension of a failure of elections in case the machines falter during the actual
election. This over-all fall-back strategy includes the provisions for 2,000 spare
PCOS machines on top of the 80,000 units assigned to an equal number precincts
throughout the country. The continuity and back-up plans seek to address the
following eventualities: (1) The PCOS fails to scan ballots; (2) The PCOS scans
the ballots, but fails to print election returns (ERs); and/or (3) The PCOS prints but
fails to transmit the ERs. In the event item #1 occurs, a spare PCOS, if available,
will be brought in or, if not available, the PCOS of another precinct (PCOS 2 for
clarity), after observing certain defined requirements, [101] shall be used. Should all
the PCOS machines in the entire municipality/city fail, manual counting of the
paper ballots and the manual accomplishment of ERs shall be resorted to in
accordance with Comelec promulgated rules on appreciation of automated ballots.
[102]
In the event item #2 occurs where the PCOS machines fail to print ERs, the use
of spare PCOS and the transfer of PCOS-2 shall be effected. Manual counting of
ERs shall be resorted to also if all PCOS fails in the entire municipality. And
should eventuality #3 transpire, the following back-up options, among others, may
be availed of: bringing PCOS-1 to the nearest precinct or polling center which has
a functioning transmission facility; inserting transmission cable of functioning
transmission line to PCOS-1 and transmitting stored data from PCOS-1 using
functioning transmission facility.
The disruption of the election process due to machine breakdown or
malfunction may be limited to a precinct only or could affect an entire
municipal/city. The worst case scenario of course would be the wholesale
breakdown of the 82,000 PCOS machines. Nonetheless, even in this most extreme
case, failure of all the machines would not necessarily translate into failure of
elections. Manual count tabulation and transmission, as earlier stated, can be done,
PCOS being a paper-ballot technology. If the machine fails for whatever reason,
the paper ballots would still be there for the hand counting of the votes, manual
tabulation and transmission of the ERs. Failure of elections consequent to voting
machines failure would, in fine, be a very remote possibility.

A final consideration.
The first step is always difficult. Hardly anything works, let alone ends up
perfectly the first time around. As has often been said, if one looks hard enough, he
will in all likelihood find a glitch in any new system. It is no wonder some IT
specialists and practitioners have considered the PCOS as unsafe, not the most
appropriate technology for Philippine elections, and easily hackable, even. And the
worst fear expressed is that disaster is just waiting to happen, that PCOS would not
work on election day.
Congress has chosen the May 2010 elections to be the maiden run for full
automation. And judging from what the Court has heard and read in the course of
these proceedings, the choice of PCOS by Comelec was not a spur-of-moment
affair, but the product of honest-to-goodness studies, consultations with CAC, and
lessons learned from the ARMM 2008 automated elections. With the backing of
Congress by way of budgetary support, the poll body has taken this historic, if not
ambitious, first step. It started with the preparation of the RFP/TOR, with a list of
voluminous annexes embodying in specific detail the bidding rules and
expectations from the bidders. And after a hotly contested and, by most accounts, a
highly transparent public bidding exercise, the joint venture of a Filipino and
foreign corporation won and, after its machine hurdled the end-to-end
demonstration test, was eventually awarded the contract to undertake the
automation project. Not one of the losing or disqualified bidders questioned, at
least not before the courts, the bona fides of the bidding procedures and the
outcome of the bidding itself.
Assayed against the provisions of the Constitution, the enabling automation
law, RA 8436, as amended by RA 9369, the RFP and even the Anti-Dummy Law,
which petitioners invoked as an afterthought, the Court finds the project award to
have complied with legal prescriptions, and the terms and conditions of the
corresponding automation contract in question to be valid. No grave abuse of
discretion, therefore, can be laid on the doorsteps of respondent Comelec. And
surely, the winning joint venture should not be faulted for having a foreign
company as partner.

The Comelec is an independent constitutional body with a distinct and

pivotal role in our scheme of government. In the discharge of its awesome
functions as overseer of fair elections, administrator and lead implementor of laws
relative to the conduct of elections, it should not be stymied with restrictions that
would perhaps be justified in the case of an organization of lesser responsibility.
[103]
It should be afforded ample elbow room and enough wherewithal in devising
means and initiatives that would enable it to accomplish the great objective for
which it was createdto promote free, orderly, honest and peaceful elections. This is
as it should be for, too often, Comelec has to make decisions under difficult
conditions to address unforeseen events to preserve the integrity of the election and
in the process the voice of the people.Thus, in the past, the Court has steered away
from interfering with the Comelecs exercise of its power which, by law and by the
nature of its office properly pertain to it. Absent, therefore, a clear showing of
grave abuse of discretion on Comelecs part, as here, the Court should refrain from
utilizing the corrective hand of certiorari to review, let alone nullify, the acts of
that body. This gem, while not on all fours with, is lifted from, the Courts holding
in an old but oft-cited case:
x x x We may not agree fully with [the Comelecs] choice of
means, but unless these are clearly illegal or constitute gross abuse of
discretion, this court should not interfere.Politics is a practical matter,
and political questions must be dealt with realisticallynot from the
standpoint of pure theory [or speculation]. x x x
xxxx
There are no ready-made formulas for solving public problems.
Time and experience are necessary to evolve patterns that will serve the
ends of good government. In the matter of the administration of the laws
relative to the conduct of elections, x x x we must not by any excessive
zeal take away from the [Comelec] the initiative which by constitutional
and legal mandates properly belongs to it. Due regard to the independent
character of the Commission x x x requires that the power of this court to
review the acts of that body should, as a general proposition, be used
sparingly, but firmly in appropriate cases. [104] x x x
The Court, however, will not indulge in the presumption that nothing would
go wrong, that a successful automation election unmarred by fraud, violence, and
like irregularities would be the order of the moment on May 10, 2010. Neither will

it guarantee, as it cannot guarantee, the effectiveness of the voting machines and

the integrity of the counting and consolidation software embedded in them. That
task belongs at the first instance to Comelec, as part of its mandate to ensure clean
and peaceful elections. This independent constitutional commission, it is true,
possesses extraordinary powers and enjoys a considerable latitude in the discharge
of its functions. The road, however, towards successful 2010 automation elections
would certainly be rough and bumpy. The Comelec is laboring under very tight
timelines. It would accordingly need the help of all advocates of orderly and honest
elections, of all men and women of goodwill, to smoothen the way and assist
Comelec personnel address the fears expressed about the integrity of the system.
Like anyone else, the Court would like and wish automated elections to succeed,
credibly.
WHEREFORE, the instant petition is hereby DENIED.

G.R. No. 201112

October 23, 2012

ARCHBISHOP FERNANDO R. CAPALLA, OMAR SOLITARIO ALI and MARY ANNE L.

SUSANO, Petitioners,
vs.
THE HONORABLE COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 201121
SOLIDARITY FOR SOVEREIGNITY (S4S) represented by Ma. Linda Olaguer; RAMON
PEDROSA, BENJAMIN PAULINO SR., EVELYN CORONEL, MA. LINDA OLAGUER MONTAYRE,
and NELSON T. MONTAYRE,Petitioners,
vs.
COMMISSION ON ELECTIONS represented by its Chairman, Commissioner SIXTO S.
BRILLANTES, JR.,Respondent.
x-----------------------x
G.R. No. 201127
TEOFISTO T. GUINGONA, BISHOP BRODERICK S. PABILLO, SOLITA COLLAS MONSOD,
MARIA CORAZON MENDOZA ACOL, FR. JOSE DIZON, NELSON JAVA CELIS, PABLO R.
MANALASTAS, GEORGINA R. ENCANTO and ANNA LEAH E. COLINA, Petitioners,
vs.
COMMISSION ON ELECTIONS and SMARTMATIC TIM CORPORATION, Respondents.
x-----------------------x
G.R. No. 201413
TANGGULANG DEMOKRASYA (TAN DEM), INC., EVELYN L. KILA YKO, TERESITA D.
BALTAZAR, PILAR L. CALDERON and ELITA T. MONTILLA, Petitioners,
vs.
COMMISSION ON ELECTIONS and SMARTMATIC-TIM CORPORATION, Respondents.
RESOLUTION
PERALTA, J.:
Before the Court are the Motions for Reconsideration separately filed by movants Teofisto T.
Guingona, Bishop Broderick S. Pabillo, Solita Collas Monsod, Maria Corazon Mendoza Acol, Fr.
Jose Dizon, Nelson Java Celis, Pablo R. Manalastas, Georgina R. Encanto and Anna Leah E. Colina
(herein referred to as Guingona, et al.) in G.R. No. 201127;1 Solidarity for Sovereignty (S4S)
represented by Ma. Linda Olaguer, Ramon Pedrosa, Benjamin Paulino Sr., Evelyn Coronel, Ma.
Linda Olaguer Montayre, and Nelson T. Montayre (referred to as S4S, et al.) in G.R. No.
201121;2 and Tanggulang Demokrasya (Tan Dem), Inc., Evelyn L. Kilayko, Teresita D.
Baltazar, Pilar L. Calderon and Elita T. Montilla (Tan Dem, et al. for brevity) in G.R. No.
201413.3 Movants implore the Court to take a second look at the June 13, 2012 Decision 4 dismissing
their petitions filed against respondents Commission on Elections (Comelec), represented by its

Chairman Commissioner Sixto S. Brillantes, Jr. (Chairman Brillantes), and Smartmatic-TIM

Corporation (Smartmatic-TIM).
For a proper perspective, the facts as found by the Court in the assailed decision are briefly stated
below:
On July 10, 2009, the Comelec and Smartmatic-TIM entered into a Contract for the Provision of an
Automated Election System for the May 10, 2010 Synchronized National and Local Elections (AES
Contract) which is a Contract of Lease with Option to Purchase (OTP) the goods listed therein
consisting of the Precinct Count Optical Scan (PCOS), both software and hardware. 5 The Comelec
was given until December 31, 2010 within which to exercise the option but opted not to exercise the
same except for 920 units of PCOS machines with the corresponding canvassing/consolidation
system (CCS) for the special elections in certain areas in Basilan, Lanao del Sur and Bulacan. 6
On March 6, 2012, the Comelec issued Resolution No. 9373 resolving to seriously consider
exercising the OTP subject to certain conditions.7 It issued another Resolution numbered 9376
resolving to exercise the OTP in accordance with the AES Contract.8 On March 29, 2012, it issued
Resolution No. 9377 resolving to accept Smartmatic-TIMs offer to extend the period to exercise the
OTP until March 31, 2012.9 The Agreement on the Extension of the OTP under the AES Contract
(Extension Agreement) was eventually signed on March 30, 2012.10 Finally, it issued Resolution No.
9378 resolving to approve the Deed of Sale between the Comelec and
Smartmatic-TIM to purchase the latters PCOS machines to be used in the upcoming 2013
elections.11 The Deed of Sale was forthwith executed.12
Claiming that the foregoing Comelec issuances and transactions entered pursuant thereto are illegal
and unconstitutional, movants filed separate petitions for certiorari, prohibition and mandamus
before the Court.
Movants failed to obtain a favorable decision when the Court rendered a Decision 13 on June 13,
2012 dismissing their petitions. Hence, the motions for reconsideration based on the following
grounds:
G.R. No. 201127
I. THE HONORABLE COURT, WITH ALL DUE RESPECT, ERRED IN HOLDING THAT THE
PERIOD OF THE OPTION TO PURCHASE HAS NOT EXPIRED;
II. THE HONORABLE COURT, WITH ALL DUE RESPECT, ERRED IN HOLDING THAT
THERE WAS NO SUBSTANTIAL AMENDMENT TO THE AES CONTRACT; AND
II. THE HONORABLE COURT, WITH ALL DUE RESPECT, ERRED IN HOLDING THAT THE
SUBJECT AMENDMENT IS ADVANTAGEOUS TO THE PUBLIC.14
Movants Guingona, et al. disagree with the Courts interpretation of Article 2.2 of the AES Contract
and insist that the use of the words "without prejudice" and "surviving" explicitly distinguished the
"period of the option to purchase" from the "Term of this Contract." They thus conclude that the
warranty provision and the OTP are covered by a totally different period and not by the term of the
AES Contract.15 They also argue that the bid bulletins relative to the AES Contract expressly stated
the deadline for Comelec to exercise the OTP16 and that the parties intended that the stated period
be definite and non-extendible.17 Movants likewise aver that the Court erred in holding that there was

no substantial amendment to the AES Contract.18 Citing San Diego v. The Municipality of Naujan,
Province of Mindoro,19 as discussed in Justice Arturo D. Brions Dissenting Opinion, 20 and as
allegedly reiterated in San Buenaventura v. Municipality of San Jose, Camarines Sur, et
al.,21 Guingona et al. points out that an extension, however short, of the period of a publicly bidded
out contract is a substantial amendment that requires public bidding because the period in an OTP is
a vital and essential particular to the contract.22 Movants add that the Court erred in holding that the
subject amendment is advantageous to the public as the extended option contract is void and thus
can never be said to inure to the benefit of the public.23 Lastly, movants claim that the Comelec still
has the time to conduct public bidding to procure the items necessary for the 2013 elections and that
the needed budget could be provided by Congress.24
G.R. No. 201121
Petitioners humbly submit that the Order of this Honorable Court dismissing the petition by upholding
the validity of the extended option to purchase and the constitutionality of the AES Contract
implementation is contrary to law and the Constitution.25
Movants S4S, et al. implore the Court to take a second look at the relevance of the release of the
performance security to the subject expired option contract since it did not alter the fact of such
expiration.26 They explain that the Courts conclusion is a dangerous precedent, because it would
encourage circumvention of the laws and rules on government contracts since the parties could
enter into collusion to defer the release of the performance security for the sole purpose of
prolonging the effectivity of the contract.27 They reiterate their argument that any extension of the
option period amounts to a new procurement which must comply with the requirements of bidding
under Republic Act (RA) No. 918428 and stress that the March 31, 2012 Deed of Sale is not a special
transaction which warrants any exemption from the mandatory requirements of a public bidding. 29 It
is likewise their view that time constraints, budgetary consideration and other advantages in
extending the option period are not plausible justifications for non-compliance with the requirements
of public bidding.30 Finally, movants assail the constitutionality of the entire AES Contract and
consequently of the option contract because of its failure to provide that the mandatory minimum
system capabilities be complied with; and because of the provision on shared responsibility between
the Comelec and Smartmatic.31
G.R. No. 201413
I. THE NON-RELEASE OF THE SECURITY DEPOSIT BY COMELEC INDICATES THE
EXISTENCE OF UNFULFILLED OBLIGATIONS BY THE CONTRACTOR, AND
THEREFORE, IT IS ABSURD TO CITE THIS UNCURED BREACH BY THE CONTRACTOR
TO JUSTIFY THE GRANT OF MORE RIGHTS TO THE SAID CONTRACTOR BY
EXTENDING THE EXPIRED OPTION TO PURCHASE WHICH EFFECTIVELY
CIRCUMVENTS THE GOVERNMENT PROCUREMENT LAW.
II. THERE IS NO JUSTIFIABLE BASIS TO ACCEPT MERE ARGUMENTS THAT THE PCOS
IS CAPABLE OF RUNNING WITH DIGITAL SIGNATURES, SECURE[D] FROM HACKING
AND COMPLIANT WITH THE MINIMUM ACCURACY RATE OF 99.995%, WHEN IN
ACTUAL PERFORMANCE DURING MAY 2010 [ELECTIONS,] THE PCOS OPERATED
WITHOUT DIGITAL SIGNATURES, FOUND VULNERABLE TO HACKING AND FAILED BY
THE ACCURACY REQUIREMENT, AS SHOWN BY THE APPLICABLE COMELEC
RESOLUTIONS, TWG-RMA REPORT, AUDIT LOGS AND PRINT LOGS.32
Movants Tan Dem, et al. convey their view on the absurdity of the Courts decision in justifying the
resurrection of the dead OTP with the continuing effectivity of the stipulation on performance security

notwithstanding the presumed existence of uncured contractual breach by the contractor.33 They also
express doubt that the PCOS machines are capable of running with digital signatures compliant with
the minimum accuracy rate.34
For their part, respondents offer the following comments:
COMELEC
The Comelec, on the other hand, argues that it validly exercised the OTP because the period for its
exercise was amended and accordingly extended to March 31, 2012. It highlights the provision in the
AES Contract on the right to amend the contract which the parties did during its effectivity.35 It does
not agree with movants claim that the parties to the contract intended that the option period be
definite.36 Rather, it maintains that the parties are free to extend the option period in the same way
that they can amend the other provisions of the contract. 37 Moreover, the Comelec insists that the
extension of the option period is neither a material nor substantial amendment considering that after
the extension, the AES Contract taken as a whole still contains substantially the same terms and
conditions as the original contract and does not translate to concrete financial advantages to
Smartmatic-TIM.38 It also argues that the extension of the option period could not have affected the
bid prices or financial proposals of the bidders since they understood from the RFP that it had no
separate price allocation.39 It emphasizes that a longer period was not a benefit but a burden to the
bidders such that they would not have submitted a lower but in fact a higher bid because they would
have to give up the opportunity to lease or sell the PCOS machines to third parties and it would also
result in higher costs in warehousing and security.40 The Comelec also opines that San Diego and
San Buenaventura, cited by movants, are not applicable because they involve alterations of the
essential terms and conditions of the main contract to the disadvantage of the government unlike
this case where there is an alteration only with respect to the ancillary provision of the AES Contract
and for the benefit of the Comelec.41 The Comelec reiterates that the extension of the option period
is advantageous to it and burdensome for Smartmatic-TIM.42 Lastly, it posits that the exercise of the
OTP was the more prudent choice for the Comelec taking into consideration the budget and time
constraints.43
SMARTMATIC-TIM
Smartmatic-TIM contends that the OTP is only an ancillary provision in the subsisting AES Contract
which has already satisfied the public bidding requirements. 44 It disagrees with petitioners that the
extension of the option period was unilateral and claims instead that it was mutual as the parties in
fact executed an agreement on the extension.45 Assuming that the option period had already expired,
the extension is not a substantial or material amendment since it only pertains to a residual
component of the AES Contract.46 It also echoes the Comelecs argument that the San Diego and
San Buenaventura cases are not applicable to the present case because of the difference in factual
circumstances.47 Moreover, it reiterates its claim that the extension is favorable to the Comelec and
does not prejudice the other bidders.48 Smartmatic-TIM explains that the retention of the
performance security is due to its residual continuing obligations to maintain the PCOS machines
and update the software in anticipation of their possible use for elections after 2010, and not due to
the existence of unfulfilled obligations as provided in the AES Contract. 49 It likewise points out that
the alleged flaws and deficiencies of the PCOS machines do not affect its compliance with the
requirements of RA 9369.50 It emphasizes that the use of digital signatures and their availability for
use in future elections have been adequately established. 51 It also defends PCOS machines
compliance with the minimum requirements under RA 9369 as found by the Court in Roque v.
Comelec.52 As to the alleged glitches, Smartmatic-TIM claims that they are not attributable to any
inherent defect in the PCOS machines and, in any case, enhancements have already been
made.53 Lastly, Smartmatic-TIM stresses that the arguments challenging the validity and

constitutionality of the AES Contract and the performance by the Comelec of its mandate have
already been rejected with finality by the Court in Roque v. Comelec.54
We find no reason to disturb our June 13, 2012 Decision.
Clearly, under the AES Contract, the Comelec was given until December 31, 2010 within which to
exercise the OTP the subject goods listed therein including the PCOS machines. The option was,
however, not exercised within said period. But the parties later entered into an extension agreement
giving the Comelec until March 31, 2012 within which to exercise it. With the extension of the period,
the Comelec validly exercised the option and eventually entered into a contract of sale of the subject
goods. The extension of the option period, the subsequent exercise thereof, and the eventual
execution of the Deed of Sale became the subjects of the petitions challenging their validity in light of
the contractual stipulations of respondents and the provisions of RA 9184.
In our June 13, 2012 Decision, we decided in favor of respondents and placed a stamp of validity on
the assailed resolutions and transactions entered into. Based on the AES Contract, we sustained the
parties right to amend the same by extending the option period. Considering that the performance
security had not been released to Smartmatic-TIM, the contract was still effective which can still be
amended by the mutual agreement of the parties, such amendment being reduced in writing. To be
sure, the option contract is embodied in the AES Contract whereby the Comelec was given the right
to decide whether or not to buy the subject goods listed therein under the terms and conditions also
agreed upon by the parties. As we simply held in the assailed decision:
While the contract indeed specifically required the Comelec to notify Smartmatic-TIM of its OTP the
subject goods until December 31, 2010, a reading of the other provisions of the AES contract would
show that the parties are given the right to amend the contract which may include the period within
which to exercise the option. There is, likewise, no prohibition on the extension of the period,
provided that the contract is still effective.55
In interpreting Article 2.2 of the AES Contract, movants claim that the use of the word "surviving" and
the phrase "without prejudice" suggests that the warranty provision and the OTP are covered by a
different period and not by the term of the AES Contract. 56
We cannot subscribe to said postulation. Article 2.2 of the AES Contract reads:
Article 2
EFFECTIVITY
xxxx
2.2. The Term of this Contract begins from the date of effectivity until the release of the Performance
Security, without prejudice to the surviving provisions of this Contract including the warranty
provision as prescribed in Article 8.3 and the period of the option to purchase (Emphasis supplied).
The provision means that the contract takes effect from the date of effectivity until the release of the
performance security. Article 8 thereof, on the other hand, states when the performance security is
released, to wit:
Article 8
Performance Security and Warranty

xxxx
Within seven (7) days from delivery by the PROVIDER to COMELEC of the Over-all Project
Management Report after successful conduct of the May 10, 2010 elections, COMELEC shall
release to the PROVIDER the above-mentioned Performance Security without need of demand.
The performance security may, therefore, be released before December 31, 2010, the deadline set
in the AES Contract within which the Comelec could exercise the option. The moment the
performance security is released, the contract would have ceased to exist. However, since it is
without prejudice to the surviving provisions of the contract, the warranty provision and the period of
the option to purchase survive even after the release of the performance security. While these
surviving provisions may have different terms, in no way can we then consider the provision on the
OTP separate from the main contract of lease such that it cannot be amended under Article 19.
In this case, the contract is still effective because the performance security has not been released.
Thus, not only the option and warranty provisions survive but the entire contract as well. In light of
the contractual provisions, we, therefore, sustain the amendment of the option period.
The amendment of a previously bidded contract is not per se invalid. For it to be nullified, the
amendment must be substantial such that the other bidders were deprived of the terms and
opportunities granted to the winning bidder after it won the same and that it is prejudicial to public
interest. In our assailed decision, we found the amendment not substantial because no additional
right was made available to Smartmatic-TIM that was not previously available to the other bidders;
except for the extension of the option period, the exercise of the option was still subject to same
terms and conditions such as the purchase price and the warranty provisions; and the amendment is
more advantageous to the Comelec and the public.
Movants seek the application of San Diego57 where we nullified the extension of the lease agreement
and considered said amendment substantial. We, however, find the case inapplicable. The extension
made in San Diego pertained to the period of the main contract of lease while in this case, the
extension referred not to the main contract of lease of goods and services but to the period within
which to exercise the OTP. In extending the original period of lease of five years to another five years
without public bidding, the Municipality of Naujan, Province of Mindoro acted in violation of existing
law. The period of lease undoubtedly was a vital and essential particular to the contract of lease. In
San Diego, the Municipality of Naujan was the lessor of its municipal waters and the petitioner, the
lessee. An extension of the lease contract would mean that the lessee would be given undue
advantage because it would enjoy the lease of the property under the same terms and conditions for
a longer period. Moreover, prior to the extension of the lease period, the rentals were reduced upon
the request of the lessee. The end result was that the municipality was deprived of income by way of
rentals because of the reduced rates and longer period of lease.
In this case, the extension of the option period means that the Comelec had more time to determine
the propriety of exercising the option. With the extension, the Comelec could acquire the subject
PCOS machines under the same terms and conditions as earlier agreed upon. The end result is
that the Comelec acquired the subject PCOS machines with its meager budget and was able to
utilize the rentals paid for the 2010 elections as part of the purchase price.
1wphi1

We maintain the view that the extension of the option period is an amendment to the AES Contract
authorized by Article 19 thereof. As held in Agan, Jr. v. Philippine International Air Terminals Co.,
Inc.:58

While we concede that a winning bidder is not precluded from modifying or amending certain
provisions of the contract bidded upon, such changes must not constitute substantial or material
amendments that would alter the basic parameters of the contract and would constitute a denial to
the other bidders of the opportunity to bid on the same terms. Hence, the determination of whether
or not a modification or amendment of a contract bidded out constitutes a substantial amendment
rests on whether the contract, when taken as a whole, would contain substantially different terms
and conditions that would have the effect of altering the technical and/or financial proposals
previously submitted by other bidders. The alterations and modifications in the contract executed
between the government and the winning bidder must be such as to render such executed contract
to be an entirely different contract from the one that was bidded upon. 59
It must be pointed out that public biddings are held for the best protection of the public and to give
the public the best possible advantages by means of open competition between the bidders, and to
change them without complying with the bidding requirement would be against public policy.60 What
are prohibited are modifications or amendments which give the winning bidder an edge or advantage
over the other bidders who took part in the bidding, or which make the signed contract unfavorable
to the government.61 In this case, as thoroughly discussed in our June 13, 2012 Decision, the
extension of the option period and the eventual purchase of the subject goods resulted in more
benefits and advantages to the government and to the public in general.
While movants may have apprehensions on the effect to government contracts of allowing
"advantage to the government" as justification for the absence of competitive public bidding, it must
be stressed that the same reasoning could only be used under similar circumstances. The
"advantage to the government," time and budget constraints, the application of the rules on valid
amendment of government contracts, and the successful conduct of the May 2010 elections are
among the factors looked into in arriving at the conclusion that the assailed Resolutions issued by
the Comelec and the agreement and deed entered into between the Comelec and Smartmatic-TIM,
are valid.
Lastly, we need not further discuss the issues raised by movants on the alleged glitches of the
subject PCOS machines, their compliance with the minimum system capabilities required by law,
and the supposed abdication of the Comelecs exclusive power in the conduct of elections as these
issues have been either thoroughly discussed in the assailed decision or in the earlier case of
Roque, Jr. v. Commission on Elections.62
WHEREFORE, premises considered, the motions for reconsideration are DENIED for lack of merit.
SO ORDERED.