G.R. No.
190582 April 8, 2010 victims of exclusion, discrimination, and violence; that because of negative
ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON
REMOTO, Petitioner,
vs.
COMMISSION ON ELECTIONS Respondent.
DECISION
DEL CASTILLO, J.:
... [F]reedom to differ is not limited to things that do not matter much. That
would be a mere shadow of freedom. The test of its substance is the right to
differ as to things that touch the heart of the existing order.
Justice Robert A. Jackson
West Virginia State Board of Education v. Barnette1
One unavoidable consequence of everyone having the freedom to choose is
that others may make different choices – choices we would not make for
ourselves, choices we may disapprove of, even choices that may shock or
offend or anger us. However, choices are not to be legally prohibited merely
because they are different, and the right to disagree and debate about
important questions of public policy is a core value protected by our Bill of
Rights. Indeed, our democracy is built on genuine recognition of, and respect
for, diversity and difference in opinion.
Since ancient times, society has grappled with deep disagreements about
the definitions and demands of morality. In many cases, where moral
convictions are concerned, harmony among those theoretically opposed is
an insurmountable goal. Yet herein lies the paradox – philosophical
justifications about what is moral are indispensable and yet at the same time
powerless to create agreement. This Court recognizes, however, that
practical solutions are preferable to ideological stalemates; accommodation
is better than intransigence; reason more worthy than rhetoric. This will allow
persons of diverse viewpoints to live together, if not harmoniously, then, at
least, civilly.
Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an
application for a writ of preliminary mandatory injunction, filed by Ang Ladlad
LGBT Party (Ang Ladlad) against the Resolutions of the Commission on
Elections (COMELEC) dated November 11, 20092 (the First Assailed
Resolution) and December 16, 20093 (the Second Assailed Resolution) in
SPP No. 09-228 (PL) (collectively, the Assailed Resolutions). The case has
its roots in the COMELEC’s refusal to accredit Ang Ladlad as a party-list
organization under Republic Act (RA) No. 7941, otherwise known as the
Party-List System Act.4
Ang Ladlad is an organization composed of men and women who identify
themselves as lesbians, gays, bisexuals, or trans-gendered individuals
(LGBTs). Incorporated in 2003, Ang Ladlad first applied for registration with
the COMELEC in 2006. The application for accreditation was denied on the
ground that the organization had no substantial membership base. On
August 17, 2009, Ang Ladlad again filed a Petition5 for registration with the
COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a
marginalized and under-represented sector that is particularly disadvantaged
because of their sexual orientation and gender identity; that LGBTs are
societal attitudes, LGBTs are constrained to hide their sexual orientation; and
that Ang Ladlad complied with the 8-point guidelines enunciated by this
Court in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections.6
Ang Ladlad laid out its national membership base consisting of individual
members and organizational supporters, and outlined its platform of
governance.7
On November 11, 2009, after admitting the petitioner’s evidence, the
COMELEC (Second Division) dismissed the Petition on moral grounds,
stating that:
x x x This Petition is dismissible on moral grounds. Petitioner defines the
Filipino Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus:
x x x a marginalized and under-represented sector that is particularly
disadvantaged because of their sexual orientation and gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a person’s capacity for profound emotional, affectional and
sexual attraction to, and intimate and sexual relations with, individuals of a
different gender, of the same gender, or more than one gender."
This definition of the LGBT sector makes it crystal clear that petitioner
tolerates immorality which offends religious beliefs. In Romans 1:26, 27, Paul
wrote:
For this cause God gave them up into vile affections, for even their women
did change the natural use into that which is against nature: And likewise
also the men, leaving the natural use of the woman, burned in their lust one
toward another; men with men working that which is unseemly, and receiving
in themselves that recompense of their error which was meet.
In the Koran, the hereunder verses are pertinent:
For ye practice your lusts on men in preference to women "ye are indeed a
people transgressing beyond bounds." (7.81) "And we rained down on them
a shower (of brimstone): Then see what was the end of those who indulged
in sin and crime!" (7:84) "He said: "O my Lord! Help Thou me against people
who do mischief" (29:30).
As correctly pointed out by the Law Department in its Comment dated
October 2, 2008:
The ANG LADLAD apparently advocates sexual immorality as indicated in
the Petition’s par. 6F: ‘Consensual partnerships or relationships by gays and
lesbians who are already of age’. It is further indicated in par. 24 of the
Petition which waves for the record: ‘In 2007, Men Having Sex with Men or
MSMs in the Philippines were estimated as 670,000 (Genesis 19 is the
history of Sodom and Gomorrah).
Laws are deemed incorporated in every contract, permit, license,
relationship, or accreditation. Hence, pertinent provisions of the Civil Code
and the Revised Penal Code are deemed part of the requirement to be
complied with for accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which defines
nuisance as ‘Any act, omission, establishment, business, condition of
property, or anything else which x x x (3) shocks, defies; or disregards
decency or morality x x x
1
It also collides with Article 1306 of the Civil Code: ‘The contracting parties
may establish such stipulations, clauses, terms and conditions as they may
deem convenient, provided they are not contrary to law, morals, good
customs, public order or public policy. Art 1409 of the Civil Code provides
that ‘Contracts whose cause, object or purpose is contrary to law, morals,
good customs, public order or public policy’ are inexistent and void from the
beginning.
Finally to safeguard the morality of the Filipino community, the Revised
Penal Code, as amended, penalizes ‘Immoral doctrines, obscene
publications and exhibitions and indecent shows’ as follows:
Art. 201. Immoral doctrines, obscene publications and exhibitions, and
indecent shows. — The penalty of prision mayor or a fine ranging from six
thousand to twelve thousand pesos, or both such imprisonment and fine,
shall be imposed upon:
1. Those who shall publicly expound or proclaim doctrines openly
contrary to public morals;
2. (a) The authors of obscene literature, published with their
knowledge in any form; the editors publishing such literature; and
the owners/operators of the establishment selling the same;
(b) Those who, in theaters, fairs, cinematographs or
any other place, exhibit indecent or immoral plays,
scenes, acts or shows, it being understood that the
obscene literature or indecent or immoral plays,
scenes, acts or shows, whether live or in film, which
are prescribed by virtue hereof, shall include those
which: (1) glorify criminals or condone crimes; (2)
serve no other purpose but to satisfy the market for
violence, lust or pornography; (3) offend any race or
religion; (4) tend to abet traffic in and use of prohibited
drugs; and (5) are contrary to law, public order, morals,
good customs, established policies, lawful orders,
decrees and edicts.
3. Those who shall sell, give away or exhibit films, prints,
engravings, sculpture or literature which are offensive to morals.
Petitioner should likewise be denied accreditation not only for advocating
immoral doctrines but likewise for not being truthful when it said that it "or
any of its nominees/party-list representatives have not violated or failed to
comply with laws, rules, or regulations relating to the elections."
Furthermore, should this Commission grant the petition, we will be exposing
our youth to an environment that does not conform to the teachings of our
faith. Lehman Strauss, a famous bible teacher and writer in the U.S.A. said in
one article that "older practicing homosexuals are a threat to the youth." As
an agency of the government, ours too is the State’s avowed duty under
Section 13, Article II of the Constitution to protect our youth from moral and
spiritual degradation.8
When Ang Ladlad sought reconsideration,9 three commissioners voted to
overturn the First Assailed Resolution (Commissioners Gregorio Y.
Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three
commissioners voted to deny Ang Ladlad’s Motion for Reconsideration
(Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R.
Yusoph). The COMELEC Chairman, breaking the tie and speaking for the
majority in his Separate Opinion, upheld the First Assailed Resolution,
stating that:
I. The Spirit of Republic Act No. 7941
Ladlad is applying for accreditation as a sectoral party in the party-list
system. Even assuming that it has properly proven its under-representation
and marginalization, it cannot be said that Ladlad’s expressed sexual
orientations per se would benefit the nation as a whole.
Section 2 of the party-list law unequivocally states that the purpose of the
party-list system of electing congressional representatives is to enable
Filipino citizens belonging to marginalized and under-represented 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.
If entry into the party-list system would depend only on the ability of an
organization to represent its constituencies, then all representative
organizations would have found themselves into the party-list race. But that
is not the intention of the framers of the law. The party-list system is not a
tool to advocate tolerance and acceptance of misunderstood persons or
groups of persons. Rather, the party-list system is a tool for the realization of
aspirations of marginalized individuals whose interests are also the nation’s –
only that their interests have not been brought to the attention of the nation
because of their under representation. Until the time comes when Ladlad is
able to justify that having mixed sexual orientations and transgender
identities is beneficial to the nation, its application for accreditation under the
party-list system will remain just that.
II. No substantial differentiation
In the United States, whose equal protection doctrine pervades Philippine
jurisprudence, courts do not recognize lesbians, gays, homosexuals, and
bisexuals (LGBT) as a "special class" of individuals. x x x Significantly, it has
also been held that homosexuality is not a constitutionally protected
fundamental right, and that "nothing in the U.S. Constitution discloses a
comparable intent to protect or promote the social or legal equality of
homosexual relations," as in the case of race or religion or belief.
xxxx
Thus, even if society’s understanding, tolerance, and acceptance of LGBT’s
is elevated, there can be no denying that Ladlad constituencies are still
males and females, and they will remain either male or female protected by
the same Bill of Rights that applies to all citizens alike.
xxxx
IV. Public Morals
x x x There is no question about not imposing on Ladlad Christian or Muslim
religious practices. Neither is there any attempt to any particular religious
group’s moral rules on Ladlad. Rather, what are being adopted as moral
parameters and precepts are generally accepted public morals. They are
possibly religious-based, but as a society, the Philippines cannot ignore its
more than 500 years of Muslim and Christian upbringing, such that some
moral precepts espoused by said religions have sipped [sic] into society and
these are not publicly accepted moral norms.
V. Legal Provisions
But above morality and social norms, they have become part of the law of
the land. Article 201 of the Revised Penal Code imposes the penalty of
2
prision mayor upon "Those who shall publicly expound or proclaim doctrines
openly contrary to public morals." It penalizes "immoral doctrines, obscene
publications and exhibition and indecent shows." "Ang Ladlad" apparently
falls under these legal provisions. This is clear from its Petition’s paragraph
6F: "Consensual partnerships or relationships by gays and lesbians who are
already of age’ It is further indicated in par. 24 of the Petition which waves for
the record: ‘In 2007, Men Having Sex with Men or MSMs in the Philippines
were estimated as 670,000. Moreoever, Article 694 of the Civil Code defines
"nuisance" as any act, omission x x x or anything else x x x which shocks,
defies or disregards decency or morality x x x." These are all unlawful.10
On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court
annul the Assailed Resolutions and direct the COMELEC to grant Ang
Ladlad’s application for accreditation. Ang Ladlad also sought the issuance
ex parte of a preliminary mandatory injunction against the COMELEC, which
had previously announced that it would begin printing the final ballots for the
May 2010 elections by January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to
file its Comment on behalf of COMELEC not later than 12:00 noon of
January 11, 2010.11 Instead of filing a Comment, however, the OSG filed a
Motion for Extension, requesting that it be given until January 16, 2010 to
Comment.12 Somewhat surprisingly, the OSG later filed a Comment in
support of petitioner’s application.13 Thus, in order to give COMELEC the
opportunity to fully ventilate its position, we required it to file its own
comment.14 The COMELEC, through its Law Department, filed its Comment
on February 2, 2010.15
In the meantime, due to the urgency of the petition, we issued a temporary
restraining order on January 12, 2010, effective immediately and continuing
until further orders from this Court, directing the COMELEC to cease and
desist from implementing the Assailed Resolutions.16
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a
Motion to Intervene or to Appear as Amicus Curiae, attaching thereto its
Comment-in-Intervention.17 The CHR opined that the denial of Ang Ladlad’s
petition on moral grounds violated the standards and principles of the
Constitution, the Universal Declaration of Human Rights (UDHR), and the
International Covenant on Civil and Political Rights (ICCPR). On January 19,
2010, we granted the CHR’s motion to intervene.
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene18
which motion was granted on February 2, 2010.19
The Parties’ Arguments
Ang Ladlad argued that the denial of accreditation, insofar as it justified the
exclusion by using religious dogma, violated the constitutional guarantees
against the establishment of religion. Petitioner also claimed that the
Assailed Resolutions contravened its constitutional rights to privacy, freedom
of speech and assembly, and equal protection of laws, as well as constituted
violations of the Philippines’ international obligations against discrimination
based on sexual orientation.
The OSG concurred with Ang Ladlad’s petition and argued that the
COMELEC erred in denying petitioner’s application for registration since
there was no basis for COMELEC’s allegations of immorality. It also opined
that LGBTs have their own special interests and concerns which should have
been recognized by the COMELEC as a separate classification. However,
insofar as the purported violations of petitioner’s freedom of speech,
expression, and assembly were concerned, the OSG maintained that there
had been no restrictions on these rights.
In its Comment, the COMELEC reiterated that petitioner does not have a
concrete and genuine national political agenda to benefit the nation and that
the petition was validly dismissed on moral grounds. It also argued for the
first time that the LGBT sector is not among the sectors enumerated by the
Constitution and RA 7941, and that petitioner made untruthful statements in
its petition when it alleged its national existence contrary to actual verification
reports by COMELEC’s field personnel.
Our Ruling
We grant the petition.
Compliance with the Requirements of the Constitution and Republic Act No.
7941
The COMELEC denied Ang Ladlad’s application for registration on the
ground that the LGBT sector is neither enumerated in the Constitution and
RA 7941, nor is it associated with or related to any of the sectors in the
enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands
for the proposition that only those sectors specifically enumerated in the law
or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, elderly, handicapped, women, youth, veterans,
overseas workers, and professionals) may be registered under the party-list
system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v.
Commission on Elections,20 "the enumeration of marginalized and under-
represented sectors is not exclusive". The crucial element is not whether a
sector is specifically enumerated, but whether a particular organization
complies with the requirements of the Constitution and RA 7941.
Respondent also argues that Ang Ladlad made untruthful statements in its
petition when it alleged that it had nationwide existence through its members
and affiliate organizations. The COMELEC claims that upon verification by its
field personnel, it was shown that "save for a few isolated places in the
country, petitioner does not exist in almost all provinces in the country."21
This argument that "petitioner made untruthful statements in its petition when
it alleged its national existence" is a new one; previously, the COMELEC
claimed that petitioner was "not being truthful when it said that it or any of its
nominees/party-list representatives have not violated or failed to comply with
laws, rules, or regulations relating to the elections." Nowhere was this ground
for denial of petitioner’s accreditation mentioned or even alluded to in the
Assailed Resolutions. This, in itself, is quite curious, considering that the
reports of petitioner’s alleged non-existence were already available to the
COMELEC prior to the issuance of the First Assailed Resolution. At best, this
is irregular procedure; at worst, a belated afterthought, a change in
respondent’s theory, and a serious violation of petitioner’s right to procedural
due process.
Nonetheless, we find that there has been no misrepresentation. A cursory
perusal of Ang Ladlad’s initial petition shows that it never claimed to exist in
each province of the Philippines. Rather, petitioner alleged that the LGBT
community in the Philippines was estimated to constitute at least 670,000
persons; that it had 16,100 affiliates and members around the country, and
4,044 members in its electronic discussion group.22 Ang Ladlad also
represented itself to be "a national LGBT umbrella organization with affiliates
around the Philippines composed of the following LGBT networks:"
§ Abra Gay Association
§ Aklan Butterfly Brigade (ABB) – Aklan
3
§ Albay Gay Association
§ Arts Center of Cabanatuan City – Nueva Ecija
§ Boys Legion – Metro Manila
§ Cagayan de Oro People Like Us (CDO PLUS)
§ Can’t Live in the Closet, Inc. (CLIC) – Metro Manila
§ Cebu Pride – Cebu City
§ Circle of Friends
§ Dipolog Gay Association – Zamboanga del Norte
§ Gay, Bisexual, & Transgender Youth Association (GABAY)
§ Gay and Lesbian Activists Network for Gender Equality
(GALANG) – Metro Manila
§ Gay Men’s Support Group (GMSG) – Metro Manila
§ Gay United for Peace and Solidarity (GUPS) – Lanao del Norte
§ Iloilo City Gay Association – Iloilo City
§ Kabulig Writer’s Group – Camarines Sur
§ Lesbian Advocates Philippines, Inc. (LEAP)
§ LUMINA – Baguio City
§ Marikina Gay Association – Metro Manila
§ Metropolitan Community Church (MCC) – Metro Manila
§ Naga City Gay Association – Naga City
§ ONE BACARDI
§ Order of St. Aelred (OSAe) – Metro Manila
§ PUP LAKAN
§ RADAR PRIDEWEAR
§ Rainbow Rights Project (R-Rights), Inc. – Metro Manila
§ San Jose del Monte Gay Association – Bulacan
§ Sining Kayumanggi Royal Family – Rizal
§ Society of Transexual Women of the Philippines (STRAP) –
Metro Manila
§ Soul Jive – Antipolo, Rizal
§ The Link – Davao City
§ Tayabas Gay Association – Quezon
§ Women’s Bisexual Network – Metro Manila
§ Zamboanga Gay Association – Zamboanga City23
Since the COMELEC only searched for the names ANG LADLAD LGBT or
LADLAD LGBT, it is no surprise that they found that petitioner had no
presence in any of these regions. In fact, if COMELEC’s findings are to be
believed, petitioner does not even exist in Quezon City, which is registered
as Ang Ladlad’s principal place of business.
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated
its compliance with the legal requirements for accreditation. Indeed, aside
from COMELEC’s moral objection and the belated allegation of non-
existence, nowhere in the records has the respondent ever found/ruled that
Ang Ladlad is not qualified to register as a party-list organization under any
of the requisites under RA 7941 or the guidelines in Ang Bagong Bayani. The
difference, COMELEC claims, lies in Ang Ladlad’s morality, or lack thereof.
Religion as the Basis for Refusal to Accept Ang Ladlad’s Petition for
Registration
Our Constitution provides in Article III, Section 5 that "[n]o law shall be made
respecting an establishment of religion, or prohibiting the free exercise
thereof." At bottom, what our non-establishment clause calls for is
"government neutrality in religious matters."24 Clearly, "governmental
reliance on religious justification is inconsistent with this policy of
neutrality."25 We thus find that it was grave violation of the non-establishment
clause for the COMELEC to utilize the Bible and the Koran to justify the
exclusion of Ang Ladlad.
Rather than relying on religious belief, the legitimacy of the Assailed
Resolutions should depend, instead, on whether the COMELEC is able to
advance some justification for its rulings beyond mere conformity to religious
doctrine. Otherwise stated, government must act for secular purposes and in
ways that have primarily secular effects. As we held in Estrada v. Escritor:26
x x x The morality referred to in the law is public and necessarily secular, not
religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as
expressed in public debate may influence the civil public order but public
moral disputes may be resolved only on grounds articulable in secular
terms." Otherwise, if government relies upon religious beliefs in formulating
public policies and morals, the resulting policies and morals would require
conformity to what some might regard as religious programs or agenda. The
non-believers would therefore be compelled to conform to a standard of
conduct buttressed by a religious belief, i.e., to a "compelled religion,"
anathema to religious freedom. Likewise, if government based its actions
upon religious beliefs, it would tacitly approve or endorse that belief and
thereby also tacitly disapprove contrary religious or non-religious views that
would not support the policy. As a result, government will not provide full
religious freedom for all its citizens, or even make it appear that those whose
beliefs are disapproved are second-class citizens.1avvphi1
In other words, government action, including its proscription of immorality as
expressed in criminal law like concubinage, must have a secular purpose.
That is, the government proscribes this conduct because it is "detrimental (or
dangerous) to those conditions upon which depend the existence and
progress of human society" and not because the conduct is proscribed by
the beliefs of one religion or the other. Although admittedly, moral judgments
based on religion might have a compelling influence on those engaged in
4
public deliberations over what actions would be considered a moral
disapprobation punishable by law. After all, they might also be adherents of a
religion and thus have religious opinions and moral codes with a compelling
influence on them; the human mind endeavors to regulate the temporal and
spiritual institutions of society in a uniform manner, harmonizing earth with
heaven. Succinctly put, a law could be religious or Kantian or Aquinian or
utilitarian in its deepest roots, but it must have an articulable and discernible
secular purpose and justification to pass scrutiny of the religion clauses. x x x
Recognizing the religious nature of the Filipinos and the elevating influence
of religion in society, however, the Philippine constitution's religion clauses
prescribe not a strict but a benevolent neutrality. Benevolent neutrality
recognizes that government must pursue its secular goals and interests but
at the same time strive to uphold religious liberty to the greatest extent
possible within flexible constitutional limits. Thus, although the morality
contemplated by laws is secular, benevolent neutrality could allow for
accommodation of morality based on religion, provided it does not offend
compelling state interests.27
Public Morals as a Ground to Deny Ang Ladlad’s Petition for Registration
Respondent suggests that although the moral condemnation of
homosexuality and homosexual conduct may be religion-based, it has long
been transplanted into generally accepted public morals. The COMELEC
argues:
Petitioner’s accreditation was denied not necessarily because their group
consists of LGBTs but because of the danger it poses to the people
especially the youth. Once it is recognized by the government, a sector
which believes that there is nothing wrong in having sexual relations with
individuals of the same gender is a bad example. It will bring down the
standard of morals we cherish in our civilized society. Any society without a
set of moral precepts is in danger of losing its own existence.28
We are not blind to the fact that, through the years, homosexual conduct,
and perhaps homosexuals themselves, have borne the brunt of societal
disapproval. It is not difficult to imagine the reasons behind this censure –
religious beliefs, convictions about the preservation of marriage, family, and
procreation, even dislike or distrust of homosexuals themselves and their
perceived lifestyle. Nonetheless, we recall that the Philippines has not seen
fit to criminalize homosexual conduct. Evidently, therefore, these "generally
accepted public morals" have not been convincingly transplanted into the
realm of law.29
The Assailed Resolutions have not identified any specific overt immoral act
performed by Ang Ladlad. Even the OSG agrees that "there should have
been a finding by the COMELEC that the group’s members have committed
or are committing immoral acts."30 The OSG argues:
x x x A person may be sexually attracted to a person of the same gender, of
a different gender, or more than one gender, but mere attraction does not
translate to immoral acts. There is a great divide between thought and
action. Reduction ad absurdum. If immoral thoughts could be penalized,
COMELEC would have its hands full of disqualification cases against both
the "straights" and the gays." Certainly this is not the intendment of the law.31
Respondent has failed to explain what societal ills are sought to be
prevented, or why special protection is required for the youth. Neither has the
COMELEC condescended to justify its position that petitioner’s admission
into the party-list system would be so harmful as to irreparably damage the
moral fabric of society. We, of course, do not suggest that the state is wholly
without authority to regulate matters concerning morality, sexuality, and
sexual relations, and we recognize that the government will and should
continue to restrict behavior considered detrimental to society. Nonetheless,
we cannot countenance advocates who, undoubtedly with the loftiest of
intentions, situate morality on one end of an argument or another, without
bothering to go through the rigors of legal reasoning and explanation. In this,
the notion of morality is robbed of all value. Clearly then, the bare invocation
of morality will not remove an issue from our scrutiny.
We also find the COMELEC’s reference to purported violations of our penal
and civil laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil
Code defines a nuisance as "any act, omission, establishment, condition of
property, or anything else which shocks, defies, or disregards decency or
morality," the remedies for which are a prosecution under the Revised Penal
Code or any local ordinance, a civil action, or abatement without judicial
proceedings.32 A violation of Article 201 of the Revised Penal Code, on the
other hand, requires proof beyond reasonable doubt to support a criminal
conviction. It hardly needs to be emphasized that mere allegation of violation
of laws is not proof, and a mere blanket invocation of public morals cannot
replace the institution of civil or criminal proceedings and a judicial
determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a sufficient
governmental interest to justify exclusion of homosexuals from participation
in the party-list system. The denial of Ang Ladlad’s registration on purely
moral grounds amounts more to a statement of dislike and disapproval of
homosexuals, rather than a tool to further any substantial public interest.
Respondent’s blanket justifications give rise to the inevitable conclusion that
the COMELEC targets homosexuals themselves as a class, not because of
any particular morally reprehensible act. It is this selective targeting that
implicates our equal protection clause.
Equal Protection
Despite the absolutism of Article III, Section 1 of our Constitution, which
provides "nor shall any person be denied equal protection of the laws,"
courts have never interpreted the provision as an absolute prohibition on
classification. "Equality," said Aristotle, "consists in the same treatment of
similar persons."33 The equal protection clause guarantees that no person or
class of persons shall be deprived of the same protection of laws which is
enjoyed by other persons or other classes in the same place and in like
circumstances.34
Recent jurisprudence has affirmed that if a law neither burdens a
fundamental right nor targets a suspect class, we will uphold the
classification as long as it bears a rational relationship to some legitimate
government end.35 In Central Bank Employees Association, Inc. v. Banko
Sentral ng Pilipinas,36 we declared that "[i]n our jurisdiction, the standard of
analysis of equal protection challenges x x x have followed the ‘rational
basis’ test, coupled with a deferential attitude to legislative classifications and
a reluctance to invalidate a law unless there is a showing of a clear and
unequivocal breach of the Constitution."37
The COMELEC posits that the majority of the Philippine population considers
homosexual conduct as immoral and unacceptable, and this constitutes
sufficient reason to disqualify the petitioner. Unfortunately for the respondent,
the Philippine electorate has expressed no such belief. No law exists to
criminalize homosexual behavior or expressions or parties about
homosexual behavior. Indeed, even if we were to assume that public opinion
is as the COMELEC describes it, the asserted state interest here – that is,
moral disapproval of an unpopular minority – is not a legitimate state interest
that is sufficient to satisfy rational basis review under the equal protection
clause. The COMELEC’s differentiation, and its unsubstantiated claim that
Ang Ladlad cannot contribute to the formulation of legislation that would
benefit the nation, furthers no legitimate state interest other than disapproval
of or dislike for a disfavored group.
5
From the standpoint of the political process, the lesbian, gay, bisexual, and
transgender have the same interest in participating in the party-list system on
the same basis as other political parties similarly situated. State intrusion in
this case is equally burdensome. Hence, laws of general application should
apply with equal force to LGBTs, and they deserve to participate in the party-
list system on the same basis as other marginalized and under-represented
sectors.
It bears stressing that our finding that COMELEC’s act of differentiating
LGBTs from heterosexuals insofar as the party-list system is concerned does
not imply that any other law distinguishing between heterosexuals and
homosexuals under different circumstances would similarly fail. We disagree
with the OSG’s position that homosexuals are a class in themselves for the
purposes of the equal protection clause.38 We are not prepared to single out
homosexuals as a separate class meriting special or differentiated treatment.
We have not received sufficient evidence to this effect, and it is simply
unnecessary to make such a ruling today. Petitioner itself has merely
demanded that it be recognized under the same basis as all other groups
similarly situated, and that the COMELEC made "an unwarranted and
impermissible classification not justified by the circumstances of the case."
Freedom of Expression and Association
Under our system of laws, every group has the right to promote its agenda
and attempt to persuade society of the validity of its position through normal
democratic means.39 It is in the public square that deeply held convictions
and differing opinions should be distilled and deliberated upon. As we held in
Estrada v. Escritor:40
In a democracy, this common agreement on political and moral ideas is
distilled in the public square. Where citizens are free, every opinion, every
prejudice, every aspiration, and every moral discernment has access to the
public square where people deliberate the order of their life together. Citizens
are the bearers of opinion, including opinion shaped by, or espousing
religious belief, and these citizens have equal access to the public square. In
this representative democracy, the state is prohibited from determining which
convictions and moral judgments may be proposed for public deliberation.
Through a constitutionally designed process, the people deliberate and
decide. Majority rule is a necessary principle in this democratic governance.
Thus, when public deliberation on moral judgments is finally crystallized into
law, the laws will largely reflect the beliefs and preferences of the majority,
i.e., the mainstream or median groups. Nevertheless, in the very act of
adopting and accepting a constitution and the limits it specifies – including
protection of religious freedom "not only for a minority, however small – not
only for a majority, however large – but for each of us" – the majority
imposes upon itself a self-denying ordinance. It promises not to do what it
otherwise could do: to ride roughshod over the dissenting minorities.
Freedom of expression constitutes one of the essential foundations of a
democratic society, and this freedom applies not only to those that are
favorably received but also to those that offend, shock, or disturb. Any
restriction imposed in this sphere must be proportionate to the legitimate aim
pursued. Absent any compelling state interest, it is not for the COMELEC or
this Court to impose its views on the populace. Otherwise stated, the
COMELEC is certainly not free to interfere with speech for no better reason
than promoting an approved message or discouraging a disfavored one.
This position gains even more force if one considers that homosexual
conduct is not illegal in this country. It follows that both expressions
concerning one’s homosexuality and the activity of forming a political
association that supports LGBT individuals are protected as well.
Other jurisdictions have gone so far as to categorically rule that even
overwhelming public perception that homosexual conduct violates public
morality does not justify criminalizing same-sex conduct.41 European and
United Nations judicial decisions have ruled in favor of gay rights claimants
on both privacy and equality grounds, citing general privacy and equal
protection provisions in foreign and international texts.42 To the extent that
there is much to learn from other jurisdictions that have reflected on the
issues we face here, such jurisprudence is certainly illuminating. These
foreign authorities, while not formally binding on Philippine courts, may
nevertheless have persuasive influence on the Court’s analysis.
In the area of freedom of expression, for instance, United States courts have
ruled that existing free speech doctrines protect gay and lesbian rights to
expressive conduct. In order to justify the prohibition of a particular
expression of opinion, public institutions must show that their actions were
caused by "something more than a mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular viewpoint."43
With respect to freedom of association for the advancement of ideas and
beliefs, in Europe, with its vibrant human rights tradition, the European Court
of Human Rights (ECHR) has repeatedly stated that a political party may
campaign for a change in the law or the constitutional structures of a state if
it uses legal and democratic means and the changes it proposes are
consistent with democratic principles. The ECHR has emphasized that
political ideas that challenge the existing order and whose realization is
advocated by peaceful means must be afforded a proper opportunity of
expression through the exercise of the right of association, even if such ideas
may seem shocking or unacceptable to the authorities or the majority of the
population.44 A political group should not be hindered solely because it seeks
to publicly debate controversial political issues in order to find solutions
capable of satisfying everyone concerned.45 Only if a political party incites
violence or puts forward policies that are incompatible with democracy does
it fall outside the protection of the freedom of association guarantee.46
We do not doubt that a number of our citizens may believe that homosexual
conduct is distasteful, offensive, or even defiant. They are entitled to hold
and express that view. On the other hand, LGBTs and their supporters, in all
likelihood, believe with equal fervor that relationships between individuals of
the same sex are morally equivalent to heterosexual relationships. They, too,
are entitled to hold and express that view. However, as far as this Court is
concerned, our democracy precludes using the religious or moral views of
one part of the community to exclude from consideration the values of other
members of the community.
Of course, none of this suggests the impending arrival of a golden age for
gay rights litigants. It well may be that this Decision will only serve to
highlight the discrepancy between the rigid constitutional analysis of this
Court and the more complex moral sentiments of Filipinos. We do not
suggest that public opinion, even at its most liberal, reflect a clear-cut strong
consensus favorable to gay rights claims and we neither attempt nor expect
to affect individual perceptions of homosexuality through this Decision.
The OSG argues that since there has been neither prior restraint nor
subsequent punishment imposed on Ang Ladlad, and its members have not
been deprived of their right to voluntarily associate, then there has been no
restriction on their freedom of expression or association. The OSG argues
that:
There was no utterance restricted, no publication censored, or any assembly
denied. [COMELEC] simply exercised its authority to review and verify the
qualifications of petitioner as a sectoral party applying to participate in the
party-list system. This lawful exercise of duty cannot be said to be a
transgression of Section 4, Article III of the Constitution.
xxxx
6
A denial of the petition for registration x x x does not deprive the members of
the petitioner to freely take part in the conduct of elections. Their right to vote
will not be hampered by said denial. In fact, the right to vote is a
constitutionally-guaranteed right which cannot be limited.
As to its right to be elected in a genuine periodic election, petitioner contends
that the denial of Ang Ladlad’s petition has the clear and immediate effect of
limiting, if not outrightly nullifying the capacity of its members to fully and
equally participate in public life through engagement in the party list
elections.
This argument is puerile. The holding of a public office is not a right but a
privilege subject to limitations imposed by law. x x x47
The OSG fails to recall that petitioner has, in fact, established its
qualifications to participate in the party-list system, and – as advanced by the
OSG itself – the moral objection offered by the COMELEC was not a
limitation imposed by law. To the extent, therefore, that the petitioner has
been precluded, because of COMELEC’s action, from publicly expressing its
views as a political party and participating on an equal basis in the political
process with other equally-qualified party-list candidates, we find that there
has, indeed, been a transgression of petitioner’s fundamental rights.
Non-Discrimination and International Law
In an age that has seen international law evolve geometrically in scope and
promise, international human rights law, in particular, has grown dynamically
in its attempt to bring about a more just and humane world order. For
individuals and groups struggling with inadequate structural and
governmental support, international human rights norms are particularly
significant, and should be effectively enforced in domestic legal systems so
that such norms may become actual, rather than ideal, standards of conduct.
Our Decision today is fully in accord with our international obligations to
protect and promote human rights. In particular, we explicitly recognize the
principle of non-discrimination as it relates to the right to electoral
participation, enunciated in the UDHR and the ICCPR.
The principle of non-discrimination is laid out in Article 26 of the ICCPR, as
follows:
Article 26
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law shall
prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status.
In this context, the principle of non-discrimination requires that laws of
general application relating to elections be applied equally to all persons,
regardless of sexual orientation. Although sexual orientation is not
specifically enumerated as a status or ratio for discrimination in Article 26 of
the ICCPR, the ICCPR Human Rights Committee has opined that the
reference to "sex" in Article 26 should be construed to include "sexual
orientation."48 Additionally, a variety of United Nations bodies have declared
discrimination on the basis of sexual orientation to be prohibited under
various international agreements.49
The UDHR provides:
Article 21.
(1) Everyone has the right to take part in the government of his country,
directly or through freely chosen representatives.
Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the opportunity, without any of the
distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through
freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which
shall be by universal and equal suffrage and shall be held by
secret ballot, guaranteeing the free expression of the will of the
electors;
(c) To have access, on general terms of equality, to public service
in his country.
As stated by the CHR in its Comment-in-Intervention, the scope of the right
to electoral participation is elaborated by the Human Rights Committee in its
General Comment No. 25 (Participation in Public Affairs and the Right to
Vote) as follows:
1. Article 25 of the Covenant recognizes and protects the right of every
citizen to take part in the conduct of public affairs, the right to vote and to be
elected and the right to have access to public service. Whatever form of
constitution or government is in force, the Covenant requires States to adopt
such legislative and other measures as may be necessary to ensure that
citizens have an effective opportunity to enjoy the rights it protects. Article 25
lies at the core of democratic government based on the consent of the
people and in conformity with the principles of the Covenant.
xxxx
15. The effective implementation of the right and the opportunity to stand for
elective office ensures that persons entitled to vote have a free choice of
candidates. Any restrictions on the right to stand for election, such as
minimum age, must be justifiable on objective and reasonable criteria.
Persons who are otherwise eligible to stand for election should not be
excluded by unreasonable or discriminatory requirements such as education,
residence or descent, or by reason of political affiliation. No person should
suffer discrimination or disadvantage of any kind because of that person's
candidacy. States parties should indicate and explain the legislative
provisions which exclude any group or category of persons from elective
office.50
We stress, however, that although this Court stands willing to assume the
responsibility of giving effect to the Philippines’ international law obligations,
the blanket invocation of international law is not the panacea for all social ills.
We refer now to the petitioner’s invocation of the Yogyakarta Principles (the
Application of International Human Rights Law In Relation to Sexual
Orientation and Gender Identity),51 which petitioner declares to reflect
binding principles of international law.
At this time, we are not prepared to declare that these Yogyakarta Principles
contain norms that are obligatory on the Philippines. There are declarations
and obligations outlined in said Principles which are not reflective of the
7
current state of international law, and do not find basis in any of the sources
of international law enumerated under Article 38(1) of the Statute of the
International Court of Justice.52 Petitioner has not undertaken any objective
and rigorous analysis of these alleged principles of international law to
ascertain their true status.
We also hasten to add that not everything that society – or a certain segment
of society – wants or demands is automatically a human right. This is not an
arbitrary human intervention that may be added to or subtracted from at will.
It is unfortunate that much of what passes for human rights today is a much
broader context of needs that identifies many social desires as rights in order
to further claims that international law obliges states to sanction these
innovations. This has the effect of diluting real human rights, and is a result
of the notion that if "wants" are couched in "rights" language, then they are
no longer controversial.1avvphi1
Using even the most liberal of lenses, these Yogyakarta Principles,
consisting of a declaration formulated by various international law professors,
are – at best – de lege ferenda – and do not constitute binding obligations on
the Philippines. Indeed, so much of contemporary international law is
characterized by the "soft law" nomenclature, i.e., international law is full of
principles that promote international cooperation, harmony, and respect for
human rights, most of which amount to no more than well-meaning desires,
without the support of either State practice or opinio juris.53
As a final note, we cannot help but observe that the social issues presented
by this case are emotionally charged, societal attitudes are in flux, even the
psychiatric and religious communities are divided in opinion. This Court’s role
is not to impose its own view of acceptable behavior. Rather, it is to apply the
Constitution and laws as best as it can, uninfluenced by public opinion, and
confident in the knowledge that our democracy is resilient enough to
withstand vigorous debate.
WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the
Commission on Elections dated November 11, 2009 and December 16, 2009
in SPP No. 09-228 (PL) are hereby SET ASIDE. The Commission on
Elections is directed to GRANT petitioner’s application for party-list
accreditation.
SO ORDERED.
G.R. No. 221697
MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,
vs.
COMELEC AND ESTRELLA C. ELAMPARO Respondents.
x-----------------------x
G.R. No. 221698-700
MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,
vs.
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND
AMADO D. VALDEZ Respondents.
DECISION
PEREZ, J.:
Before the Court are two consolidated petitions under Rule 64 in relation to
Rule 65 of the Rules of Court with extremely urgent application for an ex
parte issuance of temporary restraining order/status quo ante order and/or
writ of preliminary injunction assailing the following: (1) 1 December 2015
Resolution of the Commission on Elections (COMELEC) Second Division; (2)
23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-
001 (DC); (3) 11 December 2015 Resolution of the COMELEC First Division;
and ( 4) 23 December 2015 Resolution of the COMELEC En Banc, in SPA
No. 15-002 (DC), SPA No. 15-007 (DC) and SPA No. 15-139 (DC) for having
been issued without jurisdiction or with grave abuse of discretion amounting
to lack or excess of jurisdiction.
The Facts
Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found
abandoned as a newborn infant in the Parish Church of Jaro, Iloilo by a
certain Edgardo Militar (Edgardo) on 3 September 1968. Parental care and
custody over petitioner was passed on by Edgardo to his relatives, Emiliano
Militar (Emiliano) and his wife. Three days after, 6 September 1968, Emiliano
reported and registered petitioner as a foundling with the Office of the Civil
Registrar of Iloilo City (OCR-Iloilo). In her Foundling Certificate and
Certificate of Live Birth, the petitioner was given the name "Mary Grace
Natividad Contreras Militar." 1
When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley
Poe (a.k.a. Fenando Poe, Jr.) and Jesusa Sonora Poe (a.k.a. Susan Roces)
filed a petition for her adoption with the Municipal Trial Court (MTC) of San
Juan City. On 13 May 1974, the trial court granted their petition and ordered
that petitioner's name be changed from "Mary Grace Natividad Contreras
Militar" to "Mary Grace Natividad Sonora Poe." Although necessary notations
were made by OCR-Iloilo on petitioner's foundling certificate reflecting the
court decreed adoption,2 the petitioner's adoptive mother discovered only
sometime in the second half of 2005 that the lawyer who handled petitioner's
adoption failed to secure from the OCR-Iloilo a new Certificate of Live Birth
indicating petitioner's new name and the name of her adoptive parents. 3
Without delay, petitioner's mother executed an affidavit attesting to the
lawyer's omission which she submitted to the OCR-Iloilo. On 4 May 2006,
OCR-Iloilo issued a new Certificate of Live Birth in the name of Mary Grace
Natividad Sonora Poe.4
Having reached the age of eighteen (18) years in 1986, petitioner registered
as a voter with the local COMELEC Office in San Juan City. On 13
December 1986, she received her COMELEC Voter's Identification Card for
Precinct No. 196 in Greenhills, San Juan, Metro Manila.5
On 4 April 1988, petitioner applied for and was issued Philippine Passport
No. F9272876 by the Department of Foreign Affairs (DFA). Subsequently, on
5 April 1993 and 19 May 1998, she renewed her Philippine passport and
respectively secured Philippine Passport Nos. L881511 and DD156616.7
Initially, the petitioner enrolled and pursued a degree in Development Studies
at the University of the Philippines8 but she opted to continue her studies
abroad and left for the United States of America (U.S.) in 1988. Petitioner
graduated in 1991 from Boston College in Chestnuts Hill, Massachusetts
where she earned her Bachelor of Arts degree in Political Studies.9
On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares
(Llamanzares), a citizen of both the Philippines and the U.S., at Sanctuario
de San Jose Parish in San Juan City. 10 Desirous of being with her husband
who was then based in the U.S., the couple flew back to the U.S. two days
after the wedding ceremony or on 29 July 1991. 11
While in the U.S., the petitioner gave birth to her eldest child Brian Daniel
(Brian) on 16 April 1992.12 Her two daughters Hanna MacKenzie (Hanna)
and Jesusa Anika (Anika) were both born in the Philippines on 10 July 1998
and 5 June 2004, respectively. 13
8
On 18 October 2001, petitioner became a naturalized American citizen. 14
She obtained U.S. Passport No. 017037793 on 19 December 2001. 15
On 8 April 2004, the petitioner came back to the Philippines together with
Hanna to support her father's candidacy for President in the May 2004
elections. It was during this time that she gave birth to her youngest daughter
Anika. She returned to the U.S. with her two daughters on 8 July 2004. 16
After a few months, specifically on 13 December 2004, petitioner rushed
back to the Philippines upon learning of her father's deteriorating medical
condition. 17 Her father slipped into a coma and eventually expired. The
petitioner stayed in the country until 3 February 2005 to take care of her
father's funeral arrangements as well as to assist in the settlement of his
estate.18
According to the petitioner, the untimely demise of her father was a severe
blow to her entire family. In her earnest desire to be with her grieving mother,
the petitioner and her husband decided to move and reside permanently in
the Philippines sometime in the first quarter of 2005.19 The couple began
preparing for their resettlement including notification of their children's
schools that they will be transferring to Philippine schools for the next
semester;20 coordination with property movers for the relocation of their
household goods, furniture and cars from the U.S. to the Philippines;21 and
inquiry with Philippine authorities as to the proper procedure to be followed in
bringing their pet dog into the country.22 As early as 2004, the petitioner
already quit her job in the U.S.23
Finally, petitioner came home to the Philippines on 24 May 200524 and
without delay, secured a Tax Identification Number from the Bureau of
Internal Revenue. Her three (3) children immediately followed25 while her
husband was forced to stay in the U.S. to complete pending projects as well
as to arrange the sale of their family home there.26
The petitioner and her children briefly stayed at her mother's place until she
and her husband purchased a condominium unit with a parking slot at One
Wilson Place Condominium in San Juan City in the second half of 2005.27
The corresponding Condominium Certificates of Title covering the unit and
parking slot were issued by the Register of Deeds of San Juan City to
petitioner and her husband on 20 February 2006.28 Meanwhile, her children
of school age began attending Philippine private schools.
On 14 February 2006, the petitioner made a quick trip to the U.S. to
supervise the disposal of some of the family's remaining household
belongings.29 She travelled back to the Philippines on 11 March 2006.30
In late March 2006, petitioner's husband officially informed the U.S. Postal
Service of the family's change and abandonment of their address in the
U.S.31 The family home was eventually sold on 27 April 2006.32 Petitioner's
husband resigned from his job in the U.S. in April 2006, arrived in the country
on 4 May 2006 and started working for a major Philippine company in July
2006.33
In early 2006, petitioner and her husband acquired a 509-square meter lot in
Corinthian Hills, Quezon City where they built their family home34 and to this
day, is where the couple and their children have been residing.35 A Transfer
Certificate of Title covering said property was issued in the couple's name by
the Register of Deeds of Quezon City on 1June 2006.
On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the
Philippines pursuant to Republic Act (R.A.) No. 9225 or the Citizenship
Retention and Re-acquisition Act of 2003.36 Under the same Act, she filed
with the Bureau of Immigration (BI) a sworn petition to reacquire Philippine
citizenship together with petitions for derivative citizenship on behalf of her
three minor children on 10 July 2006.37 As can be gathered from its 18 July
2006 Order, the BI acted favorably on petitioner's petitions and declared that
she is deemed to have reacquired her Philippine citizenship while her
children are considered as citizens of the Philippines.38 Consequently, the BI
issued Identification Certificates (ICs) in petitioner's name and in the names
of her three (3) children. 39
Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan
City on 31 August 2006.40 She also secured from the DFA a new Philippine
Passport bearing the No. XX4731999.41 This passport was renewed on 18
March 2014 and she was issued Philippine Passport No. EC0588861 by the
DFA.42
On 6 October 2010, President Benigno S. Aquino III appointed petitioner as
Chairperson of the Movie and Television Review and Classification Board
(MTRCB).43 Before assuming her post, petitioner executed an "Affidavit of
Renunciation of Allegiance to the United States of America and Renunciation
of American Citizenship" before a notary public in Pasig City on 20 October
2010,44 in satisfaction of the legal requisites stated in Section 5 of R.A. No.
9225.45 The following day, 21 October 2010 petitioner submitted the said
affidavit to the BI46 and took her oath of office as Chairperson of the
MTRCB.47 From then on, petitioner stopped using her American passport.48
On 12 July 2011, the petitioner executed before the Vice Consul of the U.S.
Embassy in Manila an "Oath/Affirmation of Renunciation of Nationality of the
United States."49 On that day, she accomplished a sworn questionnaire
before the U.S. Vice Consul wherein she stated that she had taken her oath
as MTRCB Chairperson on 21 October 2010 with the intent, among others,
of relinquishing her American citizenship.50 In the same questionnaire, the
petitioner stated that she had resided outside of the U.S., specifically in the
Philippines, from 3 September 1968 to 29 July 1991 and from May 2005 to
present.51
On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate
of Loss of Nationality of the United States" effective 21 October 2010.52
On 2 October 2012, the petitioner filed with the COMELEC her Certificate of
Candidacy (COC) for Senator for the 2013 Elections wherein she answered
"6 years and 6 months" to the question "Period of residence in the
Philippines before May 13, 2013."53 Petitioner obtained the highest number
of votes and was proclaimed Senator on 16 May 2013. 54
On 19 December 2013, petitioner obtained Philippine Diplomatic Passport
No. DE0004530. 55
On 15 October 2015, petitioner filed her COC for the Presidency for the May
2016 Elections. 56 In her COC, the petitioner declared that she is a natural-
born citizen and that her residence in the Philippines up to the day before 9
May 2016 would be ten (10) years and eleven (11) months counted from 24
May 2005.57 The petitioner attached to her COC an "Affidavit Affirming
Renunciation of U.S.A. Citizenship" subscribed and sworn to before a notary
public in Quezon City on 14 October 2015. 58
Petitioner's filing of her COC for President in the upcoming elections
triggered the filing of several COMELEC cases against her which were the
subject of these consolidated cases.
Origin of Petition for Certiorari in G.R. No. 221697
A day after petitioner filed her COC for President, Estrella Elamparo
(Elamparo) filed a petition to deny due course or cancel said COC which was
docketed as SPA No. 15-001 (DC) and raffled to the COMELEC Second
Division.59 She is convinced that the COMELEC has jurisdiction over her
9
petition.60 Essentially, Elamparo's contention is that petitioner committed d. she executed a sworn renunciation of her
material misrepresentation when she stated in her COC that she is a natural- American citizenship prior to the filing of her
born Filipino citizen and that she is a resident of the Philippines for at least COC for President in the May 9, 2016
ten (10) years and eleven (11) months up to the day before the 9 May 2016 Elections and that the same is in full force
Elections.61 and effect and has not been withdrawn or
recanted;
On the issue of citizenship, Elamparo argued that petitioner cannot be
considered as a natural-born Filipino on account of the fact that she was a e. the burden was on Elamparo in proving
foundling.62 Elamparo claimed that international law does not confer natural- that she did not possess natural-born
born status and Filipino citizenship on foundlings.63 Following this line of status;
reasoning, petitioner is not qualified to apply for reacquisition of Filipino
citizenship under R.A. No. 9225 for she is not a natural-born Filipino citizen f. residence is a matter of evidence and that
to begin with.64 Even assuming arguendo that petitioner was a natural-born she reestablished her domicile in the
Filipino, she is deemed to have lost that status when she became a Philippines as early as May 24, 2005;
naturalized American citizen.65 According to Elamparo, natural-born
citizenship must be continuous from birth.66
g. she could reestablish residence even
before she reacquired natural-born
On the matter of petitioner's residency, Elamparo pointed out that petitioner citizenship under R.A. No. 9225;
was bound by the sworn declaration she made in her 2012 COC for Senator
wherein she indicated that she had resided in the country for only six ( 6)
years and six ( 6) months as of May 2013 Elections. Elamparo likewise h. statement regarding the period of
insisted that assuming arguendo that petitioner is qualified to regain her residence in her 2012 COC for Senator was
natural-born status under R.A. No. 9225, she still fell short of the ten-year an honest mistake, not binding and should
residency requirement of the Constitution as her residence could only be give way to evidence on her true date of
counted at the earliest from July 2006, when she reacquired Philippine reacquisition of domicile;
citizenship under the said Act. Also on the assumption that petitioner is
qualified to reacquire lost Philippine Citizenship, Elamparo is of the belief that i. Elamparo's petition is merely an action to
she failed to reestablish her domicile in the Philippines.67 usurp the sovereign right of the Filipino
people to decide a purely political question,
Petitioner seasonably filed her Answer wherein she countered that: that is, should she serve as the country's
next leader.68
(1) the COMELEC did not have jurisdiction over
Elamparo's petition as it was actually a petition for quo After the parties submitted their respective Memoranda, the petition was
warranto which could only be filed if Grace Poe wins in deemed submitted for resolution.
the Presidential elections, and that the Department of
Justice (DOJ) has primary jurisdiction to revoke the On 1 December 2015, the COMELEC Second Division promulgated a
BI's July 18, 2006 Order; Resolution finding that petitioner's COC, filed for the purpose of running for
the President of the Republic of the Philippines in the 9 May 2016 National
(2) the petition failed to state a cause of action and Local Elections, contained material representations which are false. The
because it did not contain allegations which, if fallo of the aforesaid Resolution reads:
hypothetically admitted, would make false the
statement in her COC that she is a natural-born WHEREFORE, in view of all the foregoing considerations, the instant Petition
Filipino citizen nor was there any allegation that there to Deny Due Course to or Cancel Certificate of Candidacy is hereby
was a willful or deliberate intent to misrepresent on her GRANTED. Accordingly, the Certificate of Candidacy for President of the
part; Republic of the Philippines in the May 9, 2016 National and Local Elections
filed by respondent Mary Grace Natividad Sonora Poe Llamanzares is
(3) she did not make any material misrepresentation in hereby CANCELLED.69
the COC regarding her citizenship and residency
qualifications for: Motion for Reconsideration of the 1 December 2015 Resolution was filed by
petitioner which the COMELEC En Banc resolved in its 23 December 2015
a. the 1934 Constitutional Convention Resolution by denying the same.70
deliberations show that foundlings were
considered citizens; Origin of Petition for Certiorari in G.R. Nos. 221698-700

b. foundlings are presumed under
international law to have been born of
citizens of the place where they are found;
c. she reacquired her natural-born
Philippine citizenship under the provisions
of R.A. No. 9225;
This case stemmed from three (3) separate petitions filed by Francisco S.
Tatad (Tatad), Antonio P. Contreras (Contreras) and Amado D. Valdez
(Valdez) against petitioner before the COMELEC which were consolidated
and raffled to its First Division.
In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules
of Procedure,71 docketed as SPA No. 15-002 (DC), Tatad alleged that
petitioner lacks the requisite residency and citizenship to qualify her for the
Presidency.72

10
Tatad theorized that since the Philippines adheres to the principle of jus
sanguinis, persons of unknown parentage, particularly foundlings, cannot be
considered natural-born Filipino citizens since blood relationship is
determinative of natural-born status.73 Tatad invoked the rule of statutory
construction that what is not included is excluded. He averred that the fact
that foundlings were not expressly included in the categories of citizens in
the 193 5 Constitution is indicative of the framers' intent to exclude them.74
Therefore, the burden lies on petitioner to prove that she is a natural-born
citizen.75
Neither can petitioner seek refuge under international conventions or treaties
to support her claim that foundlings have a nationality.76 According to Tatad,
international conventions and treaties are not self-executory and that local
legislations are necessary in order to give effect to treaty obligations
assumed by the Philippines.77 He also stressed that there is no standard
state practice that automatically confers natural-born status to foundlings.78
Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of
the option to reacquire Philippine citizenship under R.A. No. 9225 because it
only applies to former natural-born citizens and petitioner was not as she
was a foundling.79
Referring to petitioner's COC for Senator, Tatad concluded that she did not
comply with the ten (10) year residency requirement.80 Tatad opined that
petitioner acquired her domicile in Quezon City only from the time she
renounced her American citizenship which was sometime in 2010 or 2011.81
Additionally, Tatad questioned petitioner's lack of intention to abandon her
U.S. domicile as evinced by the fact that her husband stayed thereat and her
frequent trips to the U.S.82
In support of his petition to deny due course or cancel the COC of petitioner,
docketed as SPA No. 15-139 (DC), Valdez alleged that her repatriation
under R.A. No. 9225 did not bestow upon her the status of a natural-born
citizen.83 He advanced the view that former natural-born citizens who are
repatriated under the said Act reacquires only their Philippine citizenship and
will not revert to their original status as natural-born citizens.84
He further argued that petitioner's own admission in her COC for Senator
that she had only been a resident of the Philippines for at least six (6) years
and six (6) months prior to the 13 May 2013 Elections operates against her.
Valdez rejected petitioner's claim that she could have validly reestablished
her domicile in the Philippines prior to her reacquisition of Philippine
citizenship. In effect, his position was that petitioner did not meet the ten (10)
year residency requirement for President.
Unlike the previous COMELEC cases filed against petitioner, Contreras'
petition,85 docketed as SPA No. 15-007 (DC), limited the attack to the
residency issue. He claimed that petitioner's 2015 COC for President should
be cancelled on the ground that she did not possess the ten-year period of
residency required for said candidacy and that she made false entry in her
COC when she stated that she is a legal resident of the Philippines for ten
(10) years and eleven (11) months by 9 May 2016.86 Contreras contended
that the reckoning period for computing petitioner's residency in the
Philippines should be from 18 July 2006, the date when her petition to
reacquire Philippine citizenship was approved by the BI.87 He asserted that
petitioner's physical presence in the country before 18 July 2006 could not
be valid evidence of reacquisition of her Philippine domicile since she was
then living here as an American citizen and as such, she was governed by
the Philippine immigration laws.88
In her defense, petitioner raised the following arguments:
First, Tatad's petition should be dismissed outright for failure to state a cause
of action. His petition did not invoke grounds proper for a disqualification
case as enumerated under Sections 12 and 68 of the Omnibus Election
Code.89 Instead, Tatad completely relied on the alleged lack of residency and
natural-born status of petitioner which are not among the recognized grounds
for the disqualification of a candidate to an elective office.90
Second, the petitions filed against her are basically petitions for quo warranto
as they focus on establishing her ineligibility for the Presidency.91 A petition
for quo warranto falls within the exclusive jurisdiction of the Presidential
Electoral Tribunal (PET) and not the COMELEC.92
Third, the burden to prove that she is not a natural-born Filipino citizen is on
the respondents.93 Otherwise stated, she has a presumption in her favor that
she is a natural-born citizen of this country.
Fourth, customary international law dictates that foundlings are entitled to a
nationality and are presumed to be citizens of the country where they are
found.94 Consequently, the petitioner is considered as a natural-born citizen
of the Philippines.95
Fifth, she claimed that as a natural-born citizen, she has every right to be
repatriated under R.A. No. 9225 or the right to reacquire her natural-born
status.96 Moreover, the official acts of the Philippine Government enjoy the
presumption of regularity, to wit: the issuance of the 18 July 2006 Order of
the BI declaring her as natural-born citizen, her appointment as MTRCB
Chair and the issuance of the decree of adoption of San Juan RTC.97 She
believed that all these acts reinforced her position that she is a natural-born
citizen of the Philippines.98
Sixth, she maintained that as early as the first quarter of 2005, she started
reestablishing her domicile of choice in the Philippines as demonstrated by
her children's resettlement and schooling in the country, purchase of a
condominium unit in San Juan City and the construction of their family home
in Corinthian Hills.99
Seventh, she insisted that she could legally reestablish her domicile of
choice in the Philippines even before she renounced her American
citizenship as long as the three determinants for a change of domicile are
complied with.100 She reasoned out that there was no requirement that
renunciation of foreign citizenship is a prerequisite for the acquisition of a
new domicile of choice.101
Eighth, she reiterated that the period appearing in the residency portion of
her COC for Senator was a mistake made in good faith.102
In a Resolution103 promulgated on 11 December 2015, the COMELEC First
Division ruled that petitioner is not a natural-born citizen, that she failed to
complete the ten (10) year residency requirement, and that she committed
material misrepresentation in her COC when she declared therein that she
has been a resident of the Philippines for a period of ten (10) years and
eleven (11) months as of the day of the elections on 9 May 2016. The
COMELEC First Division concluded that she is not qualified for the elective
position of President of the Republic of the Philippines. The dispositive
portion of said Resolution reads:
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES, to GRANT the Petitions and cancel the Certificate of
Candidacy of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES
for the elective position of President of the Republic of the Philippines in
connection with the 9 May 2016 Synchronized Local and National Elections.
Petitioner filed a motion for reconsideration seeking a reversal of the
COMELEC First Division's Resolution. On 23 December 2015, the
11
COMELEC En Banc issued a Resolution denying petitioner's motion for election, plebiscite, initiative, referendum,
reconsideration. and recall.

Alarmed by the adverse rulings of the COMELEC, petitioner instituted the
present petitions for certiorari with urgent prayer for the issuance of an ex
parte temporary restraining order/status quo ante order and/or writ of
preliminary injunction. On 28 December 2015, temporary restraining orders
were issued by the Court enjoining the COMELEC and its representatives
from implementing the assailed COMELEC Resolutions until further orders
from the Court. The Court also ordered the consolidation of the two petitions
filed by petitioner in its Resolution of 12 January 2016. Thereafter, oral
arguments were held in these cases.
(2) Exercise exclusive original jurisdiction
over all contests relating to the elections,
returns, and qualifications of all elective
regional, provincial, and city officials, and
appellate jurisdiction over all contests
involving elective municipal officials decided
by trial courts of general jurisdiction, or
involving elective barangay officials decided
by trial courts of limited jurisdiction.

The Court GRANTS the petition of Mary Grace Natividad S. Poe-
Llamanzares and to ANNUL and SET ASIDE the:
1. Resolution dated 1 December 2015 rendered
through its Second Division, in SPA No. 15-001 (DC),
entitled Estrella C. Elamparo, petitioner, vs. Mary
Grace Natividad Sonora Poe-Llamanzares.
2. Resolution dated 11 December 2015, rendered
through its First Division, in the consolidated cases
SPA No. 15-002 (DC) entitled Francisco S. Tatad,
petitioner, vs. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent; SPA No. 15-007 (DC)
entitled Antonio P. Contreras, petitioner, vs. Mary
Grace Natividad Sonora Poe-Llamanzares,
respondent; and SPA No. 15-139 (DC) entitled Amado
D. Valdez, petitioner, v. Mary Grace Natividad Sonora
Poe-Llamanzares, respondent.
3. Resolution dated 23 December 2015 of the
Commission En Banc, upholding the 1 December 2015
Resolution of the Second Division.
4. Resolution dated 23 December 2015 of the
Commission En Banc, upholding the 11 December
2015 Resolution of the First Division.
The procedure and the conclusions from which the questioned Resolutions
emanated are tainted with grave abuse of discretion amounting to lack of
jurisdiction. The petitioner is a QUALIFIED CANDIDATE for President in the
9 May 2016 National Elections.
The issue before the COMELEC is whether or not the COC of petitioner
should be denied due course or cancelled "on the exclusive ground" that she
made in the certificate a false material representation. The exclusivity of the
ground should hedge in the discretion of the COMELEC and restrain it from
going into the issue of the qualifications of the candidate for the position, if,
as in this case, such issue is yet undecided or undetermined by the proper
authority. The COMELEC cannot itself, in the same cancellation case, decide
the qualification or lack thereof of the candidate.
We rely, first of all, on the Constitution of our Republic, particularly its
provisions in Article IX, C, Section 2:
Decisions, final orders, or rulings of the
Commission on election contests involving
elective municipal and barangay offices
shall be final, executory, and not
appealable.
(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.
(4) Deputize, with the concurrence of the
President, law enforcement agencies and
instrumentalities of the Government,
including the Armed Forces of the
Philippines, for the exclusive purpose of
ensuring free, orderly, honest, peaceful,
and credible elections.
(5) Register, after sufficient publication,
political parties, organizations, or coalitions
which, in addition to other requirements,
must present their platform or program of
government; and accredit citizens' arms of
the Commission on Elections. Religious
denominations and sects shall not be
registered. Those which seek to achieve
their goals through violence or unlawful
means, or refuse to uphold and adhere to
this Constitution, or which are supported by
any foreign government shall likewise be
refused registration.
Financial contributions from foreign
governments and their agencies to political
parties, organizations, coalitions, or
candidates related to elections constitute
interference in national affairs, and, when
accepted, shall be an additional ground for
the cancellation of their registration with the
Commission, in addition to other penalties
that may be prescribed by law.

Section 2. The Commission on Elections shall exercise the following powers (6) File, upon a verified complaint, or on its
and functions: own initiative, petitions in court for inclusion
or exclusion of voters; investigate and,
(1) Enforce and administer all laws and where appropriate, prosecute cases of
regulations relative to the conduct of an violations of election laws, including acts or

12
 omissions constituting election frauds,
offenses, and malpractices.
(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 candidacies.
(8) Recommend to the President the
removal of any officer or employee it has
deputized, or the imposition of any other
disciplinary action, for violation or disregard
of, or disobedience to its directive, order, or
decision.
(9) Submit to the President and the
Congress a comprehensive report on the
conduct of each election, plebiscite,
initiative, referendum, or recall.
Not any one of the enumerated powers approximate the exactitude of the
provisions of Article VI, Section 17 of the same basic law stating that:
The Senate and the House of Representatives shall
each have an Electoral Tribunal which shall be the
sole judge of all contests relating to the election,
returns, and qualifications of their respective Members.
Each Electoral Tribunal shall be composed of nine
Members, three of whom shall be Justices of the
Supreme Court to be designated by the Chief Justice,
and the remaining six shall be Members of the Senate
or the House of Representatives, as the case may be,
who shall be chosen on the basis of proportional
representation from the political parties and the parties
or organizations registered under the party-list system
represented therein. The senior Justice in the Electoral
Tribunal shall be its Chairman.
or of the last paragraph of Article VII, Section 4 which provides that:
The Supreme Court, sitting en banc, shall be the sole
judge of all contests relating to the election, returns,
and qualifications of the President or Vice-President,
and may promulgate its rules for the purpose.
The tribunals which have jurisdiction over the question of the qualifications of
the President, the Vice-President, Senators and the Members of the House
of Representatives was made clear by the Constitution. There is no such
provision for candidates for these positions.
Can the COMELEC be such judge?
The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v.
Commission on Elections,104 which was affirmatively cited in the En Banc
decision in Fermin v. COMELEC105 is our guide. The citation in Fermin
reads:
Apparently realizing the lack of an authorized proceeding for declaring the
ineligibility of candidates, the COMELEC amended its rules on February 15,
1993 so as to provide in Rule 25 § 1, the following:
Grounds for disqualification. - Any
candidate who does not possess all the
qualifications of a candidate as provided for
by the Constitution or by existing law or who
commits any act declared by law to be
grounds for disqualification may be
disqualified from continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates, however,
cannot be supplied by a mere rule. Such an act is equivalent to the creation
of a cause of action which is a substantive matter which the COMELEC, in
the exercise of its rule-making power under Art. IX, A, §6 of the Constitution,
cannot do it. It is noteworthy that the Constitution withholds from the
COMELEC even the power to decide cases involving the right to vote, which
essentially involves an inquiry into qualifications based on age, residence
and citizenship of voters. [Art. IX, C, §2(3)]
The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility
into grounds for disqualification is contrary to the evident intention of the law.
For not only in their grounds but also in their consequences are proceedings
for "disqualification" different from those for a declaration of "ineligibility."
"Disqualification" proceedings, as already stated, are based on grounds
specified in § 12 and §68 of the Omnibus Election Code and in §40 of the
Local Government Code and are for the purpose of barring an individual from
becoming a candidate or from continuing as a candidate for public office. In a
word, their purpose is to eliminate a candidate from the race either from the
start or during its progress. "Ineligibility," on the other hand, refers to the lack
of the qualifications prescribed in the Constitution or the statutes for holding
public office and the purpose of the proceedings for declaration of ineligibility
is to remove the incumbent from office.
Consequently, that an individual possesses the qualifications for a public
office does not imply that he is not disqualified from becoming a candidate or
continuing as a candidate for a public office and vice versa. We have this
sort of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien has
the qualifications prescribed in §2 of the Law does not imply that he does not
suffer from any of [the] disqualifications provided in §4.
Before we get derailed by the distinction as to grounds and the
consequences of the respective proceedings, the importance of the opinion
is in its statement that "the lack of provision for declaring the ineligibility of
candidates, however, cannot be supplied by a mere rule". Justice Mendoza
lectured in Romualdez-Marcos that:
Three reasons may be cited to explain the absence of an authorized
proceeding for determining before election the qualifications of a candidate.
First is the fact that unless a candidate wins and is proclaimed elected, there
is no necessity for determining his eligibility for the office. In contrast,
whether an individual should be disqualified as a candidate for acts
constituting election offenses (e.g., vote buying, over spending, commission
of prohibited acts) is a prejudicial question which should be determined lest
he wins because of the very acts for which his disqualification is being
sought. That is why it is provided that if the grounds for disqualification are
established, a candidate will not be voted for; if he has been voted for, the
votes in his favor will not be counted; and if for some reason he has been
voted for and he has won, either he will not be proclaimed or his
proclamation will be set aside.
Second is the fact that the determination of a candidates' eligibility, e.g., his
citizenship or, as in this case, his domicile, may take a long time to make,
extending beyond the beginning of the term of the office. This is amply
demonstrated in the companion case (G.R. No. 120265, Agapito A. Aquino v.
COMELEC) where the determination of Aquino's residence was still pending
13
in the COMELEC even after the elections of May 8, 1995. This is contrary to
the summary character proceedings relating to certificates of candidacy. That
is why the law makes the receipt of certificates of candidacy a ministerial
duty of the COMELEC and its officers. The law is satisfied if candidates state
in their certificates of candidacy that they are eligible for the position which
they seek to fill, leaving the determination of their qualifications to be made
after the election and only in the event they are elected. Only in cases
involving charges of false representations made in certificates of candidacy
is the COMELEC given jurisdiction.
Third is the policy underlying the prohibition against pre-proclamation cases
in elections for President, Vice President, Senators and members of the
House of Representatives. (R.A. No. 7166, § 15) The purpose is to preserve
the prerogatives of the House of Representatives Electoral Tribunal and the
other Tribunals as "sole judges" under the Constitution of the election,
returns and qualifications of members of Congress of the President and Vice
President, as the case may be.106
To be sure, the authoritativeness of the Romualdez pronouncements as
reiterated in Fermin, led to the amendment through COMELEC Resolution
No. 9523, on 25 September 2012 of its Rule 25. This, the 15 February1993
version of Rule 25, which states that:
Grounds for disqualification. -Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing
law or who commits any act declared by law to be grounds for
disqualification may be disqualified from continuing as a candidate.107
was in the 2012 rendition, drastically changed to:
Grounds. - Any candidate who, in 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 to be suffering from any disqualification provided by law or the
Constitution.
A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny
to or Cancel a Certificate of Candidacy or Petition to Declare a Candidate as
a Nuisance Candidate, or a combination thereof, shall be summarily
dismissed.
Clearly, the amendment done in 2012 is an acceptance of the reality of
absence of an authorized proceeding for determining before election the
qualifications of candidate. Such that, as presently required, to disqualify a
candidate there must be a declaration by a final judgment of a competent
court that the candidate sought to be disqualified "is guilty of or found by the
Commission to be suffering from any disqualification provided by law or the
Constitution."
Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23
are flipsides of one to the other. Both do not allow, are not authorizations, are
not vestment of jurisdiction, for the COMELEC to determine the qualification
of a candidate. The facts of qualification must beforehand be established in a
prior proceeding before an authority properly vested with jurisdiction. The
prior determination of qualification may be by statute, by executive order or
by a judgment of a competent court or tribunal.
If a candidate cannot be disqualified without a prior finding that he or she is
suffering from a disqualification "provided by law or the Constitution," neither
can the certificate of candidacy be cancelled or denied due course on
grounds of false representations regarding his or her qualifications, without a
prior authoritative finding that he or she is not qualified, such prior authority
being the necessary measure by which the falsity of the representation can
be found. The only exception that can be conceded are self-evident facts of
unquestioned or unquestionable veracity and judicial confessions. Such are,
anyway, bases equivalent to prior decisions against which the falsity of
representation can be determined.
The need for a predicate finding or final pronouncement in a proceeding
under Rule 23 that deals with, as in this case, alleged false representations
regarding the candidate's citizenship and residence, forced the COMELEC to
rule essentially that since foundlings108 are not mentioned in the enumeration
of citizens under the 1935 Constitution,109 they then cannot be citizens. As
the COMELEC stated in oral arguments, when petitioner admitted that she is
a foundling, she said it all. This borders on bigotry. Oddly, in an effort at
tolerance, the COMELEC, after saying that it cannot rule that herein
petitioner possesses blood relationship with a Filipino citizen when "it is
certain that such relationship is indemonstrable," proceeded to say that "she
now has the burden to present evidence to prove her natural filiation with a
Filipino parent."
The fact is that petitioner's blood relationship with a Filipino citizen is
DEMONSTRABLE.
At the outset, it must be noted that presumptions regarding paternity is
neither unknown nor unaccepted in Philippine Law. The Family Code of the
Philippines has a whole chapter on Paternity and Filiation.110 That said, there
is more than sufficient evider1ce that petitioner has Filipino parents and is
therefore a natural-born Filipino. Parenthetically, the burden of proof was on
private respondents to show that petitioner is not a Filipino citizen. The
private respondents should have shown that both of petitioner's parents were
aliens. Her admission that she is a foundling did not shift the burden to her
because such status did not exclude the possibility that her parents were
Filipinos, especially as in this case where there is a high probability, if not
certainty, that her parents are Filipinos.
The factual issue is not who the parents of petitioner are, as their identities
are unknown, but whether such parents are Filipinos. Under Section 4, Rule
128:
Sect. 4. Relevancy, collateral matters - Evidence must have such a relation
to the fact in issue as to induce belief in its existence or no-existence.
Evidence on collateral matters shall not be allowed, except when it tends in
any reasonable degree to establish the probability of improbability of the fact
in issue.
The Solicitor General offered official statistics from the Philippine Statistics
Authority (PSA)111 that from 1965 to 1975, the total number of foreigners
born in the Philippines was 15,986 while the total number of Filipinos born in
the country was 10,558,278. The statistical probability that any child born in
the Philippines in that decade is natural-born Filipino was 99.83%. For her
part, petitioner presented census statistics for Iloilo Province for 1960 and
1970, also from the PSA. In 1960, there were 962,532 Filipinos and 4,734
foreigners in the province; 99.62% of the population were Filipinos. In 1970,
the figures were 1,162,669 Filipinos and 5,304 foreigners, or 99.55%. Also
presented were figures for the child producing ages (15-49). In 1960, there
were 230,528 female Filipinos as against 730 female foreigners or 99.68%.
In the same year, there were 210,349 Filipino males and 886 male aliens, or
99.58%. In 1970, there were 270,299 Filipino females versus 1, 190 female
aliens, or 99.56%. That same year, there were 245,740 Filipino males as
against only 1,165 male aliens or 99.53%. COMELEC did not dispute these
figures. Notably, Commissioner Arthur Lim admitted, during the oral
arguments, that at the time petitioner was found in 1968, the majority of the
population in Iloilo was Filipino.112
Other circumstantial evidence of the nationality of petitioner's parents are the
fact that she was abandoned as an infant in a Roman Catholic Church in
14
Iloilo City.1âwphi1 She also has typical Filipino features: height, flat nasal
bridge, straight black hair, almond shaped eyes and an oval face.
There is a disputable presumption that things have happened according to
the ordinary course of nature and the ordinary habits of life.113 All of the
foregoing evidence, that a person with typical Filipino features is abandoned
in Catholic Church in a municipality where the population of the Philippines is
overwhelmingly Filipinos such that there would be more than a 99% chance
that a child born in the province would be a Filipino, would indicate more than
ample probability if not statistical certainty, that petitioner's parents are
Filipinos. That probability and the evidence on which it is based are
admissible under Rule 128, Section 4 of the Revised Rules on Evidence.
To assume otherwise is to accept the absurd, if not the virtually impossible,
as the norm. In the words of the Solicitor General:
Second. It is contrary to common sense because foreigners do not come to
the Philippines so they can get pregnant and leave their newborn babies
behind. We do not face a situation where the probability is such that every
foundling would have a 50% chance of being a Filipino and a 50% chance of
being a foreigner. We need to frame our questions properly. What are the
chances that the parents of anyone born in the Philippines would be
foreigners? Almost zero. What are the chances that the parents of anyone
born in the Philippines would be Filipinos? 99.9%.
According to the Philippine Statistics Authority, from 2010 to 2014, on a
yearly average, there were 1,766,046 children born in the Philippines to
Filipino parents, as opposed to 1,301 children in the Philippines of foreign
parents. Thus, for that sample period, the ratio of non-Filipino children to
natural born Filipino children is 1:1357. This means that the statistical
probability that any child born in the Philippines would be a natural born
Filipino is 99.93%.
From 1965 to 1975, the total number of foreigners born in the Philippines is
15,986 while the total number of Filipinos born in the Philippines is
15,558,278. For this period, the ratio of non-Filipino children is 1:661. This
means that the statistical probability that any child born in the Philippines on
that decade would be a natural born Filipino is 99.83%.
We can invite statisticians and social anthropologists to crunch the numbers
for us, but I am confident that the statistical probability that a child born in the
Philippines would be a natural born Filipino will not be affected by whether or
not the parents are known. If at all, the likelihood that a foundling would have
a Filipino parent might even be higher than 99.9%. Filipinos abandon their
children out of poverty or perhaps, shame. We do not imagine foreigners
abandoning their children here in the Philippines thinking those infants would
have better economic opportunities or believing that this country is a tropical
paradise suitable for raising abandoned children. I certainly doubt whether a
foreign couple has ever considered their child excess baggage that is best
left behind.
To deny full Filipino citizenship to all foundlings and render them stateless
just because there may be a theoretical chance that one among the
thousands of these foundlings might be the child of not just one, but two,
foreigners is downright discriminatory, irrational, and unjust. It just doesn't
make any sense. Given the statistical certainty - 99.9% - that any child born
in the Philippines would be a natural born citizen, a decision denying
foundlings such status is effectively a denial of their birthright. There is no
reason why this Honorable Court should use an improbable hypothetical to
sacrifice the fundamental political rights of an entire class of human beings.
Your Honor, constitutional interpretation and the use of common sense are
not separate disciplines.
As a matter of law, foundlings are as a class, natural-born citizens. While the
1935 Constitution's enumeration is silent as to foundlings, there is no
restrictive language which would definitely exclude foundlings either.
Because of silence and ambiguity in the enumeration with respect to
foundlings, there is a need to examine the intent of the framers. In Nitafan v.
Commissioner of Internal Revenue,114 this Court held that:
The ascertainment of that intent is but in keeping with
the fundamental principle of constitutional construction
that the intent of the framers of the organic law and of
the people adopting it should be given effect. The
primary task in constitutional construction is to
ascertain and thereafter assure the realization of the
purpose of the framers and of the people in the
adoption of the Constitution. It may also be safely
assumed that the people in ratifying the Constitution
were guided mainly by the explanation offered by the
framers.115
As pointed out by petitioner as well as the Solicitor General, the deliberations
of the 1934 Constitutional Convention show that the framers intended
foundlings to be covered by the enumeration. The following exchange is
recorded:
Sr. Rafols: For an amendment. I propose that after subsection 2, the
following is inserted: "The natural children of a foreign father and a Filipino
mother not recognized by the father.
xxxx
President:
[We] would like to request a clarification from the proponent of the
amendment. The gentleman refers to natural children or to any kind of
illegitimate children?
Sr. Rafols:
To all kinds of illegitimate children. It also includes natural children of
unknown parentage, natural or illegitimate children of unknown parents.
Sr. Montinola:
For clarification. The gentleman said "of unknown parents." Current codes
consider them Filipino, that is, I refer to the Spanish Code wherein all
children of unknown parentage born in Spanish territory are considered
Spaniards, because the presumption is that a child of unknown parentage is
the son of a Spaniard. This may be applied in the Philippines in that a child of
unknown parentage born in the Philippines is deemed to be Filipino, and
there is no need ...
Sr. Rafols:
There is a need, because we are relating the conditions that are [required] to
be Filipino.
Sr. Montinola:
But that is the interpretation of the law, therefore, there is no [more] need for
amendment.
Sr. Rafols:
The amendment should read thus:
"Natural or illegitimate of a foreign father and a Filipino mother recognized by
one, or the children of unknown parentage."
15
Sr. Briones:
The amendment [should] mean children born in the Philippines of unknown
parentage.
Sr. Rafols:
The son of a Filipina to a Foreigner, although this [person] does not
recognize the child, is not unknown.
President:
Does the gentleman accept the amendment or not?
Sr. Rafols:
I do not accept the amendment because the amendment would exclude the
children of a Filipina with a foreigner who does not recognize the child. Their
parentage is not unknown and I think those of overseas Filipino mother and
father [whom the latter] does not recognize, should also be considered as
Filipinos.
President:
The question in order is the amendment to the amendment from the
Gentleman from Cebu, Mr. Briones.
Sr. Busion:
Mr. President, don't you think it would be better to leave this matter in the
hands of the Legislature?
Sr. Roxas:
Mr. President, my humble opinion is that these cases are few and far in
between, that the constitution need [not] refer to them. By international law
the principle that children or people born in a country of unknown parents are
citizens in this nation is recognized, and it is not necessary to include a
provision on the subject exhaustively.116
Though the Rafols amendment was not carried out, it was not because there
was any objection to the notion that persons of "unknown parentage" are not
citizens but only because their number was not enough to merit specific
mention. Such was the account,117 cited by petitioner, of delegate and
constitution law author Jose Aruego who said:
During the debates on this provision, Delegate Rafols
presented an amendment to include as Filipino citizens
the illegitimate children with a foreign father of a
mother who was a citizen of the Philippines, and also
foundlings; but this amendment was defeated primarily
because the Convention believed that the cases, being
too few to warrant the inclusion of a provision in the
Constitution to apply to them, should be governed by
statutory legislation. Moreover, it was believed that the
rules of international law were already clear to the
effect that illegitimate children followed the citizenship
of the mother, and that foundlings followed the
nationality of the place where they were found, thereby
making unnecessary the inclusion in the Constitution
of the proposed amendment.
This explanation was likewise the position of the Solicitor General during the
16 February 2016 Oral Arguments:
We all know that the Rafols proposal was rejected. But note that what was
declined was the proposal for a textual and explicit recognition of foundlings
as Filipinos. And so, the way to explain the constitutional silence is by saying
that it was the view of Montinola and Roxas which prevailed that there is no
more need to expressly declare foundlings as Filipinos.
Obviously, it doesn't matter whether Montinola's or Roxas' views were legally
correct. Framers of a constitution can constitutionalize rules based on
assumptions that are imperfect or even wrong. They can even overturn
existing rules. This is basic. What matters here is that Montinola and Roxas
were able to convince their colleagues in the convention that there is no
more need to expressly declare foundlings as Filipinos because they are
already impliedly so recognized.
In other words, the constitutional silence is fully explained in terms of
linguistic efficiency and the avoidance of redundancy. The policy is clear: it is
to recognize foundlings, as a class, as Filipinos under Art. IV, Section 1 (3) of
the 1935 Constitution. This inclusive policy is carried over into the 1973 and
1987 Constitution. It is appropriate to invoke a famous scholar as he was
paraphrased by Chief Justice Fernando: the constitution is not silently silent,
it is silently vocal. 118
The Solicitor General makes the further point that the framers "worked to
create a just and humane society," that "they were reasonable patriots and
that it would be unfair to impute upon them a discriminatory intent against
foundlings." He exhorts that, given the grave implications of the argument
that foundlings are not natural-born Filipinos, the Court must search the
records of the 1935, 1973 and 1987 Constitutions "for an express intention to
deny foundlings the status of Filipinos. The burden is on those who wish to
use the constitution to discriminate against foundlings to show that the
constitution really intended to take this path to the dark side and inflict this
across the board marginalization."
We find no such intent or language permitting discrimination against
foundlings. On the contrary, all three Constitutions guarantee the basic right
to equal protection of the laws. All exhort the State to render social justice. Of
special consideration are several provisions in the present charter: Article II,
Section 11 which provides that the "State values the dignity of every human
person and guarantees full respect for human rights," Article XIII, Section 1
which mandates Congress to "give highest priority to the enactment of
measures that protect and enhance the right of all the people to human
dignity, reduce social, economic, and political inequalities x x x" and Article
XV, Section 3 which requires the State to defend the "right of children to
assistance, including proper care and nutrition, and special protection from
all forms of neglect, abuse, cruelty, exploitation, and other conditions
prejudicial to their development." Certainly, these provisions contradict an
intent to discriminate against foundlings on account of their unfortunate
status.
Domestic laws on adoption also support the principle that foundlings are
Filipinos. These laws do not provide that adoption confers citizenship upon
the adoptee. Rather, the adoptee must be a Filipino in the first place to be
adopted. The most basic of such laws is Article 15 of the Civil Code which
provides that "[l]aws relating to family rights, duties, status, conditions, legal
capacity of persons are binding on citizens of the Philippines even though
living abroad." Adoption deals with status, and a Philippine adoption court
will have jurisdiction only if the adoptee is a Filipino. In Ellis and Ellis v.
Republic,119 a child left by an unidentified mother was sought to be adopted
by aliens. This Court said:
In this connection, it should be noted that this is a proceedings in rem, which
no court may entertain unless it has jurisdiction, not only over the subject
matter of the case and over the parties, but also over the res, which is the
personal status of Baby Rose as well as that of petitioners herein. Our Civil
Code (Art. 15) adheres to the theory that jurisdiction over the status of a
natural person is determined by the latter's nationality. Pursuant to this
theory, we have jurisdiction over the status of Baby Rose, she being a citizen
of the Philippines, but not over the status of the petitioners, who are
foreigners.120 (Underlining supplied)
16
Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing
the Rules to Govern the Inter-Country Adoption of Filipino Children and For
Other Purposes" (otherwise known as the "Inter-Country Adoption Act of
1995"), R.A. No. 8552, entitled "An Act Establishing the Rules and Policies
on the Adoption of Filipino Children and For Other Purposes" (otherwise
known as the Domestic Adoption Act of 1998) and this Court's A.M. No. 02-
6-02-SC or the "Rule on Adoption," all expressly refer to "Filipino children"
and include foundlings as among Filipino children who may be adopted.
It has been argued that the process to determine that the child is a foundling
leading to the issuance of a foundling certificate under these laws and the
issuance of said certificate are acts to acquire or perfect Philippine
citizenship which make the foundling a naturalized Filipino at best. This is
erroneous. Under Article IV, Section 2 "Natural-born citizens are those who
are citizens of the Philippines from birth without having to perform any act to
acquire or perfect their Philippine citizenship." In the first place, "having to
perform an act" means that the act must be personally done by the citizen. In
this instance, the determination of foundling status is done not by the child
but by the authorities.121 Secondly, the object of the process is the
determination of the whereabouts of the parents, not the citizenship of the
child. Lastly, the process is certainly not analogous to naturalization
proceedings to acquire Philippine citizenship, or the election of such
citizenship by one born of an alien father and a Filipino mother under the
1935 Constitution, which is an act to perfect it.
In this instance, such issue is moot because there is no dispute that
petitioner is a foundling, as evidenced by a Foundling Certificate issued in
her favor.122 The Decree of Adoption issued on 13 May 1974, which
approved petitioner's adoption by Jesusa Sonora Poe and Ronald Allan
Kelley Poe, expressly refers to Emiliano and his wife, Rosario Militar, as her
"foundling parents," hence effectively affirming petitioner's status as a
foundling.123
Foundlings are likewise citizens under international law. Under the 1987
Constitution, an international law can become part of the sphere of domestic
law either by transformation or incorporation. The transformation method
requires that an international law be transformed into a domestic law through
a constitutional mechanism such as local legislation.124 On the other hand,
generally accepted principles of international law, by virtue of the
incorporation clause of the Constitution, form part of the laws of the land
even if they do not derive from treaty obligations. Generally accepted
principles of international law include international custom as evidence of a
general practice accepted as law, and general principles of law recognized
by civilized nations.125 International customary rules are accepted as binding
as a result from the combination of two elements: the established,
widespread, and consistent practice on the part of States; and a
psychological element known as the opinionjuris sive necessitates (opinion
as to law or necessity). Implicit in the latter element is a belief that the
practice in question is rendered obligatory by the existence of a rule of law
requiring it.126 "General principles of law recognized by civilized nations" are
principles "established by a process of reasoning" or judicial logic, based on
principles which are "basic to legal systems generally,"127 such as "general
principles of equity, i.e., the general principles of fairness and justice," and
the "general principle against discrimination" which is embodied in the
"Universal Declaration of Human Rights, the International Covenant on
Economic, Social and Cultural Rights, the International Convention on the
Elimination of All Forms of Racial Discrimination, the Convention Against
Discrimination in Education, the Convention (No. 111) Concerning
Discrimination in Respect of Employment and Occupation."128 These are the
same core principles which underlie the Philippine Constitution itself, as
embodied in the due process and equal protection clauses of the Bill of
Rights.129
Universal Declaration of Human Rights ("UDHR") has been interpreted by
this Court as part of the generally accepted principles of international law and
binding on the State.130 Article 15 thereof states:
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality
nor denied the right to change his nationality.
The Philippines has also ratified the UN Convention on the Rights of the
Child (UNCRC). Article 7 of the UNCRC imposes the following obligations on
our country:
Article 7
1. The child shall be registered immediately after birth and shall have the
right from birth to a name, the right to acquire a nationality and as far as
possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in
accordance with their national law and their obligations under the relevant
international instruments in this field, in particular where the child would
otherwise be stateless.
In 1986, the country also ratified the 1966 International Covenant on Civil
and Political Rights (ICCPR). Article 24 thereof provide for the right of every
child "to acquire a nationality:"
Article 24
1. Every child shall have, without any discrimination as to race, colour, sex,
language, religion, national or social origin, property or birth, the right, to
such measures of protection as are required by his status as a minor, on the
part of his family, society and the State.
2. Every child shall be registered immediately after birth and shall have a
name.
3. Every child has the right to acquire a nationality.
The common thread of the UDHR, UNCRC and ICCPR is to obligate the
Philippines to grant nationality from birth and ensure that no child is
stateless. This grant of nationality must be at the time of birth, and it cannot
be accomplished by the application of our present naturalization laws,
Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of which
require the applicant to be at least eighteen (18) years old.
The principles found in two conventions, while yet unratified by the
Philippines, are generally accepted principles of international law. The first is
Article 14 of the 1930 Hague Convention on Certain Questions Relating to
the Conflict of Nationality Laws under which a foundling is presumed to have
the "nationality of the country of birth," to wit:
Article 14
A child whose parents are both unknown shall have the nationality of the
country of birth. If the child's parentage is established, its nationality shall be
determined by the rules applicable in cases where the parentage is known.
A foundling is, until the contrary is proved, presumed to have been born on
the territory of the State in which it was found. (Underlining supplied)
17
The second is the principle that a foundling is presumed born of citizens of
the country where he is found, contained in Article 2 of the 1961 United
Nations Convention on the Reduction of Statelessness:
Article 2
A foundling found in the territory of a Contracting State shall, in the absence
of proof to the contrary, be considered to have been born within the territory
of parents possessing the nationality of that State.
That the Philippines is not a party to the 1930 Hague Convention nor to the
1961 Convention on the Reduction of Statelessness does not mean that their
principles are not binding. While the Philippines is not a party to the 1930
Hague Convention, it is a signatory to the Universal Declaration on Human
Rights, Article 15(1) ofwhich131 effectively affirms Article 14 of the 1930
Hague Convention. Article 2 of the 1961 "United Nations Convention on the
Reduction of Statelessness" merely "gives effect" to Article 15(1) of the
UDHR.132 In Razon v. Tagitis, 133 this Court noted that the Philippines had
not signed or ratified the "International Convention for the Protection of All
Persons from Enforced Disappearance." Yet, we ruled that the proscription
against enforced disappearances in the said convention was nonetheless
binding as a "generally accepted principle of international law." Razon v.
Tagitis is likewise notable for declaring the ban as a generally accepted
principle of international law although the convention had been ratified by
only sixteen states and had not even come into force and which needed the
ratification of a minimum of twenty states. Additionally, as petitioner points
out, the Court was content with the practice of international and regional
state organs, regional state practice in Latin America, and State Practice in
the United States.
Another case where the number of ratifying countries was not determinative
is Mijares v. Ranada, 134 where only four countries had "either ratified or
acceded to"135 the 1966 "Convention on the Recognition and Enforcement of
Foreign Judgments in Civil and Commercial Matters" when the case was
decided in 2005. The Court also pointed out that that nine member countries
of the European Common Market had acceded to the Judgments
Convention. The Court also cited U.S. laws and jurisprudence on recognition
of foreign judgments. In all, only the practices of fourteen countries were
considered and yet, there was pronouncement that recognition of foreign
judgments was widespread practice.
Our approach in Razon and Mijares effectively takes into account the fact
that "generally accepted principles of international law" are based not only on
international custom, but also on "general principles of law recognized by
civilized nations," as the phrase is understood in Article 38.1 paragraph (c) of
the ICJ Statute. Justice, fairness, equity and the policy against
discrimination, which are fundamental principles underlying the Bill of Rights
and which are "basic to legal systems generally,"136 support the notion that
the right against enforced disappearances and the recognition of foreign
judgments, were correctly considered as "generally accepted principles of
international law" under the incorporation clause.
Petitioner's evidence137 shows that at least sixty countries in Asia, North and
South America, and Europe have passed legislation recognizing foundlings
as its citizen. Forty-two (42) of those countries follow the jus sanguinis
regime. Of the sixty, only thirty-three (33) are parties to the 1961 Convention
on Statelessness; twenty-six (26) are not signatories to the Convention. Also,
the Chief Justice, at the 2 February 2016 Oral Arguments pointed out that in
166 out of 189 countries surveyed (or 87.83%), foundlings are recognized as
citizens. These circumstances, including the practice of jus sanguinis
countries, show that it is a generally accepted principle of international law to
presume foundlings as having been born of nationals of the country in which
the foundling is found.
Current legislation reveals the adherence of the Philippines to this generally
accepted principle of international law. In particular, R.A. No. 8552, R.A. No.
8042 and this Court's Rules on Adoption, expressly refer to "Filipino
children." In all of them, foundlings are among the Filipino children who could
be adopted. Likewise, it has been pointed that the DFA issues passports to
foundlings. Passports are by law, issued only to citizens. This shows that
even the executive department, acting through the DFA, considers
foundlings as Philippine citizens.
Adopting these legal principles from the 1930 Hague Convention and the
1961 Convention on Statelessness is rational and reasonable and consistent
with the jus sanguinis regime in our Constitution. The presumption of natural-
born citizenship of foundlings stems from the presumption that their parents
are nationals of the Philippines. As the empirical data provided by the PSA
show, that presumption is at more than 99% and is a virtual certainty.
In sum, all of the international law conventions and instruments on the matter
of nationality of foundlings were designed to address the plight of a
defenseless class which suffers from a misfortune not of their own making.
We cannot be restrictive as to their application if we are a country which calls
itself civilized and a member of the community of nations. The Solicitor
General's warning in his opening statement is relevant:
.... the total effect of those documents is to signify to this Honorable Court
that those treaties and conventions were drafted because the world
community is concerned that the situation of foundlings renders them legally
invisible. It would be tragically ironic if this Honorable Court ended up using
the international instruments which seek to protect and uplift foundlings a tool
to deny them political status or to accord them second-class citizenship.138
The COMELEC also ruled139 that petitioner's repatriation in July 2006 under
the provisions of R.A. No. 9225 did not result in the reacquisition of natural-
born citizenship. The COMELEC reasoned that since the applicant must
perform an act, what is reacquired is not "natural-born" citizenship but only
plain "Philippine citizenship."
The COMELEC's rule arrogantly disregards consistent jurisprudence on the
matter of repatriation statutes in general and of R.A. No. 9225 in particular.
In the seminal case of Bengson Ill v. HRET, 140 repatriation was explained as
follows:
Moreover, repatriation results in the recovery of the original nationality. This
means that a naturalized Filipino who lost his citizenship will be restored to
his prior status as a naturalized Filipino citizen. On the other hand, if he was
originally a natural-born citizen before he lost his Philippine citizenship, he
will be restored to his former status as a natural-born Filipino.
R.A. No. 9225 is a repatriation statute and has been described as such in
several cases. They include Sobejana-Condon v. COMELEC141 where we
described it as an "abbreviated repatriation process that restores one's
Filipino citizenship x x x." Also included is Parreno v. Commission on
Audit,142 which cited Tabasa v. Court of Appeals,143 where we said that "[t]he
repatriation of the former Filipino will allow him to recover his natural-born
citizenship. Parreno v. Commission on Audit144 is categorical that "if
petitioner reacquires his Filipino citizenship (under R.A. No. 9225), he will ...
recover his natural-born citizenship."
The COMELEC construed the phrase "from birth" in the definition of natural
citizens as implying "that natural-born citizenship must begin at birth and
remain uninterrupted and continuous from birth." R.A. No. 9225 was
obviously passed in line with Congress' sole prerogative to determine how
citizenship may be lost or reacquired. Congress saw it fit to decree that
18
natural-born citizenship may be reacquired even if it had been once lost. It is
not for the COMELEC to disagree with the Congress' determination.
More importantly, COMELEC's position that natural-born status must be
continuous was already rejected in Bengson III v. HRET145 where the phrase
"from birth" was clarified to mean at the time of birth: "A person who at the
time of his birth, is a citizen of a particular country, is a natural-born citizen
thereof." Neither is "repatriation" an act to "acquire or perfect" one's
citizenship. In Bengson III v. HRET, this Court pointed out that there are only
two types of citizens under the 1987 Constitution: natural-born citizen and
naturalized, and that there is no third category for repatriated citizens:
It is apparent from the enumeration of who are citizens under the present
Constitution that there are only two classes of citizens: (1) those who are
natural-born and (2) those who are naturalized in accordance with law. A
citizen who is not a naturalized Filipino, ie., did not have to undergo the
process of naturalization to obtain Philippine citizenship, necessarily is a
natural-born Filipino. Noteworthy is the absence in said enumeration of a
separate category for persons who, after losing Philippine citizenship,
subsequently reacquire it. The reason therefor is clear: as to such persons,
they would either be natural-born or naturalized depending on the reasons
for the loss of their citizenship and the mode prescribed by the applicable law
for the reacquisition thereof. As respondent Cruz was not required by law to
go through naturalization proceedings in order to reacquire his citizenship, he
is perforce a natural-born Filipino. As such, he possessed all the necessary
qualifications to be elected as member of the House of Representatives.146
The COMELEC cannot reverse a judicial precedent. That is reserved to this
Court. And while we may always revisit a doctrine, a new rule reversing
standing doctrine cannot be retroactively applied. In Morales v. Court of
Appeals and Jejomar Erwin S. Binay, Jr.,147 where we decreed reversed the
condonation doctrine, we cautioned that it "should be prospective in
application for the reason that judicial decisions applying or interpreting the
laws of the Constitution, until reversed, shall form part of the legal system of
the Philippines." This Court also said that "while the future may ultimately
uncover a doctrine's error, it should be, as a general rule, recognized as
good law prior to its abandonment. Consequently, the people's reliance
thereupon should be respected."148
Lastly, it was repeatedly pointed out during the oral arguments that petitioner
committed a falsehood when she put in the spaces for "born to" in her
application for repatriation under R.A. No. 9225 the names of her adoptive
parents, and this misled the BI to presume that she was a natural-born
Filipino. It has been contended that the data required were the names of her
biological parents which are precisely unknown.
This position disregards one important fact - petitioner was legally adopted.
One of the effects of adoption is "to sever all legal ties between the biological
parents and the adoptee, except when the biological parent is the spouse of
the adoptee."149 Under R.A. No. 8552, petitioner was also entitled to an
amended birth certificate "attesting to the fact that the adoptee is the child of
the adopter(s)" and which certificate "shall not bear any notation that it is an
amended issue."150 That law also requires that "[a]ll records, books, and
papers relating to the adoption cases in the files of the court, the Department
[of Social Welfare and Development], or any other agency or institution
participating in the adoption proceedings shall be kept strictly confidential."151
The law therefore allows petitioner to state that her adoptive parents were
her birth parents as that was what would be stated in her birth certificate
anyway. And given the policy of strict confidentiality of adoption records,
petitioner was not obligated to disclose that she was an adoptee.
Clearly, to avoid a direct ruling on the qualifications of petitioner, which it
cannot make in the same case for cancellation of COC, it resorted to
opinionatedness which is, moreover, erroneous. The whole process
undertaken by COMELEC is wrapped in grave abuse of discretion.
On Residence
The tainted process was repeated in disposing of the issue of whether or not
petitioner committed false material representation when she stated in her
COC that she has before and until 9 May 2016 been a resident of the
Philippines for ten (10) years and eleven (11) months.
Petitioner's claim that she will have been a resident for ten (10) years and
eleven (11) months on the day before the 2016 elections, is true.
The Constitution requires presidential candidates to have ten (10) years'
residence in the Philippines before the day of the elections. Since the
forthcoming elections will be held on 9 May 2016, petitioner must have been
a resident of the Philippines prior to 9 May 2016 for ten (10) years. In answer
to the requested information of "Period of Residence in the Philippines up to
the day before May 09, 2016," she put in "10 years 11 months" which
according to her pleadings in these cases corresponds to a beginning date of
25 May 2005 when she returned for good from the U.S.
When petitioner immigrated to the U.S. in 1991, she lost her original
domicile, which is the Philippines. There are three requisites to acquire a
new domicile: 1. Residence or bodily presence in a new locality; 2. an
intention to remain there; and 3. an intention to abandon the old domicile.152
To successfully effect a change of domicile, one must demonstrate an actual
removal or an actual change of domicile; a bona fide intention of abandoning
the former place of residence and establishing a new one and definite acts
which correspond with the purpose. In other words, there must basically be
animus manendi coupled with animus non revertendi. The purpose to remain
in or at the domicile of choice must be for an indefinite period of time; the
change of residence must be voluntary; and the residence at the place
chosen for the new domicile must be actual.153
Petitioner presented voluminous evidence showing that she and her family
abandoned their U.S. domicile and relocated to the Philippines for good.
These evidence include petitioner's former U.S. passport showing her arrival
on 24 May 2005 and her return to the Philippines every time she travelled
abroad; e-mail correspondences starting in March 2005 to September 2006
with a freight company to arrange for the shipment of their household items
weighing about 28,000 pounds to the Philippines; e-mail with the Philippine
Bureau of Animal Industry inquiring how to ship their dog to the Philippines;
school records of her children showing enrollment in Philippine schools
starting June 2005 and for succeeding years; tax identification card for
petitioner issued on July 2005; titles for condominium and parking slot issued
in February 2006 and their corresponding tax declarations issued in April
2006; receipts dated 23 February 2005 from the Salvation Army in the U.S.
acknowledging donation of items from petitioner's family; March 2006 e-mail
to the U.S. Postal Service confirming request for change of address; final
statement from the First American Title Insurance Company showing sale of
their U.S. home on 27 April 2006; 12 July 2011 filled-up questionnaire
submitted to the U.S. Embassy where petitioner indicated that she had been
a Philippine resident since May 2005; affidavit from Jesusa Sonora Poe
(attesting to the return of petitioner on 24 May 2005 and that she and her
family stayed with affiant until the condominium was purchased); and
Affidavit from petitioner's husband (confirming that the spouses jointly
decided to relocate to the Philippines in 2005 and that he stayed behind in
the U.S. only to finish some work and to sell the family home).
The foregoing evidence were undisputed and the facts were even listed by
the COMELEC, particularly in its Resolution in the Tatad, Contreras and
Valdez cases.
19
However, the COMELEC refused to consider that petitioner's domicile had
been timely changed as of 24 May 2005. At the oral arguments, COMELEC
Commissioner Arthur Lim conceded the presence of the first two requisites,
namely, physical presence and animus manendi, but maintained there was
no animus non-revertendi.154 The COMELEC disregarded the import of all
the evidence presented by petitioner on the basis of the position that the
earliest date that petitioner could have started residence in the Philippines
was in July 2006 when her application under R.A. No. 9225 was approved by
the BI. In this regard, COMELEC relied on Coquilla v. COMELEC,155 Japzon
v. COMELEC156 and Caballero v. COMELEC. 157 During the oral arguments,
the private respondents also added Reyes v. COMELEC.158 Respondents
contend that these cases decree that the stay of an alien former Filipino
cannot be counted until he/she obtains a permanent resident visa or
reacquires Philippine citizenship, a visa-free entry under a balikbayan stamp
being insufficient. Since petitioner was still an American (without any resident
visa) until her reacquisition of citizenship under R.A. No. 9225, her stay from
24 May 2005 to 7 July 2006 cannot be counted.
But as the petitioner pointed out, the facts in these four cases are very
different from her situation. In Coquilla v. COMELEC,159 the only evidence
presented was a community tax certificate secured by the candidate and his
declaration that he would be running in the elections. Japzon v.
COMELEC160 did not involve a candidate who wanted to count residence
prior to his reacquisition of Philippine citizenship. With the Court decreeing
that residence is distinct from citizenship, the issue there was whether the
candidate's acts after reacquisition sufficed to establish residence. In
Caballero v. COMELEC, 161 the candidate admitted that his place of work
was abroad and that he only visited during his frequent vacations. In Reyes
v. COMELEC,162 the candidate was found to be an American citizen who had
not even reacquired Philippine citizenship under R.A. No. 9225 or had
renounced her U.S. citizenship. She was disqualified on the citizenship
issue. On residence, the only proof she offered was a seven-month stint as
provincial officer. The COMELEC, quoted with approval by this Court, said
that "such fact alone is not sufficient to prove her one-year residency."
It is obvious that because of the sparse evidence on residence in the four
cases cited by the respondents, the Court had no choice but to hold that
residence could be counted only from acquisition of a permanent resident
visa or from reacquisition of Philippine citizenship. In contrast, the evidence
of petitioner is overwhelming and taken together leads to no other conclusion
that she decided to permanently abandon her U.S. residence (selling the
house, taking the children from U.S. schools, getting quotes from the freight
company, notifying the U.S. Post Office of the abandonment of their address
in the U.S., donating excess items to the Salvation Army, her husband
resigning from U.S. employment right after selling the U.S. house) and
permanently relocate to the Philippines and actually re-established her
residence here on 24 May 2005 (securing T.I.N, enrolling her children in
Philippine schools, buying property here, constructing a residence here,
returning to the Philippines after all trips abroad, her husband getting
employed here). Indeed, coupled with her eventual application to reacquire
Philippine citizenship and her family's actual continuous stay in the
Philippines over the years, it is clear that when petitioner returned on 24 May
2005 it was for good.
In this connection, the COMELEC also took it against petitioner that she had
entered the Philippines visa-free as a balikbayan. A closer look at R.A. No.
6768 as amended, otherwise known as the "An Act Instituting a Balikbayan
Program," shows that there is no overriding intent to treat balikbayans as
temporary visitors who must leave after one year. Included in the law is a
former Filipino who has been naturalized abroad and "comes or returns to
the Philippines." 163 The law institutes a balikbayan program "providing the
opportunity to avail of the necessary training to enable the balikbayan to
become economically self-reliant members of society upon their return to the
country"164 in line with the government's "reintegration program."165
Obviously, balikbayans are not ordinary transients.
Given the law's express policy to facilitate the return of a balikbayan and help
him reintegrate into society, it would be an unduly harsh conclusion to say in
absolute terms that the balikbayan must leave after one year. That visa-free
period is obviously granted him to allow him to re-establish his life and
reintegrate himself into the community before he attends to the necessary
formal and legal requirements of repatriation. And that is exactly what
petitioner did - she reestablished life here by enrolling her children and
buying property while awaiting the return of her husband and then applying
for repatriation shortly thereafter.
No case similar to petitioner's, where the former Filipino's evidence of
change in domicile is extensive and overwhelming, has as yet been decided
by the Court. Petitioner's evidence of residence is unprecedented. There is
no judicial precedent that comes close to the facts of residence of petitioner.
There is no indication in Coquilla v. COMELEC,166 and the other cases cited
by the respondents that the Court intended to have its rulings there apply to
a situation where the facts are different. Surely, the issue of residence has
been decided particularly on the facts-of-the case basis.
To avoid the logical conclusion pointed out by the evidence of residence of
petitioner, the COMELEC ruled that petitioner's claim of residence of ten (10)
years and eleven (11) months by 9 May 2016 in her 2015 COC was false
because she put six ( 6) years and six ( 6) months as "period of residence
before May 13, 2013" in her 2012 COC for Senator. Thus, according to the
COMELEC, she started being a Philippine resident only in November 2006.
In doing so, the COMELEC automatically assumed as true the statement in
the 2012 COC and the 2015 COC as false.
As explained by petitioner in her verified pleadings, she misunderstood the
date required in the 2013 COC as the period of residence as of the day she
submitted that COC in 2012. She said that she reckoned residency from
April-May 2006 which was the period when the U.S. house was sold and her
husband returned to the Philippines. In that regard, she was advised by her
lawyers in 2015 that residence could be counted from 25 May 2005.
Petitioner's explanation that she misunderstood the query in 2012 (period of
residence before 13 May 2013) as inquiring about residence as of the time
she submitted the COC, is bolstered by the change which the COMELEC
itself introduced in the 2015 COC which is now "period of residence in the
Philippines up to the day before May 09, 2016." The COMELEC would not
have revised the query if it did not acknowledge that the first version was
vague.
That petitioner could have reckoned residence from a date earlier than the
sale of her U.S. house and the return of her husband is plausible given the
evidence that she had returned a year before. Such evidence, to repeat,
would include her passport and the school records of her children.
It was grave abuse of discretion for the COMELEC to treat the 2012 COC as
a binding and conclusive admission against petitioner. It could be given in
evidence against her, yes, but it was by no means conclusive. There is
precedent after all where a candidate's mistake as to period of residence
made in a COC was overcome by evidence. In Romualdez-Marcos v.
COMELEC,167 the candidate mistakenly put seven (7) months as her period
of residence where the required period was a minimum of one year. We said
that "[i]t is the fact of residence, not a statement in a certificate of candidacy
which ought to be decisive in determining whether or not an individual has
satisfied the constitutions residency qualification requirement." The
COMELEC ought to have looked at the evidence presented and see if
petitioner was telling the truth that she was in the Philippines from 24 May
2005. Had the COMELEC done its duty, it would have seen that the 2012
COC and the 2015 COC both correctly stated the pertinent period of
residency.
20
The COMELEC, by its own admission, disregarded the evidence that
petitioner actually and physically returned here on 24 May 2005 not because
it was false, but only because COMELEC took the position that domicile
could be established only from petitioner's repatriation under R.A. No. 9225
in July 2006. However, it does not take away the fact that in reality, petitioner
had returned from the U.S. and was here to stay permanently, on 24 May
2005. When she claimed to have been a resident for ten (10) years and
eleven (11) months, she could do so in good faith.
For another, it could not be said that petitioner was attempting to hide
anything. As already stated, a petition for quo warranto had been filed
against her with the SET as early as August 2015. The event from which the
COMELEC pegged the commencement of residence, petitioner's repatriation
in July 2006 under R.A. No. 9225, was an established fact to repeat, for
purposes of her senatorial candidacy.
Notably, on the statement of residence of six (6) years and six (6) months in
the 2012 COC, petitioner recounted that this was first brought up in the
media on 2 June 2015 by Rep. Tobias Tiangco of the United Nationalist
Alliance. Petitioner appears to have answered the issue immediately, also in
the press. Respondents have not disputed petitioner's evidence on this point.
From that time therefore when Rep. Tiangco discussed it in the media, the
stated period of residence in the 2012 COC and the circumstances that
surrounded the statement were already matters of public record and were
not hidden.
Petitioner likewise proved that the 2012 COC was also brought up in the SET
petition for quo warranto. Her Verified Answer, which was filed on 1
September 2015, admitted that she made a mistake in the 2012 COC when
she put in six ( 6) years and six ( 6) months as she misunderstood the
question and could have truthfully indicated a longer period. Her answer in
the SET case was a matter of public record. Therefore, when petitioner
accomplished her COC for President on 15 October 2015, she could not be
said to have been attempting to hide her erroneous statement in her 2012
COC for Senator which was expressly mentioned in her Verified Answer.
The facts now, if not stretched to distortion, do not show or even hint at an
intention to hide the 2012 statement and have it covered by the 2015
representation. Petitioner, moreover, has on her side this Court's
pronouncement that:
Concededly, a candidate's disqualification to run for public office does not
necessarily constitute material misrepresentation which is the sole ground for
denying due course to, and for the cancellation of, a COC. Further, as
already discussed, the candidate's misrepresentation in his COC must not
only refer to a material fact (eligibility and qualifications for elective office),
but should evince a deliberate intent to mislead, misinform or hide a fact
which would otherwise render a candidate ineligible. It must be made with an
intention to deceive the electorate as to one's qualifications to run for public
office.168
In sum, the COMELEC, with the same posture of infallibilism, virtually
ignored a good number of evidenced dates all of which can evince animus
manendi to the Philippines and animus non revertedi to the United States of
America. The veracity of the events of coming and staying home was as
much as dismissed as inconsequential, the focus having been fixed at the
petitioner's "sworn declaration in her COC for Senator" which the COMELEC
said "amounts to a declaration and therefore an admission that her residence
in the Philippines only commence sometime in November 2006"; such that
"based on this declaration, [petitioner] fails to meet the residency
requirement for President." This conclusion, as already shown, ignores the
standing jurisprudence that it is the fact of residence, not the statement of the
person that determines residence for purposes of compliance with the
constitutional requirement of residency for election as President. It ignores
the easily researched matter that cases on questions of residency have been
decided favorably for the candidate on the basis of facts of residence far less
in number, weight and substance than that presented by petitioner.169 It
ignores, above all else, what we consider as a primary reason why petitioner
cannot be bound by her declaration in her COC for Senator which
declaration was not even considered by the SET as an issue against her
eligibility for Senator. When petitioner made the declaration in her COC for
Senator that she has been a resident for a period of six (6) years and six (6)
months counted up to the 13 May 2013 Elections, she naturally had as
reference the residency requirements for election as Senator which was
satisfied by her declared years of residence. It was uncontested during the
oral arguments before us that at the time the declaration for Senator was
made, petitioner did not have as yet any intention to vie for the Presidency in
2016 and that the general public was never made aware by petitioner, by
word or action, that she would run for President in 2016. Presidential
candidacy has a length-of-residence different from that of a senatorial
candidacy. There are facts of residence other than that which was mentioned
in the COC for Senator. Such other facts of residence have never been
proven to be false, and these, to repeat include:
[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's]
husband however stayed in the USA to finish pending projects and arrange
the sale of their family home.
Meanwhile [petitioner] and her children lived with her mother in San Juan
City. [Petitioner] enrolled Brian in Beacon School in Taguig City in 2005 and
Hanna in Assumption College in Makati City in 2005. Anika was enrolled in
Learning Connection in San Juan in 2007, when she was already old enough
to go to school.
In the second half of 2005, [petitioner] and her husband acquired Unit 7F of
One Wilson Place Condominium in San Juan. [Petitioner] and her family
lived in Unit 7F until the construction of their family home in Corinthian Hills
was completed.
Sometime in the second half of 2005, [petitioner's] mother discovered that
her former lawyer who handled [petitioner's] adoption in 1974 failed to secure
from the Office of the Civil Registrar of Iloilo a new Certificate of Live Birth
indicating [petitioner's] new name and stating that her parents are "Ronald
Allan K. Poe" and "Jesusa L. Sonora."
In February 2006, [petitioner] travelled briefly to the US in order to supervise
the disposal of some of the family's remaining household
belongings.1a\^/phi1 [Petitioner] returned to the Philippines on 11 March
2006.
In late March 2006, [petitioner's] husband informed the United States Postal
Service of the family's abandonment of their address in the US.
The family home in the US was sole on 27 April 2006.
In April 2006, [petitioner's] husband resigned from his work in the US. He
returned to the Philippines on 4 May 2006 and began working for a Philippine
company in July 2006.
In early 2006, [petitioner] and her husband acquired a vacant lot in
Corinthian Hills, where they eventually built their family home.170
In light of all these, it was arbitrary for the COMELEC to satisfy its intention to
let the case fall under the exclusive ground of false representation, to
consider no other date than that mentioned by petitioner in her COC for
Senator.
21
All put together, in the matter of the citizenship and residence of petitioner for
her candidacy as President of the Republic, the questioned Resolutions of
the COMELEC in Division and En Banc are, one and all, deadly diseased
with grave abuse of discretion from root to fruits.
WHEREFORE, the petition is GRANTED. The Resolutions, to wit:
1. dated 1 December 2015 rendered through the COMELEC Second
Division, in SPA No. 15-001 (DC), entitled Estrella C. Elamparo, petitioner,
vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent, stating that:
[T]he Certificate of Candidacy for President of the Republic of the Philippines
in the May 9, 2016 National and Local Elections filed by respondent Mary
Grace Natividad Sonora Poe-Llamanzares is hereby GRANTED.
2. dated 11 December 2015, rendered through the COMELEC First Division,
in the consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad,
petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent;
SPA No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary
Grace Natividad Sonora Poe-Llamanzares, respondent; and SPA No. 15-139
(DC) entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora
Poe-Llamanzares, respondent; stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES, to GRANT the petitions and cancel the Certificate of
Candidacy of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES
for the elective position of President of the Republic of the Philippines in
connection with the 9 May 2016 Synchronized Local and National Elections.
3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1
December 2015 Resolution of the Second Division stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES, to DENY the Verified Motion for Reconsideration of
SENATOR MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES.
The Resolution dated 11 December 2015 of the Commission First Division is
AFFIRMED.
4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11
December 2015 Resolution of the First Division.
are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE
NATIVIDAD SONORA POE-LLAMANZARES is DECLARED QUALIFIED to
be a candidate for President in the National and Local Elections of 9 May
2016.
SO ORDERED.
G.R. No. 179695 December 18, 2008
MIKE A. FERMIN, petitioner,
vs.
COMMISSION ON ELECTIONS and UMBRA RAMIL BAYAM
DILANGALEN, respondents.
G.R. No. 182369 December 18, 2008
MIKE A. FERMIN, petitioner,
vs.
COMMISSION ON ELECTIONS and UMBRA RAMIL BAYAM
DILANGALEN, respondents.
DECISION
NACHURA, J.:
These consolidated petitions provide a welcome avenue for the Court to
dichotomize, once and for all, two popular remedies to prevent a candidate
from running for an elective position which are indiscriminately interchanged
by the Bench and the Bar, adding confusion to the already difficult state of
our jurisprudence on election laws.
For the Court’s resolution are two petitions for certiorari under Rule 64 in
relation to Rule 65 of the Rules of Court: (1) G.R. No. 179695, which assails
the June 29, 2007 Resolution1 of the Commission on Elections (COMELEC)
2nd Division in SPA No. 07-372, and the September 20, 2007 Resolution2 of
the COMELEC En Banc affirming the said division resolution; and (2) G.R.
No. 182369, which challenges the February 14, 2008 Resolution3 of the
COMELEC 1st Division in SPR No. 45-2007, the March 13, 2008 Order4 of
the COMELEC En Banc denying petitioner’s motion for reconsideration, and
the March 26, 2008 Entry of Judgment5 issued by the Electoral Contests and
Adjudication Department (ECAD) of the Commission in the said case.
The relevant facts and proceedings follow.
After the creation of Shariff Kabunsuan,6 the Regional Assembly of the
Autonomous Region in Muslim Mindanao (ARMM), on November 22, 2006,
passed Autonomy Act No. 2057 creating the Municipality of Northern
Kabuntalan in Shariff Kabunsuan. This new municipality was constituted by
separating Barangays Balong, Damatog, Gayonga, Guiawa, Indatuan,
Kapinpilan, P. Labio, Libungan, Montay, Sabaken and Tumaguinting from the
Municipality of Kabuntalan.8
Mike A. Fermin, the petitioner in both cases, was a registered voter of
Barangay Payan, Kabuntalan. On December 13, 2006, claiming that he had
been a resident of Barangay Indatuan for 1 year and 6 months, petitioner
applied with the COMELEC for the transfer of his registration record to the
said barangay.9 In the meantime, the creation of North Kabuntalan was
ratified in a plebiscite on December 30, 2006,10 formally making Barangay
Indatuan a component of Northern Kabuntalan.
Thereafter, on January 8, 2007, the COMELEC approved petitioner's
application for the transfer of his voting record and registration as a voter to
Precinct 21A of Barangay Indatuan, Northern Kabuntalan.11 On March 29,
2007, Fermin filed his Certificate of Candidacy (CoC) for mayor of Northern
Kabuntalan in the May 14, 2007 National and Local Elections.12
On April 20, 2007, private respondent Umbra Ramil Bayam Dilangalen,
another mayoralty candidate, filed a Petition13 for Disqualification [the
Dilangalen petition] against Fermin, docketed as SPA (PES) No. A07-003
[re-docketed as SPA No. 07-372 before the COMELEC] with the Office of the
Provincial Election Supervisor of Shariff Kabunsuan. The petition alleged that
the petitioner did not possess the period of residency required for candidacy
and that he perjured himself in his CoC and in his application for transfer of
voting record. The pertinent portions of the petition follow:
1. THE PETITIONER is of legal age, a registered voter, resident
and incumbent Municipal Mayor of the Municipality of Northern
Kabuntalan, holding office at Barangay Paulino Labio in the
Municipality of Northern Kabuntalan where he may be served
summons and other legal processes.
2. THE PETITIONER is a candidate for election as Mayor in the
same Municipality of Northern Kabuntalan, being a resident of
and domiciled in the Municipality since birth. The Respondent is
22
 also a candidate for the same office, Mayor in the same
Municipality of Northern Kabuntalan. He is, however, not a
resident of the Municipality.
3. THE RESPONDENT perjured himself when he swore to the
truth of his statement in his Certificate of Candidacy of being a
resident of the Municipality for the last 38 years, when in truth and
in fact he simply transferred his registration from the Municipality
of Kabuntalan on 13 December 2006, wherein he stated that he
has relocated to that municipality a year and six months earlier, or
no earlier than June 2005.
4. THE RESPONDENT perjured himself when he swore to the
truth of his statement in his Certificate of Candidacy of being a
resident of the Municipality for the last 38 years, when in truth and
in fact he has stayed for at least 33 years in Barangay Payan,
Municipality [of] Kabunt[a]lan.
5. THE RESPONDENT perjured himself when he swore to the
truth of his statement in his Application for Transfer that he is a
resident of Barangay Indatuan on 13 December 2006, wherein he
stated that he has relocated to that municipality a year and six
months earlier, or on or about June 2005, when in truth and in fact
he has never resided much less domiciled himself in Indatuan or
anywhere else in the Municipality of Northern Kabuntalan earlier
than 14 May 2006.
6. THE RESPONDENT perjured himself when he swore to the
truth of his statement in his Certificate of Candidacy of being a
resident of the Municipality for the last 38 years, when in truth and
in fact he has never resided in the Municipality, but was simply
visiting the area whenever election is [f]ast approaching.
WHEREFORE, premises considered, it is most respectfully
prayed that, [in consideration] of the Respondent not possessing
the residence required for candidacy, and having perjured himself
in a number of times, the Commission disqualify the
Respondent.14
Elections were held without any decision being rendered by the COMELEC
in the said case. After the counting and canvassing of votes, Dilangalen
emerged as the victor with 1,849 votes over Fermin’s 1,640.15 The latter
subsequently filed an election protest (Election Case No. 2007-022) with the
Regional Trial Court (RTC), Branch 13 of Cotabato City.16
G.R. No. 179695
On June 29, 2007, the COMELEC 2nd Division, in SPA No. 07-372,
disqualified Fermin for not being a resident of Northern Kabuntalan.17 It ruled
that, based on his declaration that he is a resident of Barangay Payan as of
April 27, 2006 in his oath of office before Datu Andal Ampatuan, Fermin
could not have been a resident of Barangay Indatuan for at least one year.18
The COMELEC En Banc, on September 20, 2007, affirmed the Division's
ruling.19
Thus, petitioner instituted G.R. No. 179695 before this Court raising the
following issues:
A.
WHETHER OR NOT THE PETITION TO DISQUALIFY
PETITIONER FROM SEEKING THE MAYORALTY POST OF
THE MUNICIPALITY OF NORTHERN KABUNTALAN SHOULD
BE DISMISSED FOR HAVING BEEN FILED OUT OF TIME.
B.
WHETHER OR NOT THE ONE (1) YEAR RESIDENCY
REQUIREMENT AS PROVIDED BY ART. 56, PAR. NO. 3, RULE
XIII, RULES AND REGULATIONS IMPLEMENTING THE LOCAL
GOVERNMENT CODE OF THE AUTONOMOUS REGION IN
MUSLIM MINDANAO IS APPLICABLE TO PETITIONER, WHO
TRANSFERRED HIS VOTER'S REGISTRATION RECORD DUE
TO CHANGE OF RESIDENCE FROM BARANGAY PAYAN TO
BARANGAY INDATUAN IN THE SAME MUNICIPALITY OF
KABUNTALAN.20
Petitioner contends that the Dilangalen petition is a petition to deny due
course to or cancel a CoC under Section 78 of the Omnibus Election Code
(OEC).21 Following Republic Act (R.A.) No. 6646, the same must be filed
within 5 days from the last day for the filing of CoC, which, in this case, is
March 30, 2007, and considering that the said petition was filed by
Dilangalen only on April 20, 2007, the same was filed out of time. The
COMELEC should have then dismissed SPA No. 07-372 outright.22
Petitioner further argues that he has been a resident of Barangay Indatuan
long before the creation of Northern Kabuntalan. This change of residence
prompted him to apply for the transfer of his voter’s registration record from
Barangay Payan to Barangay Indatuan. Moreover, the one year residency
requirement under the law is not applicable to candidates for elective office in
a newly created municipality, because the length of residency of all its
inhabitants is reckoned from the effective date of its creation.23
In his comment, private respondent counters that the petition it filed is one for
disqualification under Section 68 of the OEC which may be filed at any time
after the last day for filing of the CoC but not later than the candidate’s
proclamation should he win in the elections. As he filed the petition on April
20, 2007, long before the proclamation of the eventual winning candidate,
the same was filed on time.24
Private respondent likewise posits that petitioner failed to comply with the
one-year residency requirement for him to be able to run for an elective office
in Northern Kabuntalan. Petitioner applied for the transfer of his voting record
on December 13, 2006, and this was approved only on January 8, 2007.25
G.R. No. 182369
During the pendency of G.R. No. 179695 with the Court, Dilangalen filed, on
September 27, 2007, with the RTC of Cotabato a motion to dismiss Election
Case No. 07-022 on the ground that Fermin had no legal standing to file the
said protest, the COMELEC En Banc having already affirmed his
disqualification as a candidate; and this Court, in the abovementioned case,
did not issue an order restraining the implementation of the assailed
COMELEC resolutions.
The RTC, however, denied this motion on September 28, 2007. On motion
for reconsideration, the trial court remained steadfast in its stand that the
election protest was separate and distinct from the COMELEC proceedings,
and that, unless restrained by the proper authority, it would continue hearing
the protest.26
Assailing the RTC’s denial of his motions, Dilangalen filed a Petition for
Certiorari and Prohibition27 docketed as SPR No. 45-2007 with the
23
COMELEC. On February 14, 2008, the COMELEC 1st Division set aside the
aforesaid orders of the trial court for having been issued with grave abuse of
discretion, prohibited the said court from acting on and proceeding with the
protest, and ordered it to dismiss the same.28 The COMELEC En Banc, on
March 13, 2008, denied petitioner’s motion for the reconsideration of the
division’s ruling on account of Fermin’s failure to pay the required fees. It
further directed the issuance of an entry of judgment in the said case.29 On
March 26, 2008, the ECAD recorded the finality of the ruling in SPR No. 45-
2007 in the Book of Entries of Judgments.30
These developments prompted Fermin to file another certiorari petition
before this Court, docketed as G.R. No. 182369. In this petition, Fermin
raises the following issues for our resolution:
A.
Whether or not public respondent has departed from the accepted
and usual course of its rules of procedure, as to call for an
exercise of the power of supervision by the Honorable Court.
B.
Whether or not public respondent in taking cognizance of the
certiorari and prohibition not in aid of its appellate jurisdiction,
acted without or in excess of jurisdiction, or with grave abuse of
discretion amounting to lack or in (sic) excess [of jurisdiction].
C.
Whether or not public respondent, in ordering Judge Ibrahim to
dismiss the election protest case, acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or
in (sic) excess of jurisdiction.
D.
Whether or not public respondent, in not uniformly observing its
process in the service of its resolution and/or order, had denied to
petitioner the equal protection of the law.
E.
Whether or not the petition for certiorari and prohibition is
dismissible in view of the pendency of another action and
whereby the result of the first action is determinative of the
second action in any event and regardless of which party is
successful.
F.
Whether or not there is forum shopping.
G.
Whether or not the public respondent, acting not in aid of its
appellate jurisdiction, has authority to issue TRO and/or
Preliminary Injunction as ancillary remedy of the original action for
certiorari and prohibition.
H.
Whether or not public respondent has jurisdiction to divest the
Court of Judge Ibrahim of its jurisdiction on the election protest
case.31
The Court, on April 29, 2008, initially dismissed the said petition.32 Fermin
subsequently filed in succession his motions for reconsideration and for the
consolidation of G.R. Nos. 179695 & 182369. Considering that the two
petitions were interrelated, the Court resolved to consolidate them.
The Issues
The primordial issues in these consolidated cases may be encapsulated, as
follows:
(1) Whether or not the Dilangalen petition is one under Section 68 or Section
78 of the OEC;
(2) Whether or not it was filed on time;
(3) Whether or not the COMELEC gravely abuse its discretion when it
declared petitioner as not a resident of the locality for at least one year prior
to the May 14, 2007 elections; and
(4) Whether or not the COMELEC gravely abuse its discretion when it
ordered the dismissal of Election Case No. 07-022 on the ground that Fermin
had no legal standing to file the protest.
Our Ruling
I.
Pivotal in the ascertainment of the timeliness of the Dilangalen petition is its
proper characterization.
As aforesaid, petitioner, on the one hand, argues that the Dilangalen petition
was filed pursuant to Section 78 of the OEC; while private respondent
counters that the same is based on Section 68 of the Code.
After studying the said petition in detail, the Court finds that the same is in
the nature of a petition to deny due course to or cancel a CoC under Section
7833 of the OEC. The petition contains the essential allegations of a "Section
78" petition, namely: (1) the candidate made a representation in his
certificate; (2) the representation pertains to a material matter which would
affect the substantive rights of the candidate (the right to run for the election
for which he filed his certificate); and (3) the candidate made the false
representation with the intention to deceive the electorate as to his
qualification for public office or deliberately attempted to mislead, misinform,
or hide a fact which would otherwise render him ineligible.34 It likewise
appropriately raises a question on a candidate’s eligibility for public office, in
this case, his possession of the one-year residency requirement under the
law.
Lest it be misunderstood, the denial of due course to or the cancellation of
the CoC is not based on the lack of qualifications but on a finding that the
candidate made a material representation that is false, which may relate to
the qualifications required of the public office he/she is running for. It is noted
that the candidate states in his/her CoC that he/she is eligible for the office
he/she seeks. Section 78 of the OEC, therefore, is to be read in relation
to the constitutional35 and statutory36 provisions on qualifications or
eligibility for public office. If the candidate subsequently states a
material representation in the CoC that is false, the COMELEC,
following the law, is empowered to deny due course to or cancel such
24
certificate.37 Indeed, the Court has already likened a proceeding under
Section 78 to a quo warranto proceeding under Section 25338 of the OEC
since they both deal with the eligibility or qualification of a candidate,39 with
the distinction mainly in the fact that a "Section 78" petition is filed before
proclamation, while a petition for quo warranto is filed after proclamation of
the wining candidate.
At this point, we must stress that a "Section 78" petition ought not to be
interchanged or confused with a "Section 68" petition. They are different
remedies, based on different grounds, and resulting in different
eventualities. Private respondent’s insistence, therefore, that the petition it
filed before the COMELEC in SPA No. 07-372 is in the nature of a
disqualification case under Section 68, as it is in fact captioned a "Petition for
Disqualification," does not persuade the Court.
The ground raised in the Dilangalen petition is that Fermin allegedly lacked
one of the qualifications to be elected as mayor of Northern Kabuntalan, i.e.,
he had not established residence in the said locality for at least one year
immediately preceding the election. Failure to meet the one-year residency
requirement for the public office is not a ground for the "disqualification" of a
candidate under Section 68. The provision only refers to the commission of
prohibited acts and the possession of a permanent resident status in a
foreign country as grounds for disqualification, thus:
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, 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 a permanent resident or
immigrant of a foreign country in accordance with the residence
requirement provided for in the election laws.
Likewise, the other provisions of law referring to "disqualification" do not
include the lack of the one-year residency qualification as a ground therefor,
thus:
Sections 12 of the OEC
SEC. 12. Disqualifications.–Any person who has been
declared by competent authority insane or
incompetent, or has been sentenced by final judgment
for subversion, insurrection, rebellion, or for any
offense for which he has been sentenced to a penalty
of more than eighteen months or for a crime involving
moral turpitude, shall be disqualified to be a candidate
and to hold any office, unless he has been given
plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided
shall be deemed removed upon the declaration by
competent authority that said insanity or incompetence
had been removed or after the expiration of a period of
five years from his service or sentence, unless within
the same period he again becomes disqualified.
Section 40 of the Local Government Code (LGC)40
SECTION 40. Disqualifications–The following persons
are disqualified from running for any elective local
position:
(a) Those sentence by final judgment for an
offense involving moral turpitude or for an
offense punishable by one (1) year or more
of imprisonment, within two (2) years after
serving sentence;
(b) Those removed from office as a result of
an administrative case;
(c) Those convicted by final judgment for
violating the oath of allegiance to the
Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or
nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country
or those who have acquired the right to
reside abroad and continue to avail of the
same right after the effectivity of this Code;
and
(g) The insane or feeble-minded.
Considering that the Dilangalen petition does not state any of these grounds
for disqualification, it cannot be categorized as a "Section 68" petition.
To emphasize, a petition for disqualification, on the one hand, can be
premised on Section 12 or 68 of the OEC, or Section 40 of the LGC. On the
other hand, a petition to deny due course to or cancel a CoC can only be
grounded on a statement of a material representation in the said certificate
that is false. The petitions also have different effects. While a person who is
disqualified under Section 68 is merely prohibited to continue as a candidate,
the person whose certificate is cancelled or denied due course under Section
78 is not treated as a candidate at all, as if he/she never filed a CoC. Thus, in
Miranda v. Abaya,41 this Court made the distinction that a candidate who is
disqualified under Section 68 can validly be substituted under Section 77 of
the OEC because he/she remains a candidate until disqualified; but a person
whose CoC has been denied due course or cancelled under Section 78
cannot be substituted because he/she is never considered a candidate.42
In support of his claim that he actually filed a "petition for disqualification" and
not a "petition to deny due course to or cancel a CoC," Dilangalen takes
refuge in Rule 25 of the COMELEC Rules of Procedure,43 specifically
Section 144 thereof, to the extent that it states, "[a]ny candidate who does not
possess all the qualifications of a candidate as provided for by the
Constitution or by existing law x x x may be disqualified from continuing as a
candidate," and COMELEC Resolution No. 780045 (Rules Delegating to
COMELEC Field Officials the Authority to Hear and Receive Evidence in
Disqualification Cases Filed in Connection with the May 14, 2007 National
and Local Elections), which states in Section 5(C)(1) and (3)(a)(4) that:
25
 Sec. 5. Procedure in filing petitions.–For purposes of the
preceding section, the following procedure shall be observed:
xxxx
C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO
SEC. 68 OF THE OMNIBUS ELECTION CODE AND PETITION
TO DISQUALIFY FOR LACK OF QUALIFICATIONS OR
POSSESSING SOME GROUNDS FOR DISQUALIFICATION
1) A verified petition to disqualify a candidate pursuant to Sec. 68
of the OEC and the verified petition to disqualify a candidate for
lack of qualifications or possessing some grounds for
disqualification may be filed on any day after the last day for filing
of certificates of candidacy but not later than the date of
proclamation.
xxxx
3) The petition to disqualify a candidate for lack of qualification or
possessing some grounds for disqualification, shall be filed in ten
(10) legible copies with the concerned office mentioned in Sec. 3
hereof, personally or through a duly authorized representative by
any person of voting age, or duly registered political party,
organization or coalition of political parties on the grounds that
any candidate does not possess all the qualifications of a
candidate as provided for by the constitution or by existing law, or
who possesses some grounds for disqualification,
3.a. Disqualification under existing election laws:
1. For not being a citizen of the Philippines;
2. For being a permanent resident of or an immigrant
to a foreign country;
3. For lack of the required age;
4. For lack of residence;
5. For not being a registered voter;
6. For not being able to read and write;
7. In case of a party-list nominee, for not being a bona
fide member of the party or organization which he
seeks to represent for at least ninety (90) days
immediately preceding the day of the election.
[Emphasis supplied.]
We disagree. A COMELEC rule or resolution cannot supplant or vary the
legislative enactments that distinguish the grounds for disqualification from
those of ineligibility, and the appropriate proceedings to raise the said
grounds. In other words, Rule 25 and COMELEC Resolution No. 7800
cannot supersede the dissimilar requirements of the law for the filing of a
petition for disqualification under Section 68, and a petition for the denial of
due course to or cancellation of CoC under Section 78 of the OEC.46 As aptly
observed by the eminent constitutionalist, Supreme Court Justice Vicente V.
Mendoza, in his separate opinion in Romualdez-Marcos v. Commission on
Elections:47
Apparently realizing the lack of an authorized proceeding for
declaring the ineligibility of candidates, the COMELEC amended
its rules on February 15, 1993 so as to provide in Rule 25, §1 the
following:
Grounds for disqualification. – Any candidate who
does not possess all the qualifications of a candidate
as provided for by the Constitution or by existing law or
who commits any act declared by law to be grounds
for disqualification may be disqualified from continuing
as a candidate.
The lack of provision for declaring the ineligibility of
candidates, however, cannot be supplied by a mere rule.
Such an act is equivalent to the creation of a cause of action
which is a substantive matter which the COMELEC, in the
exercise of its rule-making power under Art. IX, A, §6 of the
Constitution, cannot do. It is noteworthy that the Constitution
withholds from the COMELEC even the power to decide cases
involving the right to vote, which essentially involves an inquiry
into qualifications based on age, residence and citizenship of
voters. [Art. IX, C, §2(3)]
The assimilation in Rule 25 of the COMELEC rules of
grounds for ineligibility into grounds for disqualification is
contrary to the evident intention of the law. For not only in
their grounds but also in their consequences are
proceedings for "disqualification" different from those for a
declaration of "ineligibility." "Disqualification" proceedings,
as already stated, are based on grounds specified in §12 and
§68 of the Omnibus Election Code and in §40 of the Local
Government Code and are for the purpose of barring an
individual from becoming a candidate or from continuing as
a candidate for public office. In a word, their purpose is to
eliminate a candidate from the race either from the start or
during its progress. "Ineligibility," on the other hand, refers
to the lack of the qualifications prescribed in the Constitution
or the statutes for holding public office and the purpose of
the proceedings for declaration of ineligibility is to remove
the incumbent from office.
Consequently, that an individual possesses the
qualifications for a public office does not imply that he is not
disqualified from becoming a candidate or continuing as a
candidate for a public office and vice-versa. We have this sort
of dichotomy in our Naturalization Law. (C.A. No. 473) That an
alien has the qualifications prescribed in §2 of the law does not
imply that he does not suffer from any of [the] disqualifications
provided in §4.
Indeed, provisions for disqualifications on the ground that the
candidate is guilty of prohibited election practices or offenses, like
other pre-proclamation remedies, are aimed at the detestable
practice of "grabbing the proclamation and prolonging the election
protest," through the use of "manufactured" election returns or
resort to other trickery for the purpose of altering the results of the
election. This rationale does not apply to cases for determining a
candidate’s qualifications for office before the election. To the
contrary, it is the candidate against whom a proceeding for
disqualification is brought who could be prejudiced because he
could be prevented from assuming office even though in the end
he prevails.48
26
Furthermore, the procedure laid down in the said Rule 25 of the COMELEC
Rules of Procedure cannot be used in "Section 78" proceedings, precisely
because a different rule, Rule 23,49 specifically governs petitions to deny due
course to or cancel CoCs.
II.
Having thus determined that the Dilangalen petition is one under Section 78
of the OEC, the Court now declares that the same has to comply with the 25-
day statutory period for its filing. Aznar v. Commission on Elections50 and
Loong v. Commission on Elections51 give ascendancy to the express
mandate of the law that "the petition may be filed at any time not later than
twenty-five days from the time of the filing of the certificate of
candidacy." Construed in relation to reglementary periods and the principles
of prescription, the dismissal of "Section 78" petitions filed beyond the 25-day
period must come as a matter of course.
We find it necessary to point out that Sections 5 and 752 of Republic Act
(R.A.) No. 6646,53 contrary to the erroneous arguments of both parties, did
not in any way amend the period for filing "Section 78" petitions. While
Section 7 of the said law makes reference to Section 5 on the procedure in
the conduct of cases for the denial of due course to the CoCs of nuisance
candidates54 (retired Chief Justice Hilario G. Davide, Jr., in his dissenting
opinion in Aquino v. Commission on Elections55 explains that "the ‘procedure
hereinabove provided’ mentioned in Section 7 cannot be construed to refer
to Section 6 which does not provide for a procedure but for the effects of
disqualification cases, [but] can only refer to the procedure provided in
Section 5 of the said Act on nuisance candidates x x x."), the same cannot
be taken to mean that the 25-day period for filing "Section 78" petitions under
the OEC is changed to 5 days counted from the last day for the filing of
CoCs. The clear language of Section 78 certainly cannot be amended or
modified by the mere reference in a subsequent statute to the use of a
procedure specifically intended for another type of action. Cardinal is the rule
in statutory construction that repeals by implication are disfavored and will
not be so declared by the Court unless the intent of the legislators is
manifest.56 In addition, it is noteworthy that Loong,57 which upheld the 25-day
period for filing "Section 78" petitions, was decided long after the enactment
of R.A. 6646. In this regard, we therefore find as contrary to the unequivocal
mandate of the law, Rule 23, Section 2 of the COMELEC Rules of Procedure
which states:
Sec. 2. Period to File Petition.–The petition must be filed within
five (5) days following the last day for the filing of certificates of
candidacy.
As the law stands, the petition to deny due course to or cancel a CoC "may
be filed at any time not later than twenty-five days from the time of the
filing of the certificate of candidacy."
Accordingly, it is necessary to determine when Fermin filed his CoC in order
to ascertain whether the Dilangalen petition filed on April 20, 2007 was well
within the restrictive 25-day period. If it was not, then the COMELEC should
have, as discussed above, dismissed the petition outright.
The record in these cases reveals that Fermin filed his CoC for mayor of
Northern Kabuntalan for the May 14, 2007 National and Local Elections on
March 29, 2007.58 It is clear therefore that the petition to deny due course to
or cancel Fermin’s CoC was filed by Dilangalen well within the 25-day
reglementary period. The COMELEC therefore did not abuse its discretion,
much more gravely, when it did not dismiss the petition outright.
III.
However, the Court finds the COMELEC to have gravely abused its
discretion when it precipitately declared that Fermin was not a resident of
Northern Kabuntalan for at least one year prior to the said elections.
In its assailed June 29, 2007 Resolution, 59 the COMELEC ruled as follows:
In the petitioner’s memorandum, an authenticated copy of the
respondent’s oath of office subscribed and sworn to before Datu
Andal Ampatuan, Governor Maguindanao Province, it was stated
that respondent’s residence is at Barangay Payan, Maguindanao
(sic) as of April 27, 2006. Clearly the respondent is not a resident
of Northern Kabuntalan earlier than 15 May 2006 as his very own
oath of office would reveal that he is really a resident of Barangay
Payan, Kabuntalan less than 365 days immediately preceding the
May 14, 2007 elections. He is a resident of a barangay not a
component of the local government unit in which he seeks to be
elected as of May 15, 2006 and is therefore not qualified or
eligible to seek election as mayor in the said municipality.60
Obviously, the COMELEC relied on a single piece of evidence to support its
finding that petitioner was not a resident of Barangay Indatuan, Northern
Kabuntalan, i.e., the oath of office subscribed and sworn to before Governor
Datu Andal Ampatuan, in which petitioner indicated that he was a resident of
Barangay Payan, Kabuntalan as of April 27, 2006. However, this single piece
of evidence does not necessarily support a finding that petitioner was not a
resident of Northern Kabuntalan as of May 14, 2006, or one year prior to the
May 14, 2007 elections.61 Petitioner merely admitted that he was a resident
of another locality as of April 27, 2006, which was more than a year before
the elections. It is not inconsistent with his subsequent claim that he
complied with the residency requirement for the elective office, as petitioner
could have transferred to Barangay Indatuan after April 27, 2006, on or
before May 14, 2006.
Neither does this evidence support the allegation that petitioner failed to
comply with the residency requirement for the transfer of his voting record
from Barangay Payan to Barangay Indatuan. Given that a voter is required to
reside in the place wherein he proposes to vote only for six months
immediately preceding the election,62 petitioner’s application for transfer on
December 13, 2006 does not contradict his earlier admission that he was a
resident of Barangay Payan as of April 27, 2006. Be that as it may, the issue
involved in the Dilangalen petition is whether or not petitioner made a
material representation that is false in his CoC, and not in his application for
the transfer of his registration and voting record.
The foregoing considered, the Court finds that the Dilangalen petition does
not make out a prima facie case. Its dismissal is therefore warranted. We
emphasize that the mere filing of a petition and the convenient allegation
therein that a candidate does not reside in the locality where he seeks to be
elected is insufficient to effect the cancellation of his CoC. Convincing
evidence must substantiate every allegation.63 A litigating party is said to
have a prima facie case when the evidence in his favor is sufficiently strong
for his opponent to be called on to answer it. A prima facie case, then, is one
which is established by sufficient evidence and can be overthrown only by
rebutting evidence adduced on the other side.64
IV.
In light of the foregoing disquisition, the COMELEC’s order for the dismissal
of Fermin’s election protest is tainted with grave abuse of discretion,
considering that the same is premised on Fermin’s alleged lack of legal
standing to file the protest, which, in turn, is based on Fermin’s alleged lack
of residency qualification. With our disposition herein that the Dilangalen
petition should be dismissed, a disquisition that Fermin has no standing as a
candidate would be reckless and improper.
27
WHEREFORE, premises considered, the petitions for certiorari are
GRANTED. The assailed issuances of the COMELEC are ANNULLED and
SET ASIDE.
SO ORDERED.
G.R. No. 164858 November 16, 2006
HENRY P. LANOT, substituted by MARIO S. RAYMUNDO, Petitioner,
CHARMIE Q. BENAVIDES, Petitioner-Intervenor,
vs.
COMMISSION ON ELECTIONS and VICENTE P. EUSEBIO, Respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for certiorari1 assailing the Resolution dated 20 August
2004,2 the Resolution dated 21 May 20043 of the Commission on Elections
(COMELEC) En Banc, and the Advisory dated 10 May 20044 of COMELEC
Chairman Benjamin S. Abalos ("Chairman Abalos") in SPA No. 04-288.
The 10 May 2004 Advisory of Chairman Abalos enjoined Acting National
Capital Region (NCR) Regional Director Esmeralda Amora-Ladra ("Director
Ladra") from implementing the COMELEC First Division’s 5 May 2004
Resolution.5 The 5 May 2004 Resolution ordered (1) the disqualification of
respondent Vicente P. Eusebio ("Eusebio") as a candidate for Pasig City
Mayor in the 10 May 2004 elections, (2) the deletion of Eusebio’s name from
the certified list of candidates for Pasig City Mayor, (3) the consideration of
votes for Eusebio as stray, (4) the non-inclusion of votes for Eusebio in the
canvass, and (5) the filing of the necessary information against Eusebio by
the COMELEC Law Department.
The 21 May 2004 Order of the COMELEC En Banc set aside the 11 May
2004 Order of the COMELEC En Banc6 and directed the Pasig City Board of
Canvassers to proclaim the winning candidate for Pasig City Mayor without
prejudice to the final outcome of Eusebio’s disqualification case. The 11 May
2004 Order suspended the proclamation of Eusebio in the event that he
would receive the winning number of votes.
Finally, the 20 August 2004 COMELEC En Banc resolution set aside the 5
May 2004 Resolution of the COMELEC First Division7 and nullified the
corresponding order. The COMELEC En Banc referred the case to the
COMELEC Law Department to determine whether Eusebio actually
committed the acts subject of the petition for disqualification.
The Facts
On 19 March 2004, Henry P. Lanot ("Lanot"), Vener Obispo ("Obispo"),
Roberto Peralta ("Peralta"), Reynaldo dela Paz ("dela Paz"), Edilberto Yamat
("Yamat"), and Ram Alan Cruz ("Cruz") (collectively, "petitioners"), filed a
petition for disqualification8 under Sections 68 and 80 of the Omnibus
Election Code against Eusebio before the COMELEC. Lanot, Obispo, and
Eusebio were candidates for Pasig City Mayor, while Peralta, dela Paz,
Yamat, and Cruz were candidates for Pasig City Councilor in the 10 May
2004 elections. The case was docketed as SPA (NCR-RED) No. C04-008.
Petitioners alleged that Eusebio engaged in an election campaign in various
forms on various occasions outside of the designated campaign period, such
as (1) addressing a large group of people during a medical mission
sponsored by the Pasig City government; (2) uttering defamatory statements
against Lanot; (3) causing the publication of a press release predicting his
victory; (4) installing billboards, streamers, posters, and stickers printed with
his surname across Pasig City; and (5) distributing shoes to schoolchildren in
Pasig public schools to induce their parents to vote for him.
In his Answer filed on 29 March 2004,9 Eusebio denied petitioners’
allegations and branded the petition as a harassment case. Eusebio further
stated that petitioners’ evidence are merely fabricated.
Director Ladra conducted hearings on 2, 5 and 7 April 2004 where she
received the parties’ documentary and testimonial evidence. Petitioners
submitted their memorandum10 on 15 April 2004, while Eusebio submitted
his memorandum11 on 16 April 2004.
The Ruling of the Regional Director
On 4 May 2004, Director Ladra submitted her findings and recommendations
to the COMELEC. Director Ladra recommended that:
WHEREFORE, in view of the foregoing, undersigned respectfully
recommends that the instant petition be GRANTED. Consequently, pursuant
to Section 68 (a) and (e) of the Omnibus Election Code, respondent
VICENTE P. EUSEBIO shall be DISQUALIFIED to run for the position of
Mayor, Pasig City for violation of Section 80 of the Omnibus Election Code.
Further, undersigned respectfully recommends that the instant case be
referred to the Law Department for it to conduct a preliminary investigation
on the possible violation by the respondent of Sec. 261 (a) of the Omnibus
Election Code.12
The Ruling of the COMELEC
In a resolution dated 5 May 2004, or five days before the elections, the
COMELEC First Division adopted the findings and recommendation of
Director Ladra. The dispositive portion of the resolution read:
WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION)
RESOLVED as it hereby RESOLVES to ORDER:
1. the disqualification of respondent VICENTE P. EUSEBIO from
being a candidate for mayor of Pasig City in the May 10, 2004
elections;
2. the Election Officers of District I and District II of Pasig City to
DELETE and CANCEL the name of respondent VICENTE P.
EUSEBIO from the certified list of candidates for the City Offices
of Pasig City for the May 10, 2004 elections;
3. the Board of Election Inspectors of all the precincts comprising
the City of Pasig not to count the votes cast for respondent
VICENTE EUSEBIO, the same being cast for a disqualified
candidate and therefore must be considered stray;
4. the City Board of Canvassers of Pasig City not to canvass the
votes erroneously cast for the disqualified candidate respondent
VICENTE P. EUSEBIO, in the event that such votes were
recorded in the election returns[;]
5. the Regional Director of NCR, and the Election Officers of
Pasig City to immediately implement the foregoing directives[;]
28
 6. the Law Department through its Director IV, Atty. ALIODEN
DALAIG to file the necessary information against Vicente P.
Eusebio before the appropriate court.
This Resolution is immediately executory unless restrained by the
Commission En Banc.13 (Emphasis in the original)
In a Very Urgent Advisory14 dated 8 May 2004, or two days before the
elections, Chairman Abalos informed the following election officers of the
resolution of the COMELEC First Division: Director Ladra; Atty. Romeo
Alcazar, Acting Election Officer of the First District of Pasig City; Ms. Marina
Gerona, Acting Election Officer of the Second District of Pasig City; and all
Chairmen and Members of the Board of Election Inspectors and City Board
of Canvassers of Pasig City (collectively, "pertinent election officers").
Director Ladra repeated the dispositive portion of the 5 May 2004 resolution
in a Memorandum15 which she issued the next day. On 9 May 2004, Eusebio
filed a motion for reconsideration16 of the resolution of the COMELEC First
Division.
On election day itself, Chairman Abalos issued the first of the three
questioned COMELEC issuances. In a memorandum, Chairman Abalos
enjoined Director Ladra from implementing the COMELEC First Division’s 5
May 2004 resolution due to Eusebio’s motion for reconsideration. The 10
May 2004 memorandum stated:
Considering the pendency of a Motion for Reconsideration timely filed by
Respondent, Vicente P. Eusebio[,] with the Commission En Banc, you are
hereby ENJOINED from implementing the Resolution promulgated on May 5,
2004, in the x x x case until further orders from the Commission En Banc.17
(Emphasis in the original)
On 11 May 2004, the day after the elections, petitioners Lanot, Peralta, dela
Paz, Yamat, and Cruz filed before the COMELEC En Banc a motion to
suspend the counting and canvassing of votes and the proclamation of the
winning mayoral candidate for Pasig City.18 Without waiting for Eusebio’s
opposition, the COMELEC En Banc partially denied the motion on the same
day. The dispositive portion of the Order declared:
WHEREFORE, in view of the foregoing, the Commission En Banc DENIES
the motion for suspension of the counting of votes and the canvassing of
votes. However, in order not to render moot and academic the issues for final
disposition by the En Banc and considering that on the basis of the
Resolution of the FIRST DIVISION, the evidence of respondent’s guilt is
strong, the Commission En Banc hereby ORDERS to SUSPEND, UNTIL
FURTHER ORDERS OF THE COMMISSION, the proclamation of
respondent in the event he receives the winning number of votes.19
(Emphasis in the original)
On 12 May 2004, Eusebio filed his opposition to petitioners’ motion.
On 21 May 2004, the COMELEC En Banc issued the second questioned
issuance. The order quoted from the motion for advisory opinion of the Pasig
City Board of Canvassers which reported that 98% of the total returns of
Pasig City had been canvassed and that there were only 32 uncanvassed
returns involving 6,225 registered voters. Eusebio had 119,693 votes while
Lanot had 108,941 votes. Thus, the remaining returns would not affect
Eusebio’s lead over Lanot. The COMELEC En Banc stated its "established
policy" to "expedite the canvass of votes and proclamation of winning
candidates to ease the post election tension and without prejudice to [its]
action in [the] x x x case"20 and resolved to declare Eusebio as Pasig City
Mayor. The dispositive portion of the 21 May 2004 Order read:
WHEREFORE, this Commission RESOLVED, as it hereby RESOLVES, to
LIFT AND SET ASIDE the order suspending the proclamation of the
respondent.
FURTHER, the City Board of Canvassers is DIRECTED to complete [the]
canvass and immediately proceed with the proclamation of the winning
candidate for Mayor of Pasig City without prejudice to the final outcome
of the case entitled, "Henry P. Lanot, et al., vs. Vicente Eusebio[, "]
docketed as SPA No. 04-288.21 (Emphasis in the original)
Eusebio was proclaimed as Pasig City Mayor on 23 May 2004 based on the
21 May 2004 Order.1âwphi1 On 25 June and 6 July 2004, the COMELEC En
Banc conducted hearings on Eusebio’s motion for reconsideration of the 5
May 2004 COMELEC First Division resolution. On 6 August 2004, Lanot filed
a motion to annul Eusebio’s proclamation and to order his proclamation
instead.22
On 20 August 2004, the COMELEC En Banc promulgated the third
questioned issuance. The COMELEC En Banc invoked Section 1 of
COMELEC Resolution No. 2050 ("Resolution 2050") and this Court’s rulings
in Albaña v. COMELEC,23 Lonzanida v. COMELEC,24 and Sunga v.
COMELEC25 in justifying the annulment of the order to disqualify Eusebio
and the referral of the case to the Law Department for preliminary
investigation. The dispositive portion stated:
WHEREFORE, PREMISES CONSIDERED, the resolution promulgated by
the First Division dated 8 May 2004 on the above-captioned case, affirming
the recommendation of the Regional Director (NCR) to disqualify herein
respondent, is hereby SET ASIDE, and the corresponding ORDER issued
thereunder, ANNULLED. Accordingly, this case is referred to the Law
Department for investigation to finally determine [whether] the acts
complained of were in fact committed by respondent Eusebio.26 (Emphasis in
the original)
Hence, this petition.
The Issues
Lanot alleged that as the COMELEC’s issuances are not supported by
substantial evidence and are contrary to law and settled jurisprudence, the
COMELEC committed grave abuse of discretion amounting to lack of or
excess of jurisdiction. Lanot raised the following issues before this Court:
A. WHETHER PUBLIC RESPONDENT COMELEC, IN ISSUING [ITS]
RESOLUTION DATED AUGUST 20, 2004, ACTED WITH GRAVE ABUSE
OF DISCRETION OR LACK OR IN EXCESS OF JURISDICTION
1. by setting aside the Resolution of Disqualification promulgated
by its First Division on May 5, 2004 affirming the recommendation
of the Regional Election Director (NCR) to disqualify Respondent,
and by annulling the order issued thereunder,
a) erroneously, whimsically and maliciously ADOPTED
and APPLIED Sections 1 and 2 of Rule 2050 to this
case,
b) capriciously VIOLATED COMELEC Resolution 6452
and Sec. 6, R.A. 6646,
c) erroneously, whimsically and capriciously
ARROGATED unto themselves a quasi-judicial
legislation, and
29
 d) erroneously and maliciously MISAPPLIED the
Albaña and Sunga cases to the case at bar;
2. by referring the case to the Law Department for investigation, it
illegally, erroneously and maliciously DISMISSED the electoral
aspect of the case and whimsically VIOLATED Resolution 6452
and Section 6 of RA 6646;
3. by disregarding the Order of disqualification, it erroneously and
whimsically IGNORED and DISREGARDED the inchoate right of
petitioner as the winning party.
B. WHETHER PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF
DISCRETION OR IN EXCESS OR LACK OF JURISDICTION IN ISSUING
ITS RESOLUTION DATED MAY 21, 2004
1. by lifting and setting aside the Order of suspension of
proclamation by winning candidate issued on May 11, 2004, it
erroneously and intentionally and whimsically DISREGARDED
the strong evidence of guilt of Respondent to warrant the
suspension of his proclamation and erroneously and capriciously
VIOLATED Resolution of May 11, 2004.
C. WHETHER CHAIRMAN BENJAMIN ABALOS OF THE COMELEC
ACTED WITH GRAVE ABUSE OF POWER, AUTHORITY OR DISCRETION
OR LACK OR IN EXCESS OF JURISDICTION
1. by unilaterally enjoining the implementation of the Order of
Respondent’s disqualification despite the condition therein that it
could only be restrained by the Commission En Banc, and
whether or not he illegally, erroneously and blatantly whimsically
grabbed the exclusive adjudicatory power of the Commission En
Banc.
D. WHETHER RESPONDENT COMELEC COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
IN CAPRICIOUSLY DISREGARDING THE RESOLUTION OF MAY 5, 2004
AS ALREADY FINAL AND EXECUTED AND IN FAILING TO ORDER THE
PROCLAMATION OF PETITIONER.
E. a) WHETHER THERE ARE PREPONDERANT EVIDENCE TO
WARRANT RESPONDENT EUSEBIO’S DISQUALIFICATION.
b) WHETHER RESPONDENT EUSEBIO SHOULD BE DEEMED
DISQUALIFIED WITH FOUR (4) AFFIRMATIVE VOTES OF
COMMISSIONERS, TWO (2) VOTES FROM COMMISSIONERS
BORRA AND GARCILLANO WHO VOTED FOR THE
DISQUALIFICATION IN THE MAY 5, 2004
RESOLUTION (ANNEX "B") AND TWO (2) VOTES FROM
COMMISSIONERS TUAZON, JR. AND SADAIN WHO VOTED
TO DISQUALIFY HIM IN THEIR DISSENTING OPINION (ANNEX
"A-1") SHOULD REFERRAL OF THE CASE TO THE LAW
DEPARTMENT BY RESPONDENT COMELEC BE DECLARED A
PATENT NULLITY.
F. IN CASE OF DISQUALIFICATION OF RESPONDENT EUSEBIO,
WHETHER PETITIONER LANOT CAN BE PROCLAIMED AND ALLOWED
TO SIT AS MAYOR-ELECT, AND WHETHER THE DOCTRINES IN
TOPACIO, CODILLA, JR., LABO AND OTHERS APPLY IN THIS CASE.27
The Ruling of the Court
The petition has no merit.
Parties to the Present Petition
On 13 April 2005, during the pendency of this case, an unidentified person
shot and killed Lanot in Pasig City. It seemed that, like an endangered
specie, the disqualification case would be extinguished by Lanot’s death.
However, on 27 April 2005, Lanot’s counsel manifested, over Eusebio’s
objections, that Mario S. Raymundo ("Raymundo"), a registered voter and
former Mayor of Pasig City, is Lanot’s substitute in this case. Also, on 25
August 2005, Charmie Q. Benavides ("Benavides"), a Pasig City mayoral
candidate and the third placer in the 10 May 2004 elections, filed a petition-
in-intervention. Benavides asked whether she could be proclaimed Pasig
City Mayor because she is the surviving qualified candidate with the highest
number of votes among the remaining candidates.
The law and the COMELEC rules have clear pronouncements that the
electoral aspect of a disqualification case is not rendered inutile by the death
of petitioner, provided that there is a proper substitution or intervention of
parties while there is a pending case. On Raymundo’s substitution, any
citizen of voting age is competent to continue the action in Lanot’s stead.28
On Benavides’ intervention, Section 6 of Republic Act No. 6646, or the
Electoral Reforms Law of 1987 ("Electoral Reforms Law of 1987"), allows
intervention in proceedings for disqualification even after elections if no final
judgment has been rendered. Although Eusebio was already proclaimed as
Pasig City Mayor, Benavides could still intervene, as there was still no final
judgment in the proceedings for disqualification.29
The case for disqualification exists, and survives, the election and
proclamation of the winning candidate because an outright dismissal will
unduly reward the challenged candidate and may even encourage him to
employ delaying tactics to impede the resolution of the disqualification case
until after he has been proclaimed.30 The exception to the rule of retention of
jurisdiction after proclamation applies when the challenged candidate
becomes a member of the House of Representatives or of the Senate, where
the appropriate electoral tribunal would have jurisdiction. There is no law or
jurisprudence which says that intervention or substitution may only be done
prior to the proclamation of the winning candidate. A substitution is not
barred by prescription because the action was filed on time by the person
who died and who is being substituted. The same rationale applies to a
petition-in-intervention.
COMELEC’s Grave Abuse of Discretion
Propriety of Including Eusebio’s Name in the Pasig City Mayoral Candidates
and of the Counting of Votes and Canvassing of Election Returns
In its 5 May 2004 resolution, the COMELEC First Division ordered the
pertinent election officials to delete and cancel Eusebio’s name from the
certified list of Pasig City mayoral candidates, not to count votes cast in
Eusebio’s favor, and not to include votes cast in Eusebio’s favor in the
canvass of election returns. Eusebio filed a motion for reconsideration of the
resolution on 9 May 2004. Hence, COMELEC Chairman Abalos issued a
memorandum on 10 May 2004 which enjoined the pertinent election officials
from implementing the 5 May 2004 resolution. In a Resolution dated 11 May
2004, the COMELEC En Banc subsequently ratified and adopted Chairman
Abalos’ 10 May 2004 memorandum when it denied Lanot’s motion to
suspend the counting of votes and canvassing of election returns.
Lanot claims that Chairman Abalos whimsically grabbed the adjudicatory
power of the COMELEC En Banc when he issued the 10 May 2004
memorandum. Lanot asserts that the last sentence in the dispositive portion
of the COMELEC First Division’s 5 May 2004 Resolution, "[t]his Resolution is
30
immediately executory unless restrained by the Commission En Banc,"
should have prevented Chairman Abalos from acting on his own.
Lanot’s claim has no basis, especially in light of the 11 May 2004 Resolution
of the COMELEC En Banc. The COMELEC En Banc’s explanation is apt:
Suspension of these proceedings is tantamount to an implementation of the
Resolution of the FIRST DIVISION which had not yet become final and
executory by reason of the timely filing of a Motion for Reconsideration
thereof. A disposition that has not yet attained finality cannot be implemented
even through indirect means.31
Moreover, Chairman Abalos’ 10 May 2004 memorandum is merely an
advisory required by the circumstances at the time. Eusebio filed a motion for
reconsideration on 9 May 2004, and there was not enough time to resolve
the motion for reconsideration before the elections. Therefore, Eusebio was
not yet disqualified by final judgment at the time of the elections. Section 6 of
the Electoral Reforms Law of 1987 provides that "[a] 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." Under Section 13 of the
COMELEC Rules of Procedure, a decision or resolution of a Division in a
special action becomes final and executory after the lapse of fifteen days
following its promulgation while a decision or resolution of the COMELEC En
Banc becomes final and executory after five days from its promulgation
unless restrained by this Court.
Propriety of the Lifting of the Suspension of Eusebio’s Proclamation
In the same 11 May 2004 Resolution, the COMELEC En Banc ordered the
suspension of Eusebio’s proclamation in the event he would receive the
winning number of votes. Ten days later, the COMELEC En Banc set aside
the 11 May 2004 order and directed the Pasig City Board of Canvassers to
proclaim Eusebio as the winning candidate for Pasig City Mayor. The
COMELEC relied on Resolutions 7128 and 712932 to justify the counting of
Eusebio’s votes and quoted from the Resolutions as follows:
Resolution No. 7128 -
xxxx
NOW THEREFORE, the Commission RESOLVED, as it hereby RESOLVES,
to adopt certain policies and to direct all Board of Canvassers, as follows:
1. to speed up its canvass and proclamation of all winning candidates except
under the following circumstances:
a. issuance of an order or resolution suspending the
proclamation;
b. valid appeal[s] from the rulings of the board in cases where
appeal is allowed and the subject appeal will affect the results of
the elections;
x x x x.
Resolution No. 7129
xxxx
NOW THEREFORE, the Commission on Elections, by virtue of the powers
vested in it by the Constitution, the Omnibus Election Code and other
elections laws, has RESOLVED, as it hereby RESOLVES, to refrain from
granting motions and petitions seeking to postpone proclamations by the
Board of Canvassers and other pleadings with similar purpose unless they
are grounded on compelling reasons, supported by convincing evidence
and/or violative of the canvassing procedure outlined in Resolution No. 6669.
We agree with Eusebio that the COMELEC En Banc did not commit grave
abuse of discretion in issuing its 21 May 2004 order. The COMELEC has the
discretion to suspend the proclamation of the winning candidate during the
pendency of a disqualification case when evidence of his guilt is strong.33
However, an order suspending the proclamation of a winning candidate
against whom a disqualification case is filed is merely provisional in nature
and can be lifted when warranted by the evidence.34
Propriety of the Dismissal of the
Disqualification Case and of the
Referral to the COMELEC
Law Department
Lanot filed the petition for disqualification on 19 March 2004, a little less than
two months before the 10 May 2004 elections. Director Ladra conducted
hearings on the petition for disqualification on 2, 5 and 7 April 2004. Director
Ladra submitted her findings and recommendations to the COMELEC on 4
May 2004. The COMELEC First Division issued a resolution adopting
Director Ladra’s recommendations on 5 May 2004. Chairman Abalos
informed the pertinent election officers of the COMELEC First Division’s
resolution through an Advisory dated 8 May 2004. Eusebio filed a Motion for
Reconsideration on 9 May 2004. Chairman Abalos issued a memorandum to
Director Ladra on election day, 10 May 2004, and enjoined her from
implementing the 5 May 2004 COMELEC First Division resolution. The
petition for disqualification was not yet finally resolved at the time of the
elections. Eusebio’s votes were counted and canvassed, after which Eusebio
was proclaimed as the winning candidate for Pasig City Mayor. On 20
August 2004, the COMELEC En Banc set aside the COMELEC First
Division’s order and referred the case to the COMELEC Law Department.
In its 20 August 2004 resolution, the COMELEC En Banc relied heavily on
the timing of the filing of the petition. The COMELEC En Banc invoked
Section 1 of Resolution No. 2050, which states:
1. Any complaint for the disqualification of a duly registered candidate based
upon any of the grounds specifically enumerated under Section 68 of the
Omnibus Election Code, filed directly with the Commission before an election
in which the respondent is a candidate, shall be inquired into by 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. (Emphasis added)
The COMELEC also quoted from Sunga v. COMELEC to justify its referral of
the disqualification case to its Law Department.
31
x x x We discern nothing in COMELEC Resolution No. 2050 declaring,
ordering or directing the dismissal of a disqualification case filed before the
election but which remained unresolved after the election. What the
Resolution mandates in such a case is for the Commission to refer the
complaint to its Law Department for investigation to determine whether the
acts complained of have in fact been committed by the candidate sought to
be disqualified. The findings of the Law Department then become the basis
for disqualifying the erring candidate. This is totally different from the other
two situations contemplated by Resolution No. 2050, i.e., a disqualification
case filed after the election but before the proclamation of winners and that
filed after the election and the proclamation of winners, wherein it was
specifically directed by the same Resolution to be dismissed as a
disqualification case.35
For his part, Eusebio asserts that the COMELEC has the prerogative to refer
the disqualification case to its Law Department. Thus, no grave abuse of
discretion can be imputed to the COMELEC. Moreover, the pendency of a
case before the Law Department for purposes of preliminary investigation
should be considered as continuation of the COMELEC’s deliberations.
However, contrary to the COMELEC En Banc’s reliance on Resolution No.
2050 in its 20 August 2004 resolution, the prevailing law on the matter is
Section 6 of the Electoral Reforms Law of 1987. Any rule or action by the
COMELEC should be in accordance with the prevailing law. Section 6 of the
Electoral Reforms Law of 1987 provides:
Section 6. Effect of Disqualification Case. — Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he
is voted for and receives the winning number of votes in such election,
the Court or Commission shall continue with the trial and hearing of the
action, inquiry or protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is strong.
(Emphasis added)
Moreover, this Court’s ruling in Sunga was further explained in Bagatsing v.
COMELEC,36 thus:
The COMELEC in Sunga obviously misapplied Resolution No. 2050 in
dismissing the disqualification case therein simply because it remained
unresolved before the election and, in lieu thereof, referring it to its Law
Department for possible criminal prosecution of the respondent for violation
of the election laws. Notably, there is nothing in paragraph 1 of Resolution
No. 2050 which directs the dismissal of the disqualification case not resolved
before the election. It says the COMELEC "may motu prop[r]io or on motion
of any of the parties, refer the complaint to the Law Department of the
Commission as an instrument of the latter in the exercise of its exclusive
power to conduct a preliminary investigation of all cases involving criminal
infractions of the election laws." The referral to the Law Department is
discretionary on the part of the COMELEC and in no way may it be
interpreted that the COMELEC will dismiss the disqualification case or will no
longer continue with the hearing of the same. The reason for this is that a
disqualification case may have two (2) aspects, the administrative, which
requires only a preponderance of evidence to prove disqualification, and the
criminal, which necessitates proof beyond reasonable doubt to convict.
Where in the opinion of the COMELEC, the acts which are grounds for
disqualification also constitute a criminal offense or offenses, referral of the
case to the Law Department is proper.
xxxx
It bears stressing that the Court in Sunga recognized the difference between
a disqualification case filed before and after an election when, as earlier
mentioned, it stated that the referral of the complaint for disqualification
where the case is filed before election "is totally different from the other two
situations contemplated by Resolution No. 2050, i.e., a disqualification case
filed after the election but before the proclamation of winners and that filed
after the election and the proclamation of winners, wherein it was specifically
directed by the same Resolution to be dismissed as a disqualification case."
Indeed, the 20 August 2004 resolution of the COMELEC En Banc betrayed
its misunderstanding of the two aspects of a disqualification case. 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.37 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.38 A criminal conviction
shall result in the disqualification of the offender, which may even include
disqualification from holding a future public office.39
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.40 The COMELEC En Banc erred 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.
Moreover, the COMELEC En Banc’s act and Eusebio’s assertions lose sight
of the provisions of Resolution No. 6452 ("Resolution 6452"), "Rules
Delegating to COMELEC Field Officials the Hearing and Reception of
Evidence of Disqualification Cases Filed in Connection with the May 10,
2004 National and Local Elections; Motu Proprio Actions and Disposition of
Disqualification Cases," promulgated on 10 December 2003. The pertinent
portions of Resolution 6452 provide:
Section 1. Delegation of reception of evidence. — The Commission hereby
designates its field officials who are members of the Philippine Bar to hear
and receive evidence in the following petitions:
xxx
c. Petition to disqualify a candidate pursuant to Sec. 68 of the
Omnibus Election Code and disqualify a candidate for lack of
qualifications or possessing same grounds for disqualification;
xxx
Sec. 2. Suspension of the Comelec Rules of Procedure. — In the interest of
justice and in order to attain speedy disposition of cases, the Comelec Rules
of Procedure or any portion thereof inconsistent herewith is hereby
suspended.
32
Sec. 3. Where to file petitions. — The petitions shall be filed with the
following offices of the Commission:
xxx
b. For x x x local positions including highly-urbanized cities, in the
National Capital Region, with the Regional Election Director of
said region;
xxx
PROVIDED, in cases of highly-urbanized cities the filing of petitions for
disqualification shall be with the Office of the Regional Election Directors. x x
x recommendation of the investigating officer, RED-NCR, was substantive and
xxxx
The Regional Election Directors concerned shall hear and receive evidence
strictly in accordance with the procedure and timeliness herein provided.
Sec. 5. Procedure in filing petitions. — For purposes of the preceding
section, the following procedure shall be observed:
xxxx
C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC. 68 OF
THE OMNIBUS ELECTION CODE AND PETITION TO DISQUALIFY FOR
LACK OF QUALIFICATIONS OR POSSESSING SAME GROUNDS FOR
DISQUALIFICATION
1. The verified petition to disqualify a candidate pursuant to Sec.
68 of the Omnibus Election Code x x x may be filed any day after
the last day [of] filing of certificates of candidacy but not later than
the date of proclamation.
2. The petition to disqualify a candidate pursuant to Sec. 68 of the
Omnibus Election Code shall be filed in ten (10) legible copies
with the concerned office mentioned in Sec. 3 personally or
through a duly authorized representative by any citizen of voting
age, or duly registered political party, organization or coalition of
political parties against 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:
2.a having given money or other material consideration
to influence, induce or corrupt the voters or public
officials performing electoral functions; or
xxx
2.d having solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104 of
the Omnibus Elections Code; or
2.e having violated any of Sections 80, 83, 85, 86 and
261, paragraphs d, e, k, v and cc sub-paragraph 6 of
the Omnibus Election Code, shall be disqualified from
continuing as a candidate, or if he has been elected,
from holding the office.
xxxx
Indeed, what the COMELEC did in its 20 August 2004 resolution was
contrary to "the interest of justice and x x x speedy disposition of cases."
Resolution No. 2050 referring the electoral aspect to the Law Department is
procedurally inconsistent with Resolution 6452 delegating reception of
evidence of the electoral aspect to the Regional Election Director. The
investigation by the Law Department under Resolution No. 2050 produces
the same result as the investigation under Resolution 6452 by the Regional
Election Director. Commissioner Tuason’s dissent underscored the
inconsistency between the avowed purpose of Resolution 6452 and the
COMELEC En Banc’s 20 August 2004 resolution:
x x x [T]he preliminary investigation for purposes of finding sufficient ground
for [Eusebio’s] disqualification, has already been accomplished by the RED-
NCR prior to the election. There also appears no doubt in my mind, that such
legally sound. The First Division agreed with the result of the
investigation/recommendation, with the facts of the case clearly distilled in
the assailed resolution. This, I likewise found to be in accord with our very
own rules and the jurisprudential doctrines aforestated. There could be no
rhyme and reason then to dismiss the electoral aspect of the case (i.e.,
disqualification) and refer the same to the Law Department for preliminary
investigation. As held in Sunga, 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 criminal aspect
of the case is an altogether different issue.
Sunga said the reason is obvious: 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.41
We agree with Lanot that the COMELEC committed grave abuse of
discretion when it ordered the dismissal of the disqualification case pending
preliminary investigation of the COMELEC Law Department. A review of the
COMELEC First Division’s 5 May 2004 resolution on Eusebio’s
disqualification is in order, in view of the grave abuse of discretion committed
by the COMELEC En Banc in its 20 August 2004 resolution.
Rightful Pasig City Mayor
Eusebio’s Questioned Acts
We quote the findings and recommendations of Director Ladra as adopted by
the COMELEC First Division:
The questioned acts of [Eusebio] are as follows:
1) The speech uttered on February 14, 2004 during the
meeting dubbed as "Lingap sa Barangay" in Barangay San
Miguel, Pasig City wherein [Eusebio] allegedly asked the
people to vote for him and solicited for their support x x x:
xxxx
2) Another speech given on March 17, 2004 in ROTC St.,
Rosario, Pasig City wherein [Eusebio] again allegedly uttered
defamatory statements against co-[candidate] Lanot and
33
 campaigned for his (respondent’s) and his group’s
candidacy.
xxxx
3) He caused to be published in leading newspapers about a
survey allegedly done by Survey Specialist, Inc. showing him
to be leading in the mayoralty race in Pasig City.
xxxx
4) He paid a political advertisement in the Philippine Free
Press in the amount of ₱193,660.00 as published in its issue
dated February 7, 2004.
xxxx
5) The display of billboards containing the words "Serbisyo
Eusebio" and "ST" which means "Serbisyong Totoo" before
the start of the campaign period.
xxxx
6) Posters showing the respondent and his running mate
Yoyong Martirez as well those showing the name "KA
ENTENG EUSEBIO" and "BOBBY EUSEBIO" in connection
with the dengue project were posted everywhere even before
the start of the campaign period.
xxxx
7) Streamers bearing the words "Pasig City is for PEACE"
were likewise displayed with the two letters "E" prominently
written.
xxxx
8) Stickers of [Eusebio] were likewise pasted all over the city
before the start of the campaign period.
xxxx
9) [Eusebio] engaged in vote-buying by distributing shoes to
the students while telling the parents that by way of
gratitude, they should vote for him.
x x x x (Emphasis in the original)42
Eusebio argues that: (1) Lanot is in estoppel for participating in the
proceedings before the COMELEC Law Department; (2) Lanot abandoned
the present petition also because of his participation in the proceedings
before the COMELEC Law Department; and (3) Lanot is guilty of forum-
shopping. These arguments fail for lack of understanding of the two aspects
of disqualification cases. The proceedings before the COMELEC Law
Department concern the criminal aspect, while the proceedings before this
Court concern the electoral aspect, of disqualification cases. The
proceedings in one may proceed independently of the other.
Eusebio is correct when he asserts that this Court is not a trier of facts. What
he overlooks, however, is that this Court may review the factual findings of
the COMELEC when there is grave abuse of discretion and a showing of
arbitrariness in the COMELEC’s decision, order or resolution.43 We find that
the COMELEC committed grave abuse of discretion in issuing its 20 August
2004 resolution.
Our review of the factual findings of the COMELEC, as well as the law
applicable to this case, shows that there is no basis to disqualify Eusebio.
Director Ladra recommended the disqualification of Eusebio "for violation of
Section 80 of the Omnibus Election Code." The COMELEC First Division
approved Director Ladra’s recommendation and disqualified Eusebio.
Section 80 of the Omnibus Election Code provides:
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 supplied)
What Section 80 of the Omnibus Election Code prohibits is "an election
campaign or partisan political activity" by a "candidate" "outside" of the
campaign period. Section 79 of the same Code defines "candidate," "election
campaign" and "partisan political activity" as follows:
SECTION 79. Definitions. — As used in this Code:
(a) The term "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;
(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 if performed 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.
34
Public expressions or opinions or discussions of probable issues in a
forthcoming election or 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.
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 Eusebio’s 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, Vice-President, Senators and candidates
under the party-list system as well as petitions for registration and/or
manifestation to participate in the party-list system shall be on February 9,
1998 while the deadline for the filing of certificate of candidacy for other
positions shall be on March 27, 1998.
The official ballots shall be printed by the National Printing Office and/or the
Bangko Sentral ng Pilipinas at the price comparable with that of private
printers under proper security measures which the Commission shall adopt.
The Commission may contract the services of private printers upon
certification by the National Printing Office/Bangko Sentral ng Pilipinas that it
cannot meet the printing requirements. Accredited political parties and
deputized citizens’ arms of the Commission may assign watchers in the
printing, storage and distribution of official ballots.
To prevent the use of fake ballots, the Commission through the Committee
shall ensure that the serial number on the ballot stub shall be printed in
magnetic ink that shall be easily detectable by inexpensive hardware and
shall be impossible to reproduce on a photocopying machine, and that
identification marks, magnetic strips, bar codes and other technical and
security markings, are provided on the ballot.
The official ballots shall be printed and distributed to each city/municipality at
the rate of one (1) ballot for every registered voter with a provision of
additional four (4) ballots per precinct.44 (Emphasis added)
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,
he’s 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 don’t provide that the filing of
the certificate will not bring about one’s being a candidate.
SENATOR GONZALES. If that’s a fact, the law cannot change a fact.
35
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). That’s 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.45 (Emphasis added)
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."
Under Section 3(b) of the Omnibus Election Code, the applicable law prior to
RA 8436, the campaign period for local officials commences 45 days before
election day. For the 2004 local elections, this puts the start of the campaign
period on 24 March 2004. This also puts the last day for the filing of
certificate of candidacy, under the law prior to RA 8436, on 23 March 2004.
Eusebio is deemed to have filed his certificate of candidacy on
this date for purposes other than the printing of ballots because this is the
interpretation of Section 80 of the Omnibus Election Code most favorable to
one charged of its violation. Since Section 80 defines a criminal offense,46 its
provisions must be construed liberally in favor of one charged of its violation.
Thus, Eusebio became a "candidate" only on 23 March 2004 for purposes
other than the printing of ballots.
Acts committed by Eusebio prior to his being a "candidate" on 23 March
2004, even if constituting election campaigning or partisan political activities,
are not punishable under Section 80 of the Omnibus Election Code. Such
acts are protected as part of freedom of expression of a citizen before he
becomes a candidate for elective public office. Acts committed by Eusebio
on or after 24 March 2004, or during the campaign period, are not covered
by Section 80 which punishes only acts outside the campaign period.
We now examine the specific questioned acts of Eusebio whether they
violate Section 80 of the Omnibus Election Code.
We begin with the 14 February 2004 and the 17 March 2004 speeches of
Eusebio:
1) The speech uttered on February 14, 2004 during the
meeting dubbed as "Lingap sa Barangay" in Barangay San
Miguel, Pasig City wherein [Eusebio] allegedly asked the
people to vote for him and solicited for their support x x x:
2) Another speech given on March 17, 2004 in ROTC St.,
Rosario, Pasig City wherein [Eusebio] again allegedly uttered
defamatory statements against co-[candidate] Lanot and
campaigned for his (respondent’s) and his group’s
candidacy.47 (Emphasis in the original)
The 14 February 2004 and 17 March 2004 speeches happened before the
date Eusebio is deemed to have filed his certificate of candidacy on 23
March 2004 for purposes other than the printing of ballots. Eusebio, not
being a candidate then, is not liable for speeches on 14 February 2004 and
17 March 2004 asking the people to vote for him.
The survey showing Eusebio leading in the mayoralty race was published
before Eusebio was deemed to have filed his certificate of candidacy on 23
March 2004. Thus:
3) He caused to be published in leading newspapers about a survey
allegedly done by Survey Specialist, Inc. showing him to be leading in
the mayoralty race in Pasig City.
xxxx
They also presented Certification issued by Mr. Diego Cagahastian, News
Editor of Manila Bulletin dated 10 March 2004 and Mr. Isaac G. Belmonte,
Editor-in-Chief of Philippine Star dated March 2, 2004 to the effect that the
articles in question came from the camp of [Eusebio].48 (Emphasis in the
original)
Eusebio is not liable for this publication which was made before he became a
candidate on 23 March 2004.
The political advertisement in the Philippine Free Press issue of 7 February
2004 was also made before Eusebio became a candidate on 23 March 2004.
Thus:
4) He paid a political advertisement in the Philippine Free Press in the
amount of ₱193,660.00 as published in its issue dated February 7,
2004.49 (Emphasis in the original)
The display of Eusebio’s billboards, posters, stickers, and streamers, as well
as his distribution of free shoes, all happened also before Eusebio became a
candidate on 23 March 2004. Thus:
36
5) The display of billboards containing the words "Serbisyo Eusebio"
and "ST" which means "Serbisyong Totoo" before the start of the
campaign period.
xxxx
6) Posters showing the respondent and his running mate Yoyong
Martinez as well those showing the name "KA ENTENG EUSEBIO" and
"BOBBY EUSEBIO" in connection with the dengue project were posted
everywhere even before the start of the campaign period.
xxxx
Petitioners’ witnesses Alfonso Cordova and Alfredo Lacsamana as well as
Hermogenes Garcia stated in their respective affidavits marked as Exhs. "L"
and "L-1" that the pictures were taken on March 3, 7 & 8, 2004.
xxxx
7) Streamers bearing the words "Pasig City is for PEACE" were likewise
displayed with the two letters "E" prominently written.
xxxx
Said streamers were among those captured by the camera of the petitioners’
witnesses Hermogenes Garcia and Nelia Sarmiento before the start of the
campaign period.
8) Stickers of [Eusebio] were likewise pasted all over the city before the
start of the campaign period.
xxxx
9) [Eusebio] engaged in vote-buying by distributing shoes to the
students while telling the parents that by way of gratitude, they should
vote for him.
The affidavits of Ceferino Tantay marked as Exh. "M" and Flor Montefalcon,
Norie Altiche and Myrna Verdillo marked as Exh. "O" are uncontroverted.
Their statement that free shoes were given to the students of Rizal High
School was corroborated by the Manila Bulletin issue of February 6, 2004
which showed the picture of the respondent delivering his speech before a
group of students.
x x x x50 (Emphasis in the original)
Based on the findings of Director Ladra, the questioned acts attributed to
Eusebio all occurred before the start of the campaign period on 24 March
2004. Indeed, Director Ladra applied Section 80 of the Omnibus Election
Code against Eusebio precisely because Eusebio committed these acts
"outside" of the campaign period. However, Director Ladra erroneously
assumed that Eusebio became a "candidate," for purposes of Section 80,
when Eusebio filed his certificate of candidacy on 29 December 2003.
Under Section 11 of RA 8436, Eusebio became a "candidate," for purposes
of Section 80 of the Omnibus Election Code, only on 23 March 2004, the last
day for filing certificates of candidacy. Applying the facts - as found by
Director Ladra and affirmed by the COMELEC First Division - to Section 11
of RA 8436, Eusebio clearly did not violate Section 80 of the Omnibus
Election Code which requires the existence of a "candidate," one who has
filed his certificate of candidacy, during the commission of the questioned
acts.
Eusebio asserts that Section 11 of RA 8436 exculpates him from any liability
for the questioned acts.1âwphi1 Eusebio points out that Section 11 contains
the following proviso:
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
Eusebio theorizes that since the questioned acts admittedly took place
before the start of the campaign period, such acts are not "unlawful acts or
omissions applicable to a candidate."
We find no necessity to apply in the present case this proviso in Section 11
of RA 8436. Eusebio’s theory legalizes election campaigning or partisan
political activities before the campaign period even if a person has already
filed his certificate of candidacy based on the election periods under existing
laws prior to RA 8436. Under Eusebio’s theory, Section 11 of RA 8436
punishes unlawful acts applicable to a candidate only if committed during the
campaign period.
By definition, the election offense in Section 80 of the Omnibus Election
Code cannot be committed during the campaign period. On the other hand,
under Eusebio’s theory, unlawful acts applicable to a candidate cannot be
committed outside of the campaign period. The net result is to make the
election offense in Section 80 physically impossible to commit at any time.
We shall leave this issue for some other case in the future since the present
case can be resolved without applying the proviso in Section 11 of RA 8436.
Effect of Eusebio’s Possible
Disqualification
As second placer, Lanot prayed that he be proclaimed as the rightful Pasig
City Mayor in the event of Eusebio’s disqualification. As third placer,
Benavides, on the other hand, prays that she be proclaimed as the rightful
Pasig City Mayor in the event of Eusebio’s disqualification and in view of
Lanot’s death. Even if we assume Eusebio’s disqualification as fact, we
cannot grant either prayer.
The disqualification of the elected candidate does not entitle the candidate
who obtained the second highest number of votes to occupy the office
vacated because of the disqualification.51 Votes cast in favor of a candidate
who obtained the highest number of votes, against whom a petition for
disqualification was filed before the election, are presumed to have been cast
in the belief that he was qualified. For this reason, the second placer cannot
be declared elected.52
The exception to this rule rests on two assumptions. First, the one who
obtained the highest number of votes is disqualified. Second, the voters are
so fully aware in fact and in law of a candidate’s disqualification to bring such
awareness within the realm of notoriety but nonetheless the voters still cast
their votes in favor of the ineligible candidate.53 Lanot and Benavides failed
to prove that the exception applies in the present case. Thus, assuming for
the sake of argument that Eusebio is disqualified, the rule on succession
provides that the duly elected Vice-Mayor of Pasig City shall succeed in
Eusebio’s place.54
WHEREFORE, we DISMISS the petition. We find no grave abuse of
discretion in the 10 May 2004 Advisory of Chairman Benjamin S. Abalos and
in the 21 May 2004 Order of the Commission on Elections En Banc. We SET
ASIDE the 20 August 2004 Resolution of the Commission En Banc since
37
respondent Vicente P. Eusebio did not commit any act which would
disqualify him as a candidate in the 10 May 2004 elections.
SO ORDERED.
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. Penera’s (Penera) motion for reconsideration of this
Court’s Decision of 11 September 2009 (Decision).
The assailed Decision dismissed Penera’s 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 Eusebio’s 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:
38
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.
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,
he’s 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 don’t provide that the filing of
the certificate will not bring about one’s being a candidate.
SENATOR GONZALES. If that’s 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). That’s 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
39
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 one’s
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 citizen’s 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.
40
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 layman’s 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. Penera’s 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. 105323. July 3, 1992.]
FRANCISCO I. CHAVEZ, Petitioner, v. COMMISSION ON ELECTIONS,
Respondent.
SYLLABUS
1. POLITICAL LAW; JUDICIAL DEPARTMENT; POWER OF JUDICIAL
REVIEW OVER OTHER BRANCHES OF GOVERNMENT; RULE; CASE AT
BAR. — The alleged inaction of respondent Comelec in ordering the deletion
of Melchor Chavez’s name in the list of qualified candidates does not call for
the exercise of the Court’s function of judicial review. This Court can review
the decisions or orders of the Comelec only in cases of grave abuse of
discretion committed by it in the discharge of its quasi-judicial powers and
not those arising from the exercise of its administrative functions.
Respondent Commission’s alleged failure to implement its own resolution is
undoubtedly administrative in nature, hence, beyond judicial interference
(see Filipinas Engineering Co. v. Ferrer, 135 SCRA 25 [1985]; Aratuc v.
Commission on Elections, 88 SCRA 251 [1979]; see also Pungutan v.
Abubakar, 43 SCRA 1 [1972]). As aptly observed by the Solicitor General,
respondent Comelec can administratively undo what it has administratively
left undone (Manifestation, p. 2). Moreover, respondent Comelec has in fact,
on May 6, 1992 to be exact, ordered the deletion of Melchor Chavez’s name
not only on the official list of candidates, but also on the election returns, tally
sheet and certificate of canvass (Comment, p. 7). Hence, petitioner’s
allegation that respondent Comelec failed to implement Res. No. 92-132
does not hold water.
2. ID.; LEGISLATIVE DEPARTMENT; HOUSE ELECTORAL TRIBUNAL;
SHALL BE THE SOLE JUDGE OF ALL CONTEST RELATING TO THE
ELECTION, RETURNS AND QUALIFICATIONS OF THEIR RESPECTIVE
MEMBERS. — Thus, Sec. 17, Art. VI of the Constitution provides that" (t)he
Senate and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests relating to the election,
returns, and qualifications of their respective Members. . . ." (Emphasis
supplied). The word "sole" underscores the exclusivity of the Tribunals’
jurisdiction over election contests relating to their respective Members (Co v.
Electoral Tribunal of the House of Representatives, 199 SCRA 692 [1991];
Lazatin v. House of Representatives Electoral Tribunal, 168 SCRA 391
[1988]; Angara v. Electoral Commission, 63 Phil. 139 [1936]). It is therefore
crystal clear that this Court has no jurisdiction to entertain the instant petition.
It is the Senate Electoral Tribunal which has exclusive jurisdiction to act on
the complaint of petitioner involving, as it does, contest relating to the
election of a member of the Senate. As aforesaid, petitioner’s proper
recourse is to file a regular election protest before the Senate Electoral
Tribunal after the winning senatorial candidates have been proclaimed.
3. ELECTION LAW; ELECTION CONTEST; PRE-PROCLAMATION
CONTROVERSY; NOT ALLOWED IN ELECTIONS FOR PRESIDENT,
41
VICE-PRESIDENT, SENATORS AND MEMBERS OF HOUSE OF
REPRESENTATIVE. — While the Commission has exclusive jurisdiction
over pre-proclamation controversies involving local elective officials (Sec.
242, Omnibus Election Code), nevertheless, pre-proclamation cases are not
allowed in elections for President, Vice-President, Senator and Member of
the House of Representatives as provided in Sec. 15 of Republic Act 7166.
4. ID.; ID.; ID.; NOT A PROPER RECOURSE IN CASE OF ERRORS IN
THE APPRECIATION OF BALLOT; REASON THEREFOR. — The function
of ballots appreciation is performed by the boards of election inspectors at
the precinct level. "3. The scope of pre-proclamation controversy is limited to
the issues enumerated under Sec. 243 of the Omnibus Election Code. The
enumeration therein of the issues that may be raised in pre-proclamation
controversy is restrictive and exclusive. In the absence of any clear showing
or proof that the election returns canvassed are incomplete or contain
material defects (sec. 234), appear to have been tampered with, falsified or
prepared under duress (sec. 235) and/or contain discrepancies in the votes
credited to any candidate, the difference of which affects the result of the
election (sec. 236), which are the only instances where a pre-proclamation
recount may be resorted to, granted the preservation of the integrity of the
ballot box and its contents, Sanchez’ petition must fail. The complete election
returns whose authenticity is not in question, must be prima facie considered
valid for the purpose of canvassing the same and proclamation of the
winning candidates. . . . "7. The ground for recount relied upon by Sanchez is
clearly not among the issues that may be raised in pre-proclamation
controversy. His allegation of invalidation of "Sanchez" votes intended for
him bear no relation to the correctness and authenticity of the election
returns canvassed. Neither the Constitution nor statute has granted the
Comelec or the board of canvassers the power in the canvass of election
returns to look beyond the face thereof, once satisfied of their authenticity
(Abes v. Comelec, 21 SCRA 1252, 1256)."cralaw virtua1aw library
5. ID.; ID.; CORRECTION OF MANIFEST ERROR IN THE CERTIFICATE
OF CANVASS OR ELECTION RETURNS; MAY BE ALLOWED IN
ELECTION FOR PRESIDENT, VICE PRESIDENT, SENATORS AND
MEMBERS OF THE HOUSE OF REPRESENTATIVE. — It is clear from the
above-quoted provision of the law that "pre-proclamation cases (are) not
allowed in elections for President, Vice-President, Senator and Member of
the House of Representatives." What is allowed is the correction of "manifest
errors in the certificate of canvass or election returns." To be manifest, the
errors must appear on the face of the certificates of canvass or election
returns sought to be corrected and/or objections thereto must have been
made before the board of canvassers and specifically noted in the minutes of
their respective proceedings.
6. ID.; ID.; ID.; ID.; NOT SATISFIED IN CASE AT BAR. — It is quite obvious
that petitioner’s prayer does not call for the correction of "manifest error’s in
the certificate of canvass or election returns" before the Comelec but for the
re-opening of the ballot boxes and appreciation of the ballots contained
therein. Indeed, petitioner has not even pointed to any "manifest error" in the
certificates of canvass or election returns he desires to be rectified. There
being none, petitioner’s proper recourse is to file a regular election protest
which, under the Constitution and the Omnibus Election ode, exclusively
pertains to the Senate Electoral Tribunal. In the case at bar, petitioner’s
allegation that "Chavez" votes were either invalidated or declared stray has
no relation to the correctness or authenticity of the election returns
canvassed. Otherwise stated, petitioner has not demonstrated any manifest
error in the certificates of canvass or election returns before the Comelec
which would warrant their correction. As the authenticity of the certificates of
canvass or election returns are not questioned, they must be prima facie
considered valid for purposes of canvassing the same and proclamation of
the winning candidates (Sanchez v. Comelec, supra)
RESOLUTION
BIDIN, J.:
This case was originally on urgent petition ad cautelam praying, among
others, for the issuance of a temporary restraining order enjoining
respondent Commission on Elections (Comelec) from proclaiming the 24th
highest senatorial candidate.
The antecedents facts are as follows:chanrob1es virtual 1aw library
On May 5, 1992, this Court issued a Resolution in GR No. 104704, entitled
"Francisco Chavez v. Comelec, Et Al.," disqualifying Melchor Chavez, private
respondent therein, from running for the Office of Senator in the May 11,
1992 elections.
The above-mentioned resolution was received by respondent Comelec on
May 6, 1992. On the same day, petitioner filed an urgent motion with the
Comelec praying that it (1) disseminate through the fastest available means
this Court’s Resolution dated May 5, 1992 to all regional election directors,
provincial election supervisors, city and municipal election registrars, boards
of election inspectors, the six (6) accredited political parties and the general
public; and (2) order said election officials to delete the name of Melchor
Chavez as printed in the certified list of candidates tally sheets, election
returns and "to count all votes cast for the disqualified Melchor, Chavez in
favor of Francisco I. Chavez . . . ."cralaw virtua1aw library
On May 8, 1992, the Comelec issued Res. No. 92-1322 which resolved to
delete the name of Melchor Chavez from the list of qualified candidates.
However, it failed to order the crediting of all "Chavez" votes in favor of
petitioner as well as the cancellation of Melchor Chavez’ name in the list of
qualified candidates.
According to petitioner, the Comelec failed to perform its mandatory function
under Sec. 7, RA 7166 which states that if a candidate has been disqualified,
it shall be the duty of the Commission to instruct without delay the deletion of
the name of said candidate.
Thus, the name of Melchor Chavez remained undeleted in the list of qualified
candidates on election day.chanrobles virtual lawlibrary
Confusion arose, allegedly nationwide, as the "Chavez" votes were either
declared stray or invalidated by the Boards of Election Inspectors (BEIs).
On May 11, 1992, Commissioner Rama of respondent Comelec issued a
directive over radio and TV ordering all "Chavez" votes to be credited in favor
of petitioner. Petitioner contends that the radio and TV announcements did
not reach the BEI at the 170,354 precincts nationwide. As a result, "Chavez"
votes were not credited in favor of petitioner.
On May 12, 1992, Comelec issued another Resolution directing all municipal
and city election registrars throughout the country to examine the minutes of
voting submitted by the BEIs and to credit all the "Chavez" votes, which have
been declared stray or invalidated by the BEIs, in favor of petitioner.
Petitioner maintains that the said resolution proved futile because it did not
reach all the various BEIs of the 170,354 election precincts throughout the
country on time for implementation and that the minutes of voting did not
indicate the number of "Chavez" votes which were declared stray or
invalidated.
On May 14, 1992, petitioner sent a letter to the Comelec requesting the latter
to devise ways and means in crediting "Chavez" votes in his favor but the
respondent Commission failed to act on said letter/complaint.
On May 23, 1992, petitioner filed an urgent petition before the respondent
Comelec praying the latter to (1) implement its May 12, 1992 resolution with
costs de officio; (2) to re-open the ballot boxes in 13 provinces including the
42
National Capital Region involving some 80,348 precincts (p. 9 of petition)
and to scan for the "Chavez" votes for purposes of crediting the same in his
favor; (3) make the appropriate entries in the election returns/certificates of
canvass; and (4) to suspend the proclamation of the 24 winning candidates.
Dissatisfied with the failure of respondent Comelec to act on his petition,
petitioner filed, as aforesaid, this urgent petition for prohibition and
mandamus, with prayer for the issuance of a temporary restraining order,
enjoining the Comelec from proclaiming the 24th highest senatorial
candidate, without first implementing respondent Comelec’s resolution of
May 12, 1992 and acting upon petitioner’s letter/complaint dated May 14,
1992 and urgent petition dated May 22, 1992.chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph
It is the submission of petitioner that assuming only ten (10) "Chavez" votes
were invalidated per precinct, he would have lost at least 1.7 million votes
(considering that there are more than 170,000 precincts nationwide); the
result of which will affect the 24 ranking senatorial candidates.
Petitioner alleges that respondent Comelec acted capriciously and
whimsically and with grave abuse of discretion and therefore prays that the
Comelec be enjoined from proclaiming the 24th winning senatorial candidate
until after his petition before the Commission is resolved.
On June 4, 1992, the Court issued a Temporary Restraining Order enjoining
respondent Comelec from proclaiming the 24th winning senatorial candidate
and set the case for hearing on June 9, 1992.
On the same day (June 4, 1992), petitioner filed a manifestation stating that
on May 30, 1992, his urgent petition dated May 22, 1992 was dismissed by
respondent Comelec and prayed that the petition ad cautelam at bar be
considered a regular petition.
On June 8, 1992, Senator Agapito Aquino ** filed a Motion for Leave to
Intervene with Comment in Intervention praying for the dismissal of the
instant petition on the ground that the law does not allow pre-proclamation
controversy involving the election of members of the Senate.
After hearing the arguments of the parties on June 9, 1992, the Court
resolved to lift the temporary restraining order in the afternoon of the same
day (June 9, 1992).
Coming now to the merits, We find the petition devoid of any.
As stated earlier, petitioner’s urgent petition dated May 22, 1992 was
dismissed by respondent Comelec on May 30, 1992. Had it not been prayed
that the proclamation of the 24th winning senatorial candidate be suspended,
which this Court granted on June 4, 1992, the instant petition would have
been dismissed outright for having become moot and academic. But even
then, this Court could have acted favorably on petitioner’s plaint.
The alleged inaction of respondent Comelec in ordering the deletion of
Melchor Chavez’s name in the list of qualified candidates does not call for
the exercise of the Court’s function of judicial review. This Court can review
the decisions or orders of the Comelec only in cases of grave abuse of
discretion committed by it in the discharge of its quasi-judicial powers and
not those arising from the exercise of its administrative functions.
Respondent Commission’s alleged failure to implement its own resolution is
undoubtedly administrative in nature, hence, beyond judicial interference
(See Filipinas Engineering Co. v. Ferrer, 135 SCRA 25 [1985]; Aratuc v.
Commission on Elections, 88 SCRA 251 (1979); see also Pungutan v.
Abubakar, 43 SCRA 1 [1972]). As aptly observed by the Solicitor General,
respondent Comelec can administratively undo what it has administratively
left undone (Manifestation, p. 2). Moreover, respondent Comelec has in fact,
on May 6, 1992 to be exact, ordered the deletion of Melchor Chavez’s name
not only on the official list of candidates, but also on the election returns, tally
sheet and certificate of canvass (Comment, p. 7). Hence, petitioner’s
allegation that respondent Comelec failed to implement Res. No. 92-132
does not hold water.
Be that as it may, there are other compelling reasons why the instant petition
is bound to fail.
A simple reading of the petition would readily show that petitioner has no
cause of action, the controversy presented being one in the nature of a pre-
proclamation. **
While the Commission has exclusive jurisdiction over pre-proclamation
controversies involving local elective officials (Sec. 242, Omnibus Election
Code), nevertheless, pre-proclamation cases are not allowed in elections for
President, Vice-President, Senator and Member of the House of
Representatives.chanrobles lawlibrary : rednad
Sec. 15 of Republic Act 7166 provides:jgc:chanrobles.com.ph
"Sec. 15. Pre-proclamation Cases Not Allowed in Elections for President,
Vice-President, Senator, and Member of the House of Representatives. —
For purposes of the elections for President, Vice-President, Senator and
Member of the House of Representatives, no pre-proclamation cases shall
be allowed on matters relating to the preparation, transmission, receipt,
custody and appreciation of the election returns or the certificate of canvass,
as the case may be. However, this does not preclude the authority of the
appropriate canvassing body motu propio or upon written complaint of an
interested person to correct manifest errors in the certificate of canvass or
election returns before it. (Emphasis supplied)
x x x
"Any objection on the election returns before the city or municipal board of
canvassers, or on the municipal certificates of canvass before the provincial
boards of canvassers or district board of canvassers in Metro Manila Area,
shall be specifically noted in the minutes of their respective
proceedings."cralaw virtua1aw library
It is clear from the above-quoted provision of the law that "pre-proclamation
cases (are) not allowed in elections for President, Vice-President, Senator
and Member of the House of Representatives." What is allowed is the
correction of "manifest errors in the certificate of canvass or election returns."
To be manifest, the errors must appear on the face of the certificates of
canvass or election returns sought to be corrected and/or objections thereto
must have been made before the board of canvassers and specifically noted
in the minutes of their respective proceedings.
In the case at bar, however, petitioner prays not only for a restraining order
enjoining "the proclamation of the 24th highest ranking senatorial candidate
without first acting upon petitioner’s letter/complaint dated May 14, 1992 and
urgent petition dated May 22, 1992" but also prays that judgment be
rendered requiring the Comelec to re-open the ballot boxes in 80,348
precincts in 13 provinces therein enumerated (Petition, p. 9) including Metro
Manila, scan the ballots for "Chavez" votes which were invalidated or
declared stray and credit said scanned "Chavez" votes in favor of petitioner.
It is quite obvious that petitioner’s prayer does not call for the correction of
"manifest error’s in the certificates of canvass or election returns" before the
Comelec but for the re-opening of the ballot boxes and appreciation of the
ballots contained therein. Indeed, petitioner has not even pointed to any
"manifest error" in the certificates of canvass or election returns he desires to
be rectified. There being none, petitioner’s proper recourse is to file a regular
election protest which, under the Constitution and the Omnibus Election
Code, exclusively pertains to the Senate Electoral Tribunal.
Thus, Sec. 17, Art. VI of the Constitution provides that" (t)he Senate and the
43
House of Representatives shall each have an Electoral Tribunal which shall
be the sole judge of all contests relating to the election, returns, and
qualifications of their respective Members. . . ." (Emphasis supplied). The
word "sole" underscores the exclusivity of the Tribunals’ jurisdiction over
election contests relating to their respective Members (Co v. Electoral
Tribunal of the House of Representatives, 199 SCRA 692 [1991]; Lazatin v.
House of Representatives Electoral Tribunal, 168 SCRA 391 [1988]; Angara
v. Electoral Commission, 63 Phil. 139 [1936]). It is therefore crystal clear that
this Court has no jurisdiction to entertain the instant petition. It is the Senate
Electoral Tribunal which has exclusive jurisdiction to act on the complaint of
petitioner involving, as it does, contest relating to the election of a member of
the Senate. As aforesaid, petitioner’s proper recourse is to file a regular
election protest before the Senate Electoral Tribunal after the winning
senatorial candidates have been proclaimed.
Petitioner argues, on the other hand, that a recount before the Senate
Electoral Tribunal where he would be forced to shell out the expenses
imposes not only a property requirement for the enjoyment of the right to be
voted upon but also a price on the right of suffrage which would ultimately
stifle the sovereign will.
The argument, however, is beside the point. The law is very clear on the
matter and it is not right for petitioner to ask this Court to abandon settled
jurisprudence, engage in judicial legislation, amend the Constitution and alter
the Omnibus Election Code. The mandatory procedures laid down by the
existing law in cases like the one at bar must be faithfully followed lest we
allow anarchy to reign. The proper recourse is for petitioner to ask not this
Court but the Legislature to enact remedial measures.cralawnad
Finally, the instant petition falls squarely with the case of Sanchez v.
Commission on Elections (153 SCRA 67 [1987]) and the disposition arrived
therein finds application in the case at bar, mutatis
mutandis:jgc:chanrobles.com.ph
"Sanchez anchors his petition for recount and/or reappreciation on Section
243, paragraph (b) of the Omnibus Election Code in relation to Section 234
thereof with regard to material defects in canvassed election returns. He
contends that the canvassed returns discarding "Sanchez" votes as stray
were "incomplete" and therefore warrant a recount or reappreciation of the
ballots under Section 234. . . .
". . . The fact that some votes written solely as Sanchez" were declared stray
votes because of the inspectors’ erroneous belief that Gil Sanchez had not
been disqualified as a candidate, involves an erroneous appreciation of the
ballots. It is established by the law as well as jurisprudence . . . that errors in
the appreciation of ballots by the board of inspectors are proper subject for
election protest and not for recount or reappreciation of ballots.
"2. The appreciation of the ballots cast in the precincts is not a ‘proceeding of
the board of canvassers’ for purposes of pre-proclamation proceedings
under Section 241, Omnibus Election Code, but of the boards of election
inspectors who are called upon to count and appreciate the votes in
accordance with the rules of appreciation provided in Section 211, Omnibus
Election Code. Otherwise stated, the appreciation of ballots is not part of the
proceedings of the board of canvassers. The functions of ballots appreciation
is performed by the boards election inspectors at the precinct level.
(Emphasis supplied)
"3. The scope of pre-proclamation controversy is limited to the issues
enumerated under Sec. 243 of the Omnibus Election Code. The enumeration
therein of the issues that may be raised in pre-proclamation controversy is
restrictive and exclusive. In the absence of any clear showing or proof that
the election returns canvassed are incomplete or contain material defects
(sec. 234), appear to have been tampered with, falsified or prepared under
duress (sec. 235) and/or contain discrepancies in the votes credited to any
candidate, the difference of which affects the result of the election (sec. 236),
which are the only instances where a pre-proclamation recount may be
resorted to, granted the preservation of the integrity of the ballot box and its
contents, Sanchez’ petition must fail. The complete election returns whose
authenticity is not in question, must be prima facie considered valid for the
purpose of canvassing the same and proclamation of the winning
candidates.
x x x
"7. The ground for recount relied upon by Sanchez is clearly not among the
issues that may be raised in pre-proclamation controversy. His allegation of
invalidation of "Sanchez" votes intended for him bear no relation to the
correctness and authenticity of the election returns canvassed. Neither the
Constitution nor statute has granted the Comelec or the board of canvassers
the power in the canvass of election returns to look beyond the face thereof,
once satisfied of their authenticity (Abes v. Comelec, 21 SCRA 1252,
1256)."cralaw virtua1aw library
In the case at bar, petitioner’s allegation that "Chavez" votes were either
invalidated or declared stray has no relation to the correctness or authenticity
of the election returns canvassed. Otherwise stated, petitioner has not
demonstrated any manifest error in the certificates of canvass or election
returns before the Comelec which would warrant their correction. As the
authenticity of the certificates of canvass or election returns are not
questioned, they must be prima facie considered valid for purposes of
canvassing the same and proclamation of the winning candidates (Sanchez
v. Comelec, supra).
Premises considered, the Court Resolved to DISMISS the instant petition for
lack of merit.
SO ORDERED.
[G.R. No. L-52463. September 4, 1980.]
JESUS L. VILLEGAS, Petitioner, v. COMMISSION ON ELECTIONS,
LORENZO G. TEVES and the PROVINCIAL BOARD OF CANVASSERS
OF NEGROS ORIENTAL, Respondents.
DECISION
FERNANDO, C.J.
A novel provision in the present Constitution is that empowering the
Commission on Elections to be "the sole judge of all contests relating to the
elections, returns, and qualifications of all Members of the National Assembly
and elective provincial and city officials." 1 Thus, its competence is greater
than that formerly found in the 1935 Constitution which is limited to the
"enforcement and administration of all laws relative to the conduct of
elections." 2 Where before it was the Electoral Tribunal and the judiciary that
inquired into and passed upon election contests affecting legislative
members and provincial and city officials, respectively, a distinction being
made between those involving legislative members and provincial and city
officials, now it is the Commission on Elections that does so. Its authority to
decide pre-proclamation controversies is still one of its functions. 3 The
question in this case arose from the fact that during the pendency of such a
proceeding before respondent Commission, an election protest was filed by
petitioner against private respondent Lorenzo G. Teves, who was duly-
proclaimed provincial governor of Negros Oriental by the Board of
Canvassers, having obtained 160,592 votes as against 65,204 votes of
petitioner. 4 It is undoubted that the law affords a remedy to one who has lost
in an election, if in the conduct thereof, there has been a violation of the
Election Code. The specific question is whether under the particular
circumstances of this controversy, it should be through a protest and not
through a pre-proclamation suit.
Our answer is that it should be the former. Accordingly, this certiorari and
44
prohibition proceeding aimed at compelling respondent Commission to order
the Provincial Board of Canvassers of Negros Oriental to suspend the
canvass of votes for governor and to consider the certificate of candidacy of
respondent Teves cancelled is dismissed. It is quite evident that at this
stage, no useful purpose would be served.chanrobles.com.ph : virtual law
library
The relevant facts are not in dispute. There was filed with respondent
Commission on February 1, 1980 by petitioner, an Urgent Petition to
Suspend the Canvass of Votes and the Proclamation and Cancellation of the
Certificate of Candidacy of respondent Teves. 5 On February 2, 1980, a
resolution in the above petition was promulgated by respondent Commission
stating that inasmuch as "specific violations of the Election Code on
prohibited acts, such as illegal election propaganda, massive vote buying,
terrorism, etc.; considering that the grounds alleged are proper grounds for
an election protest or criminal action, [it resolved] to deny the aforementioned
petition." 6 It was not until February 5, 1980 that petitioner elevated the
matter to this Court. As noted earlier, as far back as February 2, 1980, the
Provincial Board of Canvassers had proclaimed respondent Teves as the
provincial governor-elect of Negros Oriental with the majority of over 95,000
votes. At the time, therefore, that the urgent petition was filed with this Court,
there had already been a proclamation. It is regrettable that counsel, in his
petition, did not so inform this Tribunal. Upon being required to comment,
respondent Teves pointed out that he had on March 1, 1980 taken his oath
of office, duly assumed the position and thereafter exercised the functions of
governor of Negros Oriental. 7 In addition, the comment pointed out that
there was pending an election protest before respondent Commission with
petitioner Jesus L. Villegas and the other candidates of his party for the
positions of vice-governor as well as members of the Sangguniang
Panlalawigan, 8 contesting his election and that of his party-mates. A copy of
the protest was likewise included which indicated that it was filed with
respondent Commission on February 9, 1980 and that the grounds alleged in
the pre-proclamation controversy were the same grounds on which the
protest was based. 9 Moreover, respondent Teves had filed on March 4,
1980 his answer with a counterclaim. 10 It is thus clear that the election
protest is still pending with the respondent Commission. The prayer was for
the dismissal of the petition.
Solicitor General Estelito P. Mendoza, 11 in his comment likewise sought its
dismissal. As was therein pointed out: "Considering, however, that
respondent Lorenzo G. Teves had already been proclaimed as the winner in
the gubernatorial elections in Negros Oriental, that he had already taken his
oath and that he had already assumed the office of the governor of said
province, the instant petition has become moot and academic; 3.
Furthermore, as correctly observed or ruled by the COMELEC, in its
resolution of February 2, 1980 . . . the grounds relied upon by petitioner in
PP No. 63 which are the same grounds alleged by him in this instant petition
are proper grounds for an election protest or criminal action." 12
Both comments were considered as answers and the case submitted for
decision. As set forth at the outset, the petition cannot prosper.chanrobles
law library : red
On the face of the urgent petition before respondent Commission on
Elections, which was dismissed in the assailed resolution of February 2,
1980, the grounds in the pre-proclamation controversy are that respondent
Teves committed acts violative of certain sections of the 1978 Election Code,
13 specifically referred to as giving money or other material inducements to
influence, induce, or corrupt the voters; committing acts of terrorism to
enhance his candidacy; attaching or displaying billboards on tricycles or
other motor vehicles in announcing or advertising his candidacy, during the
prohibited period of campaigning, and on election day; showing or displaying
publicly advertisement or propaganda in favor of his candidacy by means of
cinematography; giving free of charge, directly or indirectly, transportation,
food, or drinks or things of value during a public meeting in favor of several
candidates not only during the three hours before and after such meetings,
but also on the day preceding the election and on the day of the election;
engaging in massive vote buying using public funds under any guise
whatsoever, directly or indirectly, for an election campaign; using
government equipment and vehicle for any election campaign or for partisan
political activity; availing himself of any scheme to discover the contents of
the ballot of a voter who has just voted; transferring the location of a voting
center without proper authority; violating the integrity of official ballots by
adding false ones to the genuine ones, and altering results in electoral
precincts counting of votes; altering certified list of voters to confuse voters or
for the purpose of discouraging voters from casting his vote resulting in the
disenfranchisement of 20% of the entire voting population of the province
and registering new and qualified voters on election day and allowing them to
vote; allowing or inducing flying voters to vote more than once in the same
election; using of ballots other than the one given by the election committee
to alter results of counting votes; distributing sample ballots inside voting
centers; and holding in some precincts, elections a day prior to January 30,
1980. 14
As noted in the comment of respondent Teves, those are the very same
grounds in the election protest filed with respondent Commission on
February 9, 1980. It becomes quite apparent then as to why this petition
should be dismissed. No harm whatsoever could be caused petitioner
Villegas. The opportunity for him to prove such a wholesale allegation of
massive fraud and violations of the Election Code is still there. The election
protest which he himself had filed with respondent Commission three days
after this urgent petition for certiorari and prohibition was submitted to this
Tribunal is an even more appropriate vehicle for that purpose. Nor should it
be lost sight of that the election protest was not even made ex abundanti
cautela. It appears to be a deliberate choice on his part to rely on such a
proceeding. If, therefore, dismissal of his petition becomes unavoidable, he
should be aware on whose shoulder the responsibility falls. Then, too, it
would be a time consuming effort if the pre-proclamation controversy at this
stage would have to be sent back to the Commission on Elections for a full-
dress hearing. That is essential in the task of adjudication, being one of the
cardinal requirements of procedural due process. The election protest,
however, would serve just as well, if not better. Moreover, it would be in
keeping with the letter and spirit of the Constitution, granting as it did the
additional competence to respondent Commission to be "the sole judge of all
contests relating to the elections, returns, and qualifications of all Members
of the National Assembly and elective provincial and city officials." 15
WHEREFORE, this petition is dismissed without pronouncement as to costs.
45