CONSTI REV – FULL TEXT
RA 7166, SECTION 5. Election and Campaign Period. — Unless otherwise fixed by the Commission, the
election period for the May 11, 1992 regular elections shall commence ninety (90) days before the day of the
elections and shall end thirty (30) days thereafter.
The campaign periods are hereby fixed as follows:
(a) For President, Vice-President and Senators, ninety (90) days before the day of the election; and
(b) For Members of the House of Representatives and elective provincial, city and municipal officials,
forty-five (45) days before the day of the election.
However, in the preparation of the election calendar, the Commission may exclude the day before the day of
the election itself, Maundy Thursday and Good Friday.
Any election campaign or partisan political activity for or against any candidate outside of the campaign period
herein provided is prohibited and shall be considered as an election offense punishable under Section 263 and
264 of the Omnibus Election Code.
SEC 80, OEC 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. (Sec. 35, 1978 EC)
EN BANC
[G.R. No. 181613. November 25, 2009.]
ROSALINDA A. PENERA, petitioner, vs. COMMISSION ON ELECTIONS and EDGAR T. ANDANAR,
respondents.
RESOLUTION
CARPIO, J p:
We grant Rosalinda A. Penera's (Penera) motion for reconsideration of this Court's Decision of 11 September
2009 (Decision). ACTISD
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 . . . ". 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.
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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.
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. TcIAHS
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
CONSTI REV – FULL TEXT
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.
xxx xxx xxx
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.
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JULY 11, 2019
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 . . . fixed by existing law" prior to RA 8436 and that one who files to
meet the early deadline "will still not be considered as a candidate". 3 (Emphasis in the original)
Lanot was decided on the ground that one who files a certificate of candidacy is not a candidate until the start
of the campaign period. This ground was based on the deliberations of the legislators who explained the intent
of the provisions of RA 8436, which laid the legal framework for an automated election system. There was no
express provision in the original RA 8436 stating that one who files a certificate of candidacy is not a candidate
until the start of the campaign period.
When Congress amended RA 8436, Congress decided to expressly incorporate the Lanot doctrine into law,
realizing that Lanot merely relied on the deliberations of Congress in holding that —
The clear intention of Congress was to preserve the "election periods as . . . 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 xxx 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 —
. . . Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start
of the aforesaid campaign period, . . . .
In RA 9369, Congress inserted the word "only" so that the first proviso now reads —
. . . Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of
the aforesaid campaign period . . . . (Emphasis supplied)
CONSTI REV – FULL TEXT
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:
. . . 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. . . .
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:
. . . [T]he line in Section 15 of Republic Act No. 8436, as amended, which provides that "any unlawful act or
omission applicable to a candidate shall take effect only upon the start of the campaign period", does not
mean that the acts constituting premature campaigning can only be committed, for which the offender may be
disqualified, during the campaign period. Contrary to the pronouncement in the dissent, nowhere in said
proviso was it stated that campaigning before the start of the campaign period is lawful, such that the offender
may freely carry out the same with impunity.
As previously established, a person, after filing his/her COC but prior to his/her becoming a candidate (thus,
prior to the start of the campaign period), can already commit the acts described under Section 79(b) of the
Omnibus Election Code as election campaign or partisan political activity, However, only after said person
officially becomes a candidate, at the beginning of the campaign period, can said acts be given effect as
premature campaigning under Section 80 of the Omnibus Election Code. Only after said person officially
becomes a candidate, at the start of the campaign period, can his/her disqualification be sought for acts
constituting premature campaigning. Obviously, it is only at the start of the campaign period, when the person
officially becomes a candidate, that the undue and iniquitous advantages of his/her prior acts, constituting
premature campaigning, shall accrue to his/her benefit. Compared to the other candidates who are only about
to begin their election campaign, a candidate who had previously engaged in premature campaigning already
enjoys an unfair headstart in promoting his/her candidacy. 6 (Emphasis supplied)
It is a basic principle of law that any act is lawful unless expressly declared unlawful by law. This is specially
true to expression or speech, which Congress cannot outlaw except on very narrow grounds involving clear,
present and imminent danger to the State. The mere fact that the law does not declare an act unlawful ipso
facto means that the act is lawful. Thus, there is no need for Congress to declare in Section 15 of RA 8436, as
amended by RA 9369, that political partisan activities before the start of the campaign period are lawful. It is
sufficient for Congress to state that "any unlawful act or omission applicable to a candidate shall take effect
3
JULY 11, 2019
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.
Puno, C.J., Corona, Carpio Morales, Velasco, Jr., Brion, Peralta, Bersamin and Villarama, Jr., JJ., concur.
Chico-Nazario, J., please see my dissenting opinion.
Nachura, Leonardo-de Castro and Del Castillo, JJ., join the dissent of J. Nazario.
Abad, J., see my dissent.
Separate Opinions
CHICO-NAZARIO, J., dissenting:
On 11 September 2009, the Court rendered a Decision in the instant case disqualifying Rosalinda A. Penera
from running as Mayor of Sta. Monica, Surigao Del Norte for engaging in the prohibited act of premature
campaigning.
Penera forthwith filed a Motion for Reconsideration 1 of the above Decision, invoking the following arguments,
to wit:
1) Penera was not yet a candidate at the time of the incident under Section 11 of Republic Act No. 8436, as
amended by Section 13 of Republic Act No. 9369. 2
2) Section 80 of the Omnibus Election Code was expressly repealed by Republic Act No. 9369. 3
3) The petition for disqualification failed to submit convincing and substantial evidence against Penera for
violation of Section 80 of the Omnibus Election Code. 4
CONSTI REV – FULL TEXT
4) Penera never admitted the allegations of the petition for disqualification and has consistently disputed the
charge of premature campaigning. 5
5) The admission that Penera participated in a motorcade is not the same as admitting she engaged in
premature election campaigning. 6
I vote to deny the Motion for Reconsideration.
Penera's Motion for Reconsideration
The basic issues in the Motion for Reconsideration were already passed upon in the Decision dated 11
September 2009 and no substantial arguments were raised.
The grounds that: (1) Penera was not yet a candidate at the time of the incident under Section 11 of Republic
Act No. 8436, as amended by Section 13 of Republic Act No. 9369; (2) Section 80 of the Omnibus Election
Code was expressly repealed by Republic Act No. 9369; and (3) the petition for disqualification failed to submit
convincing and substantial evidence against Penera for violation of Section 80 of the Omnibus Election Code
are all reiterations of her previous arguments before the Court and the same had already been adequately
addressed in the Decision dated 11 September 2009.
Incidentally, Penera herself disclosed in her Motion for Reconsideration that she is the respondent in a criminal
case filed by Edgar T. Andanar for the commission of election offenses in violation of the Omnibus Election
Code, which is docketed as EO Case No. 08-99. 7 Thus, the pronouncement in the Decision dated 11
September 2009 that the instant case should concern only the electoral aspect of the disqualification case
finds more reason. As noted in the Decision, any discussion on the matter of Penera's criminal liability for
premature campaigning would have been preemptive and nothing more than obiter dictum.
With respect to the assertion that Penera never admitted the allegations of the petition for disqualification and
has consistently disputed the charge of premature campaigning, the same is utterly without merit. Penera
admitted participating in the motorcade after filing her COC. What she merely denied and/or refuted were the
minor details concerning the conduct of said motorcade.
Likewise, Penera's contention that her admission of participating in the motorcade in this case is not the same
as admitting that she engaged in premature campaigning deserves scant consideration. Logically, to admit to
the elements constituting the offense of premature campaigning is to admit to the commission of the said
offense. Precisely, it is the act of participating in the motorcade after the filing of her COC that constituted the
prohibited act of premature campaigning in the instant case.
Finally, the claim of Penera that not all motorcades are designed to promote the election of a candidate is
unimpressive. Clearly, the context of the discussion on motorcades in the Decision dated 11 September 2009
was disregarded. The discussion pertained to motorcades conducted during election periods by candidates
and their supporters. In such an instance, a motorcade assumes an entirely different significance and that is to
promote a candidate.
As held in the Decision dated 11 September 2009, the conduct of a motorcade during election periods is a
form of election campaign or partisan political activity, falling squarely within the ambit of Section 79 (b) (2) of
the Omnibus Election Code, on "[h]olding political caucuses, conferences, meetings, rallies, parades, or other
similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or
against a candidate[.]" The obvious purpose of the conduct of motorcades during election periods is to
introduce the candidates and the positions to which they seek to be elected to the voting public; or to make
them more visible so as to facilitate the recognition and recollection of their names in the minds of the voters
come election time.
The pretense that the motorcade was only a convoy of vehicles, which was entirely an unplanned event that
dispersed eventually, does not hold water. After filing their certificates of candidacy, Rosalinda Penera and the
other members of her political party conducted a motorcade and went around the different barangays in the
municipality of Sta. Monica, Surigao Del Norte. The motorcade consisted of two (2) jeepneys and ten (10)
motorcycles, which were all festooned with multi-colored balloons. There was marching music being played on
the background and the individuals onboard the vehicles threw candies to the people they passed by along the
streets. With the number of vehicles, the balloons, the background marching music, the candies on hand and
the route that took them to the different barangays, the motorcade could hardly be considered as spontaneous
and unplanned.
Majority Opinion
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JULY 11, 2019
Although the majority opinion initially mentions the above-stated grounds of Penera's Motion for
Reconsideration, the same were not at all discussed. The Resolution of the majority purely involves an
exposition of the grounds set forth in the Dissenting Opinion of Justice Antonio T. Carpio to the Decision dated
11 September 2009.
At the outset, the majority opinion highlights the relevant provisions of law defining the meaning of a
candidate.
Under Section 79 (a) of the Omnibus Election Code, a candidate is "any person aspiring for or seeking an
elective public office, who has filed a certificate of candidacy by himself or through an accredited political party,
aggroupment, or coalition of parties". On the other hand, the second sentence in the third paragraph of
Section 15 of Republic Act No. 8436, as amended by Republic Act No. 9369, states that "[a]ny 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". The first proviso in the same paragraph
provides that "unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the
aforesaid campaign period".
The majority opinion goes on to quote a paragraph in the Decision dated 11 September 2009, underscoring a
portion of the same as follows:
When the campaign period starts and said person proceeds with his/her candidacy, his/her intent turning into
actuality, we can already consider his/her acts, after the filing of his/her [certificate of candidacy (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.
According to the interpretation of the majority of the above pronouncement, the Decision dated 11 September
2009 already considers a person who filed a COC a "candidate" even before the start of the campaign period.
From the filing of the COC, even before the start of the campaign period, the ponente allegedly considers the
partisan political acts of a person filing a COC "as the promotion of his/her election as a candidate".
The majority clearly mistook the import of the above-quoted portion and read the same out of context.
Absolutely nowhere in the Decision dated 11 September 2009 was it stated that a person who filed a COC is
already deemed a candidate even before the start of the campaign period.
To recall, the Court held in its Decision that Section 80 of the Omnibus Election Code, which defines the
prohibited act of premature campaigning, was not repealed, expressly or impliedly, by Section 15 of Republic
Act No. 8436, as amended.
Section 80 of the Omnibus Election Code reads:
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: . . . . ETHaDC
While relevant portions of Section 15 of Republic Act No. 8436, as amended by Republic Act No. 9369,
provide:
SECTION 15. Official Ballot. — . . .
xxx xxx xxx
For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition of
registration/manifestation to participate in the election. Any person who files his certificate of candidacy within
this period shall only be considered as a candidate at the start of the campaign period for which he filed his
certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect
only upon the start of the aforesaid campaign period[.]
The Court harmonized and reconciled the above provisions in this wise:
The following points are explanatory:
First, Section 80 of the Omnibus Election Code, on premature campaigning, explicitly provides that "[i]t shall
be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to
engage in an election campaign or partisan political activity, except during the campaign period". Very simply,
premature campaigning may be committed even by a person who is not a candidate.
CONSTI REV – FULL TEXT
For this reason, the plain declaration in Lanot that "[w]hat Section 80 of the Omnibus Election Code prohibits
is 'an election campaign or partisan political activity' by a 'candidate' 'outside' of the campaign period", is
clearly erroneous.
Second, Section 79(b) of the Omnibus Election Code defines election campaign or partisan political activity in
the following manner:
SECTION 79. Definitions. — As used in this Code:
xxx xxx xxx
(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: EAcIST
(1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of
soliciting votes and/or undertaking any campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the
purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any
candidate for public office;
(4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any
candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.
True, that pursuant to Section 15 of Republic Act No. 8436, as amended, even after the filing of the COC but
before the start of the campaign period, a person is not yet officially considered a candidate. Nevertheless, a
person, upon the filing of his/her COC, already explicitly declares his/her intention to run as a candidate in the
coming elections. The commission by such a person of any of the acts enumerated under Section 79(b) of the
Omnibus Election Code (i.e., holding rallies or parades, making speeches, etc.) can, thus, be logically and
reasonably construed as for the purpose of promoting his/her intended candidacy.
When the campaign period starts and said person proceeds with his/her candidacy, his/her intent turning into
actuality, we can already consider his/her acts, after the filing of his/her COC and prior to the campaign period,
as the promotion of his/her election as a candidate, hence, constituting premature campaigning, for which
he/she may be disqualified. . . . (Underscoring supplied.)
The last paragraph of the aforequoted portion of the Decision dated 11 September 2009 should be read
together with, and qualified by, the paragraph immediately preceding it. Clearly, the ponente was quite explicit
in stating that, after the filing of the COC but before the start of the campaign period, a person is not yet
considered a candidate. After filing the COC, however, the commission by such person of the acts enumerated
under Section 79 (b) of the Omnibus Election Code can already be construed as being for the purpose of
promoting his/her intended candidacy.
Thereafter, it is only at the start of the campaign period, when said person is already a formal candidate, that
the partisan political acts that he/she committed after the filing of the COC can already be considered as being
for the promotion of his/her election as a candidate; hence, constituting premature campaigning.
Reversal of Lanot v. Commission on Elections
The majority likewise ascribes error on the part of the ponente for reversing Lanot, which held that a person
should be a candidate before premature campaigning may be committed. Resolved under the auspices of
Republic Act No. 8436, 8 the previous automation law, Lanot was allegedly decided on the ground that one
who files a COC is not a candidate until the start of the campaign period.
Supposably, Congress wanted to ensure that any person filing a COC under the early deadline required by the
automated election system would not be disqualified for any partisan political act done prior to the start of the
campaign period. In enacting Republic Act No. 9369, Congress expressly wrote the Lanot doctrine into the
second sentence, third paragraph, Sec. 15 of Republic Act No. 8436, which states that "[a]ny person who files
his certificate of candidacy within [the period for filing COCs] shall only be considered as a candidate at the
start of the campaign period for which he filed his certificate of candidacy".
The majority, therefore, concludes that the ponente cannot reverse Lanot without repealing the above
sentence, since to reverse Lanot would mean repealing the said sentence. The ponente, however, in reversing
5
JULY 11, 2019
Lanot does not claim that the second sentence or any portion of Section 15 of RA 8436, as amended by RA
9369, is unconstitutional. Thus, the Decision dated 11 September 2009 is supposedly self-contradictory —
reversing Lanot but maintaining the constitutionality of the second sentence, which embodies the Lanot
doctrine. In so doing, the majority avers that the majority decision is irreconcilably in conflict with the clear
intent and letter of the second sentence, third paragraph of Section 15 of Republic Act No. 8436, as amended
by Republic Act No. 9369.
The majority opinion arrives at an erroneous conclusion based on a faulty premise.
Lanot was decided on the basis of the requirement therein that there must be first a candidate before the
prohibited act of premature campaigning may be committed.
In Lanot v. Commission on Elections, 9 Lanot, et al., filed a petition for disqualification against the then Pasig
City mayoralty candidate Vicente P. Eusebio for engaging in various forms of election campaign on different
occasions outside of the designated campaign period after he filed his COC during the 2004 local elections.
The Commission on Elections (COMELEC) Law Department recommended the disqualification of Eusebio for
violation of Section 80 of the Omnibus Election Code, which recommendation was approved by the
COMELEC First Division. The COMELEC en banc referred the case back to the COMELEC Law Department
to determine whether Eusebio actually committed the acts subject of the petition for disqualification.
The Court, speaking through Justice Carpio, adjudged that Eusebio was not liable for premature campaigning
given that the latter committed partisan political acts before he became a candidate. The Court construed the
application of Section 11 of Republic Act No. 8463 vis-à-vis the provisions of Sections 80 and 79 (a) of the
Omnibus Election Code. Section 11 of Republic Act No. 8436 moved the deadline for the filing of certificates of
candidacy to 120 days before election day. The Court ruled that the only purpose for the early filing of COCs
was to give ample time for the printing of official ballots. Congress, however, never intended the early filing of
a COC to make the person filing to become immediately a "candidate" for purposes other than the printing of
ballots. This legislative intent prevented 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 . . . fixed by existing law" prior to Republic Act No. 8436 and that one who files to meet the early deadline
"will still not be considered as a candidate". 10
Simply stated, the Court adjudged in Lanot that when Eusebio filed his COC to meet the early deadline set by
COMELEC, he did not thereby immediately become a candidate. Thus, there was no premature campaigning
since there was no candidate to begin with. It is on this ground that the majority reversed Lanot.
The ponente reiterates that the existence of a candidate is not necessary before premature campaigning may
be committed. Section 80 of the Omnibus Election Code unequivocally provides that "[i]t shall be unlawful for
any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an
election campaign or partisan political activity, except during the campaign period". Very specific are the
wordings of the law that the individual who may be held liable to commit the unlawful act of premature
campaigning can be any person: a voter or non-voter, a candidate or a non-candidate.
Furthermore, as already previously discussed, Section 80 of the Omnibus Election Code was not repealed by
Section 15 of RA 8436, as amended by RA 9369. In construing the said provisions, as well as that of Section
79 (a) of the Omnibus Election Code, which defines the meaning of the term candidate, the majority has
settled that, after the filing of the COC but before the start of the campaign period, a person is yet to be
considered a formal candidate. Nonetheless, by filing the COC, the person categorically and explicitly declares
his/her intention to run as a candidate. Thereafter, if such person commits the acts enumerated under Section
79 (b) of the Omnibus Election Code, said acts can already be construed as for the purpose of promoting
his/her intended candidacy.
Thus, contrary to the majority opinion, the Decision dated 11 September 2009 is not self-contradictory. The
ponente can reverse Lanot and still uphold the second sentence, third paragraph of Section 15 of Republic Act
No. 8436, as amended.
The majority also stresses that in the enactment of Republic Act No. 9369, Congress inserted the word "only"
to the first proviso in the third paragraph of Section 11 of Republic Act No. 8436 so that the same now reads:
Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the
aforesaid campaign period.
Thus, Congress even strengthened its mandatory directive that election offenses can be committed by a
candidate "only" upon the start of the campaign period. Accusing the ponente of giving a specious reasoning
in explaining the above proviso, the majority points out to the basic principle of law that any act is lawful,
CONSTI REV – FULL TEXT
unless expressly declared as unlawful. Therefore, the majority claims that there was no need for Congress to
declare in Section 15 of Republic Act No. 8436, as amended, that partisan political activities before the start of
the campaign period are lawful. The logical conclusion is that partisan political acts, if done before the start of
the campaign period, are lawful. According to the majority, any election offense that may be committed by a
candidate under any election law cannot be committed before the start of the campaign period.
The ponente takes exception to the above sweeping and unwarranted reasoning. Not all election offenses are
required to be committed by a candidate and, like the prohibited act of premature campaigning, not all election
offenses are required to be committed after the start of the campaign period. To reiterate, Section 80 of the
Omnibus Election Code, which defines the prohibited act of premature campaigning is still good law despite
the passage of Section 15 of Republic Act No. 8436, as amended. Precisely, the conduct of election campaign
or partisan political activity before the campaign period is the very evil that Section 80 seeks to prevent.
The majority opinion maintains its objection to the allegedly strained construction and/or interpretation of the
ponente of the particular provisions involved in this case. With equal vehemence, however, the ponente
adamantly rejects the majority's absurd and unwarranted theory of repeal of Section 80 of the Omnibus
Election Code put forth in both the Dissenting Opinion to the Decision dated 11 September 2009 and the
Resolution of the majority.
As the majority repeatedly pointed out, Section 15 of Republic Act No. 8436, as amended by Republic Act No.
9369, was enacted merely to give the COMELEC ample time for the printing of ballots. Section 80 of the
Omnibus Election Code, on the other hand, is a substantive law which defines the prohibited act of premature
campaigning, an election offense punishable with the gravest of penalties that can be imposed on a candidate,
i.e., disqualification or, if elected, removal from office. If the majority opinion indignantly rejects the attempts of
the ponente to reconcile the provisions of Section 80 of the Omnibus Election Code and Section 15 of
Republic Act No. 8436, as amended, then why should they insist on repealing the former provision and not the
latter?
The ponente emphasizes that whether the election would be held under the manual or the automated system,
the need for prohibiting premature campaigning — to level the playing field between the popular or rich
candidates, on one hand, and the lesser-known or poorer candidates, on the other, by allowing them to
campaign only within the same limited period — remains. Again, the choice as to who among the candidates
will the voting public bestow the privilege of holding public office should not be swayed by the shrewd conduct,
verging on bad faith, of some individuals who are able to spend resources to promote their candidacies in
advance of the period slated for campaign activities.
However, by virtue of the Resolution of the majority, premature campaigning will now be officially
decriminalized and, as a consequence, the value and significance of having a campaign period will now be
utterly negated. Thus, one year, five years or even ten years prior to the day of the elections, a person aspiring
for public office may now engage in election campaign or partisan political activities to promote his candidacy,
with impunity. All he needs to have is a very deep campaign war chest to be able to carry out this shrewd
activity.
Indeed, while fair elections has been dealt a fatal blow by the Resolution of the majority, it is fervently hoped
that the writing of the Decision dated 11 September 2009 and this Dissenting Opinion will not be viewed as an
effort made in vain if in the future the said Resolution can be revisited and somehow rectified.
Premises considered, there is no reason to reverse and set aside the earlier ruling of the Court rendered in
this case.
I, therefore, vote to DENY WITH FINALITY the Motion for Reconsideration filed by Rosalinda A. Penera on the
Decision dated 11 September 2009.
ABAD, J., dissenting:
The Facts and the Case
Petitioner Rosalinda Penera and respondent Edgar Andanar ran for mayor of Sta. Monica, Surigao Del Norte,
during the May 14, 2007 elections.
On March 29, 2007 a motorcade by petitioner Penera's political party preceded the filing of her certificate of
candidacy before the Municipal Election Officer of Sta. Monica. Because of this, on April 2, 2007 Andanar filed
with the Regional Election Director for Region 13 in SPA 07-224 a petition to disqualify 1 Penera, among
others, 2 for engaging in election campaign before the start of the campaign period.
6
JULY 11, 2019
Andanar claimed that Penera and her partymates went around Sta. Monica on March 29, announcing their
candidacies and asking the people to vote for them in the coming elections. Answering the petition, Penera
claimed that although a motorcade preceded the filing of her certificate of candidacy, she merely observed the
usual practice of holding a motorcade on such momentous occasion, but which celebration ended soon after
she filed her certificate. Penera claimed that no one made a speech during the event. All they had were lively
background music and "a grand standing for the purpose of raising the hands of the candidates in the
motorcade".
The parties presented their position papers and other evidence in the case. 3 Afterwards, the regional office
forwarded its record to the Commission on Elections (COMELEC) in Manila where the case was raffled to the
Second Division for resolution. But the elections of May 14, 2007 overtook it, with petitioner Penera winning
the election for Mayor of Sta. Monica. She assumed office on July 2, 2007.
On July 24, 2007 the COMELEC's Second Division issued a resolution, disqualifying petitioner Penera from
continuing as a mayoralty candidate in Sta. Monica on the ground that she engaged in premature campaigning
in violation of Sections 80 and 68 of the Omnibus Election Code. The Second Division found that she, her
partymates, and a bevy of supporters held a motorcade of two trucks and numerous motorcycles laden with
balloons, banners, and posters that showed the names of their candidates and the positions they sought. One
of the trucks had a public speaker that announced Penera's candidacy for mayor.
Petitioner Penera filed before the COMELEC en banc a motion for reconsideration 4 of the Second Division's
July 24, 2007 resolution. The En Banc denied her motion on January 30, 2008. 5 Still undeterred, Penera
came up to this Court. On September 11, 2009 an almost evenly divided Court affirmed the ruling of the
COMELEC. On motion for reconsideration, however, the number of votes shifted in favor of granting the
petition and reversing the ruling of the COMELEC.
The Issue
The core issue that divided the Court is whether or not petitioner Penera's act of campaigning for votes
immediately preceding the filing of her certificate of candidacy on March 29, 2007 violates the prohibition in
Section 80 of the Omnibus Election Code against premature campaigning, with the result that she is
disqualified from holding office in accordance with Section 68 of the Code.
Discussion
Section 80 of the Omnibus Election Code prohibits any person, whether a candidate or not, from engaging in
election campaign or partisan political activity except during the campaign period fixed by law.
Apart from its penal consequence, the law disqualifies any candidate who engages in premature campaigning
from holding the office to which he was elected. Section 68 of the Code reads:
SECTION. 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is
declared by final decision of a competent court guilty of, or found by the Commission of having . . . (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; . . . . (Underscoring
supplied.)
Since the COMELEC found petitioner Penera guilty of having led on March 29, 2007 a colorful and noisy
motorcade that openly publicized her candidacy for mayor of Sta. Monica, this Court held in its original
decision that the COMELEC correctly disqualified her from holding the office to which she was elected.
The current majority of the Court claims, however, that with the passage of Republic Act (R.A.) 9369, a
candidate who campaigns before the official campaign period may no longer be regarded as having committed
an unlawful act that constitutes ground for disqualification. The majority's reasoning is as follows:
a. Section 79 (a) of the Omnibus Election Code states that a candidate is "any person aspiring for or seeking
an elective public office, who has filed a certificate of candidacy by himself or through an accredited political
party, aggroupment, or coalition of parties".
b. It is a person's filing of a certificate of candidacy, therefore, that marks the beginning of his being a
candidate. It is also such filing that marks his assumption of the responsibilities that goes with being a
candidate. Before Penera filed her certificate of candidacy on March 29, 2007, she could not be regarded as
having assumed the responsibilities of a "candidate".
CONSTI REV – FULL TEXT
c. One of these responsibilities is the duty not to commit acts that are forbidden a candidate such as
campaigning for votes before the start of the prescribed period for election campaigns. Premature
campaigning is a crime and constitutes a ground for disqualification from the office that the candidate seeks.
d. But, with the amendment of Section 15 of R.A. 8436 by Section 13 of R.A. 9369, a person's filing of a
certificate of candidacy does not now automatically mark him as a "candidate". He shall be regarded a
"candidate", says Section 15, only at the start of the campaign period. Further, the "unlawful acts or omissions
applicable to a candidate shall take effect only upon the start of the aforesaid campaign period".
It is significant that before the passage of R.A. 9369 a candidate for a local office had up to the day before the
start of the campaign period (which in the case of a local election consists of 45 days before the eve of
election day) within which to file his certificate of candidacy and, thus, be regarded as a "candidate". But the
need for time to print the ballots with the names of the candidates on them under the automated election
system prompted Congress to authorize the COMELEC to set a deadline for the filing of the certificates of
candidacy long before the start of the campaign period. Thus, the pertinent portion of Section 15 of R.A. 8436,
as amended, provides:
SECTION 15. Official ballot. —
xxx xxx xxx
For this purpose [the printing of ballots], the Commission shall set the deadline for the filing of certificate of
candidacy/petition for registration/manifestation to participate in the election. . . .
xxx xxx xxx
Evidently, while Congress was willing to provide for advance filing of certificates of candidacy, it did not want to
impose on those who file early certificates the responsibilities of being already regarded as "candidates" even
before the start of the campaign period. Thus, the same Section 15 provides further on:
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; . . . .
In Penera's case, she filed her certificate of candidacy on March 29, 2007. Section 15 does not yet treat her as
"candidate" then. Only at the start of the official campaign period on March 30, 2007 was she to be considered
as such "candidate". To emphasize this, Congress provided further on in Section 15 that an early filer's
responsibility as a candidate begins only when the campaign period begins. Thus —
Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the
aforesaid campaign period; . . . .
The current majority concludes from the above that from the time R.A. 9369 took effect on February 10, 2007
a person like petitioner Penera cannot be held liable as a "candidate" for engaging in premature election
campaign before she filed her certificate of candidacy or even after she filed one since she may be regarded
as a "candidate" only at the start of the campaign period on March 30, 2007. Consequently, since she was not
yet a "candidate" on March 29, 2007 when she went around Sta. Monica campaigning for votes on her way to
appearing before the election registrar to file her certificate of candidacy, she cannot be held liable for
premature campaigning.
But the fact that Penera was not yet a candidate before she actually handed in her certificate of candidacy to
the designated COMELEC official does not exempt her from the prohibition against engaging in premature
election campaign. Section 80 which imposes the ban ensnares "any person", even a non-candidate. Thus:
aSTAHD
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: . . . (Emphasis ours.)
Essentially, the law makes the prohibition against premature campaigning apply to "any person" and "any
party, or association of persons". This means that no one is exempt from the ban. The mention of the word
"candidate" in the first grouping, i.e., "any person, whether or not a voter or candidate", merely stresses the
point that even those with direct interest in a political campaign are not exempt from the ban. Consequently,
even if Penera had not yet filed her certificate of candidacy, Section 80 covered her because she fell in the
category of "any person".
7
JULY 11, 2019
The provision of Section 15 of R.A. 8436, as amended, that regards Penera as a "candidate" only at the start
of the campaign period on March 30, 2007 did not, therefore, exempt her from liability as a non-candidate
engaging in premature election campaign.
Here, candidate Penera has been found by the COMELEC to have violated Section 80 when, even before she
was a candidate, she prematurely campaigned for votes for herself. The ground for her consequent
disqualification — premature campaigning — already accrued by the time she filed her certificate of candidacy
or when the official campaign period began. Consequently, she is disqualified under Section 68 from
continuing as a candidate or, since she has been elected, from holding on to that office. Thus:
SECTION 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is
declared by final decision of a competent court guilty of, or found by the Commission of having . . . (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; . . . (Underscoring supplied.)
Does this position contravene Section 15 of R.A. 8436, as amended, that regards Penera as a "candidate"
only at the start of the campaign period on March 30, 2007? It does not because Section 80, which the Court
seeks to enforce, is essentially intended as a ground for sanctioning "any person", not necessarily a
candidate, who engages in premature election campaign.
The real challenge to the current minority position, however, is the meaning that the Omnibus Election Code
places on the term "election campaign". "The term 'election campaign' or 'partisan political activity', says
Section 79, "refers to an act designed to promote the election or defeat of a particular candidate or candidates
to a public office". The object of the election campaign activity must be the "election or defeat of a particular
candidate".
When petitioner Penera practically said "vote for me" during the March 29 motorcade that she led around Sta.
Monica, did she solicit votes for a "particular candidate"? The current majority holds that since, according to
Section 79, a "candidate refers to any person aspiring for or seeking an elective public office, who has filed a
certificate of candidacy" and since Penera held her vote-solicitation motorcade before she filed her certificate
of candidacy, she did not engage during the town motorcade in a campaign for the election of any "particular
candidate".
But this is being too literal. It is like saying that a woman cannot be held liable for parricide since the penal
code uses the male pronoun in ascribing to the offender the acts that constitute the crime. Thus, the penal
code says:
Art. 246. Parricide. — Any person who shall kill his father, mother, or child, whether legitimate or illegitimate,
or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and shall be punished by
the penalty of reclusion perpetua to death.
Yet, parricide, as everyone knows, can also be committed by a woman who shall kill her father, mother, or
child, or her spouse. The spirit of the law intends to punish any person, male or female, who kills his or her
ascendants, descendants, or spouse. Literalness must yield to evident legislative intent.
Here, did Congress in enacting R.A. 9369 intend to abolish or repeal Section 80 of the Omnibus Election Code
that prohibits election campaigns before the start of the campaign period? It did not. Section 80 remains in the
statute books and R.A. 9369 did not, directly or indirectly, touch it.
The current majority of course claims, citing Section 15 of R.A. 8436, as amended, that "the effective date
when partisan political acts become unlawful as to a candidate is when the campaign period starts. The
pertinent portion of Section 15 says:
Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the
aforesaid campaign period; . . . .
If we were to abide by the view of the current majority, Congress ordained when it passed the above provision
that it is only for unlawful acts or omissions committed during the campaign period that candidates could be
punished. Consequently, if candidates take campaign funds from a foreign government 6 or conspire with
others to bribe voters 7 just one day before the start of the campaign period, they cannot be prosecuted. A
candidate under the theory of the current majority can freely commit a litany of other crimes relating to the
election so long as he commits them before the start of the campaign period. Surely, R.A. 9369 did not intend
to grant him immunity from prosecution for these crimes.
The more reasonable reading of the provision — that unlawful acts or omissions applicable to a candidate
shall take effect only upon the start of the campaign period — is that Congress referred only to unlawful acts
CONSTI REV – FULL TEXT JULY 11, 2019

or omissions that could essentially be committed only during the campaign period. For how could a candidate 5. Rollo, p. 459.
commit unlawful "pre-campaign" acts during the campaign period? 6. Rollo, p. 465.
7. Rollo, p. 455. Under Section 7, Rule 4 of the Commission on Elections Rules of Procedure, EO stands
The unlawful act of engaging in premature election campaign under Section 80, in relation to Section 79 which for Election Offenses.
defines the terms "candidate" and "election campaign", may be regarded as consisting of three elements: 8. The relevant provision in Republic Act No. 8436 is Section 11, which pertinently provides:
1. A person acts to promote the election or defeat of another to a public office; SECTION 11. Official ballot. — . . .
xxx xxx xxx
2. He commits the act before the start of the campaign period; and 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)
3. The person whose election or defeat the offender seeks has filed a certificate of candidacy for the office.
days before the elections: . . .: Provided, further, That, unlawful acts or omissions applicable to a
The first two elements could take place when the offender engages in premature election campaign for the candidate shall take effect upon the start of the aforesaid campaign period[.]
person whose election or defeat he seeks to promote but who has not as yet filed his certificate of candidacy. 9. G.R. No. 164858, 16 November 2006.
Whereas, the third element — consisting in the latter person's filing his certificate of candidacy — could take 10. Lanot v. Commission on Elections, G.R. No. 164858, 16 November 2006, 507 SCRA 114, 152.
place later, close to the campaign period.
ABAD, J., dissenting:
The elements of a crime need not be present on a single occasion. In B.P. 22 cases, the issuer of the check
may have knowingly issued a perfectly worthless check to apply on account. But, until the check is 1. Rollo, pp. 53-54.
dishonoured by the drawee bank, the crime of issuing a bouncing check is not deemed committed. The 2. Arcelito Petallo, Renato Virtudazo, Glorina Aparente, Silverio Tajos, Jose Platil, Medardo Sunico, Edelito
analogy is far from perfect but the point is that the offender under Section 80 knew fully when she shouted on Lerio and Sensualito Febra.
the top of her voice, "vote for me as your mayor!" before she filed her certificate of candidacy that she was 3. Rollo, p. 127.
running for mayor. If she says she is not liable because she is technically not yet a candidate, the people 4. Id. at 97-108.
should say, "Let us not kid each other!" 5. Id. at 48.
Congress could not be presumed to have written a ridiculous rule. It is safe to assume that, in enacting R.A. 6. Section 96, Omnibus Election Code.
9369, Congress did not intend to decriminalize illegal acts that candidates and non-candidates alike could 7. Section 261 (b), Omnibus Election Code.
commit prior to the campaign period. 8. Gonzales v. Commission on Elections, 137 Phil. 471, 490-491 (1969).
9. Id.
Further, current majority's view may doom the next generations. Congress enacted Section 80 because,
historically, premature election campaigns begun even years before the election saps the resources of the
candidates and their financial backers, ensuring considerable pay-back activities when the candidates are
elected. Such lengthy campaigns also precipitate violence, corrupt the electorate, and divert public attention
from the more vital needs of the country. 8
Actually, practically all the principal stakeholders in the election, namely, the voters, the candidates, and the
COMELEC, have since 1969 assumed that premature election campaign is not allowed. People generally wait
for the campaign period to start before engaging in election campaign. Even today, after the passage of R.A.
9369, those aspiring to national offices have resorted to the so-called "infomercials" that attempt to enhance
their popularities by showing their philosophies in life, what they have accomplished, and the affection with
which ordinary people hold them. No one has really come out with ads soliciting votes for any particular
candidate or person aspiring for a particular public office. They are all aware of Section 80.
Parenthetically, the Supreme Court declared the law banning premature election campaign constitutional in
Gonzales v. Commission on Elections 9 only because the majority in the Court were unable to muster two-
thirds votes to declare it unconstitutional. The freedom of expression has always loomed large in the mind of
the Court. It would not be likely, therefore, for the Court to hastily declare every expression tending to promote
a person's chances in the elections as prohibited election campaigning.
I vote to deny the motion for reconsideration.
Footnotes
1. Decision, p. 23 (Boldfacing and underscoring supplied).
2. G.R. No. 164858, 16 November 2006, 507 SCRA 114.
3. Id. at 147-152.
4. Id. at 152.
5. Dissenting Opinion of Justice Antonio T. Carpio, pp. 4-6.
6. Decision, p. 24.

CHICO-NAZARIO, J., dissenting:

1. Rollo, pp. 439-469.

2. Rollo, p. 441.
3. Rollo, p. 452.
4. Rollo, p. 455.

8
CONSTI REV – FULL TEXT
EN BANC
[G.R. No. 205728. July 5, 2016.]
THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M. NAVARRA
AND THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, petitioners, vs. COMMISSION ON
ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY. MAVIL V. MAJARUCON,
respondents.
RESOLUTION
LEONEN, J p:
This Motion for Reconsideration 1 filed by respondents prays that this Court reconsider its January 21, 2015
Decision and dismiss the Petition for lack of merit. 2 The dispositive portion of the Decision reads:
WHEREFORE, the instant petition is GRANTED. The temporary restraining order previously issued is hereby
made permanent. The act of the COMELEC in issuing the assailed notice dated February 22, 2013 letter
dated February 27, 2013 is declared unconstitutional.
SO ORDERED. 3 (Emphasis in the original)
First, respondents reiterate that the assailed notice and letter are not final orders by the Commission on
Elections En Banc in the exercise of its quasi-judicial functions, thus, not subject to this Court's review. 4
Respondents contend that they merely implemented the law when they issued the assailed notice and letter.
These are reviewable not by this Court but by the Commission on Elections pursuant to Article IX-C, Section 2
(3) of the Constitution on its power to decide "all questions affecting elections." 5 There are also remedies
under Rule 34 of the Commission on Elections Rules of Procedure on preliminary investigation for election
offenses. Respondents, thus, submit that petitioners violated the rule on exhaustion of administrative
remedies. 6
Second, respondents submit that the tarpaulin is election propaganda that the Commission on Elections may
regulate. 7 The tarpaulin falls under the definition of election propaganda under Section 1.4 of Commission on
Elections Resolution No. 9615 for three reasons. First, it "contains the names of the candidates and party-list
groups who voted for or against the RH Law." 8 Second, "the check mark on 'Team Buhay' and the cross mark
on 'Team Patay' clearly suggests that those belonging to 'Team Buhay' should be voted while those under
'Team Patay' should be rejected during the May 13, 2013 elections." 9 Lastly, petitioners posted the tarpaulin
on the cathedral's facade to draw attention. 10
Respondents argue that the "IBASURA RH Law" tarpaulin would have sufficed if opposition to the law was
petitioners' only objective. They submit that petitioners "infused their political speech with election propaganda
which may be regulated by the COMELEC." 11 They further submit that it is immaterial that the posting was
not "in return for consideration" by any candidate or political party since the definition of election propaganda
does not specify by whom it is posted. 12 Respondents then discuss the history of the size limitation by
mentioning all previous laws providing for a 2' by 3' size limit for posters. 13 According to respondents,
petitioners raised violation of freedom of expression and did not question the soundness of this size limitation.
14 Petitioners even cut the tarpaulin in half, thus confirming that the tarpaulin is election propaganda. 15
Third, respondents argue that size limitation applies to all persons and entities without distinction, 16 thus:
Notwithstanding that petitioners are not political candidates, the subject tarpaulin is subject to the COMELEC's
regulation because petitioners' objective in posting the same is clearly to persuade the public to vote for or
against the candidates and party-list groups named therein, depending on their stand on the RH Law, which
essentially makes the subject tarpaulin a form of election propaganda. 17
Respondents argue the general applicability of the Fair Elections Act. Election propaganda should not be
interchanged with campaign materials as the latter is only one form of the former. 18 Respondents submit that
"[w]hen an election propaganda is posted by a candidate or political party, it becomes a campaign material
subject to the COMELEC's regulation under Section 9 of the Fair Elections Act." 19 They argue that "the Fair
Elections Act regulates a variety of election-related activities that are not only engaged in by candidates and
political parties but also by other individuals and entities" in that Section 4 regulates publications, printing, and
broadcast, while Section 5 regulates election surveys. 20 Assuming the Fair Elections Act does not apply to
private individuals, Section 82 of the Omnibus Election Code still applies to all. 21 Respondents also quote
portions of the 1971 Election Code deliberations, in that the prohibition covers a candidate's follower who
writes "Vote for X" on his or her own shirt even if this is not mass-produced since allowing this opens a wide
loophole for possible abuse, and the limitation ensures equality of access to all. 22
9
JULY 11, 2019
Lastly, respondents argue that the size limitation is a valid content-neutral regulation on election propaganda.
As such, only a substantial governmental interest is required under the intermediate test. 23 Respondents cite
National Press Club v. Commission on Elections 24 in that "the supervisory and regulatory functions of the
COMELEC under the 1987 Constitution set to some extent a limit on the right to free speech during the
election period." 25 The order to remove the tarpaulin for failure to comply with the size limitation had nothing
to do with the tarpaulin's message, and "petitioners could still say what they wanted to say by utilizing other
forms of media without necessarily infringing the mandates of the law." 26 Respondents cite constitutional
provisions as basis for regulating the use of election propaganda such as political equality and election
spending minimization. 27
We deny the Motion for Reconsideration.
On respondents' argument on the prematurity of filing the case before this Court, we discussed in our Decision
that Rule 64 is not the exclusive remedy for all Commission on Elections' acts as Rule 65 applies for grave
abuse of discretion resulting to ouster of jurisdiction. 28 The five (5) cases 29 again cited by respondents are
not precedents since these involve election protests or are disqualification cases filed by losing candidates
against winning candidates. 30
Petitioners are not candidates. They are asserting their right to freedom of expression. 31 We acknowledged
the "chilling effect" of the assailed notice and letter on this constitutional right in our Decision, thus:
Nothing less than the electorate's political speech will be affected by the restrictions imposed by COMELEC.
Political speech is motivated by the desire to be heard and understood, to move people to action. It is
concerned with the sovereign right to change the contours of power whether through the election of
representatives in a republican government or the revision of the basic text of the Constitution. The zeal with
which we protect this kind of speech does not depend on our evaluation of the cogency of the message.
Neither do we assess whether we should protect speech based on the motives of COMELEC. We evaluate
restrictions on freedom of expression from their effects. We protect both speech and medium because the
quality of this freedom in practice will define the quality of deliberation in our democratic society.
COMELEC's notice and letter affect preferred speech. Respondents' acts are capable of repetition. Under the
conditions in which it was issued and in view of the novelty of this case, it could result in a "chilling effect" that
would affect other citizens who want their voices heard on issues during the elections. Other citizens who wish
to express their views regarding the election and other related issues may choose not to, for fear of reprisal or
sanction by the COMELEC.
Direct resort to this court is allowed to avoid such proscribed conditions. Rule 65 is also the procedural
platform for raising grave abuse of discretion. 32
The urgency posed by the circumstances during respondents' issuance of the assailed notice and letter — the
then issue on the RH Law as well as the then upcoming elections — also rendered compliance with the
doctrine on exhaustion of administrative remedies as unreasonable. 33
All these circumstances surrounding this case led to this Court's pro hac vice ruling to allow due course to the
Petition.
The other arguments have also been considered and thoroughly addressed in our Decision.
This Court's Decision discussed that the tarpaulin consists of satire of political parties that "primarily advocates
a stand on a social issue; only secondarily — even almost incidentally — will cause the election or non-
election of a candidate." 34 It is not election propaganda as its messages are different from the usual
declarative messages of candidates. The tarpaulin is an expression with political consequences, and "[t]his
court's construction of the guarantee of freedom of expression has always been wary of censorship or
subsequent punishment that entails evaluation of the speaker's viewpoint or the content of one's speech." 35
We recognize that there can be a type of speech by private citizens amounting to election paraphernalia that
can be validly regulated. 36 However, this is not the situation in this case. The twin tarpaulins consist of a
social advocacy, and the regulation, if applied in this case, fails the reasonability test. 37
Lastly, the regulation is content-based. The Decision discussed that "[t]he form of expression is just as
important as the information conveyed that it forms part of the expression[,]" 38 and size does matter. 39
WHEREFORE, the Motion for Reconsideration is DENIED with FINALITY.
SO ORDERED.
Leonardo-de Castro, Del Castillo, Perez, Reyes and Perlas-Bernabe, JJ., concur.
CONSTI REV – FULL TEXT
Sereno, * C.J. and Mendoza, *** J., are on official leave.
Carpio, ** J., I reiterate my separate concurring opinion.
Velasco, Jr. and Bersamin, JJ., join the dissent of J. Brion.
Brion, J., see: dissenting opinion.
Peralta, J., I join the opinion of J. Carpio.
Jardeleza, **** J., took no part.
Caguioa, J., I join/concur with J. Bernabe's original separate concurring opinion.
Separate Opinions
BRION, J., dissenting:
I dissent from the ponencia's denial of the Motion for Reconsideration filed by respondents Commission on
Elections (Comelec) and Election Officer Atty. Mavil V. Majarucon asking that the Court reconsider its January
21, 2015 Decision in Diocese of Bacolod v. Comelec. The Decision granted petitioner Diocese of Bacolod and
Bishop Vicente Navarra's (petitioners) Petition, declared the Comelec's Notice dated February 22, 2013, and
Letter dated February 27, 2013, as unconstitutional, and made the temporary restraining order earlier issued
against it permanent.
The ponencia denied the motion for reconsideration for raising arguments already addressed and emphasized
the following points:
First, Rule 64 of the Rules of Court is not the exclusive remedy for all Comelec acts, as Rule 65 applies when
grave abuse of discretion takes place, resulting in lack or excess of jurisdiction.
The petitioners, in asserting their right to freedom of expression, allege the "chilling effect" of the assailed
notice and letter on this freedom, thus justifying their resort to the Court through a Rule 65 petition.
Additionally, the urgency posed by the circumstances during the Comelec's issuance of the assailed notice
and letter — the then issue on the RH Law as well as the then coming elections — also rendered the
petitioners' compliance with the doctrine of exhaustion of administrative remedies unreasonable.
Second, the disputed tarpaulin is not an election propaganda material. It involves a satire of political parties
and primarily advocates a stand on a social issue; the election or non-election of a candidate is merely
secondary and incidental to its message.
Third, the Comelec's regulation of poster size is content-based, as the form of expression is just as important
as the information conveyed that forms part of the expression.
I disagree with the denial of the respondents' motion for reconsideration because of its jurisprudential effect:
the currently prevailing ruling substantially diminishes the Comelec's constitutional and exclusive jurisdiction to
enforce and administer all laws and regulations relative to the conduct of an election under Article IX-C,
Section 2 (1) of the 1987 Constitution, including the regulation of election propaganda.
It also reduces the Comelec's capacity under Article IX-C, Section 2 (7) "to recommend to the Congress
effective measures to minimize election spending, including limitation of places where propaganda materials
shall be posted."
To my mind, these constitutional provisions expressly and clearly allow Congress to craft measures that
regulate the time, manner, and place of posting election propaganda, and that enable the Comelec to fully
implement these measures.
The size restrictions for election posters in Section 3.3 of Republic Act No. 9006 (RA 9006, otherwise known
as the Fair Elections Act) is a lawful exercise of Congress's power to regulate election propaganda. The
Comelec's issuance of its implementing rule, Section 6 (c) of Comelec Resolution No. 9615, and its
implementation in the present case through the Notice to Remove Campaign Materials issued by Election
Officer Mavil V. Majarucon in a Letter dated February 22, 2013, and Comelec Law Director Esmeralda Amora-
Ladra in an Order dated February 27, 2013, had not been outside of the Comelec's jurisdiction to enforce and
implement election laws.
I cannot also agree with the considerable departure that the majority made from established jurisprudence in
reviewing the administrative actions of a constitutional commission and the government's regulation of speech;
I do so not for the purposes of instigating a criminal prosecution against the petitioners, as events have made
the issue moot and academic, 1 but to correct its impact on jurisprudence and constitutional litigation.
I discuss below the reasons for my disagreement.
10
JULY 11, 2019
I. The petitions challenging the constitutionality of the Comelec's Letter and Notice are premature and should
not have been given due course.
A. The majority in Diocese of Bacolod v. Comelec took cognizance
of the Comelec's administrative act without the final imprimatur
of the Comelec en banc, and thus deprived it of its jurisdiction to
determine the constitutionality of the acts of its election officers.
The Court, in exceptional cases, may review the Comelec's administrative acts through the Court's expanded
jurisdiction under the second paragraph of Article VIII, Section 1 of the 1987 Constitution. This constitutional
authority is different from the certiorari petition mentioned in Article IX-B, which pertains to the Comelec's
quasi-judicial acts and is instituted through Rule 64 of the Rules of Court.
Because the review of the Comelec's administrative act falls under the Court's expanded jurisdiction (under
the second paragraph of Article VIII, Section 1), the petition must necessarily reflect a prima facie showing of
grave abuse of discretion on the part of the Comelec.
In other words, the petition must have preliminarily shown that the Comelec's administrative act was
performed in such a capricious, and whimsical exercise of judgment so patent and gross as to amount to an
evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law.
Note, at this point, that there can be no prima facie showing of grave abuse of discretion unless something has
already been done 2 or has taken place under the law; 3 and the petitioner sufficiently alleges the existence of
a threatened or immediate injury to itself as a result of the gravely abusive exercise of discretion. 4
In the case of an administrative agency (more so, if it involves an independent constitutional body), a matter
cannot be considered ripe for judicial resolution unless administrative remedies have been exhausted. 5
Judicial review is appropriate only if, at the very least, those who have the power to address the petitioner's
concerns have been given the opportunity to do so. In short, the requirement of ripeness does not become
less relevant under the courts' expanded judicial power.
In this light, I emphasize that the petition challenges RA 9006 and Comelec Resolution No. 9165 not because
its text, on its face, violates fundamental rights, 6 but because Comelec erroneously applied an otherwise
constitutional law. The Comelec's administrative act of including the petitioners' poster within the coverage of
Comelec Resolution No. 9615 allegedly violated their constitutional rights to freedom of speech and religion.
This issue could have been best decided by the Comelec had the petitioners followed the regular course of
procedure in the investigation and prosecution of election offense cases. The assailed action of the Comelec,
after all, contained a warning against possible prosecution for an election offense that would have had to
undergo an entire process before it is filed before the proper tribunal. This process allows suspected election
offenders to explain why an election offense should not be filed against them, and for the Comelec to consider
the explanation.
In the interest of orderly procedure and the respect for an independent constitutional commission such as the
Comelec, on matters that are prima facie within its jurisdiction, the expansion of the power of judicial review
could not have meant the power to review any and all acts of a department or office within an administrative
framework.
The Comelec under this Article IX-C, Section 2 (3) can certainly decide whether to initiate a preliminary
investigation against the petitioners. It can decide based on the arguments and pieces of evidence presented
during the preliminary investigation — whether there is probable cause to file an information for an election
offense against the petitioners. This determination is even subject to review and reconsideration, as Comelec
Resolution No. 9386 (Rules of Procedure in the Investigation and Prosecution of Election Offense Cases in
the Commission on Elections) 7 clearly provide. AIDSTE
To be sure, this is a matter that the Comelec should have been given the first opportunity to resolve before the
petitioners directly sought judicial recourse. While the freedoms invoked by the petitioners certainly occupy
preferential status in our hierarchy of freedoms, the Court cannot second-guess what the Comelec's action
would have been, particularly when the matters before us are nothing more than the Election Officer
Majarucon's notice and the Director Amora-Ladra's order.
B. The inconsistency in the majority's analysis and its dispositive
portion reflect and indicate the prematurity of the petitioners'
immediate recourse to the Court.
CONSTI REV – FULL TEXT
According to the majority, the present petition was given due course because the Comelec's acts had a chilling
effect on speech, which justifies the petitioners' immediate resort to the Court under a Rule 65 certiorari
petition. It then proceeded to argue that the speech involved does not fall under the classification of election
propaganda; to classify the laws empowering the Comelec to regulate the size of election posters' size as a
content-based regulation; and to hold that, in any case, size restriction of posters does not pass constitutional
muster whether under the compelling state interest test for content-based regulations or intermediate scrutiny
test for content-neutral regulations.
Based on these arguments, the majority opinion held that the Comelec's interpretation of its powers through
the assailed letter and notice is unconstitutional. Thus, the dispositive portion of the main decision reads:
WHEREFORE, the instant petition is GRANTED. The temporary restraining order previously issued is hereby
made permanent. The act of the COMELEC in issuing the assailed notice dated February 22, 2013 and letter
dated February 27, 2013, is declared unconstitutional. [emphasis supplied]
Under these terms, the majority decision's analysis is inconsistent with the remedy it granted in its dispositive
portion. This inconsistency reflects the prematurity of the issues presented in the petition, as well as the
manner the ruling has prevented the Comelec en banc from exercising its discretion to affirm or correct the
actions of its election officers.
Note that despite the majority decision's pronouncements regarding the unconstitutionality of the size
restriction of posters (which form the basis for the unconstitutionality of the Comelec's administrative act), the
majority decision's dispositive declaration of unconstitutionality is directed at the Comelec's administrative
acts, without mention of the constitutionality of the laws these administrative acts apply. In marked contrast,
Justice Antonio T. Carpio's Separate Concurring Opinion grants the petition and declares the laws limiting the
size of election posters as unconstitutional, thus: SDAaTC
Accordingly, I vote to GRANT the petition and DECLARE UNCONSTITUTIONAL (1) Section 3.3 of Republic
Act No. 9006; (2) Section 6(c) of COMELEC Resolution No. 9615, dated 15 January 2013; and (3) the notices,
dated 22 February 2013 and 27 February 2013, of the Commission on Elections for being violative of Section
4, Article III of the Constitution.
The disparity between the discussion in the body of the majority decision and the content of its dispositive
portion leads me to ask: is the size restriction constitutional, but unconstitutional as applied to the petitioners?
May the Comelec still regulate the size of election posters of candidates, and under what parameters?
In decisions declaring a law's unconstitutionality as applied to the petitioner, the assailed law remains valid,
but its application to the individual challenging it (and subsequently to others similarly situated) is
unconstitutional.
If indeed the majority decision had treated the petition in this case as an as-applied challenge to the
constitutionality of Section 3 of RA 9006 and Section 6 (c) of Comelec Resolution No. 9615, then the issues it
presented to the Court were premature.
As-applied challenges to the constitutionality of the law prosper only when there has been an enforcement of
the law to the individual claiming exemption from its application. In other words, the challenged law must have
been enforced and has already been applied to the petitioner, i.e., at the very least, the Comelec en banc must
have rendered its decision to prosecute the petitioners and institute an election offense against them.
Notably, this was not what happened, as the administrative acts of the Comelec's election officer and law
department had been restrained before the issue of the unconstitutionality of the letter and order issued
against the petitioners could be validly assessed by the Comelec. Thus, the petition assailed the
administrative acts of the Comelec's Law Department and election officer before it could be affirmed by the
Comelec, and before any quasi-judicial proceeding for the prosecution of an election offense could be
instituted and resolved.
In contrast, facial challenges may be introduced against a law soon after its passage, typically because these
laws pose a chilling effect on the exercise of fundamental rights, such as speech. The petitioners instituting a
petition asking for a facial challenge of the law has the burden to prove that the law does not have any
constitutional application, that is, that the law is unconstitutional in all its applications. Upon meeting this
burden, the decision would have declared the challenged law as unconstitutional.
The present petitions, however, challenge the Comelec's administrative acts — not the laws it seeks to
implement — and thereby raise issues that are applicable only to them.
11
JULY 11, 2019
The majority decision apparently mixed the concepts of applied and facial challenges, such that it granted a
remedy for as-applied challenges, under the reasoning and analysis meant for facial challenges.
Thus, while the petition seeks to declare the Comelec's administrative acts to be unconstitutional as applied to
the petitioners, the majority decision proceeded to analyze the case as the Court typically would in facial
challenges: it gave due course to the petition because of the possibility of a chilling effect on speech, and then
proceeded to discuss the unconstitutionality of the laws that the challenged administrative acts apply.
The majority's uneven approach shows the prematurity of the issues that the petition presents. If indeed, the
law is unconstitutional as applied, then this would have been the defense to a possible criminal proceeding
against the petitioner. It cannot and should not be used to pre-empt a criminal proceeding.
Indeed, our expanded jurisdiction under Section 1, Article VIII of the 1987 Constitution allows us to determine
grave abuse of discretion in the actions of governmental agencies, and has considerably reduced the
requirements of standing in constitutional litigation. The recognition of this expanded jurisdiction has led me to
theorize, in several previous opinions, that a prima facie showing of grave abuse of discretion is sufficient to
trigger the Court's expanded jurisdiction. The simplicity of this requirement does not diminish the gravity of the
petitioners' burden to preliminarily prove that the Comelec acted in an arbitrary and capricious manner outside
of what the law and the Constitution allows it to do.
As I have discussed earlier, the petitioners have failed in their burden of showing this triggering requirement
before the Court; as the petition had been prematurely filed, whether via the traditional constitutional litigation
route or by way of the Court's expanded jurisdiction.
II. The disputed tarpaulin falls under election propaganda as it clearly espouses the election of some
candidates and the non-election of other candidates because of their stance in the passage of the RH Law.
The subject poster carries the following characteristics:
(1) It was posted during the campaign period, by private individuals and within a private compound housing
the San Sebastian Cathedral of Bacolod.
(2) It was posted with another tarpaulin with the message "RH LAW IBASURA."
(3) Both tarpaulins were approximately six by ten feet in size, and were posted in front of the Cathedral within
public view.
(4) The subject poster contains the heading "conscience vote" and two lists of senators and members of the
House of Representatives. The first list contains names of legislators who voted against the passage of the
Reproductive Health Law, denominated as Team Buhay. The second list contains names of legislators who
voted for the RH Law's passage, denominated as "Team Patay." The "Team Buhay" list displayed a check
mark, while the Team Patay list showed an X mark. All the legislators named in both lists were candidates
during the 2013 national elections.
(5) It does not appear to have been sponsored or paid for by any candidate.
The content of the tarpaulin, as well as the timing of its posting, makes it subject to the regulations in RA 9006
and Comelec Resolution No. 9615.
Comelec Resolution No. 9615 contains rules and regulations implementing RA 9006 during the 2013 national
elections. Section 3 of RA 9006 and Section 6 of Comelec Resolution No. 9615 seek to regulate election
propaganda, defined in the latter as:
The term "political advertisement" or "election propaganda" refers to any matter broadcasted, published,
printed, displayed or exhibited, in any medium, which contain the name, image, logo, brand, insignia, color
motif, initials, and other symbol or graphic representation that is capable of being associated with a candidate
or party, and is intended to draw the attention of the public or a segment thereof to promote or oppose, directly
or indirectly, the election of the said candidate or candidates to a public office. In broadcast media, political
advertisements may take the form of spots, appearances on TV shows and radio programs, live or taped
announcements, teasers, and other forms of advertising messages or announcements used by commercial
advertisers.
Political advertising includes matters, not falling within the scope of personal opinion, that appear on any
Internet website, including, but not limited to, social networks, blogging sites, and micro-blogging sites, in
return for consideration, or otherwise capable of pecuniary estimation. [emphasis supplied]
CONSTI REV – FULL TEXT
Based on these definitions, the subject poster falls within the definition of election propaganda. It named
candidates for the 2013 elections, and was clearly intended to promote the election of a list of candidates it
favors and to oppose the election of candidates in another list. It was displayed in public view, and as such is
capable of drawing the attention of the voting public passing by the cathedral to its message.
Notably, the tarpaulin places the words "conscience vote" and associates the names of political candidates
who voted against the passage of the RH Law with the positive description "Team Buhay, and associates the
names of political candidates who voted for the passage of the RH Law with the negative description "Team
Patay." It even distinguishes between the marks used to identify the candidates — the members of Team
Buhay are marked with the positive sign check mark and the members of Team Patay are associated with the
negative "X" mark.
The tarpaulin, obviously, invites voters to vote for members of the Team Buhay and to not vote for the
members of the Team Patay because of their participation in the RH Law. The word "conscience vote," along
with the positive description and negative description for political candidates during the election period at the
time the tarpaulin was posted for public view clearly indicates this. Under these terms, the tarpaulin does not
simply advocate support for the RH Law; it asks the public to vote or not to vote for candidates based on their
position on the RH Law.
In this light, I strongly object to the ponencia's characterization of the tarpaulin as "primarily advocates a stand
on a social issue; [sic] only secondarily — even almost incidentally — will cause the election or non-election of
a candidate," and declaration that the tarpaulin is "not election propaganda as the messages are different from
the usual declarative messages of candidates."
This is a dangerous justification that could, with some creative tinkering by interested parties, blur the
distinctions determining what consists an election propaganda to the point of eradicating it. To illustrate,
anyone could put a social issue as the justification for voting or not voting for a candidate, and claim that the
paraphernalia merely incidentally intends to convince voters of their voting preferences.
Furthermore, requiring a declarative message from the candidate to vote or not vote for a candidate
significantly narrows down the coverage of what constitutes as election propaganda, and excludes
propaganda that convey the same message, but do not necessarily use a declarative statement.
In these lights, the ponente's interpretation of election propaganda could render the entire regulation of
election propaganda as defined under Section 3 of RA 9006 inutile, as it creates loopholes that would take any
propaganda (and possibly not just election posters) outside the definition of election propaganda. Most
certainly, I cannot concur with this position.
III. The regulation of poster size under the Omnibus Election Code is a valid content-neutral regulation of
speech.
A. The regulation of poster size as a content-neutral regulation.
The assailed regulations in the present case involve a content-neutral regulation that controls the incidents of
speech. Both the notice and letter sent by the Comelec to the Diocese of Bacolod sought to enforce Section
3.3 of RA 9006 and Section 6 (c) of Comelec Resolution No. 9615 which limits the size of posters that contain
election propaganda to not more than two by three feet. It does not prohibit anyone from posting materials that
contain election propaganda, so long as it meets the size limitations.
Limitations on the size of a poster involve a content-neutral regulation involving the manner by which speech
may be uttered. It regulates how the speech shall be uttered, and does not, in any manner affect or target the
actual content of the message.
That the incidents of speech are restricted through government regulation do not automatically taint them
because they do not restrict the message the poster itself carries. Again, for emphasis, Comelec Resolution
No. 9615 and RA 9006 regulate how the message shall be transmitted, and not the contents of the message
itself.
Admittedly, the size of the poster impacts on the effectiveness of the communication and the gravity of its
message. Although size may be considered a part of the message, this is an aspect that merely highlights the
content of the message. It is an incident of speech that government can regulate, provided it meets the
requirements for content-neutral regulations.
The message in the subject poster is transmitted through the text and symbols that it contains. We can, by
analogy, compare the size of the poster to the volume of the sound of a message. 8 A blank poster, for
instance and as a rule, does not convey any message regardless of its size (unless, of course, vacuity itself is
12
JULY 11, 2019
the message being conveyed). In the same manner, a sound or utterance, without words or tunes spoken or
played, cannot be considered a message regardless of its volume. We communicate with each other by
symbols — written, verbal, or illustrated — and these communications are what the freedom of speech
protects, not the manner by which these symbols are conveyed.
B. The regulation passes the intermediate scrutiny test applicable for content-neutral regulations.
The size restrictions in Section 6 (c) of Comelec Resolution No. 9615 and Section 3.3 of RA 9006 pass the
intermediate scrutiny 9 applicable to content-neutral regulations, thus:
First, the size limitations for posters containing election propaganda under these regulations are within the
constitutional power of Congress to enact and of the Comelec to enforce.
Section 2 (7), Article IX-C of the 1987 Constitution specifically allows the time, manner, and place regulation of
election propaganda, which includes the size limitation of election posters under RA 9006. As a law concerning
conduct during elections, RA 9006 falls well within the election laws that the Comelec has the duty to
administer and enforce under Article IX-C, Section 2 (1) of the 1987 Constitution.
Second, the size limitation for posters containing election propaganda furthers the important and substantial
governmental interest of ensuring equal opportunity for public information campaigns among candidates,
ensuring orderly elections and minimizing election spending.
A cap on the size of a poster ensures, to some extent, uniformity in the medium through which information on
candidates may be conveyed to the public. It effectively bars candidates, supporters, or detractors from using
posters too large that they result in skewed attention from the public. The limitation also prevents the
candidates and their supporting parties from engaging in a battle of poster sizes and, in this sense, serves to
minimize election spending and contributes to the maintenance of peace and order during the election period.
Third, the government's interest in limiting the size of posters containing election propaganda does not add to
or restrict the freedom of expression. Its interests in equalizing opportunity for public information campaigns
among candidates, minimizing election spending, and ensuring orderly elections do not relate to the
suppression of free expression.
Fourth, the restriction on the poster's size affects the manner by which the speech may be uttered, but this
restriction is no greater than necessary to further the government's claimed interests.
Size limits to posters are necessary to ensure equality of public information campaigns among candidates, as
allowing posters with different sizes gives candidates and their supporters the incentive to post larger posters.
This places candidates with more money and/or with deep-pocket supporters at an undue advantage against
candidates with more humble financial capabilities.
Notably, the law does not limit the number of posters that a candidate, his supporter, or a private individual
may post. If the size of posters becomes unlimited as well, then candidates and parties with bigger campaign
funds could effectively crowd out public information on candidates with less money to spend to secure posters
— the former's bigger posters and sheer number could effectively take the attention away from the latter's
message. In the same manner, a lack of size limitation would also crowd out private, unaffiliated individuals
from participating in the discussion through posters, or at the very least, would compel them to erect bigger
posters and thus spend more.
Prohibiting size restrictions on posters is also related to election spending, as it would allow candidates and
their supporters to post as many and as large posters as their pockets would allow.
Footnotes
* On official leave.
** Designated Acting Chief Justice effective July 4, 2016, per Special Order No. 2357 dated June 28, 2016.
*** On official leave.
**** No part.
1. Rollo, pp. 284-307.
2. Id. at 306.
3. Id. at 246.
4. Id. at 286-287.
5. Id. at 288.
6. Id. at 289.
7. Id. at 290.
8. Id.
9. Id. at 291.
10. Id.
CONSTI REV – FULL TEXT JULY 11, 2019

11. Id. within which to submit Counter-Affidavits and other supporting documents. The respondent shall have the right
12. Id. to examine all other evidence submitted by the complainant. Otherwise, the Investigating officer shall dismiss
13. Id. at 291-294. Respondents cite the following: Rep. Act No. 6388 (1971), Election Code of 1971, sec. 48; Pres.
the Complaint if he finds no ground to continue with the inquiry. Such Counter-Affidavits and other supporting
Decree No. 1296 (1978), 1978 Election Code, sec. 37; ELECTION CODE, sec. 82; Rep. Act No. 6646 (1987), Electoral Reforms
Law of 1987, sec. 11; and Rep. Act No. 9006 (2000), Fair Elections Act, sec. 3, reiterated in COMELEC Res. No. 9615, sec. 6 evidence submitted by the respondent shall be furnished by the latter to the complainant.
(c).
14. Id. at 294.
If the respondent cannot be subpoenaed, or if subpoenaed, does not submit Counter-Affidavits
15. Id. at 295. within the ten (10) day period, the investigating officer shall base his Resolution on the evidence presented by
16. Id. the complainant.
17. Id.
18. Id. at 297. If the investigating officer believes that there are matters to be clarified, he may set a hearing to
19. Id. propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an
20. Id. at 297-298. opportunity to be present, but without the right to examine or cross-examine. If the parties so desire, they may
21. Id. at 299. submit questions to the investigating officer which the latter may propound to the parties or witnesses
22. Id. at 299-300. concerned.
23. Id. at 303.
24. 283 Phil. 795 (1992) [Per J. Feliciano, En Banc]. Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve
25. Rollo, p. 303.
the case within thirty (30) days therefrom. Upon the evidence thus adduced, the investigating officer shall
26. Id. at 304.
27. Id. Respondents cite CONST., art. IX-C, secs. 2 (1), 2 (7), 4, and 10; art. II, sec. 26; and art. XIII, sec. 1. determine whether or not there is sufficient ground to hold the respondent for trial.
28. Id. at 182-183.
29. Id. at 286-287. Respondents cite Ambil v. Commission on Elections, 398 Phil. 257 (2000) [Per J. Pardo, En Banc]; Where the respondent is a minor, the investigating officer shall not conduct the preliminary
Repol v. Commission on Elections, G.R. No. 161418, April 28, 2004, 428 SCRA 321 [Per J. Carpio, En Banc]; Soriano, Jr. v. investigation unless the child respondent shall have first undergone the requisite proceedings before the Local
Commission on Elections, 548 Phil. 639 (2007) [Per J. Carpio, En Banc]; Blanco v. Commission on Elections, 577 Phil. 622 Social Welfare Development Officer pursuant to Republic Act No. 9344, otherwise known as the "Juvenile
(2008) [Per Azcuna, En Banc]; and Cayetano v. Commission on Elections, 663 Phil. 694 (2011) [Per J. Nachura, En Banc]. Justice and Welfare Act of 2006."
30. Id. at 185.
31. Id. No motion, except on the ground of lack of jurisdiction or request for extension of time
32. Id. at 186-187. to submit Counter-Affidavits shall be allowed or granted except on exceptionally meritorious cases. Only one
33. Id. at 201. (1) Motion for Extension to file Counter-Affidavit for a period not exceeding ten (10) days shall be allowed. The
34. Id. at 230.
filing of Reply-Affidavits, Rejoinder-Affidavits, Memoranda and similar pleadings are likewise prohibited.
35. Id. at 231.
36. Id. at 239. A Memorandum, Manifestation or Motion to Dismiss is a prohibitive pleading and cannot take the
37. Id.
38. Id. at 211.
place of a Counter-Affidavit unless the same is made by the respondent himself and verified.
39. Id. When an issue of a prejudicial question is raised in the Counter-Affidavit, the investigating officer
shall suspend preliminary investigation if its existence is satisfactorily established. All orders suspending the
BRION, J., dissenting:
preliminary investigation based on existence of prejudicial question issued by the investigating officer shall
1. The passage of the election period has effectively made the issues in the present petition moot and have the written approval of the Regional Election Director or the Director of the Law Department, as the case
academic. Any decision on our part — whether for the validity or invalidity of the Comelec's actions would no may be.
longer affect the rights of either the petitioners to post the subject posters, or the Comelec to prosecute
8. See: Regan v. Time, 468 U.S. 641; 104 S. Ct. 3262; 82 L. Ed. 2d 487; 1984 U.S. LEXIS 147; 52 U.S.L.W.
election offenses. See J. Brion's Dissenting Opinion in Diocese of Bacolod v. Comelec, p. 11.
5084, citing Kovacs v. Cooper, 336 U.S. 77 (1949).
2. In the case of a challenged law or official action, for instance, the Court will not consider an issue ripe for
9. Philippine jurisprudence distinguishes between the regulation of speech that is content-based, from
judicial resolution, unless something had already been done. Imbong v. Ochoa, Syjuico v. Abad, Bayan
regulation that is content-neutral. Content-based regulations regulate speech because of the substance of the
Telecommunications v. Republic.
message it conveys. In contrast, content-neutral regulations are merely concerned with the incidents of
3. Mariano, Jr. v. Commission on Elections, G.R. No. 118577, March 7, 1995, 242 SCRA 211. speech: the time, place or manner of the speech's utterance under well-defined standards.
4. Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel, 589 Phil. 463, Distinguishing the nature of the regulation is crucial in cases involving freedom of speech, as it
481 (2008). determines the test the Court shall apply in determining its validity.
5. See Corales v. Republic, G.R. No. 186613, August 27, 2013. Content-based regulations are viewed with a heavy presumption of unconstitutionality. Thus, the
government has the burden of showing that the regulation is narrowly tailored to meet a compelling state
6. This is in contrast to my discussion of a prima facie grave abuse of discretion in Imbong v. Executive interest, otherwise, the Court will strike it down as unconstitutional.
Secretary. In Imbong, the petition alleged (and the Court eventually concluded) that the text of the
Reproductive Health Law violates the right to life of the unborn child in the Constitution. Congress, in enacting In contrast, content-neutral regulations are not presumed unconstitutional. They pass constitutional
a law that violates a fundamental right, committed a grave abuse of discretion. Thus, citizens have an interest muster once they meet the following requirements: first, that the regulation is within the constitutional power of
in stopping the implementation of an unconstitutional law that could cause irreparable injury to the countless the Government second, that it furthers an important or substantial governmental interest; third, that the
unborn. governmental interest is unrelated to the suppression of free expression; and fourth, that the incidental
restriction on speech is no greater than is essential to further that interest.
The constitutionality of the text of RA 9006, on the other hand, is not in question in the present
case. What the petitioners assail is their inclusion within the coverage of election propaganda regulations in
RA 9006 and Comelec Resolution No. 9615.
7. Section 6 of Comelec Resolution No. 9386 provides:
Section 6. Conduct of Preliminary Investigation. — Within ten (10) days from receipt of the
Complaint, the investigating officer shall issue a subpoena to the respondent/s, attaching thereto a copy of the
Complaint, Affidavits and other supporting documents, giving said respondents ten (10) days from receipt

13
CONSTI REV – FULL TEXT
EN BANC
[G.R. No. 205357. September 2, 2014.]
GMA NETWORK, INC., petitioner, vs. COMMISSION ON ELECTIONS, respondent.
SENATOR ALAN PETER "COMPAÑERO" S. CAYETANO, petitioner-intervenor.
[G.R. No. 205374. September 2, 2014.]
ABC DEVELOPMENT CORPORATION, petitioner, vs. COMMISSION ON ELECTIONS, respondent.
[G.R. No. 205592. September 2, 2014.]
MANILA BROADCASTING COMPANY, INC. and NEWSOUNDS BROADCASTING NETWORK, INC.,
petitioner, vs. COMMISSION ON ELECTIONS, respondent.
[G.R. No. 205852. September 2, 2014.]
KAPISANAN NG MGA BRODKASTER NG PILIPINAS (KBP) and ABS-CBN CORPORATION, petitioners,
vs. COMMISSION ON ELECTIONS, respondent.
[G.R. No. 206360. September 2, 2014.]
RADIO MINDANAO NETWORK, INC., petitioner, vs. COMMISSION ON ELECTIONS, respondent.
DECISION
PERALTA, J p:
"The clash of rights demands a delicate balancing of interests approach which is a 'fundamental postulate of
constitutional law.'" 1
Once again the Court is asked to draw a carefully drawn balance in the incessant conflicts between rights and
regulations, liberties and limitations, and competing demands of the different segments of society. Here, we
are confronted with the need to strike a workable and viable equilibrium between a constitutional mandate to
maintain free, orderly, honest, peaceful and credible elections, together with the aim of ensuring equal
opportunity, time and space, and the right to reply, including reasonable, equal rates therefor, for public
information campaigns and forums among candidates, 2 on one hand, and the imperatives of a republican and
democratic state, 3 together with its guaranteed rights of suffrage, 4 freedom of speech and of the press, 5
and the people's right to information, 6 on the other.
In a nutshell, the present petitions may be seen as in search of the answer to the question — how does the
Charter of a republican and democratic State achieve a viable and acceptable balance between liberty, without
which, government becomes an unbearable tyrant, and authority, without which, society becomes an
intolerable and dangerous arrangement?
Assailed in these petitions are certain regulations promulgated by the Commission on Elections (COMELEC)
relative to the conduct of the 2013 national and local elections dealing with political advertisements.
Specifically, the petitions question the constitutionality of the limitations placed on aggregate airtime allowed to
candidates and political parties, as well as the requirements incident thereto, such as the need to report the
same, and the sanctions imposed for violations.
The five (5) petitions before the Court put in issue the alleged unconstitutionality of Section 9 (a) of COMELEC
Resolution No. 9615 (Resolution) limiting the broadcast and radio advertisements of candidates and political
parties for national election positions to an aggregate total of one hundred twenty (120) minutes and one
hundred eighty (180) minutes, respectively. They contend that such restrictive regulation on allowable
broadcast time violates freedom of the press, impairs the people's right to suffrage as well as their right to
information relative to the exercise of their right to choose who to elect during the forthcoming elections.
The heart of the controversy revolves upon the proper interpretation of the limitation on the number of minutes
that candidates may use for television and radio advertisements, as provided in Section 6 of Republic Act No.
9006 (R.A. No. 9006), otherwise known as the Fair Election Act. Pertinent portions of said provision state,
thus:
Sec. 6. Equal Access to Media Time and Space. — All registered parties and bona fide candidates shall
have equal access to media time and space. The following guidelines may be amplified on by the COMELEC:
xxx xxx xxx
14
JULY 11, 2019
6.2 (a) Each bona fide candidate or registered political party for a nationally elective office shall be entitled
to not more than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180)
minutes of radio advertisement whether by purchase or donation.
b. Each bona fide candidate or registered political party for a locally elective office shall be entitled to
not more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement
whether by purchase or donation.
For this purpose, the COMELEC shall require any broadcast station or entity to submit to the COMELEC a
copy of its broadcast logs and certificates of performance for the review and verification of the frequency, date,
time and duration of advertisements broadcast for any candidate or political party.
During the previous elections of May 14, 2007 and May 10, 2010, COMELEC issued Resolutions
implementing and interpreting Section 6 of R.A. No. 9006, regarding airtime limitations, to mean that a
candidate is entitled to the aforestated number of minutes "per station." 7 For the May 2013 elections,
however, respondent COMELEC promulgated Resolution No. 9615 dated January 15, 2013, changing the
interpretation of said candidates' and political parties' airtime limitation for political campaigns or
advertisements from a "per station" basis, to a "total aggregate" basis.
Petitioners ABS-CBN Corporation (ABS-CBN), ABC Development Corporation (ABC), GMA Network,
Incorporated (GMA), Manila Broadcasting Company, Inc. (MBC), Newsounds Broadcasting Network, Inc.
(NBN), and Radio Mindanao Network, Inc. (RMN) are owners/operators of radio and television networks in the
Philippines, while petitioner Kapisanan ng mga Brodkaster ng Pilipinas (KBP) is the national organization of
broadcasting companies in the Philippines representing operators of radio and television stations and said
stations themselves. They sent their respective letters to the COMELEC questioning the provisions of the
aforementioned Resolution, thus, the COMELEC held public hearings. Thereafter, on February 1, 2013,
respondent issued Resolution No. 9631 amending provisions of Resolution No. 9615. Nevertheless,
petitioners still found the provisions objectionable and oppressive, hence, the present petitions. TaIHEA
All of the petitioners assail the following provisions of the Resolution:
a) Section 7 (d), 8 which provides for a penalty of suspension or revocation of an offender's franchise or
permit, imposes criminal liability against broadcasting entities and their officers in the event they sell airtime in
excess of the size, duration, or frequency authorized in the new rules;
b) Section 9 (a), 9 which provides for an "aggregate total" airtime instead of the previous "per station" airtime
for political campaigns or advertisements, and also required prior COMELEC approval for candidates'
television and radio guestings and appearances; and
c) Section 14, 10 which provides for a candidate's "right to reply."
In addition, petitioner ABC also questions Section 1 (4) 11 thereof, which defines the term "political
advertisement" or "election propaganda," while petitioner GMA further assails Section 35, 12 which states that
any violation of said Rules shall constitute an election offense.
On March 15, 2013, Senator Alan Peter S. Cayetano (Petitioner-Intervenor) filed a Motion for Leave to
Intervene and to File and Admit the Petition-in-Intervention, which was granted by the Court per its Resolution
dated March 19, 2013. Petitioner-Intervenor also assails Section 9 (a) of the Resolution changing the
interpretation of candidates' and political parties' airtime limitation for political campaigns or advertisements
from a "per station" basis, to a "total aggregate" basis.
Petitioners allege that Resolutions No. 9615 and 9631, amending the earlier Resolution, are unconstitutional
and issued without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction, for
the reasons set forth hereunder.
Petitioners posit that Section 9 (a) of the assailed Resolution provides for a very restrictive aggregate airtime
limit and a vague meaning for a proper computation of "aggregate total" airtime, and violates the equal
protection guarantee, thereby defeating the intent and purpose of R.A. No. 9006.
Petitioners contend that Section 9 (a), which imposes a notice requirement, is vague and infringes on the
constitutionally protected freedom of speech, of the press and of expression, and on the right of people to be
informed on matters of public concern.
Also, Section 9 (a) is a cruel and oppressive regulation as it imposes an unreasonable and almost impossible
burden on broadcast mass media of monitoring a candidate's or political party's aggregate airtime, otherwise,
it may incur administrative and criminal liability.
CONSTI REV – FULL TEXT
Further, petitioners claim that Section 7 (d) is null and void for unlawfully criminalizing acts not prohibited and
penalized as criminal offenses by R.A. No. 9006.
Section 14 of Resolution No. 9615, providing for a candidate's or political party's "right to reply," is likewise
assailed to be unconstitutional for being an improper exercise of the COMELEC's regulatory powers; for
constituting prior restraint and infringing petitioners' freedom of expression, speech and the press; and for
being violative of the equal protection guarantee.
In addition to the foregoing, petitioner GMA further argues that the Resolution was promulgated without public
consultations, in violation of petitioners' right to due process. Petitioner ABC also avers that the Resolution's
definition of the terms "political advertisement" and "election propaganda" suffers from overbreadth, thereby
producing a "chilling effect," constituting prior restraint.
On the other hand, respondent posits in its Comment and Opposition 13 dated March 8, 2013, that the petition
should be denied based on the following reasons:
Respondent contends that the remedies of certiorari and prohibition are not available to petitioners, because
the writ of certiorari is only available against the COMELEC's adjudicatory or quasi-judicial powers, while the
writ of prohibition only lies against the exercise of judicial, quasi-judicial or ministerial functions. Said writs do
not lie against the COMELEC's administrative or rule-making powers.
Respondent likewise alleges that petitioners do not have locus standi, as the constitutional rights and
freedoms they enumerate are not personal to them, rather, they belong to candidates, political parties and the
Filipino electorate in general, as the limitations are imposed on candidates, not on media outlets. It argues that
petitioners' alleged risk of exposure to criminal liability is insufficient to give them legal standing as said "fear of
injury" is highly speculative and contingent on a future act.
Respondent then parries petitioners' attack on the alleged infirmities of the Resolution's provisions.
Respondent maintains that the per candidate rule or total aggregate airtime limit is in accordance with R.A.
No. 9006 as this would truly give life to the constitutional objective to equalize access to media during
elections. It sees this as a more effective way of levelling the playing field between candidates/political parties
with enormous resources and those without much. Moreover, the COMELEC's issuance of the assailed
Resolution is pursuant to Section 4, Article IX (C) of the Constitution which vests on the COMELEC the power
to supervise and regulate, during election periods, transportation and other public utilities, as well as mass
media, to wit:
Sec. 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of
all franchises or permits for the operation of transportation and other public utilities, media of communication
or information, all grants, special privileges, or concessions granted by the Government or any subdivision,
agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary.
Such supervision or regulation shall aim to ensure equal opportunity, and equal rates therefor, for public
information campaigns and forums among candidates in connection with the objective of holding free, orderly,
honest, peaceful, and credible elections.
This being the case, then the Resolutions cannot be said to have been issued with grave abuse of discretion
amounting to lack of jurisdiction.
Next, respondent claims that the provisions are not vague because the assailed Resolutions have given clear
and adequate mechanisms to protect broadcast stations from potential liability arising from a candidate's or
party's violation of airtime limits by putting in the proviso that the station "may require buyer to warrant under
oath that such purchase [of airtime] is not in excess of size, duration or frequency authorized by law or these
rules." Furthermore, words should be understood in the sense that they have in common usage, and should
be given their ordinary meaning. Thus, in the provision for the right to reply, "charges" against candidates or
parties must be understood in the ordinary sense, referring to accusations or criticisms.
Respondent also sees no prior restraint in the provisions requiring notice to the COMELEC for appearances or
guestings of candidates in bona fide news broadcasts. It points out that the fact that notice may be given 24
hours after first broadcast only proves that the mechanism is for monitoring purposes only, not for censorship.
Further, respondent argues, that for there to be prior restraint, official governmental restrictions on the press or
other forms of expression must be done in advance of actual publication or dissemination. Moreover,
petitioners are only required to inform the COMELEC of candidates'/parties' guestings, but there is no
regulation as to the content of the news or the expressions in news interviews or news documentaries.
Respondent then emphasized that the Supreme Court has held that freedom of speech and the press may be
limited in light of the duty of the COMELEC to ensure equal access to opportunities for public service.
15
JULY 11, 2019
With regard to the right to reply provision, respondent also does not consider it as restrictive of the airing of
bona fide news broadcasts. More importantly, it stressed, the right to reply is enshrined in the Constitution, and
the assailed Resolutions provide that said right can only be had after going through administrative due
process. The provision was also merely lifted from Section 10 of R.A. No. 9006, hence, petitioner ABC is
actually attacking the constitutionality of R.A. No. 9006, which cannot be done through a collateral attack.
Next, respondent counters that there is no merit to ABC's claim that the Resolutions' definition of "political
advertisement" or "election propaganda" suffers from overbreadth, as the extent or scope of what falls under
said terms is clearly stated in Section 1 (4) of Resolution No. 9615.
It is also respondent's view that the nationwide aggregate total airtime does not violate the equal protection
clause, because it does not make any substantial distinctions between national and regional and/or local
broadcast stations, and even without the aggregate total airtime rule, candidates and parties are likely to be
more inclined to advertise in national broadcast stations.
Respondent likewise sees no merit in petitioners' claim that the Resolutions amount to taking of private
property without just compensation. Respondent emphasizes that radio and television broadcasting
companies do not own the airwaves and frequencies through which they transmit broadcast signals; they are
merely given the temporary privilege to use the same. Since they are merely enjoying a privilege, the same
may be reasonably burdened with some form of public service, in this case, to provide candidates with the
opportunity to reply to charges aired against them.
Lastly, respondent contends that the public consultation requirement does not apply to constitutional
commissions such as the COMELEC, pursuant to Section 1, Chapter I, Book VII of the Administrative Code of
1987. Indeed, Section 9, Chapter II, Book VII of said Code provides, thus:
Section 9. Public Participation. — (1) If not otherwise required by law, an agency shall, as far as practicable,
publish or circulate notices of proposed rules and afford interested parties the opportunity to submit their views
prior to the adoption of any rule.
However, Section 1, Chapter 1, Book VII of said Code clearly provides:
Section 1. Scope. — This Book shall be applicable to all agencies as defined in the next succeeding section,
except the Congress, the Judiciary, the Constitutional Commissions, military establishments in all matters
relating exclusively to Armed Forces personnel, the Board of Pardons and Parole, and state universities and
colleges.
Nevertheless, even if public participation is not required, respondent still conducted a meeting with
representatives of the KBP and various media outfits on December 26, 2012, almost a month before the
issuance of Resolution No. 9615. SaHIEA
On April 2, 2013, petitioner GMA filed its Reply, 14 where it advanced the following counter-arguments:
According to GMA, a petition for certiorari is the proper remedy to question the herein assailed Resolutions,
which should be considered as a "decision, order or ruling of the Commission" as mentioned in Section 1,
Rule 37 of the COMELEC Rules of Procedure which provides:
Section 1. Petition for Certiorari; and Time to File. — Unless otherwise provided by law, or by any specific
provisions in these Rules, any decision, order or ruling of the Commission may be brought to the Supreme
Court on certiorari by the aggrieved party within thirty (30) days from its promulgation.
GMA further stressed that this case involves national interest, and the urgency of the matter justifies its resort
to the remedy of a petition for certiorari.
Therefore, GMA disagrees with the COMELEC's position that the proper remedy is a petition for declaratory
relief because such action only asks the court to make a proper interpretation of the rights of parties under a
statute or regulation. Such a petition does not nullify the assailed statute or regulation, or grant injunctive relief,
which petitioners are praying for in their petition. Thus, GMA maintains that a petition for certiorari is the proper
remedy.
GMA further denies that it is making a collateral attack on the Fair Election Act, as it is not attacking said law.
GMA points out that it has stated in its petition that the law in fact allows the sale or donation of airtime for
political advertisements and does not impose criminal liability against radio and television stations. What it is
assailing is the COMELEC's erroneous interpretation of the law's provisions by declaring such sale and/or
donation of airtime unlawful, which is contrary to the purpose of the Fair Election Act.
GMA then claims that it has legal standing to bring the present suit because:
CONSTI REV – FULL TEXT
. . . First, it has personally suffered a threatened injury in the form of risk of criminal liability because of the
alleged unconstitutional and unlawful conduct of respondent COMELEC in expanding what was provided for in
R.A. No. 9006. Second, the injury is traceable to the challenged action of respondent COMELEC, that is, the
issuance of the assailed Resolutions. Third, the injury is likely to be redressed by the remedy sought in
petitioner GMA's Petition, among others, for the Honorable Court to nullify the challenged pertinent provisions
of the assailed Resolutions. 15
On substantive issues, GMA first argues that the questioned Resolutions are contrary to the objective and
purpose of the Fair Election Act. It points out that the Fair Election Act even repealed the political ad ban found
in the earlier law, R.A. No. 6646. The Fair Election Act also speaks of "equal opportunity" and "equal access,"
but said law never mentioned equalizing the economic station of the rich and the poor, as a declared policy.
Furthermore, in its opinion, the supposed correlation between candidates' expenditures for TV ads and
actually winning the elections, is a mere illusion, as there are other various factors responsible for a
candidate's winning the election. GMA then cites portions of the deliberations of the Bicameral Conference
Committee on the bills that led to the enactment of the Fair Election Act, and alleges that this shows the
legislative intent that airtime allocation should be on a "per station" basis. Thus, GMA claims it was arbitrary
and a grave abuse of discretion for the COMELEC to issue the present Resolutions imposing airtime
limitations on an "aggregate total" basis.
It is likewise insisted by GMA that the assailed Resolutions impose an unconstitutional burden on them,
because their failure to strictly monitor the duration of total airtime that each candidate has purchased even
from other stations would expose their officials to criminal liability and risk losing the station's good reputation
and goodwill, as well as its franchise. It argues that the wordings of the Resolutions belie the COMELEC's
claim that petitioners would only incur liability if they "knowingly" sell airtime beyond the limits imposed by the
Resolutions, because the element of knowledge is clearly absent from the provisions thereof. This makes the
provisions have the nature of malum prohibitum.
Next, GMA also says that the application of the aggregate airtime limit constitutes prior restraint and is
unconstitutional, opining that "[t]he reviewing power of respondent COMELEC and its sole judgment of a news
event as a political advertisement are so pervasive under the assailed Resolutions, and provoke the distastes
or chilling effect of prior restraint" 16 as even a legitimate exercise of a constitutional right might expose it to
legal sanction. Thus, the governmental interest of leveling the playing field between rich and poor candidates
cannot justify the restriction on the freedoms of expression, speech and of the press.
On the issue of lack of prior public participation, GMA cites Section 82 of the Omnibus Election Code, pertinent
portions of which provide, thus:
Section 82. Lawful election propaganda. — Lawful election propaganda shall include:
xxx xxx xxx
All other forms of election propaganda not prohibited by this Code as the Commission may authorize after due
notice to all interested parties and hearing where all the interested parties were given an equal opportunity to
be heard: Provided, That the Commission's authorization shall be published in two newspapers of general
circulation throughout the nation for at least twice within one week after the authorization has been granted.
There having been no prior public consultation held, GMA contends that the COMELEC is guilty of depriving
petitioners of its right to due process of law.
GMA then concludes that it is also entitled to a temporary restraining order, because the implementation of the
Resolutions in question will cause grave and irreparable damage to it by disrupting and emasculating its
mandate to provide television and radio services to the public, and by exposing it to the risk of incurring
criminal and administrative liability by requiring it to perform the impossible task of surveillance and monitoring,
or the broadcasts of other radio and television stations.
Thereafter, on April 4, 2013, the COMELEC, through the Office of the Solicitor General (OSG), filed a
Supplemental Comment and Opposition 17 where it further expounded on the legislative intent behind the Fair
Election Act, also quoting portions of the deliberations of the Bicameral Conference Committee, allegedly
adopting the Senate Bill version setting the computation of airtime limits on a per candidate, not per station,
basis. Thus, as enacted into law, the wordings of Section 6 of the Fair Election Act shows that the airtime limit
is imposed on a per candidate basis, rather than on a per station basis. Furthermore, the COMELEC states
that petitioner-intervenor Senator Cayetano is wrong in arguing that there should be empirical data to support
the need to change the computation of airtime limits from a per station basis to a per candidate basis, because
nothing in law obligates the COMELEC to support its Resolutions with empirical data, as said airtime limit was
16
JULY 11, 2019
a policy decision dictated by the legislature itself, which had the necessary empirical and other data upon
which to base said policy decision.
The COMELEC then points out that Section 2 (7), 18 Article IX (C) of the Constitution empowers it to
recommend to Congress effective measures to minimize election spending and in furtherance of such
constitutional power, the COMELEC issued the questioned Resolutions, in faithful implementation of the
legislative intent and objectives of the Fair Election Act.
The COMELEC also dismisses Senator Cayetano's fears that unauthorized or inadvertent inclusion of his
name, initial, image, brand, logo, insignia and/or symbol in tandem advertisements will be charged against his
airtime limits by pointing out that what will be counted against a candidate's airtime and expenditures are
those advertisements that have been paid for or donated to them to which the candidate has given consent.
With regard to the attack that the total aggregate airtime limit constitutes prior restraint or undue abridgement
of the freedom of speech and expression, the COMELEC counters that "the Resolutions enjoy constitutional
and congressional imprimatur. It is the Constitution itself that imposes the restriction on the freedoms of
speech and expression, during election period, to promote an important and significant governmental interest,
which is to equalize, as far as practicable, the situation of rich and poor candidates by preventing the former
from enjoying the undue advantage offered by huge campaign 'war chests.'" 19
Lastly, the COMELEC also emphasizes that there is no impairment of the people's right to information on
matters of public concern, because in this case, the COMELEC is not withholding access to any public record.
On April 16, 2013, this Court issued a Temporary Restraining Order 20 (TRO) in view of the urgency involved
and to prevent irreparable injury that may be caused to the petitioners if respondent COMELEC is not enjoined
from implementing Resolution No. 9615.
On April 19, 2013 respondent filed an Urgent Motion to Lift Temporary Restraining Order and Motion for Early
Resolution of the Consolidated Petitions. 21
On May 8, 2013, petitioners ABS-CBN and the KBP filed its Opposition/Comment 22 to the said Motion. Not
long after, ABC followed suit and filed its own Opposition to the Motion 23 filed by the respondent.
In the interim, respondent filed a Second Supplemental Comment and Opposition 24 dated April 8, 2013.
In the Second Supplemental Comment and Opposition, respondent delved on points which were not
previously discussed in its earlier Comment and Supplemental Comment, particularly those raised in the
petition filed by petitioner ABS-CBN and KBP.
Respondent maintains that certiorari in not the proper remedy to question the Constitutionality of the assailed
Resolutions and that petitioners ABS-CBN and KBP have no locus standi to file the present petition.
Respondent posits that contrary to the contention of petitioners, the legislative history of R.A. No. 9006
conclusively shows that congress intended the airtime limits to be computed on a "per candidate" and not on a
"per station" basis. In addition, the legal duty of monitoring lies with the COMELEC. Broadcast stations are
merely required to submit certain documents to aid the COMELEC in ensuring that candidates are not sold
airtime in excess of the allowed limits.
Also, as discussed in the earlier Comment, the prior notice requirement is a mechanism designed to inform the
COMELEC of the appearances or guesting of candidates in bona fide news broadcasts. It is for monitoring
purposes only, not censorship. It does not control the subject matter of news broadcasts in anyway. Neither
does it prevent media outlets from covering candidates in news interviews, news events, and news
documentaries, nor prevent the candidates from appearing thereon.
As for the right to reply, respondent insists that the right to reply provision cannot be considered a prior
restraint on the freedoms of expression, speech and the press, as it does not in any way restrict the airing of
bona fide new broadcasts. Media entities are free to report any news event, even if it should turn out to be
unfavourable to a candidate or party. The assailed Resolutions merely give the candidate or party the right to
reply to such charges published or aired against them in news broadcasts.
Moreover, respondent contends that the imposition of the penalty of suspension and revocation of franchise or
permit for the sale or donation of airtime beyond the allowable limits is sanctioned by the Omnibus Election
Code.
Meanwhile, RMN filed its Petition on April 8, 2013. On June 4, 2013, the Court issued a Resolution 25
consolidating the case with the rest of the petitions and requiring respondent to comment thereon.
CONSTI REV – FULL TEXT
On October 10, 2013, respondent filed its Third Supplemental Comment and Opposition. 26 Therein,
respondent stated that the petition filed by RMN repeats the issues that were raised in the previous petitions.
Respondent, likewise, reiterated its arguments that certiorari in not the proper remedy to question the assailed
resolutions and that RMN has no locus standi to file the present petition. Respondent maintains that the
arguments raised by RMN, like those raised by the other petitioners are without merit and that RMN is not
entitled to the injunctive relief sought.
The petition is partly meritorious.
At the outset, although the subject of the present petitions are Resolutions promulgated by the COMELEC
relative to the conduct of the 2013 national and local elections, nevertheless the issues raised by the
petitioners have not been rendered moot and academic by the conclusion of the 2013 elections. Considering
that the matters elevated to the Court for resolution are susceptible to repetition in the conduct of future
electoral exercises, these issues will be resolved in the present action.
PROCEDURAL ASPECTS
Matters of procedure and technicalities normally take a backseat when issues of substantial and
transcendental importance are presented before the Court. So the Court does again in this particular case.
Proper Remedy
Respondent claims that certiorari and prohibition are not the proper remedies that petitioners have taken to
question the assailed Resolutions of the COMELEC. Technically, respondent may have a point. However,
considering the very important and pivotal issues raised, and the limited time, such technicality should not
deter the Court from having to make the final and definitive pronouncement that everyone else depends for
enlightenment and guidance. "[T]his Court has in the past seen fit to step in and resolve petitions despite their
being the subject of an improper remedy, in view of the public importance of the issues raised therein. 27
It has been in the past, we do so again.
Locus Standi
Every time a constitutional issue is brought before the Court, the issue of locus standi is raised to question the
personality of the parties invoking the Court's jurisdiction. The Court has routinely made reference to a
liberalized stance when it comes to petitions raising issues of transcendental importance to the country.
Invariably, after some discussions, the Court would eventually grant standing. 28
In this particular case, respondent also questions the standing of the petitioners. We rule for the petitioners.
For petitioner-intervenor Senator Cayetano, he undoubtedly has standing since he is a candidate whose ability
to reach out to the electorate is impacted by the assailed Resolutions.
For the broadcast companies, they similarly have the standing in view of the direct injury they may suffer
relative to their ability to carry out their tasks of disseminating information because of the burdens imposed on
them. Nevertheless, even in regard to the broadcast companies invoking the injury that may be caused to their
customers or the public — those who buy advertisements and the people who rely on their broadcasts — what
the Court said in White Light Corporation v. City of Manila 29 may dispose of the question. In that case, there
was an issue as to whether owners of establishments offering "wash-up" rates may have the requisite
standing on behalf of their patrons' equal protection claims relative to an ordinance of the City of Manila which
prohibited "short-time" or "wash-up" accommodation in motels and similar establishments. The Court
essentially condensed the issue in this manner: "[T]he crux of the matter is whether or not these
establishments have the requisite standing to plead for protection of their patrons' equal protection rights." 30
The Court then went on to hold:
Standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm
from the law or action challenged to support that party's participation in the case. More importantly, the
doctrine of standing is built on the principle of separation of powers, sparing as it does unnecessary
interference or invalidation by the judicial branch of the actions rendered by its co-equal branches of
government.
The requirement of standing is a core component of the judicial system derived directly from the Constitution.
The constitutional component of standing doctrine incorporates concepts which concededly are not
susceptible of precise definition. In this jurisdiction, the extancy of "a direct and personal interest" presents the
most obvious cause, as well as the standard test for a petitioner's standing. In a similar vein, the United States
Supreme Court reviewed and elaborated on the meaning of the three constitutional standing requirements of
injury, causation, and redressability in Allen v. Wright.
17
JULY 11, 2019
Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth doctrine,
taxpayer suits, third party standing and, especially in the Philippines, the doctrine of transcendental
importance.
For this particular set of facts, the concept of third party standing as an exception and the overbreadth doctrine
are appropriate. . . .
xxx xxx xxx
American jurisprudence is replete with examples where parties-in-interest were allowed standing to advocate
or invoke the fundamental due process or equal protection claims of other persons or classes of persons
injured by state action. . . .
xxx xxx xxx
Assuming arguendo that petitioners do not have a relationship with their patrons for the former to assert the
rights of the latter, the overbreadth doctrine comes into play. In overbreadth analysis, challengers to
government action are in effect permitted to raise the rights of third parties. Generally applied to statutes
infringing on the freedom of speech, the overbreadth doctrine applies when a statute needlessly restrains even
constitutionally guaranteed rights. In this case, the petitioners claim that the Ordinance makes a sweeping
intrusion into the right to liberty of their clients. We can see that based on the allegations in the petition, the
Ordinance suffers from overbreadth. IHTaCE
We thus recognize that the petitioners have a right to assert the constitutional rights of their clients to patronize
their establishments for a "wash-rate" time frame. 31
If in regard to commercial undertakings, the owners may have the right to assert a constitutional right of their
clients, with more reason should establishments which publish and broadcast have the standing to assert the
constitutional freedom of speech of candidates and of the right to information of the public, not to speak of
their own freedom of the press. So, we uphold the standing of petitioners on that basis.
SUBSTANTIVE ASPECTS
Aggregate Time Limits
COMELEC Resolution No. 9615 introduced a radical departure from the previous COMELEC resolutions
relative to the airtime limitations on political advertisements. This essentially consists in computing the airtime
on an aggregate basis involving all the media of broadcast communications compared to the past where it was
done on a per station basis. Thus, it becomes immediately obvious that there was effected a drastic reduction
of the allowable minutes within which candidates and political parties would be able to campaign through the
air. The question is accordingly whether this is within the power of the COMELEC to do or not. The Court
holds that it is not within the power of the COMELEC to do so.
a. Past elections and airtime limits
The authority of the COMELEC to impose airtime limits directly flows from the Fair Election Act (R.A. No. 9006
[2001]) 32 — one hundred (120) minutes of television advertisement and one-hundred eighty (180) minutes for
radio advertisement. For the 2004 elections, the respondent COMELEC promulgated Resolution No. 6520 33
implementing the airtime limits by applying said limitation on a per station basis. 34 Such manner of
determining airtime limits was likewise adopted for the 2007 elections, through Resolution No. 7767. 35 In the
2010 elections, under Resolution No. 8758, 36 the same was again adopted. But for the 2013 elections, the
COMELEC, through Resolution No. 9615, as amended by Resolution No. 9631, chose to aggregate the total
broadcast time among the different broadcast media, thus:
Section 9. Requirements and/or Limitations on the Use of Election Propaganda through Mass Media. — All
parties and bona fide candidates shall have equal access to media time and space for their election
propaganda during the campaign period subject to the following requirements and/or limitations: ATESCc
a. Broadcast Election Propaganda
The duration of an air time that a candidate, or party may use for their broadcast advertisements or election
propaganda shall be, as follows:
For Not more than an aggregate total of one
Candidates/Registered hundred (120) minutes of television
Political parties for a advertising, whether appearing on national,
National Elective Position regional, or local, free or cable television,
CONSTI REV – FULL TEXT
and one hundred eighty (180) minutes of
radio advertising, whether airing on
national, regional, or local radio, whether
by purchase or donation
For Not more than an aggregate total of sixty
Candidates/Registered (60) minutes of television advertising,
Political parties for a whether appearing on national, regional, or
Elective Position local, free or cable television, and ninety (90)
minutes of radio advertising, whether
airing on national, regional, or local radio,
whether by purchase or donation.
In cases where two or more candidates or parties whose names, initials, images, brands, logos, insignias,
color motifs, symbols, or forms of graphical representations are displayed, exhibited, used, or mentioned
together in the broadcast election propaganda or advertisements, the length of time during which they appear
or are being mentioned or promoted will be counted against the airtime limits allotted for the said candidates or
parties and the cost of the said advertisement will likewise be considered as their expenditures, regardless of
whoever paid for the advertisements or to whom the said advertisements were donated.
xxx xxx xxx 37
Corollarily, petitioner-intervenor, Senator Cayetano, alleges:
6.15. The change in the implementation of Section 6 of R.A. 9006 was undertaken by respondent Comelec
without consultation with the candidates for the 2013 elections, affected parties such as media organizations,
as well as the general public. Worse, said change was put into effect without explaining the basis therefor and
without showing any data in support of such change. Respondent Comelec merely maintained that such action
"is meant to level the playing field between the moneyed candidates and those who don't have enough
resources," without particularizing the empirical data upon which such a sweeping statement was based. This
was evident in the public hearing held on 31 January 2013 where petitioner GMA, thru counsel, explained that
no empirical data on the excesses or abuses of broadcast media were brought to the attention of the public by
respondent Comelec, or even stated in the Comelec Resolution No. 9615. Thus —
xxx xxx xxx
Chairman Brillantes
So if we can regulate and amplify, we may amplify meaning we can expand if we want to. But the authority of
the Commission is if we do not want to amplify and we think that the 120 or 180 is okay we cannot be
compelled to amplify. We think that 120 or 180 is okay, is enough.
Atty. Lucila
But with due respect Your Honor, I think the basis of the resolution is found in the law and the law
has been enterpreted (sic) before in 2010 to be 120 per station, so why the change, your Honor?
Chairman Brillantes
No, the change is not there, the right to amplify is with the Commission on Elections. Nobody can
encroach in our right to amplify. Now, if in 2010 the Commission felt that per station or per network is the rule
then that is the prerogative of the Commission then they could amplify it to expand it. If the current
Commission feels that 120 is enough for the particular medium like TV and 180 for radio, that is our
prerogative. How can you encroach and what is unconstitutional about it?
Atty. Lucila
We are not questioning the authority of the Honorable Commission to regulate Your Honor, we are
just raising our concern on the manner of regulation because as it is right now, there is a changing mode or
sentiments of the Commission and the public has the right to know, was there rampant overspending on
political ads in 2010, we were not informed Your Honor. Was there abuse of the media in 2010, we were not
informed Your Honor. So we would like to know what is the basis of the sudden change in this limitation, Your
Honor.. And law must have a consistent interpretation that [is] our position, Your Honor.
Chairman Brillantes
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JULY 11, 2019
But my initial interpretation, this is personal to this representation counsel, is that if the Constitution
allows us to regulate and then it gives us the prerogative to amplify then the prerogative to amplify you should
leave this to the discretion of the Commission. Which means if previous Commissions felt that expanding it
should be part of our authority that was a valid exercise if we reduce it to what is provided for by law which is
120-180 per medium, TV, radio, that is also within the law and that is still within our prerogative as provided for
by the Constitution. If you say we have to expose the candidates to the public then I think the reaction should
come, the negative reaction should come from the candidates not from the media, unless you have some
interest to protect directly. Is there any interest on the part of the media to expand it?
Atty. Lucila
Well, our interest Your Honor is to participate in this election Your Honor and we have been
constantly (sic) as the resolution says and even in the part involved because you will be getting some
affirmative action time coming from the media itself and Comelec time coming from the media itself. So we
could like to be both involved in the whole process of the exercise of the freedom of suffrage Your Honor.
Chairman Brillantes
Yes, but the very essence of the Constitutional provision as well as the provision of 9006 is actually
to level the playing field. That should be the paramount consideration. If we allow everybody to make use of all
their time and all radio time and TV time then there will be practically unlimited use of the mass media. . . .
Atty. Lucila
Was there in 2010 Your Honor, was there any data to support that there was an unlimited and
abuse of a (sic) political ads in the mass media that became the basis of this change in interpretation Your
Honor? We would like to know about it Your Honor.
Chairman Brillantes
What do you think there was no abuse in 2010?
Atty. Lucila
As far as the network is concern, there was none Your Honor.
Chairman Brillantes
There was none . . .
Atty. Lucila
I'm sorry, Your Honor . . .
Chairman Brillantes
Yes, there was no abuse, okay, but there was some advantage given to those who took . . . who
had the more moneyed candidates took advantage of it.
Atty. Lucila
But that is the fact in life, Your Honor there are poor candidates, there are rich candidates. No
amount of law or regulation can even level the playing filed (sic) as far as the economic station in life of the
candidates are concern (sic) our Honor. 38
Given the foregoing observations about what happened during the hearing, Petitioner-Intervenor went on to
allege that:
6.16. Without any empirical data upon which to base the regulatory measures in Section 9 (a), respondent
Comelec arbitrarily changed the rule from per station basis to aggregate airtime basis. Indeed, no credence
should be given to the cliched explanation of respondent Comelec (i.e., leveling the playing field) in its
published statements which in itself is a mere reiteration of the rationale for the enactment of the political ad
ban of Republic Act No. 6646, and which has likewise been foisted when said political ad ban was lifted by
R.A. 9006. 39
From the foregoing, it does appear that the COMELEC did not have any other basis for coming up with a new
manner of determining allowable time limits except its own idea as to what should be the maximum number of
minutes based on its exercise of discretion as to how to level the playing field. The same could be
encapsulized in the remark of the COMELEC Chairman that "if the Constitution allows us to regulate and then
CONSTI REV – FULL TEXT
it gives us the prerogative to amplify then the prerogative to amplify you should leave this to the discretion of
the Commission." 40
The Court could not agree with what appears as a nonchalant exercise of discretion, as expounded anon.
b. COMELEC is duty bound to come up
with reasonable basis for changing the
interpretation and implementation of
the airtime limits
There is no question that the COMELEC is the office constitutionally and statutorily authorized to enforce
election laws but it cannot exercise its powers without limitations — or reasonable basis. It could not simply
adopt measures or regulations just because it feels that it is the right thing to do, in so far as it might be
concerned. It does have discretion, but such discretion is something that must be exercised within the bounds
and intent of the law. The COMELEC is not free to simply change the rules especially if it has consistently
interpreted a legal provision in a particular manner in the past. If ever it has to change the rules, the same
must be properly explained with sufficient basis.
Based on the transcripts of the hearing conducted by the COMELEC after it had already promulgated the
Resolution, the respondent did not fully explain or justify the change in computing the airtime allowed
candidates and political parties, except to make reference to the need to "level the playing field." If the "per
station" basis was deemed enough to comply with that objective in the past, why should it now be suddenly
inadequate? And, the short answer to that from the respondent, in a manner which smacks of overbearing
exercise of discretion, is that it is within the discretion of the COMELEC. As quoted in the transcript, "the right
to amplify is with the COMELEC. Nobody can encroach in our right to amplify. Now, if in 2010 the Commission
felt that per station or per network is the rule then that is the prerogative of the Commission then they could
amplify it to expand it. If the current Commission feels that 120 is enough for the particular medium like TV and
180 for radio, that is our prerogative. How can you encroach and what is unconstitutional about it?" 41
There is something basically wrong with that manner of explaining changes in administrative rules. For one, it
does not really provide a good basis for change. For another, those affected by such rules must be given a
better explanation why the previous rules are no longer good enough. As the Court has said in one case:
While stability in the law, particularly in the business field, is desirable, there is no demand that the NTC
slavishly follow precedent. However, we think it essential, for the sake of clarity and intellectual honesty, that if
an administrative agency decides inconsistently with previous action, that it explain thoroughly why a different
result is warranted, or if need be, why the previous standards should no longer apply or should be overturned.
Such explanation is warranted in order to sufficiently establish a decision as having rational basis. Any
inconsistent decision lacking thorough, ratiocination in support may be struck down as being arbitrary. And any
decision with absolutely nothing to support it is a nullity. 42
What the COMELEC came up with does not measure up to that level of requirement and accountability which
elevates administrative rules to the level of respectability and acceptability. Those governed by administrative
regulations are entitled to a reasonable and rational basis for any changes in those rules by which they are
supposed to live by, especially if there is a radical departure from the previous ones.
c. The COMELEC went beyond the
authority granted it by the law in
adopting "aggregate" basis in the
determination of allowable airtime
The law, which is the basis of the regulation subject of these petitions, pertinently provides:
6.2. (a) Each bona fide candidate or registered political party for a nationally elective office shall be entitled to
not more than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180)
minutes of radio advertisement whether by purchase or donation.
(b) Each bona fide candidate or registered political party for a locally elective office shall be entitled to not
more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement
whether by purchase or donation; . . .
The law, on its face, does not justify a conclusion that the maximum allowable airtime should be based on the
totality of possible broadcast in all television or radio stations. Senator Cayetano has called our attention to the
legislative intent relative to the airtime allowed — that it should be on a "per station" basis. 43
19
JULY 11, 2019
This is further buttressed by the fact that the Fair Election Act (R.A. No. 9006) actually repealed the previous
provision, Section 11 (b) of Republic Act No. 6646, 44 which prohibited direct political advertisements — the
so-called "political ad ban." If under the previous law, no candidate was allowed to directly buy or procure on
his own his broadcast or print campaign advertisements, and that he must get it through the COMELEC Time
or COMELEC Space, R.A. No. 9006 relieved him or her from that restriction and allowed him or her to
broadcast time or print space subject to the limitations set out in the law. Congress, in enacting R.A. No. 9006,
felt that the previous law was not an effective and efficient way of giving voice to the people. Noting the
debilitating effects of the previous law on the right of suffrage and Philippine democracy, Congress decided to
repeal such rule by enacting the fair Election Act.
In regard to the enactment of the new law, taken in the context of the restrictive nature of the previous law, the
sponsorship speech of Senator Raul Roco is enlightening:
The bill seeks to repeal Section 85 of the Omnibus Election Code and Sections 10 and 11 of RA 6646. In view
of the importance of their appeal in connection with the thrusts of the bill, I hereby quote these sections in full:
"SEC. 85. Prohibited forms of election propaganda. — It shall be unlawful:
"(a) To print, publish, post or distribute any poster, pamphlet, circular, handbill, or printed matter urging voters
to vote for or against any candidate unless they hear the names and addresses of the printed and payor as
required in Section 84 hereof;
"(b) To erect, put up, make use of, attach, float or display any billboard, tinplate-poster, balloons and the like, of
whatever size, shape, form or kind, advertising for or against any candidate or political party;
"(c) To purchase, manufacture, request, distribute or accept electoral propaganda gadgets, such as pens,
lighters, fans of whatever nature, flashlights, athletic goods or materials, wallets, shirts, hats, bandannas,
matches, cigarettes and the like, except that campaign supporters accompanying a candidate shall be allowed
to wear hats and/or shirts or T shirts advertising a candidate;
"(d) To show or display publicly any advertisement or propaganda for or against any candidate by means of
cinematography, audio-visual units or other screen projections except telecasts which may be allowed as
hereinafter provided; and
"(e) For any radio broadcasting or television station to sell or give free of charge airtime for campaign and
other political purposes except as authorized in this Code under the rules and regulations promulgated by the
Commission pursuant thereto;
"Any prohibited election propaganda gadget or advertisement shall be stopped, confiscated or torn down by
the representative of the Commission upon specific authority of the Commission."
"SEC. 10. Common Poster Areas. — The Commission shall designate common poster areas in strategic
public places such as markets, barangay centers and the like wherein candidates can post, display or exhibit
election propaganda to announce or further their candidacy.
"Whenever feasible common billboards may be installed by the Commission and/or non-partisan private or
civic organizations which the Commission may authorize whenever available, after due notice and hearing, in
strategic areas where it may readily be seen or read, with the heaviest pedestrian and/or vehicular traffic in the
city or municipality.
The space in such common poster areas or billboards shall be allocated free of charge, ifs feasible, equitably
and impartially among the candidates in the province, city or municipality.
"SEC. 11. Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda
prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint, inscribe, write,
post, display or publicly exhibit any election propaganda in any place, whether private or public, except in
common poster areas and/or billboards provided in the immediately preceding section, at the candidate's own
residence, or at the campaign headquarters of the candidate or political party: Provided, That such posters or
election propaganda shall in no case exceed two (2) feet by three (3) feet in area; Provided, further, That at
the site of and on the occasion of a public meeting or rally, streamers, not more than two (2) feet and not
exceeding three (3) feet by eight (8) each may be displayed five (5) days before the date of the meeting or
rally, and shall be removed within twenty-four (24) hours after said meeting or rally; and
"(b) For any newspapers, radio broadcasting or television station, or other mass media, or any person making
use of the mass media to sell or give for free of charge print space or air time for campaign or other political
purposes except to the Commission as provided under Section 90 and 92 of Batas Pambansa Blg. 881. Any
CONSTI REV – FULL TEXT
mass media columnist, commentator, announcer or personality who is a candidate for any elective public
office shall take a leave of absence from his work as such during the campaign."
The repeal of the provision on the Common Poster Area implements the strong recommendations of the
Commission on Elections during the hearings. It also seeks to apply the doctrine enunciated by the Supreme
Court in the case of Blo Umpar Adiong vs. Commission on Elections, 207 SCRA 712, 31 March 1992. Here a
unanimous Supreme Court ruled: The COMELEC's prohibition on the posting of decals and stickers on
"mobile" places whether public or private except [in] designated areas provided for by the COMELEC itself is
null and void on constitutional grounds.
For the foregoing reasons, we commend to our colleagues the early passage of Senate Bill No. 1742. In so
doing, we move one step towards further ensuring "free, orderly, honest, peaceful and credible elections" as
mandated by the Constitution. 45
Given the foregoing background, it is therefore ineluctable to conclude that Congress intended to provide a
more expansive and liberal means by which the candidates, political parties, citizens and other stake holders
in the periodic electoral exercise may be given a chance to fully explain and expound on their candidacies and
platforms of governance, and for the electorate to be given a chance to know better the personalities behind
the candidates. In this regard, the media is also given a very important part in that undertaking of providing the
means by which the political exercise becomes an interactive process. All of these would be undermined and
frustrated with the kind of regulation that the respondent came up with.
The respondent gave its own understanding of the import of the legislative deliberations on the adoption of
R.A. No. 9006 as follows:
The legislative history of R.A. 9006 clearly shows that Congress intended to impose the per candidate or
political party aggregate total airtime limits on political advertisements and election propaganda. This is
evidenced by the dropping of the "per day per station" language embodied in both versions of the House of
Representatives and Senate bills in favour of the "each candidate" and "not more than" limitations now found
in Section 6 of R.A. 9006.
The pertinent portions of House Bill No. 9000 and Senate Bill No. 1742 read as follows:
House Bill No. 9000:
SEC. 4. Section 86 of the same Batas is hereby amended to read as follows:
Sec. 86. Regulation of Election Propaganda Through Mass Media. —
xxx xxx xxx
A) The total airtime available to the candidate and political party, whether by purchase or by donation,
shall be limited to five (5) minutes per day in each television, cable television and radio stations during the
applicable campaign period.
Senate Bill No. 1742:
SEC. 5. Equal Access to Media Space and Time. — All registered parties and bona fide candidates shall
have equal access to media space and time. The following guidelines may be amplified by the COMELEC.
xxx xxx xxx
2. The total airtime available for each registered party and bona fide candidate whether by purchase
or donation shall not exceed a total of one (1) minute per day per television or radio station. (Emphasis
supplied.)
As Section 6 of R.A. 9006 is presently worded, it can be clearly seen that the legislature intended the
aggregate airtime limits to be computed on per candidate or party basis. Otherwise, if the legislature intended
the computation to be on per station basis, it could have left the original "per day per station" formulation. 46
The Court does not agree. It cannot bring itself to read the changes in the bill as disclosing an intent that the
COMELEC wants this Court to put on the final language of the law. If anything, the change in language meant
that the computation must not be based on a "per day" basis for each television or radio station. The same
could not therefore lend itself to an understanding that the total allowable time is to be done on an aggregate
basis for all television or radio stations.
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Clearly, the respondent in this instance went beyond its legal mandate when it provided for rules beyond what
was contemplated by the law it is supposed to implement. As we held in Lokin, Jr. v. Commission on Elections:
47
The COMELEC, despite its role as the implementing arm of the Government in the enforcement and
administration of all laws and regulations relative to the conduct of an election, has neither the authority nor
the license to expand, extend, or add anything to the law it seeks to implement thereby. The IRRs the
COMELEC issued for that purpose should always be in accord with the law to be implemented, and should not
override, supplant, or modify the law. It is basic that the IRRs should remain consistent with the law they intend
to carry out.
Indeed, administrative IRRs adopted by a particular department of the Government under legislative authority
must be in harmony with the provisions of the law, and should be for the sole purpose of carrying the law's
general provisions into effect. The law itself cannot be expanded by such IRRs, because an administrative
agency cannot amend an act of Congress. 48
In the case of Lokin, Jr., the COMELEC's explanation that the Resolution then in question did not add anything
but merely reworded and rephrased the statutory provision did not persuade the Court. With more reason here
since the COMELEC not only reworded or rephrased the statutory provision — it practically replaced it with its
own idea of what the law should be, a matter that certainly is not within its authority. As the Court said in
Villegas v. Subido: 49
One last word. Nothing is better settled in the law than that a public official exercises power, not rights. The
government itself is merely an agency through which the will of the state is expressed and enforced. Its
officers therefore are likewise agents entrusted with the responsibility of discharging its functions. As such
there is no presumption that they are empowered to act. There must be a delegation of such authority, either
express or implied. In the absence of a valid grant, they are devoid of power. What they do suffers from a fatal
infirmity. That principle cannot be sufficiently stressed. In the appropriate language of Chief Justice Hughes: "It
must be conceded that departmental zeal may not be permitted to outrun the authority conferred by statute.''
Neither the high dignity of the office nor the righteousness of the motive then is an acceptable substitute.
Otherwise the rule of law becomes a myth. Such an eventuality, we must take all pains to avoid. 50
So it was then. So does the rule still remains the same.
d. Section 9 (a) of COMELEC Resolution
No. 9615 on airtime limits also goes
against the constitutional guaranty of
freedom of expression, of speech
and of the press
The guaranty of freedom to speak is useless without the ability to communicate and disseminate what is said.
And where there is a need to reach a large audience, the need to access the means and media for such
dissemination becomes critical. This is where the press and broadcast media come along. At the same time,
the right to speak and to reach out would not be meaningful if it is just a token ability to be heard by a few. It
must be coupled with substantially reasonable means by which the communicator and the audience could
effectively interact. Section 9 (a) of COMELEC Resolution No. 9615, with its adoption of the "aggregate-
based" airtime limits unreasonably restricts the guaranteed freedom of speech and of the press.
Political speech is one of the most important expressions protected by the Fundamental Law. "[F]reedom of
speech, of expression, and of the press are at the core of civil liberties and have to be protected at all costs for
the sake of democracy." 51 Accordingly, the same must remain unfettered unless otherwise justified by a
compelling state interest.
In regard to limitations on political speech relative to other state interests, an American case observed:
A restriction on the amount of money a person or group can spend on political communication during a
campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the
depth of their exploration, and the size of the audience reached. This is because virtually every means of
communicating ideas in today's mass society requires the expenditure of money. The distribution of the
humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally
necessitate hiring a hall and publicizing the event. The electorate's increasing dependence on television, radio,
and other mass media for news and information has made these expensive modes of communication
indispensable instruments of effective political speech.
CONSTI REV – FULL TEXT
The expenditure limitations contained in the Act represent substantial, rather than merely theoretical restraints
on the quantity and diversity of political speech. The $1,000 ceiling on spending "relative to a clearly identified
candidate," 18 U.S.C. § 608(e)(1) (1970 ed., Supp. IV), would appear to exclude all citizens and groups except
candidates, political parties, and the institutional press from any significant use of the most effective modes of
communication. Although the Act's limitations on expenditures by campaign organizations and political parties
provide substantially greater room for discussion and debate, they would have required restrictions in the
scope of a number of past congressional and Presidential campaigns and would operate to constrain
campaigning by candidates who raise sums in excess of the spending ceiling. 52
Section 9 (a) of COMELEC Resolution No. 9615 comes up with what is challenged as being an unreasonable
basis for determining the allowable air time that candidates and political parties may avail of. Petitioner GMA
came up with its analysis of the practical effects of such a regulation:
5.8. Given the reduction of a candidate's airtime minutes in the New Rules, petitioner GMA estimates that a
national candidate will only have 120 minutes to utilize for his political advertisements in television during the
whole campaign period of 88 days, or will only have 81.81 seconds per day TV exposure allotment. If he
chooses to place his political advertisements in the 3 major TV networks in equal allocation, he will only have
27.27 seconds of airtime per network per day. This barely translates to 1 advertisement spot on a 30-second
spot basis in television.
5.9. With a 20-hour programming per day and considering the limits of a station's coverage, it will be difficult
for 1 advertising spot to make a sensible and feasible communication to the public, or in political propaganda,
to "make known [a candidate's] qualifications and stand on public issues".
5.10. If a candidate loads all of his 81.81 seconds per day in one network, this will translate to barely three 30-
second advertising spots in television on a daily basis using the same assumptions above.
5.11. Based on the data from the 2012 Nielsen TV audience measurement in Mega Manila, the commercial
advertisements in television are viewed by only 39.2% of the average total day household audience if such
advertisements are placed with petitioner GMA, the leading television network nationwide and in Mega Manila.
In effect, under the restrictive aggregate airtime limits in the New Rules, the three 30-second political
advertisements of a candidate in petitioner GMA will only be communicated to barely 40% of the viewing
audience, not even the voting population, but only in Mega Manila, which is defined by AGB Nielsen
Philippines to cover Metro Manila and certain urban areas in the provinces of Bulacan, Cavite, Laguna, Rizal,
Batangas and Pampanga. Consequently, given the voting population distribution and the drastically reduced
supply of airtime as a result of the New Rules' aggregate airtime limits, a national candidate will be forced to
use all of his airtime for political advertisements in television only in urban areas such as Mega Manila as a
political campaign tool to achieve maximum exposure.
5.12. To be sure, the people outside of Mega Manila or other urban areas deserve to be informed of the
candidates in the national elections, and the said candidates also enjoy the right to be voted upon by these
informed populace. 53
The Court agrees. The assailed rule on "aggregate-based" airtime limits is unreasonable and arbitrary as it
unduly restricts and constrains the ability of candidates and political parties to reach out and communicate with
the people. Here, the adverted reason for imposing the "aggregate-based" airtime limits — leveling the playing
field — does not constitute a compelling state interest which would justify such a substantial restriction on the
freedom of candidates and political parties to communicate their ideas, philosophies, platforms and programs
of government. And, this is specially so in the absence of a clear-cut basis for the imposition of such a
prohibitive measure. In this particular instance, what the COMELEC has done is analogous to letting a bird fly
after one has clipped its wings.
It is also particularly unreasonable and whimsical to adopt the aggregate-based time limits on broadcast time
when we consider that the Philippines is not only composed of so many islands. There are also a lot of
languages and dialects spoken among the citizens across the country. Accordingly, for a national candidate to
really reach out to as many of the electorates as possible, then it might also be necessary that he conveys his
message through his advertisements in languages and dialects that the people may more readily understand
and relate to. To add all of these airtimes in different dialects would greatly hamper the ability of such
candidate to express himself — a form of suppression of his political speech.
Respondent itself states that "[t]elevision is arguably the most cost-effective medium of dissemination. Even a
slight increase in television exposure can significantly boost a candidate's popularity, name recall and
electability." 54 If that be so, then drastically curtailing the ability of a candidate to effectively reach out to the
electorate would unjustifiably curtail his freedom to speak as a means of connecting with the people.
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Finally on this matter, it is pertinent to quote what Justice Black wrote in his concurring opinion in the landmark
Pentagon Papers case: "In the First Amendment, the Founding Fathers gave the free press the protection it
must have to fulfill its essential role in our democracy. The press was to serve the governed, not the
governors. The Government's power to censor the press was abolished so that the press would remain forever
free to censure the Government. The press was protected so that it could bare the secrets of government and
inform the people. Only a free and unrestrained press can effectively expose deception in government." 55
In the ultimate analysis, when the press is silenced, or otherwise muffled in its undertaking of acting as a
sounding board, the people ultimately would be the victims.
e. Section 9 (a) of Resolution 9615 is
violative of the people's
right to suffrage
Fundamental to the idea of a democratic and republican state is the right of the people to determine their own
destiny through the choice of leaders they may have in government. Thus, the primordial importance of
suffrage and the concomitant right of the people to be adequately informed for the intelligent exercise of such
birthright. It was said that:
. . . As long as popular government is an end to be achieved and safeguarded, suffrage, whatever may be the
modality and form devised, must continue to be the means by which the great reservoir of power must be
emptied into the receptacular agencies wrought by the people through their Constitution in the interest of good
government and the common weal. Republicanism, in so far as it implies the adoption of a representative type
of government, necessarily points to the enfranchised citizen as a particle of popular sovereignty and as the
ultimate source of the established authority. He has a voice in his Government and whenever possible it is the
solemn duty of the judiciary, when called upon to act in justifiable cases, to give it efficacy and not to stifle or
frustrate it. This, fundamentally, is the reason for the rule that ballots should be read and appreciated, if not
with utmost, with reasonable, liberality. . . . 56
It has also been said that "[c]ompetition in ideas and governmental policies is at the core of our electoral
process and of the First Amendment freedoms." 57 Candidates and political parties need adequate breathing
space — including the means to disseminate their ideas. This could not be reasonably addressed by the very
restrictive manner by which the respondent implemented the time limits in regard to political advertisements in
the broadcast media.
f. Resolution No. 9615 needs
prior hearing before adoption
The COMELEC promulgated Resolution No. 9615 on January 15, 2013 then came up with a public hearing on
January 31, 2013 to explain what it had done, particularly on the aggregate-based air time limits. This
circumstance also renders the new regulation, particularly on the adoption of the aggregate-based airtime
limit, questionable. It must not be overlooked that the new Resolution introduced a radical change in the
manner in which the rules on airtime for political advertisements are to be reckoned. As such there is a need
for adequate and effective means by which they may be adopted, disseminated and implemented. In this
regard, it is not enough that they be published — or explained — after they have been adopted.
While it is true that the COMELEC is an independent office and not a mere administrative agency under the
Executive Department, rules which apply to the latter must also be deemed to similarly apply to the former, not
as a matter of administrative convenience but as a dictate of due process. And this assumes greater
significance considering the important and pivotal role that the COMELEC plays in the life of the nation. Thus,
whatever might have been said in Commissioner of Internal Revenue v. Court of Appeals, 58 should also
apply mutatis mutandis to the COMELEC when it comes to promulgating rules and regulations which
adversely affect, or impose a heavy and substantial burden on, the citizenry in a matter that implicates the
very nature of government we have adopted:
It should be understandable that when an administrative rule is merely interpretative in nature, its applicability
needs nothing further than its bare issuance for it gives no real consequence more than what the law itself has
already prescribed. When, upon the other hand, the administrative rule goes beyond merely providing for the
means that can facilitate or render least cumbersome the implementation of the law but substantially adds to
or increases the burden of those governed, it behooves the agency to accord at least to those directly affected
a chance to be heard, and thereafter to be duly informed, before that new issuance is given the force and
effect of law.
CONSTI REV – FULL TEXT
A reading of RMC 37-93, particularly considering the circumstances under which it has been issued, convinces
us that the circular cannot be viewed simply as a corrective measure (revoking in the process the previous
holdings of past Commissioners) or merely as construing Section 142(c)(1) of the NIRC, as amended, but has,
in fact and most importantly, been made in order to place "Hope Luxury," "Premium More" and "Champion"
within the classification of locally manufactured cigarettes bearing foreign brands and to thereby have them
covered by RA 7654. Specifically, the new law would have its amendatory provisions applied to locally
manufactured cigarettes which at the time of its effectivity were not so classified as bearing foreign brands. . . .
In so doing, the BIR not simply interpreted the law; verily, it legislated under its quasi-legislative authority. The
due observance of the requirements of notice, of hearing, and of publication should not have been then
ignored. 59
For failing to conduct prior hearing before coming up with Resolution No. 9615, said Resolution, specifically in
regard to the new rule on aggregate airtime is declared defective and ineffectual.
g. Resolution No. 9615 does not impose
an unreasonable burden on the
broadcast industry
It is a basic postulate of due process, specifically in relation to its substantive component, that any
governmental rule or regulation must be reasonable in its operations and its impositions. Any restrictions, as
well as sanctions, must be reasonably related to the purpose or objective of the government in a manner that
would not work unnecessary and unjustifiable burdens on the citizenry. Petitioner GMA assails certain
requirements imposed on broadcast stations as unreasonable. It explained:
5.40 Petitioner GMA currently operates and monitors 21 FM and AM radio stations nationwide and 8
originating television stations (including its main transmitter in Quezon City) which are authorized to dechain
national programs for airing and insertion of local content and advertisements.
5.41 In light of the New Rules wherein a candidate's airtime minutes are applied on an aggregate basis and
considering that said Rules declare it unlawful in Section 7(d) thereof for a radio, television station or other
mass media to sell or give for free airtime to a candidate in excess of that allowed by law or by said New
Rules: HICSTa
"Section 7. Prohibited Forms of Election Propaganda. — During the campaign period, it is unlawful:
xxx xxx xxx
(d) for any newspaper or publication, radio, television or cable television station, or other mass media,
or any person making use of the mass media to sell or to give free of charge print space or air time for
campaign or election propaganda purposes to any candidate or party in excess of the size, duration or
frequency authorized by law or these rules;
xxx xxx xxx"
(Emphasis supplied)
petitioner GMA submits that compliance with the New Rules in order to avoid administrative or criminal liability
would be unfair, cruel and oppressive.
xxx xxx xxx.
5.43 In the present situation wherein airtime minutes shall be shared by all television and radio stations,
broadcast mass media organizations would surely encounter insurmountable difficulties in monitoring the
airtime minutes spent by the numerous candidates for various elective positions, in real time.
5.44 An inquiry with the National Telecommunications Commission (NTC) bears out that there are 372
television stations and 398 AM and 800 FM radio stations nationwide as of June 2012. In addition, there are
1,113 cable TV providers authorized by the NTC to operate within the country as of the said date.
5.45 Given such numbers of broadcast entities and the necessity to monitor political advertisements
pursuant to the New Rules, petitioner GMA estimates that monitoring television broadcasts of all authorized
television station would involve 7,440 manhours per day. To aggravate matters, since a candidate may also
spend his/her broadcasting minutes on cable TV, additional 281,040 manhours per day would have to be
spent in monitoring the various channels carried by cable TV throughout the Philippines. As far as radio
broadcasts (both AM and FM stations) are concerned, around 23,960 manhours per day would have to be
devoted by petitioner GMA to obtain an accurate and timely determination of a political candidate's remaining
22
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airtime minutes. During the campaign period, petitioner GMA would have to spend an estimated 27,494,720
manhours in monitoring the election campaign commercials of the different candidates in the country.
5.46 In order to carry-out the obligations imposed by the New Rules, petitioner GMA further estimates that it
would need to engage and train 39,055 additional persons on an eight-hour shift, and assign them all over the
country to perform the required monitoring of radio, television and cable TV broadcasts. In addition, it would
likewise need to allot radio, television, recording equipment and computers, as well as telecommunications
equipment, for this surveillance and monitoring exercise, thus imputing additional costs to the company.
Attached herewith are the computations explaining how the afore-said figures were derived and the
conservative assumptions made by petitioner GMA in reaching said figures, as Annex "H".
5.47 Needless to say, such time, manpower requirements, expense and effort would have to be replicated by
each and every radio station to ensure that they have properly monitored around 33 national and more than
40,000 local candidates' airtime minutes and thus, prevent any risk of administrative and criminal liability. 60
The Court cannot agree with the contentions of GMA. The apprehensions of the petitioner appear more to be
the result of a misappreciation of the real import of the regulation rather than a real and present threat to its
broadcast activities. The Court is more in agreement with the respondent when it explained that:
The legal duty of monitoring lies with the Comelec. Broadcast stations are merely required to submit certain
documents to aid the Comelec in ensuring that candidates are not sold airtime in excess of the allowed limits.
These documents include: (1) certified true copies of broadcast logs, certificates of performance, and
certificates of acceptance, or other analogous record on specified dates (Section 9[d][3], Resolution No. 9615,
in relation to Section 6.2, R.A. 9006; and (2) copies of all contract for advertising, promoting or opposing any
political party or the candidacy of any person for public office within five (5) days after its signing (Section 6.3,
R.A. 9006).
xxx xxx xxx
[T]here is absolutely no duty on the broadcast stations to do monitoring, much less monitoring in real time.
GMA grossly exaggerates when it claims that the non-existent duty would require them to hire and train an
astounding additional 39,055 personnel working on eight-hour shifts all over the country. 61
The Court holds, accordingly, that, contrary to petitioners' contention, the Reporting Requirement for the
COMELEC's monitoring is reasonable.
Further, it is apropos to note that, pursuant to Resolution No. 9631, 62 the respondent revised the third
paragraph of Section 9 (a). As revised, the provision now reads:
Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona fide news
documentary, if the appearance of the candidate is incidental to the presentation of the subject or subjects
covered by the news documentary, or on-the-spot coverage of bona fide news events, including but not limited
to events sanctioned by the Commission on Elections, political conventions, and similar activities, shall not be
deemed to be broadcast election propaganda within the meaning of this provision. For purposes of monitoring
by the COMELEC and ensuring that parties and candidates were afforded equal opportunities to promote their
candidacy, the media entity shall give prior notice to the COMELEC, through the appropriate Regional Election
Director (RED), or in the case of the National Capital Region (NCR), the Education and Information
Department (EID). If such prior notice is not feasible or practicable, the notice shall be sent within twenty-four
(24) hours from the first broadcast or publication. Nothing in the foregoing sentence shall be construed as
relieving broadcasters, in connection with the presentation of newscasts, news interviews, news
documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under
Sections 10 and 14 of these Rules." 63
Further, the petitioner in G.R. No. 205374 assails the constitutionality of such monitoring requirement,
contending, among others, that it constitutes prior restraint. The Court finds otherwise. Such a requirement is a
reasonable means adopted by the COMELEC to ensure that parties and candidates are afforded equal
opportunities to promote their respective candidacies. Unlike the restrictive aggregate-based airtime limits, the
directive to give prior notice is not unduly burdensome and unreasonable, much less could it be characterized
as prior restraint since there is no restriction on dissemination of information before broadcast.
Additionally, it is relevant to point out that in the original Resolution No. 9615, the paragraph in issue was
worded in this wise:
Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona fide news
documentary, if the appearance of the candidate is incidental to the presentation of the subject or subjects
covered by the news documentary, or on-the-spot coverage of bona fide news events, including but not limited
CONSTI REV – FULL TEXT
to events sanctioned by the Commission on Elections, political conventions, and similar activities, shall not be
deemed to be broadcast election propaganda within the meaning of this provision. To determine whether the
appearance or guesting in a program is bona fide, the broadcast stations or entities must show that (1) prior
approval of the Commission was secured; and (2) candidates and parties were afforded equal opportunities to
promote their candidacy. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in
connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot
coverage of news events, from the obligation imposed upon them under Sections 10 and 14 of these Rules.
64
Comparing the original with the revised paragraph, one could readily appreciate what the COMELEC had
done — to modify the requirement from "prior approval" to "prior notice." While the former may be suggestive
of a censorial tone, thus inviting a charge of prior restraint, the latter is more in the nature of a content-neutral
regulation designed to assist the poll body to undertake its job of ensuring fair elections without having to
undertake any chore of approving or disapproving certain expressions.
Also, the right to reply provision is reasonable
In the same way that the Court finds the "prior notice" requirement as not constitutionally infirm, it similarly
concludes that the "right to reply" provision is reasonable and consistent with the constitutional mandate.
Section 14 of Resolution No. 9615, as revised by Resolution No. 9631, provides:
SECTION 14. Right to Reply. — All registered political parties, party-list groups or coalitions and bona fide
candidates shall have the right to reply to charges published or aired against them. The reply shall be given
publicity by the newspaper, television, and/or radio station which first printed or aired the charges with the
same prominence or in the same page or section or in the same time slot as the first statement.
Registered political parties, party-list groups or coalitions and bona fide candidates may invoke the right to
reply by submitting within a non-extendible period of forty-eight hours from first broadcast or publication, a
formal verified claim against the media outlet to the COMELEC, through the appropriate RED. The claim shall
include a detailed enumeration of the circumstances and occurrences which warrant the invocation of the right
to reply and must be accompanied by supporting evidence, such a copy of the publication or recording of the
television or radio broadcast, as the case may be. If the supporting evidence is not yet available due to
circumstances beyond the power of the claimant, the latter shall supplement his claim as soon as the
supporting evidence becomes available, without delay on the part of the claimant. The claimant must likewise
furnish a copy of the verified claim and its attachments to the media outlet concerned prior to the filing of the
claim with the COMELEC.
The COMELEC, through the RED, shall view the verified claim within forty-eight (48) hours from receipt
thereof, including supporting evidence, and if circumstances warrant, give notice to the media outlet involved
for appropriate action, which shall, within forty-eight (48) hours, submit its comment, answer or response to the
RED, explaining the action it has taken to address the claim. The media outlet must likewise furnish a copy of
the said comment, answer or response to the claimant invoking the right to reply.
Should the claimant insist that his/her right to reply was not addressed, he/she may file the appropriate petition
and/or complaint before the Commission on Elections or its field offices, which shall be endorsed to the Clerk
of Court.
The attack on the validity of the "right to reply" provision is primarily anchored on the alleged ground of prior
restraint, specifically in so far as such a requirement may have a chilling effect on speech or of the freedom of
the press.
Petitioner ABC states, inter alia:
5.145. A "conscious and detailed consideration" of the interplay of the relevant interests — the
constitutional mandate granting candidates the right to reply and the inviolability of the constitutional freedom
of expression, speech, and the press — will show that the Right to Reply, as provided for in the Assailed
Resolution, is an impermissible restraint on these fundamental freedoms.
5.146. An evaluation of the factors set forth in Soriano (for the balancing of interests test) with respect to
the present controversy will show that the Constitution does not tilt the balance in favor of the Right to Reply
provision in the Assailed Resolution and the supposed governmental interest it attempts to further. 65
The Constitution itself provides as part of the means to ensure free, orderly, honest, fair and credible elections,
a task addressed to the COMELEC to provide for a right to reply. 66 Given that express constitutional
mandate, it could be seen that the Fundamental Law itself has weighed in on the balance to be struck
23
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between the freedom of the press and the right to reply. Accordingly, one is not merely to see the equation as
purely between the press and the right to reply. Instead, the constitutionally-mandated desiderata of free,
orderly, honest, peaceful, and credible elections would necessarily have to be factored in trying to see where
the balance lies between press and the demands of a right-to-reply. I
Moreover, as already discussed by the Court in Telecommunications and Broadcast Attorneys of the
Philippines, Inc. v. Commission on Elections. 67
In truth, radio and television broadcasting companies, which are given franchises, do not own the airwaves
and frequencies through which they transmit broadcast signals and images. They are merely given the
temporary privilege of using them. Since a franchise is a mere privilege, the exercise of the privilege may
reasonably be burdened with the performance by the grantee of some form of public service. . . . 68
Relevant to this aspect are these passages from an American Supreme Court decision with regard to
broadcasting, right to reply requirements, and the limitations on speech:
We have long recognized that each medium of expression presents special First Amendment problems.
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502-503, 96 L Ed 1098, 72 S Ct 777. And of all forms of
communication, it is broadcasting that has received the most limited First Amendment protection. Thus,
although other speakers cannot be licensed except under laws that carefully define and narrow official
discretion, a broadcaster may be deprived of his license and his forum if the Commission decides that such an
action would serve "the public interest, convenience, and necessity." Similarly, although the First Amendment
protects newspaper publishers from being required to print the replies of those whom they criticize, Miami
Herald Publishing Co. v. Tornillo, 418 U.S. 241, 41 L Ed 2d 730, 94 S Ct 2831, it affords no such protection to
broadcasters; on the contrary, they must give free time to the victims of their criticism. Red Lion Broadcasting
Co. v. FCC, 395 U.S. 367, 23 L Ed 2d 371, 89 S Ct 1794.
The reasons for these distinctions are complex, but two have relevance to the present case. First, the
broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently
offensive, indecent material presented over the airwaves confronts the citizen not only in public, but also in the
privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights
of an intruder. Rowan v. Post Office Dept., 397 U.S. 728, 25 L Ed 2d 736, 90 S Ct 1484. Because the
broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or
viewer from unexpected program content. To say that one may avoid further offense by turning off the radio
when he hears indecent language is like saying that the remedy for an assault is to run away after the first
blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional
immunity or avoid a harm that has already taken place.
Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen's
written message might have been incomprehensible to a first grader, Pacifica's broadcast could have enlarged
a child's vocabulary in an instant. Other forms of offensive expression may be withheld from the young without
restricting the expression at its source. Bookstores and motion picture theaters, for example, may be
prohibited from making indecent material available to children. We held in Ginsberg v. New York, 390 U.S.
629, that the government's interest in the "well-being of its youth" and in supporting "parents' claim to authority
in their own household" justified the regulation of otherwise protected expression. The ease with which
children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply
justify special treatment of indecent broadcasting. 69
Given the foregoing considerations, the traditional notions of preferring speech and the press over so many
other values of society do not readily lend itself to this particular matter. Instead, additional weight should be
accorded on the constitutional directive to afford a right to reply. If there was no such mandate, then the
submissions of petitioners may more easily commend themselves for this Court's acceptance. But as noted
above, this is not the case. Their arguments simplistically provide minimal importance to that constitutional
command to the point of marginalizing its importance in the equation.
In fine, when it comes to election and the exercise of freedom of speech, of expression and of the press, the
latter must be properly viewed in context as being necessarily made to accommodate the imperatives of
fairness by giving teeth and substance to the right to reply requirement.
WHEREFORE, premises considered, the petitions are PARTIALLY GRANTED, Section 9 (a) of Resolution
No. 9615, as amended by Resolution No. 9631, is declared UNCONSTITUTIONAL and, therefore, NULL and
VOID. The constitutionality of the remaining provisions of Resolution No. 9615, as amended by Resolution No.
9631, is upheld and remain in full force and effect.
CONSTI REV – FULL TEXT
In view of this Decision, the Temporary Restraining Order issued by the Court on April 16, 2013 is hereby
made PERMANENT.
SO ORDERED.
Velasco, Jr., Leonardo-de Castro, Bersamin, Del Castillo, Villarama, Jr., Perez, Reyes and Perlas-Bernabe, JJ., concur.
Sereno, C.J. * and Jardeleza, J., ***** are on leave.
Carpio, J., ** see separate concurring opinion.
Brion, J., *** I certify that J. Brion left his vote concurring in the result. - Carpio, J.
Mendoza, J., **** I certify that J. Mendoza left his vote concurring with the ponencia.- Carpio, J.
Leonen, J., see separate concurring opinion.
Separate Opinions
CARPIO, Acting C.J., concurring:
I join the ponencia's holding striking down Section 9 (a) of COMELEC Resolution No. 9615, as amended,
(Resolution) for being violative of the Free Speech Clause of the Constitution. In addition, however, I vote to
strike down Section 6.2 of the Fair Elections Act (Republic Act No. 9006 [RA 9006]) for similarly trenching on
the freedoms of speech and of expression of candidates and political parties. I find this conclusion inevitable
as Section 9 (a) of the Resolution is merely the administrative rule implementing Section 6.2 of RA 9006.
Minimizing Election Spending the Intended Government Interest
in Capping Campaign Air Time
The COMELEC grounds its issuance of the Resolution not only on RA 9006 but also on two provisions of the
Constitution, 1 namely, Section 2 (7) and Section 4, both of Article IX-C. Section 2 (7) concerns the power of
the COMELEC to "[r]ecommend to the Congress effective measures to minimize election spending, . . . ." 2
On the other hand, Section 4 authorizes the COMELEC, during the election period, to "supervise or regulate
the enjoyment and utilization of all franchises . . . for the operation of . . . media of communication or
information . . . ." 3 Different constitutional values underpin these two provisions. Section 2 (7) advances the
government interest of keeping election spending to a minimum to maximize competition in electoral exercises
while Section 4 ensures "equal opportunity, time and space, including reasonable, equal rates" to candidates
and political parties during the campaign period.
In capping the broadcast advertising time of candidates and political parties, neither Congress nor the
COMELEC (under Section 6.2 of RA 9006 and Section 9 (a) of the Resolution, respectively) supervised or
regulated the enjoyment and utilization of franchises of media outfits under Section 4, Article IX-C. Media firms
continue to operate under their franchises free of restrictions notwithstanding the imposition of these air time
caps. Section 6.2 of RA 9006 and Section 9 (a) of the Resolution do not approximate the rule barring media
firms from "sell[ing] . . . print space or air time for campaign or other political purposes except to the
Commission [on Elections]," 4 a clear statutory implementation of Section 4. 5 On the other hand, by
regulating the length of broadcast advertising of candidates and political parties, a propaganda activity with
correlative financial effect, Section 6.2 of RA 9006 and Section 9 (a) of the Resolution enforce Section 2 (7),
Article IX-C. They are meant to advance the government interest of minimizing election spending.
Section 6.2 of RA 9006 and Section 9 (a) of the Resolution
Restrict Free Speech and Free Expression Excessively
and Minimize Election Spending Arbitrarily
Section 6.2 of RA 9006 and Section 9 (a) of the Resolution are content-neutral "time" regulations which do not
reach the content of campaign speech but merely limit its cumulative broadcast "time" or length during the
campaign period. Such content-neutral regulations are subjected to the intermediate, not heightened, level of
scrutiny under the four-pronged O'Brien test, originally crafted by the U.S. Supreme Court and later adopted
by this Court. 6 Under O'Brien, Section 6.2 of RA 9006 and Section 9 (a) of the Resolution will pass
constitutional muster "[1] [if they are] within the constitutional power of the Government; [2] if [they] further[] an
important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression
of free expression; and [4] if the incidental restriction on the . . . freedoms [of speech, expression and press] is
no greater than is essential to the furtherance of that interest." 7
Section 6.2 of RA 9006 provides:
Equal Access to Media Time and Space. — . . .
xxx xxx xxx
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6.2. (a) Each bona fide candidate or registered political party for a nationally elective office shall be entitled
to not more than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180)
minutes of radio advertisement whether by purchase or donation.
(b) Each bona fide candidate or registered political party for a locally elective office shall be entitled to
not more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement
whether by purchase or donation.
xxx xxx xxx
Section 9 (a) of the Resolution, implementing Section 6.2 for last year's election, provides:
Requirements and/or Limitations on the Use of Election Propaganda through Mass Media. — All parties and
bona fide candidates shall have equal access to media time and space for their election propaganda during
the campaign period subject to the following requirements and/or limitations:
a. Broadcast Election Propaganda
The duration of air time that a candidate, or party may use for their broadcast advertisements or election
propaganda shall be, as follows:
For Candidates/Registered Political parties for a National Elective Position [-] [n]ot more than an aggregate
total of one hundred (120) minutes of television advertising, whether appearing on national, regional, or local,
free or cable television, and one hundred eighty (180) minutes of radio advertising, whether airing on national,
regional, or local radio, whether by purchase or donation.
For Candidates/Registered Political parties for a Local Elective Position [-] [n]ot more than an aggregate total
of sixty (60) minutes of television advertising, whether appearing on national, regional, or local, free or cable
television, and ninety (90) minutes of radio advertising, whether airing on national, regional, or local radio,
whether by purchase or donation.
These provisions pass the first and third prongs of O'Brien. Undoubtedly, it was within the power of Congress
to enact Section 6.2 of RA 9006 and of COMELEC to adopt Section 9 (a) of the Resolution to enforce Section
2 (7), Article IX-C of the Constitution. Nor is there any question that the government interest of minimizing
election spending under Section 2 (7) of Article IX-C is unrelated to the suppression of free expression,
concerned as it is in the non-speech government interest of maximizing competition in the political arena. As
explained below, however, the capping of campaign air time by Section 6.2 of RA 9006 and Section 9 (a) of
the Resolution advances the state interest of minimizing election spending arbitrarily and the incidental
restriction on the freedoms of speech and expression these provisions impose is greater than is essential to
the furtherance of such state interest, thus failing the second and fourth prongs of O'Brien. cDHCAE
Under Section 6.2 of RA 9006, the ban in broadcast campaign kicks-in once the limits of the air time caps are
reached regardless of the amount of money actually spent by candidates or political parties. Section 9 (a) of
the Resolution tightens the regulatory noose by reckoning the air time caps for the entire campaign period
cumulatively. 8 By divorcing the amount of campaign air time logged by candidates and political parties during
the campaign period from the amount of expenses they incur to do so, Section 6.2 of RA 9006 and Section 9
(a) of the Resolution operate under the assumption that advertising rates in TV and radio are uniform,
regardless of the broadcast coverage and time.
The fact of the matter is, advertising rates for each medium vastly vary depending on the extent and time of
broadcast. Even if the statutorily mandated discounts are factored, 9 a 30-second campaign ad placed in
petitioner GMA, Inc.'s national TV station GMA-7 on a weekday evening primetime slot will cost a candidate or
political party 96% more than a 30-second campaign ad placed by another candidate or party in any of GMA,
Inc.'s provincial TV stations. 10 If the ad is placed on a weekend non-primetime slot (afternoon), the price
variation dips slightly to 93%. 11 The rates charged by petitioner ABS-CBN Corporation reflect substantially
the same price variance. A 30-second campaign ad placed in its national TV station ABS-CBN on a primetime
slot will cost a candidate or political party 97% more than a 30-second campaign ad placed by another
candidate or party in any of ABS-CBN Corporation's mid-level local stations. 12 For non-primetime placement,
the price difference is 92%. 13
Substantially the same level of rate variance obtains in radio advertising. A 30-second campaign ad placed in
petitioner GMA, Inc.'s DZBB AM radio station for national broadcast is, on average, 93% more expensive than
a 30-second campaign ad placed by another candidate or political party aired at GMA, Inc.'s AM radio stations
in Puerto Princess City (DYSP), Iloilo City (DYSI), and Davao City (DXGM). 14 For petitioner ABS-CBN
Corporation, a 30-second campaign ad placed in its DZMM AM radio station for national broadcast on a
CONSTI REV – FULL TEXT
primetime slot (club rate) is 91% more expensive than a 30-second campaign ad placed by another candidate
or political party aired at ABS-CBN Corporation's AM radio stations in Cebu City and Davao City. 15
The non-uniform rates in broadcast advertising mean that candidate A for a national position who opts to place
campaign ads only in strategic provincial TV and radio stations of the top two networks will have spent at least
90% less than candidate B for the same position who places campaign ads in national TV and radio stations of
such networks for the same amount of time as candidate A. Nevertheless, as Section 6.2 of RA 9006 and
Section 9 (a) of the Resolution do not take broadcast rate variances into account, candidate A will have no
choice but to stop airing campaign ads once he reaches the limits of the air time caps even though, compared
to candidate B, his expenses for the ad placements are drastically lower. The government interest of
minimizing election spending is furthered only in the case of candidate B but not with candidate A. On the
other hand, the candidate A's right to make known his candidacy and program of government to the voters —
the heart of the freedoms of (political) speech and (political) expression guaranteed by the Constitution — is
unduly restricted even though, compared to candidate B, his campaign expenses for airing ads are
enormously lower. The system of value-neutral air time capping cuts deep into the core of fundamental rights
while advancing a state interest arbitrarily.
The same excessive rights restrictions and arbitrary advancement of public policy unfold for candidates at the
local level. Metro Manila, unlike the other provinces, is not covered by "local" TV or radio stations. To
broadcast a campaign ad on TV or radio, a candidate for any local position in Metro Manila will have to pay the
rates for a national broadcast. The dilemma faced by Metro Manila candidates to either (a) inhibit from
broadcasting their campaign ads to save money or (b) spend large amounts of campaign funds to air ads
unduly restricts their expressive rights and at the same time negates the government interest of minimizing
campaign spending.
The value-neutral capping system under Section 6.2 of RA 9006 and Section 9 (a) of the Resolution also
operates under the false assumption that candidates at the national and local levels are subject to the same
general campaign spending limits, thus the uniform air time caps imposed for each category of candidates.
Under Batas Pambansa Blg. 881 (BP 881), as amended by Section 13 of Republic Act No. 7166, however,
candidates' spending limits are computed based on the size of the voting population, with the rates
proportional to the size of a candidate's constituency. 16 Because all local candidates under Section 6.2 of RA
9006 and Section 9 (a) of the Resolution are allotted the same air time, a candidate for mayor in Catbalogan
City (which had 54,459 registered voters in 2010) has the same 60 minutes of TV ad time and 90 minutes of
radio ad time as a candidate for mayor in Davao City (which had 909,442 registered voters in 2010) even
though their spending limits are, under the 2010 census, P163,377 and P2,728,326, respectively (at P3 per
registered voter). As ad rates in Davao-based radio and TV stations are relatively low, it could happen that the
Davao City mayoral candidate will have consumed her allotted campaign air time while keeping clear of the
maximum spending limit, yet, under Section 6.2 of RA 9006 and Section 9 (a) of the Resolution she has to
stop airing campaign ads.
Section 6.2 of RA 9006 and Section 9 (a) of the Resolution
Not Reasonably Related to the State Interest of Minimizing
Election Spending
Even if we subject Section 6.2 of RA 9006 and Section 9 (a) of the Resolution to the lowest level of scrutiny
under the rational basis test, they still fail to withstand analysis. Rules survive this minimal level of scrutiny if
the means drawn by Congress or administrative bodies are reasonably related to a legitimate state interest.
The government interest Section 6.2 of RA 9006 and Section 9 (a) of the Resolution are meant to advance is
the minimization of campaign spending. The means Congress and the COMELEC adopted to do so was to
place uniform campaign air caps for national and local candidates, without taking into account the amount of
money spent by candidates and political parties to air campaign ads. By ignoring the amount of broadcasting
expenses incurred by candidates and political parties, Section 6.2 of RA 9006 and Section 9 (a) of the
Resolution lack any rational relation to the state policy of minimizing election spending under Section 2 (7),
Article IX-C of the Constitution. Their enforcement will only result in substantial variation in election spending
among national and local candidates for airing campaign ads.
Legislative measures aimed at limiting campaign air time to advance the state policy of minimizing campaign
spending under Section 2 (7), Article IX-C of the Constitution must necessarily be pegged to spending caps for
campaign broadcasting. Such caps, in turn, will depend on the size of the voting population for each category
of candidates (national or local), consistent with the existing method for capping general campaign spending
under BP 881, as amended. The monetary limit must be set at say P2.00 per registered voter for local
candidates and P4.00 per registered voter for national candidates. Once the total monetary limits are reached,
the ban on broadcast advertising takes effect, regardless of the amount of air time logged. This scheme grants
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to candidates and political parties greater space for the exercise of communicative freedoms while, at the
same time, allows the state to uniformly flag profligate campaigns.
Accordingly, I vote to GRANT the petitions in part and DECLARE Section 9 (a) of COMELEC Resolution No.
9615 dated 15 January 2013, as amended by Resolution No. 9631 dated 1 February 2013, and Section 6.2 of
Republic Act No. 9006 UNCONSTITUTIONAL for being violative of Section 4 and Section 8 of Article III of the
1987 Constitution.
BRION, J., separate concurring:
I concur in the result. My reasons for this position are fully explained below.
The Case
The ponencia struck down Commission on Elections (Comelec) Resolution No. 9615, as amended by
Comelec Resolution No. 9631. These resolutions changed the basis of the computation of the allowable
airtime limits within which candidates or registered political parties may place their campaign advertisements
on radio or television, as provided under Republic Act (RA) No. 9006 or the Fair Elections Act of 2001. The
pertinent portion of this law, Section 6.2, provides:
6.2. (a) Each bona fide candidate or registered political party for a nationally elective office shall be entitled to
not more than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180)
minutes of radio advertisement whether by purchase or donation.
(b) Each bona fide candidate or registered political party for a locally elective office shall be entitled to not
more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement
whether by purchase or donation.
In the 2004, 1 2007 and 2010 elections, the Comelec interpreted these provisions to mean that the specified
airtime limits apply on a "per (radio/tv) station" basis. For a national candidate, entitlement to airtime translated
to television campaign time of 120 minutes for every available television station and 120 minutes for every
available radio station.
For the 2013 elections, the Comelec changed its interpretation, this time interpreting the law in the manner it
did in 2001. 2 Instead of computing the airtime limits on a per station basis, the Comelec under the challenged
resolutions, would now compute the airtime limits on an "aggregate total basis." This translated to very much
lesser airtime for campaign advertisements that candidates and registered political parties could place.
According to the ponencia, the Comelec's new interpretation is legally flawed for the following reasons:
First, the Comelec failed to come up with a reasonable basis and explanation for the interpretative change of
the airtime limits under RA No. 9006. The Comelec, through Chairman Sixto Brillantes, explained that the new
interpretation was prompted by the need to level the playing field among the candidates. This explanation
apparently simply assumed that the previous interpretation no longer addressed the 2013 needs, although no
supporting basis in evidence and reason was given to support this assumption.
Second, RA No. 9006 on its face does not require that the maximum allowable airtime should be on an
"aggregate total" basis. This finds support from the Sponsorship Speech of Senator Raul Roco on RA No.
9006. Also, the fact that RA No. 9006 repealed RA No. 6646's (or the Electoral Reforms Law of 1987)
provision (that prohibits radio broadcasting or television station from giving or donating air time for campaign
purposes except through the Comelec) reinforces the Comelec's earlier and consistent interpretation that the
airtime limits apply on a "per station" basis.
Third, Comelec Resolution No. 9615 infringes on the people's right to be duly informed about the candidates
and the issues, citing Bantay Republic Act or BA-RA 7941 v. Commission on Elections. 3
Fourth, Comelec Resolution No. 9615 violates the candidates' freedom of speech because it restricts their
ability to reach out to a larger audience.
Fifth, Comelec Resolution No. 9615 violates the people's right to suffrage.
Sixth, the lack of a prior notice and hearing is fatal to the validity of Comelec Resolution No. 9615. The
Comelec should have given petitioners prior notice and opportunity for hearing before adopting Comelec
Resolution No. 9615 because of the radical change it introduced. Citing Commissioner of Internal Revenue v.
Court of Appeals, 4 prior notice and hearing is required if an administrative issuance "substantially adds to or
increases the burden of those governed."
CONSTI REV – FULL TEXT
Discussion
A. Grave Abuse of Discretion Issue
a. Due Process and Basic Fairness
I agree with the ponencia that basic fairness demands that after consistently adopting and using an
interpretation of a legal provision, any subsequent change in interpretation that the Comelec would adopt and
that would seriously impact on both the conduct and result of the elections should have reasonable basis and
be adequately explained to those directly affected.
The petitioner owners/operators of radio/television networks are directly affected by the Comelec's new
interpretation since they normally sell their airtime to candidates and registered political parties who buy
airtime to conduct their campaign and as part of their campaign strategy. With respect to the candidates and
as the Comelec very well knows, the effectiveness of their campaign strategy spells the difference between
winning and losing in Philippine elections. The Comelec's knowledge of this basic fact limits the discretion that
it otherwise would normally and broadly have as the constitutional body tasked with the enforcement and
administration of our election laws. 5
Interestingly, in 2001 (the year RA No. 9006 was enacted), the Comelec initially interpreted the airtime limits
under RA No. 9006 to be applicable on an aggregate total basis in the manner the assailed Comelec
Resolution No. 9615 now does. At the instance of petitioner Kapisanan ng Mga Brodkaster sa Pilipinas (KBP),
the Comelec (through its Election and Information Department Director) then held conferences to discuss the
present petitioners' proposed changes.
On February 18, 2004, the Comelec adopted petitioner KBP's proposal. Since then and until the 2010
elections, the Comelec interpreted the equality-of-access thrust of the law to mean that a national candidate or
a registered political party could avail of up to 120 minutes and 180 minutes for each broadcast radio station
and television's airtime, respectively, for campaign advertisements. This interpretation was only changed for
the 2013 elections under the assailed Comelec Resolution No. 9615.
Under these facts, even common sense demands that the Comelec explain to the petitioners the justification
for the change, i.e., why the previous interpretation would no longer be in tune with the equality-of-access
thrust of the law that remains unchanged in all these elections. This is particularly true for the current
petitioners who were the very same parties who actually and successfully prodded the Comelec to reconsider
its 2001 interpretation.
As the ponencia observed, in the hearing conducted by the Comelec after the promulgation of Comelec
Resolution No. 9615, the Comelec Chairman offered the petitioners no reasonable explanation; he only relied
on the Comelec's "prerogative to amplify" under RA No. 9006 and on the blanket invocation of the need to
level the playing field among candidates.
While the Court has acknowledged the Comelec's wide discretion in adopting means to carry out its mandate
of ensuring free, orderly, and honest elections, this discretion cannot be unlimited and must necessarily be
within the bounds of the law 6 under the prevailing rule of law regime in our country. The legal limitations
include those imposed by the fundamental law, among them, the right to due process where governmental
action has been substantively unreasonable or its procedures and processes are unduly harsh.
The Comelec's failure to sufficiently explain the basis for the change of interpretation it decreed under
Resolution No. 9615, in my view, falls within this limitation. Even without going into the niceties and intricacies
of legal reasoning, basic fairness 7 demands that the Comelec provides a reasonable justification, considering
particularly the Comelec's own knowledge of the dynamics of campaign strategy and the influence of the radio
and television as medium of communication.
b. Lack of prior notice and hearing
I similarly agree with the ponencia that the lack of prior notice and hearing is fatal to the validity of Comelec
Resolution No. 9615. Parenthethically, the need for prior notice and hearing actually supports the conclusion
that the Comelec's discretion is not unbridled. Giving the petitioners prior opportunity to be heard before
adopting a new interpretation would have allowed the Comelec to make a reasonable evaluation of the merits
and demerits of the 2004-2010 interpretation of airtime limits and the needs to satisfy the demands of the 2013
elections.
In my discussions below, I shall supplement the ponencia's observations (which cited the case Commissioner
of Internal Revenue v. Court of Appeals) 8 that prior notice and hearing are required if an administrative
issuance "substantially adds to or increases the burden of those governed". I do so based on my own
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assessment that the validity or invalidity of the assailed Comelec Resolution essentially rises or falls on the
Comelec's compliance with the legal concept of due process or, at the very least, the common notion of
fairness. In the latter case, the prevailing circumstances and the interests at stake have collectively given rise
to the need to observe basic fairness.
1. The Comelec's powers
As an administrative agency, the powers and functions of the Comelec may be classified into quasi-legislative
and quasi-judicial.
The quasi-judicial power of the Comelec embraces the power to resolve controversies arising from the
enforcement of election laws, and to be the sole judge of all pre-proclamation controversies; and of all
contests relating to the elections, returns, and qualifications. In the exercise of quasi-judicial power, the
Comelec must necessarily ascertain the existence of facts, hold hearings to secure or confirm these facts,
weigh the presented evidence, and draw conclusions from them as basis for its action and exercise of
discretion that is essentially judicial in character. 9 When exercising this power, due process requires that prior
notice and hearing must be observed. 10
The remedy against an improvident exercise of the Comelec's quasi-judicial power is provided under Article
IX-A, Section 7, 11 in relation with Article IX-C, Section 3 of the Constitution 12 and with Rule 64 of the Rules
of Court.
On the other hand, the Comelec's quasi-legislative power, which it may exercise hand in hand with its power to
administer and enforce election laws, refers to its power to issue rules and regulations to implement these
election laws. In the exercise of quasi-legislative power, administrative law distinguishes between an
administrative rule or regulation (legislative rule), on the one hand, and an administrative interpretation of a
law whose enforcement is entrusted to an administrative body (interpretative rule), on the other. 13
Legislative rules are in the nature of subordinate legislation and, as this label connotes, are designed to
implement a law or primary legislation by providing the details of the law. They usually implement existing law,
imposing general, extra-statutory obligations pursuant to the authority properly delegated by Congress and
reflect and effect a change in existing law or policy that affects individual rights and obligations. 14
A subset of legislative rules are interpretative rules that are intended to interpret, clarify or explain existing
statutory regulations under which the administrative body operates. Their purpose or objective is merely to
construe the administered statute without regard to any particular person or entity that may be covered by the
law under construction or interpretation. 15 Understood along these lines, it becomes easy to grasp that the
requirements of prior notice and hearing, unless expressly required by legislation or by the rules, do not apply
to them. 16 llcd
2. The requirement of notice
and hearing in the exercise
of quasi-legislative power
a. Statutory Requirement for Notice and Hearing.
In earlier cases, the Court observed that the issuance of rules and regulations in the exercise of an
administrative agency's quasi-legislative or rule making power generally does not require prior notice and
hearing 17 except if the law provides otherwise. 18 The requirement for an opportunity to be heard under the
exception is provided for under Book VII, Chapter 2, Section 9 of Executive Order (EO) No. 292 (the
Administrative Code of 1987). This provision reads:
Section 9. Public Participation. —
(1) If not otherwise required by law, an agency shall, as far as practicable, publish or circulate notices of
proposed rules and afford interested parties the opportunity to submit their views prior to the adoption of any
rule.
A patent characteristic of this provision is its permissive language in requiring notice and the opportunity to be
heard. The non-mandatory nature of a prior hearing arises from the nature of the proceedings where quasi-
legislative power is exercised: the proceedings do not involve the determination of past events or facts that
would otherwise have to be ascertained as basis of an agency's action and discretion. On the contrary, the
proceedings are intended to govern future conduct. Accordingly, the requirement of prior notice and hearing is
not indispensable for the validity of the exercise of the power. 19
It is in this light that the pronouncement in CIR case that the ponencia cited, should be understood.
CONSTI REV – FULL TEXT
In CIR case, the CIR issued a memorandum circular that classified certain brands of cigarettes of a particular
manufacturer under a particular category. The classification resulted in subjecting the cigarette manufacturer
to higher tax rates imposed under a new law (that had yet to take effect when the memorandum circular was
issued) without affording the cigarette manufacturer the benefit of any prior notice and hearing.
In ruling in the manufacturer's favor, the Court immediately assumed that the CIR was exercising its quasi-
legislative power when it issued the memorandum circular 20 and quoted a portion of Misamis Oriental
Association of Coco Traders, Inc. v. Department of Finance Secretary 21 as follows:
. . . a legislative rule is in the nature of subordinate legislation, designed to implement a primary legislation by
providing the details thereof. In the same way that laws must have the benefit of public hearing, it is generally
required that before a legislative rule is adopted there must be hearing . . . (italics in the original).
On the basis of this assumption and the Misamis Oriental ruling, the Court held that while an interpretative rule
does not require prior notice and hearing (since "it gives no real consequence more than what the law itself
has already prescribed"), "an administrative rule . . . that substantially adds to or increases the burden of those
governed [requires] the agency to accord at least to those directly affected a chance to be heard, and
thereafter to be duly informed, before that new issuance is given the force and effect of law."
While the Court's quoted dictum in the case is sound, the facts of the case however reveal that the CIR was
not actually wearing its quasi-legislative hat when it made the disputed classification; it was in fact exercising
its quasi-judicial power when it issued the memorandum circular. 22 As discussed elsewhere in this Opinion,
prior notice and hearing was in fact indispensable.
This apparent disconnect, however, is rendered academic by the directory requirement of prior notice and
hearing under EO No. 292 quoted above: when an agency issues a legislative rule, the issue of whether
compliance with the notice and hearing requirement was "practicable" under the circumstances might depend
on the extent of the burden or the adverse effect that the new legislative rule imposes on those who were not
previously heard. Effectively, this is the rule that assumes materiality in the case, not the misdirected ruling in
the cited CIR case.
In the present case, the requirement of prior notice and opportunity to be heard proceeds from the nature of
Comelec Resolution No. 9615 as a legislative rule 23 whose new provision on airtime limits directly impacts on
the petitioners as a distinct group among the several actors in the electoral process.
On the one hand, the revenues that the petitioners may potentially lose under the Comelec's "restrictive"
interpretation indeed have adverse effects on the petitioners' operations. On the other hand, substantially
limiting the allowable airtime advertisements of candidates would have serious repercussions on their
campaign activities and strategies, and ultimately on their ability to win in the elections. These are serious
considerations that make prior notice and hearing in the present case more than "practicable."
Still more important than these individual considerations is the perceived adverse effect, whether true or not,
of the reduction of the airtime limits under Comelec Resolution No. 9615 on the electorate.
We should not also lose sight of the Comelec's equally noble objective of leveling the playing the field between
and among candidates, which objective is itself constitutionally recognized. 24 In addition, as one Comelec
Commissioner remarked, 25 the restrictive interpretation was intended to encourage candidates to comply
with an equally relevant statutory regulation on campaign finance. 26
At the center of these competing considerations that directly impact on the election system and in the electoral
process as a whole is the Comelec. Given its constitutional mandate to enforce and administer all election
laws and regulations with the objective of holding free, orderly, honest, peaceful, and credible elections, 27
these considerations, in my view, compulsorily required the Comelec to give the petitioners and all those
concerned reasonable opportunity for discourse and reasonable basis and explanation for its conclusion.
In other words, while the petitioners do not have any absolutely demandable right to notice and hearing in the
Comelec's promulgation of a legislative rule, the weight and seriousness of the considerations underlying the
change in implementing the airtime limit rule, required a more circumspect and sensitive exercise of discretion
by the Comelec, in fact, the duty to be fair that opens the door to due process considerations. The change
touched on very basic individual, societal and even constitutional values and considerations so that the
Comelec's failure to notify and hear all the concerned parties amounted to a due process violation amounting
to grave abuse in the exercise of its discretion in interpreting the laws and rules it implements.
While the Comelec admittedly conducted a hearing after promulgating Comelec Resolution No. 9615, this
belated remedy does not at all cure the resolution's invalidity.
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The requirement of prior notice and hearing is independently meant to reinforce the requirement of reasonable
basis and adequate explanation of the Comelec's action as part of the petitioners' due process rights. To state
the obvious, in the election setting that Comelec Resolution No. 9615 governed, time is of the essence so that
the lack of due process might have irremediably affected the concerned parties by the time the post-
promulgation hearing was called. Additionally and more importantly, concluding that a post-promulgation
hearing would suffice in Comelec Resolution No. 9615 setting would have signified the lack of limitation, even
temporarily, on the Comelec's otherwise broad discretion. In the fine balancing that elections require, such
remedial actions would not suffice.
As specifically applied to the realities of the present case, the requirement of prior notice and hearing is an
opportunity for both the petitioners and the Comelec to support their respective positions on the proper
interpretation of the airtime limits under RA No. 9006. This is especially true when we consider that under RA
No. 9006, the Comelec is expressly empowered to "amplify" the guidelines provided in the law, among them,
the provision on airtime limits. As will be discussed later in this Opinion, the Comelec's express power to
"amplify" supports the conclusion I reached.
Based on these considerations, the ponencia could very well have ended further consideration of other issues
as the violation of due process already serves as ample basis to support the conclusion to invalidate Comelec
Resolution No. 9615. Instead, the ponencia proceeded to consider other constitutional grounds that, in my
view, were not then appropriate for resolution.
B. Judicial Power and Lis Mota
When questions of constitutional significance are raised, the Court can exercise its power of judicial review
only if the following requisites are present: (1) the existence of an actual and appropriate case; (2) the
existence of personal and substantial interest on the part of the party raising the constitutional question; (3)
recourse to judicial review is made at the earliest opportunity; and (4) the constitutional question is the lis mota
of the case. 28
The thrust of my discussion focuses on the last requisite.
Lis mota literally means "the cause of the suit or action." This last requisite of judicial review is simply an
offshoot of the presumption of validity accorded to executive and legislative acts of our co-equal branches and
of the independent constitutional bodies. Ultimately, it is rooted in the principle of separation of powers.
Given this presumption of validity, the petitioner who claims otherwise carries the initial burden of showing that
the case cannot be resolved unless the constitutional question he raised is determined by the Court. 29 From
the Court's perspective, it must avoid resolving constitutional issues unless their resolution is absolutely
necessary and clearly unavoidable.
By holding that the Comelec must have reasonable basis for changing their interpretation of the airtime limits
under RA No. 9006 and that, impliedly its absence in the present case constitutes a violation of the petitioners'
right to due process, the ponencia in effect recognized the Comelec's duty under the circumstances to provide
for a reasonable basis for its action, as well as its competence to adequately explain them as the constitutional
body tasked to enforce and administer all elections laws and regulations. This recognition is consistent with
the Court's similar recognition that the Comelec possesses wide latitude of discretion in adopting means to
carry out its mandate of ensuring free, orderly, and honest elections, but subject to the limitation that the
means so adopted are not illegal or do not constitute grave abuse of discretion. 30 aHATDI
Given this recognition and in light of the nullity of Comelec Resolution No. 9615, the Court, for its part, should
also recognize that it should not preempt the Comelec from later on establishing or attempting to establish the
bases for a new interpretation that is not precluded on other constitutional grounds. The Comelec possesses
ample authority to so act under the provision that airtime limits, among others, "may be amplified on by the
Comelec."
I choose to part with the ponencia at this point as I believe that with the due process and fairness grounds
firmly established, this Court should refrain from touching on other constitutional grounds, particularly on a
matter as weighty as the one before us, unless we can adequately explain and support our dispositions. The
oft-repeated dictum in constitutional decision-making is the exercise of judicial restraint. 31 The Court will not
or should not pass upon a constitutional question although properly presented by the record, if there is also
present some other ground upon which the case may be disposed of. This, to my mind, is the dictum most
particularly fit for the current legal situation before us, as I will explain below.
C. The ponencia's bases for nullifying
Comelec Resolution No. 9615
CONSTI REV – FULL TEXT
Based on its second to fifth grounds, the ponencia suggests that even if the Comelec came up with a
reasonable and adequate explanation for its new interpretation of the airtime limits under RA No. 9006, the
Comelec resolution is doomed to fail because, first, it does not find support under RA No. 9006 (the statutory
reason); and, second, it violates several constitutional rights (the constitutional reason).
I disagree with these cited grounds.
1. Statutory reason
RA No. 9006 provides:
Section 6. Equal Access to Media Time and Space. — All registered parties and bona fide candidates shall
have equal access to media time and space. The following guidelines may be amplified on by the COMELEC.
xxx xxx xxx
6.2. (a) Each bona fide candidate or registered political party for a nationally elective office shall be entitled to
not more than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180)
minutes of radio advertisement whether by purchase or donation.
(b) Each bona fide candidate or registered political party for a locally elective office shall be entitled to not
more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement
whether by purchase or
For this purpose, the COMELEC shall require any broadcast station or entity to submit to the COMELEC a
copy of its broadcast logs and certificates of performance for the review and verification of the frequency, date,
time and duration of advertisements broadcast for any candidate or political party.
6.3. All mass media entities shall furnish the COMELEC with a copy of all contracts for advertising, promoting
or opposing any political party or the candidacy of any person for public office within five (5) days after its
signing. In every case, it shall be signed by the donor, the candidate concerned or by the duly authorized
representative of the political party.
xxx xxx xxx
In all instances, the COMELEC shall supervise the use and employment of press, radio and television facilities
insofar or the placement of political advertisements is concerned to ensure that candidates are given equal
opportunities under equal circumstances to make known their qualifications and their stand on public issues
within the limits set forth in the Omnibus Election Code and Republic Act No. 7166 on election spending.
I raise three observations with respect to the ponencia's statutory reason.
First, the ponencia has not explained the implication of the Comelec's power to "amplify" under Section 6 of
RA No. 9006 in relation with Comelec Resolution No. 9615.
In light of the Comelec's power to "amplify," I cannot support the ponencia's simplistic statement that "the law,
on its face, does not justify a conclusion that the allowable airtime should be based on the totality of possible
broadcast in all television or radio stations." In fact, even a superficial reading of RA No. 9006 reveals that the
law is silent on the basis of computing the allowable airtime limits. The ponencia should have at the very least
explained the law's silence in relation with the Comelec's power to amplify.
Contrary to the ponencia's observation, nothing is evident from the Sponsorship Speech of Senator Raul Roco
on RA No. 9006 (that the ponencia cited) to support the conclusion that the Comelec's interpretation is
unwarranted under RA No. 9006.
Second, the fact that RA No. 9006 repealed Section 11 (b) [the political advertisement ban] of RA No. 6646
has no bearing on the issue of the correct interpretation of the airtime limits under RA No. 9006. The thrust of
RA No. 9006 involves a qualified, not an absolute, right to politically advertise, whether airtime limits are based
on a per station or an aggregate total basis.
Third, the House and Senate bills that eventually became RA No. 9006 originally contained the phrase "per
day per station" as the basis for the computation of the allowed airtime limits. According to the Comelec, the
dropping of this phrase in the law reveals the intent of Congress to compute the airtime limits on an aggregate
total or per candidate basis.
In rejecting the Comelec's argument, the ponencia, again, oddly stated that this change in language "meant
that the computation must not be based on a 'per day' basis," completely ignoring the additional "per station"
qualifier that is also no longer found in the present law.
28
JULY 11, 2019
These three considerations, in my view, collectively point to the inadequacy of the ponencia's reasons in
striking down Comelec Resolution No. 9615.
i. Statutory Validity of a Regulation
The Comelec's power to "amplify" on the airtime limits would have been the key in determining whether the
Comelec overstepped its limitations in the exercise of its quasi-legislative power. For a legislative rule to be
valid, all that is required is that the regulation should be germane (i.e., appropriate and relevant) to the objects
and purposes of the law, and that the regulation should not contradict, but should conform with, the standards
prescribed by the law. 32
RA No. 9006 simply provides that "each bona fide [national] candidate or registered political party" is "entitled
to not more than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180)
minutes of radio advertisement."
A very basic rule in statutory construction is that words (which make up a sentence) should be construed in
their ordinary and usual meaning 33 and that legislative record are powerless to vary the terms of the statute
when the wordings of the statute is otherwise clear. 34
In the present case, the word "each" (defined as everyone in a group) 35 pertains to the candidate and
registered political parties themselves; the law then proceeds to define the limits of entitlement of "each" to
radio and television advertisement to a certain number of minutes.
The provision's distinct and unambiguous wording shows that the allowable number of minutes for
advertisement in radio and television refers to "each" of the candidates and registered political parties. Under
the presently plain and clear wordings of the law, the allowable number of minutes does not pertain to the
radio and television station themselves. Accordingly, in promulgating Comelec Resolution No. 9615, it cannot
be said that the Comelec "went beyond its legal mandate" because the Comelec's interpretation finds plain
textual support from the law itself.
Pursuant to Section 4, Article IX-C of the 1987 Constitution, Congress enacted RA No. 9006 and declared as a
matter of state principle that during the election period the State may supervise and regulate "the enjoyment or
utilization of all franchises or permits for the operation of media of communication or information." The avowed
purpose is to "guarantee or ensure equal opportunity for public service, including access to media time and
space for public information campaigns and fora among candidates." 36 After Congress enacted RA No. 9006,
which by its terms textually support Comelec Resolution No. 9615, it cannot be said that the resolution is not
germane to the purpose of the law or that it is inconsistent with the law itself.
ii. The Power to Amplify
If only the ponencia considered Congress' express intent to grant the Comelec the power to "amplify" on
Section 6.2 of RA No. 9006, then it would not have been blinded by its apprehensions that the Comelec's
resolution would "undermine" and "frustrate" "political exercise as an interactive process."
More than anyone else perhaps, Congress knows that weighty considerations underlie the regulation of the
airtime limits of candidates and of registered political parties. As earlier discussed, these considerations
include the revenues that the petitioners may potentially and directly lose under the Comelec's "restrictive"
interpretation, and the Comelec resolution's indirect effect on the petitioners' freedom of the press; the serious
repercussions of restrictive airtime limits on candidates' campaign strategy and their ability to win in the
elections; the perceived adverse (and/or beneficial) effect, whether true or not, of the reduction of the airtime
limits under the Comelec resolution on the electorate since the elections are considered the highest form of
exercise of democracy; the noble objective of leveling the playing field between and among candidates, which
objective is itself constitutionally recognized; 37 and the equally important and relevant state objective of
regulating campaign finance. 38 DSHcTC
Since the Comelec is the body tasked by the Constitution with the enforcement and supervision of all election
related laws with the power to supervise or regulate the enjoyment of franchises or permits for the operation of
media of communication or information, Congress found the Comelec to be the competent body to determine,
within the limits provided by Congress, the more appropriate regulation in an ever changing political
landscape.
Reading RA No. 9006 and all the above considerations together, it is not difficult to grasp that the 180 and 120
minute limitations for each candidate under the law should be understood as the maximum statutory threshold
for campaign advertisement. This is by the express provision of RA No. 9006. The Comelec's on a "per
station" interpretation (effective from 2004 until 2010), on the other hand, may be considered as another
maximum limit for campaign advertisement, based on the Comelec's authority to "amplify." This Comelec
CONSTI REV – FULL TEXT
ruling, standing as presented, should be valid for as long as it does not exceed the statutory ceiling on a per
station basis.
This interpretation, in my view, takes into account all the competing considerations that the Comelec, as the
proper body, has the primary authority to judiciously weigh and consider.
To put this examination of Comelec Resolution No. 9615 in its proper context, however, I hark back to my
previous statement on judicial restraint: find no clear and urgent necessity now to resolve the constitutional
issues discussed in the ponencia, more especially given the manner that these issues were approached. I only
discuss the constitutional issues to point out my concurrence and divergence from the ponencia. What we
should hold, and I support the ponencia on this point, is that Comelec Resolution No. 9615 now stands
nullified on due process grounds.
2. Constitutional Reason
i. Right to Information
With due respect, I observe that the ponencia has not fully explained how Comelec Resolution No. 9615
violates the people's right to be duly informed about the candidates and issues, and the people's right to
suffrage. Bantay Republic Act or BA-RA 7941 v. Commission on Elections, 39 which the ponencia cited, is
inapplicable because that case involves an absolute refusal by the Comelec to divulge the names of nominees
in the party-list election. In the present case, the Comelec is not prohibiting the candidates from placing their
campaign advertisements on the air but is simply limiting the quantity of the airtime limits they may use. As
previously discussed, the basis for its action and interpretation is textually found in RA No. 9006 itself.
ii. Freedom of speech
a. Candidates and political parties
The ponencia also claims that Comelec Resolution No. 9615 violates the candidates' freedom of speech
because it restricts their ability to reach out to a larger audience. While freedom of speech is indeed a
constitutionally protected right, the ponencia failed to consider that the Constitution itself expressly provides for
a limitation to the enjoyment of this right during the election period. Article IX-C, Section 4 of the Constitution
reads:
Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization
of all franchises or permits for the operation of transportation and other public utilities, media of communication
or information, all grants, special privileges, or concessions granted by the Government or any subdivision,
agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary.
Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply,
including reasonable, equal rates therefor, for public information campaigns and forums among candidates in
connection with the objective of holding free, orderly, honest, peaceful, and credible elections.
In National Press Club v. Commission on Elections, 40 the petitioner raised arguments similar to the
constitutional reasons now used by the ponencia against the constitutionality of Section 11 (b) of RA No. 6646.
41 This provision prohibits the sale or donation of airtime to political candidates but directs the Comelec's
procurement and allocation of airtime to the candidates (Comelec time).
Ruling against the claim that Section 11 (b) of R.A. No. 6646 violates the freedom of speech, the Court in
National Press Club said:
. . . Withal, the rights of free speech and free press are not unlimited rights for they are not the only important
and relevant values even in the most democratic of polities. In our own society, equality of opportunity to
proffer oneself for public office, without regard to the level of financial resources that one may have at one's
disposal, is clearly an important value. One of the basic state policies given constitutional rank by Article II,
Section 26 of the Constitution is the egalitarian demand that "the State shall guarantee equal access to
opportunities for public service and prohibit political dynasties as may be defined by law." CacISA
The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity
arises in respect of exercises of supervisory or regulatory authority on the part of the Comelec for the purpose
of securing equal opportunity among candidates for political office, although such supervision or regulation
may result in some limitation of the rights of free speech and free press.
xxx xxx xxx
Put in slightly different terms, there appears no present necessity to fall back upon basic principles relating to
the police power of the State and the requisites for constitutionally valid exercise of that power. The essential
29
JULY 11, 2019
question is whether or not the assailed legislative or administrative provisions constitute a permissible exercise
of the power of supervision or regulation of the operations of communication and information enterprises
during an election period, or whether such act has gone beyond permissible supervision or regulation of media
operations so as to constitute unconstitutional repression of freedom of speech and freedom of the press. The
Court considers that Section 1 (b) has not gone outside the permissible bounds of supervision or regulation of
media operations during election periods.
xxx xxx xxx
Section 1 (b) does, of course, limit the right of free speech and of access to mass media of the candidates
themselves. The limitation, however, bears a clear and reasonable connection with the constitutional objective
set out in Article IX(C) (4) and Article II (26) of the Constitution. For it is precisely in the unlimited purchase of
print space and radio and television time that the resources of the financially affluent candidates are likely to
make a crucial difference. Here lies the core problem of equalization of the situations of the candidates with
deep pockets and the candidates with shallow or empty pockets that Article IX(C) (4) of the Constitution and
Section 11 (b) seek to address. That the statutory mechanism which Section 11 (b) brings into operation is
designed and may be expected to bring about or promote equal opportunity, and equal time and space, for
political candidates to inform all and sundry about themselves, cannot be gainsaid. TSacCH
Six years later, another challenge against Section 11 (b) of R.A. No. 6646 was brought before the Court in
Osmeña v. Comelec. 42 The Court maintained its National Press Club ruling and held that unlike the other
cases where the Court struck down the law or the Comelec regulation, 43 the restriction of speech under
Section 11 (b) of RA No. 6646 is merely incidental and is no more than necessary to achieve its purpose of
promoting equality of opportunity in the use of mass media for political advertising. The restriction is limited
both as to time and as to scope.
In other words, the Court found Section 11 (b) of R.A. No. 6646 to be a content-neutral regulation and, thus,
only needs a substantial government interest to support it. Governmental interest is substantial if it passes the
test formulated in the United States v. O' Brien: 44 a government regulation is sufficiently justified —
(i) if it is within the constitutional power of the Government;
(ii) if it furthers an important or substantial governmental interest;
(iii) if the governmental interest is unrelated to the suppression of free expression; and
(iv) if the incident restriction on alleged First Amendment freedoms is no greater than is essential to
the furtherance of that interest. 45
Accordingly, in determining whether a regulation violates freedom of speech, one must identify its nature and,
concomitantly, the kind of interest that the government must have to support it.
Under this type of constitutional analysis, a first basic step for the ponencia was to establish the nature of
Comelec Resolution No. 9615 as a content-based restriction on the candidates' freedom of speech before
jumping to the conclusion that restrictions on "political speech" must be "justified by a compelling state
interest." Without a clear established finding that the resolution is a content-based restriction, the Court would
leave the public guessing on our basis in reaching a conclusion different from that we reached in Osmeña.
In question form, are we saying that the allocation of a maximum of 180 minutes and 120 minutes of radio and
television advertisements, respectively, to each national candidate (under Comelec Resolution No. 9615)
unduly restricts freedom of speech, while the arrangement where the Comelec shall exclusively procure
"Comelec time" free of charge 46 and allocate it equally and impartially among the candidates within the area
of coverage of all radio and television stations does not?
If the Court answers in the affirmative, then the Court must expressly and carefully draw the line. In that event,
I expressly reserve my right to modify this Opinion on the ground that Comelec Resolution No. 9615 is a
content-neutral restriction.
The absence of the required constitutional analysis is made worse by the ponencia's citation of Buckley v.
Valeo, 47 a US case which declared the statutory limits on campaign expenditure unconstitutional for violating
freedom of speech on the theory that speech is money. Osmeña already put into serious question the
applicability of the US Supreme Court's reasoning in this case 48 in our jurisdiction given the presence of
Section 4, Article IX-C in the 1987 Constitution and our own unique political and social culture. Thus, to me,
citing Buckley to back up a myopic view of freedom of speech is seriously disturbing.
b. Radio and television stations
CONSTI REV – FULL TEXT
The Constitution's approval of "[r]estricting the speech of some in order to enhance the relative voice of
others" neither applies to the candidates nor to the medium in which this speech may be made, i.e., to
television and the radio stations themselves. During elections, the candidates and these stations go hand-in-
hand, bombarding the public with all kinds of election related information one can imagine.
Under Comelec Resolution No. 9615, the "restrictions" on the airtime limits of candidates and registered
political parties only indirectly affect the radio and broadcast stations' more specific freedom of the press, as
will be discussed below. 49 If at all, it is their potential revenues that are directly affected by the Comelec
resolution. But even this effect does not give them any cause to complain.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Commission on Elections, 50 the
Court ruled that radio and television stations may be compelled to grant free airtime to the Comelec for the
purpose of allocating and distributing these equally among candidates since under the Constitution, their
franchises may be amended for the "common good" — in this case, the public will benefit because they will be
fully informed of the issues of the election.
In the present case, will we have a different result because the Comelec effectively reduces the maximum
number of minutes each radio and television may sell or donate to a candidate or a registered political party? I
do not think so.
It may be argued that while the quantity of campaign advertisements is reduced, this reduction inversely and
proportionately increases the radio and television stations' own time — the freedom of the press at its very
basics 51 — to actively perform their duty to assist in the functions of public information and education. 52
Thus, contrary to the ponencia's very broad statements, the press is not in any way "silenced" or "muffled
under Comelec Resolution No. 9615"; what the resolution affects is merely the duration of allowable of radio
and television advertisements by the candidates and registered political parties. In the same manner, under
Comelec Resolution No. 9615, the radio and television networks themselves are not hindered in pursuing their
respective public information campaigns and other election-related public service activity. I incidentally find the
Pentagon Papers case, which the ponencia found pertinent to quote, to be simply inapplicable.
Given these observations, the ponencia's conclusion that Comelec Resolution No. 9615 is violative of the right
to suffrage cannot but equally stand on very shaky constitutional ground.
D. Closing
The foregoing discussions simply reinforce my view that in enacting RA No. 9006, Congress has allowed the
Comelec considerable latitude in determining, within statutory limits, whether a strict or liberal application of
the airtime limits in a particular election period is more appropriate. Unless the Comelec has no reasonable
basis and adequate explanation for its action and unless the parties directly affected are not given opportunity
to be heard on this action — as in the present case — the Court should withhold the exercise of its reviewing
power.
In these lights, I submit that, unless adequately explained, the resolution of the substantive constitutional
issues should be left for future consideration as they are not absolutely necessary to the resolution of this
case.
LEONEN, J., concurring:
I concur and vote to grant the petitions.
At issue in this case is the Commission on Elections' (COMELEC) more restrictive interpretation of Section 6.2
of Republic Act No. 9006 or the Fair Election Act resulting in further diminution of the duration of television and
radio advertising that candidates may have during the 2013 elections. This section provides: cDAITS
Sec. 6. Equal Access to Media Time and Space. — All registered parties and bona fide candidates shall
have equal access to media time and space. The following guidelines may be amplified on by the COMELEC:
xxx xxx xxx
6.2
a. Each bona fide candidate or registered political party for a nationally elective office shall be entitled
to not more than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180)
minutes of radio advertisement whether by purchase or donation.
30
JULY 11, 2019
b. Each bona fide candidate or registered political party for a locally elective office shall be entitled to
not more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement
whether by purchase or donation.
For this purpose, the COMELEC shall require any broadcast station or entity to submit to the COMELEC a
copy of its broadcast logs and certificates of performance for the review and verification of the frequency, date,
time and duration of advertisements broadcast for any candidate or political party.
Prior restraint is defined as the "official governmental restrictions on the press or other forms of expression in
advance of actual publication or dissemination." 1 Prior restraints of speech are generally presumptively
unconstitutional. The only instances when this is not the case are in pornography, 2 false and misleading
advertisement, 3 advocacy of imminent lawless action, 4 and danger to national security. 5
Section 6 of the Fair Election Act is a form of prior restraint. While it does not totally prohibit speech, it has the
effect of limitations in terms of the candidates' and political parties' desired time duration and frequency.
When an act of government is in prior restraint of speech, government carries a heavy burden of
unconstitutionality. 6 In Iglesia ni Cristo v. Court of Appeals, 7 this court said that "any act that restrains speech
is hobbled by the presumption of invalidity and should be greeted with furrowed brows." 8 This is the only
situation where we veer away from our presumption of constitutionality. 9 DITEAc
In the context of elections, this court declared as unconstitutional the acts of the Commission on Elections in
prohibiting the playing of taped jingles, 10 disallowing newspaper columnists to express their opinion on a
plebiscite, 11 and limiting the publication of election surveys. 12
However, this presumption, though heavy, is not insurmountable.
Generally, there are very clear constitutionally defined and compelling interests to limit the speech of
candidates and political parties. Article IX-C, Section 4 of the Constitution provides:
Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization
of all franchises or permits for the operation of transportation and other public utilities, media of communication
or information, all grants, special privileges, or concessions granted by the Government or any subdivision,
agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary.
Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply,
including reasonable, equal rates therefor, for public information campaigns and forums among candidates in
connection with the objective of holding free orderly honest, peaceful, and credible elections. (Emphasis
supplied)
In addition, the Commission on Elections has been given the competence to minimize election spending in
Section 2 (7) of Article IX-C of the Constitution:
Section 2. The Commission on Elections shall exercise the following powers and functions:
xxx xxx xxx
(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of
election frauds, offenses, malpractices, and nuisance candidates.
In National Press Club v. COMELEC, 13 this court considered the prohibition on the sale and donation of
space and time for political advertisement provided in Section 11 (b) of Republic Act No. 6646. 14 This court
recognized that though freedom of speech is a preferred right in our constitutional hierarchy, it is not unlimited.
15 There are other constitutional values that should also be considered including the equalization of
opportunities for candidates. 16 This idea was echoed in Osmeña v. COMELEC. 17 This court found that the
"restriction on speech is only incidental, and it is no more than is necessary to achieve its purpose of
promoting equality of opportunity in the use of mass media for political advertising." 18 In Osmeña, this court
noted the silence of the legislature in amending Section 11 (b) of Republic Act No. 6646. 19 TIDaCE
Thus, in 2001, the Fair Election Act 20 was promulgated, repealing the challenged provisions in National Press
Club and Osmeña. Congress determined that the old law was not effective in giving voice to the people. 21 It
shifted state policy by liberalizing the granting of time and space to candidates and political parties while
maintaining equality in terms of duration of exposure. 22
Section 6 of the Fair Election Act is a
form of prior restraint
CONSTI REV – FULL TEXT JULY 11, 2019

It is recognized that Section 6 of the Fair Election Act does not completely prohibit speech. However, the
provision effectively limits speech in terms of time duration and frequency.
Admittedly, the present wording of Section 6 of the Fair Election Act does not clearly imply whether the one
hundred twenty (120) minutes of television advertisement and the one hundred eighty (180) minutes of radio
advertisement allotted to each candidate or registered political party is for each network or is an aggregate
time for all such advertisements, whether paid or donated, during the entire election period. However, during
the 2007 23 and the 2010 24 elections, the Commission on Elections allowed candidates and registered
political parties to advertise as much as 120 minutes of television advertisement and 180 minutes of radio
advertisement per station.
Provided, further, that a copy of the broadcast advertisement contract be furnished to the Commission, thru
the Education and Information Department, within five (5) days from contract signing.
The issuance caused petitioners to send their respective letters to respondent to clarify and/or protest against
the new regulations. It was only then that respondent Commission on Elections held a public hearing. 25
Respondent then issued Resolution No. 9631 amending certain provisions of Resolution No. 9615, Section 9
(a), without touching on the "total aggregate" interpretation of Section 6 of the Fair Election Act. 26
In addition to the television and radio networks represented in the various petitions, a candidate for the
senatorial elections, Alan Peter Cayetano, also filed an intervention. 27

For the 2013 elections, however, respondent Commission on Elections, without hearing, issued Resolution No. Whether the airtime in television and radio spots of candidates and registered political parties may be
9615, Section 9 (a) which now interprets the 120/180 minute airtime to be on a "total aggregate basis." This regulated is not an issue in this case. Indeed, the Constitution clearly allows this for purposes of providing
section provides: equal opportunity to all candidates. 28 The issue is also not whether Congress, in promulgating Section 6 of
the Fair Election Act, committed grave abuse of discretion in determining a cap of 120 minutes advertising for
SECTION 9. Requirements and/or Limitations on the Use of Election Propaganda through Mass television and 180 minutes for radio. It is within the legislature's domain to determine the amount of advertising
Media. — All parties and bona fide candidates shall have equal access to media time and space for their sufficient to balance the need to provide information to voters and educate the public on the one hand, and to
election propaganda during the campaign period subject to the following requirements and/or limitations: cause the setting of an affordable price to most candidates that would reduce their expenditures on the other.
We are not asked to decide in these cases whether these actual time limitations hurdle the heavy burden of
a. Broadcast Election Propaganda: unconstitutionality that attends to any prior limitations on speech.
The duration of air time that a candidate, or party may use for their broadcast advertisements or election Rather, petitioners and the intervenor raise constitutional objections to a second order of restriction: that the
propaganda shall be, as follows: interpretation earlier allowed by the Commission on Elections was suddenly, arbitrarily, and capriciously
Not more than an aggregate reduced by adopting the "total aggregate" method.
total of one hundred (120) While the Commission on Elections does have the competence to interpret Section 6, it must do so without
minutes of television running afoul of the fundamental rights enshrined in our Constitution, especially of the guarantee of freedom of
For Candidates/ advertising, whether appearing expression and the right to suffrage. Not only must the Commission on Elections have the competence, it must
Registered Political on national, regional, or local, also be cognizant of our doctrines in relation to any kind of prior restraint.
parties for a National free or cable television, and one
Elective Position hundred eighty (180) minutes It has failed to discharge this burden.
of radio advertising, whether A more restrictive interpretation of
airing on national, regional, or Section 6 will not necessarily meet the
local radio, whether by Commission on Elections' expected
purchase or donation. economic benefits

Not more than an aggregate total
of sixty (60) minutes of television
For Candidates/ advertising, whether appearing on
Registered Political national, regional, or local, free or
parties for a Local cable television, and ninety (90)
Elective Position minutes of radio advertising,
whether airing on national,
regional, or local radio, whether
by purchase or donation.
In cases where two or more candidates or parties whose names, initials, images, brands, logos, insignias,
color motifs, symbols, or forms of graphical representations are displayed, exhibited, used, or mentioned
together in the broadcast election propaganda or advertisements, the length of time during which they appear
or are being mentioned or promoted will be counted against the airtime limits allotted for the said candidates or
parties and the cost of the said advertisement will likewise be considered as their expenditures, regardless of
whoever paid for the advertisements or to whom the said advertisements were donated.
Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona fide news
documentary, if the appearance of the candidate is incidental to the presentation of the subject or subjects
covered by the news documentary, or on-the-spot coverage of bona fide news events, including but not limited
to events sanctioned by the Commission on Elections, political conventions, and similar activities, shall not be
deemed to be broadcast election propaganda within the meaning of this provision. To determine whether the
appearance or guesting in a program is bona fide, the broadcast stations or entities must show that: (1) prior
approval of the Commission was secured; and (2) candidates and parties were afforded equal opportunities to
promote their candidacy. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in
connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot
coverage of news events, from the obligation imposed upon them under Sections 10 and 14 of these Rules.
HaIATC
The Commission on Elections hinges the shift in the interpretation of Section 6 of the Fair Election Act on its
constitutional power to recommend to Congress effective measures to minimize election spending. 29 During
the January 31, 2013 public hearing, COMELEC Chairman Brillantes said:
Yes, but the very essence of the Constitutional provision as well as the provision of 9006 is actually to level the
playing field. That should be the paramount consideration. If we allow everybody to make use of all their time
and all radio time and TV time then there will be practically unlimited use of the mass media. . . . 30
On a cursory look, it will seem as if a reduction in the length of airtime allowable per candidate will translate to
a reduction in a candidate's election spending. For example, under the old regulation of giving 120 minutes
"per network," it would mean that if the candidate wanted to broadcast on two (2) television networks, the
candidate could purchase a total of 240 minutes. The total campaign expenditure for television advertisements
would be 240 minutes multiplied by the rate for television advertisements per minute, say, PhP500,000.00.
The candidate would have to spend a total of PhP120 million for 240 minutes of television advertisements.
Under the new regulation of giving 120 minutes to the candidate in an "aggregate total," the candidate would
have to distribute the 120 minutes between the two (2) networks. The 120 minutes multiplied by
PhP500,000.00 is only PhP60 million. The reduction in expenditure is obvious under this example.
However, the previous example is a simplistic view starkly different from our economic realities. This assumes
that the regulation would not affect the prices charged by the networks. A more realistic economic possibility is
that the restriction in airtime allotment of candidates will increase the prices of television and radio spots. This
can happen because the limitation in the airtime placed on each candidate will increase his or her willingness
to pay for television spots at any price. This will be the perfect opportunity for television networks to hike up
their prices. For instance, these networks can increase their usual rates of PhP500,000.00/minute to
PhP1,000,000.00/minute. The candidate will take the airtime at this rate because of the inevitable need for the
campaign to be visible to the public eye. At this rate, it will cost a candidate PhP120 million to air 120 minutes.
This is the same price to be paid had it been under the old regulation; hence, the candidate's election
spending will not be minimized. In fact, it will even increase the cost per unit of airtime.

31
CONSTI REV – FULL TEXT
Ideally, television and radio stations should bid and compete for a candidate's or a political party's airtime
allocation, so that instead of networks dictating artificially high prices for airtime (which price will be high as
television and radio stations are profit-driven), the market will determine for itself the price. The market for
airtime allocation expands, and a buyer's market emerges with low prices for airtime allocation. This situation
assumes that in the market for airtime allocation, television and radio networks are the same in terms of
audience coverage and facilities.
What Resolution No. 9615 does not take into consideration is that television and radio networks are not
similarly situated. The industry structure consists of network giants 31 with tremendous bargaining powers that
dwarf local community networks. Thus, a candidate with only a total aggregate of 120/180 minutes of airtime
allocation will choose a national network with greater audience coverage to reach more members of the
electorate. Consequently, the big networks can dictate the price, which it can logically set at a higher price to
translate to more profits. This is true in any setting especially in industries with high barriers to entry and where
there are few participants with a high degree of market dominance. Reducing the airtime simply results in a
reduction of speech and not a reduction of expenses.
Resolution No. 9615 may result in local community television and radio networks not being chosen by
candidates running for national offices. Hence, advertisement by those running for national office will generally
be tailored for the national audience. This new aggregate time may, therefore, mean that local issues which
national candidates should also address may not be the subject of wide-ranging discussions.
Candidates' expenses are still limited by existing regulations that peg total allowable expenditures based on
the number of votes. Even with aggregate airtime limits being allowed on a per station basis, the limits on
expenditures remain the same. In other words, the limits in candidate expenses are already set and are
independent of whether aggregate time is total airtime or per station.
Each candidate decides what media they will avail to allow for efficiency, i.e., the most impact with the
broadest audience and with the least cost. All candidate's limits will be the same. Limiting airtime to only a total
of 120/180 minutes per candidate or political party will most likely only succeed in caricaturing debate,
enriching only the more powerful companies in the media sector and making it more prohibitive for less
powerful candidates to get their messages across.
There is no showing from respondent Commission on Elections of any study that the "total aggregate basis"
interpretation will indeed minimize election spending. It did not show that this would better serve the objective
of assisting the poorer candidates. The relationship between the regulation and constitutional objective must
be more than mere speculation. Here, the explanation respondent Commission on Elections gave is that it has
the power to regulate. As COMELEC Chairman Brillantes said during the January 31, 2013 public hearing:
No, the change is not there, the right to amplify is with the Commission on Elections. Nobody can encroach in
our right to amplify. Now, if in 2010 the Commission felt that per station or per network is the rule then that is
the prerogative of the Commission then they could amplify it to expand it. If the current Commission feels that
120 is enough for the particular medium like TV and 180 for radio, that is our prerogative. How can you
encroach and what is unconstitutional about it? 32 (Emphasis supplied)
We emphasize that where a governmental act has the effect of preventing speech before it is uttered, it is the
burden of government and not of the speaker to justify the restriction in terms which are clear to this court.
Article III, Section 4 of the Constitution which provides for freedom of expression occupies such high levels of
protection that its further restriction cannot be left to mere speculation.
Contrary to COMELEC Chairman Brillantes' statement, this court will step in and review the Commission on
Elections' right to amplify if it infringes on people's fundamental rights. What the Commission "feels," even if it
has the prerogative, will never be enough to discharge its burden of proving the constitutionality of its
regulations limiting the freedom of speech.
Election regulations are not always content-neutral regulations, and even if they were, they do not necessarily
carry a mantle of immunity from free speech scrutiny. The question always is whether the regulations are
narrowly tailored so as to meet a significant governmental interest and so that there is a lesser risk of
excluding ideas for a public dialogue. 33 The scrutiny for regulations which restrict speech during elections
should be greater considering that these exercises substantiate the important right to suffrage. Reducing
airtime to extremely low levels reduces information to slogans and sound bites which may impoverish public
dialogue. We know that lacking the enlightenment that comes with information and analysis makes the
electorate's role to exact accountability from elected public officers a sham. More information requires more
space and airtime equally available to all candidates. The problem in this case is that the Commission on
32
JULY 11, 2019
Elections does not seem to have the necessary basis to justify the balance it wanted to strike with the
imposition of the aggregate time limits. TcSAaH
Just because it is called electoral reform does not necessarily make it so.
The standard of analysis for prior restraints on speech is well-known to all legal practitioners especially to
those that may have crafted the new regulations. Good intentions are welcome but may not be enough if the
effect would be to compromise our fundamental freedoms. It is this court's duty to perform the roles delegated
to it by the sovereign people. In a proper case invoking this court's powers of judicial review, it should
sometimes result in more mature reflection by those who do not benefit from its decisions. The Commission on
Elections does not have a monopoly of the desire for genuine electoral reform without compromising
fundamental rights. Our people cannot be cast as their epigones.
Fundamental rights are very serious matters. The core of their existence is not always threatened through the
crude brazen acts of tyrants. Rather, it can also be threatened by policies that are well-intentioned but may not
have the desired effect in reality.
We cannot do justice to hard-won fundamental rights simply on the basis of a regulator's intuition. When
speech and prior restraints are involved, it must always be supplemented by rigorous analysis and reasoned
evidence already available for judicial review.
Thus, I vote to PARTIALLY GRANT the petitions. Section 9 (a) of Resolution No. 9615 is unconstitutional and
is, therefore, NULL and VOID. This has the effect of reinstating the interpretation of the Commission on
Elections with respect to the airtime limits in Section 6 of the Fair Elections Act. I vote to DENY the
constitutional challenge to Sections 7 (d) and 14 of COMELEC Resolution 9615, as amended by Resolution
9631.
Footnotes
* On official leave.
** Designated Acting Justice per Special Order No. 1770 dated August 28, 2014.
*** On official leave.
**** On official leave.
***** On leave.
1. Secretary of Justice v. Lantion, 397 Phil. 423, 437 (2000). (Citation omitted)
2. Art. IX (C), Sec. 4 of the CONSTITUTION, provides:
The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or
permits for the operation of transportation and other public utilities, media of communication or information, all grants,
special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof,
including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to
ensure equal opportunity, time and space, and the right to reply, including reasonable, equal rates therefor, for public
information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest,
peaceful, and credible elections.
3. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority
emanates from them. (Art. II, Sec. 1, CONSTITUTION)
4. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen
years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose
to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement
shall be imposed on the exercise of suffrage. (Art. V, Sec. 1, CONSTITUTION)
5. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people
peaceably to assemble and petition the Government for redress of grievances. (Art. III, Sec. 4, CONSTITUTION)
6. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data
used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.
(Art. III, Sec. 7, CONSTITUTION)
7. Resolution No. 7767 (promulgated on November 30, 2006) and Resolution No. 8758 (promulgated on February 4, 2010),
respectively.
8. SECTION 7. Prohibited Forms of Election Propaganda. —
xxx xxx xxx
(d) For any newspaper or publication, radio, television or cable television station, or other mass media, or any person
making use of the mass media to sell or give free of charge print space or airtime for campaign or election propaganda
purposes to any candidate or party in excess of the size, duration or frequency authorized by law or these rules.
xxx xxx xxx
The printing press, printer, or publisher who prints, reproduces or publishes said campaign materials, and the
broadcaster, station manager, owner of the radio or television station, or owner or administrator of any website who airs
or shows the political advertisements, without the required data or in violation of these rules shall be criminally liable with
the candidate and, if applicable, further suffer the penalties of suspension or revocation of franchise or permit in
accordance with law.
CONSTI REV – FULL TEXT JULY 11, 2019

9. SECTION 9. Requirements and/or Limitations on the Use of Election Propaganda through Mass Media. — All parties Political advertising includes matters, not falling within the scope of personal opinion, that appear on any Internet
and bona fide candidates shall have equal access to media time and space for their election propaganda during the website, including, but not limited to, social networks, blogging sites, and micro-blogging sites, in return for
campaign period subject to the following requirements and/or limitations: consideration, or otherwise capable of pecuniary estimation.
a. Broadcast Election Propaganda 12. SECTION 35. Election Offense. — Any violation of RA 9006 and these Rules shall constitute an election offense
the duration of air time that a candidate, or party may use for their broadcast advertisements or election propaganda punishable under the first and second paragraph of Section 264 of the Omnibus Election Code in addition to
shall be, as follows: administrative liability, whenever applicable. Any aggrieved party may file a verified complaint for violation of these Rules
For Candidates/ with the Law Department of the Commission.
Registered Political 13. Rollo (G.R. No. 205357), pp. 382-426.
parties for a 14. Id. at 667-710.
National Elective 15. Id. at 676.
Position 16. Id. at 699.
Not more than a aggregate total of one hundred (120) minutes of television advertising, whether appearing on national, 17. Id. at 917-937.
regional, or local, free or cable television, and one hundred eighty (180) minutes of radio advertising, whether airing on 18. C. THE COMMISSION ON ELECTIONS
national, regional, or local radio, whether by purchase or donation. xxx xxx xxx
For Candidates/ Sec. 2. The Commission on Elections shall exercise the following powers and functions:
Registered Political xxx xxx xxx
parties for a Local (7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where
Elective Position propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices,
Not more than an aggregate total of sixty (60) minutes of television advertising, whether appearing on national, regional, and nuisance candidates.
or local, free or cable television, and ninety (90) minutes of radio advertising, whether airing on national, regional, or 19. Supplemental Comment and Opposition, p. 17.
local radio, whether by purchase or donation. 20. Rollo (G.R. No. 205357), p. 996.
In cases where two or more candidates or parties whose names, initials, images, brands, logos, insignias, color motifs, 21. Rollo (G.R. No. 205374), pp. 378-385.
symbols, or forms of graphical representations are displayed, exhibited, used, or mentioned together in the broadcast 22. Id. at 386-395.
election propaganda or advertisements, the length of time during which they appear or are being mentioned or promoted 23. Id. at 352-361.
will be counted against the airtime limits allotted for the said candidates or parties and the cost of the said advertisement 24. Id. at 362-377.
will likewise be considered as their expenditures, regardless of whoever paid for the advertisements or to whom the said 25. Rollo (G.R. No. 206360), p. 86.
advertisements were donated. 26. Rollo (G.R. No. 205374), pp. 402-413.
Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona fide news 27. Dela Llana v. Chairperson, Commission on Audit, G.R. No. 180989, February 7, 2012, 665 SCRA 176, 184.
documentary, if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by 28. De Castro v. Judicial and Bar Council (JBC), G.R. No. 191032, G.R. No. 191057, A.M. No. 10-2-5-SC, G.R. No. 191149,
the news documentary, or on-the-spot coverage of bona fide news events, including but not limited to events sanctioned March 17, 2010, 615 SCRA 666; Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform,
by the Commission on Elections, political conventions, and similar activities, shall not be deemed to be broadcast 256 Phil. 777 (1989); Albano v. Reyes, 256 Phil. 718 (1989); Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas,
election propaganda within the meaning of this provision. To determine whether the appearance or guesting in a program Inc. v. Tan, 246 Phil. 380 (1988); Legaspi v. Civil Service Commission, 234 Phil. 521 (1987); Tañada v. Tuvera, 220 Phil.
is bona fide, the broadcast stations or entities must show that: (1) prior approval of the Commission was secured; and 422 (1985).
(2) candidates and parties were afforded equal opportunities to promote their candidacy. Nothing in the foregoing 29. G.R. No. 122846, January 20, 2009, 576 SCRA 416.
sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news 30. Id. at 429.
interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them 31. Id. at 430-432.
under Sections 10 and 14 of these Rules. 32. The pertinent portions of the Fair Election Act (R.A. No. 9006) provide:
Provided, further, that a copy of the broadcast advertisement contract be furnish to the Commission, thru the Education SECTION 6. Equal Access to Media Time and Space. — All registered parties and bona fide candidates shall have equal
and Information Department, within five (5) days from contract signing. access to media time and space. The following guidelines may be amplified on by the COMELEC:
xxx xxx xxx xxx xxx xxx
10. SECTION 14. Right to Reply. — All registered political parties, party-list groups or coalitions and bona fide candidates 6.2. (a) Each bona fide candidate or registered political party for a nationally elective office shall be entitled to not more
shall have the right to reply to charges published, or aired against them. The reply shall be given publicity, or aired than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180) minutes of radio
against them. The reply shall be given publicity by the newspaper, television, and/or radio station which first printed or advertisement whether by purchase or donation.
aired the charges with the same prominence or in the same page or section or in the same time slot as the first (b) Each bona fide candidate or registered political party for a locally elective office shall be entitled to not more than
statement. sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or
Registered political parties, party-list groups or coalitions and bona fide candidates may invoke the right to reply by donation; or
submitting within a non-extendible period of forty-eight hours from first broadcast or publications, a formal verified claim For this purpose, the COMELEC shall require any broadcast station or entity to submit to the COMELEC a copy of its
against the media outlet to the COMELEC through the appropriate RED. The claim shall include a detailed enumeration broadcast logs and certificates of performance for the review and verification of the frequency, date, time and duration of
of the circumstances and include a detailed enumeration of the circumstances and occurrences which warrant the advertisements broadcast for any candidate or political party.
invocation of the right to reply and must be accompanied by supporting evidence, such as copy of the publication or 6.3. All mass media entities shall furnish the COMELEC with a copy of all contracts for advertising, promoting or
recording of the television or radio broadcast, as the case may be. If the supporting evidence is not yet available due to opposing any political party or the candidacy of any person for public office within five (5) days after its signing. In every
circumstances beyond the power of the claimant, the latter shall supplement his claim as soon as the supporting case, it shall be signed by the donor, the candidate concerned or by the duly authorized representative of the political
evidence becomes available, without delay on the part of the claimant. The claimant must likewise furnish a copy of the party.
verified claim and its attachments to the media outlet concerned prior to the filing of the claim with the COMELEC. 6.4. No franchise or permit to operate a radio or television stations shall be granted or issued, suspended or cancelled
The COMELEC, through the RED, shall review the verified claim within forty-eight (48) hours from receipt thereof, during the election period.
including supporting evidence, and if circumstances warrant, give notice to the media outlet involved for appropriate In all instances, the COMELEC shall supervise the use and employment of press, radio and television facilities insofar as
action, which shall, within forty-eight (48) hours, submit its comment, answer or response to the RED, explaining the the placement of political advertisements is concerned to ensure that candidates are given equal opportunities under
action it has taken to address the claim. The media outlets must likewise furnish a copy invoking the right to reply. equal circumstances to make known their qualifications and their stand on public issues within the limits set forth in the
Should the claimant insist that his/her reply was not addressed, he/she may file the appropriate petition and/or complaint Omnibus Election Code and Republic Act No. 7166 on election spending.
before the commission on Elections or its field offices, which shall be endorsed to the Clerk of the Commission. xxx xxx xxx
11. SECTION 1. Definitions. — As used in this Resolution: 33. RULES AND REGULATIONS IMPLEMENTING REPUBLIC ACT NO. 9006, OTHERWISE KNOWN AS THE "FAIR
xxx xxx xxx ELECTION ACT", IN RELATION TO THE MAY 10, 2004 ELECTIONS AND SUBSEQUENT ELECTIONS.
(4) The term "political advertisement" or "election propaganda" refers to any matter broadcasted, published, printed, 34. See Section 13, 1, Resolution No. 6250.
displayed or exhibited, in any medium, which contain the name, image, logo, brand, insignia, color motif, initials, and 35. RULES AND REGULATIONS IMPLEMENTING REPUBLIC ACT NO. 9006, OTHERWISE KNOWN AS THE FAIR
other symbol or graphic representation that is capable of being associated with a candidate or party, and is intended to ELECTION ACT, IN RELATION TO THE MAY 14, 2007 SYNCHRONIZED NATIONAL AND LOCAL ELECTIONS; See
draw the attention of the public or a segment thereof to promote or oppose, directly or indirectly, the election of the said Section 13, 1.
candidate or candidates to a public office. In broadcast media, political advertisements may take the form of spots, 36. RULES AND REGULATIONS IMPLEMENTING REPUBLIC ACT NO. 9006, OTHERWISE KNOWN AS THE FAIR
appearances on TV shows and radio programs, live or taped announcements, teasers, and other forms of advertising ELECTION PRACTICES ACT, IN RELATION TO THE MAY 10, 2010 SYNCHRONIZED NATIONAL AND LOCAL
messages or announcements used by commercial advertisers. ELECTIONS, AND SUBSEQUENT ELECTIONS; See Section 11 (a).
37. Emphasis supplied.

33
CONSTI REV – FULL TEXT JULY 11, 2019

38. Motion for Leave to Intervene and to File and Admit the Herein Attached Petition-in-Intervention, pp. 15-20; rollo (G.R. 6. Considered as the "canonical" standard of review for content-neutral regulations, the test is
No. 205357), pp. 347-352, citing TSN of the Comelec hearing on January 31, 2013, pp. 6-12. (Emphasis supplied) eponymously named after US v. O'Brien, 391 U.S. 367 (1968). This Court applied O'Brien in Osmeña v.
39. Id. at 20. (Emphasis and underscoring in the original)
COMELEC, id. and Social Weather Station v. COMELEC, 409 Phil. 571 (2001). In contrast, content-
40. TSN, E.M. No. 13-001 to 02, January 31, 2013, p. 8. (Emphasis supplied)
41. Motion for Leave to Intervene and to File and Admit the Herein Attached Petition-in-Intervention, p. 18; rollo (G.R. No. based regulations are subjected to heightened scrutiny (for the reasons underlying such strict scrutiny
205357), p. 350. and its application in Philippine jurisprudence, see Osmeña v. COMELEC, id. at 717-719).
42. Globe Telecom, Inc. v. National Telecommunications Commission, 479 Phil. 1, 33-34 (2004). 7. Social Weather Station v. Commission on Elections, id. at 587-588, citing US v. O'Brien, id. at 377.
43. Motion for Leave to Intervene and to File and Admit the Herein Attached Petition-in-Intervention, pp. 21-24; rollo (G.R. 8. According to petitioner GMA, Inc., this leaves a candidate or political party only 27.3 seconds of
No. 205357), pp. 353-356. campaign broadcast time per day (Decision, p. 41). Under the regulations issued by the COMELEC
44. Sec. 11. Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda prohibited under
implementing Section 6.2 of RA 9006 for the 2007 and 2010 elections, the caps were reckoned based
Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:
xxx xxx xxx on the length of advertising time logged by each candidate or political party at every TV or radio station.
b. for any newspaper, radio broadcasting or television station, or other mass media, or any person making use of the 9. Under Section 11 of RA 9006 ("Rates for Political Propaganda. — During the election period, media
mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to the outlets shall charge registered political parties and bona fide candidates a discounted rate of thirty
Commission as provided under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, percent (30%) for television, twenty percent (20%) for radio and ten per cent (10%) for print over the
commentator, announcer or personality who is a candidate for any elective public office shall take a leave of absence average rates charged during the first three quarters of the calendar year preceding the elections.")
from his work as such during the campaign period.
10. Based on petitioner GMA, Inc.'s rate card for 2013 (undiscounted), a 30-second national primetime ad
45. Journal of Senate, Session No. 92, 22-23, May 2000, rollo, (G.R. No. 205357), pp. 126-127.
46. Respondent's Comment and Opposition, pp. 11-12; rollo (G.R. No. 205357), pp. 392-393. (Emphasis in the original). costs P695,500 while its regional counterpart costs P27,500 (with the 30% statutory discount, the rates
47. G.R. Nos. 179431-32 and 180445, June 22, 2010, 621 SCRA 385. are P487,000 and P19,250, respectively).
48. Id. at 411. (Citations omitted) 11. With the national ad costing P425,500 and the regional rate constant.
49. G.R. No. L-26534, November 28, 1969, 30 SCRA 498. 12. Based on petitioner ABS-CBN Corp.'s rate card for 2013 (undiscounted), a 30-second national
50. Villegas v. Subido, supra, at 510-511. primetime ad costs P824,374 while its mid-level provincial rate (selected areas) for the same ad is
51. In the Matter of the Allegations Contained in the Columns of Mr. Amado P. Macasaet Published in Malaya Dated
P24,800 (with the 30% statutory discount, the rates are P577,061.80 and P19,360, respectively). The
September 18, 19, 20 and 21, 2007, A.M. No. 07-09-13-SC, August 8, 2008, 561 SCRA 395, 437.
52. Buckley v. Valeo, 424 U.S. 1, 19-20 (1976). upper-level provincial rate is P38,500 (Cebu) while the lower-level rate is P7,470 (selected areas).
53. Rollo (G.R. No. 205357), pp. 25-26. (Emphasis in the original) 13. With the national ad costing P312,264 (with 30% statutory discount, P218,584.80) and the mid-level
54. Comment and Opposition, p. 15; id. at 396. provincial rate constant.
55. New York Times Co. v. United States, 403 U.S. 713, 717 (1971). 14. Based on petitioner GMA, Inc.'s rate card for 2013 (undiscounted), DZBB's rate is P70,000 while those
56. Moya v. Del Fierro, 69 Phil. 149, 204 (1939). for DYSP (Puerto Princess), DYSI (Iloilo) and DXGM (Davao) are P2,100, P5,000 and P6,900,
57. Williams v. Rhodes, 393 U.S. 23, 32 (1968).
respectively. With the statutory discount of 20%, the rates for DZBB, DYSP, DYSI and DXGM are
58. 329 Phil. 987 (1996).
59. Commissioner of Internal Revenue v. Court of Appeals, supra, at 1007-1008. (Italics and boldface supplied) P56,000, P1,680, P4,000 and P5,520, respectively. If the rate (undiscounted) for Cebu's DYSS
60. Rollo (G.R. No. 205537), pp. 44-46. (Emphasis in the original) (P22,500) is taken into account, the average price variation is 87%.
61. Comment and Opposition, id. at 20. 15. Based on petitioner ABS-CBN Corp.'s rate card for 2013 (undiscounted), DZMM's rate is P67,666 (club
62. Promulgated on February 1, 2013. rate, primetime) while rates for Cebu City and Davao City are the same at P6,570. The rate
63. Emphasis supplied. (undiscounted) for its Palawan AM station is lower at P3,290, increasing the price difference with the
64. Emphasis and italics supplied.
national primetime, club rate to 95%.
65. Rollo (G.R. No. 205374), pp. 67-68.
66. Art. IX (C), Sec. 4 of the CONSTITUTION, provides in part: 16. Under Section 100 of Batas Pambansa Blg. 881 (BP 881), as amended by Section 13 of Republic Act
The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or No. 7166 which provides: "Authorized Expenses of Candidates and Political Parties. — The agreement
permits for the operation of transportation and other public utilities, media of communication or information, all grants, amount that a candidate or registered political party may spend for election campaign shall be as
special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, follows: (a) For candidates. — Ten pesos (P10.00) for President and Vice-President; and for other
including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to candidates Three Pesos (P3.00) for every voter currently registered in the constituency where he filed
ensure equal opportunity, time and space, and the right to reply, including reasonable, equal rates therefor, for public
his certificate of candidacy: Provided, That a candidate without any political party and without support
information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest,
peaceful, and credible elections." (Emphasis supplied.) from any political party may be allowed to spend Five Pesos (P5.00) for every such voter; and (b) For
67. G.R. No. 132922, April 21, 1998, 289 SCRA 337. political parties. — Five pesos (P5.00) for every voter currently registered in the constituency or
68. Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Commission on Elections, supra, at 349. constituencies where it has official candidates."
69. Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726, 748-750 (1978). (Emphases supplied)
BRION, J., separate concurring:
CARPIO, Acting C.J., concurring: 1. See Comelec Minute Resolution No. 04-0113.
2. Comelec Resolution No. 6520.
1. Decision, pp. 8, 13. 3. 551 Phil. 1 (2007).
2. The provision reads in full: "Recommend to the Congress effective measures to minimize election 4. 329 Phil. 987 (1996).
spending, including limitation of places where propaganda materials shall be posted, and to prevent and 5. Article IX-C, Section 2 (1), 1987 Constitution.
penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies." 6. Tolentino v. COMELEC, 465 Phil. 385 (2004).
7. See Senate v. Ermita, G.R. Nos. 168777, 169659, 169660, 169667, 169834 and 171246, April 20, 2006, 488 SCRA 1, 72.
3. The provision reads in full: "The Commission may, during the election period, supervise or regulate the 8. Supra note 4.
enjoyment or utilization of all franchises or permits for the operation of transportation and other public 9. Bedol v. Commission on Elections, G.R. No. 179830, December 3, 2009, 606 SCRA 554.
utilities, media of communication or information, all grants, special privileges, or concessions granted by 10. See Namil v. Commission on Elections, 460 Phil. 751 (2003); and Sandoval v. Commission on Elections, 380 Phil. 375
the Government or any subdivision, agency, or instrumentality thereof, including any government-owned (2000).
or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal 11. This provision reads:
opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public Section 7. Each Commission shall decide by a majority vote of all its Members, any case or matter brought before it within
sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or
information campaigns and forums among candidates in connection with the objective of holding free, resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the
orderly, honest, peaceful, and credible elections." Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each
4. Section 11 (b), Republic Act No. 6646, repealed by Section 14 of RA 9006. Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a
5. Osmeña v. COMELEC, 351 Phil. 692, 708 (1998). copy thereof.
12. This provision reads:

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CONSTI REV – FULL TEXT JULY 11, 2019

Section 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in 2. that rules of constitutional law shall be formulated only as required by the facts of the case
order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be 3. that judgment may not be sustained on some other ground
heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission 4. that there be actual injury sustained by the party by reason of the operation of the statute
en banc. 5. that the parties are not in estoppel
13. Victorias Milling Company, Inc. v. Social Security Commission, G.R. No. L-16704, March 17, 1962; Misamis Oriental 6. that the Court upholds the presumption of constitutionality.
Association of Coco Traders, Inc. v. Department of Finance Secretary, G.R. No. 108524, November 10, 1994, 238 SCRA 32. Orceo v. Commission on Elections, G.R. No. 190779, March 26, 2010, 616 SCRA 684.
63. 33. Romualdez v. Sandiganbayan, G.R. No. 152259, July 29, 2004, 435 SCRA 371.
14. Republic v. Drugmakers' Laboratories, Inc., G.R. No. 190837, March 5, 2014, citing Commissioner of Internal Revenue v. 34. See Southern Cross Cement Corporation v. Philippine Cement Manufacturers Corporation, G.R. No. 158540, July 8,
Court of Appeals, 329 Phil. 987, 1007 (1996), in turn citing Misamis Oriental Association of Coco Traders, Inc. v. 2004, 434 SCRA 65. In the present case, the ponencia does not even disclose the terms of the legislative intent which
Department of Finance Secretary, G.R. No. 108524, November 10, 1994, 238 SCRA 63, 69; First National Bank of Senator Cayetano has called the Court's attention to.
Lexington, Tennessee v. Sanders, 946 F. 2d 1185 (1991); and Animal Legal Defense Fund v. Quigg and Verity, 932 F. 2d 35. www.yourdictionary.com/each.
920, 18 USPQ. 2d 1677 (1991). 36. Section 2, RA No. 9006.
15. Republic v. Drugmakers' Laboratories, Inc., G.R. No. 190837, March 5, 2014, citing Commissioner of Internal Revenue v. 37. Section 4, Article IX-C, 1987 Constitution.
Court of Appeals, 329 Phil. 987 (1996); and Nachura, Antonio E. B., Outline Reviewer in Political Law (2009), p. 416. 38. See Sections 100 and 101 of Batas Pambansa Blg. 881, as amended by Section 13 of RA No. 7166.
16. See also Tañada v. Hon. Tuvera, 230 Phil. 528 (1986). 39. Supra note 3.
17. Administrative Law, Law on Public Officers and Election Law, Ruben Agpalo, 2005 ed., citing Phil. Communications 40. G.R. No. 102653, March 5, 1992, 207 SCRA 1.
Satellite Corp. v. Alcuaz, 259 Phil. 707 (1989). See also Dagan, et al. v. Philippine Racing Commission, et al., 598 Phil. 41. Section 11. Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda prohibited under
406 (2009). Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:
18. Central Bank of the Philippines v. Cloribel, 150-A Phil. 86 (1972). (b) for any newspaper, radio broadcasting or television station, or other mass media, or any person making use of the
19. Corona v. United Harbor Pilots Association of the Philippines, 347 Phil. 333, 342 (1997); Philippine Consumers mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to the
Foundation, Inc. v. Secretary of Education, Culture and Sports, 237 Phil. 606 (1987). Commission as provided under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist,
20. The Court said: "Like any other government agency, however, the CIR may not disregard legal requirements or applicable commentator, announcement or personality who is a candidate for any elective public office shall take a leave of absence
principles in the exercise of its quasi-legislative powers" and then proceeded to "distinguish between two kinds of from his work as such during the campaign period.
administrative issuances — a legislative rule and an interpretative rule." Sections 90 and 92 of BP Blg. No. 881 pertinently reads:
21. Supra note 13. Sec. 90. Comelec space. — The Commission shall procure space in at least one newspaper of general circulation in
22. See Separate Opinion of Justice Josue Belosillo in Commissioner of Internal Revenue v. Court of Appeals, supra note 4. every province or city: Provided, however, That in the absence of said newspaper, publication shall be done in any other
23. While the Comelec under resolution 9615 merely "interpreted" (or more accurately, re-interpreted) the same provision of magazine or periodical in said province or city, which shall be known as "Comelec Space" wherein candidates can
RA 9006, one should not confuse resolution 9615 simply as an interpretative rule since every election is distinct from the announce their candidacy. Said space shall be allocated, free of charge, equally and impartially by the Commission
previous ones and different guidelines in order to ensure that the rules are updated to respond to existing circumstances among all candidates within the area in which the newspaper is circulated.
(Arroyo v. Department of Justice, G.R. No. 199082, September 18, 2012, 681 SCRA 181). Hence, in issuing resolution xxx xxx xxx
9615, the Comelec was not simply "interpreting" the elections laws but is actually exercising its power of subordinate Sec. 92. Comelec time. — The Commission shall procure radio and television time to be known as "Comelec Time" which
legislation. shall be allocated equally and impartially among the candidates within the area of coverage of all radio and television
24. Section 4, Article IX-C, 1987 Constitution. stations. For this purpose, the franchise of all radio broadcasting and television stations are hereby amended so as to
25. See http://tcdn05.abs-cbnnews.com/nation/06/13/13/sans-tro-9-senate-bets-buhay-breached-ads-cap. provide radio or television time, free of charge, during the period of the campaign. (Emphasis supplied)
26. See Sections 100 and 101 of Batas Pambansa Blg. 881, as amended by Section 13 of RA No. 7166. 42. 351 Phil. 692 (1998).
27. Section 4, Article IX-C, 1987 Constitution. 43. Blo Umpar Adiong v. Commission on Elections, G.R. No. 103956, March 31, 1992, 207 SCRA 712; Sanidad v.
28. General v. Urro, G.R. No. 191560, March 29, 2011, 646 SCRA 567. Commission on Elections, G.R. No. 90878, January 29, 1990, 181 SCRA 529; and Mutuc v. COMELEC, L-32717,
29. Id. November 26, 1970, 36 SCRA 228.
30. Tolentino v. COMELEC, supra note 6. 44. 391 U.S. 367, 377, 20 L. Ed. 2d 672, 680 (1968).
31. In Demetria v. Alba, 134 this Court, through Justice Marcelo Fernan cited the "seven pillars" of limitations of the power of 45. See also Social Weather Station v. Commission on Elections, G.R. No. 147571, May 5, 2001, 357 SCRA 496.
judicial review, enunciated by US Supreme Court Justice Brandeis in Ashwander v. TVA 135 as follows: 46. Telecommunications and Broadcast Attorneys of the Philippines v. Commission on Elections, Inc., 352 Phil. 153 (1998).
1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary proceeding, declining 47. 424 U.S. 1; 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976).
because to decide such questions 'is legitimate only in the last resort, and as a necessity in the determination of real, 48. In Osmeña v. Comelec, the Court observed:
earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party Do those who endorse the view that government may not restrict the speech of some in order to enhance the
beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.' relative voice of others also think that the campaign expenditure limitation found in our election laws is unconstitutional?
2. The Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it.' . . . 'It is How about the principle of one person, one vote, is this not based on the political equality of voters? Voting after all is
not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the speech. We speak of it as the voice of the people — even of God. The notion that the government may restrict the speech
case.' of some in order to enhance the relative voice of others may be foreign to the American Constitution. It is not to the
3. The Court will not 'formulate a rule of constitutional law broader than is required by the precise facts to which it is Philippine Constitution, being in fact an animating principle of that document.
to be applied.' 49. Section 4, Article III, 1987 Constitution.
4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also 50. Supra note 46.
present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if 51. See Section 24, Article II and Section 10, Article XVI of the 1987 Constitution.
a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory 52. See Section 4, RA No. 7252.
construction or general law, the Court will decide only the latter. Appeals from the highest court of a state challenging its
decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on LEONEN, J., concurring:
an independent state ground.
5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by 1. Chavez v. Gonzales, 569 Phil. 155, 203 (2008) [Per C.J. Puno, En Banc].
its operation. Among the many applications of this rule, none is more striking than the denial of the right of challenge to 2. Soriano v. Laguardia, 605 Phil. 43 (2009) [Per J. Velasco, Jr., En Banc]; Pita v. Court of Appeals, 258-A Phil. 134 (1989)
one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of [Per J. Sarmiento, En Banc]; Gonzalez v. Katigbak, 222 Phil. 225 (1985) [Per C.J. Fernando, En Banc].
his official duty will not be entertained . . . In Fairchild v. Hughes, the Court affirmed the dismissal of a suit brought by a 3. Chavez v. Gonzales, 569 Phil. 155 (2008) [Per C.J. Puno, En Banc]; Pharmaceutical and Health Care Association of the
citizen who sought to have the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, the Philippines v. Health Secretary Francisco T. Duque III, 561 Phil. 386 (2007) [Per Austria-Martinez, En Banc].
challenge of the federal Maternity Act was not entertained although made by the Commonwealth on behalf of all its 4. Eastern Broadcasting Corporation v. Dans, Jr., 222 Phil. 151 (1985) [Per J. Gutierrez, Jr., En Banc].
citizens. 5. Id.
6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its 6. Iglesia ni Cristo v. CA, 328 Phil. 893, 928 (1996) [Per J. Puno, En Banc], citing Near v. Minnesota, 283 US 697 (1931);
benefits. Bantam Books, Inc. v. Sullivan, 372 US 58 (1963); New York Times v. United States, 403 US 713 (1971); See also Social
7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality Weather Station v. COMELEC, 409 Phil. 571, 584-585 (2001) [Per J. Mendoza, En Banc], citing New York Times v. United
is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by States, 403 U.S. 713, 714, 29 L.Ed. 2d 822, 824 (1971).
which the question may be avoided (citations omitted). 7. 328 Phil. 893 (1996) [Per J. Puno, En Banc].
The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from different decisions of the 8. Id. at 928.
United States Supreme Court, can be encapsulated into the following categories: 9. See Lawyers Against Monopoly and Poverty (LAMP) v. Secretary of Budget and Management, G.R. No. 164987, April 24,
1. that there be absolute necessity of deciding a case 2012, 670 SCRA 373, 387 [Per J. Mendoza, En Banc], citing Drilon v. Lim, G.R. No. 112497, August 4, 1994, 235 SCRA

35
CONSTI REV – FULL TEXT JULY 11, 2019

135, 140 [Per J. Cruz, En Banc]; See also Osmeña v. COMELEC, 351 Phil. 692 (1998) [Per J. Mendoza, En Banc]; 25. Respondent COMELEC held a public hearing on January 31, 2013.
National Press Club v. COMELEC, G.R. No. 102653, March 5, 1992, 207 SCRA 1 [Per J. Feliciano, En Banc]; Angara v. 26. COMELEC Resolution No. 9631, par. 5, amended COMELEC Resolution No. 9615, sec. 9 (a), to wit:
Electoral Commission, 63 Phil. 139 (1936) [Per J. Laurel, En Banc]. 5. The third (3rd) paragraph of Section 9 (a) on the "Requirements and/or Limitations on the Use of Election
10. Mutuc v. COMELEC, 146 Phil. 798 (1970) [Per J. Fernando, En Banc], cited as prior restraint in Osmeña v. COMELEC, Propaganda through Mass Media" is revised and amended to read:
351 Phil. 692, 707 (1998) [Per J. Mendoza, En Banc]. "Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona fide news
11. Sanidad v. COMELEC, 260 Phil. 565 (1990) [Per J. Medialdea, En Banc], cited as prior restraint in Osmeña v. COMELEC, documentary, if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the
351 Phil. 692, 718 (1998) [Per J. Mendoza, En Banc]. news documentary, or on-the-spot coverage of bona fide news events, including but not limited to events sanctioned by
12. Social Weather Station v. COMELEC, 409 Phil. 571 (2001) [Per J. Mendoza, En Banc]. the Commission on Elections, political conventions, and similar activities, shall not be deemed to be broadcast election
13. G.R. No. 102653, March 5, 1992, 207 SCRA 1 [Per J. Feliciano, En Banc]. propaganda within the meaning of this provision. For purposes of monitoring by the COMELEC and ensuring that parties
14. Rep. Act 6646, sec. 11 provides: and candidates were afforded equal opportunities to promote their candidacy, the media entity shall give prior notice to the
Sec. 11. Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda prohibited COMELEC, through the appropriate Regional Election Director (RED), or in the case of the National Capital Region
under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: (NCR), the Education and Information Department (EID). If such prior notice is not feasible or practicable, the notice shall
xxx xxx xxx be sent within twenty-four (24) hours from the first broadcast or publication. Nothing in the foregoing sentence shall be
b. for any newspaper, radio broadcasting or television station, or other mass media, or any person making use of construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news
the mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under Sections 10 and
the Commission as provided under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, 14 of these Rules." (Emphasis in the original)
commentator, announcer or personality who is a candidate for any elective public office shall take a leave of absence from 27. In G.R. No. 205357, intervenor assails Section 9 (a) of Resolution No. 9615, which changed the interpretation of the
his work as such during the campaign period. 120/180-minute rule from "per station" to "total aggregate" basis.
15. "It seems a modest proposition that the provision of the Bill of Rights which enshrines freedom of speech, freedom of 28. CONST., art. IX-C, sec. 4 provides:
expression and freedom of the press (Article III [4], Constitution) has to be taken in conjunction with Article IX (C) (4) Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all
which may be seen to be a special provision applicable during a specific limited period — i.e., "during the election period." franchises or permits for the operation of transportation and other public utilities, media of communication or information,
It is difficult to overemphasize the special importance of the rights of freedom of speech and freedom of the press in a all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality
democratic polity, in particular when they relate to the purity and integrity of the electoral process itself, the process by thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall
which the people identify those who shall have governance over them. Thus, it is frequently said that these rights are aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for
accorded a preferred status in our constitutional hierarchy. Withal, the rights of free speech and free press are not public information campaigns and forums among candidates in connection with the objective of holding free, orderly,
unlimited rights for they are not the only important and relevant values even in the most democratic of polities. In our own honest, peaceful, and credible elections. (Emphasis supplied)
society, equality of opportunity to proffer oneself for public office, without regard to the level of financial resources that one 29. CONST., art. IX-C, sec. 2 (7).
may have at one's disposal, is clearly an important value. One of the basic state policies given constitutional rank by 30. Main opinion, p. 24.
Article II, Section 26 of the Constitution is the egalitarian demand that 'the State shall guarantee equal access to 31. "The Philippines probably presents the most diverse media picture in the region, with a wide variety of broadcasters, both
opportunities for public service and prohibit political dynasties as may be defined by law.'" National Press Club v. radio and television, operating both nationally and locally. At the same time, the leading media houses are very
COMELEC, G.R. No. 102653, March 5, 1992, 207 SCRA 1, 9 [Per J. Feliciano, En Banc], with a voting of 11-3. commercialised, with ownership concentrated mainly in the hands of large companies or family businesses. There is also
16. CONST., art. IX-C, sec. 4 provides: burgeoning and essentially unregulated radio market where "block timers" purchase time to espouse their views, which
Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all has been blamed for the growing lack of public trust in the media." See T. Mendel, Audiovisual media policy, regulation
franchises or permits for the operation of transportation and other public utilities, media of communication or information, and independence in Southeast Asia <http://www.opensocietyfoundations.org/sites/default/files/audiovisual-policy-
all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality 20100212.pdf> (visited September 1, 2014).
thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall 32. Main opinion, p. 23.
aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for 33. Chavez v. Gonzales, 569 Phil. 155, 205 (2008) [Per C.J. Puno, En Banc]; See Ward v. Rock Against Racism, 491 U.S.
public information campaigns and forums among candidates in connection with the objective of holding free, orderly, 781 (1989), quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984); See also Turner Broad
honest, peaceful, and credible elections. (Emphasis supplied) System, Inc. v. Federal Communications Commission, 512 U.S. 622, 642 (1994); City of Ladue v. Gilleo, 512 U.S. 43, 54-
17. 351 Phil. 692 (1998) [Per J. Mendoza, En Banc]. 59 (1994).
18. Id. at 711, with a voting of 11-4.
19. "The fact is that efforts have been made to secure the amendment or even repeal of § 11 (b) of R.A. No. 6646. No less
than five bills were filed in the Senate in the last session of Congress for this purpose, but they all failed of passage.
Petitioners claim it was because Congress adjourned without acting on them. But that is just the point. Congress obviously
did not see it fit to act on the bills before it adjourned.
We thus have a situation in which an act of Congress was found by this Court to be valid so that those opposed to the
statute resorted to the legislative department. The latter reconsidered the question but after doing so apparently found no
reason for amending the statute and therefore did not pass any of the bills filed to amend or repeal the statute. Must this
Court now grant what Congress denied to them? The legislative silence here certainly bespeak of more than inaction."
Osmeña v. COMELEC, 351 Phil. 692, 716-717 (1998) [Per J. Mendoza, En Banc].
20. Rep. Act No. 9006 (2001).
21. Rep. Act No. 9006 (2001), sec. 14 provides:
Section 14. Repealing Clause. — Sections 67 and 85 of the Omnibus Election Code (Batas Pambansa Blg. 881)
and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed. As a consequence, the first proviso in the third
paragraph of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws, presidential decrees, executive orders,
rules and regulations, or any part thereof inconsistent with the provisions of this Act are hereby repealed or modified or
amended accordingly.
22. See Rep. Act No. 9006 (2001), sec. 6.2 (b), which provides:
Sec. 6. Equal Access to Media Time and Space. — All registered parties and bona fide candidates shall have equal
access to media time and space. The following guidelines may be amplified on by the COMELEC:
xxx xxx xxx
6.2 b. Each bona fide candidate or registered political party for a locally elective office shall be entitled to not more
than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or
donation.
23. COMELEC Resolution No. 7767 (2006), sec. 13 (1), as amended by COMELEC Resolution No. 7836 (2007).
24. COMELEC Resolution No. 8758 (2010), sec. 11 (a), provides that for candidates and registered political parties for a
national elective position, the limitations were "One hundred twenty (120) minutes in television or cable television and one
hundred eighty (180) minutes in radio, for all television or cable television networks, or all radio stations whether by
purchase or donation, wherever located, per station." The phrase "aggregate total" was introduced in COMELEC
Resolution No. 9615 (2013) questioned here, with the phrases "for all television and cable television networks, or all radio
stations" and "per station" not appearing.

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CONSTI REV – FULL TEXT
EN BANC
[G.R. No. 170256. January 25, 2010.]
ALVIN B. GARCIA, petitioner, vs. COMMISSION ON ELECTIONS and TOMAS R. OSMEÑA, respondents.
DECISION
PERALTA, J p:
This is a petition for certiorari 1 alleging that the Commission on Elections (COMELEC) en banc committed
grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the Resolutions dated April 28,
2005 and October 5, 2005 in Election Offense Case No. 04-120. In the Resolution dated April 28, 2005, the
COMELEC en banc found probable cause that petitioner Alvin B. Garcia committed an election offense and
directed the Law Department of COMELEC to file the appropriate Information against him for violation of
Section 6 of Republic Act (R.A.) No. 9006, otherwise known as the "Fair Elections Act," 2 and Section 13 of
COMELEC Resolution No. 6520, the Implementing Rules and Regulations (IRR) of R.A. No. 9006. The
Resolution dated October 5, 2005 denied petitioner's motion for reconsideration.
The facts are as follows:
On May 6, 2004, private respondent Tomas R. Osmeña, then mayoral candidate in the 2004 national and local
elections in Cebu City, filed an election offense case against his rival, petitioner Alvin B. Garcia, for the
publication of political advertisements that allegedly violated the thrice-a-week publication requirement and
failed to indicate the name and address of the party or candidate for whose benefit the advertisements were
published. He averred that the publication of the political advertisements was in violation of Sections 4 and 6
of R.A. No. 9006 3 and Sections 11 and 13 of COMELEC Resolution No. 6520. 4
In his Complaint 5 dated May 6, 2004, private respondent alleged, thus:
For the period April 26, 2004 up to May 2, 2004, or for a period of one week, respondent through his family-
owned publishing company put up political advertisements, which we can group into four basic categories,
namely, "MAYOR SA KATAWHAN," "IT'S A NO-CONTEST," "NO TO TOM TAX OSMEÑA," and "Mayor Alvin
Garcia" advertisements. 6
Private respondent averred that "MAYOR SA KATAWHAN" was published four times, that is, on April 27 and
29, 2004 and May 1 and 2, 2004, all one-half page in size, in the Sun Star tabloid. Moreover, the "IT'S A NO-
CONTEST" political advertisement was printed daily, or seven times in Sun Star, all one-half page in size, from
April 26 to May 2, 2004. The "NO TO TOM TAX OSMEÑA" advertisement appeared thrice, or on April 28 and
29, 2004 and May 1, 2004, also one-half page in size, in the same tabloid. The "Mayor Alvin Garcia"
advertisement was published once. Private respondent alleged that all the political advertisements did not
indicate the true and correct name and address of the party or candidate for whose benefit the advertisements
were published.
In his Answer, 7 petitioner denied private respondent's allegations. He contended that the political
advertisements had been made not for a single candidate, but for the entire slate of his party, Kusug-KNP
Party, consisting of 20 local candidates, plus presidential and vice-presidential candidates Fernando Poe, Jr.
and Loren Legarda, respectively. Petitioner asserted that "22 candidates x 3 a week results to 66 times a week
publication for all the candidates" of the Kusug-KNP Party. Thus, the publication of the political
advertisements, may it be seven or 15 times, was way below the allowable limit of 66 times for the 22 political
candidates of the Kusug-KNP Party. Consequently, the political advertisements in question had not exceeded
the legal limit provided by R.A. No. 9006, as implemented by COMELEC Resolution No. 6520.
Further, petitioner stated that the political advertisements in question reflected that they were really campaigns
for the benefit of the candidates of the Kusug-KNP Party, as in fact, they contained the pictures and names of
the party's political candidates. Hence, he contended that the political advertisements substantially complied
with the requirement provided by the Fair Elections Act that the advertisement shall contain the true and
correct name and address of the party or candidate for whose benefit the election propaganda was printed.
In a Resolution dated November 8, 2004, the Office of the Regional Investigation and Prosecution Committee
(Office of the Regional Director, Region VII, Cebu City) recommended the dismissal of the Complaint based on
this finding:
The respondent did not violate the thrice-a-week rule laid down by Sec. 6 of RA 9006 as implemented by Sec.
13 of Comelec Resolution 6520. As correctly pointed out by respondent, the said political advertisement is not
for the benefit or published for the respondent alone, but for the whole Kusug-KNP Party as can be gleaned
37
JULY 11, 2019
from said advertisements, thus, the whole party with twenty local candidates and the Kusog Party and its
alliance with Koalisyong Nagkakaisang Pilipino (KNP) is entitled to as much as 66 times a week for each
publication. The very purpose of the law is to provide candidates wide latitude in informing the electorate
regarding their platforms and qualifications during the campaign period.
The same can be said on the alleged violation of Sec. 4 of RA 9006 as implemented by Sec. 11 of Comelec
Resolution 6520. Although respondent's political advertisement did not literally contain the requirement of
indicating the true and correct name and address for whose benefit the election propaganda was published,
this requirement is substantially met by the respondent because it can be glean[ed] [from the] said ads for
whose benefit the same was made as shown by the pictures and names of the candidates and who paid for it.
A literal implementation of the law should not be required if the same can be met substantially and the purpose
of the law is achieve[d] and that is equal access to media is given to candidates to make known their
qualifications and stand on public issues. 8 cAHITS
In a Resolution dated April 28, 2005, the COMELEC en banc disagreed with the recommendation of the
investigating officer, thus:
We disagree. RA 9006 provides to wit:
Sec. 6. Equal Access to Media Time and Space. — All registered parties and bona fide candidates shall
have equal access to media time and space. The following guidelines may be amplified on by the COMELEC:
6.1 Print advertisements shall not exceed one-fourth (1/4) page in broadsheet and one-half (1/2) page
in tabloids thrice a week per newspaper, magazine or other publications, during the campaign period.
This is amplified by Comelec Resolution 6520, thus:
SECTION 13. Requirements and/or Limitations on the Use of Election Propaganda through Mass
Media. — All registered political parties, party-list groups, organizations, and/or coalitions thereof, and bona
fide candidates shall have equal access to media time and space for their election propaganda during the
campaign period subject to the following requirements and/or limitations:
xxx xxx xxx
2. Printed or Published Election Propaganda DHITCc
The maximum size of print advertisements for each candidate, whether for a national or local elective position,
or registered political party, party-list group, organization, and/or coalition thereof, shall be, as follows:
a. One fourth (1/4) page — in broadsheets; and
b. One half (1/2) page — in tabloids
Said print advertisements, whether procured by purchase, or given free of charge, shall be published thrice a
week per newspaper, magazine or other publications during the campaign period. (emphasis supplied)
Insofar as the political propaganda, "it's a no-contest," is concerned, respondent does not deny that the same
was published in Sun Star for seven (7) consecutive times — from 26 April 2004 to 02 May 2004 — or for a
period of one week, straight. An inspection of the said advertisement reveals that it refers only to respondent;
there is no mention of his political party or party-mates, making it clear that it was his advertisement alone.
The computation thus made by respondent and so adopted by the investigating officer, assuming this to be
true and valid, would not and cannot apply in this instance. The provisions of law violated need no further
interpretation as they are very plain and unambiguous.
That other candidates are claimed to have committed the same violation does not excuse herein respondent
nor does it remove from this Commission the authority and power to prosecute the same. In fact, it compels
Us to be even more vigorous and relentless in pursuing Our duties. In this regard, there shall be no sacred
cows. 9
The dispositive portion of the Resolution reads:
CONSIDERING that there exists PROBABLE CAUSE, the Law Department is hereby DIRECTED to file the
appropriate information against respondent Alvin B. Garcia for violation of Section 6 of RA 9006, and Section
13 of COMELEC Resolution No. 6520, in relation to Section 264 of the Omnibus Election Code, as amended.
10
Petitioner filed a Motion for Reconsideration 11 and, thereafter, a Supplemental Motion for Reconsideration 12
of the Resolution, contending that there was lack of probable cause to hold him liable for an election offense in
CONSTI REV – FULL TEXT
violation of R.A. No. 9006 and its IRR, because he was neither the author of the questioned advertisement nor
the one who caused its publication. He stated that Orlando P. Carvajal, the General Manager of Sun Star
Publishing, Inc., attested in an Affidavit dated May 23, 2005 that an organization named Friends of Alvin
Garcia caused the publication of the said advertisement.
Petitioner contended that since he did not cause the publication of the advertisement in question, and absent
any competent proof against him, there was no probable cause warranting the filing of an Information against
him for violation of R.A. No. 9006, as implemented by COMELEC Resolution No. 6520.
In a Resolution 13 dated October 5, 2005, the COMELEC en banc denied the motion for reconsideration for
lack of merit.
On October 13, 2006, the COMELEC Law Department directed Atty. Manuel T. Advincula, Acting Regional
Election Director of Region VII, to file the Information entitled People of the Philippines v. Alvin B. Garcia with
the proper Regional Trial Court (RTC) of Cebu.
Petitioner filed an Urgent Motion to Withhold Issuance of Warrant of Arrest and for Judicial Determination of
Probable Cause with the RTC of Cebu City, Branch 12, on the following grounds:
1. The filing of the information by the COMELEC is premature considering that there is a pending
petition for certiorari before the Supreme Court questioning the resolution of the COMELEC over the subject
matter; and
2. There is lack of probable cause to subject the accused to a criminal prosecution. 14
On December 21, 2006, the RTC OF Cebu City, Branch 12, issued an Order the dispositive portion of which
reads:
IN VIEW OF ALL THE FOREGOING, the determination of probable cause is hereby deferred until after
resolution of the petition for certiorari pending with the Supreme Court. Accordingly, the issuance of a warrant
of arrest is held in abeyance. 15 DHETIS
Meantime, on November 18, 2005, petitioner filed this petition, raising the following issues:
I the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe or entertain an
THE RESPONDENT COMELEC COMMITTED ERROR AMOUNTING TO GRAVE ABUSE OF DISCRETION
IN RULING THAT THERE EXISTS A PROBABLE CAUSE TO SUBJECT THE PETITIONER TO A CRIMINAL
PROSECUTION AS THE POLITICAL ADVERTISEMENT IN QUESTION DID NOT EXCEED THE ALLOWED
FREQUENCY OF PUBLICATION.
II
THE RESPONDENT COMELEC COMMITTED ERROR AMOUNTING TO GRAVE ABUSE OF DISCRETION
IN RULING THAT THERE EXISTS A PROBABLE CAUSE TO SUBJECT THE PETITIONER TO A CRIMINAL
PROSECUTION DESPITE THE PRESENCE OF EVIDENCE THAT THE PETITIONER DID NOT CAUSE THE
PUBLICATION OF THE POLITICAL ADVERTISEMENT IN QUESTION. 16
Before this Court, petitioner reiterates that the "IT'S NO CONTEST" political advertisement was attributable
not only to him but to the complete line-up of candidates of Kusug-KNP Party for local elective positions,
numbering 20 candidates. The party's alliance with the KNP, a national party that carried the late Fernando
Poe, Jr. for President and former Senator Loren Legarda for Vice-president, brought the total number of
candidates advertised in the political advertisement to 22, excluding the senatorial line-up. AaSTIH
Petitioner contends that 22 candidates multiplied by three publications per week equals an allowable
publication of 66 times a week for all candidates of the Kusug-KNP Party. Petitioner asserts that the Special
Regional Investigation and Prosecution Committee, therefore, did not err in recommending the dismissal of the
Complaint, as the pertinent advertisement did not violate the thrice-a-week rule laid down by Section 6 of R.A.
No. 9006, as implemented by Section 13 of COMELEC Resolution No. 6520.
Further, petitioner argues that there is no probable cause that he violated Section 11 of COMELEC Resolution
No. 6520, because he did not author or cause the publication of the advertisement in question. The affidavit
executed by the General Manager of Sun Star Publishing, Inc. stated that the organization named Friends of
Alvin Garcia paid for the "IT'S A NO-CONTEST" political advertisement for the period April 26, 2004 to May 2,
2004.
38
JULY 11, 2019
Petitioner admits that he and his family own stocks in Sun Star Publishing, Inc. He claims, however, that Sun
Star is independently operated by its News, Editorial and Marketing Departments, and Sun Star Daily prides
itself with catering to no other interest but to that of the general public, and is not beholden to the corporation's
stockholders and their relatives.
Petitioner asserts that probable cause presupposes the introduction of competent proof that the party against
whom it is sought has performed particular acts or committed specific omissions, violating a given provision of
our criminal laws.
According to petitioner, private respondent did not offer any competent proof that he (petitioner) was the
author of the said political advertisement or caused the publication of the same, but offered merely the
publication of the advertisement in question.
Petitioner submits that having established that he was neither the author of the political advertisement in
question nor the one who caused its publication, there is no probable cause warranting the filing of the
Information against him for violation of R.A. No. 2006, as implemented by COMELEC Resolution No. 6520.
Thus, the COMELEC en banc committed grave abuse of discretion amounting to lack of jurisdiction in issuing
the Resolutions dated April 28, 2005 and October 5, 2005.
The Court is not persuaded.
Paragraph 6, Section 2, Article IX of the Constitution empowers the COMELEC to "investigate and, where
appropriate, prosecute cases for violation of election laws, including acts or omissions constituting election
frauds, offenses and malpractices." This prosecutorial power of the COMELEC is reflected in Section 265 of
Batas Pambansa Bilang 881, 17 otherwise known as the Omnibus Election Code.
It is well settled that the finding of probable cause in the prosecution of election offenses rests in the
COMELEC's sound discretion. 18
Baytan v. Commission on Elections 19 defines probable cause, thus:
. . . By definition, probable cause is —
. . . a reasonable ground of presumption that a matter is, or may be, well founded . . . such a state of facts in
honest or strong suspicion that a thing is so. The term does not mean 'actual or positive cause' nor does it
import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable
cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough
that it is believed that the act or omission complained of constitutes the offense charged. Precisely, there is a
trial for the reception of evidence of the prosecution in support of the charge.
Generally, the Court will not interfere with the finding of probable cause by the COMELEC absent a clear
showing of grave abuse of discretion. 20 This principle emanates from the COMELEC's exclusive power to
conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute
the same, except as may otherwise be provided by law. 21
Section 4 of R.A. No. 9006 provides for the requirements for published or printed election propaganda, thus:
HTASIa
Sec. 4. Requirements for Published or Printed and Broadcast Election Propaganda. — 4.1. Any
newspaper . . . or any published or printed political matter and any broadcast of election propaganda by
television or radio for or against a candidate or group of candidates to any public office shall bear and be
identified by the reasonably legible or audible words "political advertisement paid for," followed by the true and
correct name and address of the candidate or party for whose benefit the election propaganda was printed or
aired.
xxx xxx xxx
4.3. Print, broadcast or outdoor advertisements donated to the candidate or political party shall not be
printed, published, broadcast or exhibited without the written acceptance by the said candidate or political
party. Such written acceptance shall be attached to the advertising contract and shall be submitted to the
COMELEC as provided in Subsection 6.3 hereof. (Emphasis supplied.)
Paragraphs 4.1 and 4.3, Section 4 of R.A. No. 9006 are reflected in Section 13 (3) and Section 14 of
COMELEC Resolution No. 6520. 22
CONSTI REV – FULL TEXT JULY 11, 2019

To emphasize, Section 4 of R.A. No. 9006 requires that print advertisements donated to a candidate shall not SECTION 13. Requirements and/or Limitations on the Use of Election Propaganda through Mass Media. — All registered
be published without the written acceptance of the said candidate, which written acceptance shall be attached political parties, party-list groups, organizations, and/or coalitions thereof, and bona fide candidates shall have equal
access to media time and space for their election propaganda during the campaign period subject to the following
to the advertising contract and submitted to the COMELEC. cTADCH
requirements and/or limitations:
The requirement for a written acceptance by a candidate of donated advertisements is a safeguard provided xxx xxx xxx
2. Printed or Published Election Propaganda
by law against the danger of publishing or broadcasting election propaganda beyond the required frequency, The maximum size of print advertisements for each candidate, whether for a national or local elective position, or
size and other limitations imposed by law without the candidate's express agreement, since the violation of registered political party, party-list group, organization, and/or coalition thereof, shall be, as follows:
such requirements results in the prosecution of the candidate for an election offense punishable under the first a. One fourth (1/4) page - in broadsheets; and
and second paragraphs of Section 264 of the Omnibus Election Code. 23 Under Section 264 of the Omnibus b. One half (1/2) page - in tabloids
Election Code, a person found guilty of an election offense "shall be punished with imprisonment of not less Said print advertisements, whether procured by purchase, or given free of charge, shall be published thrice a week per
than one year but not more than six years and shall not be subject to probation." In addition, "the guilty party newspaper, magazine or other publications during the campaign period.
5. Rollo, pp. 38-43.
shall be sentenced to suffer disqualification to hold public office and deprivation of the right of suffrage." 6. Id. at 39.
7. Id. at 44-51.
In this case, the COMELEC did not question petitioner's averment that the advertisement in question was paid
8. COMELEC Resolution dated April 28, 2005, records, pp. 26-27.
for by the organization named Friends of Alvin Garcia. The advertisement may be considered as a donation to 9. Rollo, pp. 27-28.
petitioner under Section 4 of R.A. No. 9006 and its IRR. Paragraph 4.3, Section 4 of R.A. No. 9006 explicitly 10. Id. at 28.
requires that "print . . . advertisements donated to the candidate or political party shall not be printed, 11. Id. at 52-61.
published . . . without the written acceptance by the said candidate." 24 Since the advertisement in question 12. Id. at 62-64.
was published by the Sun Star, there arises a presumption that there was written acceptance by petitioner of 13. Id. at 31-37.
14. RTC Order dated December 21, 2006, rollo, pp. 93-96.
the advertisement paid for or donated by his friends in the absence of evidence to the contrary. Under the
15. Id. at 96.
Rules on Evidence, it is presumed that the law has been obeyed, and that private transactions have been fair 16. Rollo, p. 9.
and regular. 25 17. SEC. 265. Prosecution. — The Commission shall, through its duly authorized legal officers, have the exclusive power to
conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The
Following the general rule, the Court will not interfere with the finding of probable cause by the COMELEC, Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, that in the
absent a clear showing of grave abuse of discretion that must be so patent and gross as to amount to an event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the
evasion or refusal to perform a duty enjoined by law or to act in contemplation of law, as where the power is complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted.
exercised in an arbitrary and despotic manner by reason of passion or hostility. 26 18. Romualdez v. Commission on Elections, G.R. No. 167011, April 30, 2008, 553 SCRA 370, citing Baytan v. Commission on
Elections, 396 SCRA 703 (2003).
The records show that the COMELEC has filed an Information charging petitioner with violation of Section 6 of 19. Supra, at 709.
R.A. No. 9006 and its IRR with the RTC of Cebu City, Branch 12, which has thereby acquired jurisdiction over 20. Id.
the case. Consequently, all the subsequent dispositions of the said case must be subject to the approval of the 21. Id.
22. Section 13. Requirements and/or Limitations on the Use of Election Propaganda through Mass Media. — All registered
court. Hence, the case must be allowed to take its due course. 27 political parties, party-list groups, organizations, and/or coalitions thereof, and bona fide candidates shall have equal
access to media time and space for their election propaganda during the campaign period subject to the following
WHEREFORE, the petition for certiorari is hereby DISMISSED. The Resolutions of the COMELEC en banc
requirements and/or limitations:
dated April 28, 2005 and October 5, 2005 are AFFIRMED. xxx xxx xxx
3. Common requirements limitations
No costs. a) Any printed or published, and broadcast election propaganda for or against a candidate or group of candidates to
SO ORDERED. any public office shall bear and be identified by the reasonably legible or audible words "political advertisement paid for,"
followed by the true and correct name and address of the candidate or party for whose benefit the election propaganda
Puno, C.J., Carpio, Carpio Morales, Velasco, Jr., Nachura, Leonardo-de Castro, Brion, Bersamin, Del Castillo, Abad, Villarama, was printed or aired;
Jr., and Perez, JJ., concur. xxx xxx xxx
Corona, J., took no part. Section 14. Print, broadcast or outdoor advertisements or election propaganda donated to a candidate, political party, or
Mendoza, J., is on leave. party-list group, organization, and/or coalition thereof shall not be printed, published, broadcast, or exhibited, unless it is
accompanied by the written acceptance by said candidate, political party, or party-list group, organization, and/or coalition
Footnotes thereof.
Such written acceptance shall be attached to the advertising contract and shall be submitted to the Commission, through
1. Under Rule 64 in relation to Rule 65 of the Rules of Court. the City/Municipal Election Officer (EO) concerned, or in the case of the National Capital Region (NCR), the Education
2. R.A. No. 9006 took effect on February 12, 2001. and Information Department.
3. SEC. 4. Requirements for Published or Printed and Broadcast Election Propaganda. — . . . 4.1. Any newspaper, 23. R.A. No. 9006, Sec. 13. Authority of the COMELEC to Promulgate Rules; Election Offenses. —
newsletter, newsweekly, gazette or magazine advertising, posters, pamphlets, comic books, circulars, handbills, bumper xxx xxx xxx
stickers, streamers, simple list of candidates or any published or printed political matter and any broadcast of election Violation of this Act and the rules and regulations of the COMELEC issued to implement this Act shall be an election
propaganda by television or radio for or against a candidate or group of candidates to any public office shall bear and be offense punishable under the first and second paragraphs of Section 264 of the Omnibus Election Code (Batas Pambansa
identified by the reasonably legible or audible words "political advertisement paid for," followed by the true and correct Blg. 881).
name and address of the candidate or party for whose benefit the election propaganda was printed or aired. 24. Emphasis supplied.
SEC. 6. Equal Access to Media Time and Space. — All registered parties and bona fide candidates shall have equal 25. Sec. 3 (p), (ff), Rule 131 (Burden of Proof and Presumptions), Rules on Evidence, Rules of Court.
access to media time and space. The following guidelines may be amplified on by the COMELEC: 26. Romualdez v. Commission on Elections, supra note 18.
6.1 Print advertisements shall not exceed one-fourth (1 /4) page in broadsheet and one-half (1/2) page in tabloids thrice a 27. Id.
week per newspaper, magazine or other publications, during the campaign period.
4. SECTION 11. Prohibited Forms of Election Propaganda. — During the campaign period, it is unlawful:
1. To print, publish, post or distribute any newspaper, newsletter, newsweekly, gazette or magazine advertising, pamphlet,
leaflet, card, decal, bumper sticker, poster, comic book, circular, handbill, streamer, simple list of candidates or any
published or printed political matter and to air or broadcast any election propaganda by television or radio for or against a
candidate or group of candidates to any public office, unless they bear and be identified by the simple legible, or audible
words "political advertisements paid for," followed by the true and correct name and address of the candidate, political
party, or party list group, organization, and/or coalition thereof for whose benefit the election propaganda was printed or
aired.
xxx xxx xxx

39
CONSTI REV – FULL TEXT JULY 11, 2019

EN BANC b. For other candidates without any political party and without any support from any political party —
Five pesos (P5.00) for every voter currently registered in the constituency where the candidate filed his
[G.R. No. 212398. November 25, 2014.] certificate of candidacy.
EMILIO RAMON "E.R." P. EJERCITO, petitioner, vs. HON. COMMISSION ON ELECTIONS and EDGAR c. For Political Parties and party-list groups — Five pesos (P5.00) for every voter currently registered
"EGAY" S. SAN LUIS, respondents. in the constituency or constituencies where it has official candidates. (underscoring mine for emphasis)
DECISION 11. Accordingly, a candidate for the position of Provincial Governor of Laguna is only authorized to
PERALTA, J p: incur an election expense amounting to FOUR MILLION FIVE HUNDRED SEVENTY-SIX THOUSAND FIVE
HUNDRED SIXTY-SIX (P4,576,566.00) PESOS.
Contested in this petition for certiorari under Rule 64, in relation to Rule 65 of the Rules of Court (Rules), is the
May 21, 2014 Resolution 1 of the Commission on Elections (COMELEC) En Banc in SPA No. 13-306 (DC), 12. However, in total disregard and violation of the afore-quoted provision of law, [Ejercito] exceeded
which affirmed the September 26, 2013 Resolution 2 of the COMELEC First Division granting the petition for his expenditures in relation to his campaign for the 2013 election. For television campaign commercials alone,
disqualification filed by private respondent Edgar "Egay" S. San Luis (San Luis) against petitioner Emilio [Ejercito] already spent the sum of PhP23,730.784 based on our party's official monitoring on the following
Ramon "E.R." P. Ejercito (Ejercito). dates[:] April 28, May 4 & May 5, 2013.
Network Date Program Time Duration Amount*
Three days prior to the May 13, 2013 National and Local Elections, a petition for disqualification was filed by
ABS-CBN April 28, 2013 TV Patrol 5:58 p.m. 4 minutes P3,297,496
San Luis before the Office of the COMELEC Clerk in Manila against Ejercito, who was a fellow gubernatorial (approximately)
candidate and, at the time, the incumbent Governor of the Province of Laguna. 3 Alleged in his Petition are as ABS-CBN April 28, 2013 Sundays Best 10:40 p.m. 4 minutes P3,297,496
follows: (local specials) (approximately)
GMA April 28, 2013 Sunday Night 10:46 p.m. 3 minutes P2,635,200
FIRST CAUSE OF ACTION Box Office (approximately)
GMA April 28, 2013 Sunday Night 11:06 p.m. 4 minutes P2,635,200
5. [Ejercito], during the campaign period for 2013 local election, distributed to the electorates of the Box Office (approximately)
province of Laguna the so-called "Orange Card" with an intent to influence, induce or corrupt the voters in GMA April 28, 2013 Sunday Night 11:18 p.m. 4 minutes P2,635,200
voting for his favor. Copy thereof is hereto attached and marked as Annex "C" and made as an integral part Box Office (approximately)
hereof; GMA April 28, 2013 Sunday Night 11:47 p.m. 4 minutes P2,635,200
Box Office (approximately)
6. In furtherance of his candidacy for the position of Provincial Governor of Laguna, [Ejercito] and his ABS-CBN May 4, 2013 T ODA MAX 11:26 p.m. 4 minutes P3,297,496
cohorts claimed that the said "Orange Card" could be used in any public hospital within the Province of (approximately)
ABS-CBN May 5, 2013 Rated K 8:06 p.m. 4 minutes P3,297,496
Laguna for their medical needs as declared by the statements of witnesses which are hereto attached and
(approximately)
marked as Annex "D" as integral part hereof; –––––––––––
Total P23,730,784
7. The so-called "Orange Card" is considered a material consideration in convincing the voters to ==========
cast their votes for [Ejercito's] favor in clear violation of the provision of the Omnibus Election Code which * Total cost based on published rate card;
provides and I quote:
13. Even assuming that [Ejercito] was given 30% discount as prescribed under the Fair Election Act,
"Sec. 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is declared by he still exceeded in the total allowable expenditures for which he paid the sum of P16,611,549;
final decision by a competent court guilty of, or found by the Commission of having (a) given money or other
material consideration to influence, induce or corrupt the voters or public officials performing electoral 14. In view of the foregoing disquisitions, it is evident that [Ejercito] committed an election offense as
functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an provided for under Section 35 of COMELEC Resolution No. 9615, which provides and I quote:
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, "Election Offense. — Any violation of R.A. No. 9006 and these Rules shall constitute an election offense
e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, punishable under the first and second paragraph of Section 264 of the Omnibus Election Code in addition to
from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall administrative liability, whenever applicable. . . ."
not be qualified to run for any elective office under this Code, unless said person has waived his status as 15. Moreover, it is crystal clear that [Ejercito] violated Sec. 68 of the Omnibus Election Code which
permanent resident or immigrant of a foreign country in accordance with the residence requirement provided provides and I quote:
for in the election laws." (emphasis ours)
"Sec. 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is declared by
8. Thus, pursuant to the mandate of the aforesaid law, [Ejercito] should be disqualified; final decision by a competent court guilty of, or found by the Commission of having (a) given money or other
SECOND CAUSE OF ACTION 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
9. Based on the records of the Provincial COMELEC, the Province of Laguna has a total of 1,525,522 amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited
registered electorate. A certification issued by the Provincial Election Supervisor is hereto attached and under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86, and 261, paragraphs d,
marked as Annex "E" as an integral part hereof; 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
10. In this regard, par. (a), Section 5 of COMELEC Resolution No. 9615, otherwise known as the not be qualified to run for any elective office under this Code, unless said person has waived his status as
Rules and Regulations Implementing FAIR ELECTION ACT provides and I quote: permanent resident or immigrant of a foreign country in accordance with the residence requirement provided
"Authorized Expenses of Candidates and Parties. — The aggregate amount that a candidate or party may for in the election laws." (emphasis ours)
spent for election campaign shall be as follows: 16. On the other hand, the effect of disqualification is provided under Sec. 6 of Republic Act No. 6646,
a. For candidates — Three pesos (P3.00) for every voter currently registered in the constituency which states and I quote:
where the candidate filed his certificate of candidacy. "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

40
CONSTI REV – FULL TEXT
declared by final judgment before an election to be disqualified and he is voted for and receives the winning
number of votes in such election, the Court or Commission shall continue with the trial and hearing of the
action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate whenever the evidence of [his] guilt is
strong." (emphasis mine)
PRAYER
WHEREFORE, premises considered, it is respectfully prayed that:
1. Upon filing of this petition, a declaration by the Honorable Commission of the existence of probable
cause be made against [Ejercito] for violating the afore-quoted provisions of laws;
2. In the event that [Ejercito] will be able to get a majority vote of the electorate of the Province of
Laguna on May 13, 2013, his proclamation be suspended until further order of the Honorable Commission
pursuant to Sec. 6 of Republic Act No. 6646;
3. Lastly, a criminal case for VIOLATION OF ELECTION LAWS be filed against [Ejercito] before the
proper court[;] [and]
4. Other relief, just and equitable under the premises, are also prayed for. 4
Subsequently, on May 16, 2013, San Luis filed a Very Urgent Ex-Parte Motion to Issue Suspension of Possible
Proclamation of Respondent and Supplemental to the Very Urgent Ex-Parte Motion to Issue Suspension of
Possible Proclamation of Respondent. 5 However, these were not acted upon by the COMELEC. The next
day, Ejercito and Ramil L. Hernandez were proclaimed by the Provincial Board of Canvassers as the duly-
elected Governor and Vice-Governor, respectively, of Laguna. 6 Based on the Provincial/District Certificate of
Canvass, Ejercito obtained 549,310 votes compared with San Luis' 471,209 votes. 7
The COMELEC First Division issued a Summons with Notice of Conference on June 4, 2013. 8 Ejercito then
filed his Verified Answer on June 13, 2013 that prayed for the dismissal of the petition due to procedural and
substantive irregularities and taking into account his proclamation as Provincial Governor. 9 He countered that
the petition was improperly filed because, based on the averments and relief prayed for, it is in reality a
complaint for election offenses; thus, the case should have been filed before the COMELEC Law Department,
or the election registrar, provincial election supervisor or regional election director, or the state, provincial or
city prosecutor in accordance with Laurel v. Presiding Judge, RTC, Manila, Br. 10. 10 Assuming that the
petition could be given due course, Ejercito argued that San Luis failed to show, conformably with Codilla, Sr.
v. Hon. De Venecia, 11 that he (Ejercito) was previously convicted or declared by final judgment of a
competent court for being guilty of, or found by the COMELEC of having committed, the punishable acts under
Section 68 of Batas Pambansa (B.P.) Bilang 881, or the Omnibus Election Code of the Philippines, as
amended (OEC). 12
As to the acts he allegedly committed, Ejercito claimed that the same are baseless, unfounded, and totally
speculative. He stated that the Health Access Program or the E.R. "Orange Card" was a priority project of his
administration as incumbent Governor of Laguna and was never intended to influence the electorate during
the May 2013 elections. He added that the "Orange Card," which addressed the increasing need for and the
high cost of quality health services, provides the Laguneños not only access to medical services but also the
privilege to avail free livelihood seminars to help them find alternative sources of income. With respect to the
charge of having exceeded the total allowable election expenditures, Ejercito submitted that the accusation
deserves no consideration for being speculative, self-serving, and uncorroborated by any other substantial
evidence.
Citing Sinaca v. Mula, 13 Ejercito asserted that the petition questioning his qualification was rendered moot
and academic by his proclamation as the duly-elected Provincial Governor of Laguna for the term 2013-2016.
He perceived that his successful electoral bid substantiates the fact that he was an eligible candidate and that
his victory is a testament that he is more than qualified and competent to hold public office.
Lastly, Ejercito considered San Luis' petition for disqualification as purely frivolous and with no plain and clear
purpose but to harass and cause undue hardship. According to him, the fact that it was filed only a few days
before the May 13, 2013 elections evidently shows that it was lodged as a last-ditch effort to baselessly derail
and obstruct his assumption of office and function as the duly-elected Laguna Governor.
The scheduled case conference between the parties on June 13, 2013 was reset to June 27, 2013. 14 In the
latter date, all the documentary exhibits were marked in evidence and the parties agreed to file their respective
memorandum within ten (10) days. 15
41
JULY 11, 2019
San Luis substantially reiterated the content of the Petition in his Memorandum. 16 Additionally, he alleged
that:
15. After the election, [San Luis] was able to secure documents from the Information and Education
Department of the Commission on Elections showing that [Ejercito] have incurred advertising expenses with
ABS-CBN in the amount of [P20,197,170.25] not to mention his advertisement with GMA 7. Copies of the
summary report, media purchase order, advertising contract[,] and official receipt are marked as EXHS. "B-1",
"B-2", "B-3", and "B-4" (Annexes "A", "B", "C", and "D", supplemental to the very urgent ex-parte motion)[.] 17
It was stressed that the case is a "Special Action for Disqualification" seeking to disqualify Ejercito as
gubernatorial candidate for violation of Section 68 (a) (c) of the OEC. He prayed that "[t]he Petition BE
GRANTED [and] . . . [Ejercito] BE DISQUALIFIED, and PREVENTED from further holding office as Governor
of Laguna." 18 In refutation of Ejercito's defenses, San Luis argued that it is precisely because of the
commission of the election offenses under Section 68 of the OEC that he (Ejercito) should be disqualified.
Also, citing Section 6 of Republic Act (R.A.) No. 6646, 19 San Luis contended that Ejercito's proclamation and
assumption of office do not affect the COMELEC's jurisdiction to continue with the trial and hearing of the
action until it is finally resolved.
For his part, Ejercito filed a Manifestation (In Lieu of Memorandum) 20 restating all the arguments set forth in
his Verified Answer.
On September 26, 2013, the COMELEC First Division promulgated a Resolution, the dispositive portion of
which reads:
WHEREFORE, premises considered, the Commission (First Division) RESOLVED, as it hereby RESOLVES,
to:
(1) GRANT the Petition for Disqualification filed against respondent Emilio Ramon "E.R." P. Ejercito;
(2) DISQUALIFY respondent Ejercito from holding the Office of the Provincial Governor of Laguna,
pursuant to Section 68 of the Omnibus Election Code;
(3) ORDER respondent Ejercito to CEASE and DESIST from performing the functions of the Office of
the Provincial Governor of Laguna;
(4) DECLARE a permanent VACANCY in the Office of the Provincial Governor of Laguna;
(5) DIRECT the duly elected Vice Governor of Laguna to assume the Office of the Provincial Governor
by virtue of succession as provided in Section 44 of the Local Government Code; and
(6) DIRECT the Campaign Finance Unit to coordinate with the Law Department of this Commission for
the conduct of a preliminary investigation into the alleged violations of campaign finance laws, rules and
regulations committed by respondent Ejercito.
SO ORDERED. 21
On procedural matters, the COMELEC First Division held that the title of San Luis' petition and its reliance on
Section 68 (a) (c) of the OEC as grounds for his causes of action clearly show that the case was brought
under Rule 25 of the COMELEC Rules of Procedure, 22 as amended by COMELEC Resolution No. 9523, 23
which allows petitions for disqualification to be filed "any day after the last day for filing of certificates of
candidacy, but not later than the date of proclamation." No credence was given to Ejercito's contention that the
petition was mooted by his proclamation as Governor of Laguna. The COMELEC First Division opined that the
case of Sinaca is inapplicable, because it was not about Sinaca's eligibility or whether he committed any of the
acts enumerated in Section 68 of the OEC. Consistent with Maquiling v. Commission on Elections, 24 it was
declared that Ejercito's garnering of more votes than San Luis in the May 2013 elections is not tantamount to
condonation of any act or acts that he committed which may be found to be a ground for disqualification or
election offense.
The COMELEC First Division settled the substantive issues put forth in the petition for disqualification in this
wise:
Anent [San Luis'] first cause of action, [San Luis] presented the Sworn Statement dated [May 7, 2013] of a
certain Mrs. Daisy A. Cornelio, together with the "Orange Card" issued to Mrs. Cornelio, marked respectively
as Exhibits "A-4" and "A-3" as per [San Luis'] Summary of Exhibits — to prove that [Ejercito] committed the act
described in Section 68(a) of the OEC. After reviewing Mrs. Cornelio's Sworn Statement, we do not find any
averment to the effect that the Orange Card was given to the affiant to influence or induce her to vote for
[Ejercito]. Affiant only stated that she was given the Orange Card "last April of this year" and that she was "not
CONSTI REV – FULL TEXT JULY 11, 2019

able to use it during those times when [she] or one of [her] family members got sick and needed hospital This matches the data gathered by the Commission's EID from the reports and logs submitted by broadcast
assistance." Aside from Mrs. Cornelio's Sworn Statement, there is no other evidence to support [San Luis'] stations as required by the Fair Election Act. According to the 99-page Daily Operations Log for Channel 2
claim, leading us to reject [San Luis'] first cause of action. submitted by ABS-CBN covering the period of [April 27, 2013] to [May 11, 2013], [Ejercito's] 3.5-minute or 210-
second advertisement was aired seven (7) times. The specific details on the dates of airing, program or time
With respect to the second cause of action, [San Luis] presented Exhibits "B-1" to "B-4", which are slot when the advertisements were aired, and the time when the advertisements as culled from the 99-page
submissions made by the ABS-CBN Corporation as mandated by Section 6 of Republic Act No. 9006 ("RA Daily Operations Log are summarized as thus:
9006" or the "Fair Election Act"), implemented through Section 9(a) of Resolution No. 9615. Exhibit "B-3" is an
Advertising Contract between ABS-CBN Corporation and Scenema Concept International, Inc. ("SCI"). The Date aired Program/Time Slot Airtime
details of the Contract are as follows:
28 Apr 2013 TV Patrol Linggo/5:20-5:30 pm 05:54:40 PM
Payor/Advertiser Scenema Concept International, Inc.
28 Apr 2013 Harapan Senatorial Debate/9:30-11:30 pm 10:40:13 PM
Beneficiary Jeorge "ER" Ejercito Estregan
04 May 2013 TODA MAX/10:30-11:15 pm 11:26:43 PM
Broadcast Schedule April 27, 28, May 3, 4, 10 & 11, 2013
05 May 2013 Rated K-Handa Na Ba Kayo/7:15-8:15 pm 08:06:42 PM
Number of Spots 6 spots of 3.5 minutes each
09 May 2013 TV Patrol/6:30-7:45 pm 07:35:56 PM
Unit Cost per Spot PhP3,366,195.04
10 May 2013 TV Patrol/6:30-7:45 pm 07:44:50 PM
–––––––––––––––––––––––
11 May 2013 TV Patrol Sabado/5:30-6:00 pm 06:12:30 PM
Total Cost of Contract PhP20,197,170.25 plus VAT
Source: Pages 6, 8, 43, 47, 75, 84, and 93 of ABS-CBN Channel 2 Daily
=====================
Operations Log for [April 27, 2013] to [May 11, 2013].
The Contract contains the signature of [Ejercito] signifying his acceptance of the donation by SCI, the latter
represented by its Executive Vice President, Ms. Maylyn Enriquez. In addition to the advertising contract, Assuming arguendo, that the actual cost of both contracts only amounted to PhP12,818,470.56 as
Exhibit "B-4" was submitted, which is a photocopy of an Official Receipt issued by ABS-CBN for the contract, substantiated by the two (2) Official Receipts issued by the ABS-CBN on [April 26] and [May 7, 2013], or even
with the following details: if we were only to consider Exhibit ["B-4"] or the Php6,409,235.28 payment to ABS-CBN on [April 26, 2013], it
nevertheless supports our finding that [Ejercito] exceeded his authorized expenditure limit of PhP4,576,566.00
Date of the Receipt [April 26, 2013] which is a ground for disqualification under Section 68(c) and concurrently an election offense pursuant to
Section 100 in relation to Section 262 of the Omnibus Election Code. 25
Received From Scenema Concept International, Inc.
Only Ejercito filed a Verified Motion for Reconsideration before the COMELEC En Banc. 26 After the parties'
Amount Received PhP6,409,235.28 exchange of pleadings, 27 the Resolution of the COMELEC First Division was unanimously affirmed on May
Official Receipt No. 278499 21, 2014.

Upon verification of the submitted Exhibits "B-1" to "B-4" with this Commission's Education and Information The COMELEC En Banc agreed with the findings of its First Division that San Luis' petition is an action to
Department (EID), the latter having custody of all advertising contracts submitted by broadcast stations and disqualify Ejercito, reasoning that:
entities in relation to the [May 13, 2013] National and Local Elections, we find the said Exhibits to be faithful . . . First, the title of the petition indicating that it is a petition for disqualification clearly expresses the objective
reproductions of our file copy of the same. A comparison of [Ejercito's] signature on the Advertising Contract of the action. Second, it is manifest from the language of the petition that the causes of action have relied
and that on his Certificate of Candidacy show them to be identical to each other, leading us to the conclusion primarily on Section 68(a) and (c) of the OEC[,] which are grounds for disqualification . . . . Third,
that [Ejercito] had indeed accepted the PhP20,197,170.25 donation in the form of television advertisements to notwithstanding that the relief portion of the petition sounded vague in its prayer for the disqualification of
be aired on ABS-CBN's Channel 2. Even if we were to assume that only PhP6,409,235.28 was actually paid Ejercito, the allegations and arguments set forth therein are obviously geared towards seeking his
out of PhP20,197,170.25 advertising contract, this amount is still more than PhP4,576,566.00, which is disqualification for having committed acts listed as grounds for disqualification in Section 68 of OEC. Lastly, as
[Ejercito's] total authorized aggregate amount allowed for his election campaign, computed as follows: correctly observed by the COMELEC First Division, San Luis' Memorandum addresses and clarifies the
Number of registered Authorized expense Total amount of intention of the petition when it prayed for Ejercito to "be disqualified and prevented from holding office as
Governor of Laguna." While there is a prayer seeking that Ejercito be held accountable for having committed
voters for the whole x per voter registered = spending allowed election offenses, there can be no doubt that the petition was primarily for his disqualification.
Province of Laguna in the constituency for election campaign Section 68 of the OEC expressly grants COMELEC the power to take cognizance of an action or protest
seeking the disqualification of a candidate who has committed any of the acts listed therein from continuing as
1,525,522 registered x PhP3.00 per voter = PhP4,576,566.00
one, or if he or she has been elected, from holding office. One ground for disqualification listed in Section 68 is
voters in Laguna spending in an election campaign an amount in excess of that allowed by law. It is exactly on said ground that
San Luis is seeking the disqualification of Ejercito. The jurisdiction of COMELEC over the petition, therefore, is
While not presented as evidence in this case, we cannot deny the existence of another Advertising Contract clear. 28
dated [May 8, 2013] for one (1) spot of a 3.5-minute advertisement scheduled for broadcast on [May 9, 2013],
amounting to PhP3,366,195.05. This Contract also contains the signature of [Ejercito] accepting the donation The alleged violation of Ejercito's constitutional right to due process was also not sustained:
from SCI and is accompanied by an ABS-CBN-issued Official Receipt No. 279513 dated [May 7, 2013] in
Ejercito insists that he was deprived of his right to notice and hearing and was not informed of the true nature
SCI's name for PhP6,409,235.28. If we add the amounts from both contracts, we arrive at a total cost of
of the case filed against him when San Luis was allegedly allowed in his memorandum to make as substantial
PhP23,563,365.29, which, coincidentally, is the product of:
amendment in the reliefs prayed for in his petition. San Luis was allegedly allowed to seek for Ejercito's
Number of spots x Unit cost per spot = Total contract cost disqualification instead of the filing of an election offense against him.

Seven (7) spots x PhP3,366,195.04 = PhP23,563,365.28 As discussed above, the allegations in the petition, particularly the causes of action, clearly show that it is not
merely a complaint for an election offense but a disqualification case against Ejercito as well. San Luis'

42
CONSTI REV – FULL TEXT
memorandum merely amplified and clarified the allegations and arguments in his petition. There was no
change in the cause or causes of action. Ejercito[,] therefore, cannot claim that he was not aware of the true
nature of the petition filed against him.
Likewise, Ejercito cannot complain that he was deprived of his right to notice and hearing. He cannot feign
ignorance that the COMELEC First Division, throughout the trial, was hearing the petition as a disqualification
case and not as an election offense case. He was served with Summons with Notice of Conference on [June
4, 2013] and was given a copy of the petition. He likewise submitted to the jurisdiction of the Commission
when he filed his Verified Answer. He also participated in the Preliminary Conference on [June 27, 2013]
wherein he examined evidence on record and presented his own documentary exhibits. Lastly, he filed a
Manifestation (in lieu of Memorandum) incorporating all his allegations and defenses.
Ejercito contends that amending the reliefs prayed for is prohibited under Section 2, Rule 9 of the 1993
COMELEC Rules of Procedure. He asserts that the relief prayed for in the memorandum is not the same as
that in the petition. However, a scrutiny of said amendment shows that no new issues were introduced.
Moreover, there was no departure from the causes of action and no material alterations on the grounds of
relief. The amendment[,] therefore[,] is not substantial as it merely rectifies or corrects the true nature of reliefs
being prayed for as set forth in the petition.
The records of the case will show that Ejercito has been afforded the opportunity to contest and rebut all the
allegations against him. He was never deprived of his right to have access to the evidence against him. He
was adequately aware of the nature and implication of the disqualification case against him. Thus, Ejercito
cannot say that he was denied of his constitutional right to due process.
It is important to note at this point that Ejercito, in his motion for reconsideration, deliberately did not tackle the
merit and substance of the charges against him. He limited himself to raising procedural issues. This is despite
all the opportunity that he was given to confront the evidence lodged against him. Therefore, there is no
reason for the COMELEC En Banc to disturb the findings of the COMELEC First Division on whether Ejercito
indeed over-spent in his campaign for governorship of Laguna in the [May 13, 2013] National and Local
Elections. 29
Anchoring on the case of Lanot v. Commission on Elections, 30 the COMELEC En Banc likewise debunked
Ejercito's assertion that the petition was prematurely and improperly filed on the ground that the filing of an
election offense and the factual determination on the existence of probable cause are required before a
disqualification case based on Section 68 of the OEC may proceed. It held:
As discussed in the case of Lanot vs. Comelec, each of the acts listed as ground for disqualification under
Section 68 of the OEC has two aspects — electoral and criminal which may proceed independently from each
other, to wit:
. . . The electoral aspect of a disqualification case determines whether the offender should be disqualified from
being a candidate or from holding office. Proceedings are summary in character and require only clear
preponderance of evidence. An erring candidate may be disqualified even without prior determination of
probable cause in a preliminary investigation. The electoral aspect may proceed independently of the criminal
aspect, and vice-versa.
The criminal aspect of a disqualification case determines whether there is probable cause to charge a
candidate for an election offense. The prosecutor is the COMELEC, through its Law Department, which
determines whether probable cause exists. If there is probable cause, the COMELEC, through its Law
Department, files the criminal information before the proper court. Proceedings before the proper court
demand a full-blown hearing and require proof beyond reasonable doubt to convict. A criminal conviction shall
result in the disqualification of the offender, which may even include disqualification from holding a future
public office." (Emphasis supplied) 31
The petition for disqualification against Ejercito for campaign over-spending before the Commission is heard
and resolved pursuant to the electoral aspect of Section 68 of the OEC. It is an administrative proceeding
separate and distinct from the criminal proceeding through which Ejercito may be made to undergo in order to
determine whether he can be held criminally liable for the same act of over-spending. It is through this
administrative proceeding that this Commission, initially through its divisions, makes a factual determination on
the veracity of the parties' respective allegations in a disqualification case. There is no need for a preliminary
investigation finding on the criminal aspect of the offenses in Section 68 before the Commission can act on the
administrative or electoral aspect of the offense. All that is needed is a complaint or a petition. As enunciated
in Lanot, "(a)n erring candidate may be disqualified even without prior determination of probable cause in a
43
JULY 11, 2019
preliminary investigation. The electoral aspect may proceed independently of the criminal aspect, and vice-
versa."
Moreover, Ejercito's reliance on Codilla is misplaced. The COMELEC En Banc opined that the portion of the
Codilla decision that referred to the necessity of the conduct of preliminary investigation pertains to cases
where the offenders are charged with acts not covered by Section 68 of the OEC, and are, therefore, beyond
the ambit of the COMELEC's jurisdiction. It said that the decision refers to this type of cases as criminal (not
administrative) in nature, and, thus, should be handled through the criminal process.
Further rejected was Ejercito's argument that the COMELEC lost its jurisdiction over the petition for
disqualification the moment he was proclaimed as the duly-elected Governor of Laguna. For the COMELEC
En Banc, its First Division thoroughly and sufficiently addressed the matter when it relied on Maquiling instead
of Sinaca. It maintained that Section 5 of COMELEC Resolution No. 9523, not COMELEC Resolution No.
2050, 32 is relevant to the instant case as it states that the COMELEC shall continue the trial and hearing of a
pending disqualification case despite the proclamation of a winner. It was noted that the proper application of
COMELEC Resolution No. 2050 was already clarified in Sunga v. COMELEC. 33
Finally, the COMELEC En Banc ruled on one of San Luis' contentions in his Comment/Opposition to Ejercito's
motion for reconsideration. He argued that he becomes the winner in the gubernatorial election upon the
disqualification of Ejercito. Relying on Maquiling, San Luis declared that he was not the second placer as he
obtained the highest number of valid votes cast from among the qualified candidates. In denying that
Maquiling is on all fours with this case, the COMELEC En Banc said:
In the instant case, Ejercito cannot be considered as a non-candidate by reason of his disqualification under
Section 68 of the OEC. He was a candidate who filed a valid certificate of candidacy which was never
cancelled.
Ejercito was a bona fide candidate who was disqualified, not because of any ineligibility existing at the time of
the filing of the certificate of candidacy, but because he violated the rules of candidacy. His disqualifying
circumstance, that is, his having over-spent in his campaign, did not exist at the time of the filing of his
certificate of candidacy. It did not affect the validity of the votes cast in his favor. Notwithstanding his
disqualification, he remains the candidate who garnered the highest number of votes.
Ejercito cannot be on the same footing with Arnado in the Maquiling case. Arnado was disqualified from
running for Mayor of Kauswagan, Lanao Del Sur because he was a dual citizen not qualified to run for
election. His disqualification existed at the time of the filing of the certificate of candidacy. The effect, pursuant
to the Maquiling case, is that the votes he garnered are void, which in turn resulted in having considered the
"second placer" — Maquiling — as the candidate who obtained the highest number of valid votes cast.
San Luis is in a different circumstance. The votes for the disqualified winning candidate remained valid. Ergo,
San Luis, being the second placer in the vote count, remains the second placer. He cannot[,] thus[,] be named
the winner.
Section 6, Rule 25 of the COMELEC Resolution No. 9523, which governs Section 68 petitions for
disqualification, enunciates the rule succinctly, to wit:
Section 6. Effect of Granting of Petition. — In the event a Petition to disqualify a candidate is granted by final
judgment as defined under Section 8 of Rule 23 and the disqualified candidate obtains the highest number of
votes, the candidate with the second highest number of votes cannot be proclaimed and the rule of
succession, if allowed by law, shall be observed. In the event the rule of succession is not allowed, a vacancy
shall exist for such position. 34
On May 23, 2014, Ejercito filed before this Court a Petition for certiorari with application for the issuance of a
status quo ante order or temporary restraining order (TRO)/writ of preliminary injunction (WPI). 35 Without
issuing a TRO/WPI, the Honorable Chief Justice, Maria Lourdes P. A. Sereno, issued on May 28, 2014 an
order to respondents to comment on the petition within a non-extendible period of ten (10) days from notice.
36 Such order was confirmed nunc pro tunc by the Court En Banc on June 3, 2014. 37
Meantime, on May 26, 2014, Ejercito filed before the COMELEC En Banc an Omnibus Motion to suspend
proceedings and to defer the implementation of the May 21, 2014 Resolution. 38 On the same day, San Luis
also filed an Extremely Urgent Motion to Declare COMELEC En Banc Resolution of May 21, 2014 and First
Division Resolution of September 26, 2013 Final and Executory and to Issue Forthwith Writ of Execution or
Implementing Order 39 invoking Paragraph 2, Section 8 of COMELEC Resolution No. 9523, in relation to
Section 13 (b), Rule 18 of the COMELEC Rules of Procedure. 40 On May 27, 2014, the COMELEC En Banc
issued an Order denying Ejercito's omnibus motion, granted San Luis' extremely urgent motion, and directed
CONSTI REV – FULL TEXT
the Clerk of the Commission to issue the corresponding writ of execution. 41 On even date, Vice-Governor
Hernandez was sworn in as the Governor of Laguna at the COMELEC Main Office in Manila. The service of
the writ was deemed completed and validly served upon Ejercito on May 28, 2014. 42
In his petition before Us, Ejercito raised the following issues for resolution:
THE COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION IN THAT:
(I) IT VIOLATED THE RIGHT OF PETITIONER TO DUE PROCESS WHEN IT RULED FOR THE
DISQUALIFICATION OF PETITIONER EVEN IF IT WAS NEVER PRAYED FOR IN THE PETITION. WORSE,
THERE IS YET NO FINDING OF GUILT BY A COMPETENT COURT OR A FINDING OF FACT STATING
THAT PETITIONER ACTUALLY COMMITTED THE ALLEGED ELECTION OFFENSE OF OVERSPENDING;
(II) IT RELIED ON A DOCUMENTARY EXHIBIT (ADVERTISING CONTRACT) WHICH WAS NOT
EVEN FORMALLY OFFERED AS EVIDENCE; [AND]
(III) IT DISQUALIFIED PETITIONER FOR AN ACT DONE BY A THIRD PARTY WHO SIMPLY
EXERCISED ITS RIGHT TO FREE EXPRESSION WITHOUT THE KNOWLEDGE AND CONSENT OF
PETITIONER[.] 43
The petition is unmeritorious.
A special civil action for certiorari under Rule 64, in relation to Rule 65, is an independent action that is
available only if there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of
law. 44 It is a legal remedy that is limited to the resolution of jurisdictional issues and is not meant to correct
simple errors of judgment. 45 More importantly, it will only prosper if grave abuse of discretion is alleged and is
actually proved to exist. 46
Grave abuse of discretion arises when a lower court or tribunal violates the Constitution, the law or existing
jurisprudence. It means such capricious and whimsical exercise of judgment as would amount to lack of
jurisdiction; it contemplates a situation where the power is exercised in an arbitrary or despotic manner by
reason of passion or personal hostility, so patent and gross as to amount to an evasion of positive duty or a
virtual refusal to perform the duty enjoined by law. . . . . 47
Ejercito failed to prove that the COMELEC rendered its assailed Resolution with grave abuse of discretion.
We now explain.
The petition filed by San Luis
against Ejercito is for the
latter's disqualification and
prosecution for election
offense
Ejercito insists that his alleged acts of giving material consideration in the form of "Orange Cards" and election
overspending are considered as election offenses under Section 35 of COMELEC Resolution No. 9615, 48 in
relation to Section 13 49 of R.A. No. 9006, and punishable under Section 264 50 of the OEC. Considering that
San Luis' petition partakes of the nature of a complaint for election offenses, the COMELEC First Division has
no jurisdiction over the same based on COMELEC Resolution No. 9386 51 and Section 265 52 of the OEC.
Still, Ejercito contends that the COMELEC erroneously sanctioned a change in San Luis' cause of action by
the mere expedient of changing the prayer in the latter's Memorandum. According to him, San Luis' additional
prayer for disqualification in the Memorandum is a substantial amendment to the Petition as it constitutes a
material deviation from the original cause of action — from a complaint for election offenses to a petition for
disqualification. Since such substantial amendment was effected after the case was set for hearing, Ejercito
maintains that the same should have been allowed only with prior leave of the COMELEC First Division
pursuant to Section 2, Rule 9 53 of the COMELEC Rules of Procedure, which San Luis never did.
The arguments are untenable.
The purpose of a disqualification proceeding is to prevent the candidate from running or, if elected, from
serving, or to prosecute him for violation of the election laws. 54 A petition to disqualify a candidate may be
filed pursuant to Section 68 of the OEC, which states:
SEC. 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is declared by
final decision of a competent court guilty of, or found by the Commission of having: (a) given money or other
material consideration to influence, induce or corrupt the voters or public officials performing electoral
44
JULY 11, 2019
functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an
amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited
under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e,
k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected,
from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall
not be qualified to run for any elective office under this Code, unless said person has waived his status as
permanent resident or immigrant of a foreign country in accordance with the residence requirement provided
for in the election laws.
The prohibited acts covered by Section 68 (e) refer to election campaign or partisan political activity outside
the campaign period (Section 80); removal, destruction or defacement of lawful election propaganda (Section
83); certain forms of election propaganda (Section 85); violation of rules and regulations on election
propaganda through mass media; coercion of subordinates (Section 261 [d]); threats, intimidation, terrorism,
use of fraudulent device or other forms of coercion (Section 261 [e]); unlawful electioneering (Section 261 [k]);
release, disbursement or expenditure of public funds (Section 261 [v]); solicitation of votes or undertaking any
propaganda on the day of the election within the restricted areas (Section 261 [cc], sub-par. 6). All the offenses
mentioned in Section 68 refer to election offenses under the OEC, not to violations of other penal laws. In
other words, offenses that are punished in laws other than in the OEC cannot be a ground for a Section 68
petition. Thus, We have held:
. . . [T]he jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section 68 of
the [OEC]. All other election offenses are beyond the ambit of COMELEC jurisdiction. They are criminal and
not administrative in nature. Pursuant to Sections 265 and 268 of the [OEC], the power of the COMELEC is
confined to the conduct of preliminary investigation on the alleged election offenses for the purpose of
prosecuting the alleged offenders before the regular courts of justice, viz.:
"Section 265. Prosecution. — The Commission shall, through its duly authorized legal officers, have
the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code,
and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the
government: Provided, however, That in the event that the Commission fails to act on any complaint within
four months from its filing, the complainant may file the complaint with the office of the fiscal or with the
Ministry of Justice for proper investigation and prosecution, if warranted.
xxx xxx xxx
Section 268. Jurisdiction. — The regional trial court shall have the exclusive original jurisdiction to
try and decide any criminal action or proceeding for violation of this Code, except those relating to the offense
of failure to register or failure to vote which shall be under the jurisdictions of metropolitan or municipal trial
courts. From the decision of the courts, appeal will lie as in other criminal cases." 55
In the case at bar, the COMELEC First Division and COMELEC En Banc correctly ruled that the petition filed
by San Luis against Ejercito is not just for prosecution of election offense but for disqualification as well.
Indeed, the following are clear indications:
1. The title of San Luis' petition shows that the case was brought under Rule 25 of the COMELEC
Rules of Procedure, as amended by COMELEC Resolution No. 9523. 56 This expresses the objective of the
action since Rule 25 is the specific rule governing the disqualification of candidates.
2. The averments of San Luis' petition rely on Section 68 (a) and (c) of the OEC as grounds for its
causes of action. Section 68 of the OEC precisely enumerates the grounds for the disqualification of a
candidate for elective position and provides, as penalty, that the candidate shall be disqualified from continuing
as such, or if he or she has been elected, from holding the office.
3. Paragraph 2 of San Luis' prayer in the petition states that "[in the event that [Ejercito] will be able
to get a majority vote of the electorate of the Province of Laguna on May 13, 2013, his proclamation be
suspended until further order of the Honorable Commission." San Luis reiterated this plea when he later filed a
Very Urgent Ex-Parte Motion to Issue Suspension of Possible Proclamation of Respondent and Supplemental
to the Very Urgent Ex-Parte Motion to Issue Suspension of Possible Proclamation of Respondent. The relief
sought is actually pursuant to Section 6 57 of R.A. No. 6646 and Section 5 Rule 25 58 of COMELEC
Resolution No. 9523, both of which pertain to the effect of a disqualification case when the petition is
unresolved by final judgment come election day.
4. San Luis' Memorandum emphasized that the case is a "Special Action for Disqualification," praying
that "[t]he Petition BE GRANTED [and] . . . [Ejercito] BE DISQUALIFIED, and PREVENTED from further
holding office as Governor of Laguna."
CONSTI REV – FULL TEXT
With the foregoing, Ejercito cannot feign ignorance of the true nature and intent of San Luis' petition. This
considering, it is unnecessary for Us to discuss the applicability of Section 2, Rule 9 of the COMELEC Rules of
Procedure, there being no substantial amendment to San Luis' petition that constitutes a material deviation
from his original causes of action. Likewise, COMELEC Resolution No. 9386 and Section 265 of the OEC do
not apply since both refer solely to the prosecution of election offenses. Specifically, COMELEC Resolution
No. 9386 is an amendment to Rule 34 of the COMELEC Rules of Procedure on the prosecution of election
offenses, while Section 265 of the OEC is found under Article XXII of said law pertaining also to election
offenses.
The conduct of preliminary
investigation is not required in
the resolution of the electoral
aspect of a disqualification
case
Assuming, arguendo, that San Luis' petition was properly instituted as an action for disqualification, Ejercito
asserts that the conduct of preliminary investigation to determine whether the acts enumerated under Section
68 of the OEC were indeed committed is a requirement prior to actual disqualification. He posits that Section
5, Rule 25 of COMELEC Resolution No. 9523 is silent on the matter of preliminary investigation; hence, the
clear import of this is that the necessity of preliminary investigation provided for in COMELEC Resolution No.
2050 remains undisturbed and continues to be in full force and effect.
We are not persuaded.
Section 5, Rule 25 of COMELEC Resolution No. 9523 states:
Section 5. Effect of Petition if Unresolved Before Completion of Canvass. — If a Petition for Disqualification is
unresolved by final judgment on the day of elections, the petitioner may file a motion with the Division or
Commission En Banc where the case is pending, to suspend the proclamation of the candidate concerned,
provided that the evidence for the grounds to disqualify is strong. For this purpose, at least three (3) days prior
to any election, the Clerk of the Commission shall prepare a list of pending cases and furnish all
Commissioners copies of said the list.
In the event that a candidate with an existing and pending Petition to disqualify is proclaimed winner, the
Commission shall continue to resolve the said Petition.
It is expected that COMELEC Resolution No. 9523 is silent on the conduct of preliminary investigation
because it merely amended, among others, Rule 25 of the COMELEC Rules of Procedure, which deals with
disqualification of candidates. In disqualification cases, the COMELEC may designate any of its officials, who
are members of the Philippine Bar, to hear the case and to receive evidence only in cases involving barangay
officials. 59 As aforementioned, the present rules of procedure in the investigation and prosecution of election
offenses in the COMELEC, which requires preliminary investigation, is governed by COMELEC Resolution No.
9386. Under said Resolution, all lawyers in the COMELEC who are Election Officers in the National Capital
Region ("NCR"), Provincial Election Supervisors, Regional Election Attorneys, Assistant Regional Election
Directors, Regional Election Directors and lawyers of the Law Department are authorized to conduct
preliminary investigation of complaints involving election offenses under the election laws which may be filed
directly with them, or which may be indorsed to them by the COMELEC. 60
Similarly, Ejercito's reliance on COMELEC Resolution No. 2050 is misplaced. COMELEC Resolution No.
2050, which was adopted on November 3, 1988, reads:
WHEREAS, there remain pending before the Commission, a number of cases of disqualification filed by virtue
of the provisions of Section 68 of the Omnibus Election Code in relation to Section 6 of R.A. 6646, otherwise
known as the Electoral Reforms Law of 1987;
WHEREAS, opinions of the members of the Commission on matters of procedure in dealing with cases of this
nature and the manner of disposing of the same have not been uniform;
WHEREAS, in order to avoid conflicts of opinion in the disposition [of] disqualification cases contemplated
under Section 68 of the Omnibus Election Code in relation to Section 6 of Rep. Act 6646, there is a strongly
felt need to lay down a definite policy in the disposition of this specific class of disqualification cases;
NOW, THEREFORE, on motion duly seconded, the Commission en banc:
45
JULY 11, 2019
RESOLVED, as it hereby resolves, to formulate the following rules governing the disposition of cases of
disqualification filed by virtue of Section 68 of the Omnibus Election Code in relation to Section 6 of R.A. No.
6646, otherwise known as the Electoral Reforms Law of 1987:
1. Any complaint for the disqualification of a duly registered candidate based upon any of the grounds
specifically enumerated under Section 68 of the Omnibus Election Code, filed directly with the Commission
before an election in which the respondent is a candidate, shall be inquired into by the Commission for the
purpose of determining whether the acts complained of have in fact been committed. Where the inquiry by the
Commission results in a finding before election, that the respondent candidate did in fact commit the acts
complained, the Commission shall order the disqualification of the respondent candidate from continuing as
such candidate.
In case such complaint was not resolved before the election, the Commission may motu proprio, or [on]
motion of any of the parties, refer the complaint to the [Law] Department of the Commission as the instrument
of the latter in the exercise of its exclusive power to conduct a preliminary investigation of all cases involving
criminal infractions of the election laws. Such recourse may be availed of irrespective of whether the
respondent has been elected or has lost in the election.
2. Any complaint for disqualification based on Section 68 of the Omnibus Election Code in relation to
Section 6 of Rep. Act No. 6646 filed after the election against a candidate who has already been proclaimed
as winner shall be dismissed as a disqualification case. However, the complaint shall be referred for
preliminary investigation to the Law Department of the Commission.
Where a similar complaint is filed after election but before proclamation of the respondent candidate, the
complaint shall, nevertheless, be dismissed as a disqualification case. However, the complaint shall be
referred for preliminary investigation to the Law Department. If, before proclamation, the Law Department
makes a prima facie finding of guilt and the corresponding information has been filed with the appropriate trial
court, the complainant may file a petition for suspension of the proclamation of the respondent with the court
before which the criminal case is pending and the said court may order the suspension of the proclamation if
the evidence of guilt is strong.
3. The Law Department shall terminate the preliminary investigation within thirty (30) days from
receipt of the referral and shall submit its study, report and recommendation to the Commission en banc within
five (5) days from the conclusion of the preliminary investigation. If it makes a prima facie finding of guilt, it
shall submit with such study the Information for filing with the appropriate court. 61
In Bagatsing v. COMELEC, 62 the Court stated that the above-quoted resolution covers two (2) different
scenarios:
First, as contemplated in paragraph 1, a complaint for disqualification filed before the election which must be
inquired into by the COMELEC for the purpose of determining whether the acts complained of have in fact
been committed. Where the inquiry results in a finding before the election, the COMELEC shall order the
candidate's disqualification. In case the complaint was not resolved before the election, the COMELEC may
motu proprio or on motion of any of the parties, refer the said complaint to the Law Department of the
COMELEC for preliminary investigation.
Second, as laid down in paragraph 2, a complaint for disqualification filed after the election against a
candidate (a) who has not yet been proclaimed as winner, or (b) who has already been proclaimed as winner.
In both cases, the complaint shall be dismissed as a disqualification case but shall be referred to the Law
Department of the COMELEC for preliminary investigation. However, if before proclamation, the Law
Department makes a prima facie finding of guilt and the corresponding information has been filed with the
appropriate trial court, the complainant may file a petition for suspension of the proclamation of the respondent
with the court before which the criminal case is pending and the said court may order the suspension of the
proclamation if the evidence of guilt is strong. 63
However, with respect to Paragraph 1 of COMELEC Resolution No. 2050, which is the situation in this case,
We held in Sunga:
. . . Resolution No. 2050 as interpreted in Silvestre v. Duavit infringes on Sec. 6 of RA No. 6646, which
provides:
SEC. 6. Effects of Disqualification Case. — Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the Court or Commission shall continue with the trial
CONSTI REV – FULL TEXT
and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during
the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of
his guilt is strong (italics supplied).
Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification
case to its conclusion, i.e., until judgment is rendered thereon. The word "shall" signifies that this requirement
of the law is mandatory, operating to impose a positive duty which must be enforced. The implication is that
the COMELEC is left with no discretion but to proceed with the disqualification case even after the election.
Thus, in providing for the outright dismissal of the disqualification case which remains unresolved after the
election, Silvestre v. Duavit in effect disallows what RA No. 6646 imperatively requires. This amounts to a
quasi-judicial legislation by the COMELEC which cannot be countenanced and is invalid for having been
issued beyond the scope of its authority. Interpretative rulings of quasi-judicial bodies or administrative
agencies must always be in perfect harmony with statutes and should be for the sole purpose of carrying their
general provisions into effect. By such interpretative or administrative rulings, of course, the scope of the law
itself cannot be limited. Indeed, a quasi-judicial body or an administrative agency for that matter cannot amend
an act of Congress. Hence, in case of a discrepancy between the basic law and an interpretative or
administrative ruling, the basic law prevails.
Besides, the deleterious effect of the Silvestre ruling is not difficult to foresee. A candidate guilty of election
offenses would be undeservedly rewarded, instead of punished, by the dismissal of the disqualification case
against him simply because the investigating body was unable, for any reason caused upon it, to determine
before the election if the offenses were indeed committed by the candidate sought to be disqualified. All that
the erring aspirant would need to do is to employ delaying tactics so that the disqualification case based on
the commission of election offenses would not be decided before the election. This scenario is productive of
more fraud which certainly is not the main intent and purpose of the law. 64
The "exclusive power [of the COMELEC] to conduct a preliminary investigation of all cases involving criminal
infractions of the election laws" stated in Par. 1 of COMELEC Resolution No. 2050 pertains to the criminal
aspect of a disqualification case. It has been repeatedly underscored that an election offense has its criminal
and electoral aspects. While its criminal aspect to determine the guilt or innocence of the accused cannot be
the subject of summary hearing, its electoral aspect to ascertain whether the offender should be disqualified
from office can be determined in an administrative proceeding that is summary in character. This Court said in
Sunga:
It is worth to note that an election offense has criminal as well as electoral aspects. Its criminal aspect involves
the ascertainment of the guilt or innocence of the accused candidate. Like in any other criminal case, it usually
entails a full-blown hearing and the quantum of proof required to secure a conviction is beyond reasonable
doubt. Its electoral aspect, on the other hand, is a determination of whether the offender should be disqualified
from office. This is done through an administrative proceeding which is summary in character and requires
only a clear preponderance of evidence. Thus, under Sec. 4 of the COMELEC Rules of Procedure, petitions
for disqualification "shall be heard summarily after due notice." It is the electoral aspect that we are more
concerned with, under which an erring candidate may be disqualified even without prior criminal conviction. 65
and equally in Lanot:
. . . The electoral aspect of a disqualification case determines whether the offender should be disqualified from
being a candidate or from holding office. Proceedings are summary in character and require only clear
preponderance of evidence. An erring candidate may be disqualified even without prior determination of
probable cause in a preliminary investigation. The electoral aspect may proceed independently of the criminal
aspect, and vice-versa.
The criminal aspect of a disqualification case determines whether there is probable cause to charge a
candidate for an election offense. The prosecutor is the COMELEC, through its Law Department, which
determines whether probable cause exists. If there is probable cause, the COMELEC, through its Law
Department, files the criminal information before the proper court. Proceedings before the proper court
demand a full-blown hearing and require proof beyond reasonable doubt to convict. A criminal conviction shall
result in the disqualification of the offender, which may even include disqualification from holding a future
public office.
The two aspects account for the variance of the rules on disposition and resolution of disqualification cases
filed before or after an election. When the disqualification case is filed before the elections, the question of
disqualification is raised before the voting public. If the candidate is disqualified after the election, those who
voted for him assume the risk that their votes may be declared stray or invalid. There is no such risk if the
petition is filed after the elections. . . . . 66
46
JULY 11, 2019
We cannot accept Ejercito's argument that Lanot did not categorically pronounce that the conduct of a
preliminary investigation exclusively pertains to the criminal aspect of an action for disqualification or that a
factual finding by the authorized legal officers of the COMELEC may be dispensed with in the proceedings for
the administrative aspect of a disqualification case. According to him, a close reading of said case would
reveal that upon filing of the petition for disqualification with the COMELEC Division, the latter referred the
matter to the Regional Election Director for the purpose of preliminary investigation; therefore, Lanot
contemplates two referrals for the conduct of investigation — first, to the Regional Election Director, prior to
the issuance of the COMELEC First Division's resolution, and second, to the Law Department, following the
reversal by the COMELEC En Banc.
For easy reference, the factual antecedents of Lanot are as follows:
On March 19, 2004, a little less than two months before the May 10, 2004 elections, Henry P. Lanot, et al. filed
a Petition for Disqualification under Sections 68 and 80 of the OEC against then incumbent Pasig City Mayor
Vicente P. Eusebio. National Capital Region Director Esmeralda Amora-Ladra conducted hearings on the
petition. On May 4, 2004, she recommended Eusebio's disqualification and the referral of the case to the
COMELEC Law Department for the conduct of a preliminary investigation on the possible violation of Section
261 (a) of the OEC. When the COMELEC First Division issued a resolution adopting Director Ladra's
recommendations on May 5, 2004, then COMELEC Chairman Benjamin S. Abalos informed the pertinent
election officers through an Advisory dated May 8, 2004. Eusebio filed a Motion for Reconsideration on May 9,
2004. On election day, Chairman Abalos issued a memorandum to Director Ladra enjoining her from
implementing the May 5, 2004 COMELEC First Division resolution. The petition for disqualification was not yet
finally resolved at the time of the elections. Eusebio's votes were counted and canvassed. After which,
Eusebio was proclaimed as the winning candidate for city mayor. On August 20, 2004, the COMELEC En
Banc annulled the COMELEC First Division's order to disqualify Eusebio and referred the case to the
COMELEC Law Department for preliminary investigation.
When the issue was elevated to Us, the Court agreed with Lanot that the COMELEC En Banc committed
grave abuse of discretion when it ordered the dismissal of the disqualification case pending preliminary
investigation of the COMELEC Law Department. Error was made when it ignored the electoral aspect of the
disqualification case by setting aside the COMELEC First Division's resolution and referring the entire case to
the COMELEC Law Department for the criminal aspect. We noted that COMELEC Resolution No. 2050, upon
which the COMELEC En Banc based its ruling, is procedurally inconsistent with COMELEC Resolution No.
6452, which was the governing rule at the time. The latter resolution delegated to the COMELEC Field
Officials the hearing and reception of evidence of the administrative aspect of disqualification cases in the May
10, 2004 National and Local Elections. In marked contrast, in the May 2013 elections, it was only in cases
involving barangay officials that the COMELEC may designate any of its officials, who are members of the
Philippine Bar, to hear the case and to receive evidence. 67
The COMELEC En Banc
properly considered as
evidence the Advertising
Contract dated May 8, 2013
Ejercito likewise asserts that the Advertising Contract dated May 8, 2013 should not have been relied upon by
the COMELEC. First, it was not formally offered in evidence pursuant to Section 34, Rule 132 68 of the Rules
and he was not even furnished with a copy thereof, depriving him of the opportunity to examine its authenticity
and due execution and object to its admissibility. Second, even if Section 34, Rule 132 does not apply,
administrative bodies exercising quasi-judicial functions are nonetheless proscribed from rendering judgment
based on evidence that was never presented and could not be controverted. There is a need to balance the
relaxation of the rules of procedure with the demands of administrative due process, the tenets of which are
laid down in the seminal case of Ang Tibay v. Court of Industrial Relations. 69 And third, the presentation of the
advertising contracts, which are highly disputable and on which no hearing was held for the purpose of taking
judicial notice in accordance with Section 3, Rule 129 70 of the Rules, cannot be dispensed with by
COMELEC's claim that it could take judicial notice.
Contrary to Ejercito's claim, Section 34, Rule 132 of the Rules is inapplicable. Section 4, Rule 1 71 of the
Rules of Court is clear enough in stating that it shall not apply to election cases except by analogy or in a
suppletory character and whenever practicable and convenient. In fact, nowhere from COMELEC Resolution
No. 9523 requires that documentary evidence should be formally offered in evidence. 72 We remind again that
the electoral aspect of a disqualification case is done through an administrative proceeding which is summary
in character.
CONSTI REV – FULL TEXT
Granting, for argument's sake, that Section 4, Rule 1 of the Rules of Court applies, there have been instances
when We suspended the strict application of the rule in the interest of substantial justice, fairness, and equity.
73 Since rules of procedure are mere tools designed to facilitate the attainment of justice, it is well recognized
that the Court is empowered to suspend its rules or to exempt a particular case from the application of a
general rule, when the rigid application thereof tends to frustrate rather than promote the ends of justice. 74
The fact is, even Sections 3 and 4, Rule 1 of the COMELEC Rules of Procedure fittingly declare that "[the]
rules shall be liberally construed in order to promote the effective and efficient implementation of the objectives
of ensuring the holding of free, orderly, honest, peaceful and credible elections and to achieve just, expeditious
and inexpensive determination and disposition of every action and proceeding brought before the
Commission" and that "[in] the interest of justice and in order to obtain speedy disposition of all matters
pending before the Commission, these rules or any portion thereof may be suspended by the Commission."
This Court said in Hayudini v. Commission on Elections: 75
Settled is the rule that the COMELEC Rules of Procedure are subject to liberal construction. The COMELEC
has the power to liberally interpret or even suspend its rules of procedure in the interest of justice, including
obtaining a speedy disposition of all matters pending before it. This liberality is for the purpose of promoting
the effective and efficient implementation of its objectives — ensuring the holding of free, orderly, honest,
peaceful, and credible elections, as well as achieving just, expeditious, and inexpensive determination and
disposition of every action and proceeding brought before the COMELEC. Unlike an ordinary civil action, an
election contest is imbued with public interest. It involves not only the adjudication of private and pecuniary
interests of rival candidates, but also the paramount need of dispelling the uncertainty which beclouds the real
choice of the electorate. And the tribunal has the corresponding duty to ascertain, by all means within its
command, whom the people truly chose as their rightful leader. 76
Further, Ejercito's dependence on Ang Tibay is weak. The essence of due process is simply an opportunity to
be heard, or, as applied to administrative proceedings, an opportunity to explain one's side or an opportunity to
seek for a reconsideration of the action or ruling complained of. 77 Any seeming defect in its observance is
cured by the filing of a motion for reconsideration and denial of due process cannot be successfully invoked by
a party who had the opportunity to be heard thereon. 78 In this case, it is undisputed that Ejercito filed a
motion for reconsideration before the COMELEC En Banc. Despite this, he did not rebut the authenticity and
due execution of the advertising contracts when he decided not to discuss the factual findings of the
COMELEC First Division on the alleged ground that it may be construed as a waiver of the jurisdictional issues
that he raised. 79
We agree with San Luis and the Office of the Solicitor General that, pursuant to Section 2, Rule 129, 80 the
COMELEC has the discretion to properly take judicial notice of the Advertising Contract dated May 8, 2013. In
accordance with R.A. No. 9006, the COMELEC, through its Campaign Finance Unit, is empowered to:
a. Monitor fund raising and spending activities;
b. Receive and keep reports and statements of candidates, parties, contributors and election
contractors, and advertising contracts of mass media entities;
c. Compile and analyze the reports and statements as soon as they are received and make an initial
determination of compliance;
d. Develop and manage a recording system for all reports, statements, and contracts received by it
and to digitize information contained therein;
e. Publish the digitized information gathered from the reports, statements and contracts and make
them available to the public;
f. Develop a reportorial and monitoring system;
g. Audit all reports, statements and contracts and determine compliance by the candidates, parties,
contributors, and election contractors, including the inspection of Books and records of candidates, parties and
mass media entities and issue subpoenas in relation thereto and submit its findings to the Commission En
Banc;
h. Coordinate with and/or assist other departments/offices of the Commission receiving related
reports on Campaign Finance including prosecution of violators and collection of fines and/or imposition of
perpetual disqualification; and
i. Perform other functions as ordered by the Commission. 81
47
JULY 11, 2019
The COMELEC may properly take and act on the advertising contracts without further proof from the parties
herein. Aside from being considered as an admission 82 and presumed to be proper submissions from them,
the COMELEC already has knowledge of the contracts for being ascertainable from its very own records. Said
contracts ought to be known by the COMELEC because of its statutory function as the legal custodian of all
advertising contracts promoting or opposing any candidate during the campaign period. As what transpired in
this case, the COMELEC has the authority and discretion to compare the submitted advertising contracts with
the certified true copies of the broadcast logs, certificates of performance or other analogous records which a
broadcast station or entity is required to submit for the review and verification of the frequency, date, time and
duration of advertisements aired.
To be precise, R.A. No. 9006 provides:
Sec. 4. Requirements for Published or Printed and Broadcast Election Propaganda. —
xxx xxx xxx
4.3 Print, broadcast or outdoor advertisements donated to the candidate or political party shall not be
printed, published, broadcast or exhibited without the written acceptance by the said candidate or political
party. Such written acceptance shall be attached to the advertising contract and shall be submitted to the
COMELEC as provided in Subsection 6.3 hereof.
Sec. 6. Equal Access to Media Time and Space. — All registered parties and bona fide candidates shall
have equal access to media time and space. The following guidelines may be amplified on by the COMELEC:
xxx xxx xxx
6.2
xxx xxx xxx
(b.) Each bona fide candidate or registered political party for a locally elective office shall be entitled to
not more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement
whether by purchase or donation.
For this purpose, the COMELEC shall require any broadcast station or entity to submit to the COMELEC a
copy of its broadcast logs and certificates of performance for the review and verification of the frequency, date,
time and duration of advertisements broadcast for any candidate or political party.
6.3 All mass media entities shall furnish the COMELEC with a copy of all contracts for advertising,
promoting or opposing any political party or the candidacy of any person for public office within five (5) days
after its signing. . . . .
The implementing guidelines of the above-quoted provisions are found in Rule 5 of COMELEC Resolution No.
9476 —
Section 2. Submission of Copies of Advertising Contracts. — All media entities shall submit a copy of its
advertising and or broadcast contracts, media purchase orders, booking orders, or other similar documents to
the Commission through its Campaign Finance Unit, accompanied by a summary report in the prescribed form
(Annex "E") together with official receipts issued for advertising, promoting or opposing a party, or the
candidacy of any person for public office, within five (5) days after its signing, through:
a. For Media Entities in the NCR
The Education and Information Department (EID), which shall furnish copies thereof to the Campaign Finance
Unit of the Commission.
b. For Media Entities outside of the NCR
The City/Municipal Election Officer (EO) concerned who shall furnish copies thereof to the Education and
Information Department of the Commission within five (5) days after the campaign periods. The EID shall
furnish copies thereof to the Campaign Finance Unit of the Commission.
xxx xxx xxx
It shall be the duty of the EID to formally inform media entities that the latter's failure to comply with the
mandatory provisions of this Section shall be considered an election offense punishable pursuant to Section
13 of Republic Act No. 9006. [RA 9006, Secs. 6.3 and 13]
and in COMELEC Resolution No. 9615 —
CONSTI REV – FULL TEXT JULY 11, 2019

SECTION 9. Requirements and/or Limitations on the Use of Election Propaganda through Mass Ejercito claims that the advertising contracts between ABS-CBN Corporation and Scenema Concept
Media. — All parties and bona fide candidates shall have equal access to media time and space for their International, Inc. were executed by an identified supporter without his knowledge and consent as, in fact, his
election propaganda during the campaign period subject to the following requirements and/or limitations: signature thereon was obviously forged. Even assuming that such contract benefited him, Ejercito alleges that
he should not be penalized for the conduct of third parties who acted on their own without his consent. Citing
a. Broadcast Election Propaganda Citizens United v. Federal Election Commission 83 decided by the US Supreme Court, he argues that every
xxx xxx xxx voter has the right to support a particular candidate in accordance with the free exercise of his or her rights of
speech and of expression, which is guaranteed in Section 4, Article III of the 1987 Constitution. 84 He believes
Provided, further, that a copy of the broadcast advertisement contract be furnished to the Commission, thru that an advertising contract paid for by a third party without the candidate's knowledge and consent must be
the Education and Information Department, within five (5) days from contract signing. considered a form of political speech that must prevail against the laws suppressing it, whether by design or
inadvertence. Further, Ejercito advances the view that COMELEC Resolution No. 9476 85 distinguishes
xxx xxx xxx
between "contribution" and "expenditure" and makes no proscription on the medium or amount of contribution.
d. Common requirements/limitations: 86 He also stresses that it is clear from COMELEC Resolution No. 9615 that the limit set by law applies only to
election expenditures of candidates and not to contributions made by third parties. For Ejercito, the fact that
xxx xxx xxx the legislature imposes no legal limitation on campaign donations is presumably because discussion of public
(3) For the above purpose, each broadcast entity and website owner or administrator shall submit to issues and debate on the qualifications of candidates are integral to the operation of the government.
the Commission a certified true copy of its broadcast logs, certificates of performance, or other analogous We refuse to believe that the advertising contracts between ABS-CBN Corporation and Scenema Concept
record, including certificates of acceptance as required in Section 7(b) of these Guidelines, for the review and International, Inc. were executed without Ejercito's knowledge and consent. As found by the COMELEC First
verification of the frequency, date, time and duration of advertisements aired for any candidate or party Division, the advertising contracts submitted in evidence by San Luis as well as those in legal custody of the
through: COMELEC belie his hollow assertion. His express conformity to the advertising contracts is actually a must
For Broadcast Entities in the NCR — because non-compliance is considered as an election offense. 87

The Education and Information Department (EID) which in turn shall furnish copies thereof to the Campaign Notably, R.A. No. 9006 explicitly directs that broadcast advertisements donated to the candidate shall not be
Finance Unit (CFU) of the Commission within five days from receipt thereof. broadcasted without the written acceptance of the candidate, which shall be attached to the advertising
contract and shall be submitted to the COMELEC, and that, in every case, advertising contracts shall be
For Broadcast Entities outside of the NCR — signed by the donor, the candidate concerned or by the duly-authorized representative of the political party. 88
Conformably with the mandate of the law, COMELEC Resolution No. 9476 requires that election propaganda
The City/Municipal Election Officer (EO) concerned, who in turn, shall furnish copies thereof to the Education materials donated to a candidate shall not be broadcasted unless it is accompanied by the written acceptance
and Information Department (EID) of the Commission which in turn shall furnish copies thereof to the of said candidate, which shall be in the form of an official receipt in the name of the candidate and must
Campaign Finance Unit (CFU) of the Commission within five (5) days from the receipt thereof. specify the description of the items donated, their quantity and value, and that, in every case, the advertising
For website owners or administrators — contracts, media purchase orders or booking orders shall be signed by the candidate concerned or by the duly
authorized representative of the party and, in case of a donation, should be accompanied by a written
The City/Municipal Election Officer (EO) concerned, who in turn, shall furnish copies thereof to the Education acceptance of the candidate, party or their authorized representatives. 89 COMELEC Resolution No. 9615
and Information Department (EID) of the Commission which in turn shall furnish copies thereof to the also unambiguously states that it shall be unlawful to broadcast any election propaganda donated or given
Campaign Finance Unit (CFU) of the Commission within five (5) days from the receipt thereof. free of charge by any person or broadcast entity to a candidate without the written acceptance of the said
candidate and unless they bear and be identified by the words "airtime for this broadcast was provided free of
All broadcast entities shall preserve their broadcast logs for a period of five (5) years from the date of
charge by" followed by the true and correct name and address of the donor. 90
broadcast for submission to the Commission whenever required.
This Court cannot give weight to Ejercito's representation that his signature on the advertising contracts was a
Certified true copies of broadcast logs, certificates of performance, and certificates of acceptance, or other
forgery. The issue is a belated claim, raised only for the first time in this petition for certiorari. It is a
analogous record shall be submitted, as follows:
rudimentary principle of law that matters neither alleged in the pleadings nor raised during the proceedings
1st Report 3 weeks after start of campaign period March 4-11 below cannot be ventilated for the first time on appeal before the Supreme Court. 91 It would be offensive to
the basic rules of fair play and justice to allow Ejercito to raise an issue that was not brought up before the
2nd Report 3 weeks after 1st filing week April 3-10 COMELEC. 92 While it is true that litigation is not a game of technicalities, it is equally true that elementary
Candidates for National Positions 3rd Report 1 week before election day May 2-9 considerations of due process require that a party be duly apprised of a claim against him before judgment
may be rendered. 93
Last Report Election week May 14-17
Likewise, whether the advertising contracts were executed without Ejercito's knowledge and consent, and
whether his signatures thereto were fraudulent, are issues of fact. Any factual challenge has no place in a Rule
65 petition. This Court is not a trier of facts and is not equipped to receive evidence and determine the truth of
1st Report 1 week after start of campaign period April 15-22 factual allegations. 94 Instead, the findings of fact made by the COMELEC, or by any other administrative
2nd Report 1 week after 1st filing week April 30-May 8 agency exercising expertise in its particular field of competence, are binding on the Court. As enunciated in
Juan v. Commission on Elections: 95
Candidates for Local Positions 3rd Report Election week May 9-15
Findings of facts of administrative bodies charged with their specific field of expertise, are afforded great
Last Report 1 week after election day May 16-22 weight by the courts, and in the absence of substantial showing that such findings are made from an
erroneous estimation of the evidence presented, they are conclusive, and in the interest of stability of the
For subsequent elections, the schedule for the submission of reports shall be prescribed by the Commission.
governmental structure, should not be disturbed. The COMELEC, as an administrative agency and a
Ejercito should be disqualified
specialized constitutional body charged with the enforcement and administration of all laws and regulations
for spending in his election
relative to the conduct of an election, plebiscite, initiative, referendum, and recall, has more than enough
campaign an amount in excess
expertise in its field that its findings or conclusions are generally respected and even given finality. . . . . 96
of what is allowed by the OEC

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Having determined that the subject TV advertisements were done and broadcasted with Ejercito's consent, it
follows that Citizens United does not apply. In said US case, a non-profit corporation sued the Federal Election
Commission, assailing, among others, the constitutionality of a ban on corporate independent expenditures for
electioneering communications under 2 U.S.C.S. § 441b. The corporation released a documentary film
unfavorable of then-Senator Hillary Clinton, who was a candidate for the Democratic Party's Presidential
nomination. It wanted to make the film available through video-on-demand within thirty (30) days of the
primary elections, and it produced advertisements to promote the film. However, federal law prohibits all
corporations — including non-profit advocacy corporations — from using their general treasury funds to make
independent expenditures for speech that is an "electioneering communication" 97 or for speech that
expressly advocates the election or defeat of a candidate within thirty (30) days of a primary election and sixty
(60) days of a general election. The US Supreme Court held that the ban imposed under § 441b on corporate
independent expenditures violated the First Amendment 98 because the Government could not suppress
political speech on the basis of the speaker's identity as a non-profit or for-profit corporation. It was opined:
Section 441b's prohibition on corporate independent expenditures is thus a ban on speech. As a "restriction on
the amount of money a person or group can spend on political communication during a campaign," that statute
"necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of
their exploration, and the size of the audience reached." Buckley v. Valeo, 424 U.S. 1, 19, 96 S. Ct. 612, 46 L.
Ed. 2d 659 (1976) (per curiam). Were the Court to uphold these restrictions, the Government could repress
speech by silencing certain voices at any of the various points in the speech process. See McConnell, supra,
at 251, 124 S. Ct. 619, 517 L. Ed. 2d 491 (opinion of Scalia, J.) (Government could repress speech by
"attacking all levels of the production and dissemination of ideas," for "effective public communication requires
the speaker to make use of the services of others"). If § 441b applied to individuals, no one would believe that
it is merely a time, place, or manner restriction on speech. Its purpose and effect are to silence entities whose
voices the Government deems to be suspect.
Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the
people. See Buckley, supra, at 14-15, 96 S. Ct. 612, 46 L. Ed. 2d 659 ("In a republic where the people are
sovereign, the ability of the citizenry to make informed choices among candidates for office is essential"). The
right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to
enlightened self-government and a necessary means to protect it. The First Amendment "'has its fullest and
most urgent application' to speech uttered during a campaign for political office." Eu v. San Francisco County
Democratic Central Comm., 489 U.S. 214, 223, 109 S. Ct. 1013, 103 L. Ed. 2d 271 (1989) (quoting Monitor
Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S. Ct. 621, 28 L. Ed. 2d 35 (1971)); see Buckley, supra, at 14, 96 S.
Ct. 612, 46 L. Ed. 2d 659 ("Discussion of public issues and debate on the qualifications of candidates are
integral to the operation of the system of government established by our Constitution").
For these reasons, political speech must prevail against laws that would suppress it, whether by design or
inadvertence. Laws that burden political speech are "subject to strict scrutiny," which requires the Government
to prove that the restriction "furthers a compelling interest and is narrowly tailored to achieve that interest."
WRTL, 551 U.S., at 464, 127 S. Ct. 2652, 168 L. Ed. 2d 329 (opinion of Roberts, C. J.). While it might be
maintained that political speech simply cannot be banned or restricted as a categorical matter, see Simon &
Schuster, 502 U.S., at 124, 112 S. Ct. 501, 116 L. Ed. 2d 476 (Kennedy, J., concurring in judgment), the
quoted language from WRTL provides a sufficient framework for protecting the relevant First Amendment
interests in this case. We shall employ it here.
Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain
subjects or viewpoints. See, e.g., United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120
S. Ct. 1878, 146 L. Ed. 2d 865 (2000) (striking down content-based restriction). Prohibited, too, are restrictions
distinguishing among different speakers, allowing speech by some but not others. See First Nat. Bank of
Boston v. Bellotti, 435 U.S. 765, 784, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978). As instruments to censor, these
categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a
means to control content.
Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a
constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from
some and giving it to others, the Government deprives the disadvantaged person or class of the right to use
speech to strive to establish worth, standing, and respect for the speaker's voice. The Government may not by
these means deprive the public of the right and privilege to determine for itself what speech and speakers are
worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from
each.
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The Court has upheld a narrow class of speech restrictions that operate to the disadvantage of certain
persons, but these rulings were based on an interest in allowing governmental entities to perform their
functions. See, e.g., Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 683, 106 S. Ct. 3159, 92 L. Ed. 2d
549 (1986) (protecting the "function of public school education"); Jones v. North Carolina Prisoners' Labor
Union, Inc., 433 U.S. 119, 129, 97 S. Ct. 2532, 53 L. Ed. 2d 629 (1977) (furthering "the legitimate penological
objectives of the corrections system" (internal quotation marks omitted)); Parker v. Levy, 417 U.S. 733, 759, 94
S. Ct. 2547, 41 L. Ed. 2d 439 (1974) (ensuring "the capacity of the Government to discharge its [military]
responsibilities" (internal quotation marks omitted)); Civil Service Comm'n v. Letter Carriers, 413 U.S. 548,
557, 93 S. Ct. 2880, 37 L. Ed. 2d 796 (1973) ("[F]ederal service should depend upon meritorious performance
rather than political service"). The corporate independent expenditures at issue in this case, however, would
not interfere with governmental functions, so these cases are inapposite. These precedents stand only for the
proposition that there are certain governmental functions that cannot operate without some restrictions on
particular kinds of speech. By contrast, it is inherent in the nature of the political process that voters must be
free to obtain information from diverse sources in order to determine how to cast their votes. At least before
Austin, the Court had not allowed the exclusion of a class of speakers from the general public dialogue.
We find no basis for the proposition that, in the context of political speech, the Government may impose
restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion.
The previous decisions of the US Supreme Court in Austin v. Michigan Chamber of Commerce 99 (which ruled
that political speech may be banned based on the speaker's corporate identity) and the relevant portion of
McConnell v. Federal Election Commission 100 (which upheld the limits on electioneering communications in
a facial challenge) were, in effect, overruled by Citizens United.
Like Citizens United is the 1976 case of Buckley v. Valeo. 101 In this much earlier case, the US Supreme
Court ruled, among other issues elevated to it for resolution, on a provision of the Federal Election Campaign
Act of 1971, as amended, (FECA) 102 which limits independent political expenditures by an individual or
group advocating the election or defeat of a clearly identified candidate for federal office to $1,000 per year.
Majority of the US Supreme Court expressed the view that the challenged provision is unconstitutional as it
impermissibly burdens the right of free expression under the First Amendment, and could not be sustained on
the basis of governmental interests in preventing the actuality or appearance of corruption or in equalizing the
resources of candidates. 103
Even so, the rulings in Citizens United and Buckley find bearing only on matters related to "independent
expenditures," an election law concept which has no application in this jurisdiction. In the US context,
independent expenditures for or against a particular candidate enjoy constitutional protection. They refer to
those expenses made by an individual, a group or a legal entity which are not authorized or requested by the
candidate, an authorized committee of the candidate, or an agent of the candidate; they are expenditures that
are not placed in cooperation with or with the consent of a candidate, his agents, or an authorized committee
of the candidate. 104 In contrast, there is no similar provision here in the Philippines. In fact, R.A. No. 9006
105 and its implementing rules and regulations 106 specifically make it unlawful to print, publish, broadcast or
exhibit any print, broadcast or outdoor advertisements donated to the candidate without the written acceptance
of said candidate.
If at all, another portion of the Buckley decision is significant to this case. One of the issues resolved therein is
the validity of a provision of the FECA which imposes $1,000 limitation on political contributions by individuals
and groups to candidates and authorized campaign committees. 107 Five justices of the nine-member US
Supreme Court sustained the challenged provision on the grounds that it does not violate First Amendment
speech and association rights or invidiously discriminate against non-incumbent candidates and minority party
candidates but is supported by substantial governmental interests in limiting corruption and the appearance of
corruption. It was held:
As the general discussion in Part I-A, supra, indicated, the primary First Amendment problem raised by the
Act's contribution limitations is their restriction of one aspect of the contributor's freedom of political
association. The Court's decisions involving associational freedoms establish that the right of association is a
"basic constitutional freedom," Kusper v. Pontikes, 414 U.S. at 57, that is "closely allied to freedom of speech
and a right which, like free speech, lies at the foundation of a free society." Shelton v. Tucker, 364 U.S. 479,
486 (1960). See, e.g., Bates v. Little Rock, 361 U.S. 516, 522-523 (1960); NAACP v. Alabama, supra at 460-
461; NAACP v. Button, supra, at 452 (Harlan, J., dissenting). In view of the fundamental nature of the right to
associate, governmental "action which may have the effect of curtailing the freedom to associate is subject to
the closest scrutiny." NAACP v. Alabama, supra, at 460-461. Yet, it is clear that "[n]either the right to associate
nor the right to participate in political activities is absolute." CSC v. Letter Carriers, 413 U.S. 548, 567 (1973).
Even a "significant interference' with protected rights of political association" may be sustained if the State
CONSTI REV – FULL TEXT
demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary
abridgment of associational freedoms. Cousins v. Wigoda, supra, at 488; NAACP v. Button, supra, at 438;
Shelton v. Tucker, supra, at 488.
Appellees argue that the Act's restrictions on large campaign contributions are justified by three governmental
interests. According to the parties and amici, the primary interest served by the limitations and, indeed, by the
Act as a whole, is the prevention of corruption and the appearance of corruption spawned by the real or
imagined coercive influence of large financial contributions on candidates' positions and on their actions if
elected to office. Two "ancillary" interests underlying the Act are also allegedly furthered by the $1,000 limits
on contributions. First, the limits serve to mute the voices of affluent persons and groups in the election
process and thereby to equalize the relative ability of all citizens to affect the outcome of elections. Second, it
is argued, the ceilings may to some extent act as a brake on the skyrocketing cost of political campaigns and
thereby serve to open the political system more widely to candidates without access to sources of large
amounts of money.
It is unnecessary to look beyond the Act's primary purpose — to limit the actuality and appearance of
corruption resulting from large individual financial contributions — in order to find a constitutionally sufficient
justification for the $1,000 contribution limitation. Under a system of private financing of elections, a candidate
lacking immense personal or family wealth must depend on financial contributions from others to provide the
resources necessary to conduct a successful campaign. The increasing importance of the communications
media and sophisticated mass-mailing and polling operations to effective campaigning make the raising of
large sums of money an ever more essential ingredient of an effective candidacy. To the extent that large
contributions are given to secure political quid pro quo's from current and potential office holders, the integrity
of our system of representative democracy is undermined. Although the scope of such pernicious practices
can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election
demonstrate that the problem is not an illusory one.
Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance
of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large
individual financial contributions. In CSC v. Letter Carriers, supra, the Court found that the danger to "fair and
effective government" posed by partisan political conduct on the part of federal employees charged with
administering the law was a sufficiently important concern to justify broad restrictions on the employees' right
of partisan political association. Here, as there, Congress could legitimately conclude that the avoidance of the
appearance of improper influence "is also critical. . . if confidence in the system of representative Government
is not to be eroded to a disastrous extent." 413 U.S. at 565.
Appellants contend that the contribution limitations must be invalidated because bribery laws and narrowly
drawn disclosure requirements constitute a less restrictive means of dealing with "proven and suspected quid
pro quo arrangements." But laws making criminal the giving and taking of bribes deal with only the most
blatant and specific attempts of those with money to influence governmental action. And while disclosure
requirements serve the many salutary purposes discussed elsewhere in this opinion, Congress was surely
entitled to conclude that disclosure was only a partial measure, and that contribution ceilings were a necessary
legislative concomitant to deal with the reality or appearance of corruption inherent in a system permitting
unlimited financial contributions, even when the identities of the contributors and the amounts of their
contributions are fully disclosed.
The Act's $1,000 contribution limitation focuses precisely on the problem of large campaign contributions —
the narrow aspect of political association where the actuality and potential for corruption have been identified
— while leaving persons free to engage in independent political expression, to associate actively through
volunteering their services, and to assist to a limited but nonetheless substantial extent in supporting
candidates and committees with financial resources. Significantly, the Act's contribution limitations in
themselves do not undermine to any material degree the potential for robust and effective discussion of
candidates and campaign issues by individual citizens, associations, the institutional press, candidates, and
political parties.
We find that, under the rigorous standard of review established by our prior decisions, the weighty interests
served by restricting the size of financial contributions to political candidates are sufficient to justify the limited
effect upon First Amendment freedoms caused by the $1,000 contribution ceiling. (Emphasis supplied)
Until now, the US Supreme Court has not overturned the ruling that, with respect to limiting political
contributions by individuals and groups, the Government's interest in preventing quid pro quo corruption or its
appearance was "sufficiently important" or "compelling" so that the interest would satisfy even strict scrutiny.
108
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In any event, this Court should accentuate that resort to foreign jurisprudence would be proper only if no law or
jurisprudence is available locally to settle a controversy and that even in the absence of local statute and case
law, foreign jurisprudence are merely persuasive authority at best since they furnish an uncertain guide. 109
We prompted in Republic of the Philippines v. Manila Electric Company: 110
. . . American decisions and authorities are not per se controlling in this jurisdiction. At best, they are
persuasive for no court holds a patent on correct decisions. Our laws must be construed in accordance with
the intention of our own lawmakers and such intent may be deduced from the language of each law and the
context of other local legislation related thereto. More importantly, they must be construed to serve our own
public interest which is the be-all and the end-all of all our laws. And it need not be stressed that our public
interest is distinct and different from others. 111
and once more in Central Bank Employees Assoc., Inc. v. Bangko Sentral ng Pilipinas: 112
. . . [A]merican jurisprudence and authorities, much less the American Constitution, are of dubious application
for these are no longer controlling within our jurisdiction and have only limited persuasive merit insofar as
Philippine constitutional law is concerned. . . . [I]n resolving constitutional disputes, [this Court] should not be
beguiled by foreign jurisprudence some of which are hardly applicable because they have been dictated by
different constitutional settings and needs." Indeed, although the Philippine Constitution can trace its origins to
that of the United States, their paths of development have long since diverged. 113
Indeed, in Osmeña v. COMELEC, 114 this Court, in reaffirming its ruling in National Press Club v. Commission
on Elections 115 that Section 11 (b) of R.A. No. 6646 116 does not invade and violate the constitutional
guarantees comprising freedom of expression, remarked in response to the dissent of Justice Flerida Ruth P.
Romero:
On the other hand, the dissent of Justice Romero in the present case, in batting for an "uninhibited market
place of ideas," quotes the following from Buckley v. Valeo:
[T]he concept that the government may restrict the speech of some elements in our society in order to
enhance the relative voice of the others is wholly foreign to the First Amendment which was designed to
"secure the widest possible dissemination of information from diverse and antagonistic sources" and "to
assure unfettered interchange of ideas for the bringing about of political and social changes desired by the
people."
But do we really believe in that? That statement was made to justify striking down a limit on campaign
expenditure on the theory that money is speech. Do those who endorse the view that government may not
restrict the speech of some in order to enhance the relative voice of others also think that the campaign
expenditure limitation found in our election laws is unconstitutional? How about the principle of one person,
one vote, is this not based on the political equality of voters? Voting after all is speech. We speak of it as the
voice of the people — even of God. The notion that the government may restrict the speech of some in order
to enhance the relative voice of others may be foreign to the American Constitution. It is not to the Philippine
Constitution, being in fact an animating principle of that document.
Indeed, Art. IX-C, §4 is not the only provision in the Constitution mandating political equality. Art. XIII, §1
requires Congress to give the "highest priority" to the enactment of measures designed to reduce political
inequalities, while Art. II, §26 declares as a fundamental principle of our government "equal access to
opportunities for public service." Access to public office will be denied to poor candidates if they cannot even
have access to mass media in order to reach the electorate. What fortress principle trumps or overrides these
provisions for political equality?
Unless the idealism and hopes which fired the imagination of those who framed the Constitution now appear
dim to us, how can the electoral reforms adopted by them to implement the Constitution, of which §11(b) of
R.A. No. 6646, in relation to §§90 and 92 are part, be considered infringements on freedom of speech? That
the framers contemplated regulation of political propaganda similar to §11(b) is clear from the following portion
of the sponsorship speech of Commissioner Vicente B. Foz:
MR. FOZ . . . . Regarding the regulation by the Commission of the enjoyment or utilization of franchises or
permits for the operation of transportation and other public utilities, media of communication or information, all
grants, special privileges or concessions granted by the Government, there is a provision that during the
election period, the Commission may regulate, among other things, the rates, reasonable free space, and time
allotments for public information campaigns and forums among candidates for the purpose of ensuring free,
orderly, honest and peaceful elections. This has to do with the media of communication or information. 117
CONSTI REV – FULL TEXT
Proceeding from the above, the Court shall now rule on Ejercito's proposition that the legislature imposes no
legal limitation on campaign donations. He vigorously asserts that COMELEC Resolution No. 9476
distinguishes between "contribution" and "expenditure" and makes no proscription on the medium or amount
of contribution made by third parties in favor of the candidates, while the limit set by law, as appearing in
COMELEC Resolution No. 9615, applies only to election expenditures of candidates.
We deny.
Section 13 of R.A. No. 7166 118 sets the current allowable limit on expenses of candidates and political
parties for election campaign, thus:
SEC. 13. Authorized Expenses of Candidates and Political Parties. — The aggregate amount that a
candidate or registered political party may spend for election campaign shall be as follows:
(a) For candidates — Ten pesos (P10.00) for President and Vice President; and for other candidates,
Three pesos (P3.00) for every voter currently registered in the constituency where he filed his certificate of
candidacy: Provided, That, a candidate without any political party and without support from any political party
may be allowed to spend Five pesos (P5.00) for every such voter; and
(b) For political parties — Five pesos (P5.00) for every voter currently registered in the constituency or
constituencies where it has official candidates.
Any provision of law to the contrary notwithstanding, any contribution in cash or in kind to any candidate or
political party or coalition of parties for campaign purposes, duly reported to the Commission, shall not be
subject to the payment of any gift tax. 119
Sections 100, 101, and 103 of the OEC are not repealed by R.A. No. 7166. 120 These provisions, which are
merely amended insofar as the allowable amount is concerned, read:
SECTION 100. Limitations upon expenses of candidates. — No candidate shall spend for his election
campaign an aggregate amount exceeding one peso and fifty centavos for every voter currently registered in
the constituency where he filed his candidacy: Provided, That the expenses herein referred to shall include
those incurred or caused to be incurred by the candidate, whether in cash or in kind, including the use, rental
or hire of land, water or aircraft, equipment, facilities, apparatus and paraphernalia used in the campaign:
Provided, further, That where the land, water or aircraft, equipment, facilities, apparatus and paraphernalia
used is owned by the candidate, his contributor or supporter, the Commission is hereby empowered to assess
the amount commensurate with the expenses for the use thereof, based on the prevailing rates in the locality
and shall be included in the total expenses incurred by the candidate.
SECTION 101. Limitations upon expenses of political parties. — A duly accredited political party may
spend for the election of its candidates in the constituency or constituencies where it has official candidates an
aggregate amount not exceeding the equivalent of one peso and fifty centavos for every voter currently
registered therein. Expenses incurred by branches, chapters, or committees of such political party shall be
included in the computation of the total expenditures of the political party.
Expenses incurred by other political parties shall be considered as expenses of their respective individual
candidates and subject to limitation under Section 100 of this Code.
SECTION 103. Persons authorized to incur election expenditures. — No person, except the candidate,
the treasurer of a political party or any person authorized by such candidate or treasurer, shall make any
expenditure in support of or in opposition to any candidate or political party. Expenditures duly authorized by
the candidate or the treasurer of the party shall be considered as expenditures of such candidate or political
party.
The authority to incur expenditures shall be in writing, copy of which shall be furnished the Commission signed
by the candidate or the treasurer of the party and showing the expenditures so authorized, and shall state the
full name and exact address of the person so designated. (Emphasis supplied) 121
The focal query is: How shall We interpret "the expenses herein referred to shall include those incurred or
caused to be incurred by the candidate " and "except the candidate, the treasurer of a political party or any
person authorized by such candidate or treasurer" found in Sections 100 and 103, respectively, of the OEC?
Do these provisions exclude from the allowable election expenditures the contributions of third parties made
with the consent of the candidate? The Court holds not.
When the intent of the law is not apparent as worded, or when the application of the law would lead to
absurdity, impossibility or injustice, extrinsic aids of statutory construction may be resorted to such as the
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legislative history of the law for the purpose of solving doubt, and that courts may take judicial notice of the
origin and history of the law, the deliberations during the enactment, as well as prior laws on the same subject
matter in order to ascertain the true intent or spirit of the law. 122
Looking back, it could be found that Sections 100, 101, and 103 of the OEC are substantially lifted from P.D.
No. 1296, 123 as amended. Sections 51, 52 and 54 of which specifically provide:
Section 51. Limitations upon expenses of candidates. — No candidate shall spend for his election campaign
an amount more than the salary or the equivalent of the total emoluments for one year attached to the office
for which he is a candidate: Provided, That the expenses herein referred to shall include those incurred by the
candidate, his contributors and supporters, whether in cash or in kind, including the use, rental or hire of land,
water or air craft, equipment, facilities, apparatus and paraphernalia used in the campaign: Provided, further,
That, where the land, water or air craft, equipment, facilities, apparatus and paraphernalia used is owned by
the candidate, his contributor or supporter, the Commission is hereby empowered to assess the amount
commensurate with the expenses for the use thereof, based on the prevailing rates in the locality and shall be
included in the total expenses incurred by the candidate.
In the case of candidates for the interim Batasang Pambansa, they shall not spend more than sixty thousand
pesos for their election campaign.
Section 52. Limitation upon expenses of political parties, groups or aggrupations. — A political party, group or
aggrupation may not spend for the election of its candidates in the constituency or constituencies where it has
official candidates an aggregate amount more than the equivalent of fifty centavos for every voter currently
registered therein: Provided, That expenses incurred by such political party, group or aggrupation not duly
registered with the Commission and/or not presenting or supporting a complete list of candidates shall be
considered as expenses of its candidates and subject to the limitation under Section 51 of this Code.
Expenses incurred by branches, chapters or committees of a political party, group or aggrupation shall be
included in the computation of the total expenditures of the political party, group or aggrupation. (Emphasis
supplied)
Section 54. Persons authorized to incur election expenditures. — No person, except the candidate or any
person authorized by him or the treasurer of a political party, group or aggrupation, shall make any
expenditure in support of, or in opposition to any candidate or political party, group or aggrupation.
Expenditures duly authorized by the candidate of the treasurer of the party, group or aggrupation shall be
considered as expenditure of such candidate or political party, group or aggrupation.
The authority to incur expenditures shall be in writing, copy of which shall be furnished the Commission,
signed by the candidate or the treasurer of the party, group or aggrupation and showing the expenditure so
authorized, and shall state the full name and exact address of the person so designated. (Emphasis supplied)
Prior to P.D. No. 1296, R.A. No. 6388 (otherwise known as the "Election Code of 1971") was enacted. 124
Sections 41 and 42 of which are relevant, to quote:
Section 41. Limitation Upon Expenses of Candidates. — No candidate shall spend for his election campaign
more than the total amount of salary for the full term attached to the office for which he is a candidate.
Section 42. Limitation Upon Expenses of Political Parties and Other Non-political Organizations. — No political
party as defined in this Code shall spend for the election of its candidates an aggregate amount more than the
equivalent of one peso for every voter currently registered throughout the country in case of a regular election,
or in the constituency in which the election shall be held in case of a special election which is not held in
conjunction with a regular election. Any other organization not connected with any political party, campaigning
for or against a candidate, or for or against a political party shall not spend more than a total amount of five
thousand pesos. (Emphasis supplied)
Much earlier, Section 12 (G) of R.A. No. 6132, 125 which implemented the resolution of both Houses of
Congress calling for a constitutional convention, explicitly stated:
Section 12. Regulations of Election Spending and Propaganda. — The following provisions shall govern
election spending and propaganda in the election provided for in this Act:
xxx xxx xxx
(G) All candidates and all other persons making or receiving expenditures, contributions or
donations which in their totality exceed fifty pesos, in order to further or oppose the candidacy of any
candidate, shall file a statement of all such expenditures and contributions made or received on such dates
and with such details as the Commission on Elections shall prescribe by rules. The total expenditures made by
CONSTI REV – FULL TEXT JULY 11, 2019

a candidate, or by any other person with the knowledge and consent of the candidate, shall not exceed thirty- 25. Rollo, pp. 57-60.
two thousand pesos. (Emphasis supplied) 26. Id. at 62-89A.
27. San Luis filed a Comment/Opposition, while Ejercito thereafter filed a Reply and Supplement (To: September 30, 2013
In tracing the legislative history of Sections 100, 101, and 103 of the OEC, it can be said, therefore, that the Motion for Reconsideration) (See Rollo, pp. 162-209).
intent of our lawmakers has been consistent through the years: to regulate not just the election expenses of 28. Rollo, pp. 33-35.
29. Id. at 44-46.
the candidate but also of his or her contributor/supporter/donor as well as by including in the aggregate limit of 30. 537 Phil. 332 (2006).
the former's election expenses those incurred by the latter. The phrase "those incurred or caused to be 31. Rollo, pp. 41-42.
incurred by the candidate" is sufficiently adequate to cover those expenses which are contributed or donated 32. Promulgated on November 3, 1988.
in the candidate's behalf. By virtue of the legal requirement that a contribution or donation should bear the 33. 351 Phil. 310 (1998).
written conformity of the candidate, a contributor/supporter/donor certainly qualifies as "any person authorized 34. Rollo, pp. 47-48.
by such candidate or treasurer." Ubi lex non distinguit, nec nos distinguere debemus. 126 (Where the law 35. Id. at 3.
36. Id. at 210-211.
does not distinguish, neither should We.) There should be no distinction in the application of a law where none 37. Id. at 224-225.
is indicated. 38. Records, pp. 228-233.
39. Id. at 234-239.
The inclusion of the amount contributed by a donor to the candidate's allowable limit of election expenses 40. Paragraph 2, Sec. 8 of COMELEC Resolution No. 9523 states:
does not trample upon the free exercise of the voters' rights of speech and of expression under Section 4, Section 8. Effect if Petition Unresolved. — . . .
Article III of the Constitution. As a content-neutral regulation, 127 the law's concern is not to curtail the A Decision or Resolution is deemed final and executory if, in case of a Division ruling, no motion for reconsideration is
message or content of the advertisement promoting a particular candidate but to ensure equality between and filed within the reglementary period, or in cases of rulings of the Commission En Banc, no restraining order is issued by
among aspirants with "deep pockets" and those with less financial resources. Any restriction on speech or the Supreme Court within five (5) days from receipt of the decision or resolution.
On the other hand, Sec. 13 (b) Rule 18 of the COMELEC Rules of Procedure provides:
expression is only incidental and is no more than necessary to achieve the substantial governmental interest
Sec. 13. Finality of Decisions or Resolutions. —
of promoting equality of opportunity in political advertising. It bears a clear and reasonable connection with the xxx xxx xxx
constitutional objectives set out in Section 26, Article II, Section 4, Article IX-C, and Section 1, Art. XIII of the b. In Special Actions and Special Cases a decision or resolutions of the Commission en banc shall become final and
Constitution. 128 Indeed, to rule otherwise would practically result in an unlimited expenditure for political executory after five (5) days from its promulgation unless restrained by the Supreme Court.
advertising, which skews the political process and subverts the essence of a truly democratic form of 41. Records, p. 242.
government. 42. Id. at 249-250, 260-262.
43. Rollo, pp. 7-8.
WHEREFORE, the Petition is DENIED. The May 21, 2014 Resolution of the COMELEC En Banc in SPA No. 44. Hayudini v. Commission on Elections, G.R. No. 207900, April 22, 2014.
13-306 (DC), which upheld the September 26, 2013 Resolution of the COMELEC First Division, granting the 45. Juan v. Commission on Elections, 550 Phil. 294, 302 (2007).
46. Hayudini v. Commission on Elections, supra note 44.
petition for disqualification filed by private respondent Edgar "Egay" S. San Luis against petitioner Emilio 47. Juan v. Commission on Elections, supra note 45.
Ramon "E.R." P. Ejercito, is hereby AFFIRMED. 48. Rules and Regulations Implementing Republic Act No. 9006, Otherwise Known as the "Fair Election Act", in Connection
to the May 13, 2013 National and Local Elections, and Subsequent Elections (Promulgated on January 15, 2013). Sec. 35
SO ORDERED. of which states:
Sereno, C.J., Carpio, Velasco, Jr., Leonardo-de Castro, Bersamin, Del Castillo, Villarama, Jr., Perez, Mendoza, Reyes and SECTION 35. Election Offense. — Any violation of RA 9006 and these Rules shall constitute an election offense
Leonen, JJ., concur. punishable under the first and second paragraph of Section 264 of the Omnibus Election Code in addition to
Brion * and Jardeleza, * JJ., took no part. administrative liability, whenever applicable. Any aggrieved party may file a verified complaint for violation of these Rules
Perlas-Bernabe, ** J., is on official leave. with the Law Department of the Commission.
49. Section 13. Authority of the COMELEC to Promulgate Rules; Election Offenses. — The COMELEC shall promulgate and
Footnotes furnish all political parties and candidates and the mass media entities the rules and regulations for the implementation of
* No part. this Act, consistent with the criteria established in Article IX-C, Section 4 of the Constitution and Section 86 of the
** On official leave. Omnibus Election Code (Batas Pambansa Blg. 881).
1. Rollo, pp. 29-49. Rules and regulations promulgated by the COMELEC under and by authority of this Section shall take effect on the
2. The COMELEC First Division was composed of Commissioners Lucenito N. Tagle, Christian Robert S. Lim and Al A. seventh day after their publication in at least two (2) daily newspapers of general circulation. Prior to effectivity of said
Parreño; rollo, pp. 49A-61. rules and regulations, no political advertisement or propaganda for or against any candidate or political party shall be
3. Records, p. 1. published or broadcast through mass media.
4. Rollo, pp. 91-96. Violation of this Act and the rules and regulations of the COMELEC issued to implement this Act shall be an election
5. Records, pp. 16-28. offense punishable under the first and second paragraphs of Section 264 of the Omnibus Election Code (Batas
6. Id. at 49. Pambansa Blg. 881).
7. Id. at 47-48. 50. Sec. 264. Penalties. — Any person found guilty of any election offense under this Code shall be punished with
8. Id. at 30-32. imprisonment of not less than one year but not more than six years and shall not be subject to probation. In addition, the
9. Id. at 33-49. guilty party shall be sentenced to suffer disqualification to hold public office and deprivation of the right of suffrage. If he is
10. 380 Phil. 745 (2000). a foreigner, he shall be sentenced to deportation which shall be enforced after the prison term has been served. Any
11. 442 Phil. 139 (2002). political party found guilty shall be sentenced to pay a fine of not less than ten thousand pesos, which shall be imposed
12. Approved on December 3, 1985. upon such party after criminal action has been instituted in which their corresponding officials have been found guilty.
13. 373 Phil. 896 (1999). In case of prisoner or prisoners illegally released from any penitentiary or jail during the prohibited period as provided in
14. Records, pp. 50, 56; rollo, p. 135. Section 261, paragraph (n) of this Code, the director of prisons, provincial warden, keeper of the jail or prison, or persons
15. Records, pp. 57, 59. who are required by law to keep said prisoner in their custody shall, if convicted by a competent court, be sentenced to
16. Rollo, pp. 153-161. suffer the penalty of prision mayor in its maximum period if the prisoner or prisoners so illegally released commit any act
17. Id. at 157. of intimidation, terrorism of interference in the election.
18. Id. at 160. Any person found guilty of the offense of failure to register or failure to vote shall, upon conviction, be fined one hundred
19. Otherwise known as "The Electoral Reforms Law of 1987." pesos. In addition, he shall suffer disqualification to run for public office in the next succeeding election following his
20. Rollo, pp. 140-152. conviction or be appointed to a public office for a period of one year following his conviction.
21. Id. at 60-61. 51. Rules of Procedures in the Investigation and Prosecution of Election Offense Cases in the Commission on Elections
22. Rule 25 of the COMELEC Rules of Procedure or the "Rules Governing Pleadings, Practice and Procedure before the (Promulgated on April 13, 2012).
COMELEC or any of its Offices," which was promulgated on February 15, 1993, pertains to disqualification of candidates. 52. Sec. 265. Prosecution. — The Commission shall, through its duly-authorized legal officers, have the exclusive power to
23. In the Matter of the Amendment to Rules 23, 24, and 25 of the COMELEC Rules of Procedure for Purposes of the May conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The
13, 2013 National, Local and ARMM Elections and Subsequent Elections (Promulgated on September 25, 2012). Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the
24. G.R. No. 195649, April 16, 2013, 696 SCRA 420.

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event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the
complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted.
53. Sec. 2. Amendments Only by Leave. — After the case is set for hearing, substantial amendments may be made only upon
leave of the Commission or the Division, as the case may be. Such leave may be refused if it appears to the Commission
or the Division that the motion was made with intent to delay the action or that the cause of action or defense is
substantially altered. Orders of the Commission or the Division upon the matters provided in this section shall be made
upon motion duly filed, and after the adverse the party has been notified and afforded an opportunity to be heard.
54. Sunga v. COMELEC, supra note 33 at 324, and Abella v. Larrazabal, 259 Phil. 992, 1000 (1989).
55. Codilla, Sr. v. Hon. De Venecia, supra note 11 at 177-178. See also Aratea v. Commission on Elections, G.R. No. 195229,
October 9, 2012, 683 SCRA 105, 129, Jalosjos v. Commission on Elections, G.R. No. 193237, October 9, 2012, 683
SCRA 1, 29, and Blanco v. COMELEC, et al., 577 Phil. 622, 633-634 (2008).
56. Sec. 3 Rule 25 of which provides:
Section 3. Period to File Petition. — The Petition shall be filed any day after the last day for filing of certificates of
candidacy, but not later than the date of proclamation.
57. Sec. 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be disqualified shall
not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final
judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon
motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of
such candidate whenever the evidence of his guilt is strong.
58. Section 5. Effect of Petition if Unresolved Before Completion of Canvass. — If a Petition for Disqualification is unresolved
by final judgment on the day of elections, the petitioner may file a motion with the Division or Commission En Banc where
the case is pending, to suspend the proclamation of the candidate concerned, provided that the evidence for the grounds
to disqualify is strong. For this purpose, at least three (3) days prior to any election, the Clerk of the Commission shall
prepare a list of pending cases and furnish all Commissioners copies of said the list.
In the event that a candidate with an existing and pending Petition to disqualify is proclaimed winner, the Commission
shall continue to resolve the said Petition.
59. Sec. 5, Rule 23 in relation to Sec. 4 Rule 25 of COMELEC Resolution No. 9523.
60. Sec. 2.
61. See Bagatsing v. COMELEC, 378 Phil. 585, 593-595 (1999).
62. 378 Phil. 585 (1999).
63. Bagatsing v. COMELEC, supra note 61, at 595-596.
64. Sunga v. COMELEC, supra note 33, at 322-324. See also Lonzanida v. COMELEC, 370 Phil. 625, 639-641 (1999) and
Bagatsing v. COMELEC, supra note 61, at 596-597.
65. Sunga v. COMELEC, supra note 33, at 324.
66. Lanot v. Commission on Elections, supra note 30, at 360. See also Bagatsing v. COMELEC, supra note 61, at 600 and
Blanco v. COMELEC, et al., supra note 55, at 632.
67. Sec. 5 Rule 23 in relation to Sec. 4 Rule 25 of COMELEC Resolution No. 9523.
68. SEC. 34. Offer of evidence. — The court shall consider no evidence which has not been formally offered. The purpose for
which the evidence is offered must be specified.
69. 69 Phil. 635 (1940).
70. Section 3. Judicial notice, when hearing necessary. — During the trial, the court, on its own initiative, or on request of a
party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon.
After the trial, and before judgment or on appeal, the proper court, on its own initiative, or on request of a party, may take
judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the
case.
71. Sec. 4. In what cases not applicable.
These Rules shall not apply to election cases, land registration, cadastral, naturalization and insolvency
proceedings, and other cases not herein provided for, except by analogy or in a suppletory character and whenever
practicable and convenient.
72. Sec. 4. Rule 25 of COMELEC Resolution No. 9523 states that, except in motu proprio cases, Sections 3, 4, 5, 6, 7, and 8
of Rule 23 shall apply in proceedings to disqualify a candidate. Sec. 4 of Rule 23, in turn, provides:
Section 4. Procedure to be observed. — Both parties shall observe the following procedure:
1. The petitioner shall, before filing of the Petition, furnish a copy of the Petition, through personal service to the
respondent. In cases where personal service is not feasible, or the respondent refuses to receive the Petition, or the
respondents' whereabouts cannot be ascertained, the petitioner shall execute an affidavit stating the reason or
circumstances therefor and resort to registered mail as a mode of service. The proof of service or the affidavit shall be
attached to the Petition to be filed;
2. The Petition intended for the Commission shall be in eleven (11) copies. Upon receipt of the Petition, payment of the
filing fee of P10,000.00 and legal research fee of P100.00 and official receipt, the Office of the Clerk of the Commission
shall docket the Petition and assign to it a docket number, which must be consecutive according to the order of receipt,
and must bear the year and prefixed as SPA (DC);
3. The Petition shall contain the correct information as to the addresses, telephone numbers, facsimile numbers, and
electronic mail of both parties and counsel, if known.
4. No Petition shall be docketed unless the requirements in the preceding paragraphs have been complied with;
5. Upon the proper filing and docketing of the Petition, the Clerk of the Commission shall, within three (3) days, issue
summons with notice of conference through personal service, or in the event of impossibility or shortness of time, resort to
telegram, facsimile, electronic mail, or through the fastest means of communication to the respondent and notice of
conference to the petitioner;
6. Within a non-extendible period of five (5) days from receipt of summons, the respondent shall, personally or through his
authorized representative, file his verified Answer to the Petition with the Office of the Clerk of the Commission in ten (10)
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JULY 11, 2019
legible copies, with proof of personal service of answer upon the petitioner. A motion to dismiss shall not be admitted, but
grounds thereof may be raised as an affirmative defense. The failure of the respondent to file his verified Answer within
the reglementary period shall bar the respondent from submitting controverting evidence or filing his memorandum.
7. The Clerk of the Commission or, in his/her absence, his/her duly authorized representative, shall preside during the
conference. It shall be the duty of the parties or their duly-designated counsel, possessing a written authority under oath,
to appear during the conference. Should the petitioner or his authorized counsel fail to appear, the Petition shall be
dismissed. Should respondent or his authorized counsel fail to appear, the Petition shall be deemed submitted for
resolution. If the petitioner or respondent is not present during the conference, the failure of the counsel to produce a
written authority under oath shall have the effect of non-appearance unless the counsel has previously filed a pleading
bearing the conformity of his client. The following matters shall be taken up during the conference:
a. Production of a written authority under oath of counsel;
b. Comparison between the original and/or certified true copies and copies of documentary and real evidence; and
c. Setting of the period to file the parties' respective memorandum, which shall not be later than ten (10) days from
the date of the conference.
8. Unless the Division or the Commission En Banc requires a clarificatory hearing, the case shall be deemed submitted
for resolution upon the receipt of both parties' Memoranda or upon the expiration of the period to do so, whichever comes
sooner.
9. The Memorandum of each party shall contain, in the above order herein indicated, the following:
a. "Statement of the Case", which is a clear and concise statement of the nature of the action, a summary of the
documentary evidence, and other matters necessary to an understanding of the nature of the controversy;
b. "Statement of the Issues", which is a clear and concise statement of the issues;
c. The "Argument" which is a clear and concise presentation of the argument in support of each issue;
d. The "Objections to Evidence", which states the party's objections to the real and documentary evidence of the
other party and stating the legal grounds for such objection;
e. The "Relief" which is a specification of the judgment which the party seeks to obtain. The issues raised in his/its
pleadings that are not included in the Memorandum shall be deemed waived or abandoned. The Commission may
consider the memorandum alone in deciding or resolving the Petition, said memorandum being a summation of the
parties' pleadings and documentary evidence; and
f. Annexes — which may consist of the real and documentary evidence, including affidavits of witnesses in lieu of
oral testimony, in support of the statements or claims made in the Memorandum.
10. Prior to promulgation of a decision or resolution, a Division or the Commission En Banc may, in its discretion, call for a
hearing in the event it deems it necessary to propound clarificatory questions on factual issues.
11. No other pleadings seeking affirmative relief shall be allowed. If after termination of the Conference, but prior to
promulgation of a decision or resolution, a supervening event occurs that produces evidence that could materially affect
the determination of the grant or denial of the Petition, a party may submit the same to the Division or Commission En
Banc, where applicable, through a Manifestation.
73. See Sps. Llanes v. Rep. of the Phils., 592 Phil. 623, 633-634 (2008) and AB Leasing and Finance Corporation v. Comm.
of Internal Revenue, 453 Phil. 297, 308 (2003).
74. Sps. Llanes v. Rep. of the Phils., supra, at 633-634.
75. Hayudini v. Commission on Elections, supra note 44.
76. Id.
77. Dycoco v. Court of Appeals, G.R. No. 147257, July 31, 2013, 702 SCRA 566, 583 and A.Z. Arnaiz Realty, Inc. v. Office of
the President, G.R. No. 170623, July 7, 2010, 624 SCRA 494, 503.
78. See National Association of Electricity Consumers for Reforms, Inc. (NASECORE) v. Energy Regulatory Commission
(ERB), G.R. No. 190795, July 6, 2011, 653 SCRA 642, and A.Z. Arnaiz Realty, Inc. v. Office of the President, supra note
77.
79. See page 26 of Ejercito's Verified Motion for Reconsideration (Rollo, p. 87).
80. Section 2. Judicial notice, when discretionary. — A court may take judicial notice of matters which are of public
knowledge, or are capable to unquestionable demonstration, or ought to be known to judges because of their judicial
functions.
81. Sec. 1, Rule 2 of COMELEC Resolution No. 9476.
82. Sec. 26, Rule 130 of the Rules of Court states:
Sec. 26. Admission of a party. — The act, declaration or omission of a party as to a relevant fact may be given in
evidence against him.
83. 558 U.S. 310 (2010).
84. Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for redress of grievances.
85. Rules and Regulations Governing Campaign Finance and Disclosure in Connection with the May 13, 2013 National and
Local Elections and Subsequent Elections Thereafter (Promulgated on June 22, 2012).
86. Sec. 94 of the OEC states:
SECTION 94. Definitions. — As used in this Article:
(a) The term "contribution" includes a gift, donation, subscription, loan, advance or deposit of money or anything of value,
or a contract, promise or agreement to contribute, whether or not legally enforceable, made for the purpose of influencing
the results of the elections but shall not include services rendered without compensation by individuals volunteering a
portion or all of their time in behalf of a candidate or political party. It shall also include the use of facilities voluntarily
donated by other persons, the money value of which can be assessed based on the rates prevailing in the area.
(b) The term "expenditure" includes the payment or delivery of money or anything of value, or a contract, promise or
agreement to make an expenditure, for the purpose of influencing the results of the election. It shall also include the use
of facilities personally owned by the candidate, the money value of the use of which can be assessed based on the rates
prevailing in the area.
xxx xxx xxx
CONSTI REV – FULL TEXT
87. Sec. 13, R.A. No. 9006.
88. R.A. No. 9006, Sections 4.3 and 6.3.
89. Rule 5, Sections 1 and 2.
90. Sec. 7 (b).
91. People v. Echegaray, 335 Phil. 343, 349 (1997).
92. See F. F. Mañacop Construction Co., Inc. v. CA, 334 Phil. 208, 211-212 (1997).
93. Titan Construction Corporation v. David, Sr., G.R. No. 169548, March 15, 2010, 615 SCRA 362, 379.
94. Typoco v. Commission on Elections, G.R. No. 186359, March 5, 2010, 614 SCRA 391, 393-394 and V.C. Cadangen, et al.
v. Commission on Elections, 606 Phil. 752, 760 (2009).
95. Supra note 45.
96. Juan v. Commission on Elections, supra note 45, at 303.
97. An electioneering communication is "any broadcast, cable, or satellite communication" that "refers to a clearly identified
candidate for Federal office" and is made within 30 days of a primary election, §434(f)(3)(A), and that is "publicly
distributed," 11 CFR § 100.29(a)(2), which in "the case of a candidate for nomination for President . . . means" that the
communication "[c]an be received by 50,000 or more persons in a State where a primary election . . . is being held within
30 days." (See Citizens United v. Federal Election Commission, 558 U.S. 310 [2010]).
98. The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech."
99. 494 U.S. 652 (1990).
100. 540 U.S. 93 (2003).
101. 424 U.S. 1 (1976).
102. 18 USCS 608 (e) (1).
103. The US Supreme Court ruled in Buckley:
The discussion in Part I-A, supra, explains why the Act's expenditure limitations impose far greater restraints on the
freedom of speech and association than do its contribution limitations. The markedly greater burden on basic freedoms
caused by § 608 (e)(1) thus cannot be sustained simply by invoking the interest in maximizing the effectiveness of the
less intrusive contribution limitations. Rather, the constitutionality of § 608 (e)(1) turns on whether the governmental
interests advanced in its support satisfy the exacting scrutiny applicable to limitations on core First Amendment rights of
political expression.
We find that the governmental interest in preventing corruption and the appearance of corruption is inadequate to justify §
608 (e)(1)'s ceiling on independent expenditures. First, assuming, arguendo, that large independent expenditures pose
the same dangers of actual or apparent quid pro quo arrangements as do large contributions, § 608 (e)(1) does not
provide an answer that sufficiently relates to the elimination of those dangers. Unlike the contribution limitations' total ban
on the giving of large amounts of money to candidates, § 608 (e)(1) prevents only some large expenditures. So long as
persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified
candidate, they are free to spend as much as they want to promote the candidate and his views. The exacting
interpretation of the statutory language necessary to avoid unconstitutional vagueness thus undermines the limitation's
effectiveness as a loophole-closing provision by facilitating circumvention by those seeking to exert improper influence
upon a candidate or officeholder. It would naively underestimate the ingenuity and resourcefulness of persons and groups
desiring to buy influence to believe that they would have much difficulty devising expenditures that skirted the restriction
on express advocacy of election or defeat but nevertheless benefited the candidate's campaign. Yet no substantial
societal interest would be served by a loophole-closing provision designed to check corruption that permitted
unscrupulous persons and organizations to expend unlimited sums of money in order to obtain improper influence over
candidates for elective office. Cf. Mills v. Alabama, 384 U.S. at 220.
Second, quite apart from the shortcomings of § 608 (e) (1) in preventing any abuses generated by large independent
expenditures, the independent advocacy restricted by the provision does not presently appear to pose dangers of real or
apparent corruption comparable to those identified with large campaign contributions. The parties defending § 608 (e) (1)
contend that it is necessary to prevent would-be contributors from avoiding the contribution limitations by the simple
expedient of paying directly for media advertisements or for other portions of the candidate's campaign activities. They
argue that expenditures controlled by or coordinated with the candidate and his campaign might well have virtually the
same value to the candidate as a contribution and would pose similar dangers of abuse. Yet such controlled or
coordinated expenditures are treated as contributions rather than expenditures under the Act. Section 608 (b)'s
contribution ceilings rather than § 608 (e)(1)'s independent expenditure limitation prevent attempts to circumvent the Act
through prearranged or coordinated expenditures amounting to disguised contributions. By contrast, § 608(e)(1) limits
expenditures for express advocacy of candidates made totally independently of the candidate and his campaign. Unlike
contributions, such independent expenditures may well provide little assistance to the candidate's campaign and indeed
may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate or
his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that
expenditures will be given as a quid pro quo for improper commitments from the candidate. Rather than preventing
circumvention of the contribution limitations, § 608 (e)(1) severely restricts all independent advocacy despite its
substantially diminished potential for abuse.
While the independent expenditure ceiling thus fails to serve any substantial governmental interest in stemming the reality
or appearance of corruption in the electoral process, it heavily burdens core First Amendment expression. For the First
Amendment right to "'speak one's mind. . . on all public institutions'" includes the right to engage in "'vigorous advocacy'
no less than 'abstract discussion.'" New York Times Co. v. Sullivan, 376 U.S. at 269, quoting Bridges v. California, 314
U.S. 252, 270 (1941), and NAACP v. Button, 371 U.S. at 429. Advocacy of the election or defeat of candidates for federal
office is no less entitled to protection under the First Amendment than the discussion of political policy generally or
advocacy of the passage or defeat of legislation.
It is argued, however, that the ancillary governmental interest in equalizing the relative ability of individuals and groups to
influence the outcome of elections serves to justify the limitation on express advocacy of the election or defeat of
candidates imposed by § 608 (e)(1)'s expenditure ceiling. But the concept that government may restrict the speech of
some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment,
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JULY 11, 2019
which was designed "to secure 'the widest possible dissemination of information from diverse and antagonistic sources,'"
and "'to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the
people.'" New York Times Co. v. Sullivan, supra, at 266, 269, quoting Associated Press v. United States, 326 U.S. 1, 20
(1945), and Roth v. United States, 354 U.S. at 484. The First Amendment's protection against governmental abridgment
of free expression cannot properly be made to depend on a person's financial ability to engage in public discussion. Cf.
Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 139 (1961).
The Court's decisions in Mills v. Alabama, 384 U.S. 214 (1966), and Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241
(1974), held that legislative restrictions on advocacy of the election or defeat of political candidates are wholly at odds
with the guarantees of the First Amendment. In Mills, the Court addressed the question whether "a State, consistently with
the United States Constitution, can make it a crime for the editor of a daily newspaper to write and publish an editorial on
election day urging people to vote a certain way on issues submitted to them." 384 U.S. at 215 (emphasis in original). We
held that "no test of reasonableness can save [such] a state law from invalidation as a violation of the First Amendment."
Id., at 220. Yet the prohibition of election-day editorials invalidated in Mills is clearly a lesser intrusion on constitutional
freedom than a $1,000 limitation on the amount of money any person or association can spend during an entire election
year in advocating the election or defeat of a candidate for public office. More recently in Tornillo, the Court held that
Florida could not constitutionally require a newspaper to make space available for a political candidate to reply to its
criticism. Yet under the Florida statute, every newspaper was free to criticize any candidate as much as it pleased so long
as it undertook the modest burden of printing his reply. See 418 U.S. at 256-257. The legislative restraint involved in
Tornillo thus also pales in comparison to the limitations imposed by § 608 (e)(1).
For the reasons stated, we conclude that § 608 (e)(1)'s independent expenditure limitation is unconstitutional under the
First Amendment.
104. See Buckley v. Valeo, supra note 101.
105. Sec. 4.3 in relation to Sec. 13.
106. Sections 1 and 2 Rule 5 of COMELEC Resolution No. 9476 and Sec. 7 (b) of COMELEC Resolution No. 9615.
107. Buckley explained: "Section 608 (b) provides, with certain limited exceptions, that 'no person shall make contributions to
any candidate with respect to any election for Federal office which, in the aggregate, exceed $1,000.' The statute defines
'person' broadly to include 'an individual, partnership, committee, association, corporation or any other organization or
group of persons.' § 591 (g). The limitation reaches a gift, subscription, loan, advance, deposit of anything of value, or
promise to give a contribution, made for the purpose of influencing a primary election, a Presidential preference primary,
or a general election for any federal office. §§ 591 (e)(1), (2). The $1,000 ceiling applies regardless of whether the
contribution is given to the candidate, to a committee authorized in writing by the candidate to accept contributions on his
behalf, or indirectly via earmarked gifts passed through an intermediary to the candidate. §§ 608 (b)(4), (6). The restriction
applies to aggregate amounts contributed to the candidate for each election — with primaries, run-off elections, and
general elections counted separately and all Presidential primaries held in any calendar year treated together as a single
election campaign. § 608 (b)(5)."
108. See McCutcheon, et al. v. Federal Election Commission, 134 S. Ct. 1434 (2014).
109. See VDA Fish Broker v. National Labor Relations Commission, G.R. Nos. 76142-43, December 27, 1993, 228 SCRA 681
and Philippine Airlines, Inc. v. Court of Appeals, 263 Phil. 806, 817 (1990).
110. 449 Phil. 118 (2003).
111. Republic of the Philippines v. Manila Electric Company, supra, at 127.
112. 487 Phil. 531 (2004).
113. Central Bank Employees Assoc., Inc. v. Bangko Sentral ng Pilipinas, supra note 112 at 598, citing Francisco, Jr. v. The
House of Representatives, 460 Phil. 830, 889 (2003).
114. 351 Phil. 692 (1998).
115. G.R. No. 102653, March 5, 1992, 207 SCRA 1.
116. Sec. 11. Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda prohibited under
Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:
xxx xxx xxx
b) for any newspapers, radio broadcasting or television station, other mass media, or any person making use of the mass
media to sell or to give free of charge print space or air time for campaign or other political purposes except to the
Commission as provided under Section 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist,
commentator, announcer or personality who is a candidate for any elective public office shall take a leave of absence from
his work as such during the campaign period.
This so-called "political ad ban" under R.A. 6646 was later repealed by R.A. 9006.
117. Osmeña v. COMELEC, supra note 114, at 713-714.
118. Entitled "An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing
Appropriations Therefor, and for Other Purposes" and was signed into law on November 26, 1991.
119. Rule 4 of COMELEC Resolution No. 9476 provides:
Section 1. Authorized expenses of candidates and parties. — The aggregate amount that a candidate or party may spend
for an election campaign shall be as follows:
a. President and Vice-President — Ten Pesos (PhP10.00) for every registered voter.
b. For other candidates — Three Pesos (PhP3.00) for every voter currently registered in the constituency where the
candidate filed his certificate of candidacy.
c. Candidate without any political party and without support from any political party — Five Pesos (PhP5.00) for every
voter currently registered in the constituency where the candidate filed his certificate of candidacy; and
d. Political parties and party-list groups — Five Pesos (PhP5.00) for every voter currently registered in the constituency or
constituencies where it has official candidates. [RA 7166, Section 13, Paragraphs 2 and 3]
For the May 2013 elections, Sec. 5 of COMELEC Resolution No. 9615 reiterates:
SECTION 5. Authorized Expenses of Candidates and Parties. — The aggregate amount that a candidate or party
may spend for election campaign shall be as follows:
CONSTI REV – FULL TEXT JULY 11, 2019

a. For candidates — Three pesos (P3.00) for every voter currently registered in the constituency where the candidate filed question in every case is whether the words used are used in such circumstances and are of such a nature as to create a
his certificate of candidacy; clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a
b. For other candidates without any political party and without support from any political party — Five pesos (P5.00) for question of proximity and degree."
every voter currently registered in the constituency where the candidate filed his certificate of candidacy. The regulation which restricts the speech content must also serve an important or substantial government interest, which
c. For Political Parties and party-list groups — Five pesos (P5.00) for every voter currently registered in the constituency is unrelated to the suppression of free expression.
or constituencies where it has official candidates. Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of that interest. A
The exemption from donor's tax is stated in Sec. 3 Rule 3 of COMELEC Resolution No. 9476. restriction that is so broad that it encompasses more than what is required to satisfy the governmental interest will be
120. Sec. 39 of R.A. No. 7166 provides: invalidated. The regulation, therefore, must be reasonable and narrowly drawn to fit the regulatory purpose, with the least
SEC. 39. Amending and Repealing Clause. — Sections 107, 108 and 245 of the Omnibus Election Code are hereby restrictive means undertaken.
repealed. Likewise, the inclusion in Section 262 of the Omnibus Election Code of the violations of Sections 105, 106, 107, Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an intermediate review. A content-
108, 109, 110, 111 and 112 as among election offenses is also hereby repealed. This repeal shall have retroactive effect. based regulation, however, bears a heavy presumption of invalidity and is measured against the clear and present danger
Batas Pambansa Blg. 881, Republic Act No. 6646, Executive Order Nos. 144 and 157 and all other laws, orders, decrees, rule. The latter will pass constitutional muster only if justified by a compelling reason, and the restrictions imposed are
rules and regulations or other issuances, or any part thereof, inconsistent with the provisions of this Act are hereby neither overbroad nor vague. (pp. 204-208)
amended or repealed accordingly. 128. Art. II, Sec. 26. The State shall guarantee equal access to opportunities for public service . . . .
121. Pursuant to the law, Rule 4 of COMELEC Resolution No. 9476 in the same way states: Art. IX-C (4). The Commission may, may during the election period, supervise or regulate the enjoyment or utilization of all
Section 2. Coverage of the Expenses. — The expenses herein referred to shall include those incurred or caused to be franchises or permits from the operation of transportation and other public utilities, media of communication or
incurred by the candidate, whether in cash or in kind, including the use, rental or hire of land, water or aircraft, equipment, information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or
facilities, apparatus and paraphernalia used in the campaign. instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or
If the foregoing are owned by the candidate, his contributor or supporter, and the use of which are given free of charge to regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates
the candidate, the candidate shall assess and declare the amount commensurate with the expenses for the use thereof, therefor for public information campaigns and forms among candidates in connection with the objective of holding free,
based on the prevailing rate in the locality and shall be included in the total expenses incurred by the candidate. [n] orderly, honest, peaceful, and credible elections.
The Commission shall have the power to determine if the assessment is based on the prevailing rates in the locality and Art. XIII, Sec. 1. The Congress shall give highest priority to the enactment of measures that . . . reduce . . . political
effect the necessary correction. [OEC, Sec. 100] inequalities . . . by equitably diffusing wealth and political power for the common good.
xxx xxx xxx
Section 4. Persons authorized to incur election expenditures. — No person, except the candidate, the treasurer of the
party, or any person authorized by such candidate or treasurer, shall make any expenditure in support of or in opposition
to any candidate or the party. Such expenditures, if duly authorized, shall be considered as expenditure of such candidate
or party. [OEC, Sec. 103, Par. 1] (Emphasis supplied)
122. See Navarro v. Ermita, G.R. No. 180050, April 12, 2011, 648 SCRA 400, 455; Commissioner of Internal Revenue v. SM
Prime Holdings, Inc., G.R. No. 183505, February 26, 2010, 613 SCRA 774, 778-779; and League of Cities of the Phils., et RA 7166, SECTION 13. Authorized Expenses of Candidates and Political Parties. — The aggregate
al. (LCP) v. COMELEC, et al., 592 Phil. 1, 30 (2008). amount that a candidate or registered political party may spend for election campaign shall be as follows:
123. Otherwise known as "The 1978 Election Code."
124. R.A. No. 6388 was approved on September 2, 1971. It repealed, among others, Sections 48 and 49 of R.A. No. 180 that (a) For candidates. — Ten pesos (P10.00) for President and Vice-President; and for other candidates,
was approved on June 21, 1947. Sections 48 and 49 state: Three Pesos (P3.00) for every voter currently registered in the constituency where he filed his certificate of
SEC. 48. Limitation upon expenses of candidates. — No candidate shall spend for his election campaign more than the candidacy: Provided, That, a candidate without any political party and without support from any political party
total amount of the emoluments for one year attached to the office for which he is a candidate. may be allowed to spend Five Pesos (P5.00) for every such voter; and
SEC. 49. Unlawful expenditures. — It is unlawful for any person to make or offer to make an expenditure, or to cause an
expenditure to be made or offered to any person to induce one either to vote or withhold his vote, or to vote for or against (b) For political parties. — Five pesos (P5.00) for every voter currently registered in the constituency
any candidate, or any aspirant for the nomination or selection of a candidate of a political party, and it is unlawful for any
or constituencies where it has official candidates.
person to solicit or receive directly or indirectly any expenditure for any of the foregoing considerations.
In turn, the above provisions were lifted from Sections 42 and 43 of Commonwealth Act No. 357, which was approved on Any provision of law to the contrary notwithstanding, any contribution in cash or in kind to any candidate or
August 22, 1938.
125. Otherwise known as "The 1971 Constitutional Convention Act" (Approved on August 24, 1970).
political party or coalition of parties for campaign purposes, duly reported to the Commission shall not be
126. Plopenio v. Department of Agrarian Reform, G.R. No. 161090, July 4, 2012, 675 SCRA 537, 543. subject to the payment of any gift tax.
127. In Chavez v. Gonzales, et al. (569 Phil. 155 [2008]), the Court distinguished between content-based and content-neutral
regulations:
Hence, it is not enough to determine whether the challenged act constitutes some form of restraint on freedom of speech.
RA 10590, SECTION 22. Section 15 of the same Act is hereby renumbered as Section 22 and is
A distinction has to be made whether the restraint is (1) a content-neutral regulation, i.e., merely concerned with the
incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards; or (2) a amended to read as follows:
content-based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech. The
cast of the restriction determines the test by which the challenged act is assayed with.
"SEC. 22. Regulation on Campaigning Abroad. — Personal campaigning, the use of campaign materials, as
When the speech restraints take the form of a content-neutral regulation, only a substantial governmental interest is well as the limits on campaign spending shall be governed by the laws and regulations applicable in the
required for its validity. Because regulations of this type are not designed to suppress any particular message, they are Philippines: Provided, That all forms of campaigning abroad within the thirty (30)-day overseas voting period
not subject to the strictest form of judicial scrutiny but an intermediate approach — somewhere between the mere shall be prohibited."
rationality that is required of any other law and the compelling interest standard applied to content-based restrictions. The
test is called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the
restrictions be narrowly-tailored to promote an important or significant governmental interest that is unrelated to the
suppression of expression. The intermediate approach has been formulated in this manner:
A governmental regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an
important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free
expression; and if the incident restriction on alleged [freedom of speech & expression] is no greater than is essential to
the furtherance of that interest.
On the other hand, a governmental action that restricts freedom of speech or of the press based on content is given the
strictest scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome the clear and
present danger rule will it pass constitutional muster, with the government having the burden of overcoming the presumed
unconstitutionality.
Unless the government can overthrow this presumption, the content-based restraint will be struck down.
With respect to content-based restrictions, the government must also show the type of harm the speech sought to be
restrained would bring about — especially the gravity and the imminence of the threatened harm — otherwise the prior
restraint will be invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, "but only
by showing a substantive and imminent evil that has taken the life of a reality already on ground." As formulated, "the

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CONSTI REV – FULL TEXT JULY 11, 2019

EN BANC Section 2 of the aforestated law, inter alia, allocated three delegates to represent the lone district of Lanao del
Norte, including Iligan City. Twenty-nine candidates contended for the three seats thus allotted.
[G.R. No. L-33325. December 29, 1971.]
On November 12, 1970, Luis Quibranza, Francisco Abalos, Alfredo Bosico, Luis Buendia and Bonifacio
MASTURA USMAN, petitioner, vs. COMMISSION ON ELECTIONS and LUIS QUIBRANZA, respondents. Legaspi (hereinafter referred to as the Comelec petitioners), candidates for delegate in the aforementioned
[G.R. No. L-34043. December 29, 1971.] district, petitioned the Commission on Elections (hereinafter referred to as the Comelec) for a declaration of
nullity of the election returns from all the precincts of seven municipalities and municipal districts —
MASTURA USMAN, petitioner, vs. COMMISSION ON ELECTIONS, LUIS QUIBRANZA, MARIANO Karomatan, Pantao-Ragat, Matungao, Munai, Tangcal, Magsaysay, and Nunungan — and four barrios —
BADILLES and FRANCISCO ABALOS, respondents. Kapatagan, Salvador, Lala, and Kauswagan — of Lanao del Norte. The Comelec petitioners alleged as
grounds that in the said municipalities and barrios, no actual voting took place because of "terrorism and other
Pedro Q. Quadra for petitioner.
machinations," and that
Jovito Salonga for respondent Luis Quibranza, et al.
"fictitious election returns were prepared under duress, and the influence of terrorism and/or bribery wherein, it
Romulo C. Felizmeña, Horacio Apostol & Elesio Blancaflor for respondent Commission on Elections. was made to appear that certain favored candidates obtained most, if not all the votes fictitiously cast therein,
while petitioners were made to appear as having obtained very few, if no votes at all."
SYLLABUS
The Comelec petitioners particularly stressed that the canvassing of the fictitious votes and the preparation of
1. COMMISSION ON ELECTIONS; POWER TO ENSURE FREE, ORDERLY AND HONEST the election returns from the precincts of Karomatan were in violation of the procedure laid down in resolution
ELECTIONS; COMMISSION CAN ORDER EXCLUSION OF IRREGULAR RETURNS. — The broad power of 769 of the Comelec. They prayed for the holding of a special election in the municipalities and barrios
the Comelec, conferred upon it by the Constitution, to enforce and administer "all laws relative to the conduct concerned and, ad interim, the suspension of the canvass as well as the proclamation of the winning
of elections" and to decide all administrative questions affecting elections "for the purpose of insuring free, candidates until after hearing and decision on the merits of the petition.
orderly and honest elections," has been the key in the resolution of many pre-proclamation controversies
involving the integrity and authenticity of election returns. Invoking the aforestated power of the Comelec, we The initial canvass of all the election returns from all the precincts of Lanao del Norte showed the following
justified the action and upheld the authority of the Comelec to order the exclusion of "obviously manufactured" results:
returns, or tampered returns, or returns prepared under threats and coercion or under circumstances affecting
1. Mariano Badelles 30,770,
the returns' integrity and authenticity, emphasizing the duty of the Comelec to see to the use and inclusion in
the canvass of only genuine and regular election returns for determining the true result of the elections. 2. Mastura Usman 23,615,
2. ID.; ID.; EVIDENCE ALIUNDE ADMISSIBLE TO ESTABLISH IRREGULARLY OF RETURNS. — In 3. Francisco Abalos 22,843,
the performance of its duty to guard against the use and inclusion of returns prepared under circumstances
showing their falsity in the canvass of election results, the Comelec should not be hampered in the choice of 4. Cornelio Sugano 18,486,
effective means and methods to fully ascertain the genuineness and regularity of disputed election returns. To 5. Luis Quibranza 17,831.
establish the indubitable existence of any of such circumstances — necessarily not evident from an
examination of the election returns themselves — demands recourse to proof independent of the election With the exclusion, however, of the tally of the election returns from the 42 precincts of Karomatan, the results
returns or to evidence aliunde. would be as follows:
3. ID.; REPUBLIC ACT 6132; SEC. 17 (e) THEREOF EMPOWERS COMELEC TO CALL FOR 1. Francisco Abalos 22,827,
SPECIAL ELECTION; REQUIREMENTS FOR HOLDING SPECIAL ELECTIONS. — A reading of Section 17
(e) of Republic Act 6132 makes it apparent that Congress has delegated to the Comelec the power to call for a 2. Mariano Badelles 22,292,
special election — a power essentially legislative in nature, being merely an incident to or an extension or 3. Luis Quibranza 17,379,
modality of the power to fix the date of the elections. However, in the proper exercise of the delegated power,
Congress saw fit to require the Comelec to ascertain that (1) no voting has been held in any precinct or 4. Mastura Usman 14,301.
precincts because of force majeure, violence or terrorism, and (2) that the votes not cast therein suffice to
On November 14, 1970, the Comelec issued two resolutions ordering the board of canvassers to canvass the
affect the results of the elections. The language of the provision clearly requires the concurrence of the two
election returns in Manila, ordering the same board to desist from proclaiming the winning candidates until
circumstances to justify the calling of a special election.
further orders, and setting the petition for hearing in Manila to ascertain the truth of the allegation that no
4. ID.; ID.; ID.; MASSIVE FRAUD, NOT A GROUND FOR CALLING SPECIAL ELECTIONS. — The voting took place in the disputed precincts.
Comelec concedes that what transpired in Karomatan constitutes "not merely a simple case of irregularity in
On November 24, 1970, the Comelec petitioners, joined by another candidate, Potri Ali Pacasum, amended
the voting but a case of no voting or no election at all." However, the Comelec attributes this to "massive fraud"
their petition, asking for the exclusion of the election returns from the precincts of the barrios of Kapatagan,
rather than to force majeure, violence or terrorism — the three causes explicitly enumerated by Section 17 (e).
Salvador, Lala, and Kauswagan, except those from precincts 16 and 24 of Kapatagan and precincts 14 and
Unlike Section 17 (d) which empowers the Comelec to postpone the election in any political division or
14-A of Salvador, and repeating their allegation that no elections actually took place in the questioned
subdivision whenever it finds that the holding of a free, orderly and honest election therein is rendered
precincts,
impossible by reason of fraud, violence, coercion, terrorism, or any other serious cause or causes, Section 17
(e) excludes the situation where no voting has been held because of fraud. Furthermore, doubt exists whether "and/or in the remote possibility that elections had been initiated, they were suspended before the hour fixed
or not the irregularities committed in Karomatan properly partake of violence or terrorism. This being the case, by law for the closing of the voting because of violence or terrorism and that the votes not cast therein are
we find that the first circumstance is not attendant. sufficient to affect the results of the elections,"
DECISION and adding that the election returns from the said precincts.
CASTRO, J p: ". . . were prepared prior to the elections, and/or had been tampered with and/or are statistically improbable in
that the number of voters who allegedly cast their votes is out of proportion to the actual population in those
Pursuant to Republic Act 6132, 1 election of delegates to the Constitutional Convention was held throughout
municipalities and municipal districts concerned."
the nation on November 10, 1970. Republic Act 6132 called for the election of three hundred and twenty
delegates apportioned among sixty-seven representative districts. Mariano Badelles, Cornelio Sugano and Mastura Usman (hereinafter referred to as the Comelec
respondents), candidates affected by the petition, two of whom appeared as frontrunners per the initial

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CONSTI REV – FULL TEXT JULY 11, 2019

canvass of all the election returns from all the precincts of Lanao del Norte, filed an amended answer dated (back side of CE 1) and/or on the list of voters who voted (CE form 39), to determine whether or not the
November 26, 1970 wherein they vehemently denied the allegations of the Comelec petitioners, brushing registered voter actually voted. The revised report also stated that the examiners made no analysis in those
them off as "preposterous and without basis both in fact and in law." Claiming that "free, clean, peaceful and instances wherein a person appears to have voted as his name appears on CE form 39 but has no CE form 1,
orderly" elections took place in all the places and precincts enumerated by the Comelec petitioners, they or where a voter failed to place his thumbmark on CE form 39 and on the back side of CE form 1. The revised
asked for the dismissal of the petition on the ground of lack of cause of action. report showed the following results:
At a preliminary conference between the parties, they assented to the summoning by the Comelec of the 1. Total number of registered voters
chairmen of the boards of inspectors of Karomatan to testify in Manila. They also agreed to allow the chairmen
of the boards of inspectors of the other municipalities to testify in Iligan City. The Comelec then subpoenaed per precinct books of voters 9,419,
the 42 chairmen of the boards of inspectors of Karomatan. On December 9, 1970, a number of them arrived in 2. Total number of persons who voted
Manila.
per CE forms 39 9,455
At the hearing, four chairmen testified, three of whom declared that the elections in their respective precincts
were "free, honest and orderly." Of the three, however, one broke down on cross-examination and revealed (102 voters who voted per CE forms 1 but not listed
what really transpired in his precinct on election day. He related that only about 10% to 20% of the registered
in CE forms 39 will be added to this total),
voters in his precinct actually voted and that armed men prepared and filled up the rest of the ballots. In
addition, he stated that two unidentified men gave him a piece of paper with the names of five candidates 3. Total numbers of person without CE
written thereon with the corresponding number of votes "they were supposed to receive in the precinct." The
unidentified men told him to give the indicated number of votes to the persons listed in the piece of paper, so form 1 but who voted per CE forms 39 673,
the board prepared the election returns in accordance with their instructions. 4. Total number of registered voters
The fourth chairman who testified revealed that on the day before the elections, the members of the boards of who did not vote 521,
inspectors, having been summoned, appeared at the office of the mayor where they were questioned on their
"willingness to cooperate" by making some candidates win in their respective precincts. She further testified The revised report revealed the following results:
that on election day, about twenty Muslims appeared in her precinct who prepared and filled up the ballots and
thumbmarked and signed the voting record. 1. Number of voters with thumbmark

In the meantime, the Comelec, upon the application of the Comelec petitioners, ordered the production in on voting record for 1970 and/or on
Manila of the precinct books of voters for Karomatan, including CE forms 39 (lists of voters who voted) used in CE form 39 not identical with
connection with the 1970 elections.
that on CE form 1 5,192,
On December 12, 1970, the Comelec, by resolution, directed the chief of its Fingerprint Identification Division,
Jose Abrigo, to examine all the precinct books of voters for Karomatan, together with the CE forms 39 2. Number of voters with thumbmark on
accomplished in connection with the 1970 elections, to determine:
voting record for 1970 and/or on CE form
"a. Whether the thumbmark affixed on the 1970 voting record of each voter on Form No. 1 coincides
39 identical to that on CE form 1 22,
with the thumbmark of the voters on the face of said Form No. 1 and also in the 1970 Form No. 39;
3. Number of voters with blurred, smudged
"b. How many are there where the thumbmark on Form 1, the voting record and Form 39 are by the
same persons indicating that the registered voter had cast his vote in the precinct? or faint thumbmarks 3,684.
"c. How many are there where the thumbmark on Form 1, the voting record and Form 39 are by more With regard to the blurred, smudged or faint thumbmarks, the revised report explained, the Questioned
than one person? Documents experts of the NBI detailed with the Comelec instead made a comparison of the signatures
appearing on the registration record and voting record. The results of the examination are:
"d. Are there thumbmarks in Form 39 which appear more than once, indicating that one person affixed
his thumbmark more than once? 1. Number of signatures found positive
"e. Are there thumbmarks appearing in more than one voting record also indicating that one person (signed by the same person) 217,
affixed thumbmark in two or more voting records in Form 1?",
2. Number of signatures found negative
and in the case of blurred thumbmarks or thumbmarks not capable of being used as bases for identification, to
examine the signatures in CE form 1, the voting record, and CE form 39 instead. The Comelec ordered Abrigo (not signed by the same person) 955,
to submit his report thereon. 3. Number of signatures wherein the
In the resolution, the Comelec ordered the suspension of the examination of the other chairmen of the boards examiners reached and made no opinion 2,506.
of inspectors.
On March 12, 1971 the Comelec issued Resolution RR-892 wherein, among others, it (1) declared, by
On December 21, 1970, Abrigo having submitted a partial report, the Comelec directed him to withdraw the unanimous vote, the returns from the 42 precincts of Karomatan as "spurious and/or manufactured;" (2)
same and submit a complete one. Abrigo thereafter submitted two reports dated December 28, 1970 and ordered, by unanimous vote, the exclusion from the canvass for the election of delegates for Lanao del Norte
January 21, 1971. Subsequently, the Comelec ordered the revision of both reports for easier understanding the aforesaid returns; and (3) by unanimous vote, held as unnecessary any further hearing or the petition
and the inclusion of the report of the NBI handwriting experts. On February 9, 1971, Abrigo submitted the relating to the disputed returns from Pantao-Ragat, Matungao, Munai, Tangcal, Magsaysay, Nunungan,
revised report which introduced no changes with regard to the findings made in the previous reports. Kapatagan, and Salvador, "it appearing that the results of the election would no longer be affected by
The revised report stated that the Fingerprint Identification Division of the Comelec, in six teams of three questioned returns from said municipalities after the rejection of the returns from the 42 precincts of
members each, examined, analyzed and made a comparison of the registered voter's right hand thumbmark Karomatan." and directed the board of canvassers to include the returns from the said municipalities in the
appearing on the voter's registration record (front side of CE form 1) with that appearing on the voting record canvass.

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CONSTI REV – FULL TEXT
The Comelec found that
"in the 42 precincts of Karomatan, there were 9,419 registered voters and that 9,557 had actually voted, or
that 138 votes were in excess of the number of registered voters. Of these 9,557 who voted, only 239 had
been established to have actually voted among the registered voters in all the 42 precincts; that 6,147 of the
registered voters had been voted for by substitute voters, while an additional 673 persons who were not
registered in any of the 42 precincts were able to vote without using the name of any of the registered voters.
2,498 of those who voted could not be determined whether they were registered voters or persons who voted
in substitution of the registered voters."
Continuing, the Comelec observed that
"(I)n all the 42 precincts, many of the registered voters have been voted for by persons other than the
registered voters; in several precincts, several groups of thumbprints and signatures were made by one
person; in majority cases, none or only one each thumbprint or signature appears to belong to a registered
voter in the precinct but those identified as registered voters who voted in the precincts were probably those
who were able to vote before the substitute voters had voted. A very high percentage of voting could be noted
in these 42 precincts, there having been 100% voting in 10 precincts, and with more than 100% in 7 precincts
where there is an excess of votes over the registered voters. There was also an excess of votes in the whole
town by 138 votes over the number of registered voters."
Anent the testimony of the chairmen of the boards of inspectors relating to the "free, honest, and orderly"
elections in their respective precincts and the joint affidavits of the members of the aforesaid boards attesting
to the orderliness and peacefulness of the elections in the precincts wherein they served, the Comelec stated
that the findings of its Fingerprint Identification Division and of the NBI handwriting experts conclusively belie
the statements of the aforementioned members of the boards of inspectors of Karomatan. Rejecting the
veracity of their statements, the Comelec opined that the members of the boards of inspectors were
"co-conspirators or hostages of the perpetrators of a deeply rooted practice spawned by the political caciquism
of Karomatan, unwilling to tell the truth either because they would thereby be admitting their guilty participation
or exposing themselves and their families to reprisals."
In rejecting the election returns from the 42 precincts of Karomatan, the Comelec stated:
"An election return is a report prepared and certified as true and correct by the members of the board of
election inspectors of the election in their respective precincts, showing how the votes had been read, counted
and tallied by the board and the number of votes received by candidates. But an election return presupposes
that there is a bona fide, not a sham election, conducted in the precinct where only the registered voters had
voted. But if the election is sham, how can the board of inspectors make a report on the presumptive result of
the election in their respective precincts? How can said returns be accorded any prima facie value?. . . "
"What the board of inspectors of Karomatan should have done was to certify that there was no voting in their
precinct since the registered voters did not vote but somebody else voted in their names. When instead of
doing this they prepared the returns and certified to a falsehood, the returns prepared by them must be
considered spurious, false or manufactured returns and in fact is no return at all."
As to the question of whether or not to hold a special election in Karomatan, two members of the Comelec
voted down the calling of such a special election and directed the completion of the canvass on the basis of
the valid returns from the rest of the precincts of Lanao del Norte, and the proclamation, upon authority of
Antonio, Jr. vs. Comelec, et al. (32 SCRA 319), of the third winning candidate. The third Comelec member
held the view that the finding by the Comelec that the registered voters in the 42 precincts of Karomatan had
not voted amounts to a finding of failure of election in the said 42 precincts. He opined that pursuant to section
17 (e) of Republic Act 6132, the situation necessarily called for the holding of a special election in Karomatan.
Thus, Usman, on March 22, 1971, filed the present petition for review, 2 challenging the jurisdiction of the
Comelec in resolving the issue relating to the genuineness and authenticity of the disputed election returns,
and in inquiring into the regularity or irregularity of the thumbmarks and signatures of the voters who voted; (2)
questioning the regularity of the proceedings adopted by the Comelec in relation to the exercise of its
jurisdiction; and (3) assailing the probative value of the findings made regarding the signatures and
thumbmarks of the voters who voted in the 42 precincts of Karomatan. Usman prayed for (1) the issuance of a
writ of preliminary injunction restraining the Comelec from enforcing its resolution dated March 12, 1971 and
stopping the proclamation of the winning candidates tentatively set on March 25, 1971; (2) the setting aside of
the Comelec resolution dated March 12, 1971 and the inclusion of the results from the 42 precincts of
Karomatan in the canvass of the election returns and his proclamation as the winning candidate; and (3) in
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case this Court sustains the aforesaid Comelec resolution, the calling of a special election in all the 42
precincts of Karomatan, pursuant to section 17 (e) 3 of Republic Act 6132.
On March 23, 1971, this Court issued a temporary restraining order enjoining the Comelec from enforcing its
Resolution dated March 12, 1971 and from proceeding with the proclamation of the winning candidate
temporarily scheduled on March 25, 1971.
The Comelec filed its answer on April 6, 1971; Quibranza his on April 13, 1971. Both the Comelec and
Quibranza vehemently refute Usman's claim of want of jurisdiction on the part of the Comelec to inquire into
the regularity or irregularity of the thumbmarks and signatures of the voters who voted relative to its inquiry
into the genuineness and authenticity of the election returns from the 42 precincts of Karomatan. Regarding
the regularity of the proceedings questioned by Usman, the Comelec and Quibranza maintain that the action
filed by the former — a special civil action for certiorari — excludes any consideration of procedural errors.
After hearing of the case on April 21, 1971, this Court required the parties to submit their memoranda in
amplification of their arguments. Quibranza filed his on May 3, 1971; Usman his on May 5, 1971.
In his memorandum, Usman repeats his arguments in support of his stand that the Comelec lacks jurisdiction
to inquire into the regularity or irregularity of the thumbmarks and signatures of the voters who voted and
claims denial of due process, alleging that the Comelec gave him no opportunity
"to engage the services of a handwriting expert and a fingerprint expert to examine the thumbmarks and
signatures of the registered voters who voted in all the 42 precincts of Karomatan, Lanao del Norte."
and that the said Comelec refused to divulge.
"the qualification, competency, educational background and training, if any, of all the members of the six (6)
teams who allegedly conducted the so-called expert examination of thumbmarks."
Then, this Court, in a resolution dated May 17, 1971 set aside the Comelec resolution of March 12, 1971 and
remanded the case to the Comelec to enable it to reopen the proceedings
"for the purpose of giving petitioner Usman a reasonable period of thirty (30) days from receipt of its order
implementing this decision, within which to summarily present whatever competent evidence he may have,
expert or otherwise, tending either to show the lack of qualifications of the Comelec thumbprint or handwriting
experts or to rebut their findings, on the basis of which the Comelec has ruled that the returns from the 42
precincts in question of Karomatan, Lanao del Norte 'are spurious and/or manufactured returns and as such
should be excluded from the canvass for the election of delegates for the lone congressional district of Lanao
del Norte'."
The majority of this Court stated in the resolution that the Comelec failed to fully recognize and respect
Usman's right to due process when
"(a) petitioner Usman was not allowed by the Comelec, without sufficient reasons, to present any
evidence to rebut the findings of its experts regarding the thumbprints and signatures in the C.E. Forms 1 and
their corresponding C.E. Forms 39 submitted to them to the effect that out of the total 9,557 votes cast in the
said 42 precincts in Karomatan, only 239 had been established to have been cast by duly registered voters,
673 had been cast by non-registered persons, 6,147 had been cast by substitute voters and 2,498 had been
cast by persons whose thumbprints and signatures are not definitely identifiable; (b) the qualifications of
almost all of said experts were not duly disclosed, much less proven during the hearing, thus depriving the
petitioner, inspite of his request, of the opportunity to properly scrutinize them, and (c) only the chief of said
experts, Jose M. Abrigo, who had not personally examined and studied all the thumbprints and signatures in
question, was called to testify, albeit aided by his assistants, and his testimony on cross-examination appears
to have been unduly limited by the Comelec; not to mention the fact that the several reports of the experts of
the Comelec, and of the National Bureau of Investigation, who, with the exception of only Eduardo V.
Maniwang, were not called to testify, are not clearly consistent with each other."
Pursuant to the aforestated resolution, the Comelec reopened the proceedings and set the case for hearing on
June 29, 1971.
At the resumed hearing, Usman, asked to present his evidence, informed the Comelec of his desire to call to
the witness stand the Comelec fingerprint examiners who personally studied the precinct books of voters and
CE forms 39 of Karomatan. So the Comelec, on July 9, 10, 17 and 20, 1971, called the 18 fingerprint
examiners to the witness stand and Usman questioned them as to their qualifications. Usman also informed
the Comelec of his intention to present one fingerprint and handwriting expert after he finished with his
interrogation of all the Comelec fingerprint examiners. However, after his questioning of the Comelec
CONSTI REV – FULL TEXT
fingerprint examiners, Usman notified the Comelec that instead of presenting any expert witness, he intended
to submit affidavits of voters of Karomatan.
On July 9, 1971 Usman also petitioned the Comelec to send a team of 21 Comelec lawyers to Karomatan to
take the affidavits of the registered voters, members of the boards of election inspectors, government officials
and employees, and religious and civic leaders of the said municipality. On July 14, 1971 Quibranza opposed
the aforementioned petition, stating that the move was "another maneuver to prolong and delay the case."
Subsequently, on July 17, 1971, the Comelec resolved to allow Usman to secure the affidavits subject to the
following conditions:
"A. The affidavits may be sworn to before any Notary Public or Municipal Judge;
"B. The affidavits shall not only be sworn to by affiants but shall also contain:
1) Three (3) facsimile signatures of the affiants;
2) Fingerprints of the two (2) hands of the affiant which must be legible, otherwise, the affidavit shall
not be considered; and
3) The affidavit shall contain the precinct number where the affiant voted in the last election or the
precinct number where the affiant served in the last election in case of members of the Board of Inspectors;
"C. Candidate Mastura Usman shall have until July 30, 1971 to submit to the Commission such
affidavits; and
"D. Upon the suggestion of Counsel Pedro Quadra, the other candidates for the position of delegate in
the province of Lanao del Norte shall be notified of the date and time of the taking of the said affidavits, who
may be present personally or thru their authorized representatives."
On July 30, 1971, the day set for the presentation of the affidavits, the counsel for Usman informed the
Comelec that he had not yet received the said affidavits, and asked for an extension up to August 9, 1971 to
submit them. He also manifested that the extension would be the last and that he would rest his case on the
basis of the affidavits secured on August 9, 1971.
On August 9, 1971, the counsel for Usman again asked for a resetting of the hearing for August 13, 1971 on
the ground of non-receipt of the affidavits from Karomatan. Over the objections of the counsel for Quibranza,
the Comelec reset the hearing to August 13, 1971.
At the hearing at 10 o'clock in the morning of August 13, 1971, Usman's counsel asked for a recess as he
expected the arrival of the affidavits that morning. Thus the Comelec, to give the counsel for Usman ample
time to sort out the affidavits for an orderly presentation, re-scheduled the case for hearing the following
Monday, August 16, 1971.
Came Monday morning and the counsel for Usman failed to appear. Instead, he sent his secretary to deliver
the affidavits, together with a motion for postponement and a petition asking for more time within which to
gather additional affidavits. Usman's counsel, in asking for postponement, alleged as cause his appearance
before the Criminal Circuit Court in Baguio City in connection with the hearing of the criminal case against
Vincent Crisologo. The Comelec, before acting on the motion for postponement, called the secretary to the
witness stand to find out the reason for the non-appearance of Usman's counsel despite the fact that the
Comelec had reset the case to August 16, 1971 with the counsel's prior knowledge and for his convenience.
The Comelec found out that Usman's counsel gave his secretary instructions to bring the affidavits to the
Comelec only the preceding night and that two other lawyers, belonging to the said counsel's law office, were
also handling the Crisologo case in Baguio City. So the Comelec denied the motion for postponement.
Anent the affidavits, the counsel for Quibranza objected to their admission in evidence on the ground of non-
compliance with the conditions laid down by the Comelec. The Comelec sustained the objection of
Quibranza's counsel and denied the admission of the affidavits. Nonetheless, the Comelec ordered the
inclusion of the affidavits as part of the records of the case. Quibranza's counsel not having any rebuttal
evidence to present, the Comelec considered the case submitted for resolution.
The Comelec, in its resolution of August 21, 1971, found no basis to reconsider its findings based on the
reports of the fingerprint and handwriting experts, and resolved to confirm its previous ruling declaring the
returns from the 42 precincts of Karomatan as "spurious and manufactured" returns and ordering their
exclusion from the canvass. On the question of whether or not to call a special election, the Comelec chairman
maintained his original view relating to the completion of the canvass on the basis of the valid returns from the
rest of the precincts of the lone district of Lanao del Norte and the proclamation of the third winning candidate
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on the basis of the said canvass. The other member maintained his original view on the need of holding a
special election in the 42 precincts of Karomatan. And because of the retirement of the third commissioner, the
Comelec found itself in a deadlock on the issue of whether to call a special election in Karomatan or to
proclaim the third winning candidate on the basis of the canvass of all the valid returns from the remaining
precincts of Lanao del Norte.
Upon the voluminous record of the case at bar, 4 the mass of accumulated facts graphically narrated by the
parties and the various arguments advanced, the issue tendered for resolution, as we see it, relates
fundamentally to the authority of the Comelec to declare the election returns from the 42 precincts of
Karomatan as "spurious and/or manufactured" and to exclude them from the canvass.
Usman's main argument hinges entirely on what he views as the well — circumscribed jurisdiction of the
Comelec in pre-proclamation controversies. He argues that the Comelec, in such proceedings — summary in
nature and character — has jurisdiction only to determine questions relating to the qualification of the
members of the board of canvassers, the completeness or incompleteness of a canvass, and the integrity and
authenticity of election returns.
The Comelec, in its inquiry, Usman states, should concern itself only with the integrity and authenticity of the
election returns, and not their veracity — that is, whether the said returns are genuine, whether they are forged
and spurious, whether they were signed by the proper officers, and whether they were signed under duress
and/or intimidation by the election inspectors. The Comelec should decide the question of the integrity and
authenticity of the election returns solely on the basis of the face of the said returns since it has no legal
authority to receive evidence aliunde in that regard.
Usman further alleges that the questions of the validity of the ballots cast in support of the election returns and
the regularity of the voting, have no relevance whatsoever to the integrity and authenticity of the election
returns. The power to reject and set aside the said election returns on the ground of the invalidity of the ballots
cast in support thereof pertains solely to the Constitutional Convention.
Therefore, Usman points out, the Comelec has no authority at all to receive evidence aliunde to determine the
regularity or irregularity of the voting in the 42 precincts of Karomatan or to ascertain the genuineness or falsity
of the thumbmarks and signatures of the registered voters who voted, for the purpose of deciding the question
of the integrity and authenticity of the election returns. Usman attributes the Comelec's lack of jurisdiction to
two factors — the first, the summary nature and character of a pre-proclamation controversy which requires
the termination of the proceedings with the least possible delay; the second, the limited composition and
restricted organization of the Comelec which render it incapable of exercising the authority questioned.
Quibranza, for his part, argues that the Comelec has authority to admit evidence aliunde in a controversy
arising in the course of canvass proceedings. True, he states, regarding election returns objected to on the
ground of defects patent on the face of the said returns — like tampered returns or returns with erasures and
alterations — the Comelec has no jurisdiction to go beyond the face of the election returns. Nevertheless,
regarding election returns objected to on some ground not discernible from the face of the said returns — like
coerced, gunpoint, spurious or manufactured returns — the Comelec has authority to admit evidence aliunde
to rebut the value of the returns as prima facie evidence of the count of votes in the precincts involved.
Similarly, Quibranza asserts, the Comelec has jurisdiction to receive evidence aliunde that would show that
"registered voters did not in fact vote, but that ether persons voted for them." In such an event where a great
majority of substitutes voted in lieu of those duly registered as voters, the election returns drawn up on the
basis of the votes cast by the substitute voters should be considered as spurious returns and should
consequently not be accorded prima facie value. Certainly, there could be no genuine and regular returns
certifying to the results of an election that did not, in law, take place.
Quibranza finally avers that the Comelec acted within its authority when it ordered — for the purpose of
determining whether or not validly registered voters actually voted in the precincts in dispute — the
examination and analysis of the standard thumbmarks and signatures appearing on the voters' registration
records and their comparison with those found on the voting records and/or list of voters who voted. In doing
so, he adds, the Comelec concerned itself only with the conduct of the elections in Karomatan in consonance
with its constitutional duty to enforce and administer "all laws relative to the conduct of elections" and to insure
"free, orderly, and honest elections."
Indeed, the case at bar directly confronts this Court with a problem fraught, not with fancied serious effects,
but with possible far-reaching consequences attendant to the flood of pre-proclamation controversies that
could be brought before the Comelec. Mindful of the vital role of the Comelec of insuring free, orderly and
honest elections pursuant to the mandates of the Constitution and the Election Code, on the one hand, and of
CONSTI REV – FULL TEXT JULY 11, 2019

the diverse — and oftentimes, novel — anomalous devices and schemes aimed at subverting the popular will 5. The notorious election record of Karomatan in previous elections since 1953 indicating a
ingeniously conceived and practised by unscrupulous politicians and their followers, on the other hand, we phenomenal increase in the voting population. 8 The record shows:
approach and view the problem with utmost concern and circumspection.
Year: No. of Registered Voters: No. of Precincts
The broad power of the Comelec, conferred upon it by the Constitution, to enforce and administer "all laws
relative to the conduct of elections" and to decide all administrative questions affecting elections "for the 1953 1,028 4
purpose of insuring free, orderly and honest elections," has been the key in the resolution of many pre- 1955 1,655 4
proclamation controversies involving the integrity and authenticity of election returns. Invoking the aforestated
power of the Comelec, we justified the action and upheld the authority of the Comelec to order the exclusion of 1957 1,935 5
"obviously manufactured" returns, 5 or tampered returns, 6 or returns prepared under threats and coercion or
1959 2,929 5
under circumstances affecting the returns' integrity and authenticity, 7 emphasizing the duty of the Comelec to
see to the use and inclusion in the canvass of only genuine elections. 1961 3,447 8
Several circumstances, defying exact description and dependent mainly on the factual milieu of the particular 1963 5,756 13
controversy, have the effect of destroying the integrity and authenticity of disputed election returns and of
avoiding their prima facie value and character. If satisfactorily proven, although in a summary proceeding, 1965 8,446 24
such circumstances as alleged by the affected or interested parties, stamp the election returns with the 1967 8,000 18
indelible mark of falsity and irregularity, and, consequently, of unreliability, and justify their exclusion from the
canvass. 1969 9,061 42
Remarkably, Quibranza, in the petitions he filed (together with Abalos, Bosico, Buendia, Legaspi and 1970 9,945 42
Pacasum) with the Comelec, alleged that no actual voting took place in the precincts in question. Determined
to pursue its quest for the truth, the Comelec summoned the 42 chairmen of the boards of inspectors of We fully agree with the Comelec that the totality of all the foregoing circumstances, taken together with the
Karomatan to testify in Manila. And because only a number of the chairmen arrived to give their versions of findings of the Fingerprint Identification Division of the Comelec and of the Questioned Documents experts of
what supposedly happened in their respective precincts, the Comelec deemed it proper to resort to the more the NBI, more than suffices to completely overcome the prima facie value of the 42 election returns from
convincing mode of discovery. It thus ordered the production in Manila of the precinct books of voters and CE Karomatan, strongly belying their integrity and authenticity. 9 These circumstances definitely point, not merely
forms 39 of Karomatan. Then it directed the chief of its Fingerprint Identification Division to conduct to a few isolated instances of irregularities affecting the integrity and authenticity of the election returns, but to
examination, comparison and analysis of the fingerprints appearing on the voters' registration records and on an organized, well-directed large-scale operation to make a mockery of the elections in Karomatan. We find
the voting records and/or lists of voters who voted. With regard to those voters with blurred, smudged or faint and so hold that the election returns from the 42 precincts in question were prepared under circumstances
fingerprints, the Comelec referred their records to the Questioned Documents experts of the NBI for conclusively showing that they are false, and are so devoid of value as to be completely unworthy of inclusion
examination and analysis of their signatures. in the canvass. We have no alternative but to affirm the Comelec's finding that they are spurious and
manufactured.
In the performance of its duty to guard against the use and inclusion of returns prepared under circumstances
showing their falsity in the canvass of election results, the Comelec should not be hampered in the choice of The only question that remains relates to Usman's plea for the holding of a special election in Karomatan. With
effective means and methods to fully ascertain the genuineness and regularity of disputed election returns. To section 17 (e) of Republic Act 6132 in mind, Usman considers it mandatory on the part of the Comelec to call
establish the indubitable existence of any of such circumstances — necessarily not evident from an for a special election in the precincts concerned if it found that
examination of the election returns themselves — demands recourse to proof independent of the election "no voting has been held or that voting has been suspended before the hour fixed by law for the closing of the
returns or to evidence aliunde. voting in any precinct or precincts because of force majeure, violence or terrorism, and the votes not cast
At this juncture, we find it necessary to mention that the results of the examination and analysis of the voters' therein are sufficient to affect the results of the election."
fingerprints and signatures indicating that many of the registered voters have been voted for by persons not Quibranza counters that the aforestated provision of law leaves to the discretion of the Comelec the calling of
even registered in the 42 precincts of Karomatan, constituted not the sole factor which prompted the Comelec a special election. In addition, he submits that the said provision finds no application in the case at bar
to declare the 42 election returns as "spurious and/or manufactured." A totality of circumstances — not merely because of the non-fulfillment of one of the conditions laid down by section 17 (e), which condition is that the
of persuasive but of compelling character — led the Comelec to consider and conclude that the aforesaid "votes not cast therein are sufficient to affect the results of the election." Usman, according to Quibranza,
election returns are "spurious and/or manufactured" and therefore unworthy of inclusion in the canvass of the adduced no evidence whatsoever to show that the "votes not cast" in Karomatan would alter the results of the
election results. The Comelec heavily relied on the following noteworthy circumstances: election.
1. The very high percentage of voting in the 42 precincts of Karomatan — with 100% voting in 10 In resolving this question, as previously stated, the Comelec commissioners, per the resolution dated August
precincts, and with more than 100% voting in 7 precincts where the number of votes exceeded the number of 21, 1971, failed to reach a consensus. One commissioner believed that the canvass should be completed on
registered voters — in the whole town of Karomatan, there appeared an excess of 138 votes over the number the basis of the valid returns from the other precincts of Lanao del Norte and that the proclamation of the third
of registered voters; winning candidate on the basis of the said canvass should logically follow; the other commissioner maintained
2. The day before the elections, the members of the boards of inspectors of Karomatan were his original view that there is used of a special election in Karomatan.
summoned to the office of the mayor where they were "asked" to "cooperate" by making some candidates win A reading of section 17 (e) of Republic Act 6132 makes it apparent that Congress has delegated to the
in their respective precincts; Comelec the power to call for a special election — a power essentially legislative in nature, being merely an
3. The members of the boards of inspectors of Karomatan, either out of fear due to terrorism or in incident to or an extension or modality of the power to fix the date of the elections. 10 However, in the proper
connivance with those responsible for the election anomalies, allowed voting by persons other than those exercise of the delegated power, Congress saw fit to require the Comelec to ascertain that (1) no voting has
registered as voters in their respective precincts, been held in any precinct or precincts because of force majeure, violence or terrorism, and (2) that the votes
not cast therein suffice to affect the results of the elections. The language of the provision clearly requires the
4. The other irregularities — among them, multiple registration, blurred fingerprints making concurrence of the two circumstances to justify the calling of a special election.
identification impossible, and ID pictures attached to CE forms 1 showing the registered voters as minors —
appearing in the precinct books of voters of Karomatan making possible the perpetration of the election The Comelec concedes that what transpired in Karomatan constitutes "not merely a simple case of irregularity
anomalies; and in the voting but a case of no voting or no election at all." However, the Comelec attributes this to "massive
fraud" rather than to force majeure, violence or terrorism — the three causes explicitly enumerated by section

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CONSTI REV – FULL TEXT JULY 11, 2019

17 (e). Unlike section 17 (d) which empowers the Comelec to postpone the election in any political division or 11. Prescinding from the matter of the exclusion from the canvass of all the 42 election returns from
subdivision whenever it finds that the holding of a free, orderly and honest election therein is rendered Karomatan resulting in the non-inclusion of the 239 votes found by the Comelec to have been actually cast by
impossible by reason of fraud, violence, coercion, terrorism, or any other serious cause or causes, section 17 registered voters in their respective precincts, it is to be observed that crediting all the 239 votes in favor of
(e) excludes the situation where no voting has been held because of fraud. Furthermore, doubt exists whether Usman would not suffice to alter the results Usman would have a resulting total of only 14,450 votes against
or not the irregularities committed in Karomatan properly partake of violence or terrorism. This being the case, Quibranza's 17,739.
we find that the first circumstance is not attendant.
As to the second circumstance, therefore, we find it unnecessary to indulge in surmises. 11
ACCORDINGLY, (1) the petition is dismissed; (2) the resolution of the Commission on Elections dated August
21, 1971 is affirmed; and (3) the restraining order dated March 23, 1971 issued by this Court is lifted. The
Commission on Elections is directed to order the board of canvassers to convene without delay and forthwith
proceed with and complete the canvass of the election returns from all the precincts of Lanao del Norte,
excluding therefrom all the election returns from the 42 precincts of Karomatan, and thereafter proclaim
accordingly the winning candidate for the third Constitutional Convention seat allotted to the said province.
This judgment is hereby declared immediately executory. No pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Makalintal, Fernando, Teehankee, Barredo, Villamor and Makasiar, JJ.,
concur.
Zaldivar, J., did not take part.
Footnotes
1. AN ACT IMPLEMENTING RESOLUTION OF BOTH HOUSES NUMBERED TWO AS AMENDED
BY RESOLUTION OF BOTH HOUSES NUMBERED FOUR OF THE CONGRESS OF THE PHILIPPINES
CALLING FOR A CONSTITUTIONAL CONVENTION, PROVIDING FOR PROPORTIONAL
REPRESENTATION THEREIN AND OTHER DETAILS RELATING TO THE ELECTION OF DELEGATES TO
AND THE HOLDING OF THE CONSTITUTIONAL CONVENTION, REPEALING FOR THE PURPOSE
REPUBLIC ACT FOUR THOUSAND NINE HUNDRED FOURTEEN, AND FOR OTHER PURPOSES
(otherwise known as the 1971 Constitutional Convention Act).
2. Considered by this Court as a special civil action per Resolution dated March 23, 1971.
3. Section 17(e) states:
"(e) Whenever the Commission determines, after notice and hearing, that no voting
has been held or that voting has been suspended before the hour fixed by law for the closing of the voting in
any precinct or precincts because of force majeure, violence or terrorism, and the votes not cast therein are
sufficient to affect the results of the election, the Commission may call for the holding or continuation of the
election in the precinct or precincts concerned. Pending such call, no candidate whose election may be
affected by the holding or continuation of the election, shall be proclaimed elected."
4. A consolidation of G. R. Nos. L-33325 and L-34043.
5. Lagumbay vs. Climaco and Comelec, 16 SCRA 175.
6. Cauton vs. Comelec and Sanidad, 19 SCRA 911.
7. Pacis vs. Comelec, 25 SCRA 391; Antonio, Jr. vs. Comelec, et al., 32 SCRA 319.
8. Parenthetically, the Comelec, considering circumstances 3 and 4, motu proprio initiated
proceedings for the annulment of the precinct books of voters of Karomatan pursuant to its authority to annul
precinct books of voters not prepared in accordance with the provisions of Republic Act 3588, as amended, or
prepared with attendant serious irregularities.
9. A phase of the controversy at bar, although not constituting a determinant factor, deserves passing
mention. The intervening period of about seven months from November 10, 1970 (the day of the election of
delegates to the Constitutional Convention) to June 1, 1971 (the day of the inaugural opening of the
Convention itself) provided the Comelec with sufficient time to fully inquire into the irregularities committed in
connection with the conduct of the said elections. This available time, in addition to the Comelec's "fact-finding
facilities, its contact with political strategists, and its knowledge derived from actual experience in dealing with
political controversies" (Sumulong vs. Comelec, 73 Phil. 289), enabled it to make a meticulous and extensive
study of the existence, nature and causes of the irregularities which attended the elections.
10. Ututalum vs. Comelec and Anni, 15 SCRA 465.

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CONSTI REV – FULL TEXT JULY 11, 2019

EN BANC simply on the basis of improvised tally sheets and that it was only after the termination of the canvass, the
proclamation of petitioner Jose C. Ramirez, and the accomplishment of the Certificate of Canvass of Votes
[G.R. No. 122013. March 26, 1997.] and Proclamation, that its clerk, Rosalia Abenojar, prepared the Statement of Votes (C.E. Form No. 20-A). In a
JOSE C. RAMIREZ, petitioner, vs. COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS sworn report, Ms. Abenojar herself stated that she was tired and drowsy at the time she prepared the
OF GIPORLOS, EASTERN SAMAR and ALFREDO I. GO, respondents. Statement of Votes for the mayoralty and vice mayoralty positions. Although this circumstance may support
petitioner's claim that the number of votes credited to private respondent Alfredo I. Go are actually those cast
Ambrosio, Ambrosio, Cadiao and Associates for petitioner. in Precinct Nos. 11, 11-A, 6, 1, 17, 7, and 10 for mayoralty candidate Rodito Fabillar, it is equally possible that
Go and Fabillar obtained the same number of votes in those precincts. That the clerk who prepared the
Felicen, Bagro, Giron and Associates for private respondent.
Statement of Votes was tired and drowsy does not necessarily mean the entries she made were erroneous.
SYLLABUS But what is clear is that the Statement of Votes was not prepared with the care required by its importance.
Accordingly, as the Solicitor General states, what the COMELEC should have ordered the MBC to do was not
1. POLITICAL LAW; COMMISSION ON ELECTIONS; PETITION FOR CORRECTION OF merely to recompute the number of votes for the parties, but to revise the Statement of Votes, using the
MANIFEST ERROR; MAY BE FILED DIRECTLY WITH THE COMMISSION ON ELECTIONS EN BANC. — election returns for this purpose. As this Court ruled in Villaroya v. Commission on Elections (155 SCRA 633-
Rule 27, § 5 of the 1993 Rules of the COMELEC expressly provides that pre-proclamation controversies 644 [1987]): [T]he COMELEC has ample power to see to it that the elections are held in clean and orderly
involving, inter alia, manifest errors in the tabulation or tallying of the results may be filed directly with the manner and it may decide all questions affecting the elections and has original jurisdiction on all matters
COMELEC en banc, thus 5. Pre-proclamation Controversies Which May Be Filed Directly With the relating to election returns, including the verification of the number of votes received by opposing candidates in
Commission. — (a) The following pre-proclamation controversies may be filed directly with the Commission: . . the election returns as compared to the statement of votes in order to insure that the true will of the people is
. 2) When the issue involves the correction of manifest errors in the tabulation or tallying of the results during known. Such a clerical error in the statement of votes can be ordered corrected by the COMELEC.
the canvassing as where (1) a copy of the election returns or certificate of canvass was tabulated more than
once, (2) two or more copies of the election returns of one precinct, or two or more copies of certificate of DECISION
canvass were tabulated separately, (3) there had been a mistake in the copying of the figures into the
MENDOZA, J p:
statement of votes or into the certificate of canvass, or (4) so-called returns from non-existent precincts were
included in the canvass, and such errors could not have been discovered during the canvassing despite the Petitioner Jose C. Ramirez and private respondent Alfredo I. Go were candidates for vice mayor of Giporlos,
exercise of due diligence and proclamation of the winning candidates had already been made. . . (e) The Eastern Samar in the election of May 8, 1995. Petitioner was proclaimed winner by the Municipal Board of
petition shall be heard and decided by the Commission en banc. . . Accordingly in Castromayor v. Commission Canvassers (MBC) on the basis of results showing that he obtained 1,367 votes against private respondent's
on Elections, (250 SCRA 298 [1995]) and Mentang v. Commission on Elections, (229 SCRA 666 [1993] this 1,235 votes. 1
Court approved the assumption of jurisdiction by the COMELEC en banc over petitions for correction of
manifest error directly filed with it. Our decision today in Torres v. COMELEC (G.R. No. 121031, March 26, On May 16, 1995, private respondent filed in the COMELEC a petition for the correction of what he claimed
1997) again gives imprimatur to the exercise by the COMELEC en banc of the power to decide petition for was manifest error in the Statement of Votes (SPC No. 95-198). He alleged that, based on the entries in the
correction of manifest error. Statement of Votes, he obtained 1,515 votes as against petitioner's 1,367 votes but that because of error in
addition, he was credited with 1,235 votes as shown in the following recomputation: 2
2. ID.; CERTIFICATION ISSUED BY THE MUNICIPAL BOARD CANVASSERS IS NOT THE
Precinct No. G, Alfredo I. Ramirez, Jose C.
PROPER WAY TO CORRECT MANIFEST ERRORS IN THE STATEMENT OF VOTES. — To begin with, the
8-A 23 43
corrections should be made either by inserting Corrections in the Statement of Votes which was originally 9 23 10
prepared and submitted by the MBC, or by preparing an entirely new Statement of Votes incorporating therein 8 37 49
the corrections. The certification issued by the MBC is thus not the proper way to correct manifest errors in the 2-A 31 48
Statement of Votes. More importantly, the corrections should be based on the election returns but here the 12 50 42
corrections appear to have been made by the MBC on the bases of the Certificates of Votes issued. 12-A 65 29
7-A 36 73
Certificates of Votes are issued by Boards of Election Inspectors (BEI) to watchers, pursuant to § 215 of the
20 7 19
Omnibus Election Code (OEC). While such certificates are useful for showing tampering, alteration, 3 88 56
falsification or any other irregularity in the preparation of election returns, there is no reason for their use in this 1-A 54 67
case since the integrity of the election returns is not in question. On the other hand, in the canvass of votes, 13-A 43 47
the MBC is directed to use the election returns. Accordingly, in revising the Statement of Votes supporting the 18 39 12
Certificate of Canvass, the MBC should have used the election returns from the precincts in question although 14 19 65
4 27 37
in fairness to the MBC, it proposed the use of election returns but the COMELEC en banc rejected the
5-A 43 67
proposal. 13 37 42
2 73 79
3. ID.; STATEMENT OF VOTES; IN CASE AT BAR, ITS PREPARATION AFTER THE 15 49 49
PROCLAMATION OF THE WINNING CANDIDATE WAS IN VIOLATION OF THE OMNIBUS ELECTION 11 58 18
CODE. — The Statement of Votes is a tabulation per precinct of votes garnered by the candidates as reflected 11-A 66 32
in the election returns. The Statement of Votes is a vital component of the electoral process. It supports the 6 115 98
Certificate of Canvass and is the basis for proclamation. But in this case the Statement of Votes was not even 1 130 52
prepared until after the proclamation of the winning candidate. This is contrary to the Omnibus Election Code, 17 54 15
7 86 67
§ 231 of which provides in part: . . . The respective board of canvassers shall prepare a certificate of canvass 10 60 13
duly signed and affixed with the imprint of the thumb of the right hand of each member, supported by a 5 50 55
statement of votes received by each candidate in each polling place and, on the basis thereof, shall proclaim 19 41 61
as elected the candidates who obtained the highest number of votes cast in the province, city, municipality or 21 59 46
barangay. 16 52 76
———— —— ——
4. ID.; COMMISSION ON ELECTIONS SHOULD HAVE ORDERED THE MUNICIPAL BOARD OF Total 29 Precincts 1,235 1,367
CANVASSERS TO REVISE THE STATEMENT OF VOTES, USING THE ELECTION RETURNS FOR THIS (Should be 1,515)
PURPOSE. — It appears from the Comment of the NBC that the MBC prepared its Certificate of Canvass

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CONSTI REV – FULL TEXT JULY 11, 2019

In his Answer with Counter-Protest, 3 petitioner Jose C. Ramirez disputed private respondent's claim. He said §5. Pre-proclamation Controversies Which May Be Filed Directly With the Commission. — (a) The
that instead of the total of the votes for private respondent Alfredo Go, it was actually the entries relating to the following pre-proclamation controversies may be filed directly with the Commission:
number of votes credited to him in Precinct Nos. 11, 11-A, 6, 1, 17, 7, and 10 which were erroneously reflected
in the Statement of Votes. According to petitioner, the entries in the Statement of Votes actually referred to the xxx xxx xxx
number of votes obtained by Rodito Fabillar, a mayoralty candidate, and not to the votes obtained by private 2) When the issue involves the correction of manifest errors in the tabulation or tallying of the results
respondent. Petitioner alleged that, as shown in the Certificate of Votes prepared by the Board of Election during the canvassing as where (1) a copy of the election returns or certificate of canvass was tabulated more
Inspectors, the votes cast for Go in the precincts in question were as follows: than once, (2) two or more copies of the election returns of one precinct, or two or more copies of certificate of
Precinct Nos.Per Statement Per Certificate canvass were tabulated separately, (3) there had been a mistake in the copying of the figures into the
of Votes of Votes statement of votes or into the certificate of canvass, or (4) so-called returns from non-existent precincts were
11 58 32 included in the canvass, and such errors could not have been discovered during the canvassing despite the
11-A 66 18 exercise of due diligence and proclamation of the winning candidates had already been made.
6 115 65
1 130 61 xxx xxx xxx
17 54 48
7 86 37 (e) The petition shall be heard and decided by the Commission en banc.
10 60 28
Accordingly in Castromayor v. Commission on Elections, 9 and Mentang v. Commission on Elections, 10 this
The addition of the number of votes (reflected in the Certificate of Votes) to the number of votes from other Court approved the assumption of jurisdiction by the COMELEC en banc over petitions for correction of
precincts confirms the MBC's certificate that the total number of votes cast was actually 1,367 for petitioner manifest error directly filed with it. Our decision today in Torres v. COMELEC 11 again gives imprimatur to the
and 1,235 for private respondent. exercise by the COMELEC en banc of the power to decide petition for correction of manifest error.
On August 1, 1995, the COMELEC en banc issued its first questioned resolution, directing the MBC to In any event, petitioner is estopped from raising the issue of jurisdiction of the COMELEC en banc. Not only
reconvene and recompute the votes in the Statement of Votes and proclaim the winning candidate for vice did he participate in the proceedings below but he also sought affirmative relief from the COMELEC en banc
mayor of Giporlos, Eastern Samar accordingly. 4 by filing a Counter-Protest in which he asked that "entr[ies] in the statement of votes for Precinct Nos. 11, 11-
A, 6, 1, 17, 7 and 10, be properly corrected for the petitioner, to reflect the correct mandate of the electorate of
Petitioner Jose C. Ramirez and public respondent Municipal Board of Canvassers filed separate "motions for Giporlos, Eastern Samar." 12 It is certainly not right for a party taking part in proceedings and submitting his
clarification." On September 26, 1995, the COMELEC en banc issued its second questioned resolution, case for decision to attack the decision later for lack of jurisdiction of the tribunal because the decision turns
reiterating its earlier ruling. It rejected the MBC's recommendation to resort to election return: 5 out to be adverse to him. 13
The Municipal Board of Canvassers is reminded that pursuant to Section 231 of the Omnibus Election Code, it Petitioner next contends that motu proprio the MBC already made a correction of the errors in the Statement
is the Statement of Votes, duly prepared, accomplished during the canvass proceedings, and certified true and of Votes in its certification dated May 22, 1995, which reads: 14
correct by said Board which supports and form (sic) the basis of the Certificate of Canvass and Proclamation
of winning candidates. In fact and indeed, the Municipal Board of Canvassers/Movant had submitted to the C E RTI F I CATI O N
Commission, attached to and forming part of the Certificate of Canvass and Proclamation a Statement of
To whom It May Concern:
Votes without any notice of any discrepancy or infirmity therein. To claim now that the proclamation was not
based on said Statement of Votes but on the Certificate of Votes because the entries in the Statement of Votes This is to certify that the hereunder candidates for Municipal Vice Mayor of Giporlos, Eastern Samar during the
are erroneous is too late a move, considering that by the Board's act of submitting said Statement of Votes as May 8, 1995 National and Local Elections got the number of Votes on the precincts listed hereunder in
attachment to the Certificate of Proclamation and Canvass, it had rendered regularity and authenticity thereto. tabulation form based in our Canvassing of Votes per Precincts.
Hence this petition for certiorari and mandamus seeking the annulment of the two resolutions, dated August 1,
1995 and September 26, 1995, of the Commission on Elections, and the reinstatement instead of the May 10,
1995 proclamation of petitioner Jose C. Ramirez as the duly elected vice mayor of Giporlos, Eastern Samar. Name of PRECINCT NUMBERS
candidate 11 11-A 6 1 17 7 10
Petitioner contends that (1) the COMELEC acted without jurisdiction over SPC No. 95-198 because the case GO, Alfredo I. 32 18 65 61 48 37 28
was resolved by it without having been first acted upon by any of its divisions, and (2) the MBC had already RAMIREZ, 18 32 98 52 15 67 13
made motu proprio a correction of manifest errors in the Statement of Votes in its certification dated May 22, Jose C.
1995, showing the actual number of votes garnered by the candidates and it was a grave abuse of its
discretion for the COMELEC to order a recomputation of votes based on the allegedly uncorrected Statement This certification is issued upon request of the interested party for whatever legal purpose this may serve him.
of Votes.
Giporlos, Eastern Samar.
With respect to the first ground of the petition, Art. IX, §3 of the Constitution provides:
May 22, 1995
§3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of
procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such To begin with, the corrections should be made either by inserting corrections in the Statement of Votes which
election cases shall be heard and decided in division. provided that motions for reconsideration of decisions was originally prepared and submitted by the MBC, or by preparing an entirely new Statement of Votes
shall be decided by the Comelec en banc. (Emphasis added) incorporating therein the corrections. 15 The certification issued by the MBC is thus not the proper way to
correct manifest errors in the Statement of Votes. More importantly, the corrections should be based on the
Although in Ong, Jr. v. COMELEC 6 it was said that "By now it is settled that election cases which include pre- election returns but here the corrections appear to have been made by the MBC on the bases of the
proclamation controversies must first be heard and decided by a division of the Commission" 7 — and a Certificates of Votes issued. Thus, in its motion for clarification, the MBC said:
petition for correction of manifest error in the Statement of Votes, like SPC No. 95-198 is a pre-proclamation
controversy — in none of the cases 8 cited to support this proposition was the issue the correction of a a. The proclamation of Jose C. Ramirez was based on the results of the certificate of canvass and
manifest error in the Statement of Votes under §231 of the Omnibus Election Code (B.P. Blg. 881) or §15 of tally of votes garnered by both petitioner and private respondent which showed Jose C. Ramirez garnering
R.A. No. 7166. On the other hand, Rule 27, §5 of the 1993 Rules of the COMELEC expressly provides that 1,367 as against 1,235 by Alfredo I Go, or a winning margin of 132 in favor of Jose C Ramirez;
pre-proclamation controversies involving, inter alia, manifest errors in the tabulation or tallying of the results b. Based on the certificate of votes in Precinct Nos. 11, 11-A, 6, 1, 17, 7, and 10, Alfredo I. Go
may be filed directly with the COMELEC en banc, thus garnered only 32, 18, 65, 61, 48, 37 and 28, respectively, and the votes ascribed to the latter shown in the

63
CONSTI REV – FULL TEXT JULY 11, 2019

statement of votes are clear typographical errors and were erroneously copied from the votes garnered by the election returns from all precincts of the Municipality of Giporlos and thereafter proclaim the winning
mayoral candidate Rodito P. Fabillar from the same seven (7) precincts in Giporlos; candidate on the basis thereof.
c. Because of typographical errors in the statement of votes, Alfredo I. Go ballooned (sic) by 280 SO ORDERED.
votes, such that instead of losing by 132 votes to Jose C Ramirez, Alfredo I Go acquired an unwarranted
margin of 148 votes; Narvasa, C .J ., Padilla, Regalado, Davide, Jr., Romeo, Bellosillo, Melo, Puno, Vitug, Kapunan, Francisco,
Hermosisima, Jr., Panganiban and Torres, Jr., JJ ., concur.
d. The recomputation based on the statement of votes alone without including the correct votes on
Footnotes
the Election Returns on the Seven (7) precincts aforesaid will frustrate the will of the people who 1. Rollo, p. 20.
unquestionably voted for Jose C. Ramirez by a clear majority of 132 votes; 2. Id., pp. 46-47.
3. Id., pp. 50-54.
e. In the preparation of the certificate of canvass and proclamation, only the certificate of votes of 4. Id., p. 59.
each candidate were considered by reason of the fact it was prepared and signed only on May 11, 1995 or 5. Id., p. 73.
one after (sic) the proclamation of the winning municipal candidates on May 10, 1995. 6. 216 SCRA 806 (1992).
7. Id., at 812.
Certificates of Votes are issued by Boards of Election Inspectors (BEI) to watchers, pursuant to §215 of the 8. Pascua v. COMELEC, G.R. No. 105913, November 16, 1992, En Banc Resolution; Sarmiento v. COMELEC, G.R.
Omnibus Election Code (OEC). While such certificates are useful for showing tampering, alteration, No. 105628, August 6, 1992, Typoco v. COMELEC, G.R. No. 105730, August 6, 1992; Genova Jr. v. COMELEC, G.R. No.
falsification or any other irregularity in the preparation of election returns, 16 there is no reason for their use in 105771, August 6, 1992; Manliclic v. COMELEC, G.R. No. 105797, August 6, 1992; Sinsuat v. COMELEC, G.R. No. 105919
this case since the integrity of the election returns is not in question. On the other hand, in the canvass of August 6, 1992.
9. 250 SCRA 298 (1995).
votes, the MBC is directed to use the election returns. 17 Accordingly, in revising the Statement of Votes 10. 229 SCRA 666 (1993).
supporting the Certificate of Canvass, the MBC should have used the election returns from the precincts in 11. G.R. No. 121031, March 26, 1997.
question although in fairness to the MBC, it proposed the use of election returns but the COMELEC en banc 12. Rollo, p. 52.
rejected the proposal. The Statement of Votes is a tabulation per precinct of votes garnered by the candidates 13. See Pangarungan v. COMELEC, 216 SCRA 522 (1992); Tijam v. Sibonghanoy, 23 SCRA 29 (1968); Ilocos Sur
as reflected in the election returns. aisadc Electric Cooperative, Inc. v . NLRC, 241 SCRA 36 (1995).
14. Rollo, p. 76.
The Statement of Votes is a vital component of the electoral process. It supports the Certificate of Canvass 15. Bince, Jr. v. COMELEC, 218 SCRA 782,795 (1993).
and is the basis for proclamation. 18 But in this case the Statement of Votes was not even prepared until after 16. R.A. No. 6646, §17.
17. OEC, §231(1); COMELEC Resolution No. 2756, §38.
the proclamation of the winning candidate. This is contrary to the Omnibus Election Code, §231 of which
18. OEC, 231; Duremdes v. Commission on Elections, 178 SCRA 746, 754 (1989).
provides in part: 19. Rollo, p. 162.
20. 155 SCRA 633, 643-644 (1987).
The respective board of canvassers shall prepare a certificate of canvass duly signed and affixed with the 21. Duremdes v. Commission on Elections, 178 SCRA at 757 (1989), citing Aguam v. COMELEC, 23 SCRA 833
imprint of the thumb of the right hand of each member, supported by a statement of votes received by each (1968).
candidate in each polling place and, on the basis thereof, shall proclaim as elected the candidates who
obtained the highest number of votes cast in the province, city, municipality or barangay.
Indeed, it appears from the Comment of the MBC that the MBC prepared its Certificate of Canvass simply on
the basis of improvised tally sheets and that it was only after the termination of the canvass, the proclamation
of petitioner Jose C. Ramirez, and the accomplishment of the Certificate of Canvass of Votes and
Proclamation, that its clerk, Rosalia Abenojar, prepared the Statement of Votes (C.E. Form No. 20-A). In a
sworn report, Ms. Abenojar herself stated that she was tired and drowsy at the time she prepared the
Statement of Votes for the mayoralty and vice mayoralty positions. Although this circumstance may support
petitioner's claim that the number of votes credited to private respondent Alfredo I. Go are actually those cast
in Precinct Nos. 11, 11-A, 6, 1, 17, 7, and 10 for mayoralty candidate Rodito Fabillar, it is equally possible that
Go and Fabillar obtained the same number of votes in those precincts. That the clerk who prepared the
Statement of Votes was tired and drowsy does not necessarily mean the entries she made were erroneous.
But what is clear is that the Statement of Votes was not prepared with the care required by its importance.
Accordingly, as the Solicitor General states, what the COMELEC should have ordered the MBC to do was not
merely to recompute the number of votes for the parties, but to revise the Statement of Votes, using the
election returns for this purpose. 19 As this Court ruled in Villaroya v. Commission on Elections: 20
[T]he COMELEC has ample power to see to it that the elections are held in clean and orderly manner and it
may decide all questions affecting the elections and has original jurisdiction on all matters relating to election
returns, including the verification of the number of votes received by opposing candidates in the election
returns as compared to the statement of votes in order to insure that the true will of the people is known. Such
a clerical error in the statement of votes can be ordered corrected by the COMELEC. (Emphasis added)
Petitioner's final contention that in any event SPC No. 95-198 must be considered rendered moot and
academic by reason of his proclamation and assumption of office is untenable. The short answer to this is that
petitioner's proclamation was null and void and therefore the COMELEC was not barred from inquiring into its
nullity. 21
WHEREFORE, the petition is partially GRANTED by annulling the resolutions dated August 1, 1995 and
September 26, 1995 of the Commission on Elections. The COMELEC is instead DIRECTED to reconvene the
Municipal Board of Canvassers or, if this is not feasible, to constitute a new Municipal Board of Canvassers in
Giporlos, Eastern Samar and to order it to revise with deliberate speed the Statement of Votes on the basis of EN BANC

64
CONSTI REV – FULL TEXT
[G.R. No. L-10981. April 25, 1958.]
ANACLETO LUISON, protestant-appellant, vs. FIDEL A. D. GARCIA, protestee-appellee.
Jose M. Luison for appellant.
Marcos M. Calo, Tranquilino O. Calo, Jr., Francisco Ro. Cupin and Federico A. Calo for appellee.
SYLLABUS
1. ELECTION; PROTEST DUE TO INELIGIBILITY; WHEN WINNING CANDIDATE DECLARED
INELIGIBLE; SECOND PLACE CANNOT BE DECLARED ELECTED. — Where the winning candidate has
been declared ineligible, the reason who obtained second place in the election cannot be declared elected
since our law not only does not contain an express provision authorizing such declaration but apparently
seems to prohibit it (Villar vs. Paraiso, 96 Phil., 659; see also Naval vs. Guray, 52 Phil., 654 and Topacio vs.
Paredes, 23 Phil., 238.)
2. ID.; PROTEST ON THE GROUND OF INELIGIBILITY AND PROTEST BASED ON FRAUDS AND
IRREGULARITIES, DISTINGUISHED. — A protest to disqualify a protestee on the ground of ineligibility is
different from that of a protest based on frauds and irregularities where it may be shown that protestant was
the one really elected for having obtained a plurality of the legal votes. In the first case, while the protestee
may be ousted the protestant will not be seated; in the second case, the protestant may assume office after
protestee is unseated. The first case is brought to court by a petition of quo warranto, while the second by
instituting an election protest.
3. ID.; ID.; ACTION FOR QUO WARRANTO CANNOT BE CONVERTED INTO AN ELECTION
PROTEST. — A candidate who files a protest against one who has been proclaimed as having received the
highest number of votes basing his protest merely on the ground of his ineligibility to hold office, cannot
disguise his action so as to make his protest a justification to be seated in office. In other words, he cannot
convert an action for quo warranto into an election protest. This is because these two cases are fundamentally
different in nature and in purpose. In quo warranto, "there is not, strictly speaking, a contest, and the wreath of
victory cannot be transferred from an ineligible candidate to any other candidate," while in a protest, "the
question is as to who received a plurality of the legally cast ballots" (Topacio vs. Paredes, 23 Phil., 238).
DECISION
BAUTISTA ANGELO, J p:
In the general elections held on November 8, 1955, Anacleto M. Luison and Fidel A. D. Garcia were the only
candidates for mayor of Tubay, Agusan. The certificate of candidacy of Luison was filed by the Nacionalista
Party of the locality duly signed by the chairman and secretary respectively, while the certificate of candidacy
of Garcia was filed by the local branch of the Liberal Party but it was merely signed by one who was a
candidate for vice-mayor. For this reason, the executive secretary of the Nationalista Party impugned the
sufficiency of the certificate of candidacy filed in behalf of Garcia, whereupon the Commission on Elections,
after making its own investigation, issued Resolution No. 23 declaring Garcia ineligible to run for the Office.
Consequently, the Commission on Elections, after making its own investigation, issued Resolution No. 23
declaring Garcia ineligible to run for the Office. Consequently, the Commission on Elections who immediately
implemented it by striking out the name of Garcia from the list of registered candidates. Said secretary also
relayed the instruction of the Commission on Elections to the board of inspectors of every precinct and the
board of canvassers so that they may be guided accordingly and the votes cast for him may not be counted
and instead be considered as stray votes.
At this juncture, Garcia filed an action for prohibition with the Court of First Instance of Agusan against the
municipal secretary of Tubay praying that an order be issued restraining the latter from invalidating his
certificate of candidacy as well as the votes that may be cast for him, which was however dismissed on the
ground that said court had no jurisdiction to review the ruling of the Commission on Elections on the matter.
No appeal was taken from this order which became final. Meantime, Garcia filed a motion for reconsideration
of Resolution No. 23 of the Commission on Elections but the same was denied and no appeal was likewise
taken from the ruling of the Commission.
Notwithstanding the adverse ruling of the Commission on Elections, as well as the dismissal of the petition for
prohibition sued out by Garcia, the latter continued with his candidacy and the question of his ineligibility
became an issue in the campaign. And when the time came for the counting and appreciation of the ballots,
the board of inspectors, in spite of the adverse ruling of the Commission on Elections, counted all the votes
cast for Garcia as valid and credited him with them in the election returns with the result that he garnered 869
65
JULY 11, 2019
votes as against 675 of his opponent Luison. Consequently, the municipal board of canvassers proclaimed
Garcia as the mayor elect of Tubay, Agusan.
Believing that Garcia is ineligible to hold office, Luison filed a petition of quo warranto in the proper court of
first instance for the purpose of disputing his ineligibility and securing his consequent ouster from office, but
the petition was dismissed for lack of merit on a motion filed by respondent. Luison appealed from the ruling
and the case was docketed in the Supreme Court as G. R. No. L-10916. Luison took one step further. He also
filed a protest in the same court on the same ground that Garcia was ineligible because his certificate of
candidacy was declared null and void by the Commission on Elections.
After the reception of the evidence, the court found for protestee holding that the certificate of candidacy filed
by the latter was in substantial compliance with the law and that the Commission on Elections erred in
declaring him legally insufficient. It therefore dismissed the protest with costs against protestant. Hence the
present appeal.
The question whether the certificate of candidacy of the protestee is legally sufficient is now moot it appearing
that the resolution of the Commission on Elections declaring that said certificate was not prepared in
accordance with law has become final for having the protestee failed to appeal from said resolution as
required by law. In this connection, it should be noted that while this appeal was pending consideration in this
court, the quo warranto case was passed upon wherein this Court held that said resolution is now res judicata
and is binding upon the protestee (See decision in G. R. No. L-10916, promulgated on May 20, 1957). It
cannot therefore be now disputed that protestee is ineligible to hold the office for which he was proclaimed.
The issue now to be determined is whether, the protestee being ineligible and protestant having obtained the
next highest number of votes, the latter can be declared entitled to hold the office to be vacated by the former.
Our answer is in the negative. As this Court has held, "The general rule is that the fact that a plurality or a
majority of the votes are cast for an ineligible candidate at a popular election does not entitle the candidate
receiving the next highest number of votes to be declared elected. In such case the electors have failed to
make a choice and the election is a nullity" (Llamoso vs. Ferrer, et al., 84 Phil., 490). In a subsequent case,
this Court also said that where the winning candidate has been declared ineligible, the person who obtained
second place in the election cannot be declared elected since our law not only does not contain an express
provision authorizing such declaration but apparently seems to prohibit it (Villar vs. Paraiso, 96 Phil., 659: See
also Nuval vs. Guray, 52 Phil., 654 and Topacio vs. Paredes, 23 Phil., 238).
Moreover, a protest to disqualify a protestee on the ground of ineligibility is different from that a protest based
on frauds and irregularities where it may be shown that protestant was the one really elected for having
obtained a plurality of the legal votes. In the first case, while the protestee may be ousted the protestant will
not be seated; in the second case, the protestant may assume office after protestee is unseated. The first case
is brought to court by a petition of quo warranto, while the second by instituting an election protest. Thus, the
Supreme Court, in defining these two remedies, said:
"All election disputes may be divided into two distinct classes: (1) those which pertain to the casting and
counting of the ballots; and (2) those which pertain to the eligibility of the candidates. If there be cases
incapable of being so classified, they have not been suggested.
". . . If the nature of the evidence upon which the eligibility (qualifications) of a person to hold office must be
decided is considered, it will be seen that such evidence has nothing to do with the manner of casting and
counting the votes. To what purpose would be the examination of registry lists and ballots by officers
appointed and paid for that purpose in determining the eligibility of a successful candidate for office? The
eligibility of a person to be elected to a provincial or municipal office depends upon his qualifications as a
voter, his residence, his allegiance to the United States, his age, the absence of disqualifications inflicted by
the courts by way of punishment, etc. That is, these qualifications and disqualifications do not depend upon
the conduct of election inspectors, the illegal trafficking in votes, the method of casting and counting the
ballots, or the election returns. The evidence required to establish such qualifications or disqualifications would
not aid in any way in determining the questions relating to the manner of casting and counting the ballots. E
converso, would the examination of ballots aid in arriving at a decision as to his eligibility. There is nothing in
this section to indicate that the court shall receive or consider evidence as to the personal character or
circumstances of candidates.
"Again, the effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in
the election is quite different from that produced by declaring a person ineligible to hold such an office. In the
former case the court, after an examination of the ballots may find that some other person than the candidate
declared to have received a plurality by the board of canvassers actually received the greater number of votes,
CONSTI REV – FULL TEXT
in which case the court issues its mandamus to the board of canvassers to correct the returns accordingly; or
it may find that the manner of holding the election and the returns are so tainted with fraud or illegality that it
cannot be determined who received a plurality of the legally cast ballots. In the latter case, no question as to
the correctness of the returns or the manner of casting and counting the ballots is before the deciding power,
and generally the only result can be that the election fails entirely. In the former, we have a contest in the strict
sense of the word, because opposing parties are striving for supremacy. If it be found that the successful
candidate (according to the board of canvassers) obtained a plurality in a legal manner, and another candidate
was the legal victor, the former must retire in favor of the latter. In the other case, there is not, strictly speaking,
a contest, as the wreath of victory cannot be transferred from an ineligible candidate to any other candidate
when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots. In the one
case the question is as to who received a plurality of the legally cast ballots; in the other, the question is
confined to the personal character and circumstances of a single individual." (Topacio vs. Paredes, supra.)
Considering the fundamental difference existing between the nature of a petition for quo warranto and that of
an election protest, it may be said that a candidate who files a protest against one who has been proclaimed
as having received the highest number of votes basing his protest cannot disguise his action so as to make his
protest a justification to be seated in office. In other words, he cannot convert an action for quo warranto into
an election protest. This is because these two cases are fundamentally different in nature and in purpose. In
quo warranto, "there is not, strictly speaking, a contest, and the wreath of victory cannot be transferred from
an ineligible candidate to any other candidate", while in a protest, "the question is as to who received a
plurality of the legally cast ballots" (Topacio vs. Paredes, supra). The present action, therefore, partakes of the
nature of quo warranto and as such has no reason to exist. This question is already involved in the other case
(G. R. No. L-10916).
The case of Monsale vs. Nico * (46 Off. Gaz., Supp. No. 11, 211) invoked by protestant is not in point. In that
case the candidate who was declared ineligible was not proclaimed because the votes cast for him were
declared nullified and the one proclaimed is the candidate who received the next highest number of votes. The
trial court found that the protestant was not ineligible because it considered his certificate of candidacy legally
sufficient, and when the case was brought to the Supreme Court on appeal the latter merely reversed the
ruling of the trial court. In that case there was no direct pronouncement that the one who received the next
highest number of votes may by declared seated. This case cannot be invoked as precedent.
Wherefore, the decision appealed from is reversed. The Court declares that neither protestee nor protestant
has been validly elected and so none is entitled to the position of mayor of Tubay, Agusan. No pronouncement
as to costs.
Paras, C.J., Bengzon, Labrador and Endencia, JJ., concur.
Reyes A., J., concurs in the result.
Separate Opinions
CONCEPCION, J., concurring:
The record shows that a majority of the voters in Tubay were not in favor of Anacleto Luison as mayor of said
municipality. What is more, despite the disqualification of his opponent, Fidel A. Garcia (owing to a final
decision of the Commission on Elections holding that his certificate of candidacy was fatally defective), a
substantial majority of the votes cast were for Garcia. This fact leaves no room for doubt that said majority is,
or was against Luison. In view of Garcia's aforementioned disqualification, the votes in his favor may be
considered as wasted, but only, in the sense that said votes cannot put him in office, but not in so far as they
show that Luison does not count with the support of the majority of the electorate and that the same is not
passively, but actively and affirmatively — opposed to his becoming the mayor of Tubay. I cannot close my
eyes to these facts and say, honestly, that Luison was elected to said office, without feeling that my vote would
tend to convert our democratic system into a sheer fiction, instead of an objective reality.
I agree, therefore, with the opinion of Mr. Justice Bautista Angelo to the effect that none of the parties herein
has been elected mayor of Tubay.
Reyes, J. B. L., J., concurs.
MONTEMAYOR, J., dissenting:
For a better understanding of the following dissent, it is advisable to state briefly the facts of the case as found
and related in the learned majority opinion.
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JULY 11, 2019
In the general elections of November 8, 1955, for the post of Mayor of Tubay, Agusan, protestant-appellant
Anacleto Luison and protestee-appellee Fidel A. D. Garcia were the only candidates. Long before the
elections, the certificate of candidacy of Garcia was, after due investigation, found defective and not valid by
the Commission on Elections, and it so stated in its Resolution No. 23 of October 11, 1955, declaring him
ineligible for the office of Mayor, and ordering that his certificate of candidacy should not be given due course.
The Municipal Secretary of Tubay was duly advised of this resolution and he immediately implemented the
same by striking out the name of Garcia from the list of registered candidates for Mayor. He also relayed the
instructions of the Commission to the Board of Inspectors in Tubay and to the Board of Canvassers, specially
the chairman of the same, so that in the counting and canvassing of votes, those cast for Garcia should not be
counted and should be considered as stray votes. Garcia moved for a reconsideration of Resolution No. 23,
but the Commission on Elections denied his motion and Garcia did not appeal from the ruling of the
Commission.
Despite the adverse ruling of the Commission, Garcia went ahead with his candidacy and the question of his
ineligibility became an issue in the election campaign, so that the voters were undoubtedly aware of the fact
that Garcia was ineligible, according to the ruling of the Commission on Elections. After the voting and despite
the instructions given to the Board of Inspectors and to the Board of Canvassers about the ineligibility of
Garcia and that votes for him should not be counted, the Board of Inspectors counted the votes for him,
amounting to 869 as against 675 for his only opponent, Luison, and the Board of Canvassers, despite the
instructions given to it about the ineligibility of Garcia and that consequently, the votes for him should not be
counted, considered the 869 votes counted for him by the Board of Inspectors as valid, and proclaimed Garcia
Mayor of Tubay.
Luison filed a petition for quo warranto against Garcia in the Court of First Instance to have his ineligibility
judicially declared and that he be ousted from the office of Mayor that he had assumed but on motion of
Garcia, the petition was dismissed for lack of merit. Luison appealed from the order of dismissal to the
Supreme Court in case G. R. No. L-10916. In due time, this Tribunal decided this case on May 20, 1957,
reversing the order of dismissal of the Court of First Instance and declaring that the resolution of the
Commission on Elections about the ineligibility of Garcia is now res judicata, and is binding upon him. In other
words, Garcia was ineligible to hold the office of Mayor of Tubay on the basis of the elections of 1955.
In addition to the petition for quo warranto, Luison filed an election protest against Garcia, claiming that
inasmuch as the latter was ineligible, the votes cast for him should have been nullified, as declared by the
Commission on Elections and as stated to the Board of Inspectors and the Board of Canvassers, to the effect
that the votes for him should not be counted. After hearing and the submission of evidence in the lower court,
the latter, ignoring and disregarding the ruling of the Commission on Elections about the ineligibility of Garcia,
declared Garcia eligible because his certificate of candidacy was in substantial compliance with the law, and
the Commission on Elections committed error in declaring Garcia's certificate of candidacy defective and not
valid. So, it dismissed the protest, and Luison appealed the order of dismissal to us, which is the present case.
In justice to the lower court, it should be stated that the appealed order of dismissal of the election protest was
issued before the promulgation of our decision in the quo warranto case, G. R. No. 10916, wherein we
declared that the ruling of the Commission is now res judicata, is binding upon Garcia, and that he was really
ineligible.
As the majority opinion correctly states, the issue now to be determined is whether, inasmuch as Garcia is
ineligible and therefore, cannot hold the post of Mayor which he had illegally assumed, Luison is entitled to
assume and hold that office because he received the next highest number of votes. Citing old decisions of this
Tribunal to the effect that when one candidate receiving the highest number of votes in an election is declared
ineligible, it does not necessarily mean that the candidate receiving the next highest number of votes should
be declared the winner and assume the office vacated by the candidate declared ineligible, the majority holds
that Luison is not entitled to the office.
The reason for the aforecited ruling of ours in the past may, in my opinion, be satisfactorily if not easily
explained. Those cases wherein that doctrine was laid down were invariably of quo warranto (under the
Election Law), the main purpose of which is to declare one who has assumed an elective office, ineligible, and
to oust him from it. The petitioner in such a quo warranto case does not necessarily have to state and declare
in his petition that he has better right to the office. As to who has a right to said office is another question.
Furthermore, in those cases wherein we declared that the candidate receiving the next highest number of
votes was not necessarily entitled to be declared elected to the office, the ineligibility of the candidate
receiving the highest number of votes was found and declared after the election, not before. In other words,
the eligibility or ineligibility of that person receiving the highest number of votes was, before the election, either
unknown or uncertain, so that the electorate had a right to say that they voted for him in the honest belief that
CONSTI REV – FULL TEXT
he was eligible and could be elected to office. And, if after the elections, their winning candidate was
subsequently declared ineligible, those voting for him might say that they did not knowingly waste their votes
on an ineligible candidate, and that had they known it on time, they would have cast their votes not necessarily
for the candidate receiving the next highest number of votes, but on another candidate, which would have
radically changed the result of the election because of the overwhelming number of their votes, so that the
candidate receiving the next highest number of votes cannot truly say that aside from the candidate who was
ineligible, he was the next choice of the electorate.
However, as we already stated, the situation in the present case is quite and radically different. Long before
the elections, not only the Board of Inspectors and the Board of Canvassers were duly advised of the
ineligibility of Garcia, but the electorate as well, because the ineligibility of Garcia was an issue in the
campaign and Luison and his adherents in their electoral meetings and in personal interviews, undoubtedly
had advised and tried to persuade the friends and followers of Garcia not to waste their votes on him, because
being officially declared ineligible by the Commission on Elections, he could not be elected anyway. So, those
voting for Garcia, knowing all this but insisting in voting for an ineligible candidate, simply wasted their votes.
For all legal purposes, they might as well have stayed at home on election day, as far as their candidate
Garcia was concerned. Furthermore, and this is important, they cannot well claim and say that they could or
would have voted for another candidate for Mayor other than Luison because there was no such other
candidate, Luison and Garcia being the only candidates for the office of Mayor. So, those voters for Garcia
had no choice. They either had to vote for Luison, if they wanted to exercise their right of suffrage, for the post
of Mayor or not vote at all for the post of Mayor. In either case, Luison would have won because he would
have received more than his plurality of 675, but not less.
These are the reasons why in our discussion of this case, I said that it was about time that we revised our
ruling in the previous cases and laid down a new doctrine, not only more in keeping with the principles of
fairness and justice, but also to take into consideration cases wherein the ineligibility of a candidate has been
expressly and officially declared before the elections and/or where there are only two candidates to an office,
so that under such circumstances, the candidate receiving the next highest number of votes should, even in a
quo warranto case, be declared elected and entitled to the office vacated by the one found ineligible. Such
new doctrine or ruling would give more incentive and encouragement to registered candidates to initiate quo
warranto proceedings to oust from elective post, persons who illegally assume and occupy the same.
Otherwise, the filing of a petition for quo warranto in connection with an elective office, would only be based on
and motivated by a sense of civic duty, with no reward or advantage to the person filing the same, and the
result would be that persons illegally elected to an office and illegally occupying the same would continue to do
so, because few persons would take the trouble and shoulder the expense of filing quo warranto proceedings
when they stand to receive no benefit or reward from winning the case.
Besides, the law on quo warranto itself, Section 173 of the Revised Election Code, requires that the person
contesting the right of a person who is not eligible but is elected to a provincial or municipal office, must be a
registered candidate for the same office. That requirement is, to me, significant and may have some purpose,
such as the possibility that the contestant or petitioner may have a chance of occupying the office vacated,
should he prove that he was entitled to it. Otherwise, why the requirement? A plain citizen or voter interested in
good government, and wishing to have no one but an eligible candidate elected to and occupy an elective
office in his community could as well be considered as qualified and authorized to file the petition for quo
warranto.
". . ." A proceeding by quo warranto is not strictly speaking an election contest between two persons claiming
the same office but determines only that the person holding the office is or is not a usurper; and does not
adjudge the rights of any other claimant thereto, although it has been said that since there is s legal remedy
for every legal right, where the statute provides no other remedy quo warranto is an appropriate remedy for
obtaining the possession of an office to which a person has been legally elected as well as to remove the
usurper therefrom; and where by statute the proceeding may be brought upon the relation of the contesting
candidate, if the relator succeeds the proper judgment is that defendant be ousted and the relator placed in
possession of the office." (20 C. J. 210).
But there is another phase not only important, but to my mind, decisive in the present case. As already stated,
Luison filed not only a petition for quo warranto, but also a separate election protest. This protest, like any
other election protest, concerns the proper and legal counting of votes. Luison claims, and in my opinion, well
and correctly, that inasmuch as the certificate of candidacy of Garcia was declared "not valid and not to be
given due course" by the Commission on Elections, which declaration, according to our decision in G. R. No.
L-10916, supra, is final and binding upon Garcia, then the effect or result was as though Garcia had never filed
any certificate of candidacy. In other words, he was a candidate for the post of Mayor of Tubay, with no valid
certificate of candidacy or no certificate of candidacy at all. As a matter of fact, the Municipal Secretary of
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Tubay had in compliance with the Resolution of the Commission stricken the name of Garcia from the list of
candidates for mayor. Section 149, paragraph 13, of the Revised Election Code provides that "any vote in
favor of a person who has not filed a certificate of candidacy, . . . shall be void and counted as stray vote but
shall not invalidate the whole ballot". Under this legal provisions, all the votes cast for Garcia should have
been declared void, counted as stray votes, by the Board of Inspectors, specially since they had been so
advised and instructed by the Municipal Secretary and the Commission on Elections, with the result that
Luison would and should have been the only candidate voted for Mayor, receiving 675 votes, and therefore,
should have been declared elected. Again, had the Board of Canvassers complied with said instructions and
advice of the Commission on Elections and the Municipal Secretary, then said Board of Canvassers should
have ignored the votes illegally counted by the Board of Inspectors for Garcia and should have considered
only the votes for Luison and declared him (Luison) elected. Just because the Board of Inspectors and the
Board of Canvassers openly defied the Commission on Elections and the Municipal Secretary and ignored
their instructions and counted the illegal votes for Garcia, and declared him elected, Luison is now being
deprived, not to say robbed, of the post of Mayor to which, in my opinion, he is in every respect entitled.
But the majority opinion says that protestant Luison "cannot disguise his action so as to make his protest a
justification to be seated in office. In other words, he cannot convert an action for quo warranto into an election
protest". I am afraid the majority is laboring under a misapprehension. Luison is not trying to convert an action
for quo warranto into an election protest. As the majority opinion itself says, these two cases of election protest
and quo warranto are fundamentally different in nature and effect. In the quo warranto case, Luison finally
succeeded in having the ineligibility of Garcia judicially declared conclusive and binding upon Garcia. This
ineligibility was based on his failure to file and have in his favor a valid certificate of candidacy. In other words,
in the general elections of 1955 for the post of Mayor, Garcia was not a registered candidate and had no valid
certificate of candidacy. This is now the basis for the present election protest of Luison, namely, that being no
candidate according to law and having no certificate of candidacy, his (Garcia's) votes were void, should not
have been counted, and should have been considered stray votes under Section 149, paragraph 13:
"Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for an
office for which he did not present himself, shall be void and counted as stray vote but shall not invalidate the
whole ballot."
In order to succeed in his election protest to nullify the votes of Garcia, Luison first had to file a quo warranto
case and obtain, as he has obtained, a definite and final ruling by the highest tribunal of the land, that Garcia
was not a legal candidate for the post of Mayor and that he did not have a valid certificate of candidacy. To me,
it is therefore clear that there is no incompatibility between the two actions of Luison, namely, quo warranto
and election protest, for they complement each other, the success of the election protest being based on that
of the quo warranto.
The majority opinion says that the case of Monsale vs. Nico (83 Phil., 758), invoked by the protestant is not in
point. I beg to differ. I venture to say that it in truly in point and applicable. In that case, there were three
candidates for the post of Mayor of Miagao, Iloilo, in the general elections held on November 11, 1947,
namely, Monsale, protestant-appellee, Nico, protestee-appellant, and one Fagutao. Monsale, according to the
decision, "withdrew his certificate of candidacy on October 10, 1957, but on November 7, he attempted to
revive it by withdrawing his withdrawal. The Commission on Elections, however, ruled on November 8 that the
protestant could no longer be a candidate in spite of his desire to withdraw his withdrawal." A canvass of the
election returns showed that Nico received 2,291 votes; Fagutao, 126 votes; and Monsale, none, because
evidently following the ruling of the Commission on Elections to the effect that Monsale was no longer a
registered candidate, the Board of Inspectors did not count the votes for him, which exceeded those for Nico
by several hundred. Consequently, Nico was declared elected. Monsale protested the election of Nico and the
Court of First Instance of Iloilo, finding his protest well founded, declared him elected Mayor of Miagao. Nico
appealed that decision to the Supreme Court, and this Tribunal sustaining the ruling of the Commission on
Elections that because of the withdrawal of his certificate of candidacy, the protestant "can no longer be a
candidate in spite of his desire to withdraw his withdrawal", reversed the appealed decision, for the reason that
Monsale, not having a valid certificate of candidacy in his favor, had no right to contest the election of Nico.
The result was that the proclamation of Nico by the Board of Canvassers as Mayor- elect was left undisturbed.
Here is a case where a candidate for the post of Mayor, who before the elections, was declared by the
Commission on Elections not to be a registered candidate because he had withdrawn his certificate of
candidacy, received the highest number of votes, but because the Board of Inspectors, following the ruling of
the Commission on Elections, did not count the votes in his favor, the candidate receiving the next highest
number of votes was declared elected, and this Court tacitly approved and sanctioned said declaration or
proclamation by not disturbing it. But if the ruling laid down in the cases cited in support of the majority opinion
had been followed, then this Court should have held the proclamation of Nico as Mayor-elect to be erroneous
and invalid, and declared that there was failure to elect, which this Tribunal, wisely, did not do.
CONSTI REV – FULL TEXT JULY 11, 2019

To me, the case for Luison in the instant case is stronger, because he was the only other candidate, whereas In view of the theory of the majority and taking into account the short period of incumbency that remains for a
in the case of Monsale vs. Nico, there was a third candidate, and the electors who voted for Monsale could yet new mayor of Tubay, Agusan, there will be with all probability no new special election for Mayor of Tubay and
have said or claimed that had they known that their candidate Monsale was not a registered candidate, they as our decision in the quo warranto case has already become final, there is nothing to prevent the President of
would have voted for the third candidate, Fagutao, and could have made him win over Nico, a thing which the the Philippines from appointing Fidel A. D. Garcia to continue holding the office of mayor of said municipality
voters of Garcia in the present case could not claim for the reason that there was no other candidate to vote for the rest of the period, thus nullifying our findings and conclusions in the quo warranto case and leaving the
for except Luison. sound principles of democracy somewhat worsted. I, therefore, vote against the dismissal of this case and for
the declaration that protestant-appellant Anacleto Luison has been duly elected to the position of Mayor of
There is one other aspect of the present case which although not important perhaps, still may merit Tubay, Agusan, in the general elections of November 8, 1955.
consideration. Under the majority opinion, reversing the appealed decision and at the same time dismissing
the protest, the result is that there was failure to elect, and consequently, a new election will have to be Footnotes
conducted for the post of Mayor. It will be noticed, however, that the unexpired term for the post up to the next
elections in 1959 is relatively short, a matter of one year and eight months, which by the time this decision * 83 Phil., 758.
shall have become final, would still be shorter. I doubt the wisdom and practicability of holding a special
election to determine who will occupy the post of Mayor for so short a period. Aside from the consequent evils
and inconveniences occasioned by an election, such as, reviving old and forgotten rivalries and stirring up
antagonism, ill feeling, and enmities in the community, it is doubtful whether worthy candidates for the office
could be found willing to undertake an election campaign with all the unavoidable trouble and expense, and
with all the uncertainty of the result, fight to the bitter end for a post which cannot last very long.
In conclusion, I hold, first, that even considering the ruling laid down by this Court in the past, that in quo
warranto proceedings (election cases), although the candidate receiving the highest number of votes is
declared ineligible, the candidate receiving the next highest number of votes may not be declared elected,
nevertheless where the ineligibility of the first candidate was known to the electorate before the elections
and/or there were only two candidates for the office, then the candidate receiving the next highest number of
votes could and should even in a quo warranto case, be declared elected to the office; second, that in an
election protest case, where the ineligibility of a candidate receiving the highest number of votes has been
definitely and finally declared not only by the Commission on Elections, but by the courts as well, on the
ground that he failed to file a valid certificate of candidacy and was, therefore, not a legal candidate for the
post, then all the votes cast for him should not have been counted, but should have been considered void and
regarded as stray votes.
The election protest of Luison goes to and centers upon this illegal counting of the votes for Garcia, and
having succeeded, in my opinion, in establishing the error and illegality of the action of the Board of Inspectors
and the Board of Canvassers in counting and considering those votes for Garcia, this Court should direct
those two electoral bodies to correct their returns and their canvass, with the result that Luison, having not
only received the next highest number of votes, but being the only remaining candidate for the post, should be
declared elected to the post of Mayor of Tubay.
Reyes, J. B. L., J., concurs.
FELIX, J., dissenting:
I concur in the dissenting opinion of Mr. Justice Marceliano Montemayor. I desire, however, to state the
following:
It appears from the records that two cases have been instituted in the Court of First Instance of Agusan: one
G. R. No. L-10916 — was a petition for quo warranto for the purpose of securing a declaration of ineligibility of
Fidel A. D. Garcia as Mayor of Tubay, Agusan, and his consequent ouster from office, and the other G. R. No.
L-10981 an election protest by the same petitioner, as protestant, against the same respondent Fidel A. D.
Garcia, as protestee. The first case was already decided by this Court declaring the ineligibility of respondent
Garcia who naturally had to cease holding the position of Mayor of Tubay, Agusan. Because of the provisions
of law and the jurisprudence on the matter, Anacleto Luison could not in that case, succeed Garcia in that
post.
In the present case, G. R. No. 110981, wherein We decide the election protest, the majority basing its decision
on the result of the previous quo warranto case, renders judgment dismissing the protest and by the same
stroke of the pen prevents the protestant Anacleto Luison from succeeding Fidel A. D. Garcia in the position of
Mayor of Tubay, Agusan, notwithstanding the fact that he was the only other candidate voted for that office in
the general elections of November 8, 1955.
I dissent from the majority decision because there is absolutely no reason to disregard the votes cast in favor
of Anacleto Luison which were the only valid votes cast for Mayor in said elections. Under the circumstances
and facts appearing on record and the law applicable thereto, the votes cast in favor of Fidel A. D. Garcia have
to be considered as stray votes.

68
CONSTI REV – FULL TEXT
EN BANC
[G.R. No. 120295. June 28, 1996.]
JUAN G. FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents.
[G.R. No. 123755. June 28, 1996.]
RAUL R. LEE, petitioner, vs. COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.
Sixto S. Brillantes, Jr., Juanito G. Arcilla and Teodoro M. Jumamil for Juan G. Frivaldo.
Felix Carao, Jr., Ferdinand Laguna, Gavinoo Barlin and Bernardo P. Fernandez for Raul Lee.
SYLLABUS
1. POLITICAL LAW; CITIZENSHIP; QUALIFICATION REQUIRED FOR ALL ELECTIVE LOCAL
OFFICIALS. — The Local Government Code of 1991 [Republic Act No. 7160] expressly requires Philippine
citizenship as a qualification for elective local officials, including that of provincial governor. Philippine
citizenship is an indispensable requirement for holding an elective public office, and the purpose of the
citizenship qualification is none other than to ensure that no alien, i.e., no person owing allegiance to another
nation, shall govern our people and our country or a unit of territory thereof. Now, an official begins to govern
or to discharge his functions only upon his proclamation and on the day the law mandates his term of office to
begin. The law intended CITIZENSHIP to be a qualification distinct from being a VOTER, even if being a voter
presumes being a citizen first. It also stands to reason that the voter requirement was included as another
qualification (aside from "citizenship"), not to reiterate the need for nationality but to require that the official be
registered as a voter IN THE AREA OR TERRITORY he seeks to govern. i.e., the law states: "a registered
voter in the barangay, municipality, city, or province . . . where he intends to be elected." It should be
emphasized that the Local Government Code requires an elective official to be a registered voter. It does not
require him to vote actually. Hence, registration — not the actual voting — is the core of this "qualification". In
other words, the law's purpose in this second requirement is to ensure that the prospective official is actually
registered in the area he seeks to govern — and not anywhere else.
2. ID.; ID.; MANNERS OF REACQUISITION UNDER PHILIPPINE LAWS. — Under Philippine law,
citizenship may be reacquired by direct act of Congress, by naturalization or by repatriation.
3. ID.; ID.; IMMIGRATION LAW; P.D. 725 CREATED A RIGHT AND REMEDY TO REACQUIRE
PHILIPPINE CITIZENSHIP NOT ONLY FOR THE BENEFIT OF FILIPINO WOMEN WHO MARRIED ALIENS
BEFORE THE 1973 CONSTITUTION TOOK EFFECT BUT ALSO OF OTHER NATURAL BORN FILIPINO
WHO LOST THEIR PHILIPPINE CITIZENSHIP. — A reading of P.D. 725 immediately shows that it creates a
new right, and also provides for a new remedy, thereby filling certain voids in our laws. Thus, in its preamble,
P.D. 725 expressly recognizes the plight of "many Filipino women (who) had lost their Philippine citizenship by
marriage to aliens" and who could not, under the existing law (C.A. No. 63, as amended) avail of repatriation
until "after the death of their husbands or the termination of their marital status" and who could neither be
benefited by the 1973 Constitution's new provision allowing "a Filipino woman who marries an alien to retain
her Philippine citizenship . . ." because "such provision of the new Constitution does not apply to Filipino
women who had married aliens before said constitution took effect." Thus, P.D. 725 granted a new right to
these women — the right to re-acquire Filipino citizenship even during their marital coverture, which right did
not exist prior to P.D. 725. On the other hand, said statute also provide a new remedy and a new right in favor
of other "natural born Filipinos who (had) lost their Philippine citizenship but now desire to re-acquire
Philippine citizenship," because prior to the promulgation of P.D. 725 such former Filipinos would have had to
undergo the tedious and cumbersome process of naturalization, but with the advent of P.D. 725 they could
now re-acquire their Philippine citizenship under the simplified procedure of repatriation.
4. ID.; ID.; REPATRIATION; REQUIREMENTS THEREOF ARE LESS TEDIOUS AND
CUMBERSOME COMPARED TO NATURALIZATION. — The requirements of repatriation under P.D. No. 725
are not difficult to comply with, nor are they tedious and cumbersome. In fact, P.D. 725 itself requires very little
of an applicant, and even the rules and regulations to implement the said decree were left to the Special
Committee to promulgate. This is not unusual since, unlike in naturalization where an alien covets a first-time
entry into Philippine political life, in repatriation the applicant is a former natural-born Filipino who is merely
seeking to reacquire his previous citizenship.
5. ID.; ID.; ID.; WHEN MAY BE GIVEN A RETROACTIVE EFFECT; CASE AT BAR. — While it is true
that the law was already in effect at the time that Frivaldo became an American citizen, nevertheless, it is not
only the law itself (P.D. 725) which is to be given retroactive effect, but even the repatriation granted under
said law to Frivaldo on June 30, 1995 is to be deemed to have retroactive to the date of his application
69
JULY 11, 2019
therefor, August 17, 1994. The reason for this is simply that if, as in this case, it was the intent of the legislative
authority that the law should apply to past events — i.e., situations and transactions existing even before the
law came into being — in order to benefit the greatest number of former Filipinos possible thereby enabling
them to enjoy and exercise the constitutionally guaranteed right of citizenship, and such legislative intention is
to be given the fullest effect and expression, then there is all the more reason to have the law apply in a
retroactive or retrospective manner to situations, events and transactions subsequent to the passage of such
law. That is, the repatriation granted to Frivaldo on June 30, 1995 can and should be made to take effect as of
date of his application. As earlier mentioned, there is nothing in the law that would bar this or would show a
contrary intention on the part of the legislative authority; and there is no showing that damage or prejudice to
anyone, or anything unjust or injurious would result from giving retroactivity to his repatriation.
6. ID.; ID.; THE LOCAL GOVERNMENT CODE DOES NOT SPECIFY WHEN SUCH
QUALIFICATION SHALL BE POSSESSED. — Under Sec. 39 of the Local Government Code, it will be noted
that the law does not specify any particular date or time when the candidate must possess citizenship, unlike
that for residence (which must consist of at least one year's residency immediately preceding the day of
election) and age (at least twenty three years of age on election day). Even from a literal (as distinguished
from liberal) construction, it should be noted that Section 39 of the Local Government Code speaks of
"Qualifications" of 'ELECTIVE OFFICIALS', not of candidates. Literally, such qualifications unless otherwise
expressly conditioned, as in the case of age and residence — should thus be possessed when the "elective
[or elected] official" begins to govern, i.e., at the time he is proclaimed and at the start of his term. Section 39,
par. (a) (thereof) speaks of "elective local official" while par. (b) to (f) refer to "candidates." The citizenship
requirement in the Local Government Code is to be possessed by an elective official at the latest as of the
time he is proclaimed and at the start of the term of office to which he has been elected.
7. STATUTORY CONSTRUCTION; REPEAL OF LAW; BY SUBSEQUENT ONES. — Laws are
repealed only by subsequent ones [Art. 7, Civil Code of the Philippines] and a repeal may be express or
implied. It is obvious that no express repeal was made because then President Aquino in her memorandum —
based on the copy furnished us by Lee — did not categorically and/or impliedly state that PD 725 was being
repealed or was being rendered without any legal effect. In fact, she did not even mention it specifically by its
number or text.
8. ID.; ID.; BY IMPLICATION IS NOT FAVORED; EXCEPTION. — It is a basic rule of statutory
construction that repeals by implication are not favored. An implied repeal will not be allowed "unless it is
convincingly and unambiguously demonstrated that the two laws are clearly repugnant and patently
inconsistent that they cannot co-exist". The memorandum of then President Aquino cannot even be regarded
as a legislative enactment, for not every pronouncement of the Chief Executive even under the Transitory
Provisions of the 1987 Constitution can nor should be regarded as an exercise of her law-making powers. At
best, it could be treated as an executive policy addressed to the Special Committee to hall the acceptance and
processing of applications for repatriation pending whatever "judgment the first Congress under the 1987
Constitution" might make. In other words, the former President did not repeal P.D. 725 but left it to the first
Congress — once created — to deal with the matter. If she had intended to repeal such law, she should have
unequivocally said so instead of referring the matter to Congress. The fact is she carefully couched her
presidential issuance in terms that clearly indicated the intention of "the present government, in the exercise of
prudence and sound discretion" to leave the matter of repeal to the new Congress. Any other interpretation of
the said Presidential Memorandum, such as is now being proffered to the Court by Lee, would visit
unmitigated violence not only upon statutory construction but on common sense as well.
9. ID.; THE LAW PRESUMES THAT THE LAW MAKING-BODY INTENDED RIGHT AND JUSTICE
TO PREVAIL. — In case of doubt in the interpretation or application of laws, it is to be presumed that the
lawmaking body intended right and justice to prevail. [Art. 10, Civil Code of the Philippines)
10. CIVIL LAW; RETROSPECTIVE OPERATIONS OF STATUTES; WHEN EFFECTIVE. — It is true
that under Art. 4 of the Civil Code of the Philippines, "(l)aws shall have no retroactive effect, unless the
contrary is provided." But there are settled exceptions to this general rule, such as when the statute is
CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS. According to TOLENTINO, curative
statutes are those which undertake to cure errors and irregularities, thereby validating judicial or administrative
proceedings, acts of public officers, or private deeds and contracts which otherwise would not produce their
intended consequences by reason of some statutory disability or failure to comply with some technical
requirement. They operate on conditions already existing, and are necessarily retroactive in operation. Agpalo,
[Agpalo, Statutory Construction, 1990 ed., pp. 270-271] on the other hand, says that curative statutes are
"healing acts . . . curing defects and adding to the means of enforcing existing obligations . . . (and) are
intended to supply defects, abridge superfluities in existing laws, and curb certain evils. . . . By their very
nature, curative statutes are retroactive . . . (and) reach back to past events to correct errors or irregularities
CONSTI REV – FULL TEXT
and to render valid and effective attempted acts which would be otherwise ineffective for the purpose the
parties intended." On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies or
modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of
the remedy or confirmation of such rights, ordinarily do not come within the legal meaning of a retrospective
law, nor within the general rule against the retrospective operation of statutes.
11. POLITICAL LAW; OMNIBUS ELECTION CODE; PROVIDED REMEDY TO QUESTION
INELIGIBILITY OF A CANDIDATE. — Section 253 of the Omnibus Election Code gives any voter, presumably
including the defeated candidate, the opportunity to question the ELIGIBILITY (or the disloyalty) of a
candidate. This is the only provision of the Code that authorizes a remedy on how to contest before the
COMELEC an incumbent's ineligibility arising from failure to meet the qualifications enumerated under Sec. 39
of the Local Government Code. Such remedy of Quo Warranto can be availed of "within ten days after
proclamation" of the winning candidate. Hence, it is only at such time that the issue of ineligibility may be
taken cognizance of by the Commission.
12. ID.; ID.; PETITION TO DENY DUE COURSE OR TO CANCEL A CERTIFICATE OF CANDIDACY
UNDER SECTION 78 IS MERELY DIRECTORY. — Section 78 of the Omnibus Election Code is merely
directory as Section 6 of R.A. No. 6646 authorizes the Commission to try and decide petitions for
disqualifications even after the elections.
13. ID.; ELECTIONS; THE RULE IS THE INELIGIBILITY OF A CANDIDATE RECEIVING MAJORITY
VOTES DOES NOT ENTITLE THE ELIGIBLE CANDIDATE RECEIVING THE NEXT HIGHEST NUMBER OF
VOTES TO BE DECLARED ELECTED. — "The rule, therefore, is: the ineligibility of a candidate receiving
majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared
elected. A minority or defeated candidate cannot be deemed elected to the office."
14. ID.; ID.; ELECTORAL LAWS SHOULD BE LIBERALLY AND EQUITABLY CONSTRUED TO GIVE
FULLEST EFFECT TO THE MANIFEST WILL OF OUR PEOPLE. — This Court has time and again liberally
and equitably construed the electoral laws of our country to give fullest effect to the manifest will of our people,
for in case of doubt, political laws must be interpreted to give life and spirit to the popular mandate freely
expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot stand in the way of the
sovereign will. Consistently, we have held: ". . . (L)aws governing election contests must be liberally construed
to the end that the will of the people in the choice of public officials may not be defeated by mere technical
objections." In any action involving the possibility of a reversal of the popular electoral choice, this Court must
exert utmost effort to resolve the issues in a manner that would give effect to the will of the majority, for it is
merely sound public policy to cause elective offices to be filled by those who are the choice of the majority. To
successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrate that the
ineligibility is so patently antagonistic to constitutional and legal principles that overriding such ineligibility and
thereby giving effect to the apparent will of the people, would ultimately create greater prejudice to the very
democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote.
The real essence of justice does not emanate from quibbling over patchwork legal technicality. It proceeds
from the spirit's gut consciousness of the dynamic role of law as a brick in the ultimate development of the
social edifice. Thus, the Court struggled against and eschewed the easy, legalistic, technical and sometimes
harsh anachronisms of the law in order to evoke substantial justice in the larger social context consistent with
Frivaldo's unique situation approximating venerability in Philippine political life.
15. ID.; INTERNATIONAL LAW; A STATE DETERMINES ONLY THOSE WHO ARE ITS OWN
CITIZENS — NOT WHO ARE THE CITIZENS OF OTHER COUNTRIES. — Since our courts are charged only
with the duty of the determining who are Philippine nationals, we cannot rule on the legal question of who are
or who are not Americans. It is basic in international law that a State determines ONLY those who are its own
citizens — not who are the citizens of other countries.
PUNO, J., Concurring Opinion:
1. POLITICAL LAW; DECLARATION OF PRINCIPLES AND STATE POLICIES; SOVEREIGNTY OF
THE PEOPLE, CONSTRUED. — The sovereignty of our people is the primary postulate of the 1987
Constitution. For this reason, it appears as the first in our declaration of principles and state policies. Thus,
Section 1 of Article II of our fundamental law proclaims that "[t]he Philippines is a democratic and republican
State. Sovereignty resides in the people and all government authority emanates from them." The same
principle served as the bedrock of our 1973 and 1935 Constitutions. [The 1987 Constitution added the word
"democratic" in the statement of the principle.] It is one of the few principles whose truth has been cherished
by the Americans as self-evident. Section 4, Article IV of the U.S. Constitution makes it a duty of the Federal
government to guarantee to every state a "republican form of government." With understandable fervor, the
American authorities imposed republicanism as the cornerstone of our 1935 Constitution then being crafted by
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its Filipino farmers. Borne out of the 1986 people power EDSA revolution, our 1987 Constitution is more
people-oriented. Thus, Section 4 of Article II provides as a state policy that the prime duty of the Government
is "to serve and protect the people." Section 1, Article XI also provides that ". . . public officers . . . must at all
times be accountable to the people . . . " Sections 15 and 16 of Article XIII define the role and rights of
people's organizations. Section 5(2) of Article XVI mandates that "[t]he state shall strengthen the patriotic spirit
and nationalist consciousness of the military, and respect for people's rights in the performance of their duty."
And Section 2 of Article XVII provides that "amendments to this Constitution may likewise be directly proposed
by the people through initiative . . ." All these provisions and more are intended to breathe more life to the
sovereignty of our people. To be sure, the sovereignty of our people is not a kabalistic principle whose
dimensions are buried in mysticism. Its metes and bounds are familiar to the framers of our Constitutions.
They knew that in its broadest sense, sovereignty is meant to be supreme, the just summi imperu, the
absolute right to govern. Former Dean Vicente Sinco states that an essential quality of sovereignty is legal
omnipotence, viz: "Legal theory establishes certain essential qualities inherent in the nature of sovereignty.
The first is legal omnipotence. This means that the sovereign is legally omnipotent and absolute in relation to
other legal institutions. It has the power to determine exclusively its legal competence. Its powers are original,
not derivative. It is the sole judge of what it should do at any given time." Citing Barker, Principles of Social
and Political Theory, p. 59 (1952 ed.), he adds that a more amplified definition of sovereignty is that of "a final
power of final legal adjustment of all legal issues." The U.S. Supreme Court expressed the same thought in
the landmark case of Yick Wo v. Hopkins, 118 U.S. 356, where it held that ". . . sovereignty itself is, of course,
not subject to law, for it is the author and source of law; but in our system, while sovereign powers are
delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom
all government exists and acts."
2. ID.; ID.; REPRESENTATIVE DEMOCRACY DISTINGUISHED FROM PURE DEMOCRACY. — In
our Constitution, the people established a representative democracy as distinguished from a pure democracy.
Justice Isagani Cruz explains ". . . A republic is a representative government, a government run by and for the
people. It is not a pure democracy where the people govern themselves directly. The essence of
republicanism is representation and renovation, the selection by the citizenry of a corps of public functionaries
who derive their mandate for the people and act on their behalf, serving for a limited period only, after which
they are replaced or retained, at the option of their principal. Obviously, a republican government is a
responsible government whose officials hold and discharge their position as a public trust and shall, according
to the Constitution, 'at all times be accountable to the people' they are sworn to serve. The purpose of a
republican government it is almost needless to state, is the promotion of the common welfare according to the
will of the people themselves."
3. ID.; ELECTION CASES; THE COURT SHOULD STRIVE TO ALIGN THE WILL OF THE
LEGISLATURE WITH THE WILL OF THE SOVEREIGN PEOPLE. — In election cases, we should strive to
align the will of the legislature as expressed in its law with the will of the sovereign people as expressed in
their ballots. For law to reign, it must respect the will of the people. For in the eloquent prose of Mr. Justice
Laurel, ". . . an enfranchised citizen is a particle of popular sovereignty and is the ultimate source of
established authority." (Moya v. del Fierro, 69 Phil. 199) The choice of the governed on who shall be their
governor merits the highest consideration by all agencies of government. In cases where the sovereignty of
the people is at stake, we must not only be legally right but also politically correct. We cannot fail by making
the people succeed.
DAVIDE, JR., J., Dissenting Opinion"
1. POLITICAL LAW; LOCAL GOVERNMENT CODE OF 1991; ELECTION; WHEN THE
PRESCRIBED QUALIFICATION SHALL BE POSSESSED. — Justice Davide departs from the view in the
ponencia is that Section 39 of the Local Government Code of 1991 does not specify the time when the
citizenship requirement must be met, and that being the case, then it suffices that citizenship be possessed
upon commencement of the term of the office involved. Section 39 actually prescribes the qualifications of
elective local officials and not those of an elected local official. These adjectives are not synonymous, as the
ponencia seems to suggest, the first refers to the nature of the office, which requires the process of voting by
the electorate involved; while the second refers to a victorious candidate for an elective office. The section
unquestionably refers to elective — not elected — local officials. It falls under Title Two entitled ELECTIVE
OFFICIALS; under Chapter 1 entitled Qualifications and Election; and paragraph (a) thereof begins with the
phrases "An elective local official," while paragraphs (b) to (f) thereof speak of candidates. It is thus obvious
that Section 39 refers to no other than the qualifications of candidates for elective local offices and their
election. Hence, in no way may the section be construed to mean that possession of qualifications should be
reckoned from the commencement of the term of office of the elected candidate. It is not at all true that
Section 39 does not specify the time when the citizenship requirement must be possessed. I submit that the
requirement must be satisfied, or that Philippine citizenship must be possessed, not merely at the
CONSTI REV – FULL TEXT
commencement of the term, but at an earlier time, the latest being election day itself. Section 39 is not at all
ambiguous nor uncertain that it meant this to be, as one basic qualification of an elective local official is that he
be "A REGISTERED VOTER IN THE BARANGAY, MUNICIPALITY, CITY OR PROVINCE . . . WHERE HE
INTENDS TO VOTE." This simply means that he possesses all the qualifications to exercise the right of
suffrage. The fundamental qualification for the exercise of this sovereign right is the possession of Philippine
citizenship. No less than the Constitution makes it the first qualification.
2. ID.; ID.; ID.; AVAILABLE REMEDIES ON QUESTIONS OF INELIGIBILITY FOR PUBLIC OFFICE.
— Quo warranto is not the sole remedy available to question a candidate's ineligibility for public office. Section
78 of the Omnibus Election Code allows the filing of a petition to deny due course to or cancel the certificate of
candidacy on the ground that any material representation contained therein as required by Section 74, is false.
Section 74, in turn, requires that the person filing the certificate of candidacy must state inter alia, that he is
eligible for the office, which means that he has all the qualifications (including, of course, fulfilling the
citizenship requirement) and none of the disqualifications as provided by law. The petitioner under Section 78
may be filed at any time not later than 25 days from the filing of the certificate of candidacy. Rule 25 of the
Revised COMELEC rules of procedure allows the filing of a petition for disqualification on the ground of failure
to possess all the qualifications of a candidate as provided by the Constitution or by existing laws, "any day
after the last day for filing of certificates of candidacy but not later than the date of proclamation."
3. ID.; CITIZENSHIP; STEPS FOR THE REACQUISITION OF CITIZENSHIP BY REPATRIATION. —
The steps to reacquire Philippine Citizenship by repatriation under P.D. No. 725 are: (1) filing the application;
(2) action by the committee; and (3) taking of the oath of allegiance if the application is approved. It is only
UPON TAKING THE OATH OF ALLEGIANCE that the applicant is deemed ipso jure to have reacquired
Philippine citizenship. If the decree had intended the oath taking to retroact to the date of the filing of the
application, then it should not have explicitly provided otherwise.
4. ID.; INTERNATIONAL LAW; STATELESSNESS, CONSTRUED. — Statelessness may be either de
jure, which is the status of individuals stripped of their nationality by their former government without having all
opportunity to acquired another; or de facto, which is the status of individuals possessed of a nationality whose
country does not give them protection outside their own country, and who are commonly, albeit imprecisely,
referred to as refugees (JORGE R. COQUIA, et al., Conflict of Laws Cases, Materials and Comments, 1995,
ed., 290). Under Chapter I, Article 1 of the United Nations Convention Regarding the Status of Stateless
Persons (Philippine Treaty Series, Compiled and Annotated by Haydee B. Yorac, vol. III, 363), a stateless
person is defined as "a person who is not considered as a national by any State under the operation of its law.
5. ID.; DECLARATION OF PRINCIPLES AND STATE POLICIES; DOCTRINE OF PEOPLE'S
SOVEREIGNTY, CONSTRUED. — The doctrine of people's sovereignty is founded on the principles of
democracy and republicanism and refers exclusively to the sovereignty of the people of the Philippines.
Section 1 of Article II of the 1987 Constitution is quite clear on this. And the Preamble makes it clear when it
solemnly opens it with a clause "We, the sovereign Filipino people. . . " Thus, the sovereignty is an attribute of
the Filipino people as one people, one body. That sovereign power of the Filipino people cannot be
fragmentized by looking at it as the supreme authority of the people of any of the political subdivisions to
determine their own destiny; neither can we convert and treat every fragment as the whole. In such a case,
this Court would provide the formula for the division and destruction of the State and render the Government
ineffective and inutile.
DECISION
PANGANIBAN, J p:
The ultimate question posed before this Court in these twin cases is: Who should be declared the rightful
governor of Sorsogon —
(i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes in three successive
elections but who was twice declared by this Court to be disqualified to hold such office due to his alien
citizenship, and who now claims to have re-assumed his lost Philippine citizenship thru repatriation;
(ii) Raul R. Lee, who was the second placer in the canvass, but who claims that the votes cast in favor
of Frivaldo should be considered void; that the electorate should be deemed to have intentionally thrown away
their ballots; and that legally, he secured the most number of valid votes; or
(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted directly to the position
of governor, but who according to prevailing jurisprudence should take over the said post inasmuch as, by the
ineligibility of Frivaldo, a "permanent vacancy in the contested office has occurred"?
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In ruling for Frivaldo, the Court lays down new doctrines on repatriation, clarifies/reiterates/amplifies existing
jurisprudence on citizenship and elections, and upholds the superiority of substantial justice over pure
legalisms.
G.R. No. 123755
This is a special civil action under Rules 65 and 58 of the Rules of Court for certiorari and preliminary
injunction to review and annul a Resolution of the respondent Commission on Elections (Comelec), First
Division, 1 promulgated on December 19, 1995 2 and another Resolution of the Comelec en banc
promulgated February 23, 1996 3 denying petitioner's motion for reconsideration.
The Facts
On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of Candidacy for the office of
Governor of Sorsogon in the May 8, 1995 elections. On March 23, 1995, petitioner Raul R. Lee, another
candidate, filed a petition 4 with the Comelec docketed as SPA No. 95-028 praying that Frivaldo "be
disqualified from seeking or holding any public office or position by reason of not yet being a citizen of the
Philippines", and that his Certificate of Candidacy be cancelled. On May 1, 1995, the Second Division of the
Comelec promulgated a Resolution 5 granting the petition with the following disposition: 6
"WHEREFORE, this Division resolves to GRANT the petition and declares that respondent is DISQUALIFIED
to run for the Office of Governor of Sorsogon on the ground that he is NOT a citizen of the Philippines.
Accordingly, respondent's certificate of candidacy is cancelled."
The Motion for Reconsideration filed by Frivaldo remained unacted upon until after the May 8, 1995 elections.
So, his candidacy continued and he was voted for during the elections held on said date. On May 11, 1995,
the Comelec en banc 7 affirmed the aforementioned Resolution of the Second Division.
The Provincial Board of Canvassers completed the canvass of the election returns and a Certificate of Votes 8
dated May 27, 1995 was issued showing the following votes obtained by the candidates for the position of
Governor of Sorsogon:
Antonio H. Escudero, Jr. 51,060
Juan G. Frivaldo 73,440
Raul R. Lee 53,304
Isagani P. Ocampo 1,925
On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition 9 praying for his proclamation as
the duly-elected Governor of Sorsogon.
In an order 10 dated June 21, 1995, but promulgated according to the petition "only on June 29, 1995," the
Comelec en banc directed "the Provincial Board of Canvassers of Sorsogon to reconvene for the purpose of
proclaiming candidate Raul Lee as the winning gubernatorial candidate in the province of Sorsogon on June
29, 1995 . . ." Accordingly, at 8:30 in the evening of June 30, 1995, Lee was proclaimed governor of Sorsogon.
On July 6, 1995, Frivaldo filed with the Comelec a new petition, 11 docketed as SPC No. 95-317, praying for
the annulment of the June 30, 1995 proclamation of Lee and for his own proclamation. He alleged that on
June 30, 1995, at 2:00 in the afternoon, he took his oath of allegiance as a citizen of the Philippines after "his
petition for repatriation under P.D. 725 which he filed with the Special Committee on Naturalization in
September 1994 had been granted". As such, when "the said order (dated June 21, 1995) (of the
Comelec) . . . was released and received by Frivaldo on June 30, 1995 at 5:30 o'clock in the evening, there
was no more legal impediment to the proclamation (of Frivaldo) as governor . . ." In the alternative, he averred
that pursuant to the two cases of Labo vs. Comelec, 12 the Vice-Governor — not Lee — should occupy said
position of governor.
On December 19, 1995, the Comelec First Division promulgated the herein assailed Resolution 13 holding
that Lee, "not having garnered the highest number of votes," was not legally entitled to be proclaimed as duly-
elected governor; and that Frivaldo, "having garnered the highest number of votes, and . . . having reacquired
his Filipino citizenship by repatriation on June 30, 1995 under the provisions of Presidential Decree No.
725 . . . (is) qualified to hold the office of governor of Sorsogon"; thus:
"PREMISES CONSIDERED, the Commission (First Division), therefore RESOLVES to GRANT the Petition.
CONSTI REV – FULL TEXT
Consistent with the decisions of the Supreme Court, the proclamation of Raul R. Lee as Governor of Sorsogon
is hereby ordered annulled, being contrary to law, he not having garnered the highest number of votes to
warrant his proclamation.
Upon the finality of the annulment of the proclamation of Raul R. Lee, the Provincial Board of Canvassers is
directed to immediately reconvene and, on the basis of the completed canvass, proclaim petitioner Juan G.
Frivaldo as the duly elected Governor of Sorsogon having garnered the highest number of votes, and he
having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the provisions of Presidential
Decree No. 725 and, thus, qualified to hold the office of Governor of Sorsogon.
Conformably with Section 260 of the Omnibus Election Code (B.P. Blg. 881), the Clerk of the Commission is
directed to notify His Excellency the President of the Philippines, and the Secretary of the Sangguniang
Panlalawigan of the Province of Sorsogon of this resolution immediately upon the due implementation
thereof."
On December 26, 1995, Lee filed a motion for reconsideration which was denied by the Comelec en banc in
its Resolution 14 promulgated on February 23, 1996. On February 26, 1996, the present petition was filed.
Acting on the prayer for a temporary restraining order, this Court issued on February 27, 1996 a Resolution
which inter alia directed the parties "to maintain the status quo prevailing prior to the filing of this petition."
The Issues in G.R. No. 123755
Petitioner Lee's "position on the matter at hand briefly be capsulized in the following propositions" 15 :
"First — The initiatory petition below was so far insufficient in form and substance to warrant the exercise by
the COMELEC of its jurisdiction with the result that, in effect, the COMELEC acted without jurisdiction in taking
cognizance of and deciding said petition;
Second — The judicially declared disqualification of respondent was a continuing condition and rendered him
ineligible to run for, to be elected to and to hold the Office of Governor;
Third — The alleged repatriation of respondent was neither valid nor is the effect thereof retroactive as to cure
his ineligibility and qualify him to hold the Office of Governor; and
Fourth — Correctly read and applied, the Labo Doctrine fully supports the validity of petitioner's proclamation
as duly elected Governor of Sorsogon."
G.R. No. 120295
This is a petition to annul three Resolutions of the respondent Comelec, the first two of which are also at issue
in G.R. No. 123755, as follows:
1. Resolution 16 of the Second Division, promulgated on May 1, 1995, disqualifying Frivaldo from
running for governor of Sorsogon in the May 8, 1995 elections "on the ground that he is not a citizen of the
Philippines";
2. Resolution 17 of the Comelec en banc, promulgated on May 11, 1995; and
3. Resolution 18 of the Comelec en banc, promulgated also on May 11, 1995 suspending the
proclamation of, among others, Frivaldo.
The Facts and the Issue
The facts of this case are essentially the same as those in G.R. No. 123755. However, Frivaldo assails the
above-mentioned resolutions on a different ground: that under Section 78 of the Omnibus Election Code,
which is reproduced hereinunder:
"Section 78. Petition to deny due course or to cancel a certificate of candidacy. — A verified petition
seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on
the ground that any material representation contained therein as required under Section 74 hereof is false.
The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate
of candidacy and shall be decided, after notice and hearing, not later than fifteen days before the election."
(Emphasis supplied.)
the Comelec had no jurisdiction to issue said Resolutions because they were not rendered "within the period
allowed by law", i.e., "not later than fifteen days before the election."
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Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the petition for disqualification
within the period of fifteen days prior to the election as provided by law is a jurisdictional defect which renders
the said Resolutions null and void.
By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295 and 123755 since they are
intimately related in their factual environment and are identical in the ultimate question raised, viz., who should
occupy the position of governor of the province of Sorsogon.
On March 19, 1995, the Court heard oral argument from the parties and required them thereafter to file
simultaneously their respective memoranda.
The Consolidated Issues
From the foregoing submissions, the consolidated issues may be restated as follows:
1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his lack of citizenship
as to qualify him to be proclaimed and to hold the Office of Governor? If not, may it be given retroactive effect?
If so, from when?
2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a continuing bar to
his eligibility to run for, be elected to or hold the governorship of Sorsogon?
3. Did the respondent Comelec have jurisdiction over the initiatory petition in SPC No. 95-317
considering that said petition is not "a pre-proclamation case, an election protest or a quo warranto case"?
4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of existing
jurisprudence?
5. Did the respondent Commission on Elections exceed its jurisdiction in promulgating the assailed
Resolutions, all of which prevented Frivaldo from assuming the governorship of Sorsogon, considering that
they were not rendered within the period referred to in Section 78 of the Omnibus Election Code, viz., "not
later than fifteen days before the elections"?
The First Issue: Frivaldo's Repatriation
The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold legal issue in this case. All the
other matters raised are secondary to this.
The Local Government Code of 1991 19 expressly requires Philippine citizenship as a qualification for elective
local officials, including that of provincial governor, thus:
"Sec. 39. Qualifications. — (a) An elective local official must be a citizen of the Philippines; a registered voter
in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan,
sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident
therein for at least one (1) year immediately preceding the day of the election; and able to read and write
Filipino or any other local language or dialect.
(b) Candidates for the position of governor, vice governor or member of the sangguniang
panlalawigan, or mayor, vice mayor or member of the sangguniang panlungsod of highly urbanized cities must
be at least twenty-three (23) years of age on election day.
xxx xxx xxx
Inasmuch as Frivaldo had been declared by this Court 20 as a non-citizen, it is therefore incumbent upon him
to show that he has reacquired citizenship; in fine, that he possesses the qualifications prescribed under the
said statute (R.A. 7160).
Under Philippine law, 21 citizenship may be reacquired by direct act of Congress, by naturalization or by
repatriation. Frivaldo told this Court in G.R. No. 104654 22 and during the oral argument in this case that he
tried to resume his citizenship by direct act of Congress, but that the bill allowing him to do so "failed to
materialize, notwithstanding the endorsement of several members of the House of Representatives" due,
according to him, to the "maneuvers of his political rivals." In the same case, his attempt at naturalization was
rejected by this Court because of jurisdictional, substantial and procedural defects.
Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected governor by the electorate of
Sorsogon, with a margin of 27,000 votes in the 1988 elections, 57,000 in 1992, and 20,000 in 1995 over the
same opponent Raul Lee. Twice, he was judicially declared a non-Filipino and thus twice disqualified from
holding and discharging his popular mandate. Now, he comes to us a third time, with a fresh vote from the
CONSTI REV – FULL TEXT
people of Sorsogon and a favorable decision from the Commission on Elections to boot. Moreover, he now
boasts of having successfully passed through the third and last mode of reacquiring citizenship: by repatriation
under P.D. No. 725, with no less than the Solicitor General himself, who was the prime opposing counsel in
the previous cases he lost, this time, as counsel for co-respondent Comelec, arguing the validity of his cause
(in addition to his able private counsel Sixto S. Brillantes, Jr.). That he took his oath of allegiance under the
provisions of said Decree at 2:00 p.m. on June 30, 1995 is not disputed. Hence, he insists that he — not Lee
— should have been proclaimed as the duly-elected governor of Sorsogon when the Provincial Board of
Canvassers met at 8:30 p.m. on the said date since, clearly and unquestionably, he garnered the highest
number of votes in the elections and since at that time, he already reacquired his citizenship.
En contrario, Lee argues that Frivaldo's repatriation is tainted with serious defects, which we shall now discuss
in seriatim.
First, Lee tells us that P.D. No. 725 had "been effectively repealed", asserting that "then President Corazon
Aquino exercising legislative powers under the Transitory Provisions of the 1987 Constitution, forbade the
grant of citizenship by Presidential Decree or Executive Issuances as the same poses a serious and
contentious issue of policy which the present government, in the exercise of prudence and sound discretion,
should best leave to the judgment of the first Congress under the 1987 Constitution", adding that in her
memorandum dated March 27, 1987 to the members of the Special Committee on Naturalization constituted
for purposes of Presidential Decree No. 725, President Aquino directed them "to cease and desist from
undertaking any and all proceedings within your functional area of responsibility as defined under Letter of
Instructions (LOI) No. 270 dated April 11, 1975, as amended." 23
This memorandum dated March 27, 1987 24 cannot by any stretch of legal hermeneutics be construed as a
law sanctioning or authorizing a repeal of P.D. No. 725. Laws are repealed only by subsequent ones 25 and a
repeal may be express or implied. It is obvious that no express repeal was made because then President
Aquino in her memorandum — based on the copy furnished us by Lee — did not categorically and/or impliedly
state that P.D. 725 was being repealed or was being rendered without any legal effect. In fact, she did not
even mention it specifically by its number or text. On the other hand, it is a basic rule of statutory construction
that repeals by implication are not favored. An implied repeal will not be allowed "unless it is convincingly and
unambiguously demonstrated that the two laws are clearly repugnant and patently inconsistent that they
cannot co-exist". 26
The memorandum of then President Aquino cannot even be regarded as a legislative enactment, for not every
pronouncement of the Chief Executive even under the Transitory Provisions of the 1987 Constitution can nor
should be regarded as an exercise of her law-making powers. At best, it could be treated as an executive
policy addressed to the Special Committee to halt the acceptance and processing of applications for
repatriation pending whatever "judgment the first Congress under the 1987 Constitution" might make. In other
words, the former President did not repeal P.D. 725 but left it to the first Congress — once created — to deal
with the matter. If she had intended to repeal such law, she should have unequivocally said so instead of
referring the matter to Congress. The fact is she carefully couched her presidential issuance in terms that
clearly indicated the intention of "the present government, in the exercise of prudence and sound discretion" to
leave the matter of repeal to the new Congress. Any other interpretation of the said Presidential Memorandum,
such as is now being proffered to the Court by Lee, would visit unmitigated violence not only upon statutory
construction but on common sense as well.
Second. Lee also argues that "serious congenital irregularities flawed the repatriation proceedings," asserting
that Frivaldo's application therefor was "filed on June 29, 1995 . . . (and) was approved in just one day or on
June 30, 1995 . . .", which "prevented a judicious review and evaluation of the merits thereof." Frivaldo
counters that he filed his application for repatriation with the Office of the President in Malacañang Palace on
August 17, 1994. This is confirmed by the Solicitor General. However, the Special Committee was reactivated
only on June 8, 1995, when presumably the said Committee started processing his application. On June 29,
1995, he filled up and re-submitted the FORM that the Committee required. Under these circumstances, it
could not be said that there was "indecent haste" in the processing of his application.
Anent Lee's charge that the "sudden reconstitution of the Special Committee on Naturalization was intended
solely for the personal interest of respondent," 27 the Solicitor General explained during the oral argument on
March 19, 1996 that such allegation is simply baseless as there were many others who applied and were
considered for repatriation, a list of whom was submitted by him to this Court, through a Manifestation 28 filed
on April 3, 1996.
On the basis of the parties' submissions, we are convinced that the presumption of regularity in the
performance of official duty and the presumption of legality in the repatriation of Frivaldo have not been
successfully rebutted by Lee. The mere fact that the proceedings were speeded up is by itself not a ground to
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conclude that such proceedings were necessarily tainted. After all, the requirements of repatriation under P.D.
No. 725 are not difficult to comply with, nor are they tedious and cumbersome. In fact, P.D. 725 29 itself
requires very little of an applicant, and even the rules and regulations to implement the said decree were left to
the Special Committee to promulgate. This is not unusual since, unlike in naturalization where an alien covets
a first-time entry into Philippine political life, in repatriation the applicant is a former natural-born Filipino who is
merely seeking to reacquire his previous citizenship. In the case of Frivaldo, he was undoubtedly a natural-
born citizen who openly and faithfully served his country and his province prior to his naturalization in the
United States — a naturalization he insists was made necessary only to escape the iron clutches of a
dictatorship he abhorred and could not in conscience embrace — and who, after the fall of the dictator and the
re-establishment of democratic space, wasted no time in returning to his country of birth to offer once more his
talent and services to his people.
So too, the fact that ten other persons, as certified to by the Solicitor General, were granted repatriation
argues convincingly and conclusively against the existence of favoritism vehemently posited by Raul Lee. At
any rate, any contest on the legality of Frivaldo's repatriation should have been pursued before the Committee
itself, and, failing there, in the Office of the President, pursuant to the doctrine of exhaustion of administrative
remedies.
Third. Lee further contends that assuming the assailed repatriation to be valid, nevertheless it could only be
effective as at 2:00 p.m. of June 30, 1995 whereas the citizenship qualification prescribed by the Local
Government Code "must exist on the date of his election, if not when the certificate of candidacy is filed," citing
our decision in G.R. 104654 30 which held that "both the Local Government Code and the Constitution require
that only Philippine citizens can run and be elected to Public office." Obviously, however, this was a mere
obiter as the only issue in said case was whether Frivaldo's naturalization was valid or not — and NOT the
effective date thereof. Since the Court held his naturalization to be invalid, then the issue of when an aspirant
for public office should be a citizen was NOT resolved at all by the Court. Which question we shall now directly
rule on.
Under Sec. 39 of the Local Government Code, "(a)n elective local official must be:
* a citizen of the Philippines;
* a registered voter in the barangay, municipality, city, or province . . . where he intends to be
elected;
* a resident therein for at least one (1) year immediately preceding the day of the election;
* able to read and write Filipino or any other local language or dialect."
* In addition, "candidates for the position of governor . . . must be at least twenty-three (23) years of
age on election day."
From the above, it will be noted that the law does not specify any particular date or time when the candidate
must possess citizenship, unlike that for residence (which must consist of at least one year's residency
immediately preceding the day of election) and age (at least twenty three years of age on election day).
Philippine citizenship is an indispensable requirement for holding an elective public office, 31 and the purpose
of the citizenship qualification is none other than to ensure that no alien, i.e., no person owing allegiance to
another nation, shall govern our people and our country or a unit of territory thereof. Now, an official begins to
govern or to discharge his functions only upon his proclamation and on the day the law mandates his term of
office to begin. Since Frivaldo re-assumed his citizenship on June 30, 1995 — the very day 32 the term of
office of governor (and other elective officials) began — he was therefore already qualified to be proclaimed, to
hold such office and to discharge the functions and responsibilities thereof as of said date. In short, at that
time, he was already qualified to govern his native Sorsogon. This is the liberal interpretation that should give
spirit, life and meaning to our law on qualifications consistent with the purpose for which such law was
enacted. So too, even from a literal (as distinguished from liberal) construction, it should be noted that Section
39 of the Local Government Code speaks of "Qualifications" of "ELECTIVE OFFICIALS", not of candidates.
Why then should such qualification be required at the time of election or at the time of the filing of the
certificates of candidacies, as Lee insists? Literally, such qualifications — unless otherwise expressly
conditioned, as in the case of age and residence — should thus be possessed when the "elective [or elected]
official" begins to govern, i.e., at the time he is proclaimed and at the start of his term — in this case, on June
30, 1995. Paraphrasing this Court's ruling in Vasquez vs. Giap and Li Seng Giap & Sons, 33 if the purpose of
the citizenship requirement is to ensure that our people and country do not end up being governed by aliens,
i.e., persons owing allegiance to another nation, that aim or purpose would not be thwarted but instead
CONSTI REV – FULL TEXT
achieved by construing the citizenship qualification as applying to the time of proclamation of the elected
official and at the start of his term.
But perhaps the more difficult objection was the one raised during the oral argument 34 to the effect that the
citizenship qualification should be possessed at the time the candidate (or for that matter the elected official)
registered as a voter. After all, Section 39, apart from requiring the official to be a citizen, also specifies as
another item of qualification, that he be a "registered voter". And, under the law 35 a "voter" must be a citizen
of the Philippines. So therefore, Frivaldo could not have been a voter — much less a validly registered one —
if he was not a citizen at the time of such registration.
The answer to this problem again lies in discerning the purpose of the requirement. If the law intended the
citizenship qualification to be possessed prior to election consistent with the requirement of being a registered
voter, then it would not have made citizenship a SEPARATE qualification. The law abhors a redundancy. It
therefore stands to reason that the law intended CITIZENSHIP to be a qualification distinct from being a
VOTER, even if being a voter presumes being a citizen first. It also stands to reason that the voter requirement
was included as another qualification (aside from "citizenship"), not to reiterate the need for nationality but to
require that the official be registered as a voter IN THE AREA OR TERRITORY he seeks to govern, i.e., the
law states: "a registered voter in the barangay, municipality, city, or province . . . where he intends to be
elected." It should be emphasized that the Local Government Code requires an elective official to be a
registered voter. It does not require him to vote actually. Hence, registration — not the actual voting — is the
core of this "qualification". In other words, the law's purpose in this second requirement is to ensure that the
prospective official is actually registered in the area he seeks to govern — and not anywhere else.
Before this Court, Frivaldo has repeatedly emphasized — and Lee has not disputed — that he "was and is a
registered voter of Sorsogon, and his registration as a voter has been sustained as valid by judicial declaration
. . . In fact, he cast his vote in his precinct on May 8, 1995." 36
So too, during the oral argument, his counsel stead- fastly maintained that "Mr. Frivaldo has always been a
registered voter of Sorsogon. He has voted in 1987, 1988, 1992, then he voted again in 1995. In fact, his
eligibility as a voter was questioned, but the court dismissed (sic) his eligibility as a voter and he was allowed
to vote as in fact, he voted in all the previous elections including on May 8, 1995. 37
It is thus clear that Frivaldo is a registered voter in the province where he intended to be elected.
There is yet another reason why the prime issue of citizenship should be reckoned from the date of
proclamation, not necessarily the date of election or date of filing of the certificate of candidacy. Section 253 of
the Omnibus Election Code 38 gives any voter, presumably including the defeated candidate, the opportunity
to question the ELIGIBILITY (or the disloyalty) of a candidate. This is the only provision of the Code that
authorizes a remedy on how to contest before the Comelec an incumbent's ineligibility arising from failure to
meet the qualifications enumerated under Sec. 39 of the Local Government Code. Such remedy of Quo
Warranto can be availed of "within ten days after proclamation" of the winning candidate. Hence, it is only at
such time that the issue of ineligibility may be taken cognizance of by the Commission. And since, at the very
moment of Lee's proclamation (8:30 p.m., June 30, 1995), Juan G. Frivaldo was already and indubitably a
citizen, having taken his oath of allegiance earlier in the afternoon of the same day, then he should have been
the candidate proclaimed as he unquestionably garnered the highest number of votes in the immediately
preceding elections and such oath had already cured his previous "judicially-declared" alienage. Hence, at
such time, he was no longer ineligible.
But to remove all doubts on this important issue, we also hold that the repatriation of Frivaldo RETROACTED
to the date of the filing of his application on August 17, 1994.
It is true that under the Civil Code of the Philippines, 39 "(l)aws shall have no retroactive effect, unless the
contrary is provided." But there are settled exceptions 40 to this general rule, such as when the statute is
CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS.
According to Tolentino, 41 curative statutes are those which undertake to cure errors and irregularities, thereby
validating judicial or administrative proceedings, acts of public officers, or private deeds and contracts which
otherwise would not produce their intended consequences by reason of some statutory disability or failure to
comply with some technical requirement. They operate on conditions already existing, and are necessarily
retroactive in operation. Agpalo, 42 on the other hand, says that curative statutes are "healing acts . . . curing
defects and adding to the means of enforcing existing obligations . . . (and ) are intended to supply defects,
abridge superfluities in existing laws, and curb certain evils . . . By their very nature, curative statutes are
retroactive . . . (and) reach back to past events to correct errors or irregularities and to render valid and
effective attempted acts which would be otherwise ineffective for the purpose the parties intended."
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On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies or modes of
procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy
or confirmation of such rights, ordinarily do not come within the legal meaning of a retrospective law, nor within
the general rule against the retrospective operation of statutes. 43
A reading of P.D. 725 immediately shows that it creates a new right, and also provides for a new remedy,
thereby filling certain voids in our laws. Thus, in its preamble, P.D. 725 expressly recognizes the plight of
"many Filipino women (who) had lost their Philippine citizenship by marriage to aliens" and who could not,
under the existing law (C.A. No. 63, as amended) avail of repatriation until "after the death of their husbands
or the termination of their marital status" and who could neither be benefited by the 1973 Constitution's new
provision allowing "a Filipino woman who marries an alien to retain her Philippine citizenship . . ." because
"such provision of the new Constitution does not apply to Filipino women who had married aliens before said
constitution took effect." Thus, P.D. 725 granted a new right to these women — the right to re-acquire Filipino
citizenship even during their marital coverture, which right did not exist prior to P.D. 725. On the other hand,
said statute also provided a new remedy and a new right in favor of other "natural born Filipinos who (had) lost
their Philippine citizenship but now desire to re-acquire Philippine citizenship", because prior to the
promulgation of P.D. 725 such former Filipinos would have had to undergo the tedious and cumbersome
process of naturalization, but with the advent of P.D. 725 they could now re-acquire their Philippine citizenship
under the simplified procedure of repatriation.
The Solicitor General 44 argues:
"By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA 342), since they are intended to
supply defects, abridge superfluities in existing laws (Del Castillo vs. Securities and Exchange Commission,
96 Phil. 119) and curb certain evils (Santos vs. Duata, 14 SCRA 1041).
In this case, P.D. No. 725 was enacted to cure the defect in the existing naturalization law, specifically C.A.
No. 63 wherein married Filipino women are allowed to repatriate only upon the death of their husbands, and
natural-born Filipinos who lost their citizenship by naturalization and other causes faced the difficulty of
undergoing the rigid procedures of C.A. 63 for reacquisition of Filipino citizenship by naturalization.
Presidential Decree No. 725 provided a remedy for the aforementioned legal aberrations and thus its
provisions are considered essentially remedial and curative."
In light of the foregoing, and prescinding from the wording of the preamble, it is unarguable that the legislative
intent was precisely to give the statute retroactive operation. "(A) retrospective operation is given to a statute
or amendment where the intent that it should so operate clearly appears from a consideration of the act as a
whole, or from the terms thereof." 45 It is obvious to the Court that the statute was meant to "reach back" to
those persons, events and transactions not otherwise covered by prevailing law and jurisprudence. And
inasmuch as it has been held that citizenship is a political and civil right equally as important as the freedom of
speech, liberty of abode, the right against unreasonable searches and seizures and other guarantees
enshrined in the Bill of Rights, therefore the legislative intent to give retrospective operation to P.D. 725 must
be given the fullest effect possible. "(I)t has been said that a remedial statute must be so construed as to make
it effect the evident purpose for which it was enacted, so that if the reason of the statute extends to past
transactions, as well as to those in the future, then it will be so applied although the statute does not in terms
so direct, unless to do so would impair some vested right or violate some constitutional guaranty." 46 This is all
the more true of P.D. 725, which did not specify any restrictions on or delimit or qualify the right of repatriation
granted therein.
At this point, a valid question may be raised: How can the retroactivity of P.D. 725 benefit Frivaldo considering
that said law was enacted on June 5, 1975, while Frivaldo lost his Filipino citizenship much later, on January
20, 1983, and applied for repatriation even later, on August 17, 1994?
While it is true that the law was already in effect at the time that Frivaldo became an American citizen,
nevertheless, it is not only the law itself (P.D. 725) which is to be given retroactive effect, but even the
repatriation granted under said law to Frivaldo on June 30, 1995 is to be deemed to have retroacted to the
date of his application therefor, August 17, 1994. The reason for this is simply that if, as in this case, it was the
intent of the legislative authority that the law should apply to past events — i.e., situations and transactions
existing even before the law came into being — in order to benefit the greatest number of former Filipinos
possible thereby enabling them to enjoy and exercise the constitutionally guaranteed right of citizenship, and
such legislative intention is to be given the fullest effect and expression, then there is all the more reason to
have the law apply in a retroactive or retrospective manner to situations, events and transactions subsequent
to the passage of such law. That is, the repatriation granted to Frivaldo on June 30, 1995 can and should be
made to take effect as of date of his application. As earlier mentioned, there is nothing in the law that would
CONSTI REV – FULL TEXT
bar this or would show a contrary intention on the part of the legislative authority; and there is no showing that
damage or prejudice to anyone, or anything unjust or injurious would result from giving; retroactivity to his
repatriation. Neither has Lee shown that there will result the impairment of any contractual obligation,
disturbance of any vested right or breach of some constitutional guaranty.
Being a former Filipino who has served the people repeatedly, Frivaldo deserves a liberal interpretation of
Philippine laws and whatever defects there were in his nationality should now be deemed mooted by his
repatriation.
Another argument for retroactivity to the date of filing is that it would prevent prejudice to applicants. If P.D.
725 were not to be given retroactive effect, and the Special Committee decides not to act, i.e., to delay the
processing of applications for any substantial length of time, then the former Filipinos who may be stateless,
as Frivaldo — having already renounced his American citizenship — was, may be prejudiced for causes
outside their control. This should not be. In case of doubt in the interpretation or application of laws, it is to be
presumed that the law-making body intended right and justice to prevail. 47
And as experience will show, the Special Committee was able to process, act upon and grant applications for
repatriation within relatively short spans of time after the same were filed. 48 The fact that such interregna
were relatively insignificant minimizes the likelihood of prejudice to the government as a result of giving
retroactivity to repatriation. Besides, to the mind of the Court, direct prejudice to the government is possible
only where a person's repatriation has the effect of wiping out a liability of his to the government arising in
connection with or as a result of his being an alien, and accruing only during the interregnum between
application and approval, a situation that is not present in the instant case.
And it is but right and just that the mandate of the people, already twice frustrated, should now prevail. Under
the circumstances, there is nothing unjust or iniquitous in treating Frivaldo's repatriation as having become
effective as of the date of his application, i.e., on August 17, 1994. This being so, all questions about his
possession of the nationality qualification — whether at the date of proclamation (June 30, 1995) or the date of
election (May 8, 1995) or date of filing his certificate of candidacy (March 20, 1995) would become moot.
Based on the foregoing, any question regarding Frivaldo's status as a registered voter would also be deemed
settled. Inasmuch as he is considered as having been repatriated — i.e., his Filipino citizenship restored — as
of August 17, 1994, his previous registration as a voter is likewise deemed validated as of said date.
It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his
repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code
would disqualify him "from running for any elective local position?" 49 We answer this question in the negative,
as there is cogent reason to hold that Frivaldo was really STATELESS at the time he took said oath of
allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that he
"had long renounced and had long abandoned his American citizenship — long before May 8, 1995. At best,
Frivaldo was stateless in the interim — when he abandoned and renounced his US citizenship but before he
was repatriated to his Filipino citizenship." 50
On this point, we quote from the assailed Resolution dated December 19, 1995: 51
"By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his oath of
allegiance to the Philippine Government when he ran for Governor in 1988, in 1992, and in 1995. Every
certificate of candidacy contains an oath of allegiance to the Philippine Government."
These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have not
been effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission are conclusive
upon this Court, absent any showing of capriciousness or arbitrariness or abuse. 52
The Second Issue: Is Lack of Citizenship a Continuing Disqualification?
Lee contends that the May 1, 1995 Resolution 53 of the Comelec Second Division in SPA No. 95-028 as
affirmed in toto by Comelec En Banc in its Resolution of May 11, 1995 "became final and executory after five
(5) days or on May 17, 1995, no restraining order having been issued by this Honorable Court." 54 Hence,
before Lee "was proclaimed as the elected governor on June 30, 1995, there was already a final and
executory judgment disqualifying" Frivaldo. Lee adds that this Court's two rulings (which Frivaldo now
concedes were legally "correct") declaring Frivaldo an alien have also become final and executory way before
the 1995 elections, and these "judicial pronouncements of his political status as an American citizen absolutely
and for all time disqualified (him) from running for, and holding any public office in the Philippines."
We do not agree.
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It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was rendered in connection with
the 1988 elections while that in G.R. No. 104654 was in connection with the 1992 elections. That he was
disqualified for such elections is final and can no longer be changed. In the words of the respondent
Commission (Second Division) in its assailed Resolution: 55
"The records show that the Honorable Supreme Court had decided that Frivaldo was not a Filipino citizen and
thus disqualified for the purpose of the 1988 and 1992 elections. However, there is no record of any 'final
judgment' of the disqualification of Frivaldo as a candidate for the May 8, 1995 elections. What the
Commission said in its Order of June 21, 1995 (implemented on June 30, 1995), directing the proclamation of
Raul R. Lee, was that Frivaldo was not a Filipino citizen 'having been declared by the Supreme Court in its
Order dated March 25, 1995, not a citizen of the Philippines.' This declaration of the Supreme Court, however,
was in connection with the 1992 elections."
Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a person's future status with
finality. This is because a person may subsequently reacquire, or for that matter lose, his citizenship under any
of the modes recognized by law for the purpose. Hence, in Lee vs. Commissioner of Immigration, 56 we held:
"Everytime the citizenship of a person is material or indispensable in a judicial or administrative case,
whatever the corresponding court or administrative authority decides therein as to such citizenship is generally
not considered res judicata, hence it has to be threshed out again and again, as the occasion demands."
The Third Issue: Comelec's Jurisdiction Over The Petition in SPC No. 95-317
Lee also avers that respondent Comelec had no jurisdiction to entertain the petition in SPC No. 95-317
because the only "possible types of proceedings that may be entertained by the Comelec are a pre-
proclamation case, an election protest or a quo warranto case". Again, Lee reminds us that he was proclaimed
on June 30, 1995 but that Frivaldo filed SPC No. 95-317 questioning his (Lee's) proclamation only on July 6,
1995 — "beyond the 5-day reglementary period." Hence, according to him, Frivaldo's "recourse was to file
either an election protest or a quo warranto action."
This argument is not meritorious. The Constitution 57 has given the Comelec ample power to "exercise
exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective.
. . provincial . . . officials." Instead of dwelling at length on the various petitions that Comelec, in the exercise of
its constitutional prerogatives, may entertain, suffice it to say that this Court has invariably recognized the
Commission's authority to hear and decide petitions for annulment of proclamations — of which SPC No. 95-
317 obviously is one. 58 Thus, in Mentang vs. COMELEC, 59 we ruled:
"The petitioner argues that after proclamation and assumption of office, a pre-proclamation controversy is no
longer viable. Indeed, we are aware of cases holding that pre-proclamation controversies may no longer be
entertained by the COMELEC after the winning candidate has been proclaimed. (citing Gallardo vs. Rimando,
187 SCRA 463; Salvacion vs. COMELEC, 170 SCRA 513; Casimiro vs. COMELEC, 171 SCRA 468.) This
rule, however, is premised on an assumption that the proclamation is no proclamation at all and the
proclaimed candidate's assumption of office cannot deprive the COMELEC of the power to make such
declaration of nullity. (citing Aguam vs. COMELEC, 23 SCRA 883; Agbayani vs. COMELEC, 186 SCRA 484.)"
The Court however cautioned that such power to annul a proclamation must "be done within ten (10) days
following the proclamation." Inasmuch as Frivaldo's petition was filed only six (6) days after Lee's
proclamation, there is no question that the Comelec correctly acquired jurisdiction over the same.
The Fourth Issue: Was Lee's Proclamation Valid?
Frivaldo assails the validity of the Lee proclamation. We uphold him for the following reasons:
First. To paraphrase this Court in Labo vs. COMELEC, 60 "the fact remains that he (Lee) was not the choice of
the sovereign will," and in Aquino vs. COMELEC, 61 Lee is "a second placer, . . . just that, a second placer."
In spite of this, Lee anchors his claim to the governorship on the pronouncement of this Court in the aforesaid
Labo 62 case, as follows:
"The rule would have been different if the electorate fully aware in fact and in law of a candidate's
disqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast their votes
in favor of the ineligible candidate. In such case, the electorate may be said to have waived the validity and
efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case,
the eligible candidate obtaining the next higher number of votes may be deemed elected."
But such holding is qualified by the next paragraph, thus:
CONSTI REV – FULL TEXT
"But this is not the situation obtaining in the instant dispute. It has not been shown, and none was alleged, that
petitioner Labo was notoriously known as an ineligible candidate, much less the electorate as having known of
such fact. On the contrary, petitioner Labo was even allowed by no less than the Comelec itself in its
resolution dated May 10, 1992 to be voted for the office of the city mayor as its resolution dated May 9, 1992
denying due course to petitioner Labo's certificate of candidacy had not yet become final and subject to the
final outcome of this case."
The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate in this case because
Frivaldo was in 1995 in an identical situation as Labo was in 1992 when the Comelec's cancellation of his
certificate of candidacy was not yet final on election day as there was in both cases a pending motion for
reconsideration, for which reason Comelec issued an (omnibus) resolution declaring that Frivaldo (like Labo in
1992) and several others can still be voted for in the May 8, 1995 election, as in fact, he was.
Furthermore, there has been no sufficient evidence presented to show that the electorate of Sorsogon was
"fully aware in fact and in law" of Frivaldo's alleged disqualification as to "bring such awareness within the
realm of notoriety;" in other words, that the voters intentionally wasted their ballots knowing that, in spite of
their voting for him, he was ineligible. If Labo has any relevance at all, it is that the vice-governor — and not
Lee — should be proclaimed, since in losing the election, Lee was, to paraphrase Labo again, "obviously not
the choice of the people" of Sorsogon. This is the emphatic teaching of Labo:
"The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible
candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate
cannot be deemed elected to the office."
Second. As we have earlier declared Frivaldo to have seasonably re-acquired his citizenship and inasmuch as
he obtained the highest number of votes in the 1995 elections, he — not Lee — should be proclaimed. Hence,
Lee's proclamation was patently erroneous and should now be corrected.
The Fifth Issue: Is Section 78 of the Election Code Mandatory?
In G.R. No. 120295. Frivaldo claims that the assailed Resolution of the Comelec (Second Division) dated May
1, 1995 and the confirmatory en banc Resolution of May 11, 1995 disqualifying him for want of citizenship
should be annulled because they were rendered beyond the fifteen (15) day period prescribed by Section 78
of the Omnibus Election Code which reads as follows:
"Section 78. Petition to deny due course or to cancel a certificate of candidacy. — A verified petition
seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on
the ground that any material representation contained therein as required under Section 74 hereof is false.
The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate
of candidacy and shall be decided after notice and hearing, not later than fifteen days before the election."
(emphasis supplied.)
This claim is now moot and academic inasmuch as these resolutions are deemed superseded by the
subsequent ones issued by the Commission (First Division) on December 19, 1995, affirmed en banc 63 on
February 23, 1996, which both upheld his election. At any rate, it is obvious that Section 78 is merely directory
as Section 6 of R.A. No. 6646 authorizes the Commission to try and decide petitions for disqualifications even
after the elections, thus:
"SEC. 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the Court or Commission shall continue with the trial
and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during
the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of
his guilt is strong." (emphasis supplied)
Refutation of
Mr. Justice Davide's Dissent
In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues that President Aquino's
memorandum dated March 27, 1987 should be viewed as a suspension (not a repeal, as urged by Lee) of P.D.
725. But whether it decrees a suspension or a repeal is a purely academic distinction because the said
issuance is not a statute that can amend or abrogate an existing law. The existence and subsistence of P.D.
725 were recognized in the first Frivaldo case; 64 viz, "(u)nder CA No. 63 as amended by CA No. 473 and P.D.
No. 725, Philippine citizenship may be reacquired by . . . repatriation". He also contends that by allowing
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Frivaldo to register and to remain as a registered voter, the Comelec and in effect this Court abetted a
"mockery" of our two previous judgments declaring him a non-citizen. We do not see such abetting or
mockery. The retroactivity of his repatriation, as discussed earlier, legally cured whatever defects there may
have been in his registration as a voter for the purpose of the 1995 elections. Such retroactivity did not change
his disqualifications in 1988 and 1992, which were the subjects of such previous rulings.
Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to question the ineligibility of a
candidate, citing the Comelec's authority under Section 78 of the Omnibus Election Code allowing the denial
of a certificate of candidacy on the ground of a false material representation therein as required by Section 74.
Citing Loong, he then states his disagreement with our holding that Section 78 is merely directory. We really
have no quarrel. Our point is that Frivaldo was in error in his claim in G.R. No. 120295 that the Comelec
Resolutions promulgated on May 1, 1995 and May 11, 1995 were invalid because they were issued "not later
than fifteen days before the election" as prescribed by Section 78. In dismissing the petition in G.R. No.
120295, we hold that the Comelec did not commit grave abuse of discretion because "Section 6 of R.A. 6646
authorizes the Comelec to try and decide disqualifications even after the elections." In spite of his
disagreement with us on this point, i.e., that Section 78 "is merely directory", we note that just like us, Mr.
Justice Davide nonetheless votes to "DISMISS G.R. No. 120295". One other point. Loong, as quoted in the
dissent, teaches that a petition to deny due course under Section 78 must be filed within the 25-day period
prescribed therein. The present case however deals with the period during which the Comelec may decide
such petition. And we hold that it may be decided even after the fifteen day period mentioned in Section 78.
Here, we rule that a decision promulgated by the Comelec even after the elections is valid but Loong held that
a petition filed beyond the 25-day period is out of time. There is no inconsistency nor conflict.
Mr. Justice Davide also disagrees with the Court's holding that, given the unique factual circumstances of
Frivaldo, repatriation may be given retroactive effect. He argues that such retroactivity "dilutes" our holding in
the first Frivaldo case. But the first (and even the second Frivaldo) decision did not directly involve repatriation
as a mode of acquiring citizenship. If we may repeat, there is no question that Frivaldo was not a Filipino for
purposes of determining his qualifications in the 1988 and 1992 elections. That is settled. But his supervening
repatriation has changed his political status — not in 1988 or 1992, but only in the 1995 elections.
Our learned colleague also disputes our holding that Frivaldo was stateless prior to his repatriation, saying that
"informal renunciation or abandonment is not a ground to lose American citizenship." Since our courts are
charged only with the duty of the determining who are Philippine nationals, we cannot rule on the legal
question of who are or who are not Americans. It is basic in international law that a State determines ONLY
those who are its own citizens — not who are the citizens of other countries. 65 The issue here is: the
Comelec made a finding of fact that Frivaldo was stateless and such finding has not been shown by Lee to be
arbitrary or whimsical. Thus, following settled case law, such finding is binding and final.
The dissenting opinion also submits that Lee who lost by chasmic margins to Frivaldo in all three previous
elections, should be declared winner because "Frivaldo's ineligibility for being an American was publicly
known." First, there is absolutely no empirical evidence for such "public" knowledge. Second, even if there is,
such knowledge can be true post facto only of the last two previous elections. Third, even the Comelec and
now this Court were/are still deliberating on his nationality before, during and after the 1995 elections. How
then can there be such "public" knowledge?
Mr. Justice Davide submits that Section 39 of the Local Government Code refers to the qualifications of
elective local officials, i.e., candidates, and not elected officials, and that the citizenship qualification [under
par. (a) of that section] must be possessed by candidates, not merely at the commencement of the term, but
by election day at the latest. We see it differently. Section 39, par. (a) thereof speaks of "elective local official"
while par. (b) to (f) refer to "candidates". If the qualifications under par. (a) were intended to apply to
"candidates" and not elected officials, the legislature would have said so, instead of differentiating par. (a) from
the rest of the paragraphs. Secondly, if Congress had meant that the citizenship qualification should be
possessed at election day or prior thereto, it would have specifically stated such detail, the same way it did in
pars. (b) to (f) for other qualifications of candidates for governor, mayor, etc.
Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's repatriation on the ground,
among others, that the law specifically provides that it is only after taking the oath of allegiance that applicants
shall be deemed to have reacquired Philippine citizenship. We do not question what the provision states. We
hold however that the provision should be understood thus: that after taking the oath of allegiance the
applicant is deemed to have reacquired Philippine citizenship, which reacquisition (or repatriation) is deemed
for all purposes and intents to have retroacted to the date of his application therefor.
CONSTI REV – FULL TEXT
In any event, our "so too" argument regarding the literal meaning of the word "elective" in reference to Section
39 of the Local Government Code, as well as regarding Mr. Justice Davide's thesis that the very wordings of
P.D. 725 suggest non-retroactivity, were already taken up rather extensively earlier in this Decision.
Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to uphold the Rule of Law."
We agree — we must all follow the rule of law. But that is NOT the issue here. The issue is how should the law
be interpreted and applied in this case so it can be followed, so it can rule!
At balance, the question really boils down to a choice of philosophy and perception of how to interpret and
apply laws relating to elections: literal or liberal; the letter or the spirit; the naked provision or its ultimate
purpose; legal syllogism or substantial justice; in isolation or in the context of social conditions; harshly against
or gently in favor of the voters' obvious choice. In applying election laws, it would be far better to err in favor of
popular sovereignty than to be right in complex but little understood legalisms. Indeed, to inflict a thrice
rejected candidate upon the electorate of Sorsogon would constitute unmitigated judicial tyranny and an
unacceptable assault upon this Court's conscience.
EPILOGUE
In sum, we rule that the citizenship requirement in the Local Government Code is to be possessed by an
elective official at the latest as of the time he is proclaimed and at the start of the term of office to which he has
been elected. We further hold P.D. No. 725 to be in full force and effect up to the present, not having been
suspended or repealed expressly nor impliedly at any time, and Frivaldo's repatriation by virtue thereof to have
been properly granted and thus valid and effective. Moreover, by reason of the remedial or curative nature of
the law granting him a new right to resume his political status and the legislative intent behind it, as well as his
unique situation of having been forced to give up his citizenship and political aspiration as his means of
escaping a regime he abhorred, his repatriation is to be given retroactive effect as of the date of his application
therefor, during the pendency of which he was stateless, he having given up his U.S. nationality. Thus, in
contemplation of law, he possessed the vital requirement of Filipino citizenship as of the start of the term of
office of governor, and should have been proclaimed instead of Lee. Furthermore, since his reacquisition of
citizenship retroacted to August 17, 1994, his registration as a voter of Sorsogon is deemed to have been
validated as of said date as well. The foregoing, of course, are precisely consistent with our holding that lack
of the citizenship requirement is not a continuing disability or disqualification to run for and hold public office.
And once again, we emphasize herein our previous rulings recognizing the Comelec's authority and
jurisdiction to hear and decide petitions for annulment of proclamations.
This Court has time and again liberally and equitably construed the electoral laws of our country to give fullest
effect to the manifest will of our people, 66 for in case of doubt, political laws must be interpreted to give life
and spirit to the popular mandate freely expressed through the ballot. Otherwise stated, legal niceties and
technicalities cannot stand in the way of the sovereign will. Consistently, we have held:
". . . (L)aws governing election contests must be liberally construed to the end that the will of the people in the
choice of public officials may not be defeated by mere technical objections (citations omitted)." 67
The law and the courts must accord Frivaldo every possible protection, defense and refuge, in deference to
the popular will. Indeed, this Court has repeatedly stressed the importance of giving effect to the sovereign will
in order to ensure the survival of our democracy. In any action involving the possibility of a reversal of the
popular electoral choice, this Court must exert utmost effort to resolve the issues in a manner that would give
effect to the will of the majority, for it is merely sound public policy to cause elective offices to be filled by those
who are the choice of the majority. To successfully challenge a winning candidate's qualifications, the
petitioner must clearly demonstrate that the ineligibility is so patently antagonistic 68 to constitutional and legal
principles that overriding such ineligibility and thereby giving effect to the apparent will of the people, would
ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution
and laws so zealously protect and promote. In this undertaking, Lee has miserably failed.
In Frivaldo's case, it would have been technically easy to find fault with his cause. The Court could have
refused to grant retroactivity to the effects of his repatriation and hold him still ineligible due to his failure to
show his citizenship at the time he registered as a voter before the 1995 elections. Or, it could have disputed
the factual findings of the Comelec that he was stateless at the time of repatriation and thus hold his
consequent dual citizenship as a disqualification "from running for any elective local position." But the real
essence of justice does not emanate from quibblings over patchwork legal technicality. It proceeds from the
spirit's gut consciousness of the dynamic role of law as a brick in the ultimate development of the social
edifice. Thus, the Court struggled against and eschewed the easy, legalistic, technical and sometimes harsh
anachronisms of the law in order to evoke substantial justice in the larger social context consistent with
Frivaldo's unique situation approximating venerability in Philippine political life. Concededly, he sought
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American citizenship only to escape the clutches of the dictatorship. At this stage, we cannot seriously
entertain any doubt about his loyalty and dedication to this country. At the first opportunity, he returned to this
land, and sought to serve his people once more. The people of Sorsogon overwhelmingly voted for him three
times. He took an oath of allegiance to this Republic every time he filed his certificate of candidacy and during
his failed naturalization bid. And let it not be overlooked, his demonstrated tenacity and sheer determination to
re-assume his nationality of birth despite several legal set-backs speak more loudly, in spirit, in fact and in
truth than any legal technicality, of his consuming intention and burning desire to re-embrace his native
Philippines even now at the ripe old age of 81 years. Such loyalty to and love of country as well as nobility of
purpose cannot be lost on this Court of justice and equity. Mortals of lesser mettle would have given up. After
all, Frivaldo was assured of a life of ease and plenty as a citizen of the most powerful country in the world. But
he opted, nay, single-mindedly insisted on returning to and serving once more his struggling but beloved land
of birth. He therefore deserves every liberal interpretation of the law which can be applied in his favor. And in
the final analysis, over and above Frivaldo himself, the indomitable people of Sorsogon most certainly deserve
to be governed by a leader of their overwhelming choice.
WHEREFORE, in consideration of the foregoing:
(1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed Resolutions of the
respondent Commission are AFFIRMED.
(2) The petition in G.R. No. 120295 is also DISMISSED for being moot and academic. In any event, it
has no merit.
No costs.
SO ORDERED.
Francisco, Hermosisima, Jr., Melo, Vitug, Kapunan and Torres, JJ., concur.
Padilla, Regalado, Romero and Bellosillo, JJ., pro hac vice.
Narvasa, C.J. and Mendoza, J., took no part.
Separate Opinions
PUNO, J., concurring:
I concur with the path-breaking ponencia of Mr. Justice Panganiban which is pro-people and pierces the
myopia of legalism. Upholding the sovereign will of the people which is the be-all and the end-all of
republicanism, it rests on a foundation that will endure time and its tempest.
The sovereignty of our people is the primary postulate of the 1987 Constitution. For this reason, it appears as
the first in our declaration of principles and state policies. Thus, section 1 of Article II of our fundamental law
proclaims that "[t]he Philippines is a democratic and republican State. Sovereignty resides in the people and
all government authority emanates from them." The same principle served as the bedrock of our 1973 and
1935 Constitutions. 1 It is one of the few principles whose truth has been cherished by the Americans as self-
evident. Section 4, Article IV of the U.S. Constitution makes it a duty of the Federal government to guarantee
to every state a "republican form of government." With understandable fervor, the American authorities
imposed republicanism as the cornerstone of our 1935 Constitution then being crafted by its Filipino framers. 2
Borne out of the 1986 people power EDSA revolution, our 1987 Constitution is more people-oriented. Thus,
section 4 of Article II provides as a state policy that the prime duty of the Government is "to serve and protect
the people." Section 1, Article XI also provides that ". . . public officers . . . must at all times be accountable to
the people . . ." Sections 15 and 16 of Article XIII define the role and rights of people's organizations. Section
5(2) of Article XVI mandates that "[t]he state shall strengthen the patriotic spirit and nationalist consciousness
of the military, and respect for people's rights in the performance of their duty." And Section 2 of Article XVII
provides that "amendments to this Constitution may likewise be directly proposed by the people through
initiative . . ." All these provisions and more are intended to breathe more life to the sovereignty of our people.
To be sure, the sovereignty of our people is not a kabalistic principle whose dimensions are buried in
mysticism. Its metes and bounds are familiar to the framers of our Constitutions. They knew that in its
broadest sense, sovereignty is meant to be supreme, the jus summi imperu, the absolute right to govern. 3
Former Dean Vicente Sinco 4 states that an essential quality of sovereignty is legal omnipotence, viz: "Legal
theory establishes certain essential qualities inherent in the nature of sovereignty. The first is legal
omnipotence. This means that the sovereign is legally omnipotent and absolute in relation to other legal
institutions. It has the power to determine exclusively its legal competence. Its powers are original, not
CONSTI REV – FULL TEXT
derivative. It is the sole judge of what it should do at any given time." 5 Citing Barker, 6 he adds that a more
amplified definition of sovereignty is that of "a final power of final legal adjustment of all legal issues." The U.S.
Supreme Court expressed the same thought in the landmark case of Yick Wo v. Hopkins, 7 where it held that
". . . sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system,
while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the
people, by whom and for whom all government exists and acts."
In our Constitution, the people established a representative democracy as distinguished from a pure
democracy. Justice Isagani Cruz explains: 8
"xxx xxx xxx
A republic is a representative government, a government run by and for the people. It is not a pure democracy
where the people govern themselves directly. The essence of republicanism is representation and renovation,
the selection by the citizenry of a corps of public functionaries who derive their mandate from the people and
act on their behalf, serving for a limited period only, after which they are replaced or retained, at the option of
their principal. Obviously, a republican government is a responsible government whose officials hold and
discharge their position as a public trust and shall, according to the Constitution, 'at all times be accountable to
the people' they are sworn to serve. The purpose of a republican government it is almost needless to state, is
the promotion of the common welfare according to the will of the people themselves. "
I appreciate the vigorous dissent of Mr. Justice Davide. I agree that sovereignty is indivisible but it need not
always be exercised by the people together, all the time. 9 For this reason, the Constitution and our laws
provide when the entire electorate or only some of them can elect those who make our laws and those who
execute our laws. Thus, the entire electorate votes for our senators but only our district electorates vote for our
congressmen, only our provincial electorates vote for the members of our provincial boards, only our city
electorates vote for our city councilors, and only our municipal electorates vote for our councilors. Also, the
entire electorate votes for our President and Vice-President but only our provincial electorates vote for our
governors, only our city electorates vote for our mayors, and only our municipal electorates vote for our
mayors. By defining and delimiting the classes of voters who can exercise the sovereignty of the people in a
given election, it cannot be claimed that said sovereignty has been fragmented.
It is my respectful submission that the issue in the case at bar is not whether the people of Sorsogon should
be given the right to defy the law by allowing Frivaldo to sit as their governor. Rather, the issue is: whether the
will of the voters of Sorsogon clearly choosing Frivaldo as governor ought to be given a decisive value
considering the uncertainty of the law on when a candidate ought to satisfy the qualification of citizenship. The
uncertainty of law and jurisprudence, both here and abroad, on this legal issue cannot be denied. In the United
States, 10 there are two (2) principal schools of thought on the matter. One espouses the view that a
candidate must possess the qualifications for office at the time of his election. The other ventures the view that
the candidate should satisfy the qualifications at the time he assumes the powers of the office. I am unaware
of any Philippine decision that has squarely resolved this difficult question of law. The ponencia of Mr. Justice
Panganiban adhered to the second school of thought while Mr. Justice Davide dissents.
I emphasize the honest-to-goodness difference in interpreting our law on the matter for this is vital to dispel the
fear of Mr. Justice Davide that my opinion can bring about ill effects to the State. Mr. Justice Davide's fear is
based on the assumption that Frivaldo continues to be disqualified and we cannot allow him to sit as governor
without transgressing the law. I do not concede this assumption for as stressed above, courts have been
sharply divided by this mind boggling issue. Given this schism, I do not see how we can derogate on the
sovereignty of the people by according more weight to the votes of the people of Sorsogon.
Mr. Justice Davide warns that should the people of Batanes stage a rebellion, we cannot prosecute them
"because of the doctrine of people's sovereignty." With due respect, the analogy is not appropriate. In his
hypothetical case, rebellion is concededly a crime, a violation of Article 134 of the Revised Penal Code, an
offense against the sovereignty of our people. In the case at bar, it cannot be held with certitude that the
people of Sorsogon violated the law by voting for Frivaldo as governor. Frivaldo's name was in the list of
candidates allowed by COMELEC to run for governor. At that time too, Frivaldo was taking all steps to
establish his Filipino citizenship. And even our jurisprudence has not settled the issue when a candidate
should possess the qualification of citizenship. Since the meaning of the law is arguable then and now, I
cannot imagine how it will be disastrous for the State if we tilt the balance in the case at bar in favor of the
people of Sorsogon.
In sum, I respectfully submit that the sovereign will of our people should be resolutory of the case at bar which
is one of its kind, unprecedented in our political history. For three (3) times, Frivaldo ran of the province of
Sorsogon. For two (2) times, he was disqualified on the ground of citizenship. The people of Sorsogon voted
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for him as their governor despite his disqualification. The people never waffled in their support for Frivaldo. In
1988, they gave him a winning margin of 27,000; in 1992, they gave him a winning spread of 57,000; in 1995,
he posted a margin of 20,000. Clearly then, Frivaldo is the overwhelming choice of the people of Sorsogon. In
election cases, we should strive to align the will of the legislature as expressed in its law with the will of the
sovereign people as expressed in their ballots. For law to reign, it must respect the will of the people. For in
the eloquent prose of Mr. Justice Laurel, ". . . an enfranchised citizen is a particle of popular sovereignty and is
the ultimate source of established authority.'' 11 The choice of the governed on who shall be their governor
merits the highest consideration by all agencies of government. In cases where the sovereignty of the people
is at stake, we must not only be legally right but also politically correct. We cannot fail by making the people
succeed.
DAVIDE, JR., J., dissenting:
After deliberating on the re-formulated issues and the conclusions reached by my distinguished colleague, Mr.
Justice Artemio V. Panganiban, I find myself unable to join him.
I
I agree with petitioner Lee that Frivaldo's repatriation was void, but not on the ground that President Corazon
C. Aquino's 27 March 1987 memorandum "effectively repealed" P.D. No. 725. In my view, the said
memorandum only suspended the implementation of the latter decree by divesting the Special Committee on
Naturalization of its authority to further act on grants of citizenship under LOI No. 270, as amended; P.D. No.
836, as amended; P.D. No. 1379; and "any other related laws, orders, issuances and rules and regulations." A
reading of the last paragraph of the memorandum can lead to no other conclusion, thus:
In view of the foregoing, you as Chairman and members of the Special Committee on Naturalization, are
hereby directed to cease and desist from undertaking any and all proceedings within your functional area of
responsibility, as defined in Letter of Instruction No. 270 dated April 11, 1975 as amended, Presidential Decree
No. 836 dated December 3, 1975, as amended, and Presidential Decree No. 1379 dated May 17, 1978,
relative to the grant of citizenship under the said laws, and any other related laws, orders, issuances and rules
and regulations. (emphasis supplied)
It is self-evident that the underscored clause can only refer to those related to LOI No. 270, P.D. No. 836, and
P.D. No. 1379. There is no doubt in my mind that P.D. No. 725 is one such "related law" as it involves the
reacquisition of Philippine citizenship by repatriation and designates the Special Committee on Naturalization
created under LOI No. 270 to receive and act on (i.e., approve or disapprove) applications under the said
decree. The power of President Aquino to suspend these issuances by virtue of the 27 March 1987
memorandum is beyond question considering that under Section 6, Article XVIII of the 1987 Constitution, she
exercised legislative power until the Congress established therein convened on the fourth Monday of July
1987.
I disagree with the view expressed in the ponencia that the memorandum of 27 March 1987 was merely a
declaration of "executive policy," and not an exercise of legislative power. LOI No. 270, P.D. No. 836, P.D. No.
1379 and "any other related laws," such as P.D. No. 725, were issued by President Ferdinand E. Marcos in the
exercise of his legislative powers — not executive power. These laws relate to the acquisition (by
naturalization) and reacquisition (by repatriation) of Philippine citizenship, and in light of Sections 1(4) and 3,
Article IV of the 1987 Constitution (naturalization and reacquisition of Philippine citizenship shall be in
accordance with law), it is indubitable that these subjects are a matter of legislative prerogative. In the same
vein, the creation of the Special Committee on Naturalization by LOI No. 270 and the conferment of the power
to accept and act on applications under P.D. No. 725 are clearly legislative acts.
Accordingly, the revocation of the cease and desist order and the reactivation or revival of the Committee can
be done only by legislative fiat, i.e., by Congress, since the President had long lost his authority to exercise
"legislative power." Considering that Congress has not seen it fit to do so, the President cannot, in the exercise
of executive power, lift the cease and desist order nor reactivate/reconstitute/revive the Committee. A multo
fortiori, the Committee cannot validly accept Frivaldo's application for repatriation and approve it.
II
Even assuming arguendo that Frivaldo's repatriation is valid, it did not cure his lack of citizenship." I depart
from the view in the ponencia that Section 39 of the Local Government Code of 1991 does not specify the time
when the citizenship requirement must be met, and that being the case, then it suffices that citizenship be
possessed upon commencement of the term of the office involved; therefore, since Frivaldo "re-assumed" his
Philippine citizenship at 2:00 p.m. on 30 June 1995 and the term of office of Governor commenced at 12:00
noon of that day, he had, therefore, complied with the citizenship requirement.
CONSTI REV – FULL TEXT
In the first place, Section 39 actually prescribes the qualifications of elective local officials and not those of an
elected local official. These adjectives are not synonymous, as the ponencia seems to suggest. The first refers
to the nature of the office, which requires the process of voting by the electorate involved; while the second
refers to a victorious candidate for an elective office. The section unquestionably refers to elective — not
elected — local officials. It falls under Title Two entitled ELECTIVE OFFICIALS; under Chapter 1 entitled
Qualifications and Election; and paragraph (a) thereof begins with the phrase "An elective local official," while
paragraphs (b) to (f) thereof speak of candidates. It reads as follows:
SEC. 39. Qualifications — (a) An elective local official must be a citizen of the Philippines; a registered voter
in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan,
sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident
therein for at least one (1) year immediately preceding the day of the election; and able to read and write
Filipino or any other local language or dialect.
(b) Candidates for the position of governor, vice governor or member of the sangguniang
panlalawigan, or mayor, vice mayor or member of the sangguniang panlungsod of highly urbanized cities must
be at least twenty-three (23) years of age on election day.
(c) Candidates for the position of mayor or vice mayor of independent component cities component
cities, or municipalities must be at least twenty-one (21) years of age on election day.
(d) Candidates for the position of member of the sangguniang panlungsod or sangguniang bayan
must be at least eighteen (18) years of age on election day.
(e) Candidates for the position of punong barangay or member of the sangguniang barangay must be
at least eighteen (18) years of age on election day.
(f) Candidates for the sangguniang kabataan must be at least fifteen (15) years of age but not more
than twenty-one (21) years of age on election day (emphasis supplied)
It is thus obvious that Section 39 refers to no other than the qualifications of candidates for elective local
offices and their election. Hence, in no way may the section be construed to mean that possession of
qualifications should be reckoned from the commencement of the term of office of the elected candidate.
For another, it is not at all true that Section 39 does not specify the time when the citizenship requirement must
be possessed. I submit that the requirement must be satisfied, or that Philippine citizenship must be
possessed, not merely at the commencement of the term, but at an earlier time, the latest being election day
itself. Section 39 is not at all ambiguous nor uncertain that it meant this to be, as one basic qualification of an
elective local official is that he be "A REGISTERED VOTER IN THE BARANGAY, MUNICIPALITY, CITY OR
PROVINCE . . . WHERE HE INTENDS TO VOTE." This simply means that he possesses all the qualifications
to exercise the right of suffrage. The fundamental qualification for the exercise of this sovereign right is the
possession of Philippine citizenship. No less than the Constitution makes it the first qualification, as Section 1,
Article V thereof provides:
Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who
are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in
the place wherein they propose to vote for at least six months immediately preceding the election . . .
(emphasis supplied)
And Section 117 of the Omnibus Election Code of the Philippines (B.P. Blg. 881) expressly provides for the
qualifications of a voter. Thus:
SEC. 117. Qualifications of a voter. — Every citizen of the Philippines, not otherwise disqualified by law,
eighteen years of age or over, who shall have resided in the Philippines for one year and in the city or
municipality wherein he proposes to vote for at least six months immediately preceding the election, may be a
registered voter. (emphasis supplied)
It is undisputed that this Court twice voided Frivaldo's election as Governor in the 1988 and 1992 elections on
the ground that for lack of Philippine citizenship — he being a naturalized citizen of the United States of
America — he was DISQUALIFIED to be elected as such and to serve the position (Frivaldo vs. Commission
on Elections, 174 SCRA 245 [1989], Republic of the Philippines vs. De la Rosa, 232 SCRA 785 [1994]). This
disqualification inexorably nullified Frivaldo's registration as a voter and declared it void ab initio. Our
judgments therein were self-executory and no further act, e.g., a COMELEC order to cancel his registration as
a voter or the physical destruction of his voter's certificate, was necessary for the ineffectivity. Thus, he was
never considered a registered voter for the elections of May 1992, and May 1995, as there is no showing that
Frivaldo registered anew as a voter for the latter elections. Even if he did — in obvious defiance of his decreed
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disqualification — this did not make him a Filipino citizen, hence it was equally void ab initio. That he filed his
certificate of candidacy for the 1995 elections and was even allowed to vote therein were of no moment.
Neither act made him a Filipino citizen nor nullified the judgments of this Court. On the contrary, said acts
made a mockery of our judgments. For the Court now to validate Frivaldo's registration as a voter despite the
judgments of disqualification is to modify the said judgments by making their effectivity and enforceability
dependent on a COMELEC order cancelling his registration as a voter, or on the physical destruction of his
certificate of registration as a voter which, of course, was never our intention. Moreover, to sanction Frivaldo's
registration as a voter would be to sacrifice substance in favor of form (the piece of paper that is the book of
voters or list of voters or voter's ID), and abet the COMELEC's incompetence in failing to cancel Frivaldo's
registration and allowing him to vote.
The second reason in the ponencia as to why the citizenship disqualification should be reckoned not from the
date of the election nor the filing of the certificate of candidacy, but from the date of proclamation, is that the
only available remedy to question the ineligibility (or disloyalty) of a candidate is a petition for quo warranto
which, under Section 253 of the Omnibus Election Code, may be filed only within ten days from proclamation
and not earlier.
I beg to differ.
Clearly, quo warranto is not the sole remedy available to question a candidate's ineligibility for public office.
Section 78 of the Omnibus Election Code allows the filing of a petition to deny due course to or cancel the
certificate of candidacy on the ground that any material representation contained therein, as required by
Section 74, is false. Section 74, in turn, requires that the person filing the certificate of candidacy must state,
inter alia, that he is eligible for the office, which means that he has all the qualifications (including, of course,
fulfilling the citizenship requirement) and none of the disqualifications as provided by law. The petition under
Section 78 may be filed at any time not later than 25 days from the filing of the certificate of candidacy. The
section reads in full as follows:
SEC. 78. Petition to deny due course to or cancel a certificate of candidacy. — A verified petition seeking to
deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground
that any material representation contained therein as required under Section 74 hereof is false The petition
may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy
and shall be decided, after due notice and hearing, not later than fifteen days before the election.
This remedy was recognized in Loong vs. Commission on Elections (216 SCRA 760, 768 [1992]), where this
Court held:
Thus, if a person qualified to file a petition to disqualify a certain candidate fails to file the petition within the 25-
day period prescribed by Section 78 of the Code for whatever reasons, the election laws do not leave him
completely helpless as he has another chance to raise the disqualification of the candidate by filing a petition
for quo warranto within ten (10) days from the proclamation of the results of the election, as provided under
Section 253 of the Code. Section 1, Rule 21 of the Comelec Rules of Procedure similarly provides that any
voter contesting the election of any regional, provincial or city official on the ground of ineligibility or of
disloyalty to the Republic of the Philippines may file a petition for quo warranto with the Electoral Contest
Adjudication Department The petition may be filed within ten (10) days from the date the respondent is
proclaimed (Section 2).
Likewise, Rule 25 of the Revised COMELEC Rules of Procedure allows the filing of a petition for
disqualification on the ground of failure to possess all the qualifications of a candidate as provided by the
Constitution or by existing laws, "any day after the last day for filing of certificates of candidacy but not later
than the date of proclamation." Sections 1 and 3 thereof provide:
Rule 25 — Disqualification of Candidates.
SECTION 1. 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.
xxx xxx xxx
SECTION 3. Period to File Petition. — The petition shall be filed any day after the last
day for filing of certificates of candidacy but not later than the date of proclamation.
While the validity of this rule insofar as it concerns petitions for disqualification on the ground of lack of all
qualifications may be doubtful, its invalidity is not in issue here.
CONSTI REV – FULL TEXT
In this connection, it would seem appropriate to take up the last issue grappled within the ponencia, viz., is
Section 78 of the Omnibus Election Code mandatory? The answer is provided in Loong.
We also do not find merit in the contention of respondent Commission that in the light of the provisions of
Sections 6 and 7 of Rep. Act No. 6646, a petition to deny due course to or cancel a certificate of candidacy
may be filed even beyond the 25-day period prescribed by Section 78 of the Code, as long as it is filed within a
reasonable time from the discovery of the ineligibility.
Sections 6 and 7 of Rep. Act No. 6646 are here re-quoted:
SEC. 6. Effect of Disqualification case. — Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the Court or Commission shall continue with the trial
and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during
the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of
his guilt is strong.
SEC. 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy. — The procedure
hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as
provided in Section 78 of Batas Pambansa Blg. 881.
It will be noted that nothing in Sections 6 or 7 modifies or alters the 25-day period prescribed by Section 78 of
the Code for filing the appropriate action to cancel a certificate of candidacy on account of any false
representation made therein. On the contrary, said Section 7 affirms and reiterates Section 78 of the Code.
We note that Section 6 refers only to the effects of a disqualification case which may be based on grounds
other than that provided under Section 78 of the Code. But Section 7 of Rep. Act No. 6646 also makes the
effects referred to in Section 6 applicable to disqualification cases filed under Section 78 of the Code.
Nowhere in Sections 6 and 7 of Rep. Act No. 6646 is mention made of the period within which these
disqualification cases may be filed. This is because there are provisions in the Code which supply the periods
within which a petition relating to disqualification of candidates must be filed, such as Section 78, already
discussed, and Section 253 on petitions for quo warranto.
I then disagree with the asseveration in the ponencia that Section 78 is merely directory because Section 6 of
R.A. No. 6646 authorizes the COMELEC to try and decide petitions for disqualification even after elections. I
submit that Section 6 refers to disqualifications under Sections 12 and 68 of the Omnibus Election Code and
consequently modifies Section 72 thereof. As such, the proper court or the COMELEC are granted the
authority to continue hearing the case after the election, and during the pendency of the case, suspend the
proclamation of the victorious candidate, if the evidence against him is strong. Sections 12, 68, and 72 of the
Code provide:
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 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 of sentence, unless within the same period he again becomes disqualified.
xxx xxx xxx
SEC. 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is declared by
final decision of a competent court guilty of, or found by the Commission of having (a) given money or other
material consideration to influence, induce or corrupt the voters or public officials performing electoral
functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an
amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited
under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e,
k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected,
from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall
not be qualified to run for any elective office under this Code, unless said person has waived his status as
permanent resident or immigrant of a foreign country in accordance with the residence requirement provided
for in the election laws. (Sec. 25, 1971 EC)
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SEC. 72. Effects of disqualification cases and priority. — The Commission and the courts shall give priority
to cases of disqualification by reason of violation of this Act to the end that a final decision shall be rendered
not later than seven days before the election in which the disqualification is sought.
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. Nevertheless, 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, his violation of the provisions of the preceding sections shall not prevent his proclamation and
assumption to office.
III
Still assuming that the repatriation is valid, I am not persuaded by the arguments in support of the thesis that
Frivaldo's repatriation may be given retroactive effect, as such goes against the spirit and letter of P.D. No.
725. The spirit adheres to the principle that acquisition or re-acquisition of Philippine citizenship is not a right,
but a mere privilege. Before the advent of P.D. No. 725, only the following could apply for repatriation: (a)
Army, Navy, or Air Corps deserters; and (b) a woman who lost her citizenship by reason of her marriage to an
alien after the death of her spouse (Section 2[2], C.A. No. 63). P.D. No. 725 expanded this to include Filipino
women who lost their Philippine citizenship by marriage to aliens even before the death of their alien
husbands, or the termination of their marital status and to natural-born Filipino citizens who lost their Philippine
citizenship but subsequently desired to reacquire the latter.
Turning now to the letter of the law, P.D. No. 725 expressly provides that repatriation takes effect only after
taking the oath of allegiance to the Republic of the Philippines, thus:
. . . may reacquire Philippine citizenship . . . by applying with the Special Committee on Naturalization created
by Letter of Instruction No. 270, and, if their applications are approved, taking the necessary oath of allegiance
to the Republic of the Philippines, AFTER WHICH THEY SHALL BE DEEMED TO HAVE REACQUIRED
PHILIPPINE CITIZENSHIP. (italicization and capitalization supplied for emphasis)
Clearly then, the steps to reacquire Philippine citizenship by repatriation under the decree are: (1) filing the
application; (2) action by the committee; and (3) taking of the oath of allegiance if the application is approved.
It is only UPON TAKING THE OATH OF ALLEGIANCE that the applicant is deemed ipso jure to have
reacquired Philippine citizenship. If the decree had intended the oath taking to retroact to the date of the filing
of the application, then it should not have explicitly provided otherwise.
This theory in the ponencia likewise dilutes this Court's pronouncement in the first Frivaldo case that what
reacquisition of Filipino citizenship requires is an act "formally rejecting [the] adopted state and reaffirming . . .
allegiance to the Philippines." That act meant nothing less than taking of the oath of allegiance to the Republic
of the Philippines. If we now take this revision of doctrine to its logical end, then it would also mean that if
Frivaldo had chosen and reacquired Philippine citizenship by naturalization or through Congressional action,
such would retroact to the filing of the petition for naturalization or the bill granting him Philippine citizenship.
This is a proposition which both the first and second Frivaldo cases soundly rejected.
The other reason adduced in the ponencia in support of the proposition that P.D. No. 725 can be given
retroactive effect is its alleged curative or remedial nature.
Again, I disagree. In the first place, by no stretch of legal hermeneutics may P.D. No. 725 be characterized as
a curative or remedial statute:
Curative or remedial statutes are healing acts. They are remedial by curing defects and adding to the means
of enforcing existing obligations. The rule in regard to curative statutes is that if the thing omitted or failed to be
done, and which constitutes the defect sought to be removed or made harmless, is something the legislature
might have dispensed with by a previous statute, it may do so by a subsequent one.
Curative statutes are intended to supply defects, abridge superfluities in existing laws, and curb certain evils.
They are intended to enable a person to carry into effect that which they have designed and intended, but has
failed of expected legal consequence by reason of some statutory disability or irregularity in their own action.
They make valid that which, before the enactment of the statute, was invalid. (RUBEN E. AGPALO, Statutory
Construction, Second ed. [1990], 270-271, citations omitted).
P.D. No. 725 provides for the reacquisition of Philippine citizenship lost through the marriage of a Filipina to an
alien and through naturalization in a foreign country of natural-born Filipino citizens. It involves then the
substantive, nay primordial, right of citizenship. To those for whom it is intended, it means, in reality, the
acquisition of "a new right," as the ponencia cannot but concede. Therefore, it may not be said to merely
remedy or cure a defect considering that one who has lost Philippine citizenship does not have the right to
CONSTI REV – FULL TEXT
reacquire it. As earlier stated, the Constitution provides that citizenship, once lost, may only be reacquired in
the manner provided by law. Moreover, it has also been observed that:
The idea is implicit from many of the cases that remedial statutes are statutes relating to procedure and not
substantive rights. (Sutherland, Statutory Construction, Vol. 3, Third ed. [1943], § 5704 at 74, citations
omitted).
If we grant for the sake of argument, however, that P.D. No. 725 is a curative or remedial statute, it would be
an inexcusable error to give it a retroactive effect since it explicitly provides the date of its effectivity. Thus:
This Decree shall take effect immediately.
Done in the city of Manila, this 5th day of June, in the year of Our Lord, nineteen hundred and seventy five.
Nevertheless, if the retroactivity is to relate only to the reacquisition of Philippine citizenship, then nothing
therein supports such theory, for as the decree itself unequivocally provides, it is only after taking the oath of
allegiance to the Republic of the Philippines that the applicant is DEEMED TO HAVE REACQUIRED
PHILIPPINE CITIZENSHIP.
IV
Assuming yet again, for the sake of argument, that taking the oath of allegiance retroacted to the date of
Frivaldo's application for repatriation, the same could not be said insofar as it concerned the United States of
America, of which he was a citizen. For under the laws of the United States of America, Frivaldo remained an
American national until he renounced his citizenship and allegiance thereto at 2:00 p.m. on 30 June 1995,
when he took his oath of allegiance to the Republic of the Philippines. Section 401 of the Nationality Act of
1940 of the United States of America provides that a person who is a national of the United States of America,
whether by birth or naturalization, loses his nationality by, inter alia, "(b) Taking an oath or making an
affirmation or other formal declaration of allegiance to a foreign state (SIDNEY KANSAS, U.S. Immigration
Exclusion and Deportation and Citizenship of the United States of America. Third ed., [1948] 341-342). It
follows then that on election day and until the hour of the commencement of the term for which he was elected
— noon of 30 June 1995 as per Section 43 of the Local Government Code — Frivaldo possessed dual
citizenship, viz., (a) as an American citizen, and (b) as a Filipino citizen through the adoption of the theory that
the effects of his taking the oath of allegiance were retrospective. Hence, he was disqualified to run for
Governor for yet another reason: possession of dual citizenship, in accordance with Section 40(d) of the Local
Government Code.
V naturalization and reacquisition of Philippine citizenship, but even the final and binding decisions of this Court
The assertion in the ponencia that Frivaldo may be considered STATELESS on the basis of his claim that he
"had long renounced and had long abandoned his American citizenship — long before May 8, 1985" — is
untenable, for the following reasons: first, it is based on Frivaldo's unproven, self-serving allegation; second,
informal renunciation or abandonment is not a ground to lose American citizenship; and third, simply put,
never did the status of a STATELESS person attach to Frivaldo.
Statelessness may be either de jure, which is the status of individuals stripped of their nationality by their
former government without having an opportunity to acquire another; or de facto, which is the status of
individuals possessed of a nationality whose country does not give them protection outside their own country,
and who are commonly, albeit imprecisely, referred to as refugees (JORGE R. COQUIA, et al., Conflict of
Laws Cases, Materials and Comments. 1995 ed., 290)
Specifically, under Chapter 1, Article 1 of the United Nations Convention Regarding the Status of Stateless
Persons (Philippine Treaty; Series, Compiled and Annotated by Haydee B. Yorac, vol. III, 363), a stateless
person is defined as "a person who is not considered as a national by any State under the operation of its
law." However, it has not been shown that the United States of America ever ceased to consider Frivaldo its
national at any time before he took his oath of allegiance to the Republic of the Philippines on 30 June 1995.
VI
Finally, I find it in order to also express my view on the concurring opinion of Mr. Justice Reynato S. Puno. I
am absolutely happy to join him in his statement that "[t]he sovereignty of our people is the primary postulate
of the 1987 Constitution" and that the said Constitution is "more people- oriented," "borne [as it is] out of the
1986 people power EDSA revolution." I would even go further by saying that this Constitution is pro-God
(Preamble), pro-people (Article II, Sections 1, 3, 4, 5, 9, 15, 16; Article XI, Section I; Article XII, Sections 1, 6;
Article XIII, Sections 1, 11, 15, 16, 18; Article XVI, Sections 5(2), 6), pro-Filipino (Article XII, Sections 1, 2, 10,
11, 12, 14. Article XIV, Sections 1, 4(2), 13; Article XVI, Section 11), pro-poor (Article II, Sections 9, 10, 18, 21;
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Article XII, Sections 1, 2[3]; Article XIII, Sections 1, 3, 4, 5, 6, 7, 9, 10, 11, 13), pro-life (Article II, Section 12),
and pro-family (Article II, Section 12; Article XV).
Nevertheless, I cannot be with him in carrying out the principle of sovereignty beyond what I perceive to be the
reasonable constitutional parameters. The doctrine of people's sovereignty is founded on the principles of
democracy and republicanism and refers exclusively to the sovereignty of the people of the Philippines.
Section 1 of Article II is quite clear on this, thus:
SECTION 1. The Philippines is a democratic and republican State. Sovereignty resides in the
people and all government authority emanates from them.
And the Preamble makes it clear when it solemnly opens it with a clause "We, the sovereign Filipino
people . . ." Thus, this sovereignty is an attribute of the Filipino people as one people, one body.
That sovereign power of the Filipino people cannot be fragmentized by looking at it as the supreme authority
of the people of any of the political subdivisions to determine their own destiny; neither can we convert and
treat every fragment as the whole. In such a case, this Court would provide the formula for the division and
destruction of the State and render the Government ineffective and inutile. To illustrate the evil, we may
consider the enforcement of laws or the pursuit of a national policy by the executive branch of the government,
or the execution of a judgment by the courts. If these are opposed by the overwhelming majority of the people
of a certain province, or even a municipality, it would necessarily follow that the law, national policy, or
judgment must not be enforced, implemented, or executed in the said province or municipality. More
concretely, if, for instance, the vast majority of the people of Batanes rise publicly and take up arms against
the Government for the purpose of removing from the allegiance to the said Government or its laws, the
territory of the Republic of the Philippines or any part thereof, or any body of land, naval, or other armed
forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or
prerogatives, then those who did so — and which are composed of the vast majority of the people of Batanes
— a political subdivision — cannot be prosecuted for or be held guilty of rebellion in violation of Article 134 of
the Revised Penal Code because of the doctrine of peoples' sovereignty. Indeed, the expansion of the doctrine
of sovereignty by investing upon the people of a mere political subdivision that which the Constitution places in
the entire Filipino people, may be disastrous to the Nation.
So it is in this case if we follow the thesis in the concurring opinion. Thus, simply because Frivaldo had
obtained a margin of 20,000 votes over his closest rival, Lee, i.e., a vast majority of the voters of Sorsogon
had expressed their sovereign will for the former, then this Court must yield to that will and must, therefore,
allow to be set aside, for Frivaldo, not just the laws on qualifications of candidates and elective officials and
affecting him.
This Court must be the first to uphold the Rule of Law. I vote then to DISMISS G.R. No. 120295 and GRANT
G.R. No. 123755.
Footnotes
1. Composed of Pres. Comm. Regalado E. Maambong, ponente; Comm. Graduacion A.R. Claravall, concurring, and
Comm. Julio F. Desamito, dissenting.
2. In SPC No. 95-317, entitled Juan G. Frivaldo, petitioner, vs. Raul R. Lee, respondent; Rollo, pp. 110-129.
3. Signed by Chairman Bernardo P. Pardo, Comms. Regalado E. Maambong, Remedios A. Salazar-Fernando,
Manolo B. Gorospe and Teresita Dy-Liaco Flores. Chairman Pardo certified that "Commissioner Julio F. Desamito was on official
travel at the time of the deliberation and resolution of this case. However, the Commission has reserved to Comm. Desamito the
right to submit a dissenting opinion." Rollo, pp. 159-171.
4. Rollo, pp. 46-49.
5. Rollo, pp. 50-55. The Second Division was composed of Pres. Comm. Remedios A. Salazar-Fernando, ponente;
Comm. Teresita Dy-Liaco Flores, concurring, and Comm. Manolo B. Gorospe ("on official business").
6. Frivaldo was naturalized as an American citizen on January 20, 1983. In G.R. No. 87193, Frivaldo vs. Commission
on Elections, 174 SCRA 245 (June 23, 1989), the Supreme Court, by reason of such naturalization, declared Frivaldo "not a
citizen of the Philippines and therefore DISQUALIFIED from serving as Governor of the Province of Sorsogon." On February 28,
1992, the Regional Trial Court of Manila granted the petition for naturalization of Frivaldo. However, the Supreme Court in G.R.
No. 104654, Republic of the Philippines vs. De la Rosa, et al., 232 SCRA 785 (June 6, 1994), overturned this grant, and Frivaldo
was "declared not a citizen of the Philippines" and ordered to vacate his office. On the basis of this latter Supreme Court ruling,
the Comelec disqualified Frivaldo in SPA No. 95-028.
7. Signed by Chairman Bernardo P. Pardo and the six incumbent commissioners, namely, Regalado E. Maambong,
Remedios A. Salazar-Fernando, Manolo B. Gorospe, Graduacion A. Reyes-Claravall, Julio F. Desamito and Teresita Dy-Liaco
Flores; Rollo, pp. 56-57.
8. Rollo, p. 60.
9. Rollo, pp. 61-67.
10. Rollo, pp. 86-87. The Comelec considered the votes cast for Frivaldo as "stray votes", and thus Lee was held as
having garnered the "highest number of votes."
CONSTI REV – FULL TEXT JULY 11, 2019

11. Rollo, pp. 88-97. This is the forerunner of the present case. Now, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the
12. 211 SCRA 297 (July 3, 1992) and 176 SCRA 1 (August 1, 1989). powers in me vested by the Constitution, do hereby decree and order that: (1) Filipino women who lost their Philippine citizenship
13. Rollo, pp. 110-128. by marriage to aliens; and (2) natural born Filipinos who have lost their Philippine citizenship may reacquire Philippine citizenship
14. Rollo, pp. 159-170. through repatriation by applying with the Special Committee on Naturalization created by Letter of Instructions No. 270, and, if
15. Rollo, pp. 16-17; petition, pp. 14-15. their applications are approved, taking the necessary oath of allegiance to the Republic of the Philippines, after which they shall
16. Rollo, pp. 10-15. This is the same resolution referred to in footnote no. 5. be deemed to have reacquired Philippine citizenship. The Commission on Immigration and Deportation shall thereupon cancel
17. Rollo, pp. 16-17. This is the same resolution referred to in footnote no. 7. their certificate of registration.
18. Rollo, pp. 18-21. This is signed also by the Chairman and the six other Comelec Commissioners. The aforesaid Special Committee is hereby authorized to promulgate rules and regulations and
19. Republic Act No. 7160. prescribe the appropriate forms and the required fees for the effective implementation of this Decree.
20. See footnote no. 6, supra. This Decree shall take effect immediately.
21. In debunking Frivaldo's claim of citizenship, this Court in G.R. No. 87193, supra, p. 254, observed that "(i)f he Done in the City of Manila, this 5th day of June, in the year of Our Lord, nineteen hundred and
(Frivaldo) really wanted to disavow his American citizenship and reacquire Philippine citizenship, petitioner should have done so seventy-five."
in accordance with the laws of our country. Under C.A. No. 63 as amended by C.A. No. 473 and P.D. 725, Philippine citizenship 30. See footnote no. 6, supra.
may be reacquired by direct act of Congress, by naturalization, or by repatriation." 31. Cf. Labo, Jr. vs. Comelec, 211 SCRA 297 (July 3, 1992).
22. Supra, p. 794. 32. "The term of office of all local elective officials elected after the effectivity of this Code shall be three (3) years,
23. Petition, p. 27; Rollo, p. 29. starting from noon of June 30, 1992 or such date as may be provided for by law, . . ." Sec. 43, Local Government Code.
24. The full text of said memorandum reads as follows: 33. 96 Phil. 447, 453 (1955).
"MEMORANDUM 34. The following are excerpts from the transcript of stenographic notes of the oral argument held on March 19, 1996:
"TO : The Solicitor General "JUSTICE PANGANIBAN: Mr. Counsel, it is your position then that the candidate should be a citizen at the time of proclamation?
The Undersecretary of Foreign Affairs ATTY. BRILLANTES: Yes, Your Honor, it is required that he must be a citizen at the time of proclamation and not only that,
The Director-General at the time that he assumes the office he must have the continuing qualification as a citizen.
National Intelligence Coordinating Agency JUSTICE PANGANIBAN: Should that not be reckoned from the time of filing of certificate of candidacy or at least the day of the
The previous administration's practice of granting citizenship by Presidential Decree or any other election?
executive issuance, and the derivative administrative authority thereof, poses a serious and contentious issue of policy which the ATTY. BRILLANTES: Yes, Your Honor, there are positions taken that it should be reckoned from the date of certificate of
present government, in the exercise of prudence and sound discretion, should best leave to the judgment of the first Congress candidacy as in the case of qualification for Batasang Pambansa before under B.P. 53 — it says that for purposes of residence it
under the 1987 Constitution. must be reckoned . . . from the time of the filing of the certificate, for purposes of age, from the time of the date of the election.
In view of the foregoing, you as Chairman and members of the Special Committee on Naturalization, But when we go over all the provisions of law under current laws, Your Honor, there is no qualification requirement insofar as
are hereby directed to cease and desist from undertaking any and all proceedings within your functional area of responsibility, as citizenship is concern(ed) as to when, as to when you should be a citizen of the Philippines and we say that if there is no
defined in Letter of Instructions No. 270 dated April 11, 1975, as amended, Presidential Decree No. 836 dated December 3, provision under any existing law which requires that you have to be a citizen of the Philippines on the date of the filing or on the
1975, as amended, and Presidential Decree No. 1379 dated May 17, 1978, relative to the grant of citizenship under the said date of election then it has to be equitably interpreted to mean that if you are already qualified at the time that the office is
laws, and any other related laws, orders, issuances and rules and regulations. supposed to be assumed then you should be allowed to assume the office.
(Sgd.) Corazon C. Aquino JUSTICE PANGANIBAN: Is it not also true that under the Local Autonomy Code the candidate should also be a registered voter
and to be a registered voter one must be a citizen?
Manila, March 27, 1987." ATTY. BRILLANTES: Yes, Your Honor, in fact, Mr. Frivaldo has always been a registered voter of Sorsogon. He has voted
in 1987, 1988, 1992, then he voted again in 1995. In fact, his eligibility as a voter was questioned but the Court dismissed (sic)
25. Art. 7, Civil Code of the Philippines. his eligibility as a voter and he was allowed to vote as in fact, he voted in all the previous elections including on May 8, 1995.
26. Cf. Ty, et al. vs. Trampe, et al., G.R. No. 117577 (December 1, 1995). JUSTICE PANGANIBAN: But the fact that he voted does not make him a citizen. The fact is, he was declared not a citizen by
27. Petition, p. 28; Rollo, p. 30. this Court twice.
28. The aforesaid Manifestation reads as follows: ATTY. BRILLANTES: That is true, Your Honor, we admit that he has been twice declared not citizen and we admit the ruling
of the Supreme Court is correct but the fact is, Your Honor, the matter of his eligibility to vote as being a registered voter was
"M A N I F E S T A T I O N likewise questioned before the judiciary. There was a ruling by the Municipal Court, there was a ruling by the Regional Trial Court
The Solicitor General, as Chairman of the Special Committee on Naturalization, hereby manifests that and he was sustained as a valid voter, so he voted.
the following persons have been repatriated by virtue of Presidential Decree No. 725, since June 8, 1995: JUSTICE PANGANIBAN: I raised this question in connection with your contention that citizenship should be determined as of
1. Juan Gallanosa Frivaldo R-000900 the time of proclamation and not as of the time of the election or at the time of the filing of the certificate of candidacy.
2. Manuel Reyes Sanchez 901 ATTY. BRILLANTES: That is true, Your Honor.
3. Ma. Nelly Dessalla Ty 902 JUSTICE PANGANIBAN: And is it your contention that under the law, particularly the Local Autonomy Code, the law does not
4. Terry Herrera and specify when citizenship should be possessed by the candidate, is that not correct?
Antonio Ching 903 ATTY. BRILLANTES: That is right, Your Honor, there is no express provision.
5. Roberto Salas Benedicto 904 JUSTICE PANGANIBAN: I am also asking you that under the Local Autonomy Code the candidate for governor or for other
6. Winthrop Santos Liwag 905 local positions should be a voter and to be a voter one must be a citizen?
7. Samuel M. Buyco 906 ATTY. BRILLANTES: That is right, Your Honor, but the fact of voting is not an issue here because he was allowed to vote
8. Joselito Holganza Ruiz 907 and he did in fact vote and in fact, he was a registered voter." (TSN, March 19, 1996.)
9. Samuel Villanueva 908 35. Section 117, Batas Pambansa Blg. 881, otherwise known as "The Omnibus Election Code of the Philippines", as
10. Juan Leonardo Collas, Jr. 909 amended, provides for the various qualifications of voters, one of which is Filipino citizenship.
11. Felicilda Otilla Sacnanas-Chua 910" 36. Comment, p. 11; Rollo, p. 259.
29. The text of P.D. 725 is reproduced below: 37. See footnote no. 33.
"PRESIDENTIAL DECREE No. 725 38. Section 253 reads as follows:
PROVIDING FOR REPATRIATION OF FILIPINO WOMEN WHO HAD LOST THEIR PHILIPPINE CITIZENSHIP BY "Section 253. Petition for quo warranto. — Any voter contesting the election of any member of the Congress, regional, provincial,
MARRIAGE TO ALIENS AND OF NATURAL BORN FILIPINOS. or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo
WHEREAS, there are many Filipino women who had lost their Philippine citizenship by marriage to warranto with the Commission within ten days after the proclamation of the results of election. (Art. XIV, Sec. 60, BP 697; Art.
aliens; XVIII, Sec. 189, par. 2, 1978 EC).
WHEREAS, while the new Constitution allows a Filipino woman who marries an alien to retain her Any voter contesting the election of any municipal or barangay officer on the ground of ineligibility or of disloyalty to the Republic
Philippine citizenship unless by her act or omission, she is deemed under the law to have renounced her Philippine citizenship, of the Philippines shall file a sworn petition for quo warranto with the regional trial court or metropolitan or municipal trial court,
such provision of the new Constitution does not apply to Filipino women who had married aliens before said constitution took respectively, within ten days after the proclamation of the results of the election. (Art. XVIII, Sec. 189, par. 2, 1978 EC)."
effect; 39. Art. 4, New Civil Code. See also Gallardo vs. Borromeo, 161 SCRA 500 (May 25, 1988), and Nilo vs. Court of
WHEREAS, the existing law (C.A. No. 63, as amended) allows the repatriation of Filipino women who Appeals, 128 SCRA 519 (April 2, 1984).
lost their citizenship by reason of their marriage to aliens only after the death of their husbands or the termination of their marital 40. Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol. I, 1990 ed., p. 23 states:
status; and "Exceptions to Rule. — Statutes can be given retroactive effect in the following cases: (1) when the law itself so expressly
WHEREAS, there are natural born Filipinos who have lost their Philippine citizenship but now desire provides, (2) in case of remedial statutes, (3) in case of curative statutes, (4) in case of laws interpreting others, and (5) in case
to re-acquire Philippine citizenship; of laws creating new rights."
41. Id., p. 25.

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CONSTI REV – FULL TEXT JULY 11, 2019

42. Agpalo, Statutory Construction, 1990 ed., pp. 270-271.

43. 73 Am Jur 2d, sec. 354, p. 489, cited in Castro vs. Sagales, 94 Phil. 208, 210 (1953).
44. Memorandum, p. 9.
45. 73 Am Jur 2d, Sec. 351, p. 488.
46. 73 Am Jur 2d, Sec. 354, p. 490; underscoring supplied.
47. Art. 10, Civil Code of the Philippines.
48. Based on the "Corrected Compliance" dated May 16, 1996 filed by Solicitor General, it appears that, excluding the
case of Frivaldo, the longest interval between date of filing of an application for repatriation and its approval was three months
and ten days; the swiftest action was a same-day approval.
49. "SEC. 40. Disqualifications. — The following persons are disqualified from running for any elective local position:
xxx xxx xxx
(d) Those with dual citizenship;"
50. P. 11; Rollo, p. 259.
51. Resolution, p. 12; Rollo, p. 121.
52. Cf. Navarro vs. Commission on Elections, 228 SCRA 596 (December 17, 1993); Arao vs. Commission on Elections,
210 SCRA 290 (June 23, 1992).
53. The dispositive portion of said Resolution reads:
"WHEREFORE, this Division resolves to GRANT the petition and declares that respondent is DISQUALIFIED to run for the office
of Provincial Governor of Sorsogon on the ground that he is not a citizen of the Philippines. Accordingly respondent's certificate
of candidacy is cancelled."
54. Petition, p. 19; Rollo, p. 21.
55. Resolution promulgated on December 19, 1995, p. 7; Rollo, p. 116.
56. 42 SCRA 561, 565 (December 20, 1971), citing Moy Ya Lim vs. Commissioner of Immigration, L-21289, October 4,
1971.
57. Art. IX, Sec. 2.
58. SPC No. 95-317 is entitled "Annulment of Proclamation" and contains the following prayer:
"WHEREFORE, it is most respectfully prayed of this Honorable Commission that after due notice and hearing an Oder (sic)
/Resolution/Decision be issued as follows:
a) Annulling/setting aside the 30 June 1995 proclamation of respondent as the duly election (sic), Governor of
Sorsogon for being contrary to law;
b) Ordering the proclamation of the petitioner as duly elected governor of Sorsogon;
xxx xxx xxx
59. 229 SCRA 666, 674 (February 4, 1994).
60. 211 SCRA 297, 309 (July 3, 1992).
61. G.R. No. 120265, September 18, 1995.
62. Supra, at p. 312.
63. See footnotes 2 and 3.
64. 174 SCRA 245, 254 (June 23, 1959).
65. Salonga and Yap, Public International Law, 1966 ed., p. 239.
66. In Espiñosa vs. Aquino, (Electoral Case No. 9, Senate Electoral Tribunal [SET]), the election of the late Senator
Benigno S. Aquino, Jr. was upheld, despite his not being of the required age on the day of the election, although he celebrated
his thirty-fifth birthday before his proclamation. Much later, in 1990, this Court held in Aznar vs. Comelec (185 SCRA 703, May
25, 1990) that even if Emilio "Lito" Osmeña held an Alien Certificate of Registration as an American citizen, he was still not
disqualified from occupying the local elective post of governor, since such certificate did not preclude his being "still a Filipino."
The holding in Aquino was subsequently nullified by the adoption of the 1987 Constitution (Art. VI, Sec. 3), which specified that
the age qualification must be possessed on the day of the elections, and not on the day of the proclamation of the winners by the
board of canvassers. On the other hand, Sec. 40 of Republic Act No. 7160 (Local Government Code of 1991 ) which took effect
on January 1, 1992 , provides that those with dual citizenship are disqualified from running for any elective local position, and
effectively overturns the ruling in Aznar. But the point is that to the extent possible, and unless there exist provisions to the
contrary, the laws have always been interpreted to give fullest effect to the political will.
67. Benito vs. Commission on Elections, 235 SCRA 436, 442 (August 17, 1994).
68. This antagonism was clearly present in the two earlier cases involving Frivaldo. See footnote no. 6.
PUNO, J., concurring:
1. The 1987 Constitution added the word "democratic" in the statement of the principle.
2. Section 24(a) of the Tydings-McDuffie Law which authorized the Filipino people to draft a Constitution in 1934
required that the "constitution formulated and drafted shall be republican in form.''
This Court has observed that even before the Tydings-McDuffie Law, the Philippine Bill and the Jones
Law have ". . . extended the powers of a republican form of government modeled after that of the United States to the
Philippines." Roa v. Collector of Customs, 23 Phil. 315, 340 [1912], Severino v. Gov. General, 16 Phil. 366, 383 [1910], US v.
Bull, 15 Phil. 7, 27 [1910].
3. Words and Phrases, Vol. 39 A., p. 68 citing Cherokee Nation v. Southern Kan. R. Co., 33 F. 900, 906.
4. Dean of the UP College of Law; later President of U.P., and Delegate to the 1971 Constitutional Convention.
5. Sinco, Philippine Political Law, Principles and Concepts, 1954, ed., p. 22.
6. Barker, Principles of Social and Political Theory, p. 59 (1952 ed.).
7. 118 US 356.
8. Cruz, Philippine Political Law, p. 49, [1991 ed.]
9. Sinco, op. cit., pp. 23-24.
10. 3 AM JUR 2d 889-890; 63 AM JUR 2d 653; 67 CSJ 926.
11. Moya v. del Fierro, 69 Phil. 199.

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SECOND DIVISION
[G.R. No. 217872. August 24, 2016.]
ALLIANCE FOR THE FAMILY FOUNDATION, PHILIPPINES, INC. (ALFI) and ATTY. MARIA CONCEPCION S.
NOCHE, in her own behalf and as President of ALFI, JOSE S. SANDEJAS, ROSIE B. LUISTRO, ELENITA
S.A. SANDEJAS, EMILY R. LAWS, EILEEN Z. ARANETA, SALVACION C. MONTIERO, MARIETTA C.
GORREZ, ROLANDO M. BAUTISTA, RUBEN T. UMALI and MILDRED C. CASTOR, petitioners, vs. HON.
JANETTE L. GARIN, Secretary-Designate of the Department of Health, NICOLAS B. LUTERO III, Assistant
Secretary of Health, Officer-in-Charge, Food and Drug Administration, and MARIA LOURDES C. SANTIAGO,
Officer-in-Charge, Center for Drug Regulation and Research, respondents.
[G.R. No. 221866. August 24, 2016.]
MARIA CONCEPCION S. NOCHE, in her own behalf and as counsel of Petitioners, JOSE S. SANDEJAS,
ROSIE B. LUISTRO, ELENITA S.A. SANDEJAS, EMILY R. LAWS, EILEEN Z. ARANETA, SALVACION C.
MONTIERO, MARIETTA C. GORREZ, ROLANDO M. BAUTISTA, RUBEN T. UMALI and MILDRED C.
CASTOR, petitioners, vs. HON. JANETTE L. GARIN, Secretary-Designate of the Department of Health,
NICOLAS B. LUTERO III, Assistant Secretary of Health, Officer-in-Charge, Food and Drug Administration, and
MARIA LOURDES C. SANTIAGO, Officer-in-Charge, Center for Drug Regulation and Research, respondents.
DECISION
MENDOZA, J p:
Subjects of this disposition are the: [1] Petition for Certiorari, Prohibition, Mandamus — with Prayer for
Issuance of a Temporary Restraining Order and/or Writ of Preliminary Prohibitory and Mandatory Injunction
(G.R. No. 217872); and the [2] Petition for Contempt of Court (G.R. No. 221866).
The subject petitions sprouted from Imbong v. Ochoa and other cases 1 (Imbong) where the Court declared
Republic Act No. 10354 (RH Law) and its Implementing Rules and Regulations (RH-IRR) as not
unconstitutional, save for several provisions which were declared as violative of the Constitution. The decretal
portion of Imbong reads:
WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court declares R.A. No. 10354 as
NOT UNCONSTITUTIONAL except with respect to the following provisions which are declared
UNCONSTITUTIONAL:
1] Section 7 and the corresponding provision in the RH-IRR insofar as they: a) require private health
facilities and non-maternity specialty hospitals and hospitals owned and operated by a religious group to refer
patients, not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to another
health facility which is conveniently accessible; and b) allow minor-parents or minors who have suffered a
miscarriage access to modern * methods of family planning without written consent from their parents or
guardian/s;
2) Section 23(a)(1) and the corresponding provision in the RH-IRR, particularly Section 5.24 thereof,
insofar as they punish any healthcare service provider who fails and or refuses to disseminate information
regarding programs and services on reproductive health regardless of his or her religious beliefs; HTcADC
3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they allow a married
individual, not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to undergo
reproductive health procedures without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they limit the
requirement of parental consent only to elective surgical procedures;
5] Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section 5.24 thereof,
insofar as they punish any healthcare service provider who fails and/or refuses to refer a patient not in an
emergency or life-threatening case, as defined under Republic Act No. 8344, to another health care service
provider within the same facility or one which is conveniently accessible regardless of his or her religious
beliefs;
6] Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5.24 thereof,
insofar as they punish any public officer who refuses to support reproductive health programs or shall do any
act that hinders the full implementation of a reproductive health program, regardless of his or her religious
beliefs;
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JULY 11, 2019
7] Section 17 and the corresponding provision in the RH-IRR regarding the rendering of pro bona
reproductive health service in so far as they affect the conscientious objector in securing PhilHealth
accreditation; and 8] Section 3.01(a) and Section 3.01(g) of the RH-IRR, which added the qualifier "primarily"
in defining abortifacients and contraceptives, as they are ultra vires and, therefore, null and void for
contravening Section 4(a) of the RH Law and violating Section 12, Article II of the Constitution.
The Status Quo Ante Order issued by the Court on March 19, 2013 as extended by its Order, dated July 16,
2013, is hereby LIFTED, insofar as the provisions of R.A. No. 10354 which have been herein declared as
constitutional.
G.R. No. 217872
On May 28, 2014, barely two (2) months after the promulgation of the Court's decision in Imbong, the
petitioners, who were among those against the constitutionality of the RH Law, wrote a letter 2 addressed to
the Food and Drug Administration (FDA), inquiring about the steps that the agency might have taken to carry
out the decision of the Court. In reply 3 to this letter, the Office of the Solicitor General (OSG) assured the
petitioners that both the Department of Health (DOH) and the FDA were taking steps to comply with the
decision of the Court and that it would inform them of any developments. The petitioners claimed that, as of
the date of filing, they had not heard anything anymore from the OSG.
Controversy began in September 2014, when petitioner Rosie B. Luistro chanced upon the FDA's Notice 4
inviting Marketing Authorization Holders (MAH) of fifty (50) contraceptive drugs to apply for re-evaluation/re-
certification of their contraceptive products and directed "all concerned to give their written comments to said
applications on or before October 8, 2014." CAIHTE
Petitioner Alliance for the Family Foundation, Inc. (ALFI) believed that the contraceptives enumerated in the
Notice fell within the definition of "abortifacient" under Section 4 (a) of the RH Law because of their "secondary
mechanism of action which induces abortion or destruction of the fetus inside the mother's womb or the
prevention of the fertilized ovum to reach and be implanted in the mother's womb." 5 For said reason, ALFI,
through its president, Maria Concepcion S. Noche (Noche), filed its preliminary opposition, dated October 8,
2014, 6 to all 50 applications with the FDA. The same opposition also questioned some twenty-seven (27)
other contraceptive drugs and devices that had existing FDA registrations that were not subjects of any
application for re-evaluation/re-certification. 7
On November 24, 2014, ALFI filed its main opposition to all seventy-seven (77) contraceptive drugs. 8
On November 27, 2014, notwithstanding the pending opposition of the petitioners to the re-evaluation/re-
certification of these contraceptive products, the FDA issued two (2) certificates of product registration 9 for the
hormonal contraceptives, "Implanon" and "Implanon NXT." 10
On March 19, 2015, ALFI wrote another letter 11 to the DOH and the FDA, reiterating its opposition to the
applications for re-evaluation/re-certification. It requested, among others, that the agencies shed light on the
status of their earlier opposition and that it schedule hearings and consultations regarding the applications for
re-evaluation/re-certification.
The petitioners claimed that their requests had remained unanswered.
Hence, the petitioners instituted the subject petition for certiorari, contending that the FDA committed grave
abuse of discretion, not only for violating the Court's pronouncements in Imbong, but also for failing to act on
their opposition.
The petitioners also contend that due to lack of any procedure, rules and regulations and consultations for re-
evaluation/re-certification of contraceptive drugs and devices, the FDA had also violated the rudimentary
requirements of due process. 12 Invoking the Court's power under Section 5 (5), Article VIII of the
Constitution, 13 they seek that the Court "promulgate rules and/or disapprove (or approve) rules of procedure
in order to adequately protect and enforce the constitutional right to life of the unborn." 14 aScITE
As for the certificates of product registration for the hormonal contraceptives, "Implanon" and "Implanon NXT,"
the petitioners contend that these certificates of product registration were issued in haste because they were
released just three (3) days after the Senate Committee on Finance required FDA certifications for
contraceptives as conditions for government funding for family planning commodities. 15
The petitioners further aver that even before the issuance of these certificates, the DOH, as early as February
2015, had been administering Implanon in Cebu City. Pointing to a news article in the Panay News, 16 they
claim that respondent Health Secretary Janette L. Garin (Secretary Garin) even defended the decisions of the
CONSTI REV – FULL TEXT
DOH to administer these contraceptives. The petitioners add that photographs of several tarpaulins 17 show
that the DOH has undertaken the distribution of contraceptives as early as March 25, 2015.
The petitioners allege that despite the Court's declaration that several portions of the RH Law and the RH-IRR
are unconstitutional, the DOH has not effected any amendment in the RH-IRR to conform with the Court's
judgment. They claim that the RH-IRR posted on the DOH website still contain the provisions which were
declared by the Court to be unconstitutional. 18
Thus, the petitioners assert that absent any compliant rule of procedure issued by the FDA, or consultation
regarding its re-evaluation/re-certification, or consideration of their opposition, the approval, procurement,
distribution, administration, advertisement, and promotion of contraceptive use by the FDA and the DOH
should be enjoined as they are tainted with grave abuse of discretion. 19
In support of their prayer for the issuance of a Temporary Restraining Order and/or Writ of Preliminary
Prohibitory and Mandatory Injunction, the petitioners assert that the actions of the FDA and the DOH violate
the right to life of the unborn and, thus, must be restrained to ensure their protection. 20
On June 17, 2015, the Court issued the Temporary Restraining Order (TRO) 21 enjoining the respondents
from: [1] granting any and all pending applications for reproductive products and supplies, including
contraceptive drugs and devices; and [2] procuring, selling, distributing, dispensing or administering,
advertising, and promoting the hormonal contraceptives, "Implanon" and "Implanon NXT."
Comment of the Respondents
In their Comment, 22 the respondents, through the OSG, argued that petitioners failed to establish not only the
direct injury that they had suffered, or would suffer, but also the transcendental importance of the issues raised
as a result of [1] the issuance of certificates of registration and the re-certification of contraceptive drugs and
devices; and [2] the purchase of Implanon and Implanon NXT.
The OSG also contended that the petitioners violated the doctrine of hierarchy of courts for failing to allege
any special and compelling reasons to justify their direct resort to the Court. For the OSG, the Court's
concurrent jurisdiction with the lower courts to issue writs of certiorari, prohibition and mandamus did not give
the petitioners the unrestrained freedom to file a Rule 65 petition directly before the Court. DETACa
The OSG further argued that the re-certification of contraceptive drugs and devices involved the scientific
determination of fact and that it was conducted by the FDA in the exercise of its regulatory power. Thus, the
OSG explained that the re-certification process conducted and the conclusions arrived at by the FDA [1] lay
outside the ambit of a Rule 65 petition; [2] did not require any notice and hearing; and [3] need not comply with
the standard of substantial evidence required in quasi-judicial proceedings. For the OSG, the FDA might even
use extraneous and credible scientific data and was not limited by the evidence submitted by those seeking
re-certification considering that Republic Act (R.A.) No. 3720 23 mandated that the FDA utilize "the latest
medical knowledge." 24
Finally, the OSG dismissed the petitioners' call for the Court to promulgate the necessary rules of procedure
for re-certification, arguing that the rule-making power of the Court was confined to promulgating, approving or
disapproving rules of procedure of courts and quasi-judicial bodies, and not to bodies like the FDA. The OSG
asserted that the re-certification process undertaken by the FDA was not without basis, as the FDA was
guided not only by the RH-IRR Law, but also by Bureau Circular (BC) No. 5, series of 1997, Administrative
Order (AO) No. 2013-0021, AO No. 67, series of 1989, AO No. 2006-2021, AO No. 2005-0030, BC No. 2006-
005, BC No. 2006-007, among many others.
In their Reply, 25 the petitioners pointed out that the Court sanitized the RH-IRR, dated March 15, 2013, by
declaring Section 3.01 (a) and Section 3.01 (j) thereof as unconstitutional. For this reason and the
acknowledged constitutional right to life of the unborn from fertilization, the mandate of the FDA was
understood to necessarily include the duty to re-certify certain contraceptives that had already been approved
and registered and had been made available to the public, but this time using the constitutional yardsticks and
standards expounded by the Court in its decision. In this process of registration and/or re-certification, the FDA
had to ensure that only contraceptives that were non-abortifacient and safe would be purchased and
distributed to the public.
The petitioners stated that the re-certification was not automatic and that there had to be an actual re-
examination and re-testing of all contraceptives to ensure that they were compliant, not with the old standards
utilized by the DOH and the FDA which, the Court had determined could open the floodgates to abortion, but
with the new standards it laid out that aimed to ensure protection of the life of the unborn from injury or death
starting from fertilization to implantation in the mother's womb.
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JULY 11, 2019
The registration and/or re-certification of drugs are in the exercise of the quasi-judicial functions of the FDA. By
registering and/or re-certifying the drugs listed in the Table and shown in the DOH list, the FDA has
adjudicated in favor of the applications for re-certification of the pharmaceutical companies and against the
oppositions of the petitioners. HEITAD
The applications for registration and/or re-certification were granted by the FDA without observing the basic
tenets of due process — without due notice, without public hearing and without any supporting evidence in the
face of clear and irrefutable evidence of the abortifacient character of the registered/re-certified drugs.
The petitioners claim that viewed within the broad power of the Court to issue rules for the protection and
enforcement of constitutional rights, the power to disapprove the rules of procedure of quasi-judicial bodies
necessarily includes the power of the Court to look into the sufficiency of the rules of procedure of the FDA
insofar as they adequately protect and enforce the constitutional right of the unborn from
conception/fertilization. Also, this power to disapprove the said rules of procedure necessarily includes the
power to modify them by requiring that such rules of procedure incorporate safeguards such as the
rudimentary requirements of due process to meaningfully and sufficiently protect and enforce the constitutional
right to life.
For the petitioners, both the principle of prudence and the precautionary principle are relevant and applicable
in matters affecting and related to the right to life of the unborn. Thus, any uncertainty as to the adverse effects
of making contraceptives universally accessible should be resolved in a way that will preserve and promote life
and health. And the burden is on the proponent to prove that a contraceptive is non-abortifacient. Any doubt
should always be resolved in favor of life and against anything that threatens or poses a risk to it. aDSIHc
Accordingly, the petitioners pray that the TRO be maintained.
G.R. No. 221866
The petitioners in this case, with the exception of ALFI, are the same as those in G.R. No. 217872. In their
subject petition for contempt, the petitioners averred that notwithstanding the receipt of the TRO, respondent
FDA continued to grant applications for registration and re-certification of reproductive products and supplies.
According to them, the FDA website 26 showed that on November 13, 2015, several reproductive products
and supplies, including the contraceptives "Implanon and Implanon NXT," had been granted certification
and/or re-certification. This was confirmed by the Certification of Product Registration 27 of the FDA allowing
the marketing of Implanon NXT until November 19, 2015.
The petitioners also mentioned the November 16, 2015 Letter 28 of DOH Undersecretary Lilibeth C. David
(USEC David), addressed to Senator Vicente C. Sotto III (Senator Sotto), informing him that the DOH granted
the certification of several contraceptive drugs and family planning supplies and was submitting to the Senate
a list of contraceptives and family planning supplies for its approval in the 2016 budget. Citing the Senate
deliberations, the petitioners claimed that the DOH deceived the Senate so it would provide the necessary
funding for these products by convincing the said body that the TRO only applied to the new applications for
reproductive products and supplies, contraceptive drugs and devices and not to existing ones, which could be
re-certified.
For the petitioners, by granting registration and/or re-certification of reproductive products and supplies,
contraceptive drugs and devices, and by advertising that these products were available to the public through
their website, the respondents have violated the TRO of the Court. ATICcS
Additionally, in their Supplement to (Petition for Contempt of Court), 29 the petitioners averred that on
December 21, 2015, the Philippine Health Insurance Corporation (Philhealth) issued Philhealth Circular No.
038-2015 which was about the "Subdermal Contraceptive Implant Package" to be offered by it in order "to
increase access to long acting reversible family planning methods;" that the Chairperson of the Board of
Directors of Philhealth was Secretary Garin; that Philhealth fell within the category of "respondents, their
representatives, agents or other persons acting on their behalf that are enjoined from [2] procuring, selling,
distributing, dispensing or administering, advertising and promoting the hormonal contraceptive 'Implanon' and
'Implanon NXT.'"; that Implanon is a subdermal implant; and that the circular is a clear attempt to go around
the TRO. 30
Thus, the petitioners pray that the respondents be held guilty of contempt of Court for disobeying the June 17,
2015 TRO issued by the Court. 31
Comment of the Respondents
In its Comment, 32 the OSG denies petitioners' claim that the FDA continued to grant applications for
registration and/or re-certification of a contraceptive drug or device despite the issuance of the Court's TRO on
CONSTI REV – FULL TEXT
June 17, 2015. According to the OSG, the attached certified true copies of Certificates of Product Registration
(CPR) of various contraceptive drugs and devices showed that the dates of registration and/or recertification of
the questioned contraceptive drugs and devices, including the drug "Implanon" and "Implanon NXT," were all
granted prior to the Court's issuance of its TRO on June 17, 2015. 33
As to the registration of the drug Medrogest on September 23, 2015, the OSG, citing its own medical research,
argues that the same is not a contraceptive drug and, therefore, not covered by the Court's TRO. 34
Regarding the November 16, 2015 Letter of USEC David, the OSG contends that a reading of the letter would
simply show that it was just to inform Senator Sotto of the status of recertification of contraceptive drugs as of
November 13, 2015. For said reason, the OSG asserts that petitioners were in error in claiming that intra-
uterine devices were granted recertification on November 13, 2015. 35
The OSG further argues that the FDA's act of posting of the product information on "Implanon" and "Implanon
NXT" in its website was not made with the objective of advertising the questioned contraceptive drug but,
rather, made by the FDA pursuant to its ministerial duty under Section 7.08, Rule 7, Chapter 2 36 of the
Implementing Rules and Regulations of the RH Law. 37
Finally, the OSG asserts that respondents should not be cited in contempt with respect to the implementation
of Philhealth Circular No. 038-2015, not only because Philhealth is a separate entity not being administered by
the Secretary of Health, but also because Philhealth was never impleaded as a party in G.R. Nos. 217872 and
221866. For the OSG, the Court's TRO only prohibits respondents from procuring, selling, distributing,
dispensing, administering, advertising, and promoting "Implanon" and "Implanon NXT." It does not cover the
public procurement, sale, distribution and availment of other registered and recertified intra-uterine devices
prior to the FDA's receipt of the Court's TRO on June 29, 2015. 38 ETHIDa
Reply to the Comment
Petitioners once more insist that respondent were guilty of contempt, stating in their Reply 39 that despite the
June 17, 2015 TRO of the Court, the Certificate of Product Registration for "Implanon NXT" submitted by
respondents themselves not only showed that the "marketing authorization" of the contraceptive drug
remained to be valid until November 19, 2015, but was also re-certified and extended after the June 17, 2015
TRO of the Court until May 29, 2020. Petitioners explain that "marketing authorization" as defined by the
World Health Organization, is "[a]n official document issued by the competent drug regulatory authority for the
purpose of marketing or free distribution of a product after evaluation safety, efficacy and quality. . . ." 40
Regarding the implementation of PhilHealth Circular No. 038-2015, petitioners argue that PhilHealth is
covered by the June 17, 2015 TRO of the Court even if it is not impleaded as a party because it is considered
within the terms "respondents, their representatives, agents or other persons acting on their behalf" in Court's
order. Citing Article IV, Section 14 of Republic Act No. 7875, 41 petitioners points out that PhilHealth is a
government corporation attached to the Department of Health for policy coordination and guidance. They
likewise point out that respondent Secretary Garin cannot disclaim liability considering that she is also the
Chairperson of PhilHealth, and that other secretaries and other heads of the departments and agencies of
government are members of the Board of PhilHealth. 42
Consolidation
On February 3, 2016, the Court ordered the consolidation of these two cases. 43
The Court's Ruling
In resolving the foregoing petitions, it behooves the Court to first address the issues on whether the petitioners
have the locus standi to file the subject petitions and whether their resort to the subject recourse is proper.
Petitioners have
Locus Standi
As stated above, the OSG questioned the legal standing of the petitioners to file the subject petition as citizens
and taxpayers, not only because of their failure to establish any direct injury, but also because of their failure to
show that the issues raised were of transcendental importance. TIADCc
In Imbong, it was already stated that "(from) the declared policy of the RH Law, it is clear that Congress
intended that the public be given only those medicines that are proven medically safe, legal, non-abortifacient,
and effective in accordance with scientific and evidence-based medical research standards." Thus, the public,
including the petitioners in these cases, have the right to question any approval or disapproval by the FDA of
86
JULY 11, 2019
any drugs or devices which they suspect to be abortifacient on the ground that they were not properly tested
or were done in haste or secrecy.
As early as David v. Arroyo, 44 the Court has already ruled that "[t]axpayers, voters, concerned citizens, . . .
may be accorded standing to sue, provided that . . . for taxpayers, there must be a claim of illegal
disbursement of public funds or that the tax measure is unconstitutional . . . for concerned citizens, there must
be a showing that the issues raised are of transcendental importance which must be settled early. . . ."
Considering that the Court in Imbong already declared that the issues of contraception and reproductive health
in relation to the right to life of the unborn child were indeed of transcendental importance, 45 and considering
also that the petitioners averred that the respondents unjustly caused the allocation of public funds for the
purchase of alleged abortifacients which would deprive the unborn of its the right to life, the Court finds that
the petitioners have locus standi to file these petitions.
Certiorari proper
to challenge acts
of the FDA
As to the contention that the subject recourse is improper as it involves the FDA's exercise of its regulatory
powers, suffice it to say that the Court has unequivocally declared that certiorari, prohibition and mandamus
are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts
of legislative and executive officials as there is no other plain, speedy or adequate remedy in the ordinary
course of law. 46
Consequently, the Court dismisses the notion that the re-certification of contraceptive drugs and devices by
the FDA in exercise of its regulatory function is beyond judicial review. After all, the Constitution mandates that
judicial power include the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government. 47
Thus, certiorari is proper. cSEDTC
Violation of Due Process
It is on record that sometime in September 2014, the FDA issued a Notice 48 inviting MAH of fifty (50)
contraceptive drugs to apply for re-evaluation/re-certification of their contraceptive products and directed "all
concerned to give their written comments to said applications on or before October 8, 2014."
ALFI, in the belief that the contraceptives enumerated in the Notice fell within the definition of "abortifacient,"
filed its preliminary opposition, dated October 8, 2014, to all 50 applications with the FDA. The same
opposition also questioned twenty-seven (27) other contraceptive drugs and devices that had existing FDA
registrations which were not subjects of any application for re-evaluation/re-certification.
On November 24, 2014, ALFI formally filed its opposition to all the seventy-seven (77) contraceptive drugs, but
despite the pending opposition to the re-evaluation/re-certification of these contraceptive products, the FDA
issued two (2) certificates of product registration for the hormonal contraceptives, "Implanon" and "Implanon
NXT."
On March 19, 2015, ALFI wrote another letter 49 to the DOH and the FDA, reiterating its opposition to the
applications for re-evaluation/recertification and requesting, among others, that the agencies shed light on the
status of their earlier opposition and schedule hearings and consultations regarding the applications for re-
evaluation/re-certification.
The petitioners' oppositions were all ignored.
Now, one of the guarantees sacrosanct in this jurisdiction is that no person shall be deprived of life, liberty or
property without due process of law. An essential component of the Bill of Rights, the Due Process Clause,
undoubtedly occupies a position of primacy in the fundamental law.
Due process of law has two aspects: substantive and procedural due process. In order that a particular act
may not be impugned as violative of the due process clause, there must be compliance with both the
substantive and the procedural requirements thereof. 50
CONSTI REV – FULL TEXT
Substantive due process refers to the intrinsic validity of a law that interferes with the rights of a person to his
property. 51 Procedural due process, on the other hand, means compliance with the procedures or steps,
even periods, prescribed by the statute, in conformity with the standard of fair play and without arbitrariness on
the part of those who are called upon to administer it. 52
Although administrative procedural rules are less stringent and often applied more liberally, administrative
proceedings are not exempt from basic and fundamental procedural principles, such as the right to due
process in investigations and hearings. 53 AIDSTE
In Ang Tibay v. CIR, 54 the Court laid down the cardinal rights of parties in administrative proceedings, as
follows:
1) The right to a hearing, which includes the right to present one's case and submit evidence in
support thereof;
2) The tribunal must consider the evidence presented;
3) The decision must have something to support itself;
4) The evidence must be substantial;
5) The decision must be rendered on the evidence presented at the hearing, or at least contained in
the record and disclosed to the parties affected;
6) The tribunal or body or any of its judges must act on its or his own independent consideration of
the law and facts of the controversy and not simply accept the views of a subordinate in arriving at a decision;
and
7) The board or body should, in all controversial questions, render its decision in such a manner that
the parties to the proceeding can know the various issues involved, and the reason for the decision rendered.
55
After an assessment of the undisputed facts, the Court finds that the FDA certified, procured and administered
such contraceptive drugs and devices, without the observance of the basic tenets of due process, without
notice and without public hearing, despite the constant opposition from the petitioners. From the records, it
appears that other than the notice inviting stakeholders to apply for certification/re-certification of their
reproductive health products, there was no showing that the respondents notified the oppositors and
conducted a hearing on the applications and oppositions submitted.
Rather than provide concrete evidence to meet the petitioners' opposition, the respondents simply relied on
their challenge questioning the propriety of the subject petition on technical and procedural grounds. The
Court notes that even the letters submitted by the petitioners to the FDA and the DOH seeking information on
the actions taken by the agencies regarding their opposition were left unanswered as if they did not exist at all.
The mere fact that the RH Law was declared as not unconstitutional does not permit the respondents to run
roughshod over the constitutional rights, substantive and procedural, of the petitioners.
Indeed, although the law tasks the FDA as the primary agency to determine whether a contraceptive drug or
certain device has no abortifacient effects, its findings and conclusion should be allowed to be questioned and
those who oppose the same must be given a genuine opportunity to be heard in their stance. After all, under
Section 4 (k) 56 of R.A. No. 3720, as amended by R.A. No. 9711, the FDA is mandated to order the ban, recall
and/or withdrawal of any health product found to have caused death, serious illness or serious injury to a
consumer or patient, or found to be imminently injurious, unsafe, dangerous, or grossly deceptive, after due
process. SDAaTC
Due to the failure of the respondents to observe and comply with the basic requirements of due process, the
Court is of the view that the certifications/re-certifications and the distribution of the questioned contraceptive
drugs by the respondents should be struck down as violative of the constitutional right to due process.
Verily, it is a cardinal precept that where there is a violation of basic constitutional rights, the courts are ousted
from their jurisdiction. The violation of a party's right to due process raises a serious jurisdictional issue which
cannot be glossed over or disregarded at will. Where the denial of the fundamental right to due process is
apparent, a decision rendered in disregard of that right is void for lack of jurisdiction. This rule is equally true in
quasi-judicial and administrative proceedings, for the constitutional guarantee that no man shall be deprived of
life, liberty, or property without due process is unqualified by the type of proceedings (whether judicial or
administrative) where he stands to lose the same. 57
In re: Motion to Lift the
87
JULY 11, 2019
Temporary Restraining Order
Supplementing their Comment, 58 the OSG sought to have the June 17, 2015 TRO of the Court lifted, arguing
that given the expiry date of these contraceptive drugs, the continued effectivity of the June 17, 2015 TRO of
the Court would result in the waste of vast quantities of "Implanon" and "Implanon NXT" which remain in
government warehouses. In addition to insisting on the safety of these contraceptive drugs, respondents
added that the continued effectivity of the June 17, 2015 TRO of the Court would also result in the depleted
supply of contraceptive drugs and devices in both accredited public health facilities and in the commercial
market.
This was opposed by petitioners 59 who asserted that in light of the lack of any clear and transparent
procedure and rules for the determination of the safety and non-abortifacient character of the contraceptive
drugs, the June 17, 2015 TRO should be maintained. In support of their argument, petitioners cited the
Principle of Prudence espoused by the Framers of the Constitution, that is, "should there be the slightest iota
of doubt regarding questions of life and respect for human life, one must try to be on the safe side." 60
In view of the foregoing, the Court denies the motion to lift the TRO issued by this Court at this time. The
public respondents, their representatives, agents or other persons acting on their behalf are still enjoined from
distributing and administering the certified and re-certified drugs and devices, considering that the FDA will still
be conducting a hearing on the opposition of the petitioners. To lift the TRO at this time is to grant a motion for
execution before a trial. AaCTcI
Nothing in this resolution, however, should be construed as restraining or stopping the FDA from carrying on
its mandate and duty to test, analyze, scrutinize, and inspect drugs and devices. What are being enjoined are
the grant of certifications/re-certifications of contraceptive drugs without affording the petitioners due process,
and the distribution and administration of the questioned contraceptive drugs and devices including Implanon
and Implanon NXT until they are determined to be safe and non-abortifacient.
Any decision of the FDA
is appealable to the Court
of Appeals thru a Petition
for Review under Rule 43 of
the Rules of Court
The Court notes that Section 32 of R.A. No. 3720, as amended by R.A. No. 9711, 61 and its implementing
rules provide that a party aggrieved by the orders, rulings or decision (or inaction) of the Director-General of
the FDA has the remedy of appealing the same to the Secretary of Health. The Court likewise notes that under
Section 9 62 of E.O. No. 247, 63 the decisions of the Secretary of Health would first have to be appealed to
the Office of the President, in conformity with the doctrine of exhaustion of administrative remedies.
Notwithstanding, considering that the Secretary of Health is the principal respondent in these petitions, any
decision by the FDA in this particular case should be directly appealable to the Court of Appeals (CA) through
a petition for review under Rule 43 of the Rules of Court. Verily, procedural rules, whether issued by quasi-
judicial agencies or embodied in statutes enacted by the Congress, are subject to alteration or modification by
the Court in the exercise of its constitutional rule-making power.
In First Lepanto Ceramics, Inc. v. Court of Appeals, 64 the Court, on the strength of Circular No. 1-91 (now
Rule 43 of the Rules of Court), allowed an appeal from the decision of the Board of Investment to the CA,
notwithstanding the express provision of Section 82 of the Omnibus Investment Code of 1987 65 that any
appeal from a decision of the Board of Investment should be directly taken to this Court within thirty (30) days
from receipt of the order or decision, viz.:
. . . [T]his Court, pursuant to its Constitutional power under Section 5(5), Article VIII of the 1987 Constitution to
promulgate rules concerning pleading, practice and procedure in all courts, and by way of implementation of
B.P. 129, issued Circular 1-91 prescribing the rules governing appeals to the Court of Appeals from final orders
or decisions of the Court of Tax Appeals and quasi-judicial agencies to eliminate unnecessary contradictions
and confusing rules of procedure. acEHCD
Contrary to petitioner's contention, although a circular is not strictly a statute or law, it has, however, the force
and effect of law according to settled jurisprudence. In Inciong v. de Guia, a circular of this Court was treated
as law. In adopting the recommendation of the Investigating Judge to impose a sanction on a judge who
violated Circular No. 7 of this Court dated September 23, 1974, as amended by Circular No. 3 dated April 24,
CONSTI REV – FULL TEXT
1975 and Circular No. 20 dated October 4, 1979, requiring raffling of cases, this Court quoted the ratiocination
of the Investigating Judge, brushing aside the contention of respondent judge that assigning cases instead of
raffling is a common practice and holding that respondent could not go against the circular of this Court until it
is repealed or otherwise modified, as "(L)aws are repealed only by subsequent ones, and their violation or
non-observance shall not be excused by disuse, or customs or practice to the contrary."
The argument that Article 82 of E.O. 226 cannot be validly repealed by Circular 1-91 because the former
grants a substantive right which, under the Constitution cannot be modified, diminished or increased by this
Court in the exercise of its rule-making powers is not entirely defensible as it seems. Respondent correctly
argued that Article 82 of E.O. 226 grants the right of appeal from decisions or final orders of the BOI and in
granting such right, it also provided where and in what manner such appeal can be brought. These latter
portions simply deal with procedural aspects which this Court has the power to regulate by virtue of its
constitutional rule-making powers.
The case of Bustos v. Lucero distinguished between rights created by a substantive law and those arising from
procedural law:
Substantive law creates substantive rights . . . . Substantive rights is a term which includes those rights which
one enjoys under the legal system prior to the disturbance of normal relations (60 C.J., 980). Substantive law
is that part of the law which creates, defines and regulates rights, or which regulates rights and duties which
give rise to a cause of action, as oppossed to adjective or remedial law, which prescribes the method of
enforcing rights or obtains a redress for their invasion.
Indeed, the question of where and in what manner appeals from decisions of the BOI should be brought
pertains only to procedure or the method of enforcing the substantive right to appeal granted by E.O. 226. In
other words, the right to appeal from decisions or final orders of the BOI under E.O. 226 remains and
continues to be respected. Circular 1-91 simply transferred the venue of appeals from decisions of this agency
to respondent Court of Appeals and provided a different period of appeal, i.e., fifteen (15) days from notice. It
did not make an incursion into the substantive right to appeal. 66
The fact that the FDA is not among the agencies enumerated in Rule 43 as subject of a petition for review to
the CA is of no consequence. In Cayao-Lasam v. Ramolete, 67 the Court disagreed with the opinion of the CA
that the enumeration of the agencies mentioned in Section 1 of Rule 43 was exclusive. Thus: EcTCAD
Indeed, the PRC is not expressly mentioned as one of the agencies which are expressly enumerated under
Section 1, Rule 43 of the Rules of Court. However, its absence from the enumeration does not, by this fact
alone, imply its exclusion from the coverage of said Rule. The Rule expressly provides that it should be
applied to appeals from awards, judgments, final orders or resolutions of any quasi-judicial agency in the
exercise of its quasi-judicial functions. The phrase "among these agencies" confirms that the enumeration
made in the Rule is not exclusive to the agencies therein listed. 68
More importantly, to require the petitioners to first challenge any adverse decision of the FDA before the
Secretary of Health and then to the Office of the President, will unduly delay the final resolution of the current
controversies. It should be remembered that in Ginete v. Court of Appeals, 69 it was held:
Let it be emphasized that the rules of procedure should be viewed as mere tools designed to facilitate the
attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate
rather than promote substantial justice, must always be eschewed. Even the Rules of Court reflect this
principle. The power to suspend or even disregard rules can be so pervasive and compelling as to alter even
that which this Court itself has already declared to be final, as we are now constrained to do in the instant
case.
xxx xxx xxx
The emerging trend in the rulings of this Court is to afford every party litigant the amplest opportunity for the
proper and just determination of his cause, free from the constraints of technicalities. Time and again, this
Court has consistently held that rules must not be applied rigidly so as not to override substantial justice. 70
[Emphasis Included]
Considering that in the case at bench, what is mainly involved is the protection of the constitutionally protected
right to life of the unborn, this Court finds that any controversy involving it should be resolved in the most
expeditious manner possible.
Petition for Contempt
88
JULY 11, 2019
In the absence of a clear contumacious act committed against the Court with respect to the TRO, contempt is
not warranted. It has been shown that the questioned acts were performed or done prior to the issuance of the
TRO. Moreover, the charge that the respondents are continuing to engage in the distribution of the
contraceptive drugs Implanon and Implanon NXT has not been substantiated. The mere fact that the subject
drugs were re-certified up to May 29, 2020 is not proof that they continue to violate the TRO. In fact, the
respondents are praying that it be lifted which is an indication that they are respecting and observing it.
At any rate, this controversy would not have been brought about if only the public respondents acted in
accordance with the mandate of the Court in Imbong. Despite the Court's pronouncements in Imbong, they
have not amended the RH-IRR to conform to the said pronouncements. Several provisions were struck down
by the Court as unconstitutional, but they remain in the RH-IRR. Positive steps should have been taken by the
concerned agencies. SDHTEC
Moreover, the Court notes that the RH-IRR has failed to provide the procedural mechanism by which
oppositors may challenge the safety and the non-abortifacient character of contraceptive drugs and devices.
The FDA should address this glaring omission.
To be sure, and to avoid any dispute in the future, the Court will adopt and embody in the dispositive portion
the studied instructions of one of their esteemed colleagues, Hon. Mariano C. Castillo, in his Concurring
Opinion in Imbong. Due to the inaction of the public respondents, the Court will adopt them as part of this
resolution to serve as guidelines for all concerned.
In line with pronouncements made herein and in the decision of the Court in Imbong, the FDA should afford
the petitioners their constitutional right to due process by conducting a summary hearing on the applications
and oppositions, guided by the cardinal rights of parties laid down in Ang Tibay as stated above, within thirty
(30) days from receipt of this disposition.
WHEREFORE, the case docketed as G.R. No. 217872 is hereby REMANDED to the Food and Drugs
Administration which is hereby ordered to observe the basic requirements of due process by conducting a
hearing, and allowing the petitioners to be heard, on the re-certified, procured and administered contraceptive
drugs and devices, including Implanon and Implanon NXT, and to determine whether they are abortifacients or
non-abortifacients.
Pursuant to the expanded jurisdiction of this Court and its power to issue rules for the protection and
enforcement of constitutional rights, the Court hereby:
1. DIRECTS the Food and Drug Administration to formulate the rules of procedure in the screening,
evaluation and approval of all contraceptive drugs and devices that will be used under Republic Act No.
10354. The rules of procedure shall contain the following minimum requirements of due process: (a)
publication, notice and hearing, (b) interested parties shall be allowed to intervene, (c) the standard laid down
in the Constitution, as adopted under Republic Act No. 10354, as to what constitutes allowable contraceptives
shall be strictly followed, that is, those which do not harm or destroy the life of the unborn from
conception/fertilization, (d) in weighing the evidence, all reasonable doubts shall be resolved in favor of the
protection and preservation of the right to life of the unborn from conception/fertilization, and (e) the other
requirements of administrative due process, as summarized in Ang Tibay v. CIR, shall be complied with.
HSAcaE
2. DIRECTS the Department of Health in coordination with other concerned agencies to formulate the
rules and regulations or guidelines which will govern the purchase and distribution/dispensation of the
products or supplies under Section 9 of Republic Act No. 10354 covered by the certification from the Food and
Drug Administration that said product and supply is made available on the condition that it will not be used as
an abortifacient subject to the following minimum due process requirements: (a) publication, notice and
hearing, and (b) interested parties shall be allowed to intervene. The rules and regulations or guidelines shall
provide sufficient detail as to the manner by which said product and supply shall be strictly regulated in order
that they will not be used as an abortifacient and in order to sufficiently safeguard the right to life of the unborn.
3. DIRECTS the Department of Health to generate the complete and correct list of the government's
reproductive health programs and services under Republic Act No. 10354 which will serve as the template for
the complete and correct information standard and, hence, the duty to inform under Section 23(a)(l) of
Republic Act No. 10354. The Department of Health is DIRECTED to distribute copies of this template to all
health care service providers covered by Republic Act No. 10354.
The respondents are hereby also ordered to amend the Implementing Rules and Regulations to conform to
the rulings and guidelines in G.R. No. 204819 and related cases.
CONSTI REV – FULL TEXT JULY 11, 2019

The above foregoing directives notwithstanding, within 30 days from receipt of this disposition, the Food and 41. SEC. 14. Creation and Nature of the Corporation. — There is hereby created a Philippine Health Insurance
Drugs Administration should commence to conduct the necessary hearing guided by the cardinal rights of the Corporation, which shall have the status of a tax-exempt government corporation attached to the Department of Health for policy
coordination and guidance.
parties laid down in CIR v. Ang Tibay. 71
42. Rollo (G.R. No. 217872), pp. 373-374.
Pending the resolution of the controversy, the motion to lift the Temporary Restraining Order is DENIED. 43. Id. at 255-256.
44. 522 Phil. 705, 760 (2006).
With respect to the contempt petition, docketed as G.R. No. 221866, it is hereby DENIED for lack of concrete 45. Supra note 1, at 285-286.
46. Imbong v. Ochoa, G.R. Nos. 204819, 204934, 204957, 204988, 205003, 205043, 205138, 205478, 205491,
basis.
205720, 206355, 207111, 207172 & 207563, April 8, 2014, 721 SCRA 146, 277-278; Tanada v. Angara, 338 Phil. 546, 575
SO ORDERED. AScHCD (1997); Macalintal v. COMELEC, 453 Phil. 586 (2003); Aldaba v. COMELEC, 624 Phil. 805 (2010); Magallona v. Ermita, G.R. No.
187167, July 16, 2011, 655 SCRA 476.
Carpio, Del Castillo and Leonen, JJ., concur. 47. Article VIII, Section 1, 1987 Constitution.
48. Rollo (G.R. No. 217872), pp. 119-122.
Brion, * J., is on leave. 49. Id. at 135-138.
50. Republic v. Sandiganbayan, 461 Phil. 598 (2003).
Footnotes 51. Ynot v. Intermediate Appellate Court, No. L-74457, March 20, 1987, 148 SCRA 659.
* On Leave. 52. Tatad v. Sandiganbayan, 242 Phil. 563, 575-576 (1988).
1. G.R. Nos. 204819, 204934, 204957, 204988, 205003, 205043, 205138, 205478, 205491, 205720, 206355, 207111, 53. Montoya v. Varilla, 595 Phil. 507, 520 (2008); Civil Service Commission v. Lucas, 361 Phil. 486, 491 (1999).
207172 & 207563, April 8, 2014, 721 SCRA 146. 54. 69 Phil. 635 (1940).
2. Rollo (G.R. No. 217872), pp. 112-114. 55. As cited and paraphrased in Solid Homes v. Laserna, 574 Phil. 69, 83 (2008).
3. Id. at 116. 56. After due process, to order the ban, recall, and/or withdrawal of any health product found to have caused the death,
4. Id. at 119-122. illness or serious injury to a consumer or patient, or is found to be imminently injurious, unsafe, dangerously deceptive, and to
5. Id. at 18. require all concerned to implement the risk management plan which is a requirement for the issuance of the appropriate
6. Id. at 17-18; See also rollo (G.R. No. 217872), p. 123. authorization;
7. Id. at 19. 57. Montoya v. Varilla, supra note 53, at 520-521.
8. Id. at 20. 58. Rollo (G.R. No. 217872), pp. 316-326; rollo (G.R. No. 221866), pp. 96-103.
9. Id. at 127-128. 59. Rollo (G.R. No. 217872), pp. 326-340.
10. Id. 60. Id. at 329-330.
11. Id. at 135-138. 61. SEC. 32. The orders, rulings or decisions of the FDA shall be appealable to the Secretary of Health. — An appeal
12. Id. at 45-46. shall be deemed perfected upon filing of the notice of appeal and posting of the corresponding appeal bond.
13. Section 5. The Supreme Court shall have the following powers: An appeal shall not stay the decision appealed from unless an order from the Secretary of Health is
xxx xxx xxx issued to stay the execution thereof.
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, 62. Sec. 9. Appeals. — Decisions of the Secretary (DENR, DA, DOH or DOST) may be appealed to the Office of the
practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under- President. Recourse to the courts shall be allowed after exhaustion of all administrative remedies.
privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform 63. Entitled "Prescribing Guidelines and Establishing a Regulatory Framework for the Prospecting of Biological and
for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special Genetic Resources, their By-Products and Derivatives, for Scientific and Commercial Purposes; and for Other Purposes;" dated
courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. May 18, 1995.
14. Rollo (G.R. No. 217872), pp. 80-92. 64. G.R. No. 110571 March 10, 1994, 231 SCRA 30.
15. Id. at 46-50. 65. Otherwise known as Executive Order 226.
16. Id. at 132-133. 66. First Lepanto Ceramics, Inc. v. Court of Appeals, supra note 64, at 38-39.
17. Id. at 134. 67. 595 Phil. 56 (2008).
18. Id. at 62-66. 68. Id. at 71.
19. Id. at 92-98. 69. 357 Phil. 36 (1998).
20. Id. at 99-103. 70. Id. at 51-53.
21. Id. at 146-147. 71. Supra note 54.
22. Id. at 185-203.
23. Entitled "An Act to Ensure the Safety and Purity of Foods, Drugs, and Cosmetics Being Made Available to the
Public by Creating the Food and Drug Administration Which Shall Administer and Enforce the Laws Pertaining Thereto."
24. Rollo (G.R. No. 217872), pp. 191-198.
25. Id. at 223-246.
26. Rollo (G.R. No. 221866), pp. 40, 42-47.
27. Id. at 41.
28. Id. at 52.
29. Id. at 59-68.
30. Id. at 61-62.
31. Id. at 67.
32. Rollo (G.R. 217872), pp. 267-313.
33. Id. at 272-274.
34. Id. at 276-277.
35. Id. at 274-276.
36. Section 7.08. Provision of Product Information. — The FDA shall provide the public access to information regarding
a registered reproductive health product. Among others, the FDA shall post in its website all approved reproductive health
products (generic and branded) with all relevant information relevant to proper use, safety and effectiveness of the product,
including possible side effects and adverse reactions or events. As appropriate, the FDA shall issue an advisory to inform the
consumers about relevant developments regarding these products.
37. Rollo (G.R. No. 217872), p. 276.
38. Id. at 277-278.
39. Id. at 366-376.
40. Id. at 370-371.

89
CONSTI REV – FULL TEXT
SECOND DIVISION
[G.R. No. 209331. August 24, 2015.]
DEPARTMENT OF FINANCE, represented by HON. CESAR V. PURISIMA in his official capacity as
SECRETARY, and the BUREAU OF CUSTOMS, represented by HON. ROZZANO RUFINO B. BIAZON, in his
official capacity as Commissioner of Customs, petitioners, vs. HON. MARINO M. DELA CRUZ, JR., in his
capacity as Executive Judge, Regional Trial Court, Manila, HON. FELICITAS O. LARON-CACANINDIN, in her
capacity as Presiding Judge, Regional Trial Court, Manila, Branch 17, RONNIE C. SILVESTRE, EDWARD P.
DELA CUESTA, ROGEL C. GATCHALIAN, IMELDA D. CRUZ, LILIBETH S. SANDAG, RAYMOND P.
VENTURA, MA. LIZA S. TORRES, ARNEL C. ALCARAZ, MA. LOURDES V. MANGAOANG, FRANCIS
AGUSTIN Y. ERPE, CARLOS T. SO, MARIETTA D. ZAMORANOS, CARMELITA M. TALUSAN, 1 AREFILES
H. CARREON, 2 and ROMALINO G. VALDEZ, respondents.
DECISION
CARPIO, J p:
The Case
Petitioners assail the Order dated 4 October 2013 3 issued by Judge Felicitas O. Laron-Cacanindin (Judge
Laron-Cacanindin) of the Regional Trial Court of Manila, Branch 17 (RTC Branch 17), in Civil Case No. 13-
130820. The Order extended the 72-hour Temporary Restraining Order (TRO) issued by Executive Judge
Marino M. Dela Cruz, Jr. (Executive Judge Dela Cruz) in favor of respondents Silvestre, et al. 4 to 20 days or
until 21 October 2013 without need of posting bond.
The Antecedent Facts
The case stemmed from the issuance of Executive Order No. 140 (EO 140) on 2 September 2013, which
created the Customs Policy Research Office (CPRO) in the Department of Finance (DOF). EO 140 states that
the CPRO "shall be responsible for reviewing the customs administration policies, rules and procedures, and
thereafter providing sound recommendations for the improvement of the same." Section 3 of EO 140 provides
that "CPRO shall be composed of its organic personnel, as approved by the Department of Budget and
Management (DBM) upon recommendation of the DOF Secretary, augmented and reinforced by DOF and
BOC personnel as well as those detailed or seconded from other agencies, whether attached to the DOF or
not. . . . ." Section 9 of EO 140 states that it shall "take effect immediately upon publication in two (2)
newspapers of general circulation." EO 140 was published in Manila Bulletin and Philippine Star on 17
September 2013. HTcADC
On the same day of the publication of EO 140, Bureau of Customs (BOC) Commissioner Rozzano Rufino B.
Biazon (Commissioner Biazon) issued Customs Personnel Order No. B-189-2013 (CPO 189-2013) detailing
27 BOC personnel holding the positions of Collector of Customs V and VI, including respondents in this case,
to CPRO "effective immediately and valid until sooner revoked." CPO 189-2013 was approved by DOF
Secretary Cesar V. Purisima (Secretary Purisima).
On 30 September 2013, respondents filed an action for Declaratory Relief with Application for Temporary
Restraining Order and/or Writ of Preliminary Injunction before the Regional Trial Court (RTC) of Manila. On 1
October 2013, Executive Judge Dela Cruz issued a TRO for a period of 72 hours enjoining petitioners or any
person acting for and in their behalf from implementing CPO 189-2013. Thereafter, the case was raffled to the
sala of Judge Laron-Cacanindin.
In the assailed Order of 4 October 2013, Judge Laron-Cacanindin extended Executive Judge Dela Cruz's 72-
hour TRO for 20 days or until 21 October 2013. She then set the hearing for the issuance of a preliminary
injunction on 18 October 2013.
On 21 October 2013, petitioners filed a Petition for Certiorari and Prohibition before this Court, with prayer for
the issuance of a TRO or a writ of preliminary mandatory injunction. Petitioners alleged that the case involves
personnel action affecting public officers which is under the exclusive jurisdiction of the Civil Service
Commission (CSC). Petitioners also alleged that respondents failed to exhaust all administrative remedies
available to them before filing the petition before the RTC. Petitioners also alleged that CPO 189-2013 is an
internal personnel order with application that is limited to and only within BOC and as such, it cannot be the
subject of an action for declaratory relief.
In their Comment, respondents alleged that the case involves the validity and constitutionality of CPO 189-
2013, and thus, it is beyond the jurisdiction of the CSC. Respondents further alleged that EO 140 violated
Article 2 of the Civil Code when it became effective immediately after its publication. CAIHTE
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JULY 11, 2019
In their Reply, petitioners alleged that respondents only assailed the validity of EO 140 to justify their filing of
an action for declaratory relief. As regards its effectivity, petitioners alleged that EO 140 states that it shall
"take effect immediately upon publication in two (2) newspapers of general circulation."
In an Order dated 21 October 2013, Judge Laron-Cacanindin denied respondents' application for the issuance
of a writ of preliminary injunction.
In an Order dated 5 November 2013, Judge Laron-Cacanindin inhibited herself from further hearing the case.
The Issues
The issues for determination by this Court are the following:
1. Whether the RTC has jurisdiction over the action for declaratory relief filed by respondents;
2. Whether respondents failed to exhaust administrative remedies in filing the action before the RTC;
3. Whether EO 140 violated Article 2 of the Civil Code when it became effective immediately after its
publication; and
4. Whether CPO 189-2013 was validly issued.
The Ruling of this Court
Jurisdiction over the Petition
The CSC has jurisdiction over all employees of government branches, subdivisions, instrumentalities, and
agencies, including government-owned or controlled corporations with original charters. 5 The CSC is the sole
arbiter of controversies relating to the civil service. 6 The rule is that disciplinary cases and cases involving
personnel actions, including "appointment through certification, promotion, transfer, reinstatement,
reemployment, detail, reassignment, demotion, and separation," are within the exclusive jurisdiction of the
CSC. 7 This rule is embodied in Section 1, Rule V of the Omnibus Rules Implementing Book V of Executive
Order No. 292 and Other Pertinent Civil Service Laws (Omnibus Rules) which states: aScITE
SECTION 1. . . . .
As used in these Rules, any action denoting movement or progress of personnel in the civil service shall be
known as personnel action. Such action shall include promotion, transfer, reinstatement, reemployment, detail,
secondment, reassignment, demotion and separation. . . . .
Under Section 8, Rule VII of the Omnibus Rules, "[a] detail is the movement of an employee from one
department or agency which is temporary in nature, which does not involve a reduction in rank, status or
salary and does not require the issuance of another appointment." CPO 189-2013 is an order detailing
personnel from the BOC to CPRO under the DOF.
A reading of the petition filed before the RTC shows that respondents were questioning their mass detail and
reassignment to CPRO. According to respondents, their detail was carried out in bad faith and was meant to
remove them from their permanent positions in the BOC. The action appears to be a personnel action under
the jurisdiction of the CSC.
However, the petition went beyond questioning the detail of respondents. Respondents further assailed the
validity and constitutionality of CPO 189-2013. Respondents alleged that CPO 189-2013 was issued even
before EO 140, pursuant to which CPO 189-2013 was issued, became effective. Respondents alleged that
CPO 189-2013 was issued to beat the deadline of the Commission on Elections' ban on personnel movement
from 28 September 2013 to 20 October 2013 due to the scheduled barangay elections. When respondents
raised the issue of validity and constitutionality of CPO 189-2013, the issue took the case beyond the scope of
the CSC's jurisdiction because the matter is no longer limited to personnel action. Thus, the RTC did not
abuse its discretion in taking cognizance of the action. DETACa
Failure to Exhaust Administrative Remedies
Petitioners allege that respondents failed to exhaust their administrative remedies before filing the case with
the RTC.
The doctrine of exhaustion of administrative remedies allows administrative agencies to carry out their
functions and discharge their responsibilities within the specialized areas of their respective competence. 8
The doctrine entails lesser expenses and provides for the speedier resolution of controversies. 9 Therefore,
CONSTI REV – FULL TEXT
direct recourse to the trial court, when administrative remedies are available, is a ground for dismissal of the
action.
The doctrine, however, is not without exceptions. Among the exceptions are: (1) where there is estoppel on the
part of the party invoking the doctrine; (2) where the challenged administrative act is patently illegal,
amounting to lack of jurisdiction; (3) where there is unreasonable delay or official inaction that will irretrievably
prejudice the complainant; (4) where the amount involved is relatively so small as to make the rule impractical
and oppressive; (5) where the question involved is purely legal and will ultimately have to be decided by the
courts of justice; (6) where judicial intervention is urgent; (7) where the application of the doctrine may cause
great and irreparable damage; (8) where the controverted acts violate due process; (9) where the issue of
non-exhaustion of administrative remedies had been rendered moot; (10) where there is no other plain,
speedy and adequate remedy; (11) where strong public interest is involved; and (12) in quo warranto
proceedings. 10
In this case, respondents allege that CPO 189-2013 is contrary to law and unconstitutional. Respondents
assail CPO 189-2013 as patently illegal, arbitrary, and oppressive. This case clearly falls within the exceptions
where exhaustion of administrative remedies need not be resorted to by respondents.
Effectivity of EO 140
Respondents allege that EO 140 took effect only on 2 October 2013, fifteen days after its publication in two
newspapers of general circulation. Hence, respondents argue that when CPO 189-2013 was issued, EO 140
was not yet effective. HEITAD
Article 2 of the Civil Code of the Philippines, as amended by Executive Order No. 200, 11 is clear on this
issue. It states:
Art. 2. Laws shall take effect after fifteen days following the completion of their publication either in the
Official Gazette, or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.
The proviso "unless it is otherwise provided" refers to an effectivity date other than after fifteen days following
the completion of the law's publication. 12 Thus, it is within the discretion of the legislature, or the Executive
Department in this case, whether to shorten or extend the fifteen-day period 13 as long as there is compliance
with the requirement of publication.
Here, Section 9 of EO 140 provides that the "order shall take effect immediately upon publication in two (2)
newspapers of general circulation." EO 140 was published in Manila Bulletin and Philippine Star on 17
September 2013. As such, EO 140 took effect on 17 September 2013.
In addition, the Court already ruled that "[i]nterpretative regulations and those merely internal in nature, that is,
regulating only the personnel of the administrative agency and not the public, need not be published." 14 EO
140 is an internal regulation that affects primarily the personnel of the DOF and the BOC. It remains valid even
without publication.
Validity of CPO 189-2013
Respondents assail the validity of CPO 189-2013. Respondents allege that under EO 140, CPRO shall be
composed of its organic personnel, as approved by the DBM upon recommendation of the DOF Secretary.
The organic personnel was supposed to be augmented and reinforced by DOF and BOC personnel.
Respondents allege that they were detailed to CPRO even before its organic personnel could be constituted.
We rule for respondents.
Section 3 of EO 140 provides: aDSIHc
SECTION 3. Personnel and Staffing Complement. The CPRO shall be composed of its organic
personnel, as approved by the Department of Budget and Management (DBM) upon recommendation of the
DOF Secretary, augmented and reinforced by DOF and BOC personnel as well as those detailed or seconded
from other agencies, whether attached to the DOF or not. In addition, the CPRO, upon approval of the DOF
Secretary, may hire or engage technical consultants to provide necessary support in the performance of its
mandate.
Respondents were supposed to augment and reinforce the existing organic personnel of CPRO. Yet, at the
time of respondents' detail, CPRO had not been formally organized. CPRO had no organic personnel that had
been approved by the DBM upon recommendation of the DOF Secretary. The DOF Secretary had yet to
promulgate rules and regulations and to prescribe procedures and processes to enable CPRO to effectively
exercise its powers and duties, as required by Section 4 of EO 140.
91
JULY 11, 2019
In addition, under Section 8, Rule VII of the Omnibus Rules, a detail is temporary in nature. In fact, detail of
employees is only allowed for a maximum period for those occupying professional, technical, and scientific
positions. 15 Section 8, Rule VII of the Omnibus Rules provides:
SEC. 8. A detail is the movement of an employee from one department or agency to another which is
temporary in nature, which does not involve a reduction in rank, status or salary and does not require the
issuance of another appointment.
The employee detailed receives his salary only from his mother unit/agency.
Detail shall be allowed only for a maximum period in the case of employees occupying professional, technical
and scientific position. If the employee believes that there is no justification for the detail, he may appeal his
case to the Commission. Pending appeal, the decision to detail the employee shall be executory unless
otherwise ordered by the Commission.
Section 2 of CSC Resolution No. 021181, dated 13 September 2002, 16 clarified the maximum period of detail
of employees. It states:
Section 2. Duration of the detail. The detail shall be allowed only for a maximum period of one year. Details
beyond one year may be allowed provided it is with the consent of the detailed employee. The extension or
renewal of the period of the detail shall be within the authority of the mother agency.
If the employee believes that there is no justification for the detail, he/she may appeal his/her case to the
proper Civil Service Commission Regional Office. Pending appeal, the detail shall be executory unless
otherwise ordered by said regional office. Decision of said regional office may be further appealed to the
Commission en banc.
In this case, CPO 189-2013 did not provide for the period of respondents' detail. It only provided that the order
"shall be effective immediately and valid until sooner revoked," making the detail of respondents indefinite.
There was nothing to show that respondents were occupying professional, technical, and scientific positions
that would have allowed their detail for the maximum period provided under Section 8, Rule VII of the
Omnibus Rules. Further, CSC Resolution No. 021181 did not distinguish between an ordinary employee and
an employee occupying professional, technical, and scientific position. Hence, it should have been specified
that the maximum period of respondents' detail should not exceed one year.
Petitioners assert, and we quote: ATICcS
There is a cancer of corruption we must extinguish. The drive to rid the government of graft and corruption
deserves the support of everyone.
The principle of good governance cannot, should not, be trivialized nor oversimplified by tenuous whimpering
and individualism intended to detract from the urgent need to cleanse the Republic from a mainstream culture
of unabated corruption, perpetuated with impunity and sense of self-entitlement. The issue at hand is not
about who, but what; it is not about individual loss, but about national gain. Whether from the birth pains of
reform, this nation can gain a foothold, nay, a stride into restoring this nation into its prideful place from the
clutches of a "kleptocratic mafia" that had gained a strangehold into one of the nation's primary sources of
revenue. 17
Indeed, we commend and support the reforms being undertaken in the different agencies of the government.
However, we cannot allow department heads to take shortcuts that will undermine and disregard the basic
procedures of the law.
WHEREFORE, we PARTIALLY GRANT the petition. We sustain the validity of Executive Order No. 140. We
rule that the Regional Trial Court has jurisdiction over the action for declaratory relief filed by respondents. We
further rule that Customs Personnel Order No. B-189-2013 was not validly issued.
SO ORDERED.
Peralta, * Del Castillo and Mendoza, JJ., concur.
Leonen, J., see separate dissenting opinion.
Separate Opinions
LEONEN, J., dissenting:
Respectfully, I dissent.
The Civil Service Commission has exclusive jurisdiction over questions regarding personnel actions affecting civil service
employees. 3 It is the sole arbiter that decides controversies regarding the civil service at first instance. 4 Courts should not
CONSTI REV – FULL TEXT JULY 11, 2019

directly assume jurisdiction based on allegations of unconstitutionality and invalidity of government regulations when the 27. PABLO, TALEK J. Collector of Customs V (25)
question, in essence, involves a personnel action. ETHIDa All orders, circulars, memoranda, issuances contrary to or inconsistent herewith are hereby revoked and/or modified, and all
This is a Petition for certiorari and prohibition with very urgent prayer for the immediate issuance of a temporary restraining order concerned shall be guided accordingly. cSEDTC
and/or writ of preliminary mandatory injunction 5 filed by the Department of Finance and the Bureau of Customs before this court, This Order shall be effective immediately and valid until sooner revoked.
assailing the Manila Regional Trial Court's Order 6 dated October 1, 2013 issued by Executive Judge Marino M. Dela Cruz, Jr., For strict compliance.
the Order 7 dated October 4, 2013 issued by Presiding Judge Felicitas O. Laron-Cacanindin, and all other subsequent Orders (signed)
preventing the implementation of Customs Personnel Order No. B-189-2013. 8 The Department of Finance and Bureau of ROZZANO RUFINO B. BIAZON
Customs also pray for the dismissal of the Petition for declaratory relief filed by private respondents before the Regional Trial Commissioner of Customs
Court of Manila. 9 APPROVED:
On September 2, 2013, President Benigno Aquino III issued Executive Order No. 140 10 creating the Customs Policy Research (signed)
Office in the Department of Finance. 11 The Customs Policy Research Office shall review the Bureau of Customs' administration CESAR V. PURISIMA
policies, rules, and procedures, and provide recommendations for their improvement. 12 Section 3 of Executive Order No. 140 Secretary
provides for the composition of the Customs Policy Research Office: Department of Finance
SECTION 3. Personnel and Staffing Complement. The [Customs Policy Research Office] shall be composed of its organic Date: ____ 19
personnel, as approved by the Department of Budget and Management (DBM) upon recommendation of the [Department of Only 12 20 of the affected employees complied with the directive in Customs Personnel Order No. B-189-2013 and reported to
Finance] Secretary, augmented and reinforced by [Department of Finance] and [Bureau of Customs] personnel as well as those the Customs Policy Research Office after its effectivity on September 17, 2014. 21
detailed or seconded from other agencies, whether attached to the [Department of Finance] or not. In addition, the [Customs The other 15 22 affected employees refused to comply with the Order 23 and instead filed on September 30, 2013 a Petition 24
Policy Research Office], upon approval of the [Department of Finance] Secretary, may hire or engage technical consultants to for declaratory relief with an application for a temporary restraining order and/or a writ of preliminary injunction before the
provide necessary support in the performance of its mandate. 13 Regional Trial Court of Manila. 25
Executive Order No. 140 was published on September 17, 2013 in Manila Bulletin and Philippine Star. 14 Section 9 of Executive The 15 employees assailed the validity of Customs Personnel Order No. B-189-2013. 26 They argued that Customs Personnel
Order No. 140 provides: Order No. B-189-2013 violated (a) Section 703 27 of Republic Act No. 1937 or the Tariff and Customs Code; 28 (b) their right to
SECTION 9. Effectivity. This Order shall take effect immediately upon publication in two (2) newspapers of general circulation. security of tenure as career service officers defined under Book V, Title I, Subtitle A, Chapter 2, Section 7 of Executive Order No.
15 292; 29 and (c) Section 3 of Executive Order No. 140. 30 They further argued that Customs Personnel Order No. B-189-2013
On September 17, 2013, or on the same day of publication of Executive Order No. 140, Bureau of Customs Commissioner was invalid for having been issued prior to the effectivity of Executive Order No. 140. 31 They relied on Article 2 32 of the Civil
Rozzano Rufino B. Biazon issued Customs Personnel Order No. B-189-2013, 16 with the approval of Department of Finance Code that provides that laws become effective 15 days after complete publication. 33
Secretary Cesar V. Purisima. 17 Customs Personnel Order No. B-189-2013 detailed 27 Bureau of Customs personnel to the On October 1, 2013, Executive Judge Marino M. Dela Cruz, Jr. granted a 72-hour temporary restraining order to stop the
Customs Policy Research Office under the Department of Finance. 18 Thus: TIADCc implementation of Customs Personnel Order No. B-189-2013. 34 The case was then raffled to Branch 17 presided by Judge
September 17, 2013 Felicitas O. Laron-Cacanindin (Judge Laron-Cacanindin). 35
CUSTOMS PERSONNEL ORDER On October 4, 2013, 36 the Department of Finance and the Bureau of Customs filed a Motion to Dismiss. 37 They argued that
No. B-189-2013 the Regional Trial Court had no jurisdiction over the employees' Petition for declaratory relief and that the requisites for the filing
Under Section 3 of Executive Order No. 140, series of 2013, the Customs Policy Research Office ("the CPRO") shall be of a Petition for declaratory relief were lacking. 38
composed of its organic personnel, augmented and reinforced by personnel from the Department of Finance and Bureau of In the Order dated October 4, 2013, Judge Laron-Cacanindin extended the temporary restraining order to 20 days after finding
Customs as well [as] those detailed or seconded from other agencies. Pursuant to the foregoing, the following personnel are that Customs Personnel Order No. B-189-2013 had "violate[d] the rules on detail because it failed to provide the duration of the
detailed from the Bureau of Customs to [Customs Policy Research Office] under the Department of Finance: detail." 39 In the same Order, Judge Laron-Cacanindin stated that the Order was without prejudice to further findings of the court
FULL NAME POSITION TITLE AND after trial on the merits of the main case for declaratory relief. 40 AIDSTE
(Surname, First Name) SALARY GRADE In the Order 41 dated October 21, 2013, Judge Laron-Cacanindin denied the employees' application for a writ of preliminary
1. GATCHALIAN, ROGEL CRUZ Collector of Customs VI (26) injunction. 42 The denial of their application for a writ of preliminary injunction prompted six (6) of the employees who filed the
2. SO, CARLOS TAN Collector of Customs VI (26) Petition to report to the Customs Policy Research Office. 43 The returning employees reasoned that they reported for work so
3. DELA CUESTA, EDUARD Collector of Customs VI (26) they would not be charged with insubordination. 44
PALAFOX On October 21, 2013, the Department of Finance and Bureau of Customs filed this Petition for certiorari and prohibition. 45
4. BELMONTE, RICARDO RACIMO Collector of Customs VI (26) This court required the 15 employees to file a Comment on the Petition. 46 After filing the Comment, 47 the Department of
5. MOLINA, ADELINA SANTOS Collector of Customs VI (26) Finance and Bureau of Customs were ordered to file a Reply. 48
ESTRELLA In their Petition for certiorari, the Department of Finance and Bureau of Customs argued that the Civil Service Commission, not
6. SILVESTRE, RONNIE CRUZ Collector of Customs VI (26) the Regional Trial Court, had jurisdiction over the subject matter of this case and that the 15 employees failed to exhaust all
7. MANDANGAN, MACABANTUG Collector of Customs V (25) available administrative remedies before filing their Petition for declaratory relief. 49 According to the Department of Finance and
DIMAPUNTUG Bureau of Customs, Customs Personnel Order No. B-189-2013 was a personnel action, and questions involving personnel
8. BAUZON, PRISCILLA DE VERA Collector of Customs V (25) actions in the civil service should be lodged before the Civil Service Commission. 50
9. CRUZ, IMELDA DE JESUS Collector of Customs V (25) Further, the Department of Finance and Bureau of Customs argued that some of the requirements for filing a Petition for
10. TOGONON, MA. SONIA IRINEA declaratory relief were absent. 51 First, a declaratory relief is available only when the government issuance being questioned is a
CALUYO Collector of Customs V (25) national law or an ordinance of general application. 52 Since Customs Personnel Order No. B-189-2013 was an internal
11. SANDAG, LILIBETH SUMBILLA Collector of Customs V (25) personnel order whose application was limited within the Bureau of Customs, it cannot be a subject of a Petition for declaratory
12. VENTURA, RAYMOND P. Collector of Customs V (25) relief. 53 Second, the declaratory relief was no longer available because Customs Personnel Order No. B-189-2013 had been
13. ROQUE, TERESITA SIOSON Collector of Customs V (25) breached prior to the filing of the Petition. 54 The 15 employees allegedly committed a breach when they failed to report to the
14. TORRES, MA. LIZA SEBASTIAN Collector of Customs V (25) Customs Policy Research Office upon the effectivity of Customs Personnel Order No. B-189-2013 on September 17, 2013. 55
15. MARTIN, MARITESS Third, a declaratory relief was not available to the 15 employees because they had an adequate remedy with the Civil Service
THEODOSSIS Collector of Customs V (25) Commission. 56
16. ALCARAZ, ARNEL CRUZ Collector of Customs V (25) Regarding the duration of the detail, the Department of Finance and Bureau of Customs argued that the detail was not indefinite
17. ALCID, TOMAS LADERA Collector of Customs V (25) and that pursuant to Civil Service Commission Resolution No. 021181 57 or the Policies on Detail, the detail shall only last for at
18. MANGAOANG, MA. LOURDES most, one (1) year. 58 SDAaTC
VILLAMAR Collector of Customs V (25) In their Comment dated January 8, 2014, the 15 employees countered that the Regional Trial Court had jurisdiction as the main
19. ERPE, FRANCIS AGUSTIN issue was the validity and constitutionality of Customs Personnel Order No. B-189-2013. 59 The resolution of this issue required
YANCHA Collector of Customs V (25) the exercise of judicial review, which was beyond the competence of the Civil Service Commission. 60
20. VILLAGARCIA, ROGELIO Since the 15 employees' Petition for declaratory relief alleges that Customs Personnel Order No. B-189-2013 is unconstitutional
VELACRUZ Collector of Customs V (25) and invalid, those allegations should suffice for the Regional Trial Court to assume jurisdiction. 61
21. ZAMORANOS, MARIETTA DANTE Collector of Customs V (25) According to the 15 employees, Customs Personnel Order No. B-189-2013 is unconstitutional for violating their right to security
22. TAN, JUAN NATIVIDAD Collector of Customs V (25) of tenure. 62 Their detail to the Customs Policy and Research Office amounts to constructive dismissal 63 as they are now "mere
23. TALUSAN, CARMELITA researchers[.]" 64
MANAHAN Collector of Customs V (25) The 15 employees argue that all the requisites for the filing of a Petition for declaratory relief are present. 65 They claim that
24. CARREON, AREFILES HAMOY Collector of Customs V (25) Customs Personnel Order No. B-189-2013 is a government regulation, affecting their rights, duties, rank, and status. 66 Hence,
25. PACARDO, RUSTUM LANUEVO Collector of Customs V (25) Customs Personnel Order No. B-189-2013 is a proper subject of a Petition for declaratory relief. 67 They also argue that
26. VALDEZ, ROMALINO GABRIEL Collector of Customs V (25)

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CONSTI REV – FULL TEXT JULY 11, 2019

Customs Personnel Order No. B-189-2013 is void, producing no effect. 68 According to them, a void or unconstitutional law or The material allegations in the Complaint or Petition and the character of the relief sought determine which court has jurisdiction.
issuance cannot be a source of an obligation so it cannot be breached. 69 80 In private respondents' 44 paragraphs in their Petition for declaratory relief filed before the Regional Trial Court, they alleged:
This case should consider the following issues: EcTCAD
First, whether the Regional Trial Court has jurisdiction over private respondents' Petition for declaratory relief; 8. On 17 September 2013, without waiting for [Executive Order] No. 140's effectivity on 2 October 2013, the [Bureau
Second, whether all the requisites for the filing of a Petition for declaratory relief are present; and of Customs] issued [Customs Personnel Order] No. B-189-2013, signed by [Bureau of Customs] Commissioner Rozzano Rufino
Finally, whether Customs Personnel Order No. B-189-2013 is void because of its indefinite term. B. Biazon and approved by [Department of Finance] Secretary, Cesar V. Purisima on even date. [Customs Personnel Order] No.
I. B-189-2013 states:
The Constitution confers jurisdiction over the Civil Service Commission for cases involving the civil service. Article IX (B), Section Under Section 3 of Executive Order No. 140, series of 2013, the Customs Policy Research Office (the "CPRO") shall be
1 (1) of the Constitution provides: composed of its organic personnel, augmented and reinforced by personnel from the Department of Finance and Bureau of
SECTION 1. (1) The Civil Service shall be administered by the Civil Service Commission composed of a Chairman and two Customs as well as those (sic) detailed or seconded from other agencies. Pursuant to the foregoing, the following personnel are
Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years detailed from the Bureau of Customs to [the Customs Policy Research Office] under the Department of Finance:
of age, with proven capacity for public administration, and must not have been candidates for any elective position in the xxx xxx xxx
elections immediately preceding their appointment. (Emphasis supplied) 9. Thus, [private respondents'] original and permanent appointments in plantilla positions as Collectors of Customs VI
As part of the Civil Service Commission's mandate to administer the civil service, Article IX (B), Section 3 of the Constitution and V were effectively and constructively revoked even before the effectivity of [Executive Order] No. 140 creating the [Customs
provides: AaCTcI Policy Research Office]. They are all "detailed" to the [Customs Policy Research Office] without any appointment papers
SECTION 3. The Civil Service Commission, as the central personnel agency of the Government, shall establish a career service providing for their specific functions, status, salary grades, ranks, and designation. By virtue of the assailed issuance, [private
and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service. It respondents] were all removed from their respective permanent positions as Collectors of Customs to form a supposed
shall strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, "research body."
and institutionalize a management climate conducive to public accountability. It shall submit to the President and the Congress 10. The Department of Budget and Management (DBM), pursuant to [Executive Order] No. 140 has not even approved
an annual report on its personnel programs. (Emphasis supplied) the composition of the organic personnel of the [Customs Policy Research Office]. Neither has the [Department of Finance]
The Constitution gives the Civil Service Commission quasi-judicial powers through Article IX (A), Sections 6 and 7, which appeared to have made the requisite recommendation for that purpose, as mandated by [Executive Order] No. 140.
provide: 11. While they have not been officially notified thereof, [private respondents] were reliably informed of the issuance of
SECTION 6. Each Commission en banc may promulgate its own rules concerning pleadings and practice before it or before any [Customs Personnel Order] No. B-189-2013 and [petitioners'] attempt to unlawfully "detail" them to the [Customs Policy
of its offices. Such rules, however, shall not diminish, increase, or modify substantive rights. Research Office].
SECTION 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty xxx xxx xxx
days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution 13. While the [Bureau of Customs] Commissioner's authority to reorganize is recognized, it is neither absolute nor
upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. unbridled. The exercise thereof should not violate the law and the 1987 Constitution. The Constitution clearly mandates that "no
Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to officer or employee of the civil service shall be removed or suspended except for cause provided by law."
the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. (Emphasis supplied) 14. Section 703 of [Republic Act] No. 1937, as amended, provides that: SDHTEC
As the "central personnel agency of the Government," 70 Book V, Title I, Subtitle A, Chapter 3, Section 12 (11) of Executive Assignment of Customs Officers and Employees to other duties. — The Commissioner of Customs may, with the approval of the
Order No. 292 or the Administrative Code of 1987 provides: Secretary of Finance, assign any employee of the Bureau of Customs to any port, service, division or office within the Bureau or
SECTION 12. Powers and Functions. — The [Civil Service] Commission shall have the following powers and assign him duties as the best interest of the service may require, in accordance with the staffing pattern or organizational set-up
functions: as may be prescribed by the Commissioner of Customs with the approval of the Secretary of Finance: Provided, that such
xxx xxx xxx assignment shall not affect the tenure of office of the employees nor result in the change of status, demotion in rank and/or
(11) Hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested deduction of salary.
appointments, and review decisions and actions of its offices and of the agencies attached to it. Officials and employees who fail 15. Section 2 of [Republic Act] No. 6656 [or An Act to Protect the Security of Tenure of Civil Service Officers and
to comply with such decisions, orders, or rulings shall be liable for contempt of the Commission. Its decisions, orders, or rulings Employees in the Implementation of Government Reorganization] further provides that due notice and hearing are required to
shall be final and executory. Such decisions, orders, or rulings may be brought to the Supreme Court on certiorari by the remove a public officer or employee pursuant to a bona fide reorganization, viz.:
aggrieved party within thirty (30) days from receipt of a copy thereof[.] (Emphasis supplied) No officer or employee in the career service shall be removed except for a valid cause and after due notice and hearing. A valid
Further, for the implementation of Book V, Title I, Subtitle A, Chapter 3, Section 12 (11) of Executive Order No. 292, 71 Sections 5 cause for removal exists when, pursuant to a bona fide reorganization, a position has been abolished or rendered redundant or
(B) (3), 6 (B) (3), and 7 (B) (2) of Civil Service Commission Memorandum Circular No. 19-99 or the Revised Uniform Rules on there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the service, or other lawful causes
Administrative Cases in the Civil Service lay down the different offices of the civil service where complaints involving personnel allowed by the Civil Service Law.
actions should be filed. Hence: acEHCD 16. Thus, while the necessity and indispensability of reorganization when public interest demands may be justified, civil
SECTION 5. Jurisdiction of the Civil Service Commission Proper. 72 — The Civil Service Commission Proper shall have service employees, much more career service officers with permanent appointments like [private respondents], cannot be
jurisdiction over the following cases: removed, suspended, or demoted from office except for cause provided by law.
xxx xxx xxx xxx xxx xxx
B. Non-Disciplinary 18. In this case, [Customs Personnel Order] No. B-189-2013 allegedly "detailed" all 15 [private respondents], together
xxx xxx xxx with 12 other Collectors of Customs, to an advisory capacity of a policy coordinating body (CPRO) under the guise of
3. Protests against the appointment, or other personnel actions, involving third level officials; 73 and reorganization, thus effectively rendering vacant the 27 positions of collector of customs throughout the country.
xxx xxx xxx 19. Section 8, Rule VII of Civil Service Commission (CSC) Resolution No. 91-1631, otherwise known as the "Omnibus
SECTION 6. Jurisdiction of Civil Service Regional Offices. — The Civil Service Commission Regional Offices shall have Civil Service Rules and Regulations," provides that a "detail" is "the movement of an employee from one department or agency
jurisdiction over the following cases: to another which is temporary in nature, which does not involve a reduction in rank, status or salary and does not require the
xxx xxx xxx issuance of another appointment."
B. Non-Disciplinary 20. The patent nullity of [Customs Personnel Order] No. B-189-2013 is readily apparent since Section 703 of [the Tariff
xxx xxx xxx and Customs Code] merely authorizes the [Bureau of Customs] Commissioner to assign or move [Bureau of Customs] personnel
3. Decisions of national agencies and local government units within their geographical boundaries relative to only within the Bureau. Since the [Customs Policy Research Office] is a newly created "office" outside of the [Bureau of
personnel actions and non-disciplinary cases brought before it on appeal; and Customs], the [Bureau of Customs] Commissioner's issuance of [Customs Personnel Order] No. B-189-2013 which "details"
xxx xxx xxx [private respondents] to the [Customs Policy Research Office] is clearly an ultra vires act, and is therefore invalid. In fact, the
SECTION 7. Jurisdiction of Heads of Agencies. — Heads of Departments, agencies, provinces, cities, municipalities and other [Bureau of Customs] Commissioner's own admission proves this ultra vires and invalid issuance, thus:
instrumentalities shall have original concurrent jurisdiction, with the Commission, 74 over their respective officers and "It is more than a reshuffle because [private respondents] have actually been transferred to the [Department of Finance], out of
employees. the Bureau of Customs," Biazon said in an ANC interview, confirming news first reported by the Philippine Daily Inquirer. "Instead
xxx xxx xxx of just reassignment [to] another port, they're basically reassigned to another office." HSAcaE
B. Non-Disciplinary "After their transfer out of the [Bureau of Customs], the next-in-rank collectors or division heads are taking over as officers-in-
xxx xxx xxx charge of the different ports," he said.
2. Complaints on personnel actions and other non-disciplinary actions of their respective personnel. (Emphasis 21. There is no bona fide reorganization that took place. [Private respondents'] mass "detail" to the [Customs Policy
supplied) Research Office] was without any clear or definite direction as to their career status and functions. As a consequence, [private
As the "central personnel agency of the Government" 75 with quasi-judicial powers 76 and as the body tasked to administer the respondents] were intentionally and effectively placed on a "floating status."
civil service, 77 the Civil Service Commission is the "sole arbiter of controversies relating to the civil service[,]" 78 including 22. Furthermore, [Executive Order] No. 140 clearly provides that the [Customs Policy Research Office] shall be
personnel actions, as this court has ruled. 79 composed of its organic personnel, and that said policy research body — after the organization of its own organic personnel —
shall merely be augmented and reinforced by Department of Finance and Bureau of Customs personnel. Despite the absence of
any organic personnel, much less approval from the Department of Budget and Management or even a recommendation from

93
CONSTI REV – FULL TEXT
the [Department of Finance], [private respondents] have, in speed haste, already been ordered to be "detailed" by the [Bureau of
Customs] to the [Customs Policy Research Office], and thus, effectively removed from their current respective permanent
positions.
23. The landmark case of Dario v. Mison, et al., where the Supreme Court voided the personnel reorganization within
the [Bureau of Customs], is highly instructive in this case, thus:
Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith. . . .
xxx xxx xxx
24. By no stretch of the imagination can the issuance of [Customs Personnel Order] No. B-189-2013 be said to have
been carried out in good faith. The undue haste in issuing [Customs Personnel Order] No. B-189-2013 clearly shows that
respondents are attempting to beat the deadline on the COMELEC election ban on personnel movement from 28 September
2013 to 28 October 2013 due to the forthcoming Barangay Elections. It cannot be denied that [Executive Order] No. 140, which
was signed by the President on 2 September 2013, has yet to take effect on 2 October 2013, which is 15 days after its
publication in two (2) newspapers of general circulation. On 17 September 2013, however, the [Bureau of Customs] already
issued [Customs Personnel Order] No. B-189-2013, which is based on [Executive Order] No. 140, and attempted to serve copies
thereof to [respondents] on 26 to 27 September 2013 supposedly just in time before the COMELEC election ban on personnel
movement takes effect on 28 September 2013.
25. More importantly, [Executive Order] No. 140 mandates that the transfer of [Bureau of Customs] personnel should
merely augment or reinforce the organic personnel of the [Customs Policy Research Office]. Obviously, without any organic
personnel, there is still nothing to augment or reinforce. . . . Hence, [private respondents'] "detail" to the [Customs Policy
Research Office] absent any compliance with the requirements under [Executive Order] No. 140, was surely carried out in bad
faith, and was meant to illegally remove [private respondents] from their respective permanent positions, in blatant violation of
the law and the Constitution.
26. It should also be stressed that [private respondents] were appointed as Collectors of Customs with Position Titles
VI and V, with specific functions, duties, titles, and ranks clearly provided for in their respective appointment papers. In contrast,
their supposed "detail" to the [Customs Policy Research Office] under [Customs Personnel Order] No. B-189-2013 does not even
provide for a definite period of duty, their titles, new functions, or ranks. AScHCD
27. Moreover, under CSC Memorandum Circular No. 06-05, otherwise known as the "Guidelines on Designation," it is
clear that:
xxx xxx xxx
B. Designees can only be designated to positions within the level they are currently occupying. However, Division
Chiefs may be designated to perform the duties of third level positions.
First level personnel cannot be designated to perform the duties of second level positions.
xxx xxx xxx
29. The basis of [private respondents'] reassignment or the exigency necessary to remove them from their positions is
likewise inexistent. Such blanket "detail" relinquishes [private respondents'] permanent positions as Collectors of Customs
without due process and is contrary to their Constitutional right to security of tenure. Clearly, the disparity between the positions
of a Collector of Customs and a mere researcher is blatant. Therefore, the transfer from the former to the latter unmistakeably
denotes demotion. . . .
xxx xxx xxx
30. In the case of Pastor v. City of Pasig, the Supreme Court held that a reassignment or even detail which is indefinite
and which results in a reduction of rank and status is effectively a constructive dismissal from the service. . . .
xxx xxx xxx
31. The principles on constructive dismissal clearly find analogous application to [private respondents]. By definition,
constructive dismissal is a quitting because continued employment is rendered impossible, unreasonable or unlikely; when there
is a demotion in rank or a diminution of pay. The test of constructive dismissal is whether a reasonable person in the employee's
position would have felt compelled to give up his position under the circumstances. It is an act amounting to dismissal but is
made to appear as if it were not. Constructive dismissal is therefore a dismissal in disguise. The law recognizes and resolves this
situation in favor of employees in order to protect their rights and interests from the coercive acts of the employer. Thus, the
Supreme Court has ruled that the management prerogative to transfer an employee "cannot be used as a subterfuge by the
employer to rid himself of an undesirable worker."
32. Evidently, [private respondents'] "detail" to the [Customs Policy Research Office] operated as a blanket and forced
relinquishment of their permanent positions as Collectors of Customs in violation of their right to security of tenure. In view
thereof, it behooves upon this Honorable Court to correct such abuse of powers and retain [private respondents] to their rightful
ranks. HESIcT
xxx xxx xxx
35. . . . in accordance with the Supreme Court's ruling in Tañada v. Tuvera, laws and executive issuances shall take
effect after fifteen (15) days following the completion of their publication in the Official Gazette, or in a newspaper of general
circulation.
36. In this case, [Executive Order] No. 140 was published in the 17 September 2013 issue of the broadsheet
newspaper, Manila Bulletin. Thus, following the above legal standards, it is clear that [Executive Order] No. 140 has yet to take
legal effect on 2 October 2013. In other words, the [Bureau of Customs'] issuance of [Customs Personnel Order] No. B-189-2013
on 17 September 2013 simply has no legal basis, and is therefore premature and patently invalid. To deprive [private
respondents] of their permanent positions as Collectors of Customs and to "detail" all 15 of them indefinitely as members of a
research body on the basis of an invalid [Bureau of Customs] and [Department of Finance] order are not only illegal but also
unconstitutional for being violative of [private respondents'] right to security of tenure.
37. An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no
office; it is, in legal contemplation, inoperative, as if it had not been passed. . . . For these reasons, [Customs Personnel Order]
No. B-189-2013 should be nullified and set aside, and its enforcement enjoined.
38. . . . . The consequence [of implementing Customs Personnel Order No. B-189-2013] that is also readily obvious is
the chaos entailed in port operations, the collection of much needed Government revenues and public service as [private
94
JULY 11, 2019
respondents] perform functions either as District Collectors of all the 17 Collection Districts in the country, or as Deputy
Collectors for administration, assessment and operation in those different ports. caITAC
xxx xxx xxx
41. It cannot be overemphasized that the issuance of [Customs Personnel Order] No. B-189-2013 is illegal, and
blatantly violates existing law and the Constitution. As above mentioned, respondents intend to have [Customs Personnel Order]
No. B-189-2013 immediately effective. Thus, there is a manifest urgency for this Honorable Court to immediately restrain
[petitioners] from implementing [Customs Personnel Order] No. B-189-2013 upon receipt of this petition and before the matter
can be heard on notice. Otherwise, grave injustice and irreparable injury would be suffered by [private respondents], in that:
(a) [Executive Order] No. 140, on which [Customs Personnel Order] No. B-189-2013 is based, has yet to take effect
upon publication in two (2) newspapers of general circulation. [Executive Order] No. 140 was published in the 17 September
2013 issue of the Manila Bulletin, hence, it will only take effect on 2 October 2013. [Customs Personnel Order] No. B-189-2013
cannot be given any effectivity as it is invalid for being blatantly premature and without legal basis;
(b) [Customs Personnel Order] No. B-189-2013 violates [Executive Order] No. 140, as the latter mandates that the
[Department of Finance], with the approval of the [Department of Budget and Management], has to recommend the composition
of the organic personnel of the [Customs Policy Research Office]. No such recommendation by the [Department of Finance],
much less the approval of the [Department of Budget and Management], has been made. In fact, [Executive Order] No. 140
provides that the transfer of [Bureau of Customs] personnel should merely augment or reinforce the organic personnel of the
[Customs Policy Research Office]. Obviously, without any organic personnel, there is still nothing to augment or reinforce. The
[Customs Policy Research Office] is thus in limbo, as there is yet no organic personnel in place;
(c) [Customs Personnel Order] No. B-189-2013 is also contrary to Section 703 of [Republic Act] No. 1937, as
amended, which provides that "(t)he Commissioner of Customs may, with the approval of the Secretary of Finance, assign any
employee of the Bureau of Customs to any port, service, division or office within the Bureau or assign him duties as the best
interest of the service may require." Even Commissioner Biazon, in an interview with [the ABS-CBN News Channel] admitted that
"it is more than a reshuffle because they have actually been transferred to the [Department of Finance], out of the Bureau of
Customs." The Commissioner of Customs thus committed an illegal and ultra vires act in "detailing" [private respondents] to the
[Customs Policy Research Office], an office admittedly outside the [Bureau of Customs]; and TAIaHE
(d) [private respondents'] "detail" to the [Customs Policy Research Office] is [petitioners'] scheme to constructively
dismiss and demote [private respondents]. [Customs Personnel Order] No. B-189-2013 operates as a blanket and forced
relinquishment of [private respondents'] permanent positions as Collectors of Customs in violation of their constitutional right to
security of tenure. [Private respondents] are all "detailed" to the [Customs Policy Research Office] without any appointment
papers providing for their specific functions, status, salary grades, ranks, and designation, thereby intentionally and effectively
placing them on "floating status."
(e) [Private respondents] would be unduly displaced from their permanent positions with the appointment and/or
designation by the [Bureau of Customs] of new Collectors of Customs. 81 (Emphasis supplied, citations omitted)
An examination of the text of the Petition for declaratory relief readily shows that private respondents originally questioned a
personnel action. They essentially questioned their detail to the Customs Policy and Research Office.
Book V, Title I, Subtitle A, Chapter 5, Section 26 of Executive Order No. 292 defines a personnel action:
SECTION 26. Personnel Actions. — . . .
As used in this Title, any action denoting the movement or progress of personnel in the civil service shall be known as personnel
action. Such action shall include appointment through certification, promotion, transfer, reinstatement, re-employment, detail,
reassignment, demotion, and separation. (Emphasis supplied)
The assailed Customs Personnel Order No. B-189-2013 is a personnel action because it details 27 employees from the Bureau
of Customs to the Customs Policy Research Office. It is a movement of personnel in the civil service.
Cases involving personnel actions are within the exclusive jurisdiction of the Civil Service Commission and not within the trial
courts' jurisdiction. 82
The issue is not novel.
In Olanda v. Bugayong, 83 respondent Leonardo G. Bugayong (Bugayong), as President of the Philippine Merchant Marine
Academy, relieved petitioner Menelieto A. Olanda (Olanda) from his post as the Dean of the College of Marine Engineering of the
Philippine Merchant Marine Academy 84 and imposed a three (3)-month suspension 85 on the latter for allegedly "misusing
classified information." 86 Olanda filed before the Regional Trial Court of Iba, Zambales a Petition for "quo warranto, mandamus,
and prohibition with prayer for the issuance of a writ of preliminary injunction and damages, claiming that there was no valid
cause to deprive him of his position[.]" 87 ICHDca
This court ruled that the trial court had no jurisdiction. 88 Hence:
Disciplinary cases and cases involving "personnel actions" affecting employees in the civil service including "appointment
through certification, promotion, transfer, reinstatement, reemployment, detail, reassignment, demotion and separation" are
within the exclusive jurisdiction of the Civil Service Commission which is the sole arbiter of controversies relating to the civil
service.
xxx xxx xxx
It was thus error for the trial court, which does not have jurisdiction, to, in the first, [sic] place take cognizance of the petition of
petitioner assailing his relief as Dean and his designation to another position. This leaves it unnecessary to dwell on the issues
herein raised by petitioner.
WHEREFORE, the petition is, upon the ground of lack of jurisdiction of the trial court, hereby DENIED.
SO ORDERED. 89 (Emphasis supplied, citation omitted)
In Casimina v. Judge Legaspi, 90 petitioner Pablo B. Casimina (Casimina), General Manager of the Philippine Fisheries
Development Authority, issued Special Order No. 82, which reassigned private respondent Emmanuel T. Illera (Illera), Port
Manager of the Iloilo Fishing Port Complex, from Iloilo to the central office in Quezon City. 91 After the denial of his request for
reconsideration, 92 Illera filed for injunction with a prayer for temporary restraining order and a writ of preliminary injunction
against Casimina before the Regional Trial Court of Iloilo "to restrain [Casimina] from transferring him to the central office in
Quezon City." 93
Casimina filed an Omnibus Motion to dismiss the Complaint on the ground of, among others, lack of jurisdiction. 94 This court
ruled that the trial court has no jurisdiction over the Petition. 95 "[T]his case falls within the jurisdiction of the Civil Service
CONSTI REV – FULL TEXT
Commission (CSC) because it involves the movement of government personnel to promote order and efficiency in public
service." 96 cDHAES
In Mantala v. Salvador, 97 Dr. Julia P. Regino (Regino) filed a formal protest before the Committee on Evaluation and Protest of
the Department of Health questioning the appointment of Dr. Mariquita J. Mantala (Dr. Mantala). 98 The Committee on
Evaluation and Protest upheld Dr. Mantala's appointment. 99 Upon appeal and reconsideration, the Civil Service Commission
also upheld Dr. Mantala's appointment. 100 The Resolution of the Civil Service Commission became final and executory. 101
Regino then filed an action for quo warranto and mandamus before the Regional Trial Court in Quezon City. 102 The trial court
annulled and set aside Dr. Mantala's appointment and directed the Secretary of Health to withdraw Dr. Mantala's appointment
and to issue another for Regino. 103 Dr. Mantala then filed a Petition for Review on certiorari before this court. 104 This court
granted the Petition and annulled the Decision of the trial court: 105
Disciplinary cases, and cases involving "personnel actions" affecting employees in the civil service — including "appointment
through certification, promotion, transfer reinstatement, reemployment, detail, reassignment, demotion and separation," and, of
course, employment status and qualification standards — are within the exclusive jurisdiction of the Civil Service Commission.
The Constitution declares the Commission to be "the central personnel agency of the Government," having power and authority
to administer the civil service; to promulgate its own rules concerning pleadings and practice before it or before any of its offices;
and to render decision in "any case or matter brought before it within sixty days from the date of its submission for decision or
resolution," which decision, or order or ruling "may be brought to the Supreme Court on certiorari by the aggrieved party within
thirty days from receipt of a copy thereof."
xxx xxx xxx
It was thus error, because beyond its competence, for the respondent Trial Court to take cognizance of the quo warranto and
mandamus action instituted by Dr. Regino which was in essence a protest against the appointment of Dr. Mantala. 106
(Emphasis supplied, citations omitted)
In all these cases, this court upheld the jurisdiction of the Civil Service Commission over complaints involving the movement of
personnel in the civil service. TCAScE
II.
The doctrine of primary administrative jurisdiction precludes trial courts from resolving a controversy involving a question that is
within the exclusive jurisdiction of an administrative tribunal. 107 The doctrine disallows courts "to arrogate unto itself the
authority to resolve a controversy the jurisdiction over which is initially lodged with an administrative body of special
competence." 108
In Pambujan Sur United Mine Workers v. Samar Mining Company, Inc., 109 the plaintiff Pambujan Sur United Mine Workers filed
a Complaint before the Court of First Instance (now Regional Trial Court) against the Samar Mining Company, Inc. (Samar
Mining) alleging breach of their closed-shop agreement. 110 Samar Mining filed a Motion to Dismiss arguing that the regular
courts had no jurisdiction over the subject matter of the Complaint. 111 Samar Mining argued that the Court of Industrial
Relations (now National Labor Relations Commission) had jurisdiction over cases involving conditions of employment. 112 The
Court of First Instance granted the Motion to Dismiss. 113
Upon appeal, this court applied the "exclusion theory," 114 i.e., "where jurisdiction is conferred in express terms upon one court,
and not upon another [and where] it has been held that it is the intention that the jurisdiction conferred shall be exclusive" 115
and upheld the exclusive jurisdiction of the Court of Industrial Relations (now National Labor Relations Commission). 116 Hence:
But judicial wisdom in this particular matter would seem to favor adherence to the exclusion theory, what with the litigant's
ordinary duty to exhaust administrative remedies and the "doctrine of primary administrative jurisdiction," sense-making and
expedient.
"That the courts cannot or will not determine a controversy involving a question which is within the jurisdiction of an
administrative tribunal prior to the decision of that question by the administrative tribunal, where the question demands the
exercise of sound administrative discretion requiring the special knowledge, experience, and services of the administrative
tribunal to determine technical and intricate matters of fact, and a uniformity of ruling is essential to comply with the purposes of
the regulatory statute administered." (42 Am. Jur., 698.) 117
This court also made a similar ruling in Javier v. Court of Appeals. 118 In Javier, Normito Javier (Normito) was "employed by
private respondent Jebsens Maritime, Inc. as a boatswain[.]" 119 Normito, however, died at sea. 120 Upon learning of her
husband's death, Lolita Javier (Lolita) went to the office of Jebsens Maritime, Inc. and the latter "promised to give the
corresponding death benefits[.]" 121 After Jebsens Maritime, Inc. had failed to pay the promised death benefits, Lolita filed a
Complaint before the Regional Trial Court of Makati for a sum of money for herself and on behalf of her six (6) minor children
against Jebsens Maritime, Inc. and its shipmaster. 122 ASEcHI
This court ruled that under Section 3 (d) 123 of Executive Order No. 247 or the Reorganization Act of the Philippine Overseas
Employment Administration, it was the Philippine Overseas Employment Administration that had original and exclusive
jurisdiction over Lolita's Complaint and that the trial court had no jurisdiction over the subject matter of her Complaint. 124
Hence, under the doctrine of primary administrative jurisdiction, the trial court cannot resolve the controversy. 125 This court
ordered the Regional Trial Court to dismiss the case for lack of jurisdiction. 126
In Catipon, Jr. v. Japson, 127 respondent Jerome Japson (Japson), "a former Senior Member Services Representative of [the]
[Social Security System,] Bangued, filed a letter-complaint [before] the Civil Service Commission-[Cordillera Administrative
Region] Regional Director[.]" 128 He alleged that petitioner Macario U. Catipon, Jr. (Catipon) made deliberate false entries in his
application to take the Civil Service Professional Examination. 129 The Civil Service Commission-Cordillera Administrative
Region Regional Director found Catipon guilty of conduct prejudicial to the best interest of the service. 130
Catipon appealed to the Court of Appeals, which dismissed the appeal. 131 The Court of Appeals held that instead of filing the
appeal before the Court of Appeals, Catipon should have appealed to the Civil Service Commission, based on Sections 5 (A) (1),
132 43, 133 and 49 134 of the Civil Service Commission Uniform Rules on Administrative Cases. 135
This court affirmed the Decision of the Court of Appeals 136 and held:
The [Court of Appeals] is further justified in refusing to take cognizance of the petition for review, as "[t]he doctrine of primary
jurisdiction does not warrant a court to arrogate unto itself the authority to resolve a controversy the jurisdiction over which is
initially lodged with an administrative body of special competence." When petitioner's recourse lies in an appeal to the
Commission Proper in accordance with the procedure prescribed in [Revised Uniform Rules on Administrative Cases in the Civil
Service], the [Court of Appeals] may not be faulted for refusing to acknowledge petitioner before it. 137 (Emphasis supplied)
95
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Hence, considering the exclusive jurisdiction of the Civil Service Commission to hear and decide administrative cases, including
those involving personnel actions, as granted by the Constitution, the Regional Trial Court cannot assume jurisdiction based on
the doctrine of primary administrative jurisdiction.
In sustaining the trial court's assumption of jurisdiction over the Petition for declaratory relief, the ponencia held that the case falls
under an exception to the doctrine of exhaustion of administrative remedies. 138 The ponencia states:
In this case, respondents allege that [Customs Personnel Order No. B-189-2013] is contrary to law and unconstitutional.
Respondents assail [Customs Personnel Order No. B-189-2013] as patently illegal, arbitrary, and oppressive. This case clearly
falls within the exceptions where exhaustion of administrative remedies need not be resorted to by respondents. 139 cTDaEH
Private respondents, citing Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan ng Muntinlupa, Inc.
(KBMBPM) v. Dominguez, 140 likewise argue that exceptions to the doctrine of exhaustion of administrative remedies apply. 141
Hence:
Moreover, the doctrine of exhaustion of administrative remedies also yields to other exceptions, such as when the question
involved is purely legal, as in the instant case, or where the questioned act is patently illegal, arbitrary or oppressive. 142
The doctrine of exhaustion of administrative remedies does not apply and, consequently, its exceptions.
The doctrine of primary administrative jurisdiction is different from the doctrine of exhaustion of administrative remedies.
Under the doctrine of primary administrative jurisdiction, when an administrative agency is granted primary jurisdiction over the
subject matter, the courts "cannot or will not determine a controversy involving a question which is within the jurisdiction of an
administrative tribunal prior to the decision of that question by the administrative tribunal[.]" 143 The doctrine of primary
administrative jurisdiction presupposes that the administrative agency has jurisdiction over the subject matter while the court
does not. The Complaint or Petition, therefore, cannot be filed before the court. As the issue is jurisdictional, there should be no
exception to the doctrine of primary administrative jurisdiction. When the complaint or petition is filed before a court with no
subject matter jurisdiction, the court has no other option but to dismiss the case. 144
On the other hand, under the doctrine of exhaustion of administrative remedies, before a party may seek intervention from the
court, he or she should have already exhausted all the remedies in the administrative level. 145 If there is still a remedy available
within the administrative machinery, "then such remedy should be exhausted first before [the] court's judicial power can be
sought." 146 The doctrine of exhaustion of administrative remedies presupposes that both the courts and the administrative
agency have concurrent jurisdiction. This is because non-observance of the doctrine of exhaustion of administrative remedies
does not affect the court's jurisdiction. 147 In Soto v. Jareno, 148 this court ruled:
Failure to observe the doctrine of exhaustion of administrative remedies does not affect the jurisdiction of the court. We have
repeatedly stressed this in a long line of decisions. The only effect of non-compliance with this rule is that it will deprive the
complainant of a cause of action, which is a ground for a motion to dismiss. If not invoked at the proper time, this ground is
deemed waived and the court can then take cognizance of the case and try it. 149 (Emphasis supplied)
Hence, the doctrine of exhaustion of administrative remedies presupposes that the court has jurisdiction over the subject matter
of the complaint or petition. Otherwise, it can never have the power to take cognizance of the case as contemplated by Soto.
ITAaHc
While both the court and the administrative agency have jurisdiction over the subject matter, the general rule is that the courts,
because of comity, practicality, and convenience, will not interfere with the administrative process until the process comes to an
end. 150 This is because availing administrative remedies entails lesser expenses and results in a speedier resolution of
controversies. 151 On the other hand, since the court and the administrative agency have concurrent jurisdiction, exceptions
may be warranted by the circumstances, 152 and the court may choose to assume jurisdiction over the controversy.
Hence, when jurisdiction is exclusively granted to an administrative agency, the doctrine of exhaustion of administrative remedies
does not apply. Here, considering that the Civil Service Commission is granted exclusive jurisdiction over cases involving
personnel actions, the doctrine of primary administrative jurisdiction, not the doctrine of exhaustion of administrative remedies,
applies.
The exceptions to the doctrine of exhaustion of administrative remedies likewise do not apply because the Regional Trial Court
has no jurisdiction to resolve the dispute in the first place. In order for the exceptions to apply, the court to which the petition was
prematurely filed should have jurisdiction; otherwise, the orders of the court would be null and void for lack of jurisdiction.
Decisions or orders rendered by tribunals and agencies that do not have subject matter jurisdiction are null and void. 153 Hence,
the exceptions to the doctrine of exhaustion of administrative remedies should not be applicable since the Regional Trial Court,
the court to which the Petition for declaratory relief was filed, lacks subject matter jurisdiction, and any order or decision rendered
by it would be null and void.
Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan ng Muntinlupa, Inc. (KBMBPM) cited by private
respondents finds no application here. In KBMBPM, petitioners questioned the takeover by the Department of Agriculture of the
management of petitioner KBMBPM, a service cooperative organized by and composed of vendors of the New Muntinlupa Public
Market. 154 There is no personnel action involved in KBMBPM. Hence, private respondents' reliance on the case is misplaced.
The ponencia held that "[w]hen respondents raised the issue of validity and constitutionality of [Customs Personnel Order No. B-
189-2013], the issue took the case beyond the scope of the [Civil Service Commission's] jurisdiction because the matter is no
longer limited to personnel action. Thus, the [Regional Trial Court] did not abuse its discretion in taking cognizance of the action."
155
The constitutional issues alleged in the Petition for declaratory relief do not suffice for the Regional Trial Court to assume
jurisdiction. cSaATC
The Civil Service Commission cannot be ousted from its jurisdiction "by the simple expediency of appending an allegedly
constitutional or legal dimension to an issue" 156 that clearly involves a personnel action. 157
In Corsiga v. Judge Defensor, 158 petitioner Eduardo Corsiga (Corsiga), "then Regional Irrigation Manager of the [National
Irrigation Administration], Region VI, issued Regional Office Memorandum (ROM) No. 52, reassigning private respondent
[Romeo Ortizo (Ortizo)] to [the] Aganan-Sta. Barbara River Irrigation System[.]" 159 Ortizo filed before the "Regional Trial Court
of Iloilo City a complaint for prohibition and injunction, with prayer for issuance of [a] Temporary Restraining Order and/or Writ of
Preliminary Injunction." 160 He argued that the transfer or assignment without his consent is a violation of his constitutional right
to security of tenure. 161 Corsiga moved to dismiss the Petition for lack of jurisdiction. 162
This court ruled that the Regional Trial Court had no jurisdiction over Ortizo's Complaint. 163 Hence:
CONSTI REV – FULL TEXT
It is the intent of the Civil Service Law, in requiring the establishment of a grievance procedure in Rule XII, Section 6 of the same
rules, that decisions of lower level officials be appealed to the agency head, then to the Civil Service Commission. Decisions of
the Civil Service Commission, in turn, may be elevated to the Court of Appeals. Under this set up, the trial court does not have
jurisdiction over personnel actions and, thus, committed an error in taking jurisdiction over Civil Case No. 22462. The trial court
should have dismissed the case on motion of petitioner and let private respondent question RMO [sic] No. 52 before the NIA
Administrator, and then the Civil Service Commission. As held in Mantala vs. Salvador, cases involving personnel actions,
reassignment included, affecting civil service employees, are within the exclusive jurisdiction of the Civil Service Commission.
164 (Emphasis supplied, citations omitted)
Despite allegations of Regional Office Memorandum No. 52's constitutional infirmities, this court still upheld the exclusive
jurisdiction of the Civil Service Commission over cases involving personnel actions.
In Department of Agrarian Reform v. Trinidad Valley Realty & Development Corporation, 165 Trinidad Valley Realty &
Development Corporation and the other respondents (Trinidad Valley Realty & Development Corporation, et al.) are registered
owners of a parcel of land in Negros Oriental. 166 The Department of Agrarian Reform placed a substantial portion of the land
under the coverage of the Comprehensive Agrarian Reform Law of 1988 or Republic Act No. 6657. 167 Administrative Order No.
10, Series of 1989, Administrative Orders No. 12, Series of 1989, No. 9, Series of 1990, and No. 2, Series of 1996,
Administrative Order No. 10, Series of 1990, Joint DAR-LRA Memorandum Circular No. 20, Series of 1997, and Executive Order
No. 405, among others, (collectively, Orders) were then issued. 168 CHTAIc
Private respondents Trinidad Valley Realty & Development Corporation, et al. filed before the Regional Trial Court a Petition for
declaration of unconstitutionality through certiorari, prohibition and mandamus against the Land Registration Authority, the
Department of Agrarian Reform, and the beneficiaries under the Comprehensive Agrarian Reform Program questioning the
Orders. 169 This was later amended to an ordinary action of annulment of land titles. 170 In its Answer, the Department of
Agrarian Reform asserted that "jurisdiction over all agrarian reform matters is exclusively vested in the [Department of Agrarian
Reform,]" 171 not in the regular courts. This court ruled that the Regional Trial Court had no jurisdiction. 172
The Court likewise ruled in the similar case of [Department of Agrarian Reform] v. Cuenca that "[a]ll controversies on the
implementation of the Comprehensive Agrarian Reform Program (CARP) fall under the jurisdiction of the Department of Agrarian
Reform (DAR), even though they raise questions that are also legal or constitutional in nature." In said case, it was noted that the
main thrust of the allegations in the Complaint was the propriety of the Notice of Coverage and "not . . . the 'pure question of law'
spawned by the alleged unconstitutionality of EO 405 — but . . . the annulment of the DAR's Notice of Coverage." The Court thus
held that:
To be sure, the issuance of the Notice of Coverage constitutes the first necessary step towards the acquisition of private land
under the CARP. Plainly then, the propriety of the Notice relates to the implementation of the CARP, which is under the quasi-
judicial jurisdiction of the DAR. Thus, the DAR could not be ousted from its authority by the simple expediency of appending an
allegedly constitutional or legal dimension to an issue that is clearly agrarian. cHDAIS
The legal recourse undertaken by Trinidad Valley Realty and Development Corporation, et al. is on all-fours with the remedy
adopted by the private respondents in Cuenca. In this case, Trinidad Valley Realty and Development Corporation, et al. cloaked
the issue as a constitutional question — assailing the constitutionality of administrative issuances promulgated to implement the
agrarian reform law — in order to annul the titles issued therein. In Cuenca, private respondents assailed the constitutionality of
EO 45 in order to annul the Notice of Coverage issued therein. The only difference is that in Cuenca, private respondents directly
filed with the RTC their complaint to obtain the aforesaid reliefs while in this case, Trinidad Valley Realty and Development
Corporation, et al. filed their original petition for certiorari with the RTC after the protest of Trinidad Valley Realty and
Development Corporation against the coverage of its landholding under CARP was dismissed by the DAR Regional Director and
such dismissal was affirmed by DAR OIC Secretary Jose Mari B. Ponce. But in both cases, it is evident that the constitutional
angle was an attempt to exclude the cases from the ambit of the jurisdictional prescriptions under RA 6657. 173 (Emphasis
supplied, citations omitted)
Invocations of issues of validity and constitutionality of Customs Personnel Order No. B-189-2013 will not suffice for the courts to
assume jurisdiction, if the order sought to be declared invalid is a personnel action. Since the questioned order is a personnel
action, the exclusive jurisdiction of the Civil Service Commission as the sole arbiter of controversies relating to the civil service
must be upheld.
In any case, detail of government personnel to other offices does not involve and violate the employees' security of tenure in the
absence of any grave abuse of discretion or improper motive or purpose. 174
Hence, the Regional Trial Court has no jurisdiction over private respondents' Petition for declaratory relief.
IV.
Private respondents rely on Commissioner of Customs, et al. v. Hypermix Feeds Corporation. 175 They argue that based on
Hypermix, "[t]he determination of whether a specific rule or set of rules issued by an administrative agency contravenes the law
or the [C]onstitution is within the jurisdiction of the regular courts." 176 They add that the "Constitution vests the power of judicial
review or the power to declare a law, treaty, international or executive agreement, presidential decree, order, instruction,
ordinance, or regulation in the courts, including the regional trial courts." 177 EATCcI
In Hypermix, Hypermix Feeds Corporation filed a Petition for declaratory relief before the Regional Trial Court, with the Petition
challenging the validity and constitutionality of Customs Memorandum Order (CMO) 27-2003. 178 CMO 27-2003 classified
wheat according to (1) importer or consignee; (2) country of origin; and (3) port of discharge, and imposed different tariff rates
depending on such classification. 179 This court concluded that "a petition for declaratory relief is the right remedy given the
circumstances of the case." 180 Hypermix cannot be applied because the circumstances in that case differ from the
circumstances here as Hypermix does not involve a personnel action.
V.
A petition for declaratory relief may prosper only if there is no breach or violation yet of the assailed government regulation, and
adequate relief is not available through other means or other forms of action or proceeding.
Rule 63, Section 1 of the Rules of Court provides:
SECTION 1. Who may file petition. — Any person interested under a deed, will, contract or other written instrument, or whose
rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before
breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or
validity arising, and for a declaration of his rights or duties, thereunder. (Emphasis supplied)
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JULY 11, 2019
In Republic v. Roque, 181 this court enumerated the requisites for a petition for declaratory relief to prosper:
Case law states that the following are the requisites for an action for declaratory relief: first, the subject matter of the controversy
must be a deed, will, contract or other written instrument, statute, executive order or regulation, or ordinance; second, the terms
of said documents and the validity thereof are doubtful and require judicial construction; third, there must have been no breach of
the documents in question; fourth, there must be an actual justiciable controversy or the "ripening seeds" of one between
persons whose interests are adverse; fifth, the issue must be ripe for judicial determination; and sixth, adequate relief is not
available through other means or other forms of action or proceeding. 182 (Emphasis in the original, citation omitted) DHITCc
The third and sixth requisites are absent. The Complaint before the lower court did not simply ask for a declaration of a
hypothetical breach. Adequate relief through the Civil Service Commission was also available.
Executive Order No. 140 was published on September 17, 2013. According to Section 9, Executive Order No. 140 shall take
effect immediately. On September 17, 2013, Bureau of Customs Commissioner Rozzano Rufino B. Biazon issued Customs
Personnel Order No. B-189-2013. On September 30, 2013, private respondents filed their Petition for declaratory relief. There
was no denial by private respondents that they did not report for work upon Custom Personnel Order No B-189-2013's effectivity.
183 Private respondents Arnel C. Alcaraz, Ma. Lourdes V. Mangaoang, Romalino G. Valdez, Lilibeth S. Sandag, Ma. Liza S.
Torres, and Raymond P. Ventura only reported for work after the trial court's denial of their application for a writ of preliminary
injunction. 184
By not reporting for work upon the issuance of Customs Personnel Order No. B-189-2013 on September 17, 2015, private
respondents committed a breach of the Order. Since they committed the breach prior to the filing of their Petition for declaratory
relief, the petition is no longer available.
In Martelino, et al. v. National Home Mortgage Finance Corporation, et al., 185 petitioners (Martelino, et al.) obtained housing
loans from respondents National Home Mortgage Finance Corporation and Home Development Mutual Fund. 186 National
Home Mortgage Finance Corporation and Home Development Mutual Fund directly released the proceeds of the housing loans
to the subdivision developer, Shelter Philippines, Inc. (Shelter). 187
Shelter did not complete the subdivision pursuant to its subdivision plan. 188 Martelino, et al. then filed a Petition for declaratory
relief to determine whether they can suspend payment to National Home Mortgage Finance Corporation and Home Development
Mutual Fund because of Shelter's failure to complete the subdivision and whether interests and penalties should also be
suspended. 189
This court found that at the time of the filing of their Petition for declaratory relief, Martelino, et al. already suspended payment of
their amortizations to National Home Mortgage Finance Corporation and Home Development Mutual Fund. 190 Hence, this court
concluded that the Regional Trial Court cannot assume jurisdiction over the Petition for declaratory relief. 191 Hence: CAacTH
Indeed, under Section 1, Rule 63, a person must file a petition for declaratory relief before breach or violation of a deed, will,
contract, other written instrument, statute, executive order, regulation, ordinance or any other governmental regulation. In this
case, the petitioners had stated in their petition that respondents assessed them interest and penalties on their outstanding
loans, initiated foreclosure proceedings against petitioner Rafael Martelino as evidenced by the notice of extra-judicial sale and
threatened to foreclose the mortgages of the other petitioners, all in disregard of their right to suspend payment to Shelter for its
failure to complete the subdivision. Said statements clearly mean one thing: petitioners had already suspended paying their
amortization payments. Unfortunately, their actual suspension of payments defeated the purpose of the action to secure an
authoritative declaration of their supposed right to suspend payment, for their guidance. Thus, the RTC could no longer assume
jurisdiction over the action for declaratory relief because its subject initially unspecified, now identified as P.D. No. 957 and relied
upon — correctly or otherwise — by petitioners, and assumed by the RTC to be Rep. Act No. 8501, was breached before filing
the action. As we said in Tambunting, Jr. v. Sumabat:
. . . The purpose of the action [for declaratory relief] is to secure an authoritative statement of the rights and obligations of the
parties under a statute, deed, contract, etc. for their guidance in its enforcement or compliance and not to settle issues arising
from its alleged breach. It may be entertained only before the breach or violation of the statute, deed, contract, etc. to which it
refers. Where the law or contract has already been contravened prior to the filing of an action for declaratory relief, the court can
no longer assume jurisdiction over the action. . . . Under such circumstances, inasmuch as a cause of action has already
accrued in favor of one or the other party, there is nothing more for the court to explain or clarify short of a judgment or final
order. 192 (Emphasis supplied, citations omitted)
In Aquino v. Municipality of Malay, Aklan, 193 petitioner Crisostomo B. Aquino (Aquino) is "the president and chief executive
officer of Boracay Island West Cove Management Philippines, Inc. (Boracay West Cove)." 194 The Office of the Mayor of Malay,
Aklan issued Executive Order No. 10, Series of 2011, ordering the closure and demolition of a hotel owned by Boracay West
Cove. 195 On June 10, 2011, Executive Order No. 10 was implemented partially. 196
To stop the implementation of Executive Order No. 10, Aquino filed a Petition for certiorari with prayer for injunctive relief before
the Court of Appeals. 197 The Court of Appeals dismissed the Petition on the ground that the correct remedy was for Aquino "to
file a petition for declaratory relief with the Regional Trial Court." 198 cEaSHC
This court disagreed with the Court of Appeals and stated:
An action for declaratory relief presupposes that there has been no actual breach of the instruments involved or of the rights
arising thereunder. Since the purpose of an action for declaratory relief is to secure an authoritative statement of the rights and
obligations of the parties under a statute, deed, or contract for their guidance in the enforcement thereof, or compliance
therewith, and not to settle issues arising from an alleged breach thereof, it may be entertained before the breach or violation of
the statute, deed or contract to which it refers. A petition for declaratory relief gives a practical remedy for ending controversies
that have not reached the state where another relief is immediately available; and supplies the need for a form of action that will
set controversies at rest before they lead to a repudiation of obligations, an invasion of rights, and a commission of wrongs.
In the case at bar, the petition for declaratory relief became unavailable by Executive Order No. 10's] enforcement and
implementation. The closure and demolition of the hotel rendered futile any possible guidelines that may be issued by the trial
court for carrying out the directives in the challenged [Executive Order No. 10]. Indubitably, the CA erred when it ruled that
declaratory relief is the proper remedy given such a situation. 199 (Emphasis supplied, citation omitted)
In City of Lapu-Lapu v. Philippine Economic Zone Authority, 200 the City of Lapu-Lapu and the Province of Bataan demanded
from the Philippine Economic Zone Authority payment of real property taxes. 201 The Philippine Economic Zone Authority filed a
Petition for declaratory relief before the Regional Trial Court, "praying that the trial court declare it exempt from payment of real
CONSTI REV – FULL TEXT JULY 11, 2019

property taxes." 202 This court ruled that the Regional Trial Court had no jurisdiction to decide Philippine Economic Zone
Authority's Petition for declaratory relief. 203 This court explained:
We rule that the [Philippine Economic Zone Authority] erred in availing itself of a petition for declaratory relief against the City.
The City had already issued demand letters and real property tax assessment against the [Philippine Economic Zone Authority],
in violation of the [Philippine Economic Zone Authority's] alleged tax-exempt status under its charter. The Special Economic Zone
Act of 1995, the subject matter of [Philippine Economic Zone Authority's] petition for declaratory relief, had already been
breached. The trial court, therefore, had no jurisdiction over the petition for declaratory relief. IAETDc
There are several aspects of jurisdiction. Jurisdiction over the subject matter is "the power to hear and determine cases of the
general class to which the proceedings in question belong." It is conferred by law, which may either be the Constitution or a
statute. Jurisdiction over the subject matter means "the nature of the cause of action and the relief sought." Thus, the cause of
action and character of the relief sought as alleged in the complaint are examined to determine whether a court had jurisdiction
over the subject matter. Any decision rendered by a court without jurisdiction over the subject matter of the action is void. 204
(Emphasis supplied, citations omitted)
Further, Tambunting, Jr. v. Spouses Sumabat 205 declared that when a court assumed jurisdiction over a Petition for declaratory
relief when there was already a breach of the subject instrument or government regulation, the orders made by that court would
be null and void for want of jurisdiction. 206 Hence:
In other words, a court has no more jurisdiction over an action for declaratory relief if its subject, i.e., the statute, deed, contract,
etc., has already been infringed or transgressed before the institution of the action. Under such circumstances, inasmuch as a
cause of action has already accrued in favor of one or the other party, there is nothing more for the court to explain or clarify
short of a judgment or final order.
Here, an infraction of the mortgage terms had already taken place before the filing of Civil Case No. C-7496. Thus, the CFI
lacked jurisdiction when it took cognizance of the case in 1979. And in the absence of jurisdiction, its decision was void and
without legal effect. As this Court held in Arevalo v. Benedicto:
Furthermore, the want of jurisdiction by a court over the subject-matter renders its judgment void and a mere nullity, and
considering that a void judgment is in legal effect no judgment, by which no rights are divested, from which no rights can be
obtained, which neither binds nor bars any one, and under which all acts performed and all claims flowing out of are void, and
considering further, that the decision, for want of jurisdiction of the court, is not a decision in contemplation of law, and, hence,
can never become executory, it follows that such a void judgment cannot constitute a bar to another case by reason of res
judicata. 207 (Emphasis supplied, citations omitted) CTIEac
This was reiterated in Malana, et al. v. Tappa, et al. 208 where this court declared:
Where the law or contract has already been contravened prior to the filing of an action for declaratory relief, the courts can no
longer assume jurisdiction over the action. In other words, a court has no more jurisdiction over an action for declaratory relief if
its subject has already been infringed or transgressed before the institution of the action. 209
Private respondents argue that Customs Personnel Order No. B-189-2013 is void, producing no effect. Hence, "there is actually
no breach, real or imaginary, to speak of in this case." 210
Subscribing to petitioners' theory will render ineffective the phrase "before breach or violation thereof" found in Section 1 of Rule
63 of the Rules of Court when a petitioner questions the validity of a written instrument or governmental regulation. By arguing
that the instrument or regulation questioned is void at the onset, a petitioner may file any time a petition for declaratory relief with
no regard to whether he or she violated the "void" instrument or regulation.
Private respondents' belated compliance with Customs Personnel Order No. B-189-2013 cannot cure the defect of want of
jurisdiction. In Gomez v. Palomar, etc., et al., 211 this court declared:
The prime specification of an action for declaratory relief is that it must be brought "before breach or violation" of the statute has
been committed. Rule 64, section 1 so provides. Section 6 of the same rule, which allows the court to treat an action for
declaratory relief as an ordinary action, applies only if the breach or violation occurs after the filing of the action but before the
termination thereof.
Hence, if, as the trial court itself admitted, there had been a breach of the statute before the filing of this action, then indeed the
remedy of declaratory relief cannot be availed of, much less can the suit be converted into an ordinary action. 212 (Emphasis
supplied, citation omitted)
Considering that there was already a breach of Customs Personnel Order No. B-189-2013 when private respondents filed their
Petition for declaratory relief, the Regional Trial Court can no longer act on the Petition for want of jurisdiction.
For a Petition for declaratory relief to prosper, there should be no other adequate relief available to petitioners. 213 "If adequate
relief is available through another form of action or proceeding, the other action must be preferred over an action for declaratory
relief." 214
In Ferrer, Jr., et al. v. Mayor Roco, Jr., et al., 215 this court affirmed the dismissal of a Petition for declaratory relief where the
doctrine of primary administrative jurisdiction applied because it meant that there was another adequate remedy available to
petitioners. 216 DcHSEa
Here, private respondents' correct remedy was to file a Complaint or Petition before the Civil Service Commission to assail their
detail to the Customs Policy Research Office. Since they have another adequate remedy available to them, their Petition for
declaratory relief must fail.
All told, a Petition for declaratory relief was not an available remedy for private respondents. It was, therefore, error for the
Regional Trial Court to assume jurisdiction over private respondents' Petition for declaratory relief. The Orders of the Regional
Trial Court dated October 1, 2013, October 4, 2013, and October 21, 2013 are declared void for want of jurisdiction. All other
Orders of the Regional Trial Court pursuant to private respondents' Petition for declaratory relief are also void for lack of
jurisdiction.
The Regional Trial Court should be directed to dismiss private respondents' Petition for declaratory relief.
VI.
Customs Personnel Order No. B-189-2013 provides that it "shall be effective immediately and valid until sooner revoked." 217
Civil Service Commission Resolution No. 021181 entitled Policies on Detail and dated September 13, 2002 "govern[s] the detail
of employees in all agencies of the government." 218 Section 2 of Policies on Detail provides:
Section 2. Duration of the Detail. — The detail shall be allowed only for a maximum period of one year. Details beyond one year
may be allowed provided it is with the consent of the detailed employee. The extension or renewal of the period of the detail shall
be within the authority of the mother agency.
If the employee believes that there is no justification for the detail, he/she may appeal his/her case to the proper Civil Service
Commission Regional Office. Pending appeal, the detail shall be executory unless otherwise ordered by said regional office.
Decision of said regional office may be further appealed to the Commission en banc. 219 (Emphasis supplied)
Customs Personnel Order No. B-189-2013's provision stating that "[t]his Order shall be effective immediately and valid until
sooner revoked" appears contrary to Section 2 of Resolution No. 02-1181. Pursuant, however, to Section 2 of Civil Service
Commission Resolution No. 02-1181, Customs Personnel Order No. B-189-2013 should be read as valid only for a period of one
(1) year. Consistency in executive issuances is of utmost importance. 220 As much as possible, it is the duty of the courts to
harmonize and reconcile them. 221
In Philippine International Trading Corporation v. Presiding Judge Angeles, 222 this court ruled: SaCIDT
Thus, there is no real inconsistency between LOI 444 and EO 133. There is, admittedly, a rearranging of the administrative
functions among the administrative bodies affected by the edict, but not an abolition of executive power. Consistency in statutes
as in executive issuances, is of prime importance, and, in the absence of a showing to the contrary, all laws are presumed to be
consistent with each other. Where it is possible to do so, it is the duty of courts, in the construction of statutes, to harmonize and
reconcile them, and to adopt a construction of a statutory provision which harmonizes and reconciles it with other statutory
provisions. The fact that a later enactment may relate to the same subject matter as that of an earlier statute is not of itself
sufficient to cause an implied repeal of the latter, since the law may be cumulative or a continuation of the old one. 223
(Emphasis supplied, citations omitted)
Similarly, this court should also uphold as much as possible the validity of Customs Personnel Order No. B-189-2013 as a valid
exercise of executive power to conform to the Policies on Detail.
"Every inten[t] of the law should lean towards its validity, not its invalidity." 224 Hence, the duration of Customs Personnel Order
No. B-189-2013, being independent and severable from the order of detail itself, should be the only provision declared void.
Since there is no record that private respondents consented to be detailed for more than one (1) year from September 17, 2013,
Customs Personnel Order No. B-189-2013, while effective for the duration of one (1) year from enactment, already ceased to
take effect.
The ponencia ruled that Customs Personnel Order No. B-189-2013 violates Section 3 of Executive Order No. 140 because at the
time of its issuance, the Customs Policy Research Office had no organic personnel yet. 225 The ponencia also ruled that the
Department of Finance Secretary had not yet issued rules and regulations for the Customs Policy Research Office. 226
There is nothing in Executive Order No. 140 that requires that the organic personnel of the Customs Policy Research Office must
first be organized and that rules must first be issued by the Department of Finance Secretary before the Bureau of Customs can
start forming its team that will augment and reinforce the organic personnel of the Customs Policy Research Office. Courts
should avoid as much as possible any construction invalidating administrative issuances. 227 Unless there is a clear violation of
Executive Order No. 140, Customs Personnel Order No. B-189-2013 should remain valid. SCaITA
ACCORDINGLY, the Petition should be GRANTED. Private respondents' Petition for declaratory relief filed before the Regional
Trial Court should be DISMISSED for lack of jurisdiction.
Footnotes
* Designated acting member per Raffle dated 10 August 2015.
1. Carmelita M. Talusan withdrew as petitioner in Civil Case No. 13-130820, noted by the trial court in its Order dated
4 October 2013. Rollo, p. 58.
2. Arefiles H. Carreon manifested his intent to withdraw as petitioner in Civil Case No. 13-130820 per letter to counsel
dated 16 October 2013. Id. at 119.
3. Id. at 57-63.
4. Ronnie C. Silvestre, Edward P. Dela Cuesta, Rogel C. Gatchalian, Imelda D. Cruz, Lilibeth S. Sandag, Raymond P.
Ventura, Ma. Liza S. Torres, Arnel C. Alacaraz, Ma. Lourdes V. Mangaoang, Francis Agustin Y. Erpe, Carlos T. So, Marietta D.
Zamoranos, Carmelita M. Talusan, Arefiles H. Carreon, and Romalino G. Valdez.
5. Corsiga v. Judge Defensor, 439 Phil. 875 (2002).
6. Id.
7. Olanda v. Bugayong, 459 Phil. 626 (2003).
8. Addition Hills Mandaluyong Civic & Social Organization, Inc. v. Megaworld Properties & Holdings, Inc., G.R. No.
175039, 18 April 2012, 670 SCRA 83.
9. Id.
10. Vigilar v. Aquino, 654 Phil. 755 (2011).
11. Providing for the Publication of Laws Either in the Official Gazette or in a Newspaper of General Circulation in the
Philippines as a Requirement for their Effectivity.
12. Nagkakaisang Maralita ng Sitio Masigasig, Inc. v. Military Shrine Services-Philippine Veteran Affairs Office,
Department of National Defense, G.R. No. 187587, 5 June 2013, 697 SCRA 359.
13. Tañada v. Tuvera, 230 Phil. 528 (1986), Resolution on Motion for Reconsideration.
14. Id.
15. Section 26 (6), Chapter V, Book V, Title I of Executive Order No. 292 provides that the detail shall be allowed "only
for a limited period in the case of employees occupying professional, technical and scientific positions."
16. As contained in CSC Memorandum Circular No. 21, Series of 2002.
17. Rollo, p. 10.
LEONEN, J., dissenting:
1. Rollo, p. 58. Carmelita M. Talusan withdrew as petitioner in Civil Case No. 13-130820. The withdrawal was noted
by the trial court in its Order dated October 4, 2013.
2. Id. at 119. Arefiles H. Carreon manifested his intent to withdraw as petitioner in Civil Case No. 13-130820 per letter
to counsel dated October 16, 2013.
3. Olanda v. Bugayong, 459 Phil. 626, 632 (2003) [Per J. Carpio Morales, Third Division].
4. Id.

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5. Rollo, pp. 10-50. 50. Id. at 28.

6. Id. at 54-56. 51. Id. at 24.
7. Id. at 57-63. 52. Id. at 33.
8. Id. at 44. 53. Id.
9. Id. 54. Id. at 35.
10. Id. at 64-67. 55. Id.
11. Id. at 14. 56. Id. at 37.
12. Id. at 65; Exec. Order No. 140 (2013), sec. 1. 57. Id. at 116-118.
13. Rollo, p. 66. 58. Id. at 39-40.
14. Id. at 14. 59. Id. at 135.
15. Id. at 67. 60. Id. at 140.
16. Id. at 69-70. 61. Id. at 143.
17. Id. at 14. 62. Id. at 137-140.
18. Id. at 69; BOC Customs Personnel Order No. B-189-2013, par. 1. 63. Id. at 149-150.
19. Rollo, pp. 69-70. 64. Id. at 142.
20. Id. at 71. 12 out of the 27 affected employees did not file for a Petition for declaratory relief. 65. Id. at 141-144.
21. Id. at 400. 66. Id. at 141-143.
22. Id. at 71. 67. Id. at 143.
23. Id. at 400. 68. Id.
24. Id. at 71-93. The Petition was docketed as Civil Case No. 13-130820. 69. Id.
25. Id. at 15. 70. CONST., art. IX (B), sec. 3.
26. Id. at 72. 71. CSC Memorandum Circular No. 19-99 (1999), second Whereas clause.
27. Rep. Act No. 1937 (1957), sec. 703, as amended, provides: 72. CSC Memorandum Circular No. 19-99 (1999), Rule I, sec. 2 (c) provides:
SECTION 703. Assignment of Customs Officers and Employees to Other Duties. — The Commissioner of Customs SECTION 2. Coverage and Definition of Terms. — . . .
may, with the approval of the Secretary of Finance, assign any employee of the Bureau of Customs to any port, service, division c. COMMISSION PROPER refers to the Civil Service Commission-Central Office.
or office within the Bureau or assign him duties as the best interest of the service may require, in accordance with the staffing 73. CSC Memorandum Circular No. 19-99 (1999), Rule I, sec. 2 (o) provides:
pattern or organizational set-up as may be prescribed by the Commissioner of Customs with the approval of the Secretary of SECTION 2. Coverage and Definition of Terms. — . . .
Finance: Provided, That such assignment shall not affect the tenure of office of the employees nor result in the change of status, o. THIRD LEVEL refers to positions in the Career Executive Service (CES) which include Undersecretary, Assistant
demotion in rank and/or deduction in salary. (Emphasis supplied) Secretary, Bureau Director, Regional Director, Assistant Regional Director and other officers of equivalent rank.
28. Rollo, pp. 76-77. 74. CSC Memorandum Circular No. 19-99 (1999), Rule 1, sec. 2 (b) provides:
29. Id. at 77; Exec. Order No. 292 (1987), Book V, Title I, subtitle A, chap. 2, sec. 7 provides: SECTION 2. Coverage and Definition of Terms. — . . .
SECTION 7. Career Service. — The Career Service shall be characterized by (1) entrance based on merit and b. COMMISSION refers to the Civil Service Commission (Central Office and Regional Offices).
fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2) 75. CONST., art. IX (B), sec. 3.
opportunity for advancement to higher career positions; and (3) security of tenure. 76. CONST., art. IX (A), secs. 6 and 7.
The Career Service shall include: 77. CONST., art. IX (B), sec. 1 (1).
(1) Open Career positions for appointment to which prior qualification in an appropriate examination is required; 78. Corsiga v. Judge Defensor, 439 Phil. 875, 883 (2002) [Per J. Quisumbing, Second Division].
(2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty and 79. Mantala v. Salvador, G.R. No. 101646, February 13, 1992, 206 SCRA 264, 267 [Per C.J. Narvasa, En Banc].
academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which 80. Department of Agrarian Reform v. Cuenca, 482 Phil. 208, 216 (2004) [Per J. Panganiban, Third Division].
shall establish and maintain their own merit systems; 81. Rollo, pp. 75-88.
(3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, 82. Olanda v. Bugayong, 459 Phil. 626, 632-633 (2003) [Per J. Carpio Morales, Third Division]; Mantala v. Salvador,
Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of G.R. No. 101646, February 13, 1992, 206 SCRA 264, 267 [Per C.J. Narvasa, En Banc]; and Corsiga v. Judge Defensor, 439
equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President; Phil. 875, 883-884 (2002) [Per J. Quisumbing, Second Division].
(4) Career officers, other than those in the Career Executive Service, who are appointed by the President, such as 83. 459 Phil. 626 (2003) [Per J. Carpio Morales, Third Division].
the Foreign Service Officers in the Department of Foreign Affairs; 84. Id. at 629.
(5) Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system; 85. Id. at 630.
(6) Personnel of government-owned or controlled corporations, whether performing governmental or proprietary 86. Id. at 629.
functions, who do not fall under the non-career service; and 87. Id. at 630.
(7) Permanent laborers, whether skilled, semi-skilled, or unskilled. 88. Id. at 633.
30. Rollo, pp. 80-81. 89. Id. at 632-633.
31. Id. at 80 and 84. 90. 500 Phil. 560 (2005) [Per J. Corona, Third Division].
32. CIVIL CODE, art. 2, as amended by Exec. Order No. 200 (1987), provides: 91. Id. at 563.
ART. 2. Laws shall take effect after fifteen days following the completion of their publication either in the Official 92. Id. at 565-566.
Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided. 93. Id. at 566.
33. Rollo, p. 84. 94. Id.
34. Id. at 15-16. 95. Id. at 570.
35. Id. at 16. 96. Id.
36. Id. 97. G.R. No. 101646, February 13, 1992, 206 SCRA 264 [Per C.J. Narvasa, En Banc].
37. Id. at 94-115. 98. Id. at 265.
38. Id. at 98-99. 99. Id.
39. Id. at 39. 100. Id. at 266.
40. Id. at 62. 101. Id.
41. Id. at 323-326. 102. Id.
42. Id. at 326. 103. Id.
43. Id. at 351. The employees were Arnel C. Alcaraz, Ma. Lourdes V. Mangaoang, Romalino G. Valdez, Lilibeth S. 104. Id. at 267.
Sandag, Ma. Liza S. Torres, and Raymond P. Ventura. 105. Id. at 269.
44. Id. 106. Id. at 267-268.
45. Id. at 9. 107. Javier v. Court of Appeals, G.R. No. 96617, October 14, 1992, 214 SCRA 572, 576 [Per J. Nocon, Second
46. Id. at 125. Division].
47. Id. at 127-154. 108. Catipon, Jr. v. Japson, G.R. No. 191787, June 22, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?
48. Id. at 359. file=/jurisprudence/2015/june2015/191787.pdf> 10 [Per J. Del Castillo, Second Division].
49. Id. at 24-25. 109. 94 Phil. 932 (1954) [Per J. Bengzon, En Banc].

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110. Id. at 933. 151. Id.

111. Id. at 934. 152. Id. This court held: "However, we are not amiss to reiterate that the principle of exhaustion of administrative
112. Id. remedies as tested by a battery of cases is not an ironclad rule. This doctrine is a relative one and its flexibility is called upon by
113. Id. the peculiarity and uniqueness of the factual and circumstantial settings of a case. Hence, it is disregarded (1) when there is a
114. Id. at 941. violation of due process, (2) when the issue involved is purely a legal question, (3) when the administrative action is patently
115. Id. illegal amounting to lack or excess of jurisdiction, (4) when there is estoppel on the part of the administrative agency concerned,
116. Id. at 941-942. (5) when there is irreparable injury, (6) when the respondent is a department secretary whose acts as an alter ego of the
117. Id. at 941. President bears the implied and assumed approval of the latter, (7) when to require exhaustion of administrative remedies would
118. G.R. No. 96617, October 14, 1992, 214 SCRA 572 [Per J. Nocon, Second Division]. be unreasonable, (8) when it would amount to a nullification of a claim, (9) when the subject matter is a private land in land case
119. Id. at 573. proceedings, (10) when the rule does not provide a plain, speedy and adequate remedy, and (11) when there are circumstances
120. Id. at 574. indicating the urgency of judicial intervention." (Citations omitted)
121. Id. 153. Spouses Atuel v. Spouses Valdez, 451 Phil. 631, 646 (2003) [Per J. Carpio, First Division].
122. Id. 154. Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan ng Muntinlupa, Inc. (KBMBPM) v.
123. Exec. Order No. 247 (1987), sec. 3 (d) provides: Dominguez, G.R. No. 85439, January 13, 1992, 205 SCRA 92, 95-96 [Per J. Davide, Jr., En Banc].
SECTION 3. Powers and Functions. — 155. Ponencia, p. 5.
(d) Exercise original and exclusive jurisdiction to hear and decide all claims arising out of an employer-employee 156. Department of Agrarian Reform v. Trinidad Valley Realty & Development Corporation, G.R. No. 173386, February
relationship or by virtue of any law or contract involving Filipino workers for overseas employment including the disciplinary 11, 2014, 715 SCRA 650, 670 [Per J. Villarama, Jr., En Banc].
cases[.] 157. See Department of Agrarian Reform v. Trinidad Valley Realty & Development Corporation, G.R. No. 173386,
124. Javier v. Court of Appeals, G.R. No. 96617, October 14, 1992, 214 SCRA 572, 575-576 [Per J. Nocon, Second February 11, 2014, 715 SCRA 650, 670 [Per J. Villarama, Jr., En Banc].
Division]. 158. 439 Phil. 875 (2002) [Per J. Quisumbing, Second Division].
125. Id. at 576. 159. Id. at 879.
126. Id. at 575 and 577. 160. Id. at 880.
127. G.R. No. 191787, June 22, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html? 161. Id. at 882.
file=/jurisprudence/2015/june2015/191787.pdf> [Per J. Del Castillo, Second Division]. 162. Id. at 881.
128. Id. at 2. 163. Id. at 883-884.
129. Id. 164. Id. at 883-884.
130. Id. 165. G.R. No. 173386, February 11, 2014, 715 SCRA 650 [Per J. Villarama, Jr., En Banc].
131. Id. at 5. 166. Id. at 653-654.
132. CSC Memorandum Circular No. 19-99 (1999), Rule I, sec. 5 (A) (1) provides: 167. Id. at 654.
SECTION 5. Jurisdiction of the Civil Service Commission Proper. — The Civil Service Commission Proper shall 168. Id. at 661-662.
have jurisdiction over the following cases: 169. Id. at 654.
A. Disciplinary 170. Id. at 656.
1. Decisions of Civil Service Regional Offices brought before it on petition for review[.] 171. Id. at 655.
133. CSC Memorandum Circular No. 19-99 (1999), Rule III, sec. 43 provides: 172. Id. at 671.
SECTION 43. Filing of Appeals. — Decisions of heads of departments, agencies, provinces, cities, municipalities 173. Id. at 670-671.
and other instrumentalities imposing a penalty exceeding thirty (30) days suspension or fine in an amount exceeding thirty days 174. Borres v. Hon. Canonoy, etc., et al., 195 Phil. 81, 92-93 (1981) [Per J. De Castro, First Division].
salary, may be appealed to the Commission Proper within a period of fifteen (15) days from receipt thereof. 175. 680 Phil. 681 (2012) [Per J. Sereno, Second Division].
In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be 176. Rollo, p. 141.
initially appealed to the department head and finally to the Commission Proper. Pending appeal, the same shall be executory 177. Id.
except where the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary 178. Commissioner of Customs, et al. v. Hypermix Feeds Corporation, 680 Phil. 681, 686 (2012) [Per J. Sereno, Second
concerned. Division].
A notice of appeal including the appeal memorandum shall be filed with the appellate authority, copy furnished the 179. Id. at 684-685.
disciplining office. The latter shall submit the records of the case, which shall be systematically and chronologically arranged, 180. Id. at 691.
paged and securely bound to prevent loss, with its comment, within fifteen (15) days, to the appellate authority. 181. G.R. No. 204603, September 24, 2013, 706 SCRA 273 [Per J. Perlas-Bernabe, En Banc].
134. CSC Memorandum Circular No. 19-99 (1999), Rule III, sec. 49 provides: 182. Id. at 283.
SECTION 49. Petition for Review. — A complainant may elevate the decision of the Civil Service Regional Office 183. Rollo, pp. 400-401.
dismissing a complaint for lack of a prima facie case before the Commission Proper through a Petition for Review within fifteen 184. Id. at 351.
(15) days from the receipt of said decision. 185. 579 Phil. 145 (2008) [Per J. Quisumbing, Second Division].
135. Catipon, Jr. v. Japson, G.R. No. 191787, June 22, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html? 186. Id. at 148.
file=/jurisprudence/2015/june2015/191787.pdf> 5 [Per J. Del Castillo, Second Division]. 187. Id.
136. Id. at 12. 188. Id.
137. Id. at 10, citing Vidad v. Regional Trial Court of Negros Oriental, Branch 42, G.R. No. 98084, October 18, 1993, 227 189. Id. at 148-149.
SCRA 271, 276 [Per J. Vitug, En Banc]. 190. Id. at 155.
138. Ponencia, p. 6. 191. Id.
139. Id. 192. Id. at 155-156.
140. G.R. No. 85439, January 13, 1992, 205 SCRA 92, 110 [Per J. Davide, Jr., En Banc]. 193. G.R. No. 211356, September 29, 2014, 737 SCRA 145 [Per J. Velasco, Jr., Third Division].
141. Rollo, p. 140. 194. Id. at 152.
142. Id. 195. Id. at 154.
143. Javier v. Court of Appeals, G.R. No. 96617, October 14, 1992, 214 SCRA 572, 576 [Per J. Nocon, Second 196. Id.
Division]. 197. Id.
144. See Katon v. Palanca, Jr., 481 Phil. 168, 183 (2004) [Per J. Panganiban, Third Division]. 198. Id. at 155.
145. Rosales v. Court of Appeals, 247-A Phil. 437, 443-444 (1988) [Per J. Bidin, Third Division]. 199. Id. at 157.
146. Paat v. Court of Appeals, 334 Phil. 146, 152 (1997) [Per J. Torres, Jr., Second Division]. 200. G.R. No. 184203, November 26, 2014 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?
147. Soto v. Jareno, 228 Phil. 117, 119 (1986) [Per J. Cruz, First Division]. file=/jurisprudence/2014/november2014/184203.pdf> [Per J. Leonen, Second Division].
148. 228 Phil. 117 (1986) [Per J. Cruz, First Division]. 201. Id. at 8.
149. Id. at 119, citing C. N. Hodges v. Municipal Board of Iloilo City, et al., 125 Phil. 442, 447-448 [Per J. Ruiz Castro, En 202. Id. at 4.
Banc], Municipality of La Trinidad, Benguet v. Court of First Instance of Baguio-Benguet, et al., 208 Phil. 78, 83 (1983) [Per J. 203. Id. at 21.
Escolin, Second Division], Pineda v. Court of First Instance of Davao, 111 Phil. 643, 650 (1961) [Per J. Concepcion, En Banc], 204. Id.
and Atlas Consolidated Mining and Development Corporation v. Hon. Mendoza, et al., 112 Phil. 960, 965 (1961) [Per J. 205. Tambunting, Jr. v. Spouses Sumabat, 507 Phil. 94 (2005) [Per J. Corona, Third Division].
Concepcion, En Banc]. 206. Id. at 98-99.
150. Paat v. Court of Appeals, 334 Phil. 146, 153 (1997) [Per J. Torres, Jr., Second Division]. 207. Id. at 99.

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208. 616 Phil. 177 (2009) [Per J. Chico-Nazario, Third Division].

209. Id. at 189.
210. Rollo, p. 143.
211. 134 Phil. 771 (1968) [Per J. Castro, En Banc].
212. Id. at 779.
213. Republic v. Roque, G.R. No. 204603, September 24, 2013, 706 SCRA 273, 283 [Per J. Perlas-Bernabe, En Banc].
214. G.R. No. 184203, November 26, 2014 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?
file=/jurisprudence/2014/november2014/184203.pdf> 18 [Per J. Leonen, Second Division].
215. 637 Phil. 310 (2010) [Per J. Mendoza, Second Division].
216. Id. at 318-319.
217. Rollo, p. 70; BOC Customs Personnel Order No. B-189-2013, penultimate paragraph.
218. CSC Memorandum Circular No. 21, Series of 2002.
219. Rollo, p. 117.
220. Philippine International Trading Corporation v. Presiding Judge Angeles, 331 Phil. 723, 747 (1996) [Per J. Torres,
Jr., Second Division].
221. Id. at 748.
222. 331 Phil. 723 (1996) [Per J. Torres, Jr., Second Division].
223. Id. at 747-748.
224. San Miguel Corporation v. Judge Avelino, 178 Phil. 47, 53 (1979) [Per J. Fernando, Second Division].
225. Ponencia, p. 7.
226. Id.
227. Philippine International Trading Corporation v. Presiding Judge Angeles, 331 Phil. 723, 748 (1996) [Per J. Torres,
Jr., Second Division].

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EN BANC
[G.R. No. 182133. June 23, 2015.]
UNITED OVERSEAS BANK OF THE PHILIPPINES, INC., petitioner, vs. THE BOARD OF COMMISSIONERS-
HLURB, J.O.S. MANAGING BUILDERS, INC., and EDUPLAN PHILS., INC., respondents.
DECISION
PERALTA, J p:
Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the
Decision 1 and Resolution 2 of the Court of Appeals (CA), dated February 27, 2006 and March 5, 2008,
respectively, in CA G.R. SP No. 86401.
The antecedents are as follows:
Respondent J.O.S. Managing Builders, Inc. (JOS Managing Builders) is the registered owner and developer of
the condominium project Aurora Milestone Tower. On December 16, 1997, JOS Managing Builders and
respondent EDUPLAN Philippines, Inc. (EDUPLAN) entered into a Contract to Sell covering Condominium
Unit E, 10th Floor of the Aurora Milestone Tower with an area of 149.72 square meters, more or less. In
August 1998, EDUPLAN effected full payment, and in December 1998, JOS Managing Builders and
EDUPLAN executed a Deed of Absolute Sale over the condominium unit. Notwithstanding the execution of the
deed of sale in favor of EDUPLAN, JOS Managing Builders failed to cause the issuance of a Condominium
Certificate of Title over the condominium unit in the name of EDUPLAN. EDUPLAN learned that the lots on
which the condominium building project Aurora Milestone Tower was erected had been mortgaged by JOS
Managing Builders to petitioner United Overseas Bank of the Philippines (United Overseas Bank) without the
prior written approval of the Housing and Land Use Regulatory Board (HLURB). Due to the inability of JOS
Managing Builders to deliver the condominium certificate of title covering the unit purchased by EDUPLAN, the
latter filed a complaint for specific performance and damages against JOS Managing Builders and United
Overseas Bank before the HLURB praying that: (a) the mortgage between JOS Managing Builders and United
Overseas Bank be declared null and void; (b) JOS Managing Builders and United Overseas Bank be
compelled to cause the issuance and release of the Condominium Certificate of Title; and (c) JOS Managing
Builders be ordered to provide emergency power facilities, to refund the monthly telephone carrier charges,
and to permanently cease and desist from further collecting such charges. ETHIDa
In its defense, JOS Managing Builders alleged that it could not issue an individual Condominium Certificate of
Title in favor of EDUPLAN, because petitioner United Overseas Bank has custody of the Transfer Certificates
of Title covering the condominium building.
United Overseas Bank, on the other hand, alleged that JOS Managing Builders is the owner of several parcels
of land covered by Transfer Certificate of Title (TCT) Nos. N-146444, N-146445 and N-143601. On April 3,
1997, JOS Managing Builders executed in favor of United Overseas Bank a Real Estate Mortgage 3 over the
said parcels of land and the improvements existing or to be erected thereon to secure the Two Hundred Million
Peso (PhP200,000,000.00) 4 loan it acquired from the bank. The subject condominium building project Aurora
Milestone Tower, which is situated in the said parcels of land, are part of the properties mortgaged to United
Overseas Bank. JOS Managing Builders defaulted in the payment of its loan obligations to United Overseas
Bank. Hence, United Overseas Bank foreclosed the mortgage constituted over properties of JOS Managing
Builders and the subject properties were sold by public auction on March 22, 1999 wherein United Overseas
Bank was declared as the highest bidder. Subsequently, a certificate of sale was issued in favor of United
Overseas Bank corresponding to the foreclosed properties, which was registered with the Register of Deeds of
Quezon City on April 27, 1999.
On August 15, 2001, the HLURB Arbiter ruled, 5 in favor of EDUPLAN and declared the mortgage executed
between JOS Managing Builders and United Overseas Bank as well as the foreclosure proceedings null and
void, pointing out that the mortgage was executed without the approval of the HLURB as required under
Section 18 of Presidential Decree (P.D.) No. 957. 6 The Arbiter held that that since EDUPLAN has paid the full
purchase price of the condominium unit, JOS Managing Builders and United Overseas Bank should cause the
release from encumbrance of the mother titles to the condominium building project, and issue the
corresponding condominium certificate of title in favor of EDUPLAN. Further, JOS Managing Builders should
provide EDUPLAN with emergency power facilities and refund it with the monthly telephone carrier charges it
has been collecting since September 1999, and permanently cease and desist from further imposing and
collecting such fees. Moreover, JOS Managing Builders was directed to pay EDUPLAN damages, attorney's
fees and costs of suit. The dispositive portion of the decision reads: TIADCc
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JULY 11, 2019
Wherefore, the foregoing premises considered and as prayed for, judgment is hereby rendered in favor of the
Complainant and against the Respondents as follows:
1. Declaring the mortgage executed by Respondent J.O.S. Managing Builders in favor of Respondent
United Overseas Bank (Westmont) as null and void, including the foreclosure of the mortgage, for being in
violation of Section 18 of P.D. 957;
2. Ordering Respondents to cause the release from the encumbrances of the "mother titles" to the
Condominium Building Project and, issuance of the individual Condominium Certificate of Title of Complainant
to its Condominium Unit, free from any and all liens and encumbrances;
3. Ordering Respondent J.O.S. Managing Builders to provide the Complainant with emergency power
facilities, strictly as represented in its sales brochures;
4. Ordering Respondent J.O.S. Managing Builders to refund to Complainant the monthly telephone
carrier charges it has been collecting since September 1, 1999 and permanently cease and desist from further
imposing and collecting said charges;
5. Ordering Respondent J.O.S. to pay the complainant P100,000.00 by way of temperate damages,
P50,000.00 by way of exemplary damages, P40,000.00 as and by way of Attorney's Fees; and the costs of
suit.
6. Ordering Respondent J.O.S. Managing Builders to pay Respondent United Overseas Bank
(Westmont) the loan release value of the subject condominium unit."
United Overseas Bank then filed a petition for review with the HLURB. On August 20, 2004, the HLURB Board
of Commissioners affirmed the Arbiter's decision, but deleted the award of emergency power facilities and
refund of the monthly telephone carrier charges. Hence, United Overseas Bank filed a petition for review
under Rule 43 before the CA. 7
On February 27, 2006, the CA dismissed the petition. 8 A motion for reconsideration was filed, but it was
denied for lack of merit. 9 The CA held that United Overseas Bank did not exhaust the administrative remedies
available to it due to its failure to appeal the decision of the HLURB Board of Commissioners to the Office of
the President before going to the CA. cSEDTC
Hence, the petition assigning the lone error:
THE COURT OF APPEALS ERRED IN REFUSING TO APPLY THE EXCEPTION TO THE DOCTRINE OF
EXHAUSTION OF ADMINISTRATIVE REMEDIES. 10
Petitioner United Overseas Bank argues that the CA erred when it dismissed the petition due to its failure to
exhaust administrative remedies. It alleges that the question on whether the HLURB is correct in declaring null
and void the entire mortgage constituted by JOS Managing Builders in favor of United Overseas Bank, as well
as the foreclosure of the entire mortgage, is a legal question which is an exception to the rule on exhaustion of
administrative remedies.
The petition is meritorious.
The doctrine of exhaustion of administrative remedies is a cornerstone of our judicial system. The thrust of the
rule is that courts must allow administrative agencies to carry out their functions and discharge their
responsibilities within the specialized areas of their respective competence. 11 It has been held, however, that
the doctrine of exhaustion of administrative remedies and the doctrine of primary jurisdiction are not iron-clad
rules. In the case of Republic v. Lacap, 12 the Court enumerated the numerous exceptions to these rules,
namely: (a) where there is estoppel on the part of the party invoking the doctrine; (b) where the challenged
administrative act is patently illegal, amounting to lack of jurisdiction; (c) where there is unreasonable delay or
official inaction that will irretrievably prejudice the complainant; (d) where the amount involved is relatively so
small as to make the rule impractical and oppressive; (e) where the question involved is purely legal and will
ultimately have to be decided by the courts of justice; (f) where judicial intervention is urgent; (g) where the
application of the doctrine may cause great and irreparable damage; (h) where the controverted acts violate
due process; (i) where the issue of non-exhaustion of administrative remedies has been rendered moot; (j)
where there is no other plain, speedy and adequate remedy; (k) where strong public interest is involved; and
(l) in quo warranto proceedings. 13
The situation in paragraph (e) of the foregoing enumeration obtains in this case. AIDSTE
The issue on whether non-compliance with the clearance requirement with the HLURB would result to the
nullification of the entire mortgage contract or only a part of it is purely legal which will have to be decided
CONSTI REV – FULL TEXT
ultimately by a regular court of law. It does not involve an examination of the probative value of the evidence
presented by the parties. There is a question of law when the doubt or difference arises as to what the law is
on a certain state of facts, and not as to the truth or the falsehood of alleged facts. Said question at best could
be resolved only tentatively by the administrative authorities. The final decision on the matter rests not with
them but with the courts of justice. Exhaustion of administrative remedies does not apply, because nothing of
an administrative nature is to be or can be done. The issue does not require technical knowledge and
experience, but one that would involve the interpretation and application of law. 14 There is, thus, no need to
exhaust administrative remedies, under the premises.
The Court will now proceed to the legal issue on hand.
Petitioner United Overseas Bank alleges that the HLURB erred in declaring null and void the entire mortgage
constituted by JOS Managing Builders in its favor, as EDUPLAN does not claim ownership over all the
properties mortgaged by JOS Managing Builders in favor of United Overseas Bank, but only over a single
condominium unit, i.e., Unit E, 10th Floor of the Aurora Milestone Tower.
We agree with petitioner.
The HLURB erred in
declaring null and void
the entire mortgage
executed between JOS
Managing Builders and
United Overseas Bank.
At the onset, it is worthy to note that jurisprudence have varying conclusions of the issue at hand. In Far East
Bank & Trust Co. v. Marquez, 15 the Court sustained the HLURB when it declared the mortgage entered into
between the subdivision developer and the bank as unenforceable against the lot buyer for failure of the
developer to obtain the prior written approval of the HLURB. However, we were categorical that the HLURB
acted beyond bounds when it nullified the mortgage covering the entire parcel of land, of which the lot subject
of the buyer's complaint is merely a part of.
In Far East Bank, the Court held that:
Acts executed against the provisions of mandatory or prohibitory laws shall be void. Hence, the mortgage over
the lot is null and void insofar as private respondent is concerned.
The remedy granted by the HLURB and sustained by the Office of the President is proper only insofar as it
refers to the lot of respondent. In short, the mortgage contract is void as against him. Since there is no law
stating the specifics of what should be done under the circumstances, that which is in accord with equity,
should be ordered. The remedy granted by the HLURB in the first and the second paragraphs of the
dispositive portion of its Decision insofar as it referred to respondent's lot is in accord with equity. SDAaTC
The HLURB, however, went overboard in its disposition in paragraphs 3 and 4, which pertained not only to the
lot but to the entire parcel of land mortgaged. Such ruling was improper. The subject of this litigation is limited
only to the lot that respondent is buying, not to the entire parcel of land. He has no personality or standing to
bring suit on the whole property, as he has actionable interest over the subject lot only. (Citations omitted and
underscoring ours) 16
In Metropolitan Bank and Trust Co., Inc. v. SLGT Holdings, Inc., 17 however, the Court nullified the entire
mortgage contract executed between the subdivision developer and the bank albeit the fact that only two units
or lot buyer/s filed a case for declaration of nullity of mortgage. In the said case, the entire mortgage contract
was nullified on the basis of the principle of indivisibility of mortgage as provided in Article 2089 18 of the New
Civil Code.
This notwithstanding, in the fairly recent case of Philippine National Bank v. Lim, 19 the Court reverted to our
previous ruling in Far East Bank that a unit buyer has no standing to seek for the complete nullification of the
entire mortgage, because he has an actionable interest only over the unit he has bought. Hence, in the said
case, the mortgage was nullified only insofar as it affected the unit buyer.
We find the recent view espoused in Philippine National Bank to be in accord with law and equity. While a
mortgage may be nullified if it was in violation of Section 18 of P.D. No. 957, such nullification applies only to
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the interest of the complaining buyer. It cannot extend to the entire mortgage. A buyer of a particular unit or lot
has no standing to ask for the nullification of the entire mortgage.
Since EDUPLAN has an actionable interest only over Unit E, 10th Floor, Aurora Milestone Tower, it is but
logical to conclude that it has no standing to seek for the complete nullification of the subject mortgage and the
HLURB was incorrect when it voided the whole mortgage between JOS Managing Builders and United
Overseas Bank.
Considering that EDUPLAN had already paid the full purchase price of the subject unit, the latter is entitled to
the transfer of ownership of the subject property in its favor. This right is provided for in Section 25 of P.D. No.
957, 50 wit:
Issuance of Title. The owner or development shall deliver the title of the lot or unit to the buyer upon full
payment of the lot or unit. . . . .
Verily, JOS Managing Builders has the obligation to cause the delivery of the Title to the subject condominium
unit in favor of EDUPLAN.
Nevertheless, despite the fact that the mortgage constituted between JOS Managing Builders and United
Overseas Bank cannot bind EDUPLAN, because of the non-observance of the provision of P.D. No. 957 by
JOS managing Builders, the mortgage between the former and United Overseas Bank is still valid.
In the present case, it is undisputed that JOS Managing Builders mortgaged several parcels of land, including
all the buildings and improvements therein covered by TCT Nos. N-146444, N-146445 and N-143601 to
United Overseas Bank without prior clearance from the HLURB. The said omission clearly violates Section 18
of P.D. No. 957 (The Subdivision and condominium Buyers' Protective Decree), which provides as follows:
AaCTcI
Section 18. Mortgages. — No mortgage on any unit or lot shall be made by the owner or developer without
prior written approval of the [HLURB]. . . . (Word in bracket added)
It should be noted, however, that the failure of JOS Managing Builders to secure prior approval of the
mortgage from the HLURB and United Overseas Bank's failure to inquire on the status of the property offered
for mortgage placed the condominium developer and the creditor Bank in pari delicto. 20 Hence, they cannot
ask the courts for relief for such parties should be left where they are found for being equally at fault.
More importantly, it should be understood that the prior approval requirement is intended to protect buyers of
condominium units from fraudulent manipulations perpetrated by unscrupulous condominium sellers and
operators, such as their failure to deliver titles to the buyer or titles free from lien and encumbrances. 21 This
is pursuant to the intent of P.D. No. 957 to protect hapless buyers from the unjust practices of unscrupulous
developers which may constitute mortgages over condominium projects sans the knowledge of the former and
the consent of the HLURB. 22
Thus, failure to secure the HLURB'S prior written approval as required by P.D. No. 957 will not annul the entire
mortgage between the condominium developer and the creditor bank, otherwise the protection intended for
condominium buyers will inadvertently be extended to the condominium developer even though, by failing to
secure the government's prior approval, it is the party at fault.
To rule otherwise would certainly affect the stability of large-scale mortgages, which is prevalent in the real
estate industry. To be sure, mortgagee banks would be indubitably placed at risk if condominium developers
are empowered to unilaterally invalidate mortgage contracts based on their mere failure to secure prior written
approval of the mortgage by the HLURB, which could be easily caused by inadvertence or by deliberate intent.
From all the foregoing, the HLURB erred when it declared the entire mortgage constituted by JOS Managing
Builders, Inc. in favor of United Overseas Bank null and void based solely on the complaint of EDUPLAN
which was only claiming ownership over a single condominium unit of Aurora Milestone Tower. Accordingly,
the mortgage executed between JOS Managing Builders and United Overseas Bank is valid. acEHCD
WHEREFORE, the petition is GRANTED. The Decision and Resolution of the Court of Appeals, dated
February 27, 2006 and March 5, 2008, respectively, in CA-G.R. SP No. 86401, are REVERSED and SET
ASIDE. The Decision of the HLURB, dated August 20, 2004, is AFFIRMED with MODIFICATION. The
mortgage executed and the succeeding foreclosure proceedings between respondent J.O.S. Managing
Builders, Inc. and petitioner United Overseas Bank of the Philippines, Inc., with respect to respondent
EDUPLAN Philippines, Inc.'s unit E., 10th Floor, Aurora Milestone Tower, is declared null and void.
SO ORDERED.
CONSTI REV – FULL TEXT
Sereno, C.J., Carpio, Leonardo-de Castro, Villarama, Jr., Perez, Mendoza, Reyes and Jardeleza, JJ., concur.
Velasco, Jr., * J., is on leave.
Brion, * J., is on leave. I certify that J. Brion left his Dissenting Opinion. — C.J. Sereno
Bersamin, J., please see concurring opinion.
Del Castillo, J., I join J. Brion in his dissenting opinion.
Perlas-Bernabe, J., I am joining the opinion of J. Leonen.
Leonen, J., see separate concurring and dissenting opinion.
Separate Opinions
BRION, J., dissenting:
While I see no basis to disagree with the ponencia on the inapplicability of exhaustion of administrative
remedies in the present case, I dissent against its far-reaching conclusion to limit the nullity of the mortgage
contract to the interest of the complaining buyer. Thus, on the whole, I express this Opinion as a dissenting
one instead of a concurrence and a dissent.
Section 18 of P.D. 957 1 provides as follows:
SEC. 18. Mortgages. — No mortgage on any unit or lot shall be made by the owner or developer without
prior written approval of the Authority. Such approval shall not be granted unless it is shown that the proceeds
of the mortgage loan shall be used for the development of the condominium or subdivision project and
effective measures have been provided to ensure such utilization. The loan value of each lot or unit covered
by the mortgage shall be determined and the buyer thereof, if any, shall be notified before the release of the
loan. The buyer may, at his option, pay his installment for the lot or unit directly to the mortgagee who shall
apply the payments to the corresponding mortgage indebtedness secured by the particular lot or unit being
paid for, with a view to enabling said buyer to obtain title over the lot or unit promptly after full payment thereof.
Section 18 of the decree directly addresses the problem of fraud committed against buyers when the lots they
have contracted to purchase, and which they have religiously paid for, are mortgaged without their knowledge.
EcTCAD
The avowed purpose of P.D. 957 compels the reading of Section 18 to be prohibitory so that acts committed
contrary to it are void. 2 This construction ensures the attainment of the purpose of the law: to protect lot
buyers so they do not end up homeless despite full payment of the home lots they bought with their hard-
earned cash. 3 We fully recognized this intent when we held in Philippine National Bank v. Office of the
President that: 4
. . . [T]he unmistakable intent of the law [is] to protect innocent lot buyers from scheming subdivision
developers. As between these small lot buyers and the gigantic financial institutions which the developers deal
with, it is obvious that the law — as an instrument of social justice — must favor the weak. Indeed, the
petitioner bank had at its disposal vast resources with which it could adequately protect its loan activities, and
therefore is presumed to have conducted the usual "due diligence" checking and ascertaining . . . the actual
status, condition, utilization and occupancy of the property offered as collateral. . . . On the other hand, private
respondents obviously were powerless to discover the attempt of the land developer to hypothecate the
property being sold to them. It was precisely in order to deal with this kind of situation that P.D. 957 was
enacted, its very essence and intendment being to provide a protective mantle over helpless citizens who may
fall prey to the razzmatazz of what P.D. 957 termed "unscrupulous subdivision and condominium sellers.
Despite the clear and unambiguous provisions of P.D. 957 that clearly reflect this intent, the ponencia now still
hesitates to nullify the entire mortgage contract between United Overseas Bank (UOB) and JOS Management
Builders, Inc. (JOS), and opts instead for a tempered approach that only declares a partial invalidity of the
mortgage contract; it does so by relying on our ruling in the case of Far East Bank v. Marquez. 5
In this cited case, this Court — speaking through then Associate Justice Artemio Panganiban — held that the
subject of this litigation is limited only to the lot that the respondent bought; 6 he has no personality or standing
to bring suit on the whole property, as his actionable interest is only over the subject lot. 7 This kind of ruling,
of course, is the unscrupulous subdivision developer's dream as he thereby divides the opposition to his
fraudulent scheme into individual lot owners, many of whom can ill-afford to devote time and resources to the
formal assertion of their rights. SDHTEC
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While this Court was briefly enlightened in the subsequent case of Metropolitan Bank and Trust Company, Inc.
v. SLGT Holding, Inc., 8 the present case now resurrects the Marquez reasoning and thereby allows the
watering down of what Section 18, P.D. 957 forcefully commands. It is in the spirit of preventing this
retrogressive consequence that I now submit this Dissenting Opinion.
I outline below the reasons supporting my view.
First, the action in the present case assails the validity of the entire mortgage contract between UOB and JOS,
not solely the validity of the contract to sell between JOS and EDUPLAN, Inc. (EDUPLAN). While the contract
to sell between JOS and EDUPLAN gave the latter the legal right to assail the validity of the real estate
mortgage, that right is by no means limited to its juridical effect on EDUPLAN.
In other words, the principal issue pertains to the validity of the mortgage contract, not simply on its effect on
EDUPLAN as a buyer. The juridical effect on EDUPLAN only gives rise to the right to assail the validity of the
contract as a whole. As aptly stated by the eminent Civil Code Commentator, Senator Arturo Tolentino: 9
. . . any person may invoke the inexistence of the contract whenever its juridical effects founded thereon are
asserted against him. Thus, if there has been a void transfer of property, the transferor can recover it by accion
reinvidicatoria, and any possessor may refuse to deliver it to the transferee who cannot enforce the transfer.
Creditors may attach a property of the debtor, which has been alienated by the latter under a void contract; a
debtor can assert the nullity of an assignment of credit as a defense to an action by the assignee. . . .
The ponencia tried to wiggle out of this tight spot by stating that EDUPLAN has actionable interest solely on
the unit it bought. The ponencia's reasoning, however, is badly flawed for although the juridical effect of the
void mortgage contract condominium buyer is grounded on his purchased unit, it necessarily extends to the
completion of the entire project itself.
Section 2 of Republic Act 4726, otherwise known as the "Condominium Act" provides:
Sec. 2. A condominium is an interest in real property consisting of separate interest in a unit in a
residential, industrial or commercial building and an undivided interest in common, directly or indirectly, in the
land on which it is located and in other common areas of the building. A condominium may include, in addition,
a separate interest in other portions of such real property. Title to the common areas, including the land, or the
appurtenant interests in such areas, may be held by a corporation specially formed for the purpose
(hereinafter known as the "condominium corporation") in which the holders of separate interest shall
automatically be members or shareholders, to the exclusion of others, in proportion to the appurtenant interest
of their respective units in the common areas. . . . HSAcaE
While a buyer purchases a unit in a condominium project for independent use or ownership, 10 his interests
thereon are not limited to that livable space but extends to the entire project itself. These include the facilities,
improvements, infrastructures, and other forms of development, such as water supply and lighting facilities
offered and indicated in the condominium plan, brochure, prospectus, or in any form of advertisement. 11 All
these facilities and conveniences materially affect the buyer's investment and the level of use and enjoyment
of his unit.
So important is the interest of a condominium buyer to the completion of the project that public policy as
enshrined in P.D. 957 jealously protects it in its scattered provisions. In particular, P.D. 957 instructs the
Housing and Land Use Regulatory Board (HLURB) to ensure the financial viability of the owner of the lot
intended to be converted into a subdivision.
xxx xxx xxx
The owner or the real estate dealer interested in the sale of lots or units, respectively, in such subdivision
project or condominium project shall register the project with the Authority by filing therewith a sworn
registration statement containing the following information.
xxx xxx xxx
(e) A statement of the capitalization of the owner, including the authorized and outstanding amounts of
its capital stock and the proportion thereof which is paid up.
xxx xxx xxx
The following documents shall be attached to the registration statement:
xxx xxx xxx
CONSTI REV – FULL TEXT
(c) In case of a business firm, a balance sheet showing the amount and general character of its
assets and liabilities and a copy of its articles of incorporation or articles of partnership or association, as the
case may be, with all the amendments thereof and existing bylaws or instruments corresponding thereto.
xxx xxx xxx
Section 5. License to sell. — Such owner or dealer to whom has been issued a registration certificate shall
not, however, be authorized to sell any subdivision lot or condominium unit in the registered project unless he
shall have first obtained a license to sell the project within two weeks from the registration of such project.
AScHCD
The Authority, upon proper application therefor, shall issue to such owner or dealer of a registered project a
license to sell the project if, after an examination of the registration statement filed by said owner or dealer and
all the pertinent documents attached thereto, he is convinced that the owner or dealer is of good repute, that
his business is financially stable, and that the proposed sale of the subdivision lots or condominium units to
the public would not be fraudulent.
Section 6. Performance Bond. — No license to sell subdivision lots or condominium units shall be issued by
the Authority under Section 5 of this Decree unless the owner or dealer shall have filed an adequate
performance bond approved by said Authority to guarantee the construction and maintenance of the roads,
gutters, drainage, sewerage, water system, lighting systems, and full development of the subdivision project or
the condominium project and the compliance by the owner or dealer with the applicable laws and rules and
regulations.
The performance bond shall be executed in favor of the Republic of the Philippines and shall authorize the
Authority to use the proceeds thereof for the purposes of its undertaking in case of forfeiture as provided in
this Decree.
Similarly, Section 18 of P.D. 957 provides for the regulatory mechanisms precisely to minimize the risk of
noncompletion of the project and to protect the buyer's interest. In particular, it states that no mortgage on any
unit or lot shall be made by the owner or developer without prior written approval of the HLURB. Such
approval shall not be granted unless it is shown that the proceeds of the mortgage loan shall be used for the
development of the condominium or subdivision project and effective measures have been provided to ensure
such utilization.
The loan thus, is primarily intended to be a capital infusion to complete the project and not simply as a
respirator to a barely breathing developer, who or which does not possess the financial means and adequate
level of liquidity, and which only relies on leveraging its capital asset and revenues from pre-selling to sustain
the project.
The reason for this is that the last thing the State wants is an unfinished condominium project which has
surreptitiously been foreclosed by a financial institution. At that point, the buyer practically is left with no
recourse but to sue a defaulting developer for refund to recover his meager life savings while the mortgagee
bank could sleep at night in view of its secured credit. This Court precisely observed this scheme in
Metropolitan Bank and Trust Company, Inc. v. SLGT Holding, Inc., 12 where we stated: HESIcT
It happened before; it will likely happen again. A developer embarks on an aggressive marketing campaign
and succeeds in selling units in a yet to-be completed condominium project. Short of funds, the developer
borrows money from a bank and, without apprising the latter of the pre-selling transactions, mortgages the
condominium complex, but also without informing the buyers of the mortgage constitution. Saddled with debts,
the developer fails to meet its part of the bargain. The defaulting developer is soon sued by the fully paid unit
buyers for specific performance or refund and is threatened at the same time with a foreclosure of mortgage.
Having his hands full parrying legal blows from different directions, the developer seeks a declaration of
suspension of payment, followed by a petition for rehabilitation with suspension of action.
Second, it would have been different if EDUPLAN had opted for a partial release of the mortgage, instead of
seeking a declaration of its nullity. Such partial release, however, could have only been resorted to if the real
estate mortgage is valid, that is, obtained with the prior approval of the Housing and Land Use Regulatory
Board under Section 18 of P.D. 957. 13 In the absence of an HLURB approval, as in the present case, a
partial release of mortgage may not be availed of.
Mr. Justice Bersamin, in his concurring opinion, lamentably, supports the ponencia's reasoning and even
attempts to strengthen the arguments by generously citing Belo v. Philippine National Bank. 14
In citing Belo, 15 Mr. Justice Bersamin sought to impress upon this Court that the mortgage between JOS and
UOB is divisible considering that the principle of indivisibility of mortgages only applies to debtor-creditor
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relations. To further support his contention, Justice Bersamin cites the last sentence of Section 18 of P.D. 957
which provides that the buyer may, at his option, pay his installment for the lot or unit directly to the mortgagee
who shall apply the payments to the corresponding mortgage indebtedness secured by the particular lot or unit
being paid for, with a view to enabling said buyer to obtain title over the lot or unit promptly after full payment
thereof.
Unfortunately, in his earnestness to support the ponencia, Justice Bersamin glossed over the critical fact that
Belo was decided on a valid mortgage contract. In particular, in Belo, 16 this Court upheld the partial
redemption by the owner of the lot on a validly constituted mortgage. Justice Bersamin therefore suffered the
critical error of putting the cart before the horse and effectively assumed the divisibility of mortgage and the
remedy of partial release, to argue the validity of the mortgage itself. What he fatally overlooked, however, is
that these remedies are only available when the mortgage is validly constituted. AcICHD
Notably, this principle of partial release is likewise echoed in Section 18 of P.D. 957 which allows the buyer to
pay his installment for the unit directly to the mortgagee who shall apply the payments to the corresponding
mortgage indebtedness secured by the particular lot or unit being paid for, with a view to enabling said buyer
to obtain the title over the lot for validly constituted mortgages. This, however, mandates that the parties to the
mortgage secure the prior clearance from the HLURB before the constitution of mortgage. In the absence of
this mandatory provision of law, the remedies provided by divisibility and release are not available.
Third, as a void contract, the mortgage in favor of the UOB has no legal force and effect from the very
beginning; it is equivalent to a contract that has never been entered into and that cannot be validated by time
nor by ratification. 17 The contract produces no effect whatsoever either against or in favor of anyone; hence it
does not create, modify or extinguish the juridical relation to which it refers. 18 The nullity exists ipso jure, and
judgment of nullity would be merely declaratory. 19
In declaring a partial invalidity of the mortgage contract, the ponencia practically "gave effect" to a patently
void agreement with respect to buyers who fail to seek legal intervention to assail the validity of the real estate
mortgage. This kind of declaration goes against the concept of void agreements that, by law and by its nature,
should produce no civil effects. 20 This is the same principle that is taught to students in law schools as a
basic characteristic of void contracts. This cannot be overemphasized in void contracts which violate an
overriding public policy, such as in the present case, for to do so would interfere with an established interest of
society and injure public interest.
Moreover, the partial invalidity of mortgage goes against established principles of justice and equity, and
circumvents the very purpose of P.D. 957. The whereas clauses of P.D. 957 expressly state that:
WHEREAS, reports of alarming magnitude also show cases of swindling and fraudulent manipulations
perpetrated by unscrupulous subdivision and condominium sellers and operators, such as failure to deliver
titles to the buyers or titles free from liens and encumbrances, and to pay real estate taxes, and fraudulent
sales of the same subdivision lots to different innocent purchasers for value;
WHEREAS, these acts not only undermine the land and housing program of the government but also defeat
the objectives of the New Society, particularly the promotion of peace and order and the enhancement of the
economic, social and moral condition of the Filipino people; 21 caITAC
Fourth, the ponencia's reliance on the doctrine of in pari delicto in justifying the partial invalidity of the
mortgage is fatally flawed. The phrase means, in essence, that since both parties are equally at fault, the court
will not involve itself in resolving one side's claim over the other, and whoever possesses whatever is in
dispute may continue to do so in the absence of a superior claim. 22 Nonetheless, the application of the
doctrine of in pari delicto is not always rigid. An accepted exception arises when its application contravenes
well-established public policy. 23 As we held in Prudential Bank v. Panis. 24
Nonetheless, we apply our earlier rulings because we believe that as in pari delicto may not be invoked to
defeat the policy of the State neither may the doctrine of estoppel give a validating effect to a void contract.
Indeed, it is generally considered that as between parties to a contract, validity cannot be given to it by
estoppel if it is prohibited by law or is against public policy. It is not within the competence of any citizen to
barter away what public policy by law was to preserve. 25
The application of the principle of in pari delicto to the present case is fraught with danger. To validate the
present transaction on the basis of in pari delicto would open the flood gates to fraud, and much worse,
conspiracy, perpetuated by unscrupulous developers and financial institutions at the expense of condominium
buyers. An unscrupulous condominium developer without any substantial financial capacity to complete a
project could obtain a developer's loan from any financial institution by mortgaging certain parcels of land,
emboldened by the knowledge that the courts would leave them where they are until each of the condominium
CONSTI REV – FULL TEXT
buyers initiate an action to question the nullity of the mortgage. From a business standpoint, said practice is
worth the risk for the labyrinth of legalities often serve as a protective mantle for unsound business practices.
Translated to its practical effects, the result will prejudice buyers who do not have the resources to engage
their own counsel to defend their rights; at the very least, it will prejudice them to the extent of the time, money,
efforts, and resources they will use to protect their rights to the lots or units they have already paid for.
Fifth, the intent of P.D. 957 is to protect buyers from fraudulent manipulations perpetrated by unscrupulous
subdivision and condominium sellers and operators, and not large scale mortgages. In construing P.D. 957,
this Court must recognize this legislative policy to the fullest extent. Already, this Court has adopted and
articulated its full recognition and support for this intent in Philippine National Bank v. Office of the President
when it said: 26
Protection must be afforded small homeowners who toil and save if only to purchase on installment a tiny
home lot they can call their own. The consuming dream of every Filipino is to be able to buy a lot, no matter
how small, so that he may somehow build a house. It has, however, been seen of late that these honest, hard-
living individuals are taken advantage of, with the delivery of titles delayed, the subdivision facilities, including
the most essential such as water installations not completed, or worse yet, as in the instant case, after almost
completing the payments for the property and after constructing a house, the buyer is suddenly confronted by
the stark reality, contrived or otherwise, in which another person would now appear to be owner.
Let us not now return to this ruling and definitively reject other rulings that reject the salutary purposes of P.D.
957.
In these lights, I vote to DENY the petition. TAIaHE
BERSAMIN, J., concurring:
The legal issue for resolution concerns the validity of the mortgage constituted between petitioner bank and
respondent developer of a condominium project under Section 18 of Presidential Decree No. 957 (The
Subdivision and Condominium Buyers' Protective Decree) to secure the performance of the latter's obligations
in favor of the former.
Our relevant existing jurisprudence is settled insofar as declaring that the failure to obtain the prior written
approval of the Housing and Land Use Regulatory Board (HLURB) renders the mortgage null and void.
However, a conflict exists as to the extent of the nullity of the mortgage.
On the one hand, the Court has pronounced in Metropolitan Bank and Trust Co., Inc. v. SLGT Holdings, Inc. 1
that the nullity extends to the entire mortgage, opining:
. . . This disposition stems from the basic postulate that a mortgage contract is, by nature, indivisible.
Consequent to this feature, a debtor cannot ask for the release of any portion of the mortgaged property or of
one or some of the several properties mortgaged unless and until the loan thus secured has been fully paid,
notwithstanding the fact that there has been partial fulfillment of the obligation. Hence, it is provided that the
debtor who has paid a part of the debt cannot ask for the proportionate extinguishments of the mortgage as
long as the debt is not completely satisfied.
The situation obtaining in the case at bench is within the purview of the aforesaid rule on the indivisibility of
mortgage. It may be that Section 18 of PD 957 allows partial redemption of the mortgage in the sense that the
buyer is entitled to pay his installment for the lot or unit directly to the mortgagee so as to enable him — the
said buyer — to obtain title over the lot or unit after full payment thereof. Such accommodation statutorily given
to a unit/lot buyer does not, however, render the mortgage contract also divisible. Generally, the divisibility of
the principal obligation is not affected by the indivisibility of the mortgage. The real estate mortgage voluntarily
constituted by the debtor (ASB) on the lots or units is one and indivisible. In this case, the mortgage contract
executed between ASB and the petitioner bank is considered indivisible, that is, it cannot be divided among
the different buildings or units of the Project. Necessarily, partial extinguishment of the mortgage cannot be
allowed. In the same token, the annulment of the mortgage is an all or nothing proposition. It cannot be divided
into valid or invalid parts. The mortgage is either valid in its entirety or not valid at all. In the present case,
there is doubtless only one mortgage to speak of. Ergo, a declaration of nullity for violation of Section 18 of PD
957 should result to the mortgage being nullified wholly. 2
On the other hand, the Court has ruled in Far East Bank and Trust Co. v. Marquez 3 that the mortgage is void
only with respect to the portion of the property under mortgage that is the subject of the litigation, explaining:
The lot was mortgaged in violation of Section 18 of PD 957. Respondent, who was the buyer of the property,
was not notified of the mortgage before the release of the loan proceeds by petitioner. Acts executed against
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JULY 11, 2019
the provisions of mandatory or prohibitory laws shall be void. Hence, the mortgage over the lot is null and void
insofar as private respondent is concerned.
The remedy granted by the HLURB and sustained by the Office of the President is proper only insofar as it
refers to the lot of respondent. In short, the mortgage contract is void as against him. Since there is no law
stating the specifics of what should be done under the circumstances, that which is in accord with equity
should be ordered. The remedy granted by the HLURB in the first and the second paragraphs of the
dispositive portion of its Decision insofar as it referred to respondent's lot is in accord with equity.
The HLURB, however, went overboard in its disposition in paragraphs 3 and 4, which pertained not only to the
lot but to the entire parcel of land mortgaged. Such ruling was improper. The subject of this litigation is limited
only to the lot that respondent is buying, not to the entire parcel of land. He has no personality or standing to
bring suit on the whole property, as he has actionable interest over the subject lot only. 4 ICHDca
Far East Bank and Trust Co. v. Marquez has been reiterated in Philippine National Bank v. Lim. 5
Before resolving the conflict, let us look at the established facts of this case.
Respondent EDUPLAN Philippines, Inc. (EDUPLAN) bought a condominium unit with an area of 149.72
square meters, more or less, known as Unit E located in the 10th Floor of the Aurora Milestone Tower, from
respondent J.O.S. Managing Builders, Inc. (J.O.S. Managing Builders) under a contract to sell. In August
1998, EDUPLAN effected full payment; hence, J.O.S. Managing Builders and EDUPLAN executed their deed
of absolute sale in December 1998. Despite the execution of the deed of absolute sale, J.O.S. Managing
Builders did not deliver the condominium certificate of title to EDUPLAN, which, in due time, discovered that
the lots on which the condominium project was being constructed had been made the subject of the mortgage
by J.O.S. Managing Builders in favor of United Overseas Bank without the prior written approval of the
HLURB.
Consequently, EDUPLAN filed its complaint for specific performance and damages against J.O.S. Managing
Builders and United Overseas Bank in the HLURB, praying, among others, that the mortgage between J.O.S.
Managing Builders and United Overseas Bank be declared null and void.
On August 15, 2001, the HLURB Arbiter rendered a decision declaring, inter alia, that the mortgage between
J.O.S. Managing Builders and United Overseas Bank and the foreclosure of the mortgage were null and void
for being in violation of Section 18 of P.D. No. 957.
United Overseas Bank brought its petition for review to the HLURB Board of Commissioners, which, on August
20, 2004, affirmed the HLURB Arbiter's decision with modification.
United Overseas Bank elevated the case to the Court of Appeals (CA), which affirmed the HLURB Board of
Commissioners through the now assailed judgment promulgated on February 27, 2006.
The CA also denied United Overseas Bank's motion for reconsideration, observing that United Overseas Bank
did not exhaust administrative remedies due to its failure to appeal the decision of the HLURB Board of
Commissioners to the Office of the President before filing its petition for review in the CA.
In its present appeal, United Overseas Bank raises as the lone error of the CA the refusal to apply the
exception to the doctrine of exhaustion of administrative remedies.
The very erudite main opinion written by Justice Peralta considers the petition meritorious. Firstly, it says that
this case presents a purely legal question — whether failure to obtain prior written approval of the HLURB
would result to the nullification of the entire mortgage contract — that will eventually be decided by the courts.
With the presence of such recognized exception, the rule on exhaustion of administrative remedies need not
strictly apply. It insists anent the legal issue that the HLURB erred in declaring the entire mortgage executed
between J.O.S. Managing Builders and United Overseas Bank null and void in view of the pronouncement in
Philippine National Bank v. Lim because although the mortgage could be nullified if it was in violation of
Section 18 of P.D. No. 957, the nullification should apply only to the interest of the complaining buyer, and
should not extend to the entire mortgage considering that the buyer of a particular unit or lot has no standing
to ask for the nullification of the entire mortgage. It explains that the principle of indivisibility of mortgage under
Article 2089 of the Civil Code cannot be applied herein because Section 18 of P.D. No. 957 expressly allows
the proportionate extinguishment of a mortgage upon payment of the debt corresponding to the lot or unit of a
particular buyer; that it follows that the mortgage can be partially nullified insofar as it affects the complaining
party; and that the mortgage executed and the succeeding foreclosure proceedings between J.O.S. Managing
Builders and United Overseas Bank were consequently null and void only with respect to EDUPLAN's Unit E
at the 10th Floor of the Aurora Milestone Tower. cDHAES
CONSTI REV – FULL TEXT
I CONCUR with the main opinion in its declaration that the mortgage contract between J.O.S. Managing
Builders and United Overseas Bank should be declared null and void only insofar as it concerns EDUPLAN's
condominium unit.
The general rule that a mortgage is an indivisible contract 6 applies only between the contracting parties
where a debtor-creditor relationship exists. This the Court has made clear in Belo v. Philippine National Bank,
7 declaring:
There is no dispute that the mortgage on the four (4) parcels of land by the Eslabon spouses and the other
mortgage on the property of Eduarda Belo both secure the loan obligation of respondents spouses Eslabon to
respondent PNB. However, we are not persuaded by the contention of the respondent PNB that the
indivisibility concept applies to the right of redemption of an accommodation mortgagor and her assignees.
The jurisprudence in Philippine National Bank v. Agudelo is enlightening to the case at bar, to wit:
xxx xxx xxx
However, Paz Agudelo y Gonzaga (the principal) . . . gave her consent to the lien on lot No. 878 . . . . This
acknowledgment, however, does not extend to lots Nos. 207 and 61 . . . inasmuch as, although it is true that a
mortgage is indivisible as to the contracting parties and as to their successors in interest (Article 1860, Civil
Code), it is not so with respect to a third person who did not take part in the constitution thereof either
personally or through an agent . . . . Therefore, the only liability of the defendant-appellant Paz Agudelo y
Gonzaga is that which arises from the aforesaid acknowledgment but only with respect to the lien and not to
the principal obligation secured by the mortgage acknowledged by her to have been constituted on said lot No.
878 . . . . Such liability is not direct but a subsidiary one.
xxx xxx xxx
Wherefore, it is hereby held that the liability contracted by the aforesaid defendant-appellant Paz Agudelo y
Gonzaga is merely subsidiary to that of Mauro A. Garrucho (the agent), limited to lot No. 87.
xxx xxx xxx
From the wordings of the law, indivisibility arises only when there is a debt, that is, there is a debtor-creditor
relationship. But, this relationship is wanting in the case at bar in the sense that petitioners are assignees of an
accommodation mortgagor and not of a debtor-mortgagor. Hence, it is fair and logical to allow the petitioners
to redeem only the property belonging to their assignor, Eduarda Belo.
Although the concept of indivisibility does not apply to the unit buyers of the condominium project because
they are not parties to the principal contract of loan and the mortgage, the agreements that they enter into with
the developer nevertheless affect the nature of the mortgage. In consideration of the agreements and
conformably with the governing law, I humbly opine that the mortgage contract between J.O.S. Managing
Builders and United Overseas Bank is not indivisible in this context.
To begin with, there are certain factors that may be considered to properly determine whether an obligation is
divisible or indivisible, namely: (1) the will or intention of the parties, which may be express or presumed; (2)
the objective or purpose of the stipulated prestation; (3) the nature of the thing; and (4) provisions of law
affecting the prestation. 8
In a real estate mortgage, the object or prestation does not refer to the lots or units mortgaged, but to the
security given by the debtor to the creditor to guarantee the fulfillment of the principal obligation. However,
unlike in the case of ordinary mortgage contracts, the provisions of P.D. No. 957 are embedded in the
mortgage contract between J.O.S. Managing Builders and United Overseas Bank, particularly Section 18
which states:
Section 18. Mortgages. No mortgage on any unit or lot shall be made by the owner or developer without prior
written approval of the Authority. Such approval shall not be granted unless it is shown that the proceeds of the
mortgage loan shall be used for the development of the condominium or subdivision project and effective
measures have been provided to ensure such utilization. The loan value of each lot or unit covered by the
mortgage shall be determined and the buyer thereof, if any, shall be notified before the release of the loan.
The buyer may, at his option, pay his installment for the lot or unit directly to the mortgagee who shall apply
the payments to the corresponding mortgage indebtedness secured by the particular lot or unit being paid for,
with a view to enabling said buyer to obtain title over the lot or unit promptly after full payment thereto.
TCAScE
It is easily discernible from Section 18 that the partial extinguishment of the mortgage corresponding to a
particular lot or unit that is meanwhile fully paid for is expressly permitted. As such, Section 18 affects the
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prestation of the mortgage because it releases a portion that no longer belongs to the mortgagor-developer
and thus ceases to be the object of its mortgage. 9 In short, Section 18 of P.D. No. 957 renders mortgages of
this nature divisible.
By virtue of Section 18 of P.D. No. 957, the parties of the mortgage become bound to respect the agreements
from which the rights of lot or unit buyers arise. The Court has fittingly observed in Philippine National Bank v.
Dee: 10
Nevertheless, despite the apparent validity of the mortgage between the petitioner and PEPI, the former is still
bound to respect the transactions between respondents PEPI and Dee. The petitioner was well aware that the
properties mortgaged by PEPI were also the subject of existing contracts to sell with other buyers. While it
may be that the petitioner is protected by Act No. 3135, as amended, it cannot claim any superior right as
against the installment buyers. This is because the contract between the respondents is protected by P.D. No.
957, a social justice measure enacted primarily to protect innocent lot buyers. Thus, in Luzon Development
Bank v. Enriquez, the Court reiterated the rule that a bank dealing with a property that is already subject of a
contract to sell and is protected by the provisions of P.D. No. 957, is bound by the contract to sell.
However, the transferee BANK is bound by the Contract to Sell and has to respect Enriquez's rights
thereunder. This is because the Contract to Sell, involving a subdivision lot, is covered and protected by PD
957. . . . .
xxx xxx xxx
. . . Under these circumstances, the BANK knew or should have known of the possibility and risk that the
assigned properties were already covered by existing contracts to sell in favor of subdivision lot buyers. As
observed by the Court in another case involving a bank regarding a subdivision lot that was already subject of
a contract to sell with a third party:
[The Bank] should have considered that it was dealing with a property subject of a real estate development
project. A reasonable person, particularly a financial institution . . ., should have been aware that, to finance
the project, funds other than those obtained from the loan could have been used to serve the purpose, albeit
partially. Hence, there was a need to verify whether any part of the property was already intended to be the
subject of any other contract involving buyers or potential buyers. In granting the loan, [the Bank] should not
have been content merely with a clean title, considering the presence of circumstances indicating the need for
a thorough investigation of the existence of buyers . . . . Wanting in care and prudence, the [Bank] cannot be
deemed to be an innocent mortgagee. . . .
The possibility exists that the developer's principal obligation with the financial institution will eventually
become unsecured should all unit buyers of the condominium project effect full payment. In consideration of
this possibility, the mortgage between J.O.S. Managing Builders and United Overseas Bank should be
construed as divisible instead of indivisible. Hence, the nullity of the mortgage contract should be confined
only to the interest of the complaining buyer, EDUPLAN. ASEcHI
I should stress that the right to set up the nullity of a void or non-existent contract is not limited to the parties,
as in the case of annullable or voidable contracts. Under Article 1421 of the Civil Code, the defense of the
illegality of a contract is available to third persons whose interests are directly affected. 11
The interests of EDUPLAN, while not a party to the mortgage contract between J.O.S. Managing Builders and
United Overseas Bank, are directly affected if the mortgage and its foreclosure were to be upheld. Even so,
EDUPLAN, not being directly injured by the foreclosure of the other units, has no right to bring an action in
behalf of the other unit buyers because its actionable interest is limited to its purchased unit. Indeed, Section
2, Rule 3 of the Rules of Court generally limits the right of action only to the real party-in-interest, viz.:
Sec. 2. Parties in interest. — A real party in interest is the party who stands to be benefited or injured by
the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or
these Rules, every action must be prosecuted or defended in the name of the real party in interest.
Interest within the meaning of this rule means material interest, or an interest in issue to be affected by the
decree or judgment of the case, as distinguished from mere curiosity about the question involved. Accordingly,
a real party in interest is the party who, by the substantive law, has the right sought to be enforced. 12
Following Philippine National Bank v. Lim, supra, the HLURB really went overboard in voiding the entire
mortgage without an action being filed by all the real parties in interest.
The fear exists that this interpretation may result in the filing of multiple actions for the annulment of mortgage
and foreclosure proceedings by unit buyers of condominium projects. The situation is not necessarily adverse
to procedural orderliness, however, because the Rules of Court may partly address it under the rule on the
CONSTI REV – FULL TEXT
permissive joinder of parties. Thus, Rule 3, Section 6 of the Rules of Court, which embodies the rule on
permissive joinder of parties, states:
Sec. 6. Permissive joinder of parties. — All persons in whom or against whom any right to relief in respect
to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally,
or in the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be joined as
defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such
defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff
or defendant from being embarrassed or put to expense in connection with any proceedings in which he may
have no interest.
IN VIEW OF THE FOREGOING, I vote to GRANT the petition for review on certiorari.
LEONEN, J., concurring and dissenting:
The case involves the doctrines on exhaustion of administrative remedies and void mortgage contracts under
Section 18 of Presidential Decree No. 957. 1
This is a Petition for Review on Certiorari assailing the Decision dated February 27, 2006 and Resolution
dated March 5, 2008 of the Court of Appeals in CA-G.R. SP No. 86401. 2 The Court of Appeals dismissed
petitioner's Petition for Review under Rule 43 of the Rules of Court for failure to exhaust administrative
remedies available to petitioner.
Respondent J.O.S. Managing Builders, Inc. (JOS) is the registered owner and developer of Aurora Milestone
Tower (the condominium project). 3 The condominium project is located on Aurora Boulevard, Quezon City.
JOS mortgaged the condominium project, among other properties, to Far East Bank and Trust Co. (Far East).
The properties were security for JOS' loan of P112,002,000.00. cTDaEH
However, as requested by JOS, petitioner United Overseas Bank (UOB) assumed the indebtedness of JOS
with Far East. 4 The mortgage was released on April 15, 1997 for P200 million, which represented JOS'
principal loan plus interest: The mortgaged properties' transfer certificates of title were delivered to UOB as the
new mortgagee. UOB did not secure a mortgage clearance from the Housing and Land Use Regulatory Board
(HLURB).
JOS failed to pay its loan with UOB. 5 The real estate mortgage was then foreclosed, and UOB was declared
as the highest bidder in the public auction held on March 22, 1999. 6
In the meantime, on December 16, 1997, JOS and EDUPLAN Phils., Inc. (EDUPLAN) entered into a contract
to sell. 7 The contract covered Unit E, 10th Floor of the condominium project. The cost of the unit was
P9,028,116.00 payable in installments within six (6) years.
EDUPLAN fully paid JOS on August 24, 1998. 8 The parties then executed a Deed of Absolute Sale 9 where it
was disclosed that there was a mortgage lien in favor of UOB. 10
JOS was not able to issue the individual condominium certificate of title in favor of EDUPLAN as UOB had
custody of the transfer certificate of title covering the condominium building. 11
On February 11, 2000, EDUPLAN filed a Complaint for specific performance and damages against JOS and
UOB before the HLURB Arbiter. 12 The Complaint prayed for the following reliefs:
(a) that the mortgage between JOS and UOB be declared void; (b) that [JOS and EDUPLAN] be
compelled to issue and release the condominium certificate of title; and (c) that JOS be ordered to provide
emergency power facilities, to refund the monthly telephone carrier charges, and to permanently cease and
desist from further collecting such charges. 13
The HLURB Arbiter issued a Decision in favor of EDUPLAN on August 15, 2001. 14 The Decision declared
that the mortgage between JOS and UOB, including the foreclosure proceedings, was void for violating
Section 18 of Presidential Decree No. 957. Moreover, the HLURB Arbiter ruled that since EDUPLAN had
already fully paid for the condominium unit, JOS and UOB should cause the release of the title to the
condominium building or the "mother title" free from all liens and encumbrances in connection with Section 25
of Presidential Decree No. 957. The HLURB Arbiter also held that JOS should provide emergency power
facilities to EDUPLAN in consonance with its sales brochure. JOS should also refund monthly telephone
carrier charges from September 1, 1999 to EDUPLAN, and stop the collection of such fees.
In addition, JOS should pay UOB the loan release value of EDUPLAN's unit. JOS was also held liable for
damages, attorney's fees, and the costs of suit. 15
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Upon UOB's filing of its Petition for Review, the HLURB Board of Commissioners affirmed with modification the
HLURB Arbiter's Decision. 16 According to the Board of Commissioners, EDUPLAN was entitled to the
delivery of the title of the fully paid unit under Section 25 of Presidential Decree No. 957. 17 JOS had the legal
obligation to cause the release of titles despite non-payment of its loan with UOB. 18
The Board of Commissioners also ruled that JOS and UOB violated Section 18 of Presidential Decree No. 957
for not securing the Board's prior approval before the mortgage was executed. 19 However, the Board of
Commissioners found that there was no basis to support the refund of the payment for telephone carrier
services and the order of desistance to collect such and other similar fees. 20
The dispositive portion of the August 20, 2004 Decision of the Board of Commissioners provides: ITAaHc
In the light of the foregoing premises, the decision of the Office Below is hereby modified as follows:
1. The mortgage executed by Respondent J.O.S. Managing Builders in favor of Respondent United
Overseas Bank (Westmont), including the foreclosure of the mortgage, is declared as null and void for being in
violation of Section 18 of Presidential Decree No. 957.
2. Respondent JOS is ordered to cause the release of the mother titles to the Aurora Milestone Tower
condominium building from the mortgage held by Respondent Westmont and to issue an individual
Condominium Certificate of Title to Complainant over its condominium unit, free from any and all liens and
encumbrances.
3. Respondent JOS is ordered to pay the Complainant P100,000.00 by way of temperate damages;
P50,000.00 by way of exemplary damages; P40,000.00 as and by way of Attorney's Fees; and the costs of
suit.
4. Respondent J.O.S. is ordered to pay respondent Westmont the loan release value of
complainant's condominium unit.
5. All other claims are hereby dismissed.
So ordered. 21
As stated earlier, UOB filed a Petition for Review under Rule 43 of the Rules of Court before the Court of
Appeals. The Court of Appeals dismissed the Petition for its belated filing and for failing to exhaust
administrative remedies. 22 According to the Court of Appeals, the proper recourse of UOB was to file the
appeal of the Board of Commissioners' Decision before the Office of the President within 15 days from receipt
of the Decision. 23
On Motion for Reconsideration, the Court of Appeals affirmed its earlier Decision. 24 However, it reconsidered
its finding that the Petition was filed out of time. 25 The Court of Appeals also ruled that UOB's argument
involving a purely legal question was raised for the first time in its Motion and Supplemental Motion for
Reconsideration. 26
The present Petition was filed before this court on May 5, 2008. 27 This court resolved to require JOS and
EDUPLAN to submit their Comment on July 16, 2008. 28
After receipt of JOS' and EDUPLAN's Comments dated September 11, 2008 and February 11, 2009,
respectively, this court granted UOB's Motion for leave and extension of 15 days to file a consolidated Reply.
29
UOB's consolidated Reply was noted on June 3, 2009. 30
UOB raised the lone issue of whether the Court of Appeals erred in not applying the exception to the doctrine
of exhaustion of administrative remedies. However, as noted by the ponencia, the more important issue at
hand is whether the HLURB's nullification of the entire mortgage over the condominium project is proper.
UOB argued that the issues it raised before the Court of Appeals were purely legal, with this being a proper
exception to the doctrine of exhaustion of administrative remedies. 31 The Court of Appeals erred in
dismissing the Petition for Review and calling UOB's argument on the exception to the doctrine of exhaustion
of administrative remedies a "mere afterthought" since UOB raised issues on HLURB's jurisdiction and on the
patent illegality of HLURB's actions. 32
According to UOB, the HLURB went overboard or went beyond its jurisdiction when it declared the entire
mortgage void. 33 Citing Far East Bank & Trust Co. v. Marquez, 34 UOB claimed that the mortgage should be
CONSTI REV – FULL TEXT
declared void only as to Unit E, 10th Floor, Aurora Milestone Tower, or EDUPLAN's unit, since EDUPLAN did
not have any claim over other units covered by the mortgage. 35
Furthermore, the burden to comply with Section 18 of Presidential Decree No. 957 rests on JOS and not on
UOB, thus, JOS cannot rely on the law to renege on its loan obligations. 36 To allow JOS to do so would
"allow JOS to profit from its own misdeed." 37
On the other hand, EDUPLAN claimed in its Comment that UOB's argument of exception to the rule of
exhaustion of administrative remedies "was a mere afterthought." 38 UOB had all the opportunity to invoke
questions of law. However, it remained silent to its detriment. 39 EDUPLAN prayed that this court dismiss the
Petition for lack of merit. 40
Likewise, JOS argued that UOB fatally erred when it appealed the Decision of the HLURB Board of
Commissioners to the Court of Appeals instead of the Office of the President, which the rules specifically
provide. 41 This Petition should also be denied as UOB belatedly claimed an exception to the doctrine of
exhaustion of administrative remedies. 42 Nevertheless, there is no purely legal question involved, thus, the
exception is inexistent. 43
At the outset, what is only questioned in this Petition is the validity of the Court of Appeals' ruling with regard to
the existence of an exception to the doctrine of exhaustion of administrative remedies. However, in view of the
importance of the issues involved, this court must go beyond the issues brought by the parties to this forum.
cSaATC
The doctrine of exhaustion of administrative remedies is already settled in this jurisdiction. 44 UOB admitted
that it raised the exception to the doctrine in its Motion for Reconsideration filed before the Court of Appeals
after the court had already ruled on the propriety of DOB's appeal. 45
I concur with the ponencia when it held that an exception to the doctrine of administrative remedies exists in
this case, specifically that the main issue involves a legal question that only the courts may address. 46 This
opinion shall focus on the legality of the nullification of the entire mortgage over the condominium project.
Presidential Decree No. 957 stands as legislation that promotes the enforcement of social justice. 47 It
occupies a unique place in this jurisdiction wherein economic considerations are trumped by the need to
protect unit or lot buyers with the view of ensuring improvement in the quality of life of Filipinos. 48
Section 18 of this law provides:
SECTION 18. Mortgages. No mortgage on any unit or lot shall be made by the owner or developer
without prior written approval of the Authority. Such approval shall not be granted unless it is shown that the
proceeds of the mortgage loan shall be used for the development of the condominium or subdivision project
and effective measures have been provided to ensure such utilization. The loan value of each lot or unit
covered by the mortgage shall be determined and the buyer thereof, if any, shall be notified before the release
of the loan. The buyer may, at his option, pay his installment for the lot or unit directly to the mortgagee who
shall apply the payments to the corresponding mortgage indebtedness secured by the particular lot or unit
being paid for, with a view to enabling said buyer to obtain title over the lot or unit promptly after full payment
thereto;
With Section 18 of Presidential Decree No. 957 being a prohibitory law, 49 acts done contrary to its provisions
are invalid. 50
I concur with the ponencia when it held that the lack of mortgage clearance from the HLURB in this case
resulted in the nullity of the mortgage under Section 18 of Presidential Decree No. 957. 51
However, I disagree with the conclusion that the HLURB erred in declaring the entire mortgage void. In
refusing to declare the entire mortgage void, the ponencia cites Far East Bank & Trust Co. v. Marquez, 52
which was reiterated in Philippine National Bank v. Lim. 53
It is true that Far East Bank ruled that the HLURB went overboard in declaring the mortgage over the entire
land void. The court reasoned that respondent-buyer had "no personality standing to bring suit on the whole
property, as he has actionable interest over the subject lot only." 54 Similarly, Philippine National Bank had
language which states that:
[W]hile it is within Lim's right to file a complaint before the HLURB to protect her right as a condominium unit
buyer, she has no standing to seek for the complete nullification of the subject mortgage. She has an
actionable interest only over Unit 48C of Cluster Dominiko of Vista de Loro, no more and no less. 55
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Philippine National Bank, however, involved a peculiar set of facts. It involved the application of res judicata
wherein this court previously upheld the trial court's decision that the mortgage contract over the subject
properties was merely voidable and not void. Thus, the mortgage was held valid between the developer and
the bank. 56 CHTAIc
The principal obligation, i.e., the loan contract of JOS, is different from the mortgage constituted over the lots
and its improvements. The loan obligation, in turn, is separate from the developer's obligation to deliver the
property to the buyers.
The divisibility of the principal obligation is, thus, distinct from the indivisibility of the mortgage. 57 The
mortgage contract cannot be divided among the different lots or units. 58 To rule that the nullity of the
mortgage contract under Section 18 of Presidential Decree No. 957 only applies to the property of the lot or
unit owner bringing the case implies that the mortgage is divisible among the properties it covers.
Article 2089 of the Civil Code provides:
Art. 2089. A pledge or mortgage is indivisible, even though the debt may be divided among the successors in
interest of the debtor or of the creditor.
In Metropolitan Bank and Trust Company, Inc. v. SLGT Holdings, Inc., 59 this court definitively ruled on the
issue of the nullity of the entire mortgage contract under Section 18 of Presidential Decree No. 957. Thus:
This disposition stems from the basic postulate that a mortgage contract is, by nature, indivisible. Consequent
to this feature, a debtor cannot ask for the release of any portion of the mortgaged property or of one or some
of the several properties mortgaged unless and until the loan thus secured has been fully paid,
notwithstanding the fact that there has been partial fulfillment of the obligation. Hence, it is provided that the
debtor who has paid a part of the debt cannot ask for the proportionate extinguishments of the mortgage as
long as the debt is not completely satisfied.
The situation obtaining in the case at bench is within the purview of the aforesaid rule on the indivisibility of
mortgage. It may be that Section 18 of PD 957 allows partial redemption of the mortgage in the sense that the
buyer is entitled to pay his installment for the lot or unit directly to the mortgagee so as to enable him — the
said buyer — to obtain title over the lot or unit after full payment thereof. Such accommodation statutorily given
to a unit/lot buyer does not, however, render the mortgage contract also divisible. Generally, the divisibility of
the principal obligation is not affected by the indivisibility of the mortgage. The real estate mortgage voluntarily
constituted by the debtor (ASB) on the lots or units is one and indivisible. In this case, the mortgage contract
executed between ASB and the petitioner banks is considered indivisible, that is, it cannot be divided among
the different buildings or units of the Project. Necessarily, partial extinguishment of the mortgage cannot be
allowed. In the same token, the annulment of the mortgage is an all or nothing proposition. It cannot be divided
into valid or invalid parts. The mortgage is either valid in its entirety or not valid at all. In the present case,
there is doubtless only one mortgage to speak of. Ergo, a declaration of nullity for violation of Section 18 of PD
957 should result to the mortgage being nullified wholly. 60 (Emphasis supplied) cHDAIS
In Luzon Development Bank v. Enriquez, 61 this court again nullified the entire mortgage, constituted over
several parcels of land, notwithstanding the dacion en pago executed between the developer and petitioner
bank. Among the properties included as security for the developer's loan was respondent's Lot 4. The court
upheld the law's intent to protect subdivision lot or condominium unit buyers above everything else. 62 The
nullity was in accordance with Section 18 of Presidential Decree No. 957 and was unqualified as to extent of
the nullity. 63 Citing Metropolitan Bank and Trust Company, Inc.:
As the HLURB Arbiter and Board of Commissioners both found, DELTA violated Section 18 of PD 957 in
mortgaging the properties in Delta Homes I (including Lot 4) to the BANK without prior clearance from the
HLURB. . . .
This violation of Section 18 renders the mortgage executed by DELTA void. We have held before that "a
mortgage contract executed in breach of Section 18 of [PD 957] is null and void." Considering that "PD 957
aims to protect innocent subdivision lot and condominium unit buyers against fraudulent real estate practices,"
we have construed Section 18 thereof as "prohibitory and acts committed contrary to it are void."
Because of the nullity of the mortgage, neither DELTA nor the BANK could assert any right arising therefrom.
The BANK's loan of P8 million to DELTA has effectively become unsecured due to the nullity of the mortgage. .
. . 64 (Emphasis supplied, citations omitted)
To construe Section 18 of Presidential Decree No. 957 to mean that only those buyers or owners who brought
a claim against the developer and mortgagee bank should be entitled to the nullity of the mortgage would be to
undermine the purpose of the law: protection of real estate buyers. 65 The declaration of nullity of only a part
CONSTI REV – FULL TEXT JULY 11, 2019

of the mortgage contract furthermore encourages litigation and circumvention of the clear provisions of the 10. P.D. 957, Section 2 (b) "Unit" means a part of the condominium project intended for any type of independent use or
law. 66 ownership, including one or more rooms or spaces located in one or more floors (or part or parts of floors) in a building or
buildings and such accessories as may be appended thereto."
The interpretation in the ponencia will mean sanctioning partial mortgage releases. It will require all buyers of 11. Section 19, P.D. 957.
condominium projects to file their own cases to nullify a void mortgage over their property and claim release of 12. Supra note 8.
13. SEC. 18. Mortgages. — No mortgage on any unit or lot shall be made by the owner or developer without prior
their titles. Innocent lot or unit buyers will be left vulnerable to the whims and manipulations of the developer written approval of the Authority. Such approval shall not be granted unless it is shown that the proceeds of the mortgage loan
and/or the mortgagee. EATCcI shall be used for the development of the condominium or subdivision project and effective measures have been provided to
ensure such utilization. The loan value of each lot or unit covered by the mortgage shall be determined and the buyer thereof, if
Another unintended consequence of the majority's decision is the weakening of HLURB's regulatory functions. any, shall be notified before the release of the loan. The buyer may, at his option, pay his installment for the lot or unit directly to
Developers will take advantage of the ambiguity that the allowance of partial mortgage releases will create. the mortgagee who shall apply the payments to the corresponding mortgage indebtedness secured by the particular lot or unit
being paid for, with a view to enabling said buyer to obtain title over the lot or unit promptly after full payment thereof. See also
It is the court's duty to interpret the law as intended by the legislature. As stated before, "[t]he lofty aspirations Section 4 par 4(d), (Id.) which states that in case any subdivision lot or condominium unit is mortgaged, it is sufficient if the
of P.D. No. 957 should be read in every provision of the statute, in every contract that undermines its objects, instrument of mortgage contains a stipulation that the mortgagee shall release the mortgage on any subdivision lot or
in every transaction which threatens its fruition." 67 The law is a tool for social justice. Circumvention should condominium unit as soon as the full purchase price for the same is paid by the buyer. [Emphasis supplied]
not be tolerated. 68 14. G.R. No. 134330, March 1, 2001, 353 SCRA 359.
15. Id.
The HLURB, therefore, acted within its powers when it nullified the entire mortgage, as well as the foreclosure 16. Id.
proceedings. 69 Consequently, the title to EDUPLAN's Unit E, 10th Floor, Aurora Milestone Tower should be 17. Supra note 9.
issued pursuant to Section 25 of Presidential Decree No. 957. 70 18. Id.
19. Id.
ACCORDINGLY, I vote that the Petition be DENIED. The Decision dated February 27, 2006 and Resolution 20. Id. at 629.
21. Emphasis supplied.
dated March 5, 2008 of the Court of Appeals in CA-G.R. SP No. 86401, insofar as it dismissed the Petition for
22. http://en.wikipedia.org/wiki/In_pari_delicto.
Review of the Housing and Land Use Regulatory Board Decision dated August 20, 2004, should be 23. Gonzalo v. Tarnate, G.R. No. 160600, January 15, 2014.
AFFIRMED. The mortgage constituted over the Aurora Milestone Tower by respondent J.O.S. Managing 24. G.R. No. L-50008 August 31, 1987, 153 SCRA 390.
Builders, Inc. with petitioner United Overseas Bank of the Philippines, Inc. is void in its entirety. 25. Citations omitted.
26. Supra note 4.
Footnotes BERSAMIN, J., concurring:
* On leave. 1. G.R. Nos. 175181-82 and G.R. Nos. 175354 & 175387-88, September 14, 2007, 533 SCRA 516.
1. Penned by Associate Justice Portia Aliño-Hormachuelos, with Associate Justices Amelita G. Tolentino and Vicente 2. Id. at 527-528.
S.E. Veloso, concurring; rollo, pp. 15-22. 3. G.R. No. 147964, January 20, 2004, 420 SCRA 349.
2. Rollo, pp. 24-29. 4. Id. at 357-358.
3. CA rollo, pp. 102-103. 5. G.R. No. 171677, January 30, 2013, 689 SCRA 523.
4. This amount was later on increased to PhP250,000,000.00 by virtue of an Amendment of Real Estate Mortgage, id. 6. Article 2089, Civil Code.
at 105. 7. G.R. No. 134330, March 1, 2001, 353 SCRA 359, 378-379.
5. CA rollo, pp. 52-63. 8. IV Tolentino, Civil Code of the Philippines, (1999), p. 255.
6. The Subdivision and Condominium Buyers' Protective Decree. 9. Article 2085, Civil Code.
7. Rollo, pp. 23-25. 10. G.R. No. 182128, February 19, 2014, 717 SCRA 14, 25-26.
8. Id. at 15-22. 11. See also Heirs of Policronio M. Ureta, Sr. v. Heirs of Liberato M. Ureta, G.R. No. 165748, September 14, 2011, 657
9. Id. at 24-29. SCRA 555, 589.
10. Id. at 37. 12. Ang v. Ang, G.R. No. 186993, August 22, 2012, 678 SCRA 699, 707-708.
11. Universal Robina Corp. (Corn Division) v. Laguna Lake Development Authority, G.R. No. 191427, May 30, 2011, LEONEN, J., concurring and dissenting:
649 SCRA 506, 511. 1. Regulating the Sale of Subdivision Lots and Condominiums, Providing Penalties for Violations Thereof (1976).
12. 546 Phil. 87 (2007). 2. Rollo, pp. 59-66. The Decision, promulgated on February 27, 2006, was penned by Justice Portia Aliño-
13. Republic v. Lacap, supra, at 97-98. (Underscoring supplied) Hormachuelos and concurred in by Justices Amelita G. Tolentino and Vicente S.E. Veloso of the Fourth Division, Court of
14. Vigilar v. Aquino, G.R. No. 180388, January 18, 2011, 639 SCRA 772, 778, citing Republic v. Lacap, supra note 12, Appeals Manila.
at 98. 3. Id. at 60.
15. 465 Phil. 276 (2004). 4. Id. at 61.
16. Far East Bank & Trust Co. v. Marquez supra, at 298, cited in Philippine National Bank v. Lim, supra note 15, at 543- 5. Id.
544. 6. Id.
17. G.R. Nos. 175181-82 and G.R. Nos. 175354 & 175387-88, September 14, 2007, 533 SCRA 516. 7. Id.
18. Article 2089. A pledge or mortgage is indivisible, even though the debt may be divided among the successors-in- 8. Id.
interest of the debtor or of the creditor. . . . . 9. Id.
19. G.R. No. 171677, January 30, 2013, 689 SCRA 523, 543, citing Manila Banking Corporation v. Rabina, G.R. No. 10. Id.
145941, December 16, 2008, 574 SCRA 16, 23. 11. Id.
20. The pari delicto rule provides that when two parties are equally at fault, the law leaves them as they are and denies 12. Id. at 62.
recovery by either one of them. (Land Bank of the Philippines v. Poblete, G.R. No. 196577, February 25, 2013, 691 SCRA 613). 13. Id.
21. See third Whereas Clause of P.D. No. 957. 14. Id.
22. Id. 15. Id. at 63.
BRION, J., dissenting: 16. Id. at 93.
1. REGULATING THE SALE OF SUBDIVISION LOTS AND CONDOMINIUMS, PROVIDING PENALTIES FOR 17. Id. at 92.
VIOLATIONS THEREOF. 18. Id.
2. Far East Bank & Trust Co. v. Marquez, G.R. No. 147964, January 20, 2004, 420 SCRA 349. 19. Id. at 92-93.
3. Id. 20. Id. at 93.
4. G.R. No. 104528, January 18, 1996, 252 SCRA 5. 21. Id. at 93.
5. Supra note 2. 22. Id. at 65.
6. Id. 23. Id., citing Rule XXI, sec. 2 of the 2004 Rules of Procedure of the Housing and Land Use Regulatory Board. See
7. Id. rollo, pp. 70-73.
8. G.R. Nos. 175181-82, September 14, 2007, 533 SCRA 516. 24. Id. at 73.
9. Tolentino, Commentaries on Jurisprudence on Civil Code of the Philippines, Vol. V., 1986 Ed at p. 632. 25. Id. at 69.

109
CONSTI REV – FULL TEXT JULY 11, 2019

26. Id. at 72. 70. SECTION 25. Issuance of Title. — The owner or developer shall deliver the title of the lot or unit to the buyer upon
27. Id. at 31-57. full payment of the lot or unit.
28. Id. at 94.
29. Id. at 133-A.
30. Id. at 160.
31. Id. at 37-38.
32. Id. at 39-40.
33. Id. at 43-45.
34. Id. at 43-44.
35. Id. at 44.
36. Id. at 45-46.
37. Id. at 46.
38. Id. at 112.
39. Id. at 113.
40. Id. at 114.
41. Id. at 100.
42. Id. at 102.
43. Id.
44. See Addition Hills Mandaluyong Civic & Social Organization, Inc. v. Megaworld Properties & Holdings, Inc., G.R.
No. 175039, April 18, 2012, 670 SCRA 83 [Per J. Leonardo-de Castro, First Division].
45. Rollo, p. 39.
46. See Go v. Distinction Properties Development and Construction, Inc., G.R. No. 194024, April 25, 2012, 671 SCRA
461, 481 [Per J. Mendoza, Third Division].
47. See Philippine National Bank v. Office of the President, 322 Phil. 6 (1996) [Per J. Panganiban, Third Division
Resolution]. See also Philippine Bank of Communications v. Pridisons Realty Corporation, G.R. No. 155113, January 9, 2013,
688 SCRA 200, 214 [Per J. Brion, Second Division].
48. See 1st whereas clause, Pres. Decree No. 957.
49. Metropolitan Bank and Trust Company, Inc. v. SLGT Holdings, Inc., 559 Phil. 914 (2007) [Per J. Garcia, First
Division]. See The Manila Banking Corporation v. Rabina, 594 Phil. 422 (2008) [Per J. Carpio Morales, Second Division].
50. See CIVIL CODE, art. 5 — Acts executed against the provisions of mandatory or prohibitory laws shall be void,
except when the law itself authorizes their validity. (4a)
51. Ponencia, p. 6.
52. 465 Phil. 276 (2004) [Per J. Panganiban, First Division].
53. G.R. No. 171677, January 30, 2013, 689 SCRA 523 [Per J. Reyes, First Division].
54. Far East Bank & Trust Co. v. Marquez, 465 Phil. 276 (2004) [Per J. Panganiban, First Division].
55. Philippine National Bank v. Lim, G.R. No. 171677, January 30, 2013, 689 SCRA 523, 544 [Per J. Reyes, First
Division].
56. Id. at 540-542.
57. Gonzales v. Government Service Insurance System, 194 Phil. 465, 476 (1981) [Per J. Melencio-Herrera, First
Division].
58. Id. See also Aquino v. Macondray & Co., Inc., et al., 97 Phil. 731, 741 (1955) [Per J. Jugo, First Division].
59. 559 Phil. 914 (2007) [Per J. Garcia, First Division].
60. Id. at 927-928.
61. 654 Phil. 315 (2011) [Per J. Del Castillo, First Division].
62. Id.
63. Id. at 331. The specific subject matter of the case pertained to Lot 4 of the Delta Homes I project. However, the
declaration of nullity of the real estate mortgage was unqualified.
64. Id.
65. See Philippine National Bank v. Office of the President, G.R. No. 104528, January 18, 1996, 252 SCRA 5, 10 [Per
J. Panganiban, Third Division Resolution].
66. See Go v. Distinction Properties Development and Construction, Inc., G.R. No. 194024, April 25, 2012, 671 SCRA
461, 473 [Per J. Mendoza, Third Division], citing Luzon Development Bank v. Enriquez, G.R. Nos. 168646 and 168666, January
12, 2011, 639 SCRA 332, 337-338 [Per J. Del Castillo, First Division].
67. Luzon Development Bank v. Enriquez, G.R. No. 168646, January 12, 2011, 639 SCRA 332, 337 [Per J. Del
Castillo, First Division].
68. See Philippine Bank of Communications v. Pridisons Realty Corporation, G.R. No. 155113, January 9, 2013, 688
SCRA 200, 214 [Per J. Brion, Second Division], citing Philippine National Bank v. Office of the President, 322 Phil. 6 (1996) [Per
J. Panganiban, Third Division].
69. See The Manila Banking Corporation v. Rabina, 594 Phil. 422 (2008) [Per J. Carpio Morales, Second Division],
citing Section 3 of Pres. Decree No. 957 in relation to Section 1 of Pres. Decree No. 1344: SECTION 3. National Housing
Authority — The National Housing Authority shall have exclusive jurisdiction to regulate the real estate trade and business in
accordance with the provisions of this Decree.
xxx xxx xxx
SECTION 1. In the exercise of its functions to regulate the real estate trade and business and in addition to its
powers provided for in Presidential Decree No. 957, the National Housing Authority shall have exclusive jurisdiction to hear and
decide cases of the following nature:
A. Unsound real estate business practices;
B. Claims involving refund and any other claims filed by subdivision lot or condominium unit buyer against the
project owner, developer, dealer, broker or salesman; and
C. Cases involving specific performance of contractual and statutory obligations filed by buyers of subdivision lot or
condominium unit against the owner, developer, dealer, or salesman.

110
CONSTI REV – FULL TEXT
EN BANC
[A.M. No. MTJ-12-1813. March 14, 2017.]
(Formerly A.M. No. 12-5-42-MeTC)
OFFICE OF THE COURT ADMINISTRATOR, complainant, vs. JUDGE ELIZA B. YU, METROPOLITAN TRIAL
COURT, BRANCH 47, PASAY CITY, respondent.
[A.M. No. 12-1-09-MeTC. March 14, 2017.]
RE: LETTER DATED 21 JULY 2011 OF EXECUTIVE JUDGE BIBIANO G. COLASITO AND THREE (3)
OTHER JUDGES OF THE METROPOLITAN TRIAL COURT, PASAY CITY, FOR THE SUSPENSION OR
DETAIL TO ANOTHER STATION OF JUDGE ELIZA B. YU, BRANCH 47, SAME COURT.
[A.M. No. MTJ-13-1836. March 14, 2017.]
(Formerly A.M. No. 11-11-115-MeTC)
RE: LETTER DATED MAY 2, 2011 OF HON. ELIZA B. YU, PRESIDING JUDGE, METROPOLITAN TRIAL
COURT, BRANCH 47, PASAY CITY.
[A.M. No. MTJ-12-1815. March 14, 2017.]
(Formerly OCA IPI No. 11-2401-MTJ)
LEILANI A. TEJERO-LOPEZ, complainant, vs. JUDGE ELIZA B. YU, BRANCH 47, METROPOLITAN TRIAL
COURT, PASAY CITY, respondent.
[OCA IPI No. 11-2398-MTJ. March 14, 2017.]
JOSEFINA G. LABID, complainant, vs. JUDGE ELIZA B. YU, METROPOLITAN TRIAL COURT, BRANCH 47,
PASAY CITY, respondent.
[OCA IPI No. 11-2399-MTJ. March 14, 2017.]
AMOR V. ABAD, FROILAN ROBERT L. TOMAS, ROMER H. AVILES, EMELINA J. SAN MIGUEL, NORMAN
D.S. GARCIA, MAXIMA SAYO and DENNIS ECHEGOYEN, complainants, vs. HON. ELIZA B. YU,
PRESIDING JUDGE, METROPOLITAN TRIAL COURT, BRANCH 47, PASAY CITY, respondent.
[OCA IPI No. 11-2378-MTJ. March 14, 2017.]
EXECUTIVE JUDGE BIBIANO G. COLASITO, VICE EXECUTIVE JUDGE BONIFACIO S. PASCUA, JUDGE
RESTITUTO V. MANGALINDAN, JR., JUDGE CATHERINE P. MANODON, MIGUEL C. INFANTE (CLERK OF
COURT IV, OCC-METC), RACQUEL C. DIANO (CLERK OF COURT III, METC, BRANCH 45), EMMA ANNIE
D. ARAFILES (ASSISTANT CLERK OF COURT, OCC-METC), PEDRO C. DOCTOLERO, JR. (CLERK OF
COURT III, METC, BRANCH 44), LYDIA T. CASAS (CLERK OF COURT III, METC, BRANCH 46), ELEANOR
N. BAYOG (LEGAL RESEARCHER, METC, BRANCH 45), LEILANIE A. TEJERO (LEGAL RESEARCHER,
METC, BRANCH 46), ANA MARIA V. FRANCISCO (CASHIER I, OCC-METC), SOLEDAD J. BASSIG (CLERK
III, OCC-METC), MARISSA MASHHOOR RASTGOOY (RECORDS OFFICER, OCC-METC), MARIE LUZ M.
OBIDA (ADMINISTRATIVE OFFICER, OCC-METC), VIRGINIA D. GALANG (RECORDS OFFICER I, OCC-
METC), AUXENCIO JOSEPH CLEMENTE (CLERK OF COURT III, METC, BRANCH 48), EVELYN P.
DEPALOBOS (LEGAL RESEARCHER, METC, BRANCH 44), MA. CECILIA GERTRUDES R. SALVADOR
(LEGAL RESEARCHER, METC, BRANCH 48), JOSEPH B. PAMATMAT (CLERK III, OCC-METC), ZENAIDA
N. GERONIMO (COURT STENOGRAPHER, OCC-METC), BENJIE V. ORE (PROCESS SERVER, OCC-
METC), FORTUNATO E. DIEZMO (PROCESS SERVER, OCC-METC), NOMER B. VILLANUEVA (UTILITY
WORKER, OCC-METC), ELSA D. GARNET (CLERK III, OCC-METC), FATIMA V. ROJAS (CLERK III, OCC-
METC), EDUARDO E. EBREO (SHERIFF III, METC, BRANCH 45), RONALYN T. ALMARVEZ (COURT
STENOGRAPHER II, METC, BRANCH 45), MA. VICTORIA C. OCAMPO (COURT STENOGRAPHER II,
METC, BRANCH 45), ELIZABETH LIPURA (CLERK III METC, BRANCH 45), MARY ANN J. CAYANAN
(CLERK III, METC, BRANCH 45), MANOLO MANUEL E. GARCIA (PROCESS SERVER, METC, BRANCH
45), EDWINA A. JUROK (UTILITY WORKER, OCC-METC), ARMINA B. ALMONTE (CLERK III, OCC-METC),
ELIZABETH G. VILLANUEVA (RECORDS OFFICER, METC, BRANCH 44), ERWIN RUSS B. RAGASA
(SHERIFF III, METC, BRANCH 44), BIEN T. CAMBA (COURT STENOGRAPHER II, METC, BRANCH 44),
MARLON M. SULIGAN (COURT STENOGRAPHER II, METC, BRANCH 44), CHANDA B. TOLENTINO
(COURT STENOGRAPHER II, METC, BRANCH 44), FERDINAND R. MOLINA (COURT INTERPRETER,
METC, BRANCH 44), PETRONILO C. PRIMACIO, JR. (PROCESS SERVER, METC, BRANCH 45),
111
JULY 11, 2019
EDWARD ERIC SANTOS (UTILITY WORKER, METC, BRANCH 45), EMILIO P. DOMINE (UTILITY
WORKER, METC, BRANCH 45), ARNOLD P. OBIAL (UTILITY WORKER, METC, BRANCH 44), RICARDO E.
LAMPITOC (SHERIFF III, METC, BRANCH 46), JEROME H. AVILES (COURT STENOGRAPHER II, METC,
BRANCH 46), ANA LEA M. ESTACIO (COURT STENOGRAPHER II, METC, BRANCH 46), LANIE F.
AGUINALDO (CLERK III, METC, BRANCH 44), JASMINE L. LINDAIN (CLERK III, METC, BRANCH 44),
RONALDO S. QUIJANO (PROCESS SERVER, METC, BRANCH 44), DOMINGO H. HOCOSOL (UTILITY
WORKER, METC, BRANCH 48), EDWIN P. UBANA (SHERIFF III, METC, BRANCH 48), MARVIN O.
BALICUATRO (COURT STENOGRAPHER II, METC, BRANCH 48), MA. LUZ D. DIONISIO (COURT
STENOGRAPHER II, METC, BRANCH 48), MARIBEL A. MOLINA (COURT STENOGRAPHER II, METC,
BRANCH 48), CRISTINA E. LAMPITOC (COURT STENOGRAPHER II, METC, BRANCH 46), MELANIE DC.
BEGASA (CLERK III, METC, BRANCH 46), EVANGELINE M. CHING (CLERK III, METC, BRANCH 46),
LAWRENCE D. PEREZ (PROCESS SERVER, METC, BRANCH 46), EDMUNDO VERGARA (UTILITY
WORKER, METC, BRANCH 46), AMOR V. ABAD (COURT INTERPRETER, METC, BRANCH 47), ROMER
H. AVILES (COURT STENOGRAPHER II, METC, BRANCH 47), FROILAN ROBERT L. TOMAS (COURT
STENOGRAPHER II, METC, BRANCH 47), MAXIMA C. SAYO (PROCESS SERVER, BRANCH 47), SEVILLA
B. DEL CASTILLO (COURT INTERPRETER, METC, BRANCH 48), AIDA JOSEFINA IGNACIO (CLERK III,
METC, BRANCH 48), BENIGNO A. MARZAN (CLERK III, METC, BRANCH 48), KARLA MAE R.
PACUNAYEN (CLERK III, METC, BRANCH 48), IGNACIO M. GONZALES (PROCESS SERVER, METC,
BRANCH 48), EMELINA J. SAN MIGUEL (RECORDS OFFICER, OCC, DETAILED AT BRANCH 47), DENNIS
M. ECHEGOYEN (SHERIFF III, OCC-METC), NORMAN GARCIA (SHERIFF III, METC, BRANCH 47), NOEL
G. LABID (UTILITY WORKER I, BRANCH 47), complainants, vs. HON. ELIZA B. YU, PRESIDING JUDGE,
METROPOLITAN TRIAL COURT, BRANCH 47, PASAY CITY, respondent.
[OCA IPI No. 12-2456-MTJ. March 14, 2017.]
JUDGE BIBIANO G. COLASITO, JUDGE BONIFACIO S. PASCUA, JUDGE RESTITUTO V. MANGALINDAN,
JR. and CLERK OF COURT MIGUEL C. INFANTE, complainants, vs. HON. ELIZA B. YU, PRESIDING
JUDGE, METROPOLITAN TRIAL COURT, BRANCH 47, PASAY CITY, respondent.
[A.M. No. MTJ-13-1821. March 14, 2017.]
JUDGE EMILY L. SAN GASPAR-GITO, METROPOLITAN TRIAL COURT, BRANCH 20, MANILA,
complainant, vs. JUDGE ELIZA B. YU, METROPOLITAN TRIAL COURT, BRANCH 47, PASAY CITY,
respondent.
RESOLUTION
PER CURIAM p:
We hereby consider and resolve respondent Eliza B. Yu's Motion for Reconsideration with Explanation for the
Show Cause Order filed vis-à-vis the decision promulgated on November 22, 2016 disposing against her as
follows: CTIEac
WHEREFORE, the Court FINDS and PRONOUNCES respondent JUDGE ELIZA B. YU GUILTY of GROSS
INSUBORDINATION; GROSS IGNORANCE OF THE LAW; GROSS MISCONDUCT; GRAVE ABUSE OF
AUTHORITY; OPPRESSION; and CONDUCT UNBECOMING OF A JUDICIAL OFFICIAL; and,
ACCORDINGLY, DISMISSES her from the service EFFECTIVE IMMEDIATELY, with FORFEITURE OF ALL
HER BENEFITS, except accrued leave credits, and further DISQUALIFIES her from reinstatement or
appointment to any public office or employment, including to one in any government-owned or government-
controlled corporations.
Respondent JUDGE ELIZA B. YU is directed to show cause in writing within ten (10) days from notice why she
should not be disbarred for violation of the Lawyer's Oath, the Code of Professional Responsibility, and the
Canons of Professional Ethics as outlined herein.
Let a copy of this decision be furnished to the Office of the Court Administrator for its information and
guidance.
SO ORDERED. 1
In her motion, the respondent repeatedly denies committing all the administrative offenses for which she was
held guilty, and insists on the absence of proof to support the findings against her. She pleads that the Court
reconsiders based on the following:
1. Noncompliance with A.O. No. 19-2011
CONSTI REV – FULL TEXT
The complaint against her was premature because of the pendency of her protest against night
court duty. A.O. No. 19-2011 did not carry a penal provision, and was only directory because of the use of the
permissive word may. In addition to A.O. No. 19-2011 being non-compliant with the requirements of a valid
administrative order, the requirement of night court duty violated Section 5, Rule XVII of the Omnibus Rules
Implementing Book V of the Administrative Code, 2 which limited the working hours for government officials
and employees. It was also not illegal to write to the Secretary of the Department of Tourism (DOT)
considering that he was the requesting authority regarding the rendering of the night court duty. She did not
publicly broadcast her disobedience to A.O. No. 19-2011 when she wrote the letter to the Secretary. There was
no law prohibiting her from writing the protest letters. At any rate, she had the right to do so under the
Freedom of Speech Clause. She did not refuse to obey A.O. No. 19-2011 because she actually allowed her
staff to report for night duty. She did not willfully and intentionally disobey because her protest had legal basis.
She would also violate Section 3 (a) 3 of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act) if she
would comply with the patently illegal A.O. No. 19-2011. 4
2. Refusal to honor the appointments of Ms. Mariejoy P. Lagman and Ms. Leilani Tejero-Lopez
The respondent claims that she did not refuse to honor the appointment because rejection was
different from protesting the appointment. She merely exercised her statutory right as a judge to question the
appointment of the branch clerk of court assigned to her sala. Under Canon 2, Section 3 of the New Code of
Judicial Conduct for the Philippine Judiciary, 5 she was mandated to bring to the proper authorities the
irregularities surrounding the appointments. Moreover, the contents of the complaint letter and the protest
could not be used against her pursuant to the constitutional right against self-incrimination. She did not also
commit any act of cruelty against Ms. Tejero-Lopez; on the contrary, it was Ms. Tejero-Lopez who "went
beyond the norms of decency by her persistent and annoying application in my court that it actually became a
harassment." Her opposition against the appointment of Ms. Lagman was meritorious. She only employed the
wrong choice of words with her choice of the term privileged communication that was viewed negatively. There
was no proof of the alleged verbal threats, abuse, misconduct or oppression committed against Ms. Tejero-
Lopez. It was not proper to penalize a judge based on a "letter with few words that other people find
objectionable." 6 DcHSEa
3. Show-cause order respondent issued against fellow judges
The respondent posits that the show-cause order she issued to her fellow judges had legal basis
because "anything that is legal cannot be an assumption of the role of a tyrant wielding power with unbridled
breath." 7 It was premature to rule that she thereby abused and committed misconduct because she did not
issue any ruling on the explanation by the other judges. 8 She did not violate Section 5, Canon 3 and Section
8, Canon 4 of the Code of Judicial Conduct. What the other judges should have done was to avail themselves
of the appropriate remedy. 9
4. Refusal to sign the leave of absence of Mr. Noel Labid
The refusal to sign the application for leave of absence had factual and legal bases. 10 Moreover,
she should be presumed to have acted in good faith if she misconstrued the rules on approval of application of
leave. 11
5. Allowing on-the-job trainees
The respondent claims that she did not order the trainees to perform judicial tasks. She asserts
that she could not remember their affidavit. She had no personal knowledge that the trainees were made to
serve as assistant court stenographers. Based on what she heard, the trainees were only in the premises of
her court for a few hours. She reminds that she allowed the trainees to merely observe proceedings. OCA
Circular No. 111-2005 was impliedly amended when paralegals and law students were allowed to be trained
under the Hustisyeah Project. 12
6. Designation of an officer-in-charge and ordering reception of evidence by a non-lawyer
The respondent denies having violated CSC Memorandum Circular No. 06-05 when she
designated an officer-in-charge. There was no proof showing that she willfully and deliberately intended to
cause public damage. In fact, the OCA recognized Mr. Ferdinand Santos as the OIC of her branch in several
letters. There was no proof that she violated Section 9, Rule 30 of the Rules of Court. The ex parte reception
of evidence by a non-lawyer clerk of court was allowed under the Rules of Court, as well as by Section 21 (e),
Administrative Circular No. 35-2004, and Administrative Circular No. 37-93. 13
7. Allowing criminal proceedings to continue despite the absence of counsel
112
JULY 11, 2019
The respondent merely followed the Rules of Criminal Procedure in allowing criminal proceedings
despite absence of counsel. In so doing, she relied in good faith on the rulings in People v. Arcilla, 14 Bravo v.
Court of Appeals, 15 and People v. Malinao. 16 Under Section 1 (c), Rule 115 of the Rules of Criminal
Procedure, the accused may be allowed to defend himself in person without the assistance of counsel. 17
8. Sending of inappropriate email messages
The respondent maintains that the e-mail messages were hearsay because the certification by the
SC-MISO was not presented to her, depriving her of the opportunity to object. Her granting access by the
MISO to her private e-mails was conditional to prove tampering. Her Lycos e-mail account was hacked. She
did not completely waive her right to privacy. Considering that she did not authenticate said e-mail messages,
the same were inadmissible for being hearsay. The e-mail messages with her full name written in capital
letters as the sender did not emanate from her because her Yahoo! and MSN accounts carried her name with
only the first letters being capitalized. The e-mails reproduced in the decision were not the same messages
that she had requested Judge San Gaspar-Gito to delete. There were words that she did not write on the e-
mail messages pertaining to her demand for reimbursement of $10.00. Her writing style was different from
what appeared in the e-mail messages. She denies having opened the "Rudela San Gaspar" account. It was
wrong to penalize her based on assumptions and speculations. She did not commit electronic libel. Her funny
and innocent comments were not actionable documents. The certification by the SC MISO was not an
authentication as to the truthfulness of the contents of the e-mail messages and as to the identification of the
sender or author of the messages. It was wrong and unjust to impute wrongdoing to her when there was no
proof that she had sent the inappropriate messages. The disclaimer in the e-mails were not printed in the
decision; hence, the messages were inadmissible. The presentation of the messages without her consent as
the sender was covered by the exclusionary rule. Letters and communications in writing were guaranteed and
protected by Sections 2, 18 3 (1), 19 Article III of the 1987 Constitution, and Article 723 of the Civil Code, 20
Articles 226 21 and 228 22 of the Revised Penal Code, Section 2756 of the Revised Administrative Code, 23
Sections 32 24 and 33 25 of the R.A. No. 8792. There was no proof that she had apologized through e-mail,
and had sent messages with sexual undertones and lewd graphics. Judge Gito had a dirty mind because
nothing was wrong with the 69 image by Felicien Rops. She (respondent) did not commit internet stalking. She
had difficulty in remembering the private communications, which were taken out of context. It was Judge Gito
who must have a problem because she had kept the trash messages. She (respondent) did not transgress
any law. The allegations against her were hearsay. She submitted a letter proposal for a "win-win" solution so
that she would not pursue any criminal action against Judge Gito. She did not violate Section 8, Canon 4 of
the New Code of Judicial Conduct because it was one of her staff who had typed the letter addressed to Atty.
San Gaspar. To find her to have abused her power and committed impropriety was unwarranted. Her absence
from the investigation conducted by Justice Abdulwahid could not be taken against her and could not be
construed as her admission of wrong doing or as an evasion of truth. There was no proof that she had used
the phrase our court to advance her personal interest. 26 SaCIDT
Ruling of the Court
We deny the respondent's Motion for Reconsideration with Explanation for the Show Cause Order for the
following reasons.
1.
The respondent's Motion for Reconsideration
is denied for lack of merit
The submissions tendered in the respondent's Motion for Reconsideration with Explanation for the Show
Cause Order were matters that the Court had already exhaustively considered and fully resolved in the
decision of November 22, 2016. We deem it unnecessary to dwell at length on such submissions. We still hold
and declare that the respondent flagrantly and blatantly violated the Lawyer's Oath, and several canons and
rules of the Code of Professional Responsibility, the Canon of Judicial Ethics and the New Judicial Code of
Conduct.
Nonetheless, we propose to expound on some points for greater enlightenment on the issues and grounds
taken into consideration in removing the respondent from the Judiciary, and for purposes of providing the
requisite predicate to the ruling on the directive for her to show sufficient cause in writing why she should not
also be disbarred from the Roll of Attorneys.
The respondent insists that there was no proof to support the adverse findings of the Court. She is absolutely
mistaken. The records involved in these cases were voluminous, because they consisted of the affidavits and
other evidence submitted by the several complainants as well as her own pleadings and motions, most of
CONSTI REV – FULL TEXT
which constituted proof of her administrative wrongdoings. As the per curiam decision of November 22, 2016
indicated, her explanations vis-à-vis the complaints often backfired against her, and all the more incriminated
her by systematically exposing her personal and professional ineptitude and stilted logic. In short, the
evidence against her was too compelling to ignore, and sufficed to warrant the supreme action of her removal
from the Judiciary. She was more than aware that the quantum of evidence required in administrative
proceedings like these was substantial evidence, or that amount of relevant evidence that a reasonable mind
might accept as adequate to support a conclusion. 27
The respondent's argument that she was deprived of the guarantee against self-incrimination has no basis. As
a judge, she was quite aware that the constitutional guarantee only set the privilege of an individual to refuse
to answer incriminating questions that may directly or indirectly render her criminally liable. The constitutional
guarantee simply secures to a witness — whether a party or not — the right to refuse to answer any particular
incriminatory question. 28 The privilege did not prohibit legitimate inquiry in non-criminal matters. At any rate,
the rule only finds application in case of oral testimony and does not apply to object evidence. As the Court
has pointed out in People v. Malimit: 29
[The right against self-incrimination], as put by Mr. Justice Holmes in Holt vs. United States, "x x x is a
prohibition of the use of physical or moral compulsion, to extort communications from him x x x" It is simply a
prohibition against legal process to extract from the [accused]'s own lips, against his will, admission of his
guilt. It does not apply to the instant case where the evidence sought to be excluded is not an incriminating
statement but an object evidence. Wigmore, discussing the question now before us in his treatise on evidence,
thus, said:
If, in other words (the rule) created inviolability not only for his [physical control of his] own vocal utterances,
but also for his physical control in whatever form exercise, then, it would be possible for a guilty person to shut
himself up in his house, with all the tools and indicia of his crime, and defy the authority of the law to employ in
evidence anything that might be obtained by forcibly overthrowing his possession and compelling the
surrender of the evidential articles — a clear reduction ad absurdum. In other words, it is not merely
compulsion that is the kernel of the privilege, x x x but testimonial compulsion. 30
The respondent's correspondences were outside the scope of the constitutional proscription against self-
incrimination. She had not been subjected to testimonial compulsion in which she could validly raise her right
against self-incrimination. Worthy to recall is that she had herself voluntarily waived her right to be present and
to confront the complainant and her witnesses and evidence during the administrative investigation conducted
by CA Associate Justice Hakim Abdulwahid. She was emphatically granted the opportunity to confront the
complainant and her witnesses but the voluntary and knowing waiver of her presence divested her of the right
to insist on the right to confrontation, if any. SCaITA
The respondent contends that she was not given the opportunity to raise her objection to the certification
issued by the SC-MISO. This contention is dismissed also because of the same voluntary waiver of her
presence from the proceedings held before Justice Abdulwahid.
At any rate, the respondent alternatively pleads for compassion and mercy, and vows not to repeat the same
transgressions. In this connection, she would have the Court consider in her favor the following mitigating
circumstances pursuant to Section 48, Rule 10 of the Revised Rules of Administrative Cases in Civil Service,
31 which provides thus:
1. Medications on allergies as analogous circumstance to an unsubstantiated charge;
2. Good faith on each the unsubstantiated charge xxx;
3. First time offense of the unsubstantiated charge;
4. Lack of education or lack of experience on administrative matters as analogous circumstance to
the unsubstantiated charge;
5. Newness or short number in the judicial service as analogous circumstance to the unsubstantiated
charge;
6. Very different work culture from previous employment as unsubstantiated charge;
7. Lack of prejudice to the public as analogous circumstance to the unsubstantiated charge;
8. Remorse for not listening to the unsolicited advices of Court Administrator Jose Midas Marquez
and Assistant Court Administrator Thelma Bahia as analogous circumstance to the unsubstantiated charge;
9. Lack of intent to commit any wrong as analogous circumstance to the unsubstantiated charge;
113
JULY 11, 2019
10. Previously received awards in the performance of his duties to the unsubstantiated charge; and
11. Outstanding court performance as to cases disposal for year to the unsubstantiated charge. 32
The respondent's pleading is unworthy of sympathy.
Firstly, the respondent does not thereby present any compelling argument on how her having medications for
allergies was analogous to physical illness under Section 48 (a) of the Revised Rules of Administrative Cases
in Civil Service. Although the list of circumstances in Section 48 is not exclusive because the provision
expressly recognizes other analogous circumstances, she cannot simply state any situation without pointing
out why it would be analogous to the listed circumstances. The Court is unable to appreciate how her
consumption of medications for allergies could generate arrogance, insubordination, gross ignorance of laws,
and offensive conduct that manifested themselves in the periods material to the administrative complaints.
Secondly, the respondent's overall conduct negated her allegation of good faith. Good faith implies the lack of
any intention to commit a wrongdoing. Based on the totality of her acts and actuations, her claims of good faith
and lack of intent to commit a wrong cannot be probable. According to Civil Service Commission v. Maala, 33
good faith as a defense in administrative investigations has been discussed in this wise:
In common usage, the term "good faith" is ordinarily used to describe that state of mind denoting "honesty of
intention, and freedom from knowledge of circumstances which ought to put the holder upon inquiry; an honest
intention to abstain from taking any unconscientious advantage of another, even through technicalities of law,
together with absence of all information, notice, or benefit or belief of facts which render transaction
unconscientious."
In short, good faith is actually a question of intention. Although this is something internal, we can ascertain a
person's intention by relying not on his own protestations of good faith, which is self-serving, but on evidence
of his conduct and outward acts. (bold emphasis supplied)
The respondent is reminded that her removal from the Judiciary by reason of her gross insubordination and
gross misconduct did not proceed only from her non-compliance with A.O. No. 19-2011. Other acts and
actuations were also efficient causes, namely: (1) her refusal to abide by the directive of MeTC Executive
Judge Bibiano Colasito that resulted in the disruption of orderliness in the other Pasay City MeTCs to the
prejudice of the public service and public interest; (2) her direct communications to the DOT Secretary and
other agencies that seriously breached established protocols, thereby opening an irregular avenue to publicly
broadcast her defiance to the directive of the Court itself; and (3) her willful disregard of the direct advice by
the Court Administrator despite the latter being the official expressly authorized by law to assist the Court in
exercising administrative supervision over all lower courts and personnel. 34 cHECAS
Furthermore, we emphatically observed and pointed out in the decision of November 22, 2016 the following:
In all, Judge Yu exhibited an unbecoming arrogance in committing insubordination and gross misconduct. By
her refusal to adhere to and abide by A.O. No. 19-2011, she deliberately disregarded her duty to serve as the
embodiment of the law at all times. She thus held herself above the law by refusing to be bound by the
issuance of the Court as the duly constituted authority on court procedures and the supervision of the lower
courts. To tolerate her insubordination and gross misconduct is to abet lawlessness on her part. She deserved
to be removed from the service because she thereby revealed her unworthiness of being part of the Judiciary.
(Bold emphasis supplied)
We have stated in the decision of November 22, 2016 that the respondent's recalcitrant streak did not end with
her unbecoming repudiation of and defiance to A.O. No. 19-2011. To recall, she also exhibited extreme
arrogance in rejecting the valid appointments of Ms. Lagman and Ms. Tejero-Lopez despite being fully aware
that the appointing powers pertained to and were being thereby exercised by the Court, and that she was
bereft of any discretion to control or reject the appointments. Under no circumstance could she be justified in
draping herself with the mantle of good faith in regard to her insubordination and arrogance.
We also reject the respondent's appeal for relief based on her supposed lack of experience as a neophyte
judge, and her previously received awards and outstanding court performance. Lack of experience had no
relevance in determining her administrative liabilities for acts and actuations fundamentally irregular or
contrary to judicial ethical standards. We even believe that her being a novice in the Judiciary, instead of
mitigating her liability, could have aggravated her offense, for her being a neophyte judge should have
impelled her instead to practice greater prudence and caution in her daily actuations and performance. But
instead of pausing and hesitating, she acted rashly and imprudently by condescendingly asserting herself over
her peers, by flagrantly disobeying her superiors, including this Court, and by ignoring obvious boundaries that
should have kept her in check or reined her in. On the other hand, the awards for outstanding performances
CONSTI REV – FULL TEXT
as a professional and as a judge, far from accenting her good qualities as a person, rather highlighted her
unworthiness to remain on the Bench by showing that her misconduct and general bad attitude as a member
thereof has put the awards and recognitions in serious question.
2.
Disbarment is also to be imposed
on the respondent
The respondent's accountability did not end with her removal from the Judiciary. In the decision of November
22, 2016, we declared that her misdemeanor as a member of the Bench could also cause her expulsion from
the Legal Profession through disbarment. Consequently, we directed her to show good and sufficient cause
why her actions and actuations should not also be considered grounds for her disbarment, justifying our
directive in the following manner, viz.:
The foregoing findings may already warrant Judge Yu's disbarment.
A.M. No. 02-9-02-SC, dated September 17, 2002 and entitled Re: Automatic Conversion of Some
Administrative Cases Against Justices of the Court of Appeals and the Sandiganbayan; Judges of Regular and
Special Courts; and Court Officials Who are Lawyers as Disciplinary Proceedings against Them Both as Such
Officials and as Members of the Philippine Bar, relevantly states:
Some administrative cases against Justices of the Court of Appeals and the Sandiganbayan; judges of regular
and special courts; and court officials who are lawyers are based on grounds which are likewise grounds for
the disciplinary action of members of the Bar for violation of the Lawyer's Oath, the Code of Professional
Responsibility, and the Canons of Professional Ethics, or for such other forms of breaches of conduct that
have been traditionally recognized as grounds for the discipline of lawyers.
In any of the foregoing instances, the administrative case shall also be considered a disciplinary action against
the respondent Justice, judge or court official concerned as a member of the Bar. The respondent may
forthwith be required to comment on the complaint and show cause why he should not also be suspended,
disbarred or otherwise disciplinarily sanctioned as a member of the Bar. Judgment in both respects may be
incorporated in one decision or resolution. aTHCSE
Under Section 27, Rule 138 of the Rules of Court, an attorney may be disbarred on the ground of gross
misconduct and willful disobedience of any lawful order of a superior court. Given her wanton defiance of the
Court's own directives, her open disrespect towards her fellow judges, her blatant abuse of the powers
appurtenant to her judicial office, and her penchant for threatening the defenseless with legal actions to make
them submit to her will, we should also be imposing the penalty of disbarment. The object of disbarment is not
so much to punish the attorney herself as it is to safeguard the administration of justice, the courts and the
public from the misconduct of officers of the court. Also, disbarment seeks to remove from the Law Profession
attorneys who have disregarded their Lawyer's Oath and thereby proved themselves unfit to continue
discharging the trust and respect given to them as members of the Bar.
The administrative charges against respondent Judge Yu based on grounds that were also grounds for
disciplinary actions against members of the Bar could easily be treated as justifiable disciplinary initiatives
against her as a member of the Bar. This treatment is explained by the fact that her membership in the Bar
was an integral aspect of her qualification for judgeship. Also, her moral and actual unfitness to remain as a
Judge, as found in these cases, reflected her indelible unfitness to remain as a member of the Bar. At the very
least, a Judge like her who disobeyed the basic rules of judicial conduct should not remain as a member of the
Bar because she had thereby also violated her Lawyer's Oath.
Indeed, respondent Judge Yu's violation of the fundamental tenets of judicial conduct embodied in the New
Code of Judicial Conduct for the Philippine Judiciary would constitute a breach of the following canons of the
Code of Professional Responsibility, to wit:
CANON 1 — A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND
PROMOTE RESPECT FOR LAW AND FOR LEGAL PROCESSES.
Rule 1.02 — A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening
confidence in the legal system.
CANON 6 — THESE CANONS SHALL APPLY TO LAWYERS IN GOVERNMENT SERVICE IN THE
DISCHARGE OF THEIR OFFICIAL TASKS.
114
JULY 11, 2019
Rule 6.02 — A lawyer in the government service shall not use his public position to promote or advance his
private interests, nor allow the latter to interfere with his public duties.
CANON 11 — A LAWYER SHALL OBSERVE AND MAINTAIN THE RESPECT DUE TO THE COURTS AND
TO JUDICIAL OFFICERS AND SHOULD INSIST ON SIMILAR CONDUCT BY OTHERS.
Rule 11.03 — A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the
Courts.
The Court does not take lightly the ramifications of Judge Yu's misbehavior and misconduct as a judicial
officer. By penalizing her with the supreme penalty of dismissal from the service, she should not anymore be
allowed to remain a member of the Law Profession.
However, this rule of fusing the dismissal of a Judge with disbarment does not in any way dispense with or set
aside the respondent's right to due process. As such, her disbarment as an offshoot of A.M. No. 02-9-02-SC
without requiring her to comment on the disbarment would be violative of her right to due process. To accord
due process to her, therefore, she should first be afforded the opportunity to defend her professional standing
as a lawyer before the Court would determine whether or not to disbar her.
In her comment, the respondent reiterates her submissions in the Motion for Reconsideration with Explanation
for the Show Cause Order. Considering that we have dismissed her pleadings altogether for the reasons given
earlier, her disbarment is now inevitable.
Section 27, Rule 138 of the Rules of Court reads:
Sec. 27. Attorneys removed or suspended by Supreme Court on what grounds. — A member of the bar
may be removed or suspended from his office as attorney by the Supreme Court for any deceit, malpractice,
or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime
involving moral turpitude, or for any violation of the oath which he is required to take before the admission to
practice, or for a willful disobedience of any lawful order of a superior court, or for corruptly or willfully
appearing as an attorney for a party to a case without authority so to do. The practice of soliciting cases at law
for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.
AHDacC
Accordingly, gross misconduct, violation of the Lawyer's Oath, and willful disobedience of any lawful order by
the Court constitute grounds to disbar an attorney. In the respondent's case, she was herein found to have
committed all of these grounds for disbarment, warranting her immediate disbarment as a consequence.
We deem it worthwhile to remind that the penalty of disbarment being hereby imposed does not equate to
stripping the respondent of the source of her livelihood. Disbarment is intended to protect the administration of
justice by ensuring that those taking part in it as attorneys should be competent, honorable and reliable to
enable the courts and the clients they serve to rightly repose their confidence in them. 35
Once again, we express our disdain for judges and attorneys who undeservedly think too highly of
themselves, their personal and professional qualifications and qualities at the expense of the nobility of the
Law Profession. It is well to remind the respondent that membership in the Law Profession is not like that in
any ordinary trade. The Law is a noble calling, and only the individuals who are competent and fit according to
the canons and standards set by this Court, the law and the Rules of Court may be bestowed the privilege to
practice it. 36
Lastly, every lawyer must pursue only the highest standards in the practice of his calling. The practice of law is
a privilege, and only those adjudged qualified are permitted to do so. 37 The respondent has fallen short of
this standard thus meriting her expulsion from the profession.
WHEREFORE, the Court DENIES the Motion for Reconsideration with Explanation for the Show Cause Order
with FINALITY; DISBARS EFFECTIVE IMMEDIATELY respondent ELIZA B. YU pursuant to A.M. No. 02-9-02-
SC for violation of the Lawyer's Oath, the Code of Professional Responsibility, and the Canons of Professional
Ethics; and ORDERS the striking off of respondent ELIZA B. YU's name from the Roll of Attorneys.
Let copies of this resolution be furnished to: (a) the Office of the Court Administrator for dissemination to all
courts throughout the country for their information and guidance; (b) the Integrated Bar of the Philippines; and
(c) the Office of the Bar Confidant to be appended to the respondent's personal record as a member of the
Bar.
SO ORDERED.
CONSTI REV – FULL TEXT JULY 11, 2019

Sereno, C.J., Carpio, Velasco, Jr., Leonardo-de Castro, Peralta, Bersamin, Del Castillo, Mendoza, Reyes, (b) Piracy or the unauthorized copying, reproduction, dissemination, or distribution, importation, use, removal,
Perlas-Bernabe, Leonen, Jardeleza, Caguioa, Martires and Tijam, JJ., concur. alteration, substitution, modification, storage, uploading, downloading, communication, making available to the public, or
broadcasting of protected material, electronic signature or copyrighted works including legally protected sound recordings or
Footnotes phonograms or information material on protected works, through the use of telecommunication networks, such as, but not limited
1. Rollo (A.M. No. MTJ-12-1813), pp. 888-889. to, the internet, in a manner that infringes intellectual property rights shall be punished by a minimum fine of one hundred
2. Section 5. Officers and employees of all departments and agencies except those covered by special laws shall thousand pesos (P100,000.00) and a maximum commensurate to the damage incurred and a mandatory imprisonment of six (6)
render not less than eight hours of work a day for five days a week or a total of forty hours a week, exclusive of time for lunch. As months to three (3) years;
a general rule, such hours shall be from eight o'clock in the morning to twelve o'clock noon and from one o'clock to five o'clock in (c) Violations of the Consumer Act or Republic Act No. 7394 and other relevant to pertinent laws through
the afternoon on all days except Saturdays, Sundays and Holidays. transaction covered by or using electronic data messages or electronic documents, shall be penalized with the same penalties as
3. Section 3. Corrupt practices of public officers. — In addition to acts or omissions of public officers already penalized provided in those laws;
by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: (d) Other violations of the provisions of this Act, shall be penalized with a maximum penalty of one million pesos
(a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and (P1,000,000.00) or six (6) years imprisonment.
regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing 26. Rollo (A.M. No. MTJ-12-1813), pp. 1010-1033.
himself to be persuaded, induced, or influenced to commit such violation or offense. 27. Monticalbo v. Maraya, Jr., A.M. No. RTJ-09-2197, April 13, 2011, 648 SCRA 573, 579.
4. Rollo (A.M. No. MTJ-12-1813), pp. 935-962. 28. People v. Ayson, G.R. No. 85215, July 7, 1989, 175 SCRA 216, 227; citing Suarez v. Tengco, G.R. No. L-17113,
5. Sec. 3. Judges should take or initiate appropriate disciplinary measures against lawyers or court personnel for May 31, 1961, 2 SCRA 71, 73.
unprofessional conduct of which the judge may become aware. 29. G.R. No. 109775, November 14, 1996, 264 SCRA 167.
6. Rollo (A.M. No. MTJ-12-1813), pp. 964-981. 30. Id. at 176.
7. Id. at 982. 31. Section 48. Mitigating and Aggravating Circumstances. — In the determination of the penalties to be imposed,
8. Id. at 986. mitigating and/or aggravating circumstances attendant to the commission of the offense shall be considered.
9. Id. at 985-986. The following circumstances shall be appreciated:
10. Id. at 988. a. Physical illness;
11. Id. at 989. b. Good faith;
12. Id. at 995-996. c. Malice;
13. Id. at 997. d. Time and place of offense;
14. G.R. No. 116237, May 15, 1996, 256 SCRA 757. e. Taking undue advantage of official position;
15. G.R. No. L-48772, May 8, 1992, 208 SCRA 531. f. Taking undue advantage of subordinate;
16. G.R. No. L-63735, April 5, 1990, 184 SCRA 148. g. Undue disclosure of confidential information;
17. Rollo (A.M. No. MTJ-12-1813), pp. 997-1009. h. Use of government property in the commission of the offense;
18. Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable i. Habituality;
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest j. Offense is committed during office hours and within the premises of the office or building;
shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of k. Employment of fraudulent means to commit or conceal the offense;
the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or l. First offense;
things to be seized. m. Education;
19. Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the n. Length of service; or
court, or when public safety or order requires otherwise, as prescribed by law. o. Other analogous circumstances.
20. Article 723. Letters and other private communications in writing are owned by the person to whom they are 32. Rollo (A.M. No. MTJ-12-1813), pp. 1037-1038.
addressed and delivered, but they cannot be published or disseminated without the consent of the writer or his heirs. However, 33. G.R. No. 165253, August 18, 2005, 467 SCRA 390, 399.
the court may authorize their publication or dissemination if the public good or the interest of justice so requires. 34. See Presidential Decree No. 828, as amended by Presidential Decree No. 842.
21. Article 226. Removal, concealment or destruction of documents. — Any public officer who shall remove, destroy or 35. Office of the Court Administrator v. Tormis, A.C. No. 9920, August 30, 2016; Avancena v. Liwanag, A.M. No. MTJ-
conceal documents or papers officially entrusted to him, shall suffer: 01-1383, July 17, 2003, 406 SCRA 300, 305.
1. The penalty of prision mayor and a fine not exceeding 1,000 pesos, whenever serious damage shall have been 36. Sanchez v. Somoso, A.C. No. 6061, October 3, 2003, 412 SCRA 569, 572.
caused thereby to a third party or to the public interest. 37. Avancena v. Liwanag, supra at 304.
2. The penalty of prision correccional in its minimum and medium period and a fine not exceeding 1,000 pesos,
whenever the damage to a third party or to the public interest shall not have been serious.
In either case, the additional penalty of temporary special disqualification in its maximum period to perpetual
disqualification shall be imposed.
22. Article 228. Opening of closed documents. — Any public officer not included in the provisions of the next preceding
article who, without proper authority, shall open or shall permit to be opened any closed papers, documents or objects entrusted
to his custody, shall suffer the penalties of arresto mayor, temporary special disqualification and a fine of not exceeding 2,000
pesos.
23. The respondent is referring to the Administrative Code of 1917 (Act No. 2711) whose Section 2756 states:
Section 2756. Unlawful opening or detention of mail matter. — Any person other than an officer or employee of the
Bureau of Posts who shall unlawfully detain or open any mail matter which has been in any post office, or in or on any authorized
depository for mail matter, or in charge of any person employed in the Bureau of Posts; or who shall secrete or destroy any such
mail matter, or shall unlawfully take any mail matter out of any post office, or from any person employed in the Bureau of Posts,
before it is given into the actual possession of the person to whom it is addressed, or his duly authorized agent, shall be
punished by a fine of not more than one thousand pesos or by imprisonment for not more than one year, or both.
24. Section 32. Obligation of Confidentiality. — Except for the purposes authorized under this Act, any person who
obtained access to any electronic key, electronic data message or electronic document, book, register, correspondence,
information, or other material pursuant to any powers conferred under this Act, shall not convey to or share the same with any
other person.
25. Section 33. Penalties. — The following acts shall be penalized by fine and/or imprisonment, as follows:
(a) Hacking or cracking which refers to unauthorized access into or interference in a computer system/server or
information and communication system; or any access in order to corrupt, alter, steal, or destroy using a computer or other
similar information and communication devices, without the knowledge and consent of the owner of the computer or information
and communications system, including the introduction of computer viruses and the like, resulting in the corruption, destruction,
alteration, theft or loss of electronic data messages or electronic documents shall be punished by a minimum fine of One
Hundred Thousand pesos (P100,000.00) and a maximum commensurate to the damage incurred and a mandatory imprisonment
of six (6) months to three (3) years;

115
CONSTI REV – FULL TEXT
EN BANC
[G.R. No. 185740. July 23, 2013.]
THE PROVINCIAL GOVERNMENT OF CAMARINES NORTE, represented by GOVERNOR JESUS O.
TYPOCO, JR., petitioner, vs. BEATRIZ O. GONZALES, respondent.
DECISION
BRION, J p:
We resolve the Provincial Government of Camarines Norte's (petitioner) petition for review on certiorari 1
assailing the Decision 2 dated June 25, 2008 and the Resolution 3 dated December 2, 2008 of the Court of
Appeals (CA) in CA-G.R. SP No. 97425, reinstating respondent Beatriz O. Gonzales as the Province of
Camarines Norte's provincial administrator, or to an equivalent position. SCHTac
Factual Antecedents
Gonzales was appointed as the provincial administrator of the Province of Camarines Norte by then Governor
Roy A. Padilla, Jr. on April 1, 1991. Her appointment was on a permanent capacity. On March 8, 1999,
Governor Jess B. Pimentel sent Gonzales a memorandum directing her to explain in writing why no
administrative charges should be filed against her for gross insubordination/gross discourtesy in the course of
official duties, and conduct grossly prejudicial to the best interest of the service; this was later on captioned as
Administrative Case No. 001. After Gonzales submitted her comment, an Ad Hoc Investigation Committee
found her guilty of the charges against her, and recommended to Governor Pimentel that she be held
administratively liable. 4 On September 30, 1999, Governor Pimentel adopted the Ad Hoc Investigation
Committee's recommendation and dismissed Gonzales. 5 HEASaC
Proceedings before the Civil Service Commission
Gonzales appealed Governor Pimentel's decision to the Civil Service Commission (CSC). The CSC issued
Resolution No. 001418 6 modifying Governor Pimentel's decision, finding Gonzales guilty of insubordination
and suspending her for six months. This decision was appealed by Governor Pimentel, which the CSC denied
in its Resolution No. 001952. 7
Gonzales then filed a motion for execution and clarification of Resolution No. 001418, in which she claimed
that she had already served her six-month suspension and asked to be reinstated. The CSC issued
Resolution No. 002245, 8 which directed Gonzales' reinstatement.
Governor Pimentel reinstated Gonzales as provincial administrator on October 12, 2000, but terminated her
services the next day for lack of confidence. He then wrote a letter 9 to the CSC reporting his compliance with
its order, and Gonzales' subsequent dismissal as a confidential employee. In his letter, Governor Pimentel
cited Resolution No. 0001158, 10 where the CSC ruled that the provincial administrator position is highly
confidential and is coterminous in nature. STDEcA
The CSC responded through Resolution No. 030008, 11 which again directed Gonzales' reinstatement as
provincial administrator. It clarified that while the Local Government Code of 1991 (Republic Act No. [RA]
7160) made the provincial administrator position coterminous and highly confidential in nature, this conversion
cannot operate to prejudice officials who were already issued permanent appointments as administrators prior
to the new law's effectivity. According to the CSC, Gonzales has acquired a vested right to her permanent
appointment as provincial administrator and is entitled to continue holding this office despite its subsequent
classification as a coterminous position. The conversion of the provincial administrator position from a career
to a non-career service should not jeopardize Gonzales' security of tenure guaranteed to her by the
Constitution. As a permanent appointee, Gonzales may only be removed for cause, after due notice and
hearing. Loss of trust and confidence is not among the grounds for a permanent appointee's dismissal or
discipline under existing laws. TaIHEA
In a letter 12 dated February 17, 2005, Gonzales wrote the CSC alleging that Governor Jesus O. Typoco, Jr.,
Camarines Norte's incumbent governor, refused to reinstate her. The CSC responded with Resolution No.
061988, 13 which ordered Gonzales' reinstatement to the provincial administrator position, or to an equivalent
position. Thus, the petitioner, through Governor Typoco, filed a petition for review before the CA, seeking to
nullify the CSC's Resolution No. 030008 and Resolution No. 061988.
The Appellate Court's Ruling
The CA supported the CSC's ruling that reinstated Gonzales as provincial administrator or to an equivalent
position. 14
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JULY 11, 2019
Citing Aquino v. Civil Service Commission, 15 the CA emphasized that an appointee acquires a legal right to
his position once he assumes a position in the civil service under a completed appointment. This legal right is
protected both by statute and the Constitution, and he cannot be removed from office without cause and
previous notice and hearing. Appointees cannot be removed at the mere will of those vested with the power of
removal, or without any cause. HTDCAS
The CA then enumerated the list of valid causes for a public officer's removal under Section 46, 16 Book V,
Title I, Subtitle A of the Revised Administrative Code (Administrative Code), and noted that lack of confidence
was not in the list. Thus, the CA concluded that Gonzales' dismissal on the ground of loss of confidence
violated her security of tenure, and that she has the right to be reinstated with payment of backwages.
The CA further held that Gonzales' dismissal was illegal because it was done without due process. The
proceedings under Administrative Case No. 001 cannot be the basis for complying with the requirements of
due process because they are separate and distinct from the proceedings in the present controversy. Thus,
Gonzales was illegally terminated when she was dismissed for lack of confidence, without any hearing, the
day after she was reinstated.
Lastly, the CA noted that Resolution No. 002245, which modified Governor Pimentel's decision, has long been
final and executory. The petitioner did not file any petition for reconsideration against Resolution No. 002245,
and hence, it is no longer alterable. AIDSTE
The petitioner sought a reconsideration 17 of the CA's Decision, which the CA denied in a Resolution 18 dated
December 2, 2008.
The Present Petition
In its present petition for review on certiorari, the petitioner argues that the provincial administrator position has
been converted into a highly confidential, coterminous position by RA 7160. Hence, Gonzales no longer
enjoyed security of tenure to the position she held prior to RA 7160's enactment. cIHSTC
In her Comment 19 and Memorandum, 20 Gonzales maintained that the provincial administrator remained a
career service position. Section 7 21 of Presidential Decree No. 807, which was one of the bases of the Court
in Laurel V v. Civil Service Commission 22 to declare the provincial administrator as a career service position,
is a verbatim copy of Section 7, 23 Chapter 2 of the Administrative Code. This classification, established by
law and jurisprudence, cannot be altered by the mere implementing rules and regulations of RA 7160. And
assuming arguendo that the provincial administrator position has indeed become a primarily confidential
position, this reclassification should not apply retroactively to Gonzales' appointment on a permanent capacity
prior to RA 7160's effectivity. HITAEC
Issues
The parties' arguments, properly joined, present to us the following issues:
1) Whether Congress has re-classified the provincial administrator position from a career service to a
primarily confidential, non-career service position; and
2) Whether Gonzales has security of tenure over her position as provincial administrator of the
Province of Camarines Norte.
The Court's Ruling
We find the petition meritorious. ASEIDH
Congress has reclassified the
provincial administrator position as
a primarily confidential, non-career
position
We support the CSC's conclusion that the provincial administrator position has been classified into a primarily
confidential, non-career position when Congress, through RA 7160, made substantial changes to it. First, prior
to RA 7160, Batas Pambansa Blg. 337, the old Local Government Code (LGC), did not include a provincial
administrator position among the listing of mandatory provincial officials, 24 but empowered the Sangguniang
Panlalawigan to create such other offices as might then be necessary to carry out the purposes of the
provincial government. 25 RA 7160 made the position mandatory for every province. 26 Thus, the creation of
CONSTI REV – FULL TEXT
the provincial administrator position under the old LGC used to be a prerogative of the Sangguniang
Panlalawigan. AISHcD
Second, in introducing the mandatory provincial administrator position, RA 7160 also amended the
qualifications for the provincial administrator position. While Section 480 27 of RA 7160 retained the
requirement of civil service eligibility for a provincial administrator, together with the educational requirements,
it shortened the six-year work experience requirement to five years. 28 It also mandated the additional
requirements of residence in the local government concerned, and imposed a good moral character
requirement.
Third, RA 7160 made the provincial administrator position coterminous with its appointing authority,
reclassifying it as a non-career service position that is primarily confidential.
Before RA 7160 took effect, Laurel classified the provincial administrator position as an open career position
which required qualification in an appropriate examination prior to appointment. Laurel placed the provincial
administrator position under the second major level of positions in the career service under Section 7 of
Presidential Decree No. 807. This provision reads: aAcHCT
Section 7. Classes of Positions in the Career Service. —
(a) Classes of positions in the career service appointment to which requires examinations shall be
grouped into three major levels as follows:
xxx xxx xxx
2. The second level shall include professional, technical, and scientific positions which involve
professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four
years of college work up to Division Chief level[.] TIAEac
Section 480 of RA 7160 made the provincial administrator's functions closely related to the prevailing
provincial administration by identifying the incumbent with the provincial governor to ensure the alignment of
the governor's direction for the province with what the provincial administrator would implement. In contrast
with the general direction provided by the provincial governor under the Manual of Position Descriptions cited
in Laurel, Section 480 (b) of RA 7160 now mandates constant interaction between the provincial administrator
and the provincial governor, to wit:
(b) The administrator shall take charge of the office of the administrator and shall:
(1) Develop plans and strategies and upon approval thereof by the governor or mayor, as the case
may be, implement the same particularly those which have to do with the management and administration-
related programs and projects which the governor or mayor is empowered to implement and which the
sanggunian is empowered to provide for under this Code;
(2) In addition to the foregoing duties and functions, the administrator shall: ASEcHI
(i) Assist in the coordination of the work of all the officials of the local government unit, under the
supervision, direction, and control of the governor or mayor, and for this purpose, he may convene the chiefs
of offices and other officials of the local government unit;
xxx xxx xxx
(4) Recommend to the sanggunian and advise the governor and mayor, as the case may be, on all
other matters relative to the management and administration of the local government unit[.] [emphases and
italics ours]
As the CSC correctly noted in Resolution No. 0001158, 29 the administrator position demands a close intimate
relationship with the office of the governor (its appointing authority) to effectively develop, implement and
administer the different programs of the province. The administrator's functions are to recommend to the
Sanggunian and to advise the governor on all matters regarding the management and administration of the
province, thus requiring that its occupant enjoy the governor's full trust and confidence. TSacID
To emphasize the close relations that the provincial administrators' functions have with the office of the
governor, RA 7160 even made the provincial administrator position coterminous with its appointing authority.
30 This provision, along with the interrelations between the provincial administrator and governor under
Section 480, renders clear the intent of Congress to make the provincial administrator position primarily
confidential under the non-career service category of the civil service. aAcDSC
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JULY 11, 2019
Congress' reclassification of the
provincial administrator position in
RA 7160 is a valid exercise of
legislative power that does not violate
Gonzales' security of tenure
Having established that Congress has changed the nature of the provincial administrator position to a primarily
confidential employee, the next question to address would be its impact on Gonzales' security of tenure.
According to the petitioner, Gonzales lost her security of tenure when the provincial administrator position
became a primarily confidential position. Gonzales, on the other hand, retorted that the conversion of the
position should not be retroactively applied to her, as she is a permanent appointee. Both the CA and the CSC
ruled in favor of the latter, and gave premium to Gonzales' original permanent appointment under the old LGC.
They posit that Gonzales acquired a vested legal right over her position from the moment she assumed her
duties as provincial administrator. Thus, she cannot be removed from office except for cause and after due
hearing; otherwise such removal would amount to a violation of her security of tenure.
The arguments presented by the parties and ruled upon by the CA reflect a conceptual entanglement between
the nature of the position and an employee's right to hold a position. These two concepts are different. The
nature of a position may change by law according to the dictates of Congress. The right to hold a position, on
the other hand, is a right that enjoys constitutional and statutory guarantee, but may itself change according to
the nature of the position. AaHTIE
Congress has the power and prerogative to introduce substantial changes in the provincial administrator
position and to reclassify it as a primarily confidential, non-career service position. Flowing from the legislative
power to create public offices is the power to abolish and modify them to meet the demands of society; 31
Congress can change the qualifications for and shorten the term of existing statutory offices. When done in
good faith, these acts would not violate a public officer's security of tenure, even if they result in his removal
from office or the shortening of his term. 32 Modifications in public office, such as changes in qualifications or
shortening of its tenure, are made in good faith so long as they are aimed at the office and not at the
incumbent. 33 SDAaTC
In Salcedo and Ignacio v. Carpio and Carreon, 34 for instance, Congress enacted a law modifying the offices
in the Board of Dental Examiners. The new law, RA 546, raised the qualifications for the board members, and
provided for a different appointment process. Dr. Alfonso C. Salcedo and Dr. Pascual Ignacio, who were
incumbent board members at the time RA 546 took effect, filed a special civil action for quo warranto against
their replacements, arguing that their term of office under the old law had not yet expired, and neither had they
abandoned or been removed from office for cause. We dismissed their petition, and held that Congress may,
by law, terminate the term of a public office at any time and even while it is occupied by the incumbent. Thus,
whether Dr. Salcedo and Dr. Ignacio were removed for cause or had abandoned their office is immaterial.
DASCIc
More recently, in Dimayuga v. Benedicto II, 35 we upheld the removal of Chona M. Dimayuga, a permanent
appointee to the Executive Director II position, which was not part of the career executive service at the time of
her appointment. During her incumbency, the CSC, by authority granted under Presidential Decree No. 1,
classified the Executive Director II position to be within the career executive service. Since Dimayuga was not
a career executive service officer, her initially permanent appointment to the position became temporary; thus,
she could be removed from office at any time.
In the current case, Congress, through RA 7160, did not abolish the provincial administrator position but
significantly modified many of its aspects. It is now a primarily confidential position under the non-career
service tranche of the civil service. This change could not have been aimed at prejudicing Gonzales, as she
was not the only provincial administrator incumbent at the time RA 7160 was enacted. Rather, this change was
part of the reform measures that RA 7160 introduced to further empower local governments and decentralize
the delivery of public service. Section 3 (b) of RA 7160 provides as one of its operative principles that:
(b) There shall be established in every local government unit an accountable, efficient, and dynamic
organizational structure and operating mechanism that will meet the priority needs and service requirements of
its communities[.] IcHSCT
Thus, Gonzales' permanent appointment as provincial administrator prior to the enactment of RA 7160 is
immaterial to her removal as provincial administrator. For purposes of determining whether Gonzales'
termination violated her right to security of tenure, the nature of the position she occupied at the time of her
CONSTI REV – FULL TEXT
removal should be considered, and not merely the nature of her appointment at the time she entered
government service.
In echoing the CSC and the CA's conclusion, the dissenting opinion posits the view that security of tenure
protects the permanent appointment of a public officer, despite subsequent changes in the nature of his
position.
Citing Gabriel v. Domingo, 36 the dissenting opinion quotes our categorical declaration that "a permanent
employee remains a permanent employee unless he is validly terminated[,]" and from there attempts to draw
an analogy between Gabriel and the case at hand. ETaSDc
The very first sentence of Gabriel spells out its vast difference from the present case. The sole and main issue
in Gabriel is whether backwages and other monetary benefits could be awarded to an illegally dismissed
government employee, who was later ordered reinstated. From this sentence alone can be discerned that the
issues involved related to the consequences of illegal dismissal rather than to the dismissal itself. Nowhere in
Gabriel was there any mention of a change in the nature of the position held by the public officer involved.
cCaDSA
Further, key factual differences make Gabriel inapplicable to the present case, even if only by analogy: first,
the public officer in Gabriel received a Memorandum stating that he would be appointed as Transportation
District Supervisor III under their office reorganization. Second, the Court in Gabriel clearly pointed out that the
reason for his eventual appointment as a casual employee, which led to his termination from service, was due
to a pending protest he filed before the CSC — indicating that there was no ground for him to not receive the
appointment earlier promised. In contrast, the issue of Gonzales is whether the appointing authority's lack of
trust and confidence in the appointee was sufficient cause for the termination of employment of a primarily
confidential employee. And third, there was a change in the position held by the public officer in Gabriel. He
was a permanent employee who was extended a different appointment, which was casual in nature, because
of a protest that he earlier filed. In contrast, the current case involves a public officer who held the same
position whose nature changed because of the passage of RA 7160.
The dissent also quotes the penultimate paragraph of Civil Service Commission v. Javier 37 to support its
contention that permanent appointees could expect protection for their tenure and appointments in the event
that the Court determines that the position is actually confidential in nature: CcSTHI
The Court is aware that this decision has repercussions on the tenure of other corporate secretaries in various
GOCCs. The officers likely assumed their positions on permanent career status, expecting protection for their
tenure and appointments, but are now re-classified as primarily confidential appointees. Such concern is
unfounded, however, since the statutes themselves do not classify the position of corporate secretary as
permanent and career in nature. Moreover, there is no absolute guarantee that it will not be classified as
confidential when a dispute arises. As earlier stated, the Court, by legal tradition, has the power to make a final
determination as to which positions in government are primarily confidential or otherwise. In the light of the
instant controversy, the Court's view is that the greater public interest is served if the position of a corporate
secretary is classified as primarily confidential in nature. 38 AECacS
The quoted portion, however, even bolsters our theory. Read together with its succeeding paragraph, the
quoted portion in Civil Service Commission v. Javier 39 actually stands for the proposition that other corporate
secretaries in government-owned and -controlled corporations cannot expect protection for their tenure and
appointments upon the reclassification of their position to a primarily confidential position. There, the Court
emphasized that these officers cannot rely on the statutes providing for their permanent appointments, if and
when the Court determines these to be primarily confidential. In the succeeding paragraph after the portion
quoted by the dissent, we even pointed out that there is no vested right to public office, nor is public service a
property right. Thus:
Moreover, it is a basic tenet in the country's constitutional system that "public office is a public trust," and that
there is no vested right in public office, nor an absolute right to hold office. No proprietary title attaches to a
public office, as public service is not a property right. Excepting constitutional offices which provide for special
immunity as regards salary and tenure, no one can be said to have any vested right in an office. The rule is
that offices in government, except those created by the constitution, may be abolished, altered, or created
anytime by statute. And any issues on the classification for a position in government may be brought to and
determined by the courts. 40 (emphases and italics ours) AHTICD
Executive Order No. 503 does not
grant Gonzales security of tenure
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JULY 11, 2019
in the provincial administrator
position on a permanent capacity
In extending security of tenure to Gonzales' permanent appointment as provincial administrator, the dissenting
opinion cites as authority Executive Order No. (EO) 503 which provided certain safeguards against the
termination of government employees affected by the implementation of RA 7160. According to the dissenting
opinion, EO 503 is an obvious indication of the executive department's intent to protect and uphold both the
national government and the local government employees' security of tenure. It cites Section 2 (a), paragraph
8 (providing for the tenure of an administrator) to prove its point: ADSIaT
8. Incumbents of positions, namely administrator, legal officer, and information officer declared by the
Code as coterminous, who hold permanent appointments, shall continue to enjoy their permanent status until
they vacate their positions.
At first glance, EO 503 does seem to extend the provincial administrators' security of tenure in their permanent
appointments even beyond the effectivity of RA 7160. EO 503, however, does not apply to employees of the
local government affected by RA 7160's enactment. The title of EO 503 clearly provides for its scope of
application, to wit:
Executive Order No. 503. Providing for the Rules and Regulations Implementing the Transfer of Personnel and
Assets, Liabilities and Records of National Government Agencies whose Functions are to be Devolved to the
Local Government Units and for other Related Purposes. [underscore, italics and emphases ours] TaISEH
A reading of EO 503's whereas clauses confirms that it applies only to national government employees whose
functions are to be devolved to local governments:
WHEREAS, Republic Act No. 7160, otherwise known as the Local Government Code of 1991, hereinafter
referred to as the Code, transfers the responsibility for the delivery of basic services and facilities from the
national government agencies (NGAs) concerned to the local government units (LGUs);
WHEREAS, the Code stipulated that the transfer of basic services and facilities shall be accompanied by the
transfer of the national personnel concerned and assets to ensure continuity in the delivery of such services
and facilities; CEDScA
WHEREAS, responsive rules and regulations are needed to affect the required transfer of national personnel
concerned and assets to the LGUs[.] [underscores, italics and emphases ours]
Thus, paragraph 8, Section 2 (a) of EO 503 cannot apply to Gonzales, a provincial administrator. As explained
earlier, the existence of the provincial administrator position was a prerogative of the Sanggunian
Panlalawigan, and was not even a mandatory public office under the old LGC. It is clearly not a national
government position whose functions are to be devolved to the local governments.
The dissenting opinion, on the other hand, argues that EO 503 does not apply to national government
employees only. According to the dissent, the phrase "and for related purposes" in EO 503's title could
encompass personnel not necessarily employed by national government agencies but by local government
units such as the administrator, the legal officer and the information officer, as enumerated in Section 2 (a),
paragraph 8 thereof. This provision, according to the dissent, fills the crucial gap left by RA 7160 which did not
provide whether the term of an incumbent provincial administrator would automatically become coterminous
with that of the appointing authority upon RA 7160's effectivity. EcHTDI
This kind of construction effectively adds to EO 503's object matters that it did not explicitly provide for. The
phrase "and for other related purposes" can only add to EO 503 matters related to the devolution of personnel,
basic services and facilities to local government units. The impact of the change in a local government
position's nature is clearly different from the implementation of devolution and its ancillary effects: the former
involves a change in a local government position's functions and concept of tenure, while the latter involves
(among other things) the transfer of national government employees to local government units. This difference
is highlighted by the fact that EO 503, as reflected by its whereas clauses, was issued to implement Section
17 of RA 7160. In contrast, the change in the nature of the provincial administrator position may be gleaned
from Section 480 of RA 7160. Hence, by no stretch of reasonable construction can the phrase "and for other
related purposes" in EO 503's title be understood to encompass the consequences of the change in the local
government position's nature. HaTDAE
Furthermore, construing that the administrator position in Section 2 (a), paragraph 8 pertains to city, municipal
and/or provincial administrators would result in a legal infirmity. EO 503 was issued pursuant to the President's
ordinance powers to provide for rules that are general or permanent in character for the purpose of
CONSTI REV – FULL TEXT
implementing the President's constitutional or statutory powers. 41 Exercising her constitutional duty to ensure
that all laws are faithfully executed, then President Corazon Aquino issued EO 503 to ensure the executive's
compliance with paragraph (i), Section 17 of RA 7160, which requires local government units to absorb the
personnel of national agencies whose functions shall be devolved to them. 42 This is reflected in EO 503's title
and whereas clauses, and its limited application as discussed earlier. DaHcAS
Thus, the dissenting opinion's interpretation would result in the judicial recognition of an act of the Executive
usurping a legislative power. The grant of permanent status to incumbent provincial administrators, despite the
clear language and intent of RA 7160 to make the position coterminous, is an act outside the President's
legitimate powers. The power to create, abolish and modify public offices is lodged with Congress. 43 The
President cannot, through an Executive Order, grant permanent status to incumbents, when Congress by law
has declared that the positions they occupy are now confidential. Such act would amount to the President's
amendment of an act of Congress — an act that the Constitution prohibits. Allowing this kind of interpretation
violates the separation of powers, a constitutionally enshrined principle that the Court has the duty to uphold.
44
The dissent counters this argument by pointing out that Section 2 (a), paragraph 8 of EO 503 enjoys the legal
presumption of validity. Unless the law or rule is annulled in a direct proceeding, the legal presumption of its
validity stands. The EO's validity, however, is not in question in the present case. What is at issue is a proper
interpretation of its application giving due respect to the principle of separation of powers, and the dissenting
opinion's interpretation does violence to this principle. CIDaTc
Gonzales has security of tenure, but
only as a primarily confidential
employee
To be sure, both career and non-career service employees have a right to security of tenure. All permanent
officers and employees in the civil service, regardless of whether they belong to the career or non-career
service category, are entitled to this guaranty; they cannot be removed from office except for cause provided
by law and after procedural due process. 45 The concept of security of tenure, however, labors under a
variation for primarily confidential employees due to the basic concept of a "primarily confidential" position.
Serving at the confidence of the appointing authority, the primarily confidential employee's term of office
expires when the appointing authority loses trust in the employee. When this happens, the confidential
employee is not "removed" or "dismissed" from office; his term merely "expires" 46 and the loss of trust and
confidence is the "just cause" provided by law that results in the termination of employment. In the present
case where the trust and confidence has been irretrievably eroded, we cannot fault Governor Pimentel's
exercise of discretion when he decided that he could no longer entrust his confidence in Gonzales. THADEI
Security of tenure in public office simply means that a public officer or employee shall not be suspended or
dismissed except for cause, as provided by law and after due process. It cannot be expanded to grant a right
to public office despite a change in the nature of the office held. In other words, the CSC might have been
legally correct when it ruled that the petitioner violated Gonzales' right to security of tenure when she was
removed without sufficient just cause from her position, but the situation had since then been changed. In fact,
Gonzales was reinstated as ordered, but her services were subsequently terminated under the law prevailing
at the time of the termination of her service; i.e., she was then already occupying a position that was primarily
confidential and had to be dismissed because she no longer enjoyed the trust and confidence of the
appointing authority. Thus, Gonzales' termination for lack of confidence was lawful. She could no longer be
reinstated as provincial administrator of Camarines Norte or to any other comparable position. This
conclusion, however, is without prejudice to Gonzales' entitlement to retirement benefits, leave credits, and
future employment in government service. STEacI
WHEREFORE, all premises considered, we hereby GRANT the petition, and REVERSE and SET ASIDE the
Decision dated June 25, 2008 and the Resolution dated December 2, 2008 of the Court of Appeals in CA-G.R.
SP No. 97425.
SO ORDERED. aHcACT
Carpio, Leonardo-de Castro, Peralta, Bersamin, Villarama, Jr., Perez, Mendoza, Reyes, Perlas-Bernabe and Leonen, JJ.,
concur.
Sereno, C.J., I join J. Del Castillo.
Velasco, Jr., J., I join the opinion of J.M. del Castillo.
Del Castillo, J., please see concurring and dissenting opinion.
Abad, J., I join the concurring and dissenting opinion of J. Del Castillo.
Separate Opinions
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JULY 11, 2019
DEL CASTILLO, J., concurring and dissenting:
The questions raised in this petition are (1) whether the Local Government Code (LGC) of 1991 reclassified the position of
Provincial Administrator into primarily confidential, a Non-Career service position; and (2) if in the affirmative, whether such
reclassification affects the tenure of respondent Beatriz C. Gonzales (Gonzales) who was appointed Provincial Administrator in a
permanent capacity prior to the LGC's effectivity. HaIATC
The LGC has classified the Provincial
Administrator position to primarily
confidential, a Non-Career position.
Positions in the Civil Service are classified into Career and Non-Career Service. Career Service is characterized by (1) entrance
based on merit and fitness to be determined as far as practicable by competitive examination, or based on highly technical
qualifications; (2) opportunity for advancement to higher Career Service positions; and (3) security of tenure. 1 Positions under
this classification are also sub-classified according to appointment status which may be either permanent or temporary. On the
other hand, the Non-Career Service is characterized by (1) entrance on bases other than those of the usual tests of merit and
fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is co-terminus with that
of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose
employment was made. 2 TAEcCS
Prior to the LGC and by virtue of Laurel V v. Civil Service Commission, 3 the Provincial Administrator position was declared by
this Court as not primarily confidential but classified under Career Service, particularly as an open career position which requires
qualification in an appropriate examination prior to appointment. However, upon the advent of the LGC, this classification was
altered pursuant to Section 480, Article X, Title V, Book 3 thereof which provides: AHCaED
ARTICLE X
THE ADMINISTRATOR
SECTION 480. Qualifications, Terms, Powers and Duties. — (a) No person shall be appointed administrator unless
he is a citizen of the Philippines, a resident of the local government unit concerned, of good moral character, a holder of a college
degree preferably in public administration, law or any other related course from a recognized college or university, and a first
grade civil service eligible or its equivalent. He must have acquired experience in management and administration work for at
least five (5) years in the case of the provincial or city administrator, and three (3) years in the case of municipal administrator.
The term of administrator is co[-]terminous with that of his appointing authority. DIEACH
The appointment of an administrator shall be mandatory for the provincial and city governments, and optional for the municipal
government.
(b) The administrator shall take charge of the office of the administrator and shall:
(1) Develop plans and strategies and upon approval thereof by the governor or mayor, as the case may be, implement
the same particularly those which have to do with the management and administration-related programs and projects which the
governor or mayor is empowered to implement and which the sanggunian is empowered to provide for under this Code;
(2) In addition to the foregoing duties and functions, the administrator shall: SECcIH
(i) Assist in the coordination of the work of all the officials of the local government unit, under the supervision,
direction, and control of the governor or mayor, and for this purpose, he may convene the chiefs of offices and other officials of
the local government unit;
(ii) Establish and maintain a sound personnel program for the local government unit designed to promote career
development and uphold the merit principle in the local government service;
(iii) Conduct a continuing organizational development of the local government unit with the end in view of instituting
effective administrative reforms;
(3) Be in the frontline of the delivery of administrative support services, particularly those related to the situations
during and in the aftermath of man-made and natural disasters and calamities; aAHSEC
(4) Recommend to the sanggunian and advise the governor and mayor, as the case may be, on all other matters
relative to the management and administration of the local government unit; and
(5) Exercise such other powers and perform such other duties and functions as may be prescribed by law or
ordinance.
The above-quoted duties and functions of a Provincial Administrator clearly reflect the confidential nature of the position. As the
one in charge of the development and implementation of management and administration-related programs and projects of the
provincial government, the Provincial Administrator enjoys the Governor's highest degree of trust in his ability, integrity and
loyalty. Complete trust and confidence must exist between the two since essential management and administration programs of
the province are on the line. The need for a relationship based on trust and confidence is vital to preserving between them the
freedom of intimate communication without embarrassment or freedom from misgivings of betrayals of personal trust or
confidential matters of the province. This was affirmed by former Senator Aquilino Q. Pimentel, Jr. in his commentary in his book,
The Local Government Code Revisited, 4 where he stated: HAIaEc
A good administrator can handle a large part of the day to day work of the . . . governor. If he is competent and enjoys the full
trust and confidence of the . . . governor, he can accelerate the pace and expand the scope of the work of any local government
administration.
Also, a Provincial Administrator's duties and functions can hardly be typified as ordinary and routinary in character. He develops
plans and strategies relating to the management, administration-related programs and projects of the provincial government and,
with the approval of the Governor, implements them. He coordinates the work of all officials under the Governor, establishes and
maintains a sound personnel program and conducts a continuing organizational development of the provincial government. He is
in the frontline of the delivery of administrative support services and even recommends to the Sanggunian Panlalawigan and
advises the Governor on all other matters about the management and administration of the local government unit concerned.
Clearly, a Provincial Administrator enjoys wide latitude of discretion and authority in the discharge of his/her duties and functions
and this negates their ordinary and routinary character. IaEASH
Moreover, the Provincial Administrator submits directly to the Governor his plans and strategies for the latter's approval and also
reports to him all matters relative to the management and administration of the provincial government. There is no intervening
officer between them. Stated otherwise, there is close proximity between the Governor and the Provincial Administrator.
SaDICE
CONSTI REV – FULL TEXT
In view of the above and pursuant to the following guidelines laid down by the Court in various cases with respect to the proper
determination of whether a position is primarily confidential, to wit: (1) that a primarily confidential position is one which requires
upon its occupant confidence that is much more than the ordinary; 5 (2) that it is the nature of the functions attached to the
position which ultimately determines whether a position is primarily confidential 6 which must not be routinary, ordinary and day
to day in character 7 or mainly clerical; 8 and, (3) that positions of a confidential nature would be limited to those positions not
separated from the position of the appointing authority by an intervening public officer, or series of public officers, in the
bureaucratic hierarchy 9 (proximity rule); I agree with the ponencia that the LGC categorized the Provincial Administrator position
as primarily confidential, hence reclassified it from Career to Non-Career Service position.
Article 480 of the LGC did not affect the
tenure of Gonzales.
The more crucial question now is whether the co-terminus status that attaches to a primarily confidential position, alongside the
express declaration in Article 480 of the LGC that the term of a Provincial Administrator is co-terminous with that of his appointing
authority, affects the tenure of Gonzales who was appointed to the said position in a permanent status prior to the effectivity of
the LGC. The answer to this question will determine if Gonzales was validly dismissed due to lack of confidence. aHCSTD
The ponencia points out that Congress has the power to create, abolish or modify public offices and that pursuant to this power,
it can change the qualifications for and shorten the term of, existing statutory offices. It concludes that although Gonzales was
appointed in a permanent status, the fact that Congress, through the LGC, categorized the term of a Provincial Administrator as
co-terminus it in effect converted such permanent status into co-terminous. The ponencia thus declares that Gonzales can be
validly dismissed due to lack of confidence. aDICET
The power of Congress to create, abolish or modify public offices is not doubted. Indeed, the "creation . . . abolition [and
reorganization] of public offices is primarily a legislative function. It is acknowledged that Congress may abolish [or reorganize]
any office it creates without impairing the officer's right to continue in the position held . . . [provided that] same is made in good
faith." 10 However, I submit that the reclassification made by Congress under Article 480 of the LGC cannot be made to apply to
this case. Otherwise stated, Article 480 of the LGC did not affect the tenure of Gonzales based on the following considerations:
(1) Gonzales was appointed to the said position prior to the LGC's effectivity; (2) Gonzales had already acquired a legal right to
her permanent position, she having been issued, and having assumed, a completed appointment. Hence, enjoys security of
tenure as a permanent appointee to the position of Provincial Administrator; and (3) The Court had already ruled in Laurel that
the position of Provincial Administrator is under the Career Service; and finally, Executive Order (EO) No. 503 11 specifically and
expressly provides that [Provincial] Administrators who hold permanent appointments but whose terms were declared by the
LGC as co-terminous shall continue to enjoy their permanent status until they vacate their positions. cdrep
Gonzales enjoys security of tenure as a
permanent employee, hence, she cannot
be removed for a cause not provided by
law for removing a permanent appointee
and without due process of law.
Security of tenure is a right of paramount value and this is precisely why it is given specific recognition and guarantee by no less
than the Constitution. 12 Hence, the Court will not hesitate to uphold an employee's right to security of tenure. 13
Here, there can be no doubt that Gonzales deserves to be extended the protection of the constitutionally enshrined right to
security of tenure. As may be recalled, Gonzales was appointed Provincial Administrator on April 1, 1991 in a permanent capacity
or prior to the effectivity of the LGC. This appointment was approved by the Civil Service Commission (CSC) Field Office in
Camarines Norte. The approval could only mean that the CSC then classified the position of Provincial Administrator as
embraced within the Career Service since only positions under it are sub-classified as permanent. This classification made by
the CSC was later affirmed by the Court through Laurel promulgated on October 28, 1991. Under these circumstances,
Gonzales already became entitled to enjoy one of the characteristics of a Career Service position — security of tenure. 14
However, after more than eight years of serving as a Provincial Administrator, Gonzales was dismissed from her position under
the guise that the then sitting Governor had lost his trust and confidence on her considering that at that time the LGC was
already in effect. caHIAS
"[A] permanent employee remains a
permanent employee unless he is validly
terminated." 15
In Gabriel v. Domingo, 16 therein petitioner Maximo Gabriel (Gabriel) was originally issued a permanent appointment as Motor
Vehicle Registrar I at the Land Transportation Office. Thereafter, a reorganization took place by virtue of EO 546. 17 Pursuant
thereto, plantilla positions were renamed and the position of Gabriel was changed to Transportation District Supervisor. But after
having filed a protest against appointees to a higher position to which he applied and believed was more qualified, Gabriel was
served a casual appointment. Three days later, he was dismissed from the service. The Court thus said: ESCcaT
Under the Constitution, it is provided that the security of tenure of civil servants shall be afforded protection. By this constitutional
mandate, government employees are protected against unjustified dismissals.
Petitioner[,] who started working for the government way back in 1961[,] was already a holder of a permanent position at the time
the reorganization caused by Executive Order No. 546 took effect. This is evident from his service record. HEcaIC
As observed by the Merit Systems Board, the casual appointment extended to petitioner later on, which led to his sudden and
unexpected termination from the service, was made as a consequence of the protest he filed against the appointment of the
eleven appointees to the position of Transportation District Supervisor III, and as such, it is illegal. This being the case, petitioner
remained a permanent employee in spite of the casual appointment belatedly extended to him following the rule that a
permanent employee remains a permanent employee unless he is validly terminated. The principle of non-dismissal except for
cause applies to him. 18
Similarly, in the instant case, Gonzales was originally issued a permanent appointment. Subsequently, she was administratively
charged and found guilty of gross insubordination for which she was meted the penalty of six months suspension. After serving
her suspension, the CSC directed the Provincial Government to reinstate her. Eventually, on October 10, 2000, the Provincial
Government informed the CSC that it will reinstate Gonzales effective the following day, October 11, 2000, but would dismiss her
for lack of confidence the next day, October 12, 2000, on the premise that her position had already become primarily confidential
by virtue of the LGC. Gonzales' dismissal, however, as aptly found by the CA in its assailed Decision, was without cause and
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JULY 11, 2019
effected without due process of law, hence, illegal. This being the case, the pronouncement made in Gabriel that a permanent
employee remains a permanent employee unless he is validly terminated finds application in this case. cSaATC
Another case worth considering is Civil Service Commission v. Javier. 19 The Court therein concluded that the position of a
Corporate Secretary in a Government Owned and Controlled Corporation (GOCC) which at that time was classified as a
permanent career position, is primarily confidential in nature. In recognizing the effect of such declaration on the tenure of
corporate secretaries appointed under a permanent status, the Court elucidated: HCSAIa
The Court is aware that this decision has repercussions on the tenure of other corporate secretaries in various GOCCs. The
officers likely assumed their positions on permanent career status, expecting protection for their tenure and appointments, but
are now re-classified as primarily confidential appointees. Such concern is unfounded, however, since the statutes themselves
do not classify the position of corporate secretary as permanent and career in nature. Moreover, there is no absolute guarantee
that it will not be classified as confidential when a dispute arises. As earlier stated, the Court, by legal tradition, has the power to
make a final determination as to which positions in government are primarily confidential or otherwise. . . . 20 (Emphasis
supplied)
It can thus be inferred from the above-quoted that had there been a prior classification by statute or determination by the Court of
the position of Corporate Secretary as a permanent career position, permanent appointees thereto could expect protection for
their tenure and appointments. In the instant case, a prior determination by the Court that the Provincial Administrator position is
a permanent career position exists by virtue of Laurel. This was made at the time Gonzales had already assumed a completed
appointment as a Provincial Administrator under a permanent status. Clearly, said judicial determination afforded Gonzales the
protection for her tenure and appointment. The security of tenure of a permanent employee already attached to her, hence, she
cannot be removed from office for a cause not provided by law for removing a permanent appointee and without due process of
law. cHAIES
EO 503 specifically and expressly
provides for the tenure of a Provincial
Administrator who holds a permanent
appointment prior to the effectivity of the
LGC.
On January 22, 1992, President Corazon C. Aquino issued EO 503. Wary that the advent of the LGC would impinge on the
security of tenure of not only the personnel of the national government agencies and local government units involved in the
devolution brought about by the LGC, but also of such other personnel otherwise affected, Section 2 (a) of EO 503 provided
certain safeguards against termination, 21 particularly paragraphs 5, 6, 8, 12, 22 — an obvious indication that the executive
department likewise sought to protect and uphold the security of tenure of the personnel concerned. Section 2 (a), paragraph 8,
specifically and expressly provides for the tenure of an administrator, viz.: cTSHaE
8. Incumbents of positions, namely administrator, legal officer and information officer declared by the Code as
co[-]terminous, who hold permanent appointments, shall continue to enjoy their permanent status until they vacate their
positions. (Emphasis supplied)
It is crystal clear from the above provision that notwithstanding the express declaration in Section 480 of the LGC that the term of
an administrator is co-terminous with that of his appointing authority, deference is accorded to the right to security of tenure of
those holding the said position in a permanent status prior to the LGC's effectivity. aICHEc
The ponencia opines that EO 503 applies only to employees of the national government whose functions are to be devolved to
local government. I disagree. EO 503 is entitled "PROVIDING FOR THE RULES AND REGULATIONS IMPLEMENTING THE
TRANSFER OF PERSONNEL AND ASSETS, LIABILITIES AND RECORDS OF NATIONAL GOVERNMENT AGENCIES
WHOSE FUNCTIONS ARE TO BE DEVOLVED TO THE LOCAL GOVERNMENT UNITS AND FOR OTHER RELATED
PURPOSES." The phrase "AND FOR OTHER RELATED PURPOSES" could encompass personnel not necessarily employed
by national government agencies but by local government units such as the Administrator, the Legal Officer and the Information
Officer, as enumerated in Section 2 (a), paragraph 8 thereof. The LGC declared their term to be co-terminous with their
appointing authority; 23 thus, it is not farfetched to conclude that they are the officers referred to in Section 2 (a), paragraph 8 of
EO 503. This is even more so, considering that Section 480 of the LGC does not provide whether the term of an incumbent
Provincial Administrator automatically becomes co-terminous with the appointing authority upon the effectivity of the LGC.
Section 2 (a), paragraph 8, of EO 503 is considered to have filled such crucial gap. The said provision enjoys the legal
presumption of validity. "Unless the law or rule is annulled in a direct proceeding, the legal presumption of its validity stands." 24
As such, there can be no other logical conclusion than that Gonzales is entitled to continue to hold her position as Provincial
Administrator under a permanent status. IDaEHC
Finally, the ponencia declares that "[a]ll permanent officers and employees in the civil service, regardless of whether they belong
to the career or non-career service category" have the right to security of tenure; as such, they can only be removed for cause
and with due process.
In the instant case, the CA correctly held that Gonzales' dismissal was without cause and effected without due process of law,
hence illegal. Records show that Gonzales was administratively charged with, and found guilty of, insubordination. She was
meted the penalty of six months suspension which she served. Thereafter, she was dismissed from the service based on the
same set of factual circumstances for which she was charged and eventually suspended. Notably, she was informed of her
"reinstatement" on the same day she was notified of her dismissal supposedly for lack of confidence. Otherwise stated, by virtue
of the letter dated October 10, 2000, Gonzales was informed of her reinstatement effective October 11, 2000. But even before
she could expel a sigh of relief, the next paragraph of the same letter already notified her of her termination effective the
following day, October 12, 2000. For better appreciation, the said letter is quoted below: aSCHIT
October 10, 2000
Ms. Beatriz O. Gonzales
Provincial Administrator
Provincial Capitol
Daet, Camarines Norte
Dear Mrs. Gonzales:
We received today your letter of even date, quoting the dispositive portion of the CSC Resolution No. 002245, in relation to CSC
Administrative Case No. 1171-91. TcEDHa
CONSTI REV – FULL TEXT JULY 11, 2019

In compliance with the said CSC Resolution, you are considered reinstated as Provincial Administrator effective October 11, (20) Borrowing money by superior officers from subordinates or lending by subordinates to superior
2000. officers;
Be that as it may, considering that the position of Administrator whether Provincial, Municipal or City, has been reclassified from (21) Lending money at usurious rates of interest;
Career position to Non career position in line with the ruling in the case of Reyes, Carmencita O., under Resolution No. 0001158, (22) Willful failure to pay just debts or willful failure to pay taxes due to the government;
dated May 12, 2000, the nature of which is highly confidential and co-terminous in nature, please be informed that effective (23) Contracting loans of money or other property from persons with whom the office of the employee
October 12, 2000, your services as Provincial Administrator is terminated for LOSS OF CONFIDENCE. concerned has business relations;
As you may be aware of since we assumed as the duly elected Governor of Camarines Norte on September 23, 1998; no new (24) Pursuit of private business, vocation or profession without the permission required by Civil
appointment has been issued to you as Provincial Administrator. ADaEIH Service rules and regulations;
Even in an Opinion of the CSC dated June 1, 1995, it has been opined that appointment of a local administrator is co[-]terminous (25) Insubordination;
with the appointing authority and needs to be renewed upon expiration of the term of office of whoever appointed you, prior to (26) Engaging directly or indirectly in partisan political activities by one holding a non-political office;
our assumption as Governor. (27) Conduct prejudicial to the best interest of the service;
Accordingly, you are advised not to report for work effective October 12, 2000. (28) Lobbying for personal interest or gain in legislative halls or offices without authority;
Very truly yours, (29) Promoting the sale of tickets in behalf of private enterprises that are not intended for charitable or
(Signed) public welfare purposes and even in the latter cases if there is no prior authority;
EMMANUEL B. PIMENTEL 25 CScTED (30) Nepotism as defined in Section 60 of this Title.
In view of these, I submit that Gonzales has the right to security of tenure and that she is entitled to continue to hold the position 17. Rollo, pp. 45-49.
of Provincial Administrator in a permanent status. Thus, her reinstatement thereto is called for. 18. Supra note 3.
However, mindful of the fact that the present times and the exigencies of the service would necessarily require Gonzales to 19. Id. at 122-132.
discharge the duties and functions of a Provincial Administrator laid down in Section 480 of the LGC once she gets reinstated, a 20. Id. at 151-170.
critical question thus arises: How can she effectively discharge these duties and functions which as earlier discussed necessitate 21. Section 7. Classes of Positions in the Career Service. —
the full trust and confidence of the incumbent governor when she does not, in the first place, enjoy such trust and confidence? (a) Classes of positions in the career service appointment to which requires examinations shall be
Under this peculiar situation, the CSC's disquisition in its Resolution No. 061988 ordering the immediate reinstatement of grouped into three major level as follows:
Gonzales as Provincial Administrator or to a comparable position of a permanent status, should the former become untenable 1. The first level shall include clerical, trades, crafts, and custodial service positions which involve
under the present situation, is appropriate. In which case, neither the interest of service nor Gonzales' security of tenure is non-professional or subprofessional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate
compromised. This is also in keeping with the Court's duty, as a dispenser of justice, to find a solution that is both legal and studies;
realistic. 26 IEAaST 2. The second level shall include professional, technical, and scientific positions which involve
All told, I find no error on the part of the CA in affirming the Orders of the Civil Service Commission. professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work
ACCORDINGLY, I vote to DENY the Petition. CacISA up to Division Chief level; and
Footnotes 3. The third level shall cover positions in the Career Executive Service.
1. Rollo, pp. 18-27; under Rule 45 of the Rules of Court. (b) Except as herein otherwise provided, entrance to the first two levels shall be through competitive
2. Id. at 32-44; penned by Associate Justice Marlene Gonzales-Sison, and concurred in by Associate Justices Amelita examinations, which shall be open to those inside and outside the service who meet the minimum qualification requirements.
G. Tolentino and Lucenito N. Tagle. Entrance to a higher level does not require previous qualification in the lower level. Entrance to the third level shall be prescribed
3. Id. at 50-51. by the Career Executive Service Board.
4. Id. at 32-33. (c) Within the same level, no civil service examination shall be required for promotion to a higher
5. Id. at 59-65. position in one or more related occupational groups. A candidate for promotion should, however, have previously passed the
6. Id. at 66-77. examination for that level.
7. Id. at 33. 22. G.R. No. 71562, October 28, 1991, 203 SCRA 195.
8. Id. at 78-81. 23. SECTION 7. Career Service. — The Career Service shall be characterized by (1) entrance based on merit and
9. Id. at 83-84. fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2)
10. Reyes, Carmencita O., Re: Appointment; Provincial Administrator. opportunity for advancement to higher career positions; and (3) security of tenure.
11. Rollo, pp. 85-88. The Career Service shall include:
12. Id. at 90. (1) Open Career positions for appointment to which prior qualification in an appropriate examination is
13. Id. at 90-97. required;
14. Id. at 32-44. (2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty
15. G.R. No. 92403, April 22, 1992, 208 SCRA 240. and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions
16. SECTION 46. Discipline: General Provisions. — (a) No officer or employee in the Civil Service shall be suspended which shall establish and maintain their own merit systems;
or dismissed except for cause as provided by law and after due process. (3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau
(b) The following shall be grounds for disciplinary action: Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other
(1) Dishonesty; officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the
(2) Oppression; President;
(3) Neglect of duty; (4) Career officers, other than those in the Career Executive Service, who are appointed by the
(4) Misconduct; President, such as the Foreign Service Officers in the Department of Foreign Affairs;
(5) Disgraceful and immoral conduct; (5) Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate
(6) Being notoriously undesirable; merit system;
(7) Discourtesy in the course of official duties; (6) Personnel of government-owned or controlled corporations, whether performing governmental or
(8) Inefficiency and incompetence in the performance of official duties; proprietary functions, who do not fall under the non-career service; and
(9) Receiving for personal use of a fee, gift or other valuable thing in the course of official duties or in (7) Permanent laborers, whether skilled, semi-skilled, or unskilled.
connection therewith when such fee, gift, or other valuable thing is given by any person in the hope or expectation of receiving a 24. Section 199. Officials of the Provincial Government. —
favor or better treatment than that accorded other persons, or committing acts punishable under the anti-graft laws; (1) There shall be in each province a governor, a vice-governor, members of the sangguniang
(10) Conviction of a crime involving moral turpitude; panlalawigan, a provincial secretary, a provincial treasurer, a provincial assessor, a provincial budget officer, a provincial
(11) Improper or unauthorized solicitation of contributions from subordinate employees and by engineer, a provincial agriculturist and a provincial planning and development coordinator.
teachers or school officials from school children; 25. Section 199. . . .
(12) Violation of existing Civil Service Law and rules or reasonable office regulations; xxx xxx xxx
(13) Falsification of official document; (3) The sangguniang panlalawigan may maintain existing offices not mentioned in paragraph (1) of
(14) Frequent unauthorized absences or tardiness in reporting for duty, loafing or frequent [this] section, or create such other offices as may be necessary to carry out the purposes of the provincial government, or may
unauthorized absences from duty during regular office hours; consolidate the functions of any one of such offices with those of another in the interest of efficiency and economy.
(15) Habitual drunkenness; 26. Section 463. Officials of the Provincial Government. —
(16) Gambling prohibited by law; (a) There shall be in each province a governor, a vice-governor, members of the sangguniang
(17) Refusal to perform official duty or render overtime service; panlalawigan, a secretary to the sangguniang panlalawigan, a provincial treasurer, a provincial assessor, . . . a provincial
(18) Disgraceful, immoral or dishonest conduct prior to entering the service; planning and development coordinator, a provincial legal officer, a provincial administrator[.] [italics and emphasis ours]
(19) Physical or mental incapacity or disability due to immoral or vicious habits; 27. Section 480. Qualifications, Terms, Powers and Duties. —

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(a) No person shall be appointed administrator unless he is a citizen of the Philippines, a resident of 11. PROVIDING FOR THE RULES AND REGULATIONS IMPLEMENTING THE TRANSFER OF PERSONNEL AND
the local government unit concerned, of good moral character, a holder of a college degree preferably in public administration, ASSETS, LIABILITIES AND RECORDS OF NATIONAL GOVERNMENT AGENCIES WHOSE FUNCTIONS ARE TO BE
law, or any other related course from a recognized college or university, and a first grade civil service eligible or its equivalent. He DEVOLVED TO THE LOCAL GOVERNMENT UNITS AND FOR OTHER RELATED PURPOSES.
must have acquired experience in management and administration work for at least five (5) years in the case of the provincial or 12. City Service Corporation Workers Union v. City Service Corporation, 220 Phil. 239, 242 (1985).
city administrator, and three (3) years in the case of the municipal administrator. 13. St. Mary's Academy of Dipolog City v. Palacio, G.R. No. 164913, September 8, 2010, 630 SCRA 263, 265.
28. Citing the Manual of Position Descriptions, the Court in Laurel V v. Civil Service Commission, supra note 22, at 14. See Section 7, Subtitle A, Title 1, Book V of the Administrative Code of 1987.
204, noted that the provincial administrator position has the following requirements: 15. Gabriel v. Domingo, G.R. No. 87420, September 17, 1990, 189 SCRA 672.
Education: Bachelor's degree preferably in Law/Public or Business Administration. 16. Id.
Experience: Six years of progressively responsible experience in planning, directing and 17. Entitled "CREATING A MINISTRY OF PUBLIC WORKS AND A MINISTRY OF TRANSPORTATION AND
administration of provincial government operations. Experience in private agencies considered are those that have been more or COMMUNICATIONS."
less familiar level of administrative proficiency. 18. Gabriel v. Domingo, supra at 676.
Eligibility: RA 1080 (BAR)/Personnel Management Officer/Career Service (Professional)/First 19. Supra note 7.
Grade/Supervisor. 20. Id. at 113.
29. Reyes, Carmencita O., Re: Appointment; Provincial Administrator. 21. Atty. Aguirre, Jr. v. De Castro, 378 Phil. 714, 725 (1999).
30. Section 480, RA 7160; Article 119 of the Implementing Rules and Regulations of RA 7160 provides: 22. 5. There shall be no involuntary separation, termination, or lay-off of permanent personnel of the NGAs [National
ARTICLE 119. Appointment of Appointive Local Officials. — (a) Unless otherwise provided in this Government Agencies] affected by devolution.
Rule, heads of offices and departments in the LGUs shall be appointed by the local chief executive concerned with the 6. Devolved permanent personnel shall enjoy security of tenure.
concurrence of a majority of all the members of the sanggunian, subject to civil service laws, rules and regulations. xxx xxx xxx
(b) The sanggunian concerned shall act on the appointment within fifteen (15) days from the date of 8. Incumbents of positions, namely administrator, legal officer, and information officer declared by the
its submission; otherwise, the same shall be deemed confirmed. Code as co[-]terminous, who hold permanent appointments, shall continue to enjoy their permanent status until they vacate their
(c) The term of office of the local administrator, local legal officer, and local information officer is positions.
coterminous with that of their appointing authority. xxx xxx xxx
31. The creation and abolition of public offices are primarily legislative functions. It is acknowledged that Congress may 12. Except as herein otherwise provided, devolved permanent personnel shall be automatically
abolish any office it creates without impairing the officer's right to continue in the position held and that such power may be reappointed by the local chief executive concerned immediately upon their transfer which shall not go beyond June 30, 1992.
exercised for various reasons, such as the lack of funds or in the interest of economy. However, in order for the abolition to be 23. See Section 480, Article Ten; Section 481, Article Eleven; Section 486, Article Sixteen; all of Title Five, Book III, of
valid, it must be made in good faith, not for political or personal reasons, or in order to circumvent the constitutional security of the Local Government Code.
tenure of civil service employees (Canonizado v. Hon. Aguirre, 380 Phil. 280, 286 [2000]). See also The Law on Public Officers 24. Dasmariñas Water District v. Monterey Foods Corporation, G.R. No. 175550, September 17, 2008, 565 SCRA 624,
and Election Law, Hector S. de Leon, p. 336. 637.
32. See Salcedo and Ignacio v. Carpio and Carreon, 89 Phil. 254 (1951); and Eraña v. Vergel de Dios, 85 Phil. 17 25. CA rollo, pp. 37-38.
(1949). 26. Concurring Opinion of Chief Justice Moran in Araneta v. Dinglasan, 84 Phil. 368, 387 (1949).
33. The Law on Public Officers and Election Law, Hector S. de Leon, p. 336.
34. Supra note 32.
35. 424 Phil. 707 (2002).
36. G.R. No. 87420, September 17, 1990, 189 SCRA 672, 676.
37. 570 Phil. 89 (2008).
38. Id. at 113.
39. Supra note 37.
40. Id. at 113-114; citations omitted.
41. Section 2, Chapter 2, Title I of the Administrative Code.
42. (i) The devolution contemplated in this Code shall include the transfer to local government units of the records,
equipment, and other assets and personnel of national agencies and offices corresponding to the devolved powers, functions,
and responsibilities.
Personnel of said national agencies or offices shall be absorbed by the local government units to
which they belong or in whose areas they are assigned to the extent that it is administratively viable as determined by the said
oversight committee: Provided, That the rights accorded to such personnel pursuant to civil service law, rules and regulations
shall not be impaired: Provided, further, That regional directors who are career executive service officers and other officers of
similar rank in the said regional offices who cannot be absorbed by the local government unit shall be retained by the national
government, without any diminution of rank, salary or tenure.
43. Canonizado v. Hon. Aguirre, supra note 31.
44. But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of the government. The overlapping and interlacing of functions and duties
between the several departments, however, sometimes makes it hard to say just where the one leaves off and the other begins. .
. . In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper
allocation of powers between the several departments and among the integral or constituent units thereof. (Angara v. Electoral
Commission, 63 Phil. 139, 157 [1936].)
45. Jocom v. Judge Regalado, 278 Phil. 83, 94 (1991), citing Tapales v. President and Board of Regents of the
University of the Philippines, 117 Phil. 561 (1963).
46. Ingles v. Mutuc, 135 Phil. 177, 182 (1968).
DEL CASTILLO, J., concurring and dissenting:
1. Section 7, Subtitle A, Title I, Book V, Administrative Code of 1987.
2. Section 9, Subtitle A, Title I, Book V, Administrative Code of 1987.
3. G.R. No. 71562, October 28, 1991, 203 SCRA 195.
4. 2011 Edition, p. 688.
5. De los Santos v. Mallare, 87 Phil. 289, 298 (1950).
6. Piñero v. Hechanova, 124 Phil. 1022, 1026 (1966).
7. Civil Service Commission v. Javier, 570 Phil. 89, 108 (2008).
8. Ingles v. Mutuc, 135 Phil. 177, 184 (1968).
9. Civil Service Commission v. Javier, supra at 109.
10. Canonizado v. Hon. Aguirre, 380 Phil. 280, 286, (2000).

SECOND DIVISION

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[G.R. No. 164679. July 27, 2011.]
OFFICE OF THE OMBUDSMAN, petitioner, vs. ULDARICO P. ANDUTAN, JR., respondent.
DECISION
BRION, J p:
Through a petition for review on certiorari, 1 the petitioner Office of the Ombudsman (Ombudsman) seeks the
reversal of the decision 2 of the Court of Appeals (CA), dated July 28, 2004, in "Uldarico P. Andutan, Jr. v.
Office of the Ombudsman and Fact Finding and Intelligence Bureau (FFIB), etc.," docketed as CA-G.R. SP
No. 68893. The assailed decision annulled and set aside the decision of the Ombudsman dated July 30, 2001,
3 finding Uldarico P. Andutan, Jr. guilty of Gross Neglect of Duty. DcaSIH
THE FACTUAL ANTECEDENTS
Andutan was formerly the Deputy Director of the One-Stop Shop Tax Credit and Duty Drawback Center of the
Department of Finance (DOF). On June 30, 1998, then Executive Secretary Ronaldo Zamora issued a
Memorandum directing all non-career officials or those occupying political positions to vacate their positions
effective July 1, 1998. 4 On July 1, 1998, pursuant to the Memorandum, Andutan resigned from the DOF. 5
On September 1, 1999, Andutan, together with Antonio P. Belicena, former Undersecretary, DOF; Rowena P.
Malonzo, Tax Specialist I, DOF; Benjamin O. Yao, Chairman and Executive Officer, Steel Asia Manufacturing
Corporation (Steel Asia); Augustus S. Lapid, Vice-President, Steel Asia; Antonio M. Lorenzana, President and
Chief Operating Officer, Steel Asia; and Eulogio L. Reyes, General Manager, Devmark Textiles Ind., Inc., was
criminally charged by the Fact Finding and Intelligence Bureau (FFIB) of the Ombudsman with Estafa through
Falsification of Public Documents, and violations of Section 3 (a), (e) and (j) of Republic Act No. (R.A.) 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act. 6 As government employees, Andutan, Belicena
and Malonzo were likewise administratively charged of Grave Misconduct, Dishonesty, Falsification of Official
Documents and Conduct Prejudicial to the Best Interest of the Service. 7
The criminal and administrative charges arose from anomalies in the illegal transfer of Tax Credit Certificates
(TCCs) to Steel Asia, among others. 8
During the investigation, the FFIB found that Steel Asia fraudulently obtained TCCs worth Two Hundred Forty-
Two Million Four Hundred Thirty-Three Thousand Five Hundred Thirty-Four Pesos (P242,433,534.00). 9 The
FFIB concluded that Belicena, Malonzo and Andutan — in their respective capacities — irregularly approved
the "issuance of the TCCs to several garment/textile companies and allowing their subsequent illegal transfer"
to Steel Asia. 10 TCDcSE
On November 11, 1999, the Ombudsman ordered the respondents therein (respondents) to submit their
counter-affidavits. Only Malonzo complied with the order, prompting the Ombudsman to set a Preliminary
Conference on March 13, 2000.
Upon the respondents' failure to appear at the March 20, 2000 hearing, the Ombudsman deemed the case
submitted for resolution.
On July 30, 2001, the Ombudsman found the respondents guilty of Gross Neglect of Duty. 11 Having been
separated from the service, Andutan was imposed the penalty of forfeiture of all leaves, retirement and other
benefits and privileges, and perpetual disqualification from reinstatement and/or reemployment in any branch
or instrumentality of the government, including government owned and controlled agencies or corporations. 12
After failing to obtain a reconsideration of the decision, 13 Andutan filed a petition for review on certiorari
before the CA.
On July 28, 2004, 14 the CA annulled and set aside the decision of the Ombudsman, ruling that the latter
"should not have considered the administrative complaints" because: first, Section 20 of R.A. 6770 provides
that the Ombudsman "may not conduct the necessary investigation of any administrative act or omission
complained of if it believes that . . . [t]he complaint was filed after one year from the occurrence of the act or
omission complained of"; 15 and second, the administrative case was filed after Andutan's forced resignation.
16
THE PETITIONER'S ARGUMENTS
In this petition for review on certiorari, the Ombudsman asks the Court to overturn the decision of the CA. It
submits, first, that contrary to the CA's findings, administrative offenses do not prescribe after one year from
their commission, 17 and second, that in cases of "capital" administrative offenses, resignation or optional
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JULY 11, 2019
retirement cannot render administrative proceedings moot and academic, since accessory penalties such as
perpetual disqualification and the forfeiture of retirement benefits may still be imposed. 18 EaSCAH
The Ombudsman argues that Section 20 of R.A. 6770 is not mandatory. Consistent with existing
jurisprudence, the use of the word "may" indicates that Section 20 is merely directory or permissive. 19 Thus,
it is not ministerial upon it to dismiss the administrative complaint, as long as any of the circumstances under
Section 20 is present. 20 In any case, the Ombudsman urges the Court to examine its mandate under Section
13, Article XI of the 1987 Constitution, and hold that an imposition of a one (1) year prescriptive period on the
filing of cases unconstitutionally restricts its mandate. 21
Further, the Ombudsman submits that Andutan's resignation from office does not render moot the
administrative proceedings lodged against him, even after his resignation. Relying on Section VI (1) of Civil
Service Commission (CSC) Memorandum Circular No. 38, 22 the Ombudsman argues that "[a]s long as the
breach of conduct was committed while the public official or employee was still in the service . . . a public
servant's resignation is not a bar to his administrative investigation, prosecution and adjudication." 23 It is
irrelevant that Andutan had already resigned from office when the administrative case was filed since he was
charged for "acts performed in office which are inimical to the service and prejudicial to the interests of litigants
and the general public." 24 Furthermore, even if Andutan had already resigned, there is a need to "determine
whether or not there remains penalties capable of imposition, like bar from reentering the (sic) public service
and forfeiture of benefits." 25 Finally, the Ombudsman reiterates that its findings against Andutan are
supported by substantial evidence.
THE RESPONDENT'S ARGUMENTS
Andutan raises three (3) counterarguments to the Ombudsman's petition.
First, Andutan submits that the CA did not consider Section 20 (5) of R.A. 6770 as a prescriptive period; rather,
the CA merely held that the Ombudsman should not have considered the administrative complaint. According
to Andutan, Section 20 (5) "does not purport to impose a prescriptive period . . . but simply prohibits the Office
of the Ombudsman from conducting an investigation where the complaint [was] filed more than one (1) year
from the occurrence of the act or omission complained of." 26 Andutan believes that the Ombudsman should
have referred the complaint to another government agency. 27 Further, Andutan disagrees with the
Ombudsman's interpretation of Section 20 (5). Andutan suggests that the phrase "may not conduct the
necessary investigation" means that the Ombudsman is prohibited to act on cases that fall under those
enumerated in Section 20 (5). 28 CHDAEc
Second, Andutan reiterates that the administrative case against him was moot because he was no longer in
the public service at the time the case was commenced. 29 According to Andutan, Atty. Perez v. Judge Abiera
30 and similar cases cited by the Ombudsman do not apply since the administrative investigations against the
respondents in those cases were commenced prior to their resignation. Here, Andutan urges the Court to rule
otherwise since unlike the cases cited, he had already resigned before the administrative case was initiated.
He further notes that his resignation from office cannot be characterized as "preemptive, i.e., made under an
atmosphere of fear for the imminence of formal charges" 31 because it was done pursuant to the
Memorandum issued by then Executive Secretary Ronaldo Zamora.
Having established the propriety of his resignation, Andutan asks the Court to uphold the mootness of the
administrative case against him since the cardinal issue in administrative cases is the "officer's fitness to
remain in office, the principal penalty imposable being either suspension or removal." 32 The Ombudsman's
opinion — that accessory penalties may still be imposed — is untenable since it is a fundamental legal
principle that "accessory follows the principal, and the former cannot exist independently of the latter." 33
Third, the Ombudsman's findings were void because procedural and substantive due process were not
observed. Likewise, Andutan submits that the Ombudsman's findings lacked legal and factual bases.
ISSUES
Based on the submissions made, we see the following as the issues for our resolution:
I. Does Section 20 (5) of R.A. 6770 prohibit the Ombudsman from conducting an administrative
investigation a year after the act was committed?
II. Does Andutan's resignation render moot the administrative case filed against him?
III. Assuming that the administrative case is not moot, are the Ombudsman's findings supported by
substantial evidence? HTAIcD
CONSTI REV – FULL TEXT
THE COURT'S RULING
We rule to deny the petition.
The provisions of Section 20 (5) are
merely directory; the Ombudsman is
not prohibited from conducting an
investigation a year after the
supposed act was committed.
The issue of whether Section 20 (5) of R.A. 6770 is mandatory or discretionary has been settled by
jurisprudence. 34 In Office of the Ombudsman v. De Sahagun, 35 the Court, speaking through Justice Austria-
Martinez, held:
[W]ell-entrenched is the rule that administrative offenses do not prescribe [Concerned Taxpayer v. Doblada,
Jr., A.M. No. P-99-1342, September 20, 2005, 470 SCRA 218; Melchor v. Gironella, G.R. No. 151138,
February 16, 2005, 451 SCRA 476; Heck v. Judge Santos, 467 Phil. 798, 824 (2004); Floria v. Sunga, 420
Phil. 637, 648-649 (2001)]. Administrative offenses by their very nature pertain to the character of public
officers and employees. In disciplining public officers and employees, the object sought is not the punishment
of the officer or employee but the improvement of the public service and the preservation of the public's faith
and confidence in our government [Melchor v. Gironella, G.R. No. 151138, February 16, 2005, 451 SCRA 476,
481; Remolona v. Civil Service Commission, 414 Phil. 590, 601 (2001)].
Respondents insist that Section 20 (5) of R.A. No. 6770, to wit:
SEC. 20. Exceptions. — The Office of the Ombudsman may not conduct the necessary investigation of any
administrative act or omission complained of if it believes that:
xxx xxx xxx
(5) The complaint was filed after one year from the occurrence of the act or omission complained of.
(Emphasis supplied) ECHSDc
proscribes the investigation of any administrative act or omission if the complaint was filed after one year from
the occurrence of the complained act or omission.
In Melchor v. Gironella [G.R. No. 151138, February 16, 2005, 451 SCRA 476], the Court held that the period
stated in Section 20 (5) of R.A. No. 6770 does not refer to the prescription of the offense but to the discretion
given to the Ombudsman on whether it would investigate a particular administrative offense. The use of the
word "may" in the provision is construed as permissive and operating to confer discretion [Melchor v.
Gironella, G.R. No. 151138, February 16, 2005, 451 SCRA 476, 481; Jaramilla v. Comelec, 460 Phil. 507, 514
(2003)]. Where the words of a statute are clear, plain and free from ambiguity, they must be given their literal
meaning and applied without attempted interpretation [Melchor v. Gironella, G.R. No. 151138, February 16,
2005, 451 SCRA 476, 481; National Federation of Labor v. National Labor Relations Commission, 383 Phil.
910, 918 (2000)].
In Filipino v. Macabuhay [G.R. No. 158960, November 24, 2006, 508 SCRA 50], the Court interpreted Section
20 (5) of R.A. No. 6770 in this manner:
Petitioner argues that based on the abovementioned provision [Section 20(5) of RA 6770)], respondent's
complaint is barred by prescription considering that it was filed more than one year after the alleged
commission of the acts complained of.
Petitioner's argument is without merit.
The use of the word "may" clearly shows that it is directory in nature and not mandatory as petitioner
contends. When used in a statute, it is permissive only and operates to confer discretion; while the word
"shall" is imperative, operating to impose a duty which may be enforced. Applying Section 20 (5), therefore, it
is discretionary upon the Ombudsman whether or not to conduct an investigation on a complaint even if it was
filed after one year from the occurrence of the act or omission complained of. In fine, the complaint is not
barred by prescription. (Emphasis supplied) AaEcHC
The declaration of the CA in its assailed decision that while as a general rule the word "may" is directory, the
negative phrase "may not" is mandatory in tenor; that a directory word, when qualified by the word "not,"
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becomes prohibitory and therefore becomes mandatory in character, is not plausible. It is not supported by
jurisprudence on statutory construction. [emphases and underscoring supplied]
Clearly, Section 20 of R.A. 6770 does not prohibit the Ombudsman from conducting an administrative
investigation after the lapse of one year, reckoned from the time the alleged act was committed. Without
doubt, even if the administrative case was filed beyond the one (1) year period stated in Section 20 (5), the
Ombudsman was well within its discretion to conduct the administrative investigation.
However, the crux of the present controversy is not on the issue of prescription, but on the issue of the
Ombudsman's authority to institute an administrative complaint against a government employee who had
already resigned. On this issue, we rule in Andutan's favor.
Andutan's resignation divests the
Ombudsman of its right to institute
an administrative complaint against
him.
Although the Ombudsman is not precluded by Section 20 (5) of R.A. 6770 from conducting the investigation,
the Ombudsman can no longer institute an administrative case against Andutan because the latter was not a
public servant at the time the case was filed.
The Ombudsman argued — in both the present petition and in the petition it filed with the CA — that Andutan's
retirement from office does not render moot any administrative case, as long as he is charged with an offense
he committed while in office. It is irrelevant, according to the Ombudsman, that Andutan had already resigned
prior to the filing of the administrative case since the operative fact that determines its jurisdiction is the
commission of an offense while in the public service. aTcSID
The Ombudsman relies on Section VI (1) of Civil Service Commission Memorandum Circular No. 38 for this
proposition, viz.:
Section VI.
1. ...
An officer or employee under administrative investigation may be allowed to resign pending decision of his
case but it shall be without prejudice to the continuation of the proceeding against him. It shall also be without
prejudice to the filing of any administrative, criminal case against him for any act committed while still in the
service. (emphasis and underscoring supplied)
The CA refused to give credence to this argument, holding that the provision "refers to cases where the
officers or employees were already charged before they were allowed to resign or were separated from
service." 36 In this case, the CA noted that "the administrative cases were filed only after Andutan was retired,
hence the Ombudsman was already divested of jurisdiction and could no longer prosecute the cases." 37
Challenging the CA's interpretation, the Ombudsman argues that the CA "limited the scope of the cited Civil
Service Memorandum Circular to the first sentence." 38 Further, according to the Ombudsman, "the court a
quo ignored the second statement in the said circular that contemplates a situation where previous to the
institution of the administrative investigation or charge, the public official or employee subject of the
investigation has resigned." 39
To recall, we have held in the past that a public official's resignation does not render moot an administrative
case that was filed prior to the official's resignation. In Pagano v. Nazarro, Jr., 40 we held that:
In Office of the Court Administrator v. Juan [A.M. No. P-03-1726, 22 July 2004, 434 SCRA 654, 658], this Court
categorically ruled that the precipitate resignation of a government employee charged with an offense
punishable by dismissal from the service does not render moot the administrative case against him.
Resignation is not a way out to evade administrative liability when facing administrative sanction. The
resignation of a public servant does not preclude the finding of any administrative liability to which he or she
shall still be answerable [Baquerfo v. Sanchez, A.M. No. P-05-1974, 6 April 2005, 455 SCRA 13, 19-20].
[emphasis and underscoring supplied] cEaCAH
Likewise, in Baquerfo v. Sanchez, 41 we held:
Cessation from office of respondent by resignation [Reyes v. Cristi, A.M. No. P-04-1801, 2 April 2004, 427
SCRA 8] or retirement [Re: Complaint Filed by Atty. Francis Allan A. Rubio on the Alleged Falsification of
CONSTI REV – FULL TEXT
Public Documents and Malversation of Public Funds, A.M. No. 2004-17-SC, 27 September 2004; Caja v.
Nanquil, A.M. No. P-04-1885, 13 September 2004] neither warrants the dismissal of the administrative
complaint filed against him while he was still in the service [Tuliao v. Ramos, A.M. No. MTJ-95-1065, 348 Phil.
404, 416 (1998), citing Perez v. Abiera, A.C. No. 223-J, 11 June 1975, 64 SCRA 302; Secretary of Justice v.
Marcos, A.C. No. 207-J, 22 April 1977, 76 SCRA 301] nor does it render said administrative case moot and
academic [Sy Bang v. Mendez, 350 Phil. 524, 533 (1998)]. The jurisdiction that was this Court's at the time of
the filing of the administrative complaint was not lost by the mere fact that the respondent public official had
ceased in office during the pendency of his case [Flores v. Sumaljag, 353 Phil. 10, 21 (1998)]. Respondent's
resignation does not preclude the finding of any administrative liability to which he shall still be answerable
[OCA v. Fernandez, A.M. No. MTJ-03-1511, 20 August 2004]. [emphases and underscoring supplied)
However, the facts of those cases are not entirely applicable to the present case. In the above-cited cases, the
Court found that the public officials — subject of the administrative cases — resigned, either to prevent the
continuation of a case already filed 42 or to pre-empt the imminent filing of one. 43 Here, neither situation
obtains.
The Ombudsman's general assertion that Andutan pre-empted the filing of a case against him by resigning,
since he "knew for certain that the investigative and disciplinary arms of the State would eventually reach him"
44 is unfounded. First, Andutan's resignation was neither his choice nor of his own doing; he was forced to
resign. Second, Andutan resigned from his DOF post on July 1, 1998, while the administrative case was filed
on September 1, 1999, exactly one (1) year and two (2) months after his resignation. The Court struggles to
find reason in the Ombudsman's sweeping assertions in light of these facts.
What is clear from the records is that Andutan was forced to resign more than a year before the Ombudsman
filed the administrative case against him. Additionally, even if we were to accept the Ombudsman's position
that Andutan foresaw the filing of the case against him, his forced resignation negates the claim that he tried to
prevent the filing of the administrative case.
Having established the inapplicability of prevailing jurisprudence, we turn our attention to the provisions of
Section VI of CSC Memorandum Circular No. 38. We disagree with the Ombudsman's interpretation that "[a]s
long as the breach of conduct was committed while the public official or employee was still in the service . . . a
public servant's resignation is not a bar to his administrative investigation, prosecution and adjudication." 45 If
we agree with this interpretation, any official — even if he has been separated from the service for a long time
— may still be subject to the disciplinary authority of his superiors, ad infinitum. We believe that this
interpretation is inconsistent with the principal motivation of the law — which is to improve public service and
to preserve the public's faith and confidence in the government, and not the punishment of the public official
concerned. 46 Likewise, if the act committed by the public official is indeed inimical to the interests of the
State, other legal mechanisms are available to redress the same.
The possibility of imposing
accessory penalties does not
negate the Ombudsman's lack
of jurisdiction.
The Ombudsman suggests that although the issue of Andutan's removal from the service is moot, there is an
"irresistible justification" to "determine whether or not there remains penalties capable of imposition, like bar
from re-entering the public service and forfeiture of benefits." 47 Otherwise stated, since accessory penalties
may still be imposed against Andutan, the administrative case itself is not moot and may proceed despite the
inapplicability of the principal penalty of removal from office. TCDHIc
We find several reasons that militate against this position.
First, although we have held that the resignation of an official does not render an administrative case moot and
academic because accessory penalties may still be imposed, this holding must be read in its proper context. In
Pagano v. Nazarro, Jr., 48 indeed, we held:
A case becomes moot and academic only when there is no more actual controversy between the parties or no
useful purpose can be served in passing upon the merits of the case [Tantoy, Sr. v. Abrogar, G.R. No. 156128,
9 May 2005, 458 SCRA 301, 305]. The instant case is not moot and academic, despite the petitioner's
separation from government service. Even if the most severe of administrative sanctions — that of separation
from service — may no longer be imposed on the petitioner, there are other penalties which may be imposed
on her if she is later found guilty of administrative offenses charged against her, namely, the disqualification to
hold any government office and the forfeiture of benefits. [emphasis and underscoring supplied]
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JULY 11, 2019
Reading the quoted passage in a vacuum, one could be led to the conclusion that the mere availability of
accessory penalties justifies the continuation of an administrative case. This is a misplaced reading of the
case and its ruling.
Esther S. Pagano — who was serving as Cashier IV at the Office of the Provincial Treasurer of Benguet —
filed her certificate of candidacy for councilor four days after the Provincial Treasurer directed her to explain
why no administrative case should be filed against her. The directive arose from allegations that her
accountabilities included a cash shortage of P1,424,289.99. She filed her certificate of candidacy under the
pretext that since she was deemed ipso facto resigned from office, she was no longer under the administrative
jurisdiction of her superiors. Thus, according to Pagano, the administrative complaint had become moot.
We rejected Pagano's position on the principal ground "that the precipitate resignation of a government
employee charged with an offense punishable by dismissal from the service does not render moot the
administrative case against him. Resignation is not a way out to evade administrative liability when facing
administrative sanction." 49 Our position that accessory penalties are still imposable — thereby negating the
mootness of the administrative complaint — merely flows from the fact that Pagano pre-empted the filing of
the administrative case against her. It was neither intended to be a stand-alone argument nor would it have
justified the continuation of the administrative complaint if Pagano's filing of candidacy/resignation did not reek
of irregularities. Our factual findings in Pagano confirm this, viz.:
At the time petitioner filed her certificate of candidacy, petitioner was already notified by the Provincial
Treasurer that she needed to explain why no administrative charge should be filed against her, after it
discovered the cash shortage of P1,424,289.99 in her accountabilities. Moreover, she had already filed her
answer. To all intents and purposes, the administrative proceedings had already been commenced at the time
she was considered separated from service through her precipitate filing of her certificate of candidacy.
Petitioner's bad faith was manifest when she filed it, fully knowing that administrative proceedings were being
instituted against her as part of the procedural due process in laying the foundation for an administrative case.
50 (emphasis and underscoring supplied)
Plainly, our justification for the continuation of the administrative case — notwithstanding Pagano's resignation
— was her "bad faith" in filing the certificate of candidacy, and not the availability of accessory penalties.
Second, we agree with the Ombudsman that "fitness to serve in public office . . . is a question of
transcendental [importance]" 51 and that "preserving the inviolability of public office" compels the state to
prevent the "re-entry [to] public service of persons who have . . . demonstrated their absolute lack of fitness to
hold public office." 52 However, the State must perform this task within the limits set by law, particularly, the
limits of jurisdiction. As earlier stated, under the Ombudsman's theory, the administrative authorities may
exercise administrative jurisdiction over subordinates ad infinitum; thus, a public official who has validly
severed his ties with the civil service may still be the subject of an administrative complaint up to his deathbed.
This is contrary to the law and the public policy behind it. cCaIET
Lastly, the State is not without remedy against Andutan or any public official who committed violations while in
office, but had already resigned or retired therefrom. Under the "threefold liability rule," the wrongful acts or
omissions of a public officer may give rise to civil, criminal and administrative liability. 53 Even if the
Ombudsman may no longer file an administrative case against a public official who has already resigned or
retired, the Ombudsman may still file criminal and civil cases to vindicate Andutan's alleged transgressions. In
fact, here, the Ombudsman — through the FFIB — filed a criminal case for Estafa and violations of Section 3
(a), (e) and (j) of the Anti-Graft and Corrupt Practices Act against Andutan. If found guilty, Andutan will not only
be meted out the penalty of imprisonment, but also the penalties of perpetual disqualification from office, and
confiscation or forfeiture of any prohibited interest. 54
CONCLUSION
Public office is a public trust. No precept of administrative law is more basic than this statement of what
assumption of public office involves. The stability of our public institutions relies on the ability of our civil
servants to serve their constituencies well.
While we commend the Ombudsman's resolve in pursuing the present case for violations allegedly committed
by Andutan, the Court is compelled to uphold the law and dismiss the petition. Consistent with our holding that
Andutan is no longer the proper subject of an administrative complaint, we find no reason to delve on the
Ombudsman's factual findings.
WHEREFORE, we DENY the Office of the Ombudsman's petition for review on certiorari, and AFFIRM the
decision of the Court of Appeals in CA-G.R. SP No. 68893, promulgated on July 28, 2004, which annulled and
CONSTI REV – FULL TEXT JULY 11, 2019

set aside the July 30, 2001 decision of the Office of the Ombudsman, finding Uldarico P. Andutan, Jr. guilty of 45. Id. at 57.
Gross Neglect of Duty. DHECac 46. Office of the Ombudsman v. De Sahagun, supra note 34, at 128, citing Melchor v. Gironella, G.R. No. 151138,
February 16, 2005, 451 SCRA 476, 481; and Remolona v. Civil Service Commission, 414 Phil. 590, 601 (2001). See also
No pronouncement as to costs. Bautista v. Negado, 108 Phil. 283 (1960).
47. Rollo, pp. 62-63.
SO ORDERED. 48. Supra note 40, at 628.
49. Pagano v. Nazarro, Jr., supra note 40, at 628, citing Office of the Court Administrator v. Juan, A.M. No. P-03-1726,
Carpio, Leonardo-de Castro, * Peralta ** and Perez, JJ., concur. 22 July 2004, 434 SCRA 654, 658.
50. Id. at 631.
Footnotes 51. Rollo, p. 63.
* Designated as Acting Member of the Second Division per Special Order No. 1006 dated June 10, 2011. 52. Id. at 65.
** Additional member in lieu of Associate Justice Maria Lourdes P. A. Sereno per Special Order No. 1040 dated July 53. Antonio E.B. Nachura, Outline Reviewer in Political Law 478 (2009 ed.). See also Hector S. de Leon and Hector M.
6, 2011. de Leon, Jr., The Law on Public Officers and Election Law 262 (6th ed., 2008).
1. Rollo, pp. 12-74; filed under Rule 45 of the Rules of Court. 54. R.A. 3019. Sec. 9. Penalties for violations. — (a) Any public officer or private person committing any of the unlawful
2. Id. at 76-83; penned by Associate Justice Roberto A. Barrios, and concurred in by Associate Justices Amelita G. acts or omissions enumerated in Sections 3, 4, 5 and 6 of this Act shall be punished with imprisonment for not less than one year
Tolentino and Vicente S.E. Veloso. nor more than ten years, perpetual disqualification from public office, and confiscation or forfeiture in favor of the Government of
3. Id. at 173-188. any prohibited interest and unexplained wealth manifestly out of proportion to his salary and other lawful income.
4. Id. at 163.
5. Id. at 164.
6. Id. at 22.
7. Ibid.
8. Id. at 77.
9. Id. at 78.
10. Id. at 77-78.
11. Supra note 3.
12. Id. at 186.
13. Rollo, pp. 189-202.
14. Supra note 2.
15. Id. at 81-82.
16. Id. at 82.
17. Rollo, p. 26.
18. Id. at 63-65.
19. Id. at 29.
20. Id. at 29-30.
21. Id. at 33-34.
22. Section VI.
1. . . .
An officer or employee under administrative investigation may be allowed to resign pending decision of his case but
it shall be without prejudice to the continuation of the proceeding against him. It shall also be without prejudice to the filing of any
administrative, criminal case against him for any act committed while still in the service.
23. Rollo, p. 57.
24. Id. at 59, citing Perez v. Abiera, A.C. No. 223-J, June 11, 1975.
25. Id. at 62-63.
26. Id. at 255.
27. Ibid.
28. Id. at 256; relying on Ruben Agpalo, Statutory Construction 338 (4th ed., 1998):
The use by the legislature of negative, prohibitory or exclusive terms or words in a statute is indicative of the
legislative intent to make the statute mandatory. A statute or provision which contains words of positive prohibition, such as "shall
not," "cannot," or "ought not," or which is couched in negative terms importing that the act shall not be done otherwise than
designated is mandatory. Prohibitive or negative words can rarely, if ever, be directory, for there is but one way to obey the
command, "thou shall not," and that is to completely refrain from doing the forbidden act.
29. Id. at 257.
30. 159-A Phil. 575 (1975).
31. Rollo, p. 262.
32. Ibid.
33. Id. at 263.
34. Office of the Ombudsman v. De Sahagun, G.R. No. 167982, August 13, 2008, 562 SCRA 122, 128.
35. Id. at 128-130.
36. Rollo, p. 82.
37. Ibid.
38. Rollo, p. 56.
39. Ibid.
40. G.R. No. 149072, September 21, 2007, 533 SCRA 622, 628.
41. 495 Phil. 10, 16-17 (2005).
42. See Baquerfo v. Sanchez, supra note 41; and Tuliao v. Judge Ramos, 348 Phil. 404, 416 (1998), citing Perez v.
Abiera, A.C. No. 223-J, 11 June 1975, 64 SCRA 302, Secretary of Justice v. Marcos, A.C. No. 207-J, 22 April 1997, 76 SCRA
301.
43. See Pagano v. Nazarro, Jr., supra note 40; and OCA v. Juan, 478 Phil. 823 (2004).
44. Rollo, pp. 61-62.
An officer or employee under administrative investigation may be allowed to resign pending decision of his case but
it shall be without prejudice to the continuation of the proceeding against him. It shall also be without prejudice to the filing of SECOND DIVISION
other administrative or criminal case against him for any act committed while still in the service.

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CONSTI REV – FULL TEXT
[G.R. No. 198140. January 25, 2016.]
IA1 ERWIN L. MAGCAMIT, petitioner, vs. INTERNAL AFFAIRS SERVICE-PHILIPPINE DRUG
ENFORCEMENT AGENCY, as represented by SI V ROMEO M. ENRIQUEZ AND DIRECTOR GENERAL
DIONISIO R. SANTIAGO, respondents.
DECISION
BRION, J p:
We resolve the petition for review on certiorari under Rule 45 of the Rules of Court 1 filed by IA1 Erwin L.
Magcamit (Magcamit) from the March 17, 2011 decision 2 and the August 9, 2011 Resolution 3 of the Court of
Appeals (CA) in CA-G.R. SP No. 108281. The CA upheld the March 17, 2009 decision of the Civil Service
Commission (CSC) denying Magcamit's appeal from the May 20, 2008 memorandum of the Internal Affairs
Service of the Philippine Drug Enforcement Agency (IAS-PDEA), which found Magcamit guilty of grave
misconduct and, consequently, recommending his dismissal from the service.
THE FACTUAL ANTECEDENTS
In a letter dated April 13, 2008, addressed to Director General Dionisio R. Santiago, a person named Delfin
gave information about an alleged extortion done to his mother by Magcamit and other PDEA agents. The
PDEA agents denied the irregularities imputed to them and maintained that the letter-complaint was made only
to destroy their reputation. HTcADC
On May 5, 2008, Magcamit and his co-agents, namely, IO3 Carlo Aldeon, IO2 Renato Infante, IO2 Ryan
Alfaro, and IO2 Apolinario Mationg, Jr., were formally charged with Grave Misconduct for demanding and/or
obtaining P200,000.00 from Luciana M. Jaen (Jaen) in exchange for her release after she was apprehended in
a buy-bust operation in Lipa City. After they had submitted their Answer, their case was submitted for
recommendation and action.
In a memorandum dated May 20, 2008, Special Investigator V Romeo M. Enriquez (SI V Enriquez) found
Magcamit and his co-agents liable for grave misconduct and recommended that they be dismissed from the
civil service. Accordingly, they were dismissed on June 5, 2008.
SI V Enriquez gave credence to Jaen's narration of events that when she sought help from the team leader of
the buy-bust team, she was referred to SPO1 Peter Sistemio (SPO1 Sistemio) as the person who would
facilitate her release; that SPO1 Sistemio bluntly demanded money in exchange; that she had initially offered
P50,000.00 but SPO1 Sistemio rejected it outright; and that, eventually, they agreed on P200,000.00.
After the agreed monetary consideration was produced, the PDEA agents allegedly instructed Jaen's son,
Delfin, to wait at the ATM machine outside PDEA. Jaen still remained in detention after a lapse of several
hours.
The narration was reinforced by the sworn statements dated April 15, 2008 and April 17, 2008, of Compliance
Investigator I Dolorsindo M. Paner (CI Paner) who recalled that IO2 Renato Infante (IO2 Infante) told him to
meet him at the office for an important matter about their operation; and that when IO2 Infante arrived, he
handed the money to CI Paner who then counted it on the spot. This incident was allegedly captured by a
surveillance camera.
On July 10, 2008, Magcamit filed his motion for reconsideration arguing that the IAS-PDEA committed errors
of law and/or irregularities prejudicial to his interest; its decision, too, was not supported by the evidence on
record. CAIHTE
Aside from the procedural lapses Magcamit claimed the IAS-PDEA had committed, he raised the fact that his
name never came up in the sworn statements submitted to SI V Enriquez. Moreover, he argued that the
application of the "doctrine of implied conspiracy" was misplaced because the evidence on record did not
show any act showing that he participated in the alleged extortion.
On July 23, 2008, SI V Enriquez denied the motion for reconsideration of Magcamit and his co-agents as they
had been duly afforded administrative due process and had been given a fair and reasonable opportunity to
explain their side. He added that the absence of a preliminary investigation was not fatal to their case. Lastly,
he maintained that direct proof is not necessary to establish conspiracy as long as it is shown that the parties
demonstrate they concur with the criminal design and its objective.
Magcamit responded by filing a notice of appeal and elevating his case to the CSC.
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In its March 17, 2009 decision, the CSC denied Magcamit's appeal and affirmed his dismissal from the civil
service. It ruled that administrative tribunals exercising quasi-judicial powers — such as the IAS-PDEA — are
unfettered by the rigidity of certain procedural requirements especially when due process has been
fundamentally and essentially observed. It found that Magcamit was positively identified by CI Paner in his
sworn statement as the person who identified the members of the group who received their respective shares
from the P200,000.00, thus, establishing his participation in the extortion. The CSC noted that Magcamit failed
to controvert this allegation against him.
Reiterating the grounds he relied upon in his appeal to the CSC, Magcamit filed a petition for review under
Rule 43 with the CA, imputing error on the part of the CSC in affirming his dismissal from the service.
THE CA DECISION
In its March 17, 2011 decision, the CA denied the petition for review and upheld the March 17, 2009 CSC
decision.
The CA held that the CSC, in investigating complaints against civil servants, is not bound by technical rules of
procedure and evidence applicable in judicial proceedings; that rules of procedure are to be construed liberally
to promote their objective and to assist the parties in obtaining a just, speedy, and inexpensive determination
of their respective claims and defenses.
The CA found that the CSC correctly appreciated CI Paner's sworn statement which described Magcamit's link
to the extortion. The CA said that apart from his bare and self-serving claim, Magcamit failed to show that CI
Paner was actuated by ill motive or hate in imputing a serious offense to him.
On August 9, 2011, the CA denied Magcamit's motion for reconsideration; hence, the present petition for
review on certiorari before this Court.
THE PETITION
Magcamit filed the present petition on the following grounds: aScITE
1. his right to due process was denied because gross irregularities attended the administrative
investigation conducted by the IAS-PDEA; and
2. the evidence on record does not support his dismissal.
Magcamit contends that the anonymous letter-complaint of a certain Delfin should not have been given due
course as it was not corroborated by any documentary or direct evidence and there was no obvious truth to it.
Worse, the letter-complaint had no narration of relevant and material facts showing the acts or omission
allegedly committed by Magcamit and his co-agents. Further, the letter-complaint only referred to him as
"Erwin" and did not specifically identify him.
Magcamit claims that he was deprived of his right to seek a formal investigation because the IAS-PDEA
deliberately failed to inform him of this right.
Magcamit questions how the IAS-PDEA never presented him with pieces of evidence — specifically CI
Paner's sworn statement — that were considered against him. He emphasizes that the CSC and the CA
affirmed his dismissal based on an affidavit of complaint executed by CI Paner on May 7, 2008, that was only
attached to the IAS-PDEA's comment before the CSC.
As to his alleged participation in the extortion, Magcamit alleges that he never had any discussion with CI
Paner about each agent's share in the P200,000.00. He argues that he could not have refuted the allegation
against him since he was not even aware of CI Paner's sworn statement until the case was brought up before
the CSC.
Magcamit claims support for his case after the dismissal of the criminal complaint filed against him and his co-
agents. In its June 18, 2010 resolution, the Quezon City Prosecutor's Office found the evidence against them
insufficient to prove that they requested or received any money from Jaen.
Finally, Magcamit maintains that the purported surveillance video is inadmissible as evidence because it was
not authenticated nor shown to him.
OUR RULING
We GRANT the present petition because Magcamit's dismissal was unsupported by substantial evidence.
CONSTI REV – FULL TEXT
Although Magcamit assails that the letter-complaint should not have been entertained to begin with as it was
not in accord with the Revised Rules on Administrative Cases in the Civil Service (RACCS), 4 we do not find
any need to dwell on this point. The administrative complaint was initiated when Jaen and Delfin executed
sworn statements and filed them with the IAS-PDEA. As the CA correctly pointed out, the letter-complaint did
not, by itself, commence the administrative proceedings against Magcamit; it merely triggered a fact-finding
investigation by the IAS-PDEA. Accordingly, these sworn statements — together with the letter-complaint —
were used as pieces of evidence to build a prima facie case for extortion warranting a formal charge for grave
misconduct.
Administrative determinations of contested cases are by their nature quasi-judicial; there is no requirement for
strict adherence to technical rules that are observed in truly judicial proceedings. 5 As a rule, technical rules of
procedure and evidence are relaxed in administrative proceedings in order "to assist the parties in obtaining
just, speedy and inexpensive determination of their respective claims and defenses." 6 By relaxing technical
rules, administrative agencies are, thus, given leeway in coming up with a decision. DETACa
Nonetheless, in deciding disciplinary cases pursuant to their quasi-judicial powers, administrative agencies
must still comply with the fundamental principle of due process. Administrative tribunals exercising quasi-
judicial powers are unfettered by the rigidity of certain procedural requirements, subject to the observance of
fundamental and essential requirements of due process in justiciable cases presented before them. 7
Due process in administrative cases, in essence, is simply an opportunity to explain one's side or to seek a
reconsideration of the action or ruling. For as long as the parties were given fair and reasonable opportunity to
be heard before judgment was rendered, the demands of due process were sufficiently met. 8
The cardinal primary rights and principles in administrative proceedings that must be respected are those
outlined in the landmark case of Ang Tibay v. Court of Industrial Relations, 9 quoted below:
(1) The first of these rights is the right to a hearing, which includes the right of the party interested or
affected to present his own case and submit evidence in support thereof.
(2) Not only must the party be given an opportunity to present his case and to adduce evidence
tending to establish the rights which he asserts but the tribunal must consider the evidence presented.
(3) While the duty to deliberate does not impose the obligation to decide right, it does imply a
necessity which cannot be disregarded, namely, that of having something to support its decision. A decision
with absolutely nothing to support it is a nullity, a place when directly attached.
(4) Not only must there be some evidence to support a finding or conclusion, but the evidence must
be substantial. "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion."
(5) The decision must be rendered on the evidence presented at the hearing, or at least contained in
the record and disclosed to the parties affected.
(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own
independent consideration of the law and facts of the controversy, and not simply accept the views of a
subordinate in arriving at a decision.
(7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a
manner that the parties to the proceeding can know the various issues involved, and the reasons for the
decisions rendered. The performance of this duty is inseparable from the authority conferred upon it.
The first of the enumerated rights pertains to the substantive rights of a party at the hearing stage of the
proceedings. 10
The second, third, fourth, fifth, and sixth aspects of the Ang Tibay requirements are reinforcements of the right
to a hearing and are the inviolable rights applicable at the deliberative stage, as the decision maker decides on
the evidence presented during the hearing. 11 These standards set forth the guiding considerations in
deliberating on the case and are the material and substantial components of decision making. 12 HEITAD
Finally, the last requirement, relating to the form and substance of the decision of a quasi-judicial body, further
complements the hearing and decision-making due process rights and is similar in substance to the
constitutional requirement that a decision of a court must state distinctly the facts and the law upon which it is
based. 13
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JULY 11, 2019
At the hearing stage, while Magcamit was never afforded a formal investigation, we have consistently ruled
that there is no violation of procedural due process even if no formal or trial-type hearing was conducted,
where the party was given a chance to explain his side of the controversy.
Before the IAS-PDEA, Magcamit had the opportunity to deny and controvert the complaint against him when
he filed his reply to the letter-complaint and his answer to the formal charge. Dissatisfied with the IAS-PDEA's
decision, he elevated his case to the CSC which likewise found him guilty of conspiring with his co-agents,
rendering him liable for gross misconduct. From these developments, it can hardly be said that the IAS-PDEA
and the CSC denied Magcamit his opportunity to be heard.
In addition, Magcamit was duly represented by counsel who could properly apprise him of what he is entitled
to under law and jurisprudence. Thus, he cannot claim that he was deprived of his right to a formal hearing
because the IAS-PDEA failed to inform him of such right.
With the issue on due process at the hearing stage resolved, we now move on to discuss the merits of the
petition before us.
Claiming that he was not involved in the extortion, Magcamit argues that the CSC and the CA misappreciated
the facts when they considered the affidavit of complaint CI Paner executed on May 7, 2008, as substantial
evidence supporting the conclusion that he conspired with his co-agents. This issue involves a question of fact
as there is need for a calibration of the evidence, considering mainly the credibility of witnesses and the
existence and the relevancy of specific surrounding circumstances, their relation to one another and to the
whole, and the probabilities of the situation. 14
In cases brought before us via a petition for review on certiorari, we are limited to the review of errors of law.
15 We, however, may review the findings of fact when they fail to consider relevant facts that, if properly taken
into account, would justify a different conclusion or when there is serious ground to believe that a possible
miscarriage of justice would result. 16 aDSIHc
We recall that only the April 17, 2008 affidavit of Jaen and the April 17, 2008 affidavit of Delfin were attached to
the formal charge for grave misconduct against Magcamit and four (4) 17 other members of the PDEA-Special
Enforcement Service (SES). This formal charge required them to submit their respective position papers on
the administrative charge. Notably, both affidavits never mentioned the name of Magcamit.
SI V Enriquez's memorandum/decision dated May 20, 2008 — which found Magcamit and his four co-accused
guilty of grave misconduct, and recommended their dismissal from the service — relied on the affidavits of CI
Paner dated April 15, 2008 and April 17, 2008, respectively, which it considered to have "reinforced the
allegations" of Jaen and her son, Delfin. CI Paner's two affidavits were never shown to Magcamit. At any rate,
CI Paner's two affidavits, like the affidavits of Jaen and Delfin, did not mention Magcamit.
Probably realizing that the April 17, 2008 affidavit of Jaen, the April 17, 2008 affidavit of Delfin, and the April
15, 2008 and April 17, 2008 affidavits of CI Paner did not mention the involvement of Magcamit in the
extortion, the CSC's Resolution No. 090431 dated March 17, 2009, used as basis another affidavit of CI Paner
(dated May 7, 2008) in affirming the May 20, 2008 decision of the IAS-PDEA. Curiously, the CSC termed this
affidavit as CI Paner's 'original affidavit' although it was the third affidavit that CI Paner had executed.
The evidence on record shows that CI Paner executed three (3) affidavits with different dates, 18 relating to
the manner the members of the PDEA-SES tried to give him a share of the P200,000.00 they extorted from
Jaen. It must be noted, however, that it was only the Affidavit of Complaint dated May 7, 2008, that linked
Magcamit to the scheme. Curiously, this affidavit was never mentioned, despite being a more complete
narration of what transpired, in SI V Enriquez' recommendation dated May 20, 2008. In fact, the investigating
officer referred only to the affidavits dated April 15, 2008 and April 17, 2008. 19 ATICcS
Surprisingly, the CSC ruled that the statements of CI Paner in his May 7, 2008 affidavit "was never
controverted by Magcamit" although the latter had not been furnished this document. It was only when
Magcamit requested for certified true copies of the Comment and the other documents submitted by the IAS-
PDEA to the CSC that he discovered the existence of Paner's May 7, 2008 affidavit.
As the CSC did, the CA ruled that Magcamit participated in the extortion on the basis of Paner's May 7, 2008
alone. Accordingly, it affirmed the CSC's resolution.
Under these circumstances, the CA erred in affirming the CSC's dismissal of the respondent on the basis of
Paner's May 7, 2008 affidavit — a document that was not part of the proceedings before the IAS-PDEA.
Given how the evidence against him came out, we find that Magcamit could not have adequately and fully
disputed the allegations against him since during the administrative investigation he was not properly apprised
CONSTI REV – FULL TEXT
of all the evidence against him. We point out that Magcamit could not have refuted the May 7, 2008 affidavit of
Paner, which was the sole basis of the CSC's and the CA's finding of Magcamit's liability; notably, the formal
charge requiring him and his co-accused to file their position papers was dated May 5, 2008. Corollarily,
Magcamit and his co-agents were not even furnished a copy of the affidavits of CI Paner dated April 15, 2008
and April 17, 2008 before the recommendation for dismissal came out. Magcamit was thus blindsided and
forced to deal with pieces of evidence he did not even know existed.
Thus, the requirement that "[t]he decision must be rendered on the evidence presented at the hearing, or at
least contained in the record AND disclosed to the parties affected," was not complied with. Magcamit was not
properly apprised of the evidence presented against him, which evidence were eventually made the bases of
the decision finding him guilty of grave misconduct and recommending his dismissal.
Although, in the past, we have held that the right to due process of a respondent in an administrative case is
not violated if he filed a motion for reconsideration to refute the evidence against him, the present case should
be carefully examined for purposes of the application of this rule. Here, the evidence of Magcamit's
participation was made available to him only after he had elevated the case to the CSC. Prior to that, or when
the IAS-PDEA came up with the decision finding him guilty of gross misconduct, there was no substantial
evidence proving Magcamit was even involved.
We consider, too, that even if we take into account CI Paner's May 7, 2008 affidavit, we find this document to
be inadequate to hold — even by standards of substantial evidence — that Magcamit participated in the
PDEA's extortion activities. ETHIDa
We note that the CSC and the CA linked Magcamit to the alleged extortion in paragraph 13 of CI Paner's May
7, 2008 affidavit of complaint, which reads:
13. That pretending nothing had happened and yet projecting to the group that I am a bit apprehensive
as to the evident inequality in the sharing of the extorted money from subject Jaen, I was able to talk with
Agent Erwin Magcamit, one of the members of the arresting team, and asked the latter as to how the group
came up with the Php21,500.00 sharing for each member out of the Php200,000.00; from which Agent
Magcamit simply said to me that such was the sharing and everybody except me seemed to have consented;
in addition thereto, Agent Magcamit vividly mentioned all other members who got their share of the
Php21,500.00, namely, [1] Carlo S. Aldeon, [2] PO3 Emerson Adaviles, [3], PO2 Reywin Bariuad, [4] IO2
Renato Infante, [5] IO2 Apolinario Mationg, [6] IO2 Ryan Alfaro, and [7] PO3 Peter Sistemio. 20
We discern no showing from this allegation that Magcamit extorted money from Jaen, or that he was among
those who took part in the division of the money allegedly extorted from Jaen. For conspiracy to exist, it must
be proven or at least inferred from the acts of the alleged perpetrator before, during, and after the commission
of the crime. It cannot simply be surmised that conspiracy existed because Magcamit was part of the team that
took part in the buy-bust operation which resulted in Jaen's arrest. In other words, respondents failed to
pinpoint Magcamit's participation in the extortion that would make him administratively liable.
After evaluating the totality of evidence on record, we find that the records are bereft of substantial evidence to
support the conclusion that Magcamit should be held administratively liable for grave misconduct; Magcamit
was dismissed from the service based on evidence that had not been disclosed to him. By affirming this
dismissal, the CA committed a grave reversible error.
WHEREFORE, premises considered, we GRANT the present petition. The March 17, 2011 decision and the
August 9, 2011 resolution of the Court of Appeals in CA-G.R. SP No. 108281 are hereby REVERSED and SET
ASIDE. The Philippine Drug Enforcement Agency is ORDERED to reinstate IA1 Erwin L. Magcamit to his
previous position without loss of seniority rights and with full payment of his salaries, backwages, and benefits
from the time of his dismissal from the service up to his reinstatement. TIADCc
SO ORDERED.
Carpio and Mendoza, JJ., concur.
Del Castillo, J., I join the dissent of J. Leonen.
Leonen, J., see dissenting opinion.
Separate Opinions
LEONEN, J., dissenting:
I respectfully dissent. There was substantial evidence to prove that Investigation Agent 1 Erwin L. Magcamit (IA1 Magcamit)
shared in the money extorted from a detainee of the Philippine Drug Enforcement Agency (PDEA). IA1 Magcamit, therefore, was
correctly dismissed from the service for grave misconduct.
I
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JULY 11, 2019
This is a Petition for Review on Certiorari 1 assailing the Court of Appeals Decision 2 and Resolution, 3 which denied the appeal
of IA1 Magcamit. The Court of Appeals affirmed the Civil Service Commission Resolution dated March 17, 2009, which, in turn,
affirmed the Memorandum 4 dated May 20, 2008 of the Internal Affairs Service of the PDEA. 5 The Internal Affairs Service found
IA1 Magcamit guilty of grave misconduct and recommended his dismissal from the service. 6
II
Dionisio R. Santiago, Jr. (Director General Santiago), Former Director General of the PDEA, received a letter 7 from a certain
"Delfin." According to Delfin, several PDEA agents assigned in the Special Enforcement Service were involved in corrupt
activities. Among the PDEA agents named was "Erwin." 8 The Letter reads:
Dear Gen. Santiago[,]
Kagalanggalang na Heneral Santiago ng PDEA ako po ay sumulat sa inyo upang ipaalam ang mga katiwalian na ginagawa ng
ilan ninyong mga ahente na nakakasira sa inyong ahensya dahil ako ay biktima at saksi sa mga illegal na Gawain ng inyong mga
ahente at particular na naka assign sa S.E.S.
Ang mga sumusunod ay nakilala ko po sa pangalang Caloy, Ryan, Chito, Erwin, Alfaro, PO2 Bariuad, PO3 Peter, at isang
Kalbong pulis na kaya kong kilalanin kung sila ay makakaharap ko ng personal. cSEDTC
Ako po ay patuloy na makikipag-ugnayan sa inyong ahensya sa pamamagitan ng pagtawag sa inyong telepono at handa rin
akong harapin ang mga taong ito kung inyong mamarapatin upang sila ay aking maituro. Ako po ay patuloy na
makikipagugnayan sa inyo hinggil sa usaping ito sa pamamagitan ng pagtawag ko sa inyo. Iiwanan kopo [sic] ang cell number
ko, upang magpatuloy po an gating [sic] komunikasyon. Tatawag po ako sa inyong opisina April 24, 2008 sa eksaktong 11 am,
itago niyo po ako sa pangalang Delfin.
Paki tago po ang cell number ko nasa hiwalay na papel na nito [sic].
Gumagalang,
Delfin 9
On April 14, 2008, Director General Santiago ordered the Director of the Internal Affairs Service to "conduct [the] necessary
investigation[.]" 10
In the Memorandum 11 dated April 25, 2008, Special Investigator V Romeo M. Enriquez, Officer-in-Charge of the Internal Affairs
Service, ordered the following PDEA agents to comment on Delfin's letter: IO3 Carlos S. Aldeon, PO3 Emerson Adaviles, PO2
Reywin Bariuad, IA1 Erwin L. Magcamit, IO2 Renato R. Infante, IO2 Apolinario Mationg, Jr., 12 IO2 Ryan C. Alfaro, and SPO1
Peter Sistemio. All the respondents belonged to the Special Enforcement Service. 13
Like the other PDEA agents named in the Memorandum, IA1 Magcamit denied Delfin's accusation and maintained that all
persons they had arrested for drug-related cases were charged in court. He and the other PDEA agents also referred to an
instance when they filed a criminal complaint for bribery against those who attempted to bribe them in exchange for the release
of a detainee. 14
Nevertheless, IA1 Magcamit and four other members of the Special Enforcement Service were formally charged with grave
misconduct. 15 IA1 Magcamit and his co-respondents allegedly demanded P200,000.00 from a certain Luciana M. Jaen (Jaen)
in exchange for her release from detention. 16 The Formal Charge 17 dated May 5, 2008 reads: AIDSTE
"That on or about twelve o'clock in the evening of 9th day of April 2008, in the City of Lipa, Province of Batangas, Philippines,
and within the jurisdiction of this Honorable Agency, the above-named respondents, at night time, conspiring and confederating
together and mutually helping one another, with intent to gain, with evident premeditation and malicious misrepresentation, did
then and there, willfully and unlawfully demanded/obtained under duress upon one, LUCIANA M. JAEN, the amount of TWO
HUNDRED THOUSAND PESOS [Php200,000.00], in exchange for her release after the latter was apprehended in a buy-bust
operation conducted by the members of the Special Enforcement Service of the Philippine Drug Enforcement Agency."
Acts contrary to law and existing rules and regulations. 18 (Emphasis in the original)
Attached to the Formal Charge were two affidavits both dated April 17, 2008. In her Affidavit, 19 Jaen alleged that she was
arrested in a buy-bust operation on April 9, 2008 at about 6:00 p.m. While detained at the PDEA headquarters, she allegedly
asked for help on how she could be released. IO3 Carlos S. Aldeon allegedly referred her to another PDEA agent who, in turn,
allegedly assured her that he could help her through SPO1 Peter Sistemio. SPO1 Peter Sistemio then approached Jaen and
bluntly asked how much she could pay for her release. 20
Jaen and SPO1 Peter Sistemio eventually agreed on the amount of P200,000.00. Jaen was later instructed to have the money
brought at about 3:00 a.m., and SPO1 Peter Sistemio allegedly received the money as agreed upon. 21
The other affidavit attached to the Formal Charge was executed by Delfin Magcawas, Jr. (Magcawas, Jr.). Magcawas, Jr. is the
son of Jaen 22 and appeared to be the same "Delfin" who wrote to Director General Santiago.
In his Affidavit, 23 Magcawas, Jr. alleged that his mother, Jaen, texted him at about 12:00 m.n. on April 10, 2008. Jaen ordered
him to bring P200,000.00 to the PDEA headquarters. 24
Magcawas, Jr. arrived at the PDEA and was allegedly escorted to the Special Enforcement Service office. There, a man asked
his mother: "Kumpleto ba iyan?" Magcawas, Jr. then handed P200,000.00 to the man who turned out to be SPO1 Peter
Sistemio. SPO1 Peter Sistemio then directed Magcawas, Jr. to wait for his mother at the nearby automated teller machine. His
mother, however, never showed up. 25
IA1 Magcamit and his co-respondents answered 26 the Formal Charge, "vehemently deny[ing]" 27 the allegations of Jaen and
Magcawas, Jr. They maintained that Jaen and Magcawas, Jr. lied in their Affidavits. 28 SDAaTC
In its Memorandum 29 dated May 20, 2008, the Internal Affairs Service gave credence to the allegations of Jaen and Magcawas,
Jr. and found "cogent reason to pursue [the] administrative complaint." 30 According to the Internal Affairs Service, the
statements of Jaen and Magcawas, Jr. were corroborated by Compliance Investigator I Dolorsindo M. Paner (Compliance
Investigator Paner), an employee of the PDEA. 31
Compliance Investigator Paner, in the Affidavit 32 dated April 15, 2008, stated that he was among the PDEA agents who arrested
Jaen in a buy-bust operation. He narrated that on April 10, 2008, Jaen complained to him that certain persons demanded
P200,000.00 from her in exchange for her release. Compliance Investigator Paner informed his superior, the Director of the
Compliance Service of the PDEA. 33
Compliance Investigator Paner was on leave on April 11, 2008 when IO3 Carlos S. Aldeon allegedly called him on the phone and
directed him to proceed to the office of the Special Enforcement Service. Compliance Investigator Paner, however, replied that
he was out of the office. Nevertheless, IO3 Carlos S. Aldeon told him to drop by at 5:00 p.m. 34
CONSTI REV – FULL TEXT
Compliance Investigator Paner added that IO2 Renato R. Infante texted him on the same day and told him to meet him later that
day. Again, Compliance Investigator Paner replied that he was out of town and just told IO2 Renato R. Infante to meet him the
following week. 35
Compliance Investigator Paner supplemented his allegations in the Affidavit 36 dated April 17, 2008. According to Compliance
Investigator Paner, IO2 Renato R. Infante approached him on April 16, 2008 at about 6:00 p.m. He told Compliance Investigator
Paner to meet him at the Special Enforcement Service office at 7:00 p.m. to discuss an important matter. 37 "Sensing something
wrong," 38 Compliance Investigator Paner informed Major Ferdinand Marcelino (Director Marcelino), Director of the Special
Enforcement Service, of his conversation with IO2 Renato R. Infante. 39 Compliance Investigator Paner and Director Marcelino
then had a surveillance camera prepared to record the 7:00 p.m. meeting. 40
At 7:15 p.m., Compliance Investigator Paner went to the office of the Special Enforcement Service. There, IO2 Renato R. Infante
handed Compliance Investigator Paner money. This transaction was allegedly recorded by the surveillance camera. Compliance
Investigator Paner then went to Director Marcelino to surrender the money. 41 AaCTcI
According to the Internal Affairs Service, the statements of Compliance Investigator Paner, Jaen, and Magcawas, Jr., as well as
the surveillance footage, prove that respondents conspired to extort money from Jaen. The Internal Affairs Service, thus, found
respondents guilty of grave misconduct and recommended their dismissal from the service. 42
IA1 Magcamit moved for reconsideration 43 of the Internal Affairs Service's Memorandum dated May 20, 2008, raising the
following grounds: (a) the letter-complaint of "Delfin" lacked the requirements under Rule II, Section 8 (4) 44 of the Uniform Rules
on Administrative Cases in the Civil Service (Civil Service Rules). 45 Specifically, it did not state the full name and address of the
persons complained of and the material facts showing the acts or omissions assailed, Moreover, it had no certification of non-
forum shopping attached to it; (b) the hearing officer did not conduct a preliminary investigation, in violation of Rule II, Section 14
46 of the Civil Service Rules; 47 (c) IA1 Magcamit was not furnished a copy of the surveillance camera footage as well as the
Affidavits of Compliance Investigator Paner, in violation of his right to due to process; 48 and (d) the finding of conspiracy was
not supported by the evidence on record, as the Affidavits of Jaen, Magcawas, Jr., and Compliance Investigator Paner did not
mention his name. 49
In the Resolution 50 dated July 23, 2008, the Internal Affairs Service denied IA1 Magcamit's Motion for Reconsideration. The
Internal Affairs Service held that formal or trial-type hearings are not necessary in administrative cases; hence, the lack of
preliminary investigation did not invalidate the proceedings before the Internal Affairs Service. 51
It added that the essence of due process in administrative cases is the opportunity to be heard. There was no denial of due
process because the Internal Affairs Service gave respondent police officers the opportunity to answer the Formal Charge. 52
Lastly, the Internal Affairs Service held that direct evidence of conspiracy need not be presented. "Proof of the concerted action
before, during and after the crime, which demonstrates [the respondents'] unity of design and objective is sufficient." 53
IA1 Magcamit filed an appeal 54 before the Civil Service Commission, reiterating the arguments he made in his Motion for
Reconsideration before the Internal Affairs Service. The PDEA commented 55 on IA1 Magcamit's Memorandum of Appeal.
acEHCD
In the Resolution dated March 17, 2009, the Civil Service Commission dismissed IA1 Magcamit's appeal. 56 The Commission
agreed with the Internal Affairs Service that IA1 Magcamit was not denied due process considering that he was given several
opportunities to refute the allegations against him. 57
On the merits, the Commission held that there was substantial evidence to prove that IA1 Magcamit was guilty of grave
misconduct. 58 The Commission referred to the May 7, 2008 Affidavit executed by Compliance Investigator Paner where the
latter identified IA1 Magcamit as one of the agents who shared in the money extorted from Jaen. 59 In this new Affidavit,
Compliance Investigator Paner allegedly asked IA1 Magcamit how the sharing of the money was arrived at, to which IA1
Magcamit allegedly replied that "such was the sharing and everybody . . . seemed to have consented. 60
IA1 Magcamit filed a Petition for Review 61 before the Court of Appeals. The Court of Appeals, however, dismissed IA1
Magcamit's appeal in the Decision dated March 17, 2011. It affirmed the finding that IA1 Magcamit shared in the extorted money;
hence, IA1 Magcamit was guilty of grave misconduct. 62
IA1 Magcamit filed a Motion for Reconsideration, 63 which the Court of Appeals denied in the Resolution dated August 9, 2011.
On September 29, 2011, IA1 Magcamit filed his Petition for Review on Certiorari before this court. The Internal Affairs Service,
through the Office of the Solicitor General, filed its Comment, 64 to which IA1 Magcamit replied. 65
The issues for the court's resolution are the following:
First, whether petitioner Investigation Agent 1 Erwin L. Magcamit was denied of his right to due process, rendering the
proceedings before the Internal Affairs Service void; and
Second, whether there was substantial evidence to prove that petitioner shared in the money extorted from Luciana M. Jaen.
EcTCAD
IV
Petitioner maintains that he was denied of his right to due process because the Internal Affairs Service failed to follow the
procedure for administrative investigation under the Uniform Rules on Administrative Cases in the Civil Service. Specifically, the
letter-complaint of "Delfin" did not allege his full name, address, position, and office of employment; the letter-complaint did not
narrate the relevant and material facts that would show the acts or omissions allegedly committed by him; the Internal Affairs
Service did not conduct a preliminary investigation before it issued the Formal Charge; and he was allegedly not furnished copies
of Compliance Investigator Paner's Affidavits. 66
On the merits, petitioner maintains that the pieces of evidence presented in this case do not substantially prove that he shared in
the money extorted from Luciana M. Jaen. 67
On the other hand, respondents argue that petitioner was not denied of his right to due process. They maintain that the essence
of due process, as applied to administrative proceedings, is the opportunity to be heard. Several opportunities were afforded to
petitioner: he was able to file a Comment on the letter-complaint; he answered the Formal Charge; he also filed a Motion for
Reconsideration of the Memorandum dated May 20, 2008, which recommended his dismissal. 68
Moreover, respondents argue that the evidence presented against petitioner sufficiently proved that he is guilty of grave
misconduct and was, therefore, correctly dismissed from the service. 69
V 3.
The ponencia granted IA1 Magcamit's Petition for Review on Certiorari "because [his] dismissal was unsupported by substantial
evidence." 70
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JULY 11, 2019
On the issue of due process, the ponencia agreed with respondents that the essence of due process is the "chance to explain
[one's] side of the controversy." 71 In this case, petitioner was able to deny and controvert the letter-complaint, the Formal
Charge, and the Memorandum dated May 20, 2008 recommending his dismissal. Moreover, the ponencia ruled that formal or
trial-type hearings are not required in administrative cases. There was, therefore, no denial of due process. 72
However, the ponencia found that petitioner was not furnished a copy of the Affidavit dated May 7, 2008 — the only affidavit
among the three executed by Compliance Investigator Paner and the only one that specifically named petitioner as one of those
who shared in the money extorted from Luciana M. Jaen. 73 The Affidavit dated May 7, 2008 was the basis of the Civil Service
Commission to affirm the Internal Affairs Service's Memorandum dated May 20, 2008. 74 SDHTEC
As for the other pieces of evidence presented against petitioner, the ponencia pointed out that none of them specifically named
petitioner; 75 hence, there was no substantial evidence to prove that he was involved in the extortion. Although petitioner was
part of the buy-bust operation team that apprehended Luciana M. Jaen, the ponencia ruled that this in itself does not prove that
petitioner shared in the money. 76
VI
I agree that petitioner was afforded his right to due process.
However, contrary to the finding of the ponencia, there was substantial evidence to prove that petitioner shared in the money
extorted from Luciana M. Jaen. Petitioner should be held liable for grave misconduct and be dismissed from the service.
VI.A.
In administrative proceedings, the requirement of due process is satisfied if the party has had the opportunity to be heard. 77 If
the party has been given the right to controvert the allegations and evidence against him, as when the party is able to file a
motion for reconsideration, there is no deprivation of due process. 78
This court in Ang Tibay v. Court of Industrial Relations 79 laid down the cardinal rights in due process. In Air Manila, Inc. v. Hon.
Balatbat, et al., 80 due process requirements are satisfied if the following are met: (a) "the right to notice, be it actual or
constructive, of the institution of the proceedings that may affect a person's legal rights;" 81 (b) "reasonable opportunity to appear
and defend his rights, introduce witnesses and relevant evidence in his favor;" 82 (c) a tribunal so constituted as to give him
reasonable assurance of honesty and impartiality, and one of competent jurisdiction;" 83 and (d) "a finding or decision by that
tribunal supported by substantial evidence presented at the hearing, or at least contained in the records or disclosed to the
parties affected." 84
These requirements have been met in this case.
The Formal Charge dated May 9, 2008, with the Affidavits of Luciana M. Jaen and Delfin Magcawas, Jr. attached to it, notified
petitioner of the institution of the administrative proceedings against him. The Internal Affairs Service afforded petitioner
reasonable opportunity to defend his rights, as he was able to file an Answer to the Formal Charge as well as a Motion for
Reconsideration of the Memorandum recommending his dismissal. The recommendation was made by the Internal Affairs
Service, the office under the PDEA that has disciplining authority over petitioner. HSAcaE
VI.B.
Even the fourth requisite, which petitioner argues was absent, has been met in this case.
Substantial evidence is "evidence [that] a reasonable mind might accept as adequate to support a conclusion." 85 The Civil
Service Commission and the Court of Appeals correctly relied on the Affidavit 86 dated May 7, 2008 of Compliance Investigator
Paner. This piece of evidence related how petitioner consented to the sharing of the P200,000.00 extorted from Luciana M. Jaen:
13. That pretending nothing had happened and yet projecting to the group that I am a bit apprehensive as to the
evident inequality in the sharing of the extorted money from subject Jaen, I was able to talk with Agent Erwin Magcamit, one of
the members of the arresting team, and asked the latter as to how the group came up with the Php21,500.00 sharing for each
member out of the Php200,000.00; from which Agent Magcamit simply said to me that such was the sharing and everybody
except me seemed to have consented; in addition thereto, Agent Magcamit vividly mentioned all other members who got their
share of the Php21,500.00, namely, [1] Carlos S. Aldeon, [2] PO3 Emerson Adaviles, [3] PO2 Reywin Bariuad, [4] IO2 Renato
Infante, [5] IO2 Apolinario Mationg, [6] IO2 Ryan C. Alfaro, and [7] PO3 Peter Sistemio. 87 (Emphasis supplied)
It is true that the Affidavit dated May 7, 2008 was considered on appeal before the Civil Service Commission. This Affidavit was
not mentioned in the Memorandum recommending petitioner's dismissal. The Internal Affairs Service, in recommending
petitioner's dismissal, referred to the April 15 and April 17, 2008 Affidavits of Compliance Investigator Paner.
Nevertheless, technical rules of procedure and evidence are not strictly applied in administrative cases. 88 In the National Labor
Relations Commission, evidence introduced on appeal may still be considered so long as the adverse party is given the
opportunity to rebut the evidence. 89 This rule should equally apply in this administrative case since it involves employment,
albeit of a public officer.
Here, petitioner was able to refute the allegations made by Compliance Investigator Paner in his May 7, 2008 Affidavit. IA1
Magcamit said in his Petition for Review before the Court of Appeals:
5.23. The . . . uncorroborated allegations [of Compliance Investigator Paner in his May 7, 2008 Affidavit] are brazen
fabrications and falsehoods made by a person with ulterior motives. Petitioner Magcamit never made such statements to CS1
Paner. He never mentioned to him anything about money nor any sharing of money. CS1 Paner has maliciously and perjuriously
concocted stories. Whatever conversations Petitioner Magcamit had with CS1 Paner was common and casual, as his
conversations with other PDEA employees, considering that they belonged to the same office. 90 (Underscoring in the original)
Petitioner reiterated this argument in his Motion for Reconsideration before the Court of Appeals. 91
The May 7, 2008 Affidavit is substantial to prove that petitioner consented to and shared in the money extorted from Luciana M.
Jaen. This constitutes grave misconduct punishable by dismissal from the service. 92 The Internal Affairs Service, the Civil
Service Commission, and the Court of Appeals did not err in their respective Decisions. AScHCD
ACCORDINGLY, I vote to DENY this Petition for Review on Certiorari.
Footnotes
1. Rollo, pp. 3-17.
2. Id. at 10-27; penned by Associate Justice Mariflor P. Punzalan Castillo, and concurred in by Associate Justice
Josefina Guevara-Salonga and Associate Justice Franchito N. Diamante.
Id. at 28-29.
4. Rule 3, Section 10. ". . . No anonymous complaint shall be entertained unless there is obvious truth or merit to the
allegations therein or supported by documentary or direct evidence, in which case the person complained of may be required to
CONSTI REV – FULL TEXT JULY 11, 2019

comment. . . ." [then CSC Resolution No. 99-1936, or the Uniform Rules on Administrative Cases in the Civil Service, Rule II, Section 8. Complaint. — A complaint against a civil service official or employee shall not be given due
Section 8.] course unless it is in writing and subscribed and sworn to by the complainant. However, in cases initiated by the proper
5. See Ocampo v. Office of the Ombudsman, G.R. No. 114683, January 18, 2000, 322 SCRA 17; Commissioner of disciplining authority, the complaint need not be under oath.
Internal Revenue v. Hantex Trading Co., Inc., G.R. No. 136975, March 31, 2005, 454 SCRA 301; Velasquez v. Hernandez, G.R. No anonymous complaint shall be entertained unless there is obvious truth or merit to the allegations
No. 150732, August 31, 2004, 437 SCRA 357. therein or supported by documentary or direct evidence, in which case the person complained of may be required to comment.
6. Police Commission v. Lood, G.R. No. L-34637, February 24, 1984, 127 SCRA 757, 761, citing Maribojoc v. Hon. The complaint should be written in a clear, simple and concise language and in a systematic manner
Pastor de Guzman, 109 Phil. 833 (1960). as to apprise the civil servant concerned of the nature and cause of the accusation against him and to enable him to intelligently
7. Samalio v. Court of Appeals, G.R. No. 140079, March 31, 2005, 454 SCRA 462, 471. prepare his defense or answer.
8. Ledesma v. Court of Appeals, G.R. No. 166780, December 27, 2007, 541 SCRA 444, 452. The complaint shall contain the following:
9. 69 Phil. 635, 642-644 (1940). a. full name and address of the complainant;
10. Mendoza v. COMELEC, G.R. No. 188308, October 15, 2009, 603 SCRA 692, 713. b. full name and address of the person complained of as well as his position and office of
11. Id. employment;
12. Id. c. a narration of the relevant and material facts which shows the acts or omissions allegedly
13. Id. committed by the civil servant;
14. Imperial v. Jaucian, G.R. No. 149004, April 14, 2004, 427 SCRA 517, 523-524. d. certified true copies of documentary evidence and affidavits of his witnesses, if any; and
15. RULES OF COURT, Rule 45, Section 1. e. certification or statement of non-forum shopping.
16. See Office of the Ombudsman v. Reyes, G.R. No. 170512, October 5, 2011, 658 SCRA 626. See also Hon. In the absence of any one of the aforementioned requirements, the complaint shall be dismissed.
Ombudsman Marcelo v. Bungubung, 575 Phil. 538, 539 (2008). 45. Rollo, pp. 148-149, IA1 Erwin L. Magcamit's Motion for Reconsideration before the Internal Affairs Service.
17. Namely, IO3 Carlo Aldeon, IO2 Renato Infante, IO2 Ryan Alfaro, and IO2 Apolinario Mationg, Jr., rollo, p. 132. 46. Uniform Rules on Administrative Cases in the Civil Service, Rule II, sec. 14 provides:
18. Affidavit dated April 15, 2008, rollo, p. 145; Affidavit dated April 17, 2008, p. 146; Affidavit of Complaint dated May Section 14. Investigation Report. — Within five (5) days from the termination of the preliminary
7, 2008, pp. 174-175. investigation, the investigating officer shall submit the Investigation Report and the complete records of the case to the
19. Rollo, pp. 142-143. disciplining authority.
20. Id. at 175. 47. Rollo, p. 149, IA1 Erwin L. Magcamit's Motion for Reconsideration before the Internal Affairs Service.
LEONEN, J., dissenting: 48. Id. at 149-150.
1. Rollo, pp. 32-69. 49. Id. at 150.
2. Id. at 72-89. The Decision was penned by Associate Justice Mariflor P. Punzalan-Castillo and was concurred in by 50. Id. at 152-155.
Associate Justices Josefina Guevara-Salonga and Franchito N. Diamante of the Fourth Division. 51. Id. at 153-154.
3. Id. at 90-91. The Resolution was penned by Associate Justice Mariflor P. Punzalan-Castillo and was concurred in 52. Id.
by Associate Justices Josefina Guevara-Salonga and Franchito N. Diamante of the Fourth Division. 53. Id. at 155.
4. Id. at 139-144. The Memorandum was penned by Special Investigator V Romeo M. Enriquez. 54. Id. at 157-168.
5. Id. at 72, Court of Appeals Decision. 55. Id. at 170-173.
6. Id. at 144, Internal Affairs Service Memorandum. 56. Id. at 72, Court of Appeals Decision.
7. Id. at 128. 57. Id. at 78.
8. Id. 58. Id. at 79.
9. Id. 59. Id.
10. Id. 60. Id.
11. Id. at 129. 61. Id. at 92-124.
12. Id. Inadvertently referred to as "Ationg, Jr." in the Memorandum. 62. Id. at 87-88, Court of Appeals Decision.
13. Id. at 132, Internal Affairs Service's Formal Charge. 63. Id. at 190-204.
14. Id. at 130, IA1 Erwin L. Magcamit's Comments on the Attached Letter Complaint. 64. Id. at 224-242.
15. Id. at 132, Internal Affairs Service's Formal Charge. The other members were IO3 Aldeon, IO2 Infante, IO2 Alfaro, 65. Id. at 245-251.
and IO2 Mationg, Jr. 66. Id. at 45-55, Petition for Review on Certiorari.
16. Id. 67. Id. at 55-66.
17. Id. 68. Id. at 229-235.
18. Id. 69. Id. at 235-240.
19. Id. at 133. 70. Ponencia, p. 5.
20. Id. 71. Id. at 7.
21. Id. 72. Id.
22. Id. at 134, Delfin Magcawas, Jr.'s Affidavit. 73. Id. at 8.
23. Id. 74. Id.
24. Id. 75. Id.
25. Id. 76. Id. at 10.
26. Id. at 135-136. 77. Vivo v. Philippine Amusement and Gaming Corporation (PAGCOR), G.R. No. 187854, November 12, 2013, 709
27. Id. at 135. SCRA 276, 281 [Per J. Bersamin, En Banc]; Gannapao v. Civil Service Commission, et al., 665 Phil. 60, 70 (2011) [Per J.
28. Id. Villarama, Jr., En Banc].
29. Id. at 139-144. 78. Id.
30. Id. at 141. 79. 69 Phil. 635 (1940) [Per J. Laurel, En Banc]. In Ang Tibay, this court summarized the fundamental requirements of
31. Id. at 142-143. administrative due process:
32. Id. at 145. "(1) The first of these rights is the right to a hearing, which includes the right of the party interested or
33. Id. affected to present his own case and submit evidence in support thereof. . . .
34. Id. (2) Not only must the party be given an opportunity to present his case and to adduce evidence
35. Id. tending to establish the rights which he asserts but the tribunal must consider the evidence presented. . . .
36. Id. at 146. (3) 'While the duty to deliberate does not impose the obligation to decide right, it does imply a
37. Id. necessity which cannot be disregarded, namely, that of having something to support its decision. A decision with absolutely
38. Id. nothing to support it is a nullity, a place when directly attached.'. . .
39. Id. (4) Not only must there be some evidence to support a finding or conclusion. . . but the evidence must
40. Id. be 'substantial.'. . .
41. Id. (5) The decision must be rendered on the evidence presented at the hearing, or at least contained in
42. Id. at 143-144, Memorandum dated May 20, 2008. the record and disclosed to the parties affected. . . .
43. Id. at 147-151. (6) [The tribunal] must act on its or his own independent consideration of the law and facts of the
44. Uniform Rules on Administrative Cases in the Civil Service, Rule II, sec. 8 provides: controversy, and not simply accept the views of a subordinate in arriving at a decision. . . .

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(7) [The tribunal] in all controversial questions, render its decision in such a manner that the parties to
the proceeding can know the various issues involved, and the reasons for the decisions rendered. The performance of this duty
is inseparable from the authority conferred upon it." (Id. at 642-644)
80. 148 Phil. 502 (1971) [Per J. J.B.L. Reyes, En Banc].
81. Id. at 506.
82. Id.
83. Id.
84. Id.
85. Ang Tibay v. Court of Industrial Relations, 69 Phil. 635, 642 (1940) [Per J. Laurel, En Banc], citing Appalachian
Electric Power v. National Labor Relations Board, 4 Cir., 93 F. 2d 985, 989; National Labor Relations Board v. Thompson
Products, 6 Cir., 97 F. 2d 13, 15; Ballston-Stillwater Knitting Co. v. National Labor Relations Board, 2 Cir., 98 F. 2d 758, 760.
86. Rollo, pp. 174-175.
87. Id. at 175.
88. Uniform Rules on Administrative Cases in the Civil Service, Rule 1, sec. 3.
89. See Andaya v. National Labor Relations Commission, 502 Phil. 151, 158 (2005) [Per J. Panganiban, Third
Division]. See also Philippine Telegraph and Telephone Corporation v. National Labor Relations Commission, 262 Phil. 491, 498-
499 (1990) [Per J. Regalado, Second Division].
90. Rollo, p. 112, IA1 Erwin L. Magcamit's Petition for Review before the Court of Appeals.
91. Id. at 197, IA1 Erwin L. Magcamit's Motion for Reconsideration before the Court of Appeals.
92. Uniform Rules on Administrative Cases in the Civil Service, Rule IV, sec. 52 (A) (3).

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CONSTI REV – FULL TEXT
EN BANC
[A.M. No. RTJ-18-2520. October 9, 2018.]
(Formerly OCA IPI No. 14-4296-RTJ)
BOSTON FINANCE and INVESTMENT CORPORATION, complainant, vs. CANDELARIO V. GONZALEZ,
Presiding Judge of Regional Trial Court of Bais City, Negros Oriental, respondent.
DECISION
PERLAS-BERNABE, J p:
This administrative case arose from a verified complaint 1 for undue delay in rendering an order amounting to
gross dereliction of duty and violation of Administrative Matter (A.M.) No. 99-10-05-0 2 relative to Civil Case
No. 10-27-MY, entitled "Estate of Danilo Y Uy (deceased) and Thelma D. Uy and Heirs v. Boston Finance and
Investment Corporation," filed by Boston Finance and Investment Corporation (complainant) against Presiding
Judge Candelario V. Gonzalez (respondent) of the Regional Trial Court of Bais City, Negros Occidental,
Branch 45 (RTC). HTcADC
The Facts
Complainant alleged that on November 19, 2010, the plaintiffs in Civil Case No. 10-27-MY, the Estate of
Danilo Y. Uy and Thelma D. Uy, et al. (plaintiffs), filed a Petition with Application for Preliminary Injunction
and/or Temporary Restraining Order (TRO) 3 before the RTC, praying for the issuance of a writ of preliminary
injunction/TRO to enjoin the sale at public auction of the properties that served as collateral for the loans they
obtained from complainant. Respondent issued an Order 4 of even date directing complainant to show cause
why an injunctive writ should not be issued. In the same order, however, respondent also directed the Clerk of
Court, as Ex-Officio Sheriff, and her Deputy Sheriff "to cease and desist from conducting the scheduled public
auction on November 19, 2010 pending the resolution of the instant petition" 5 without, however, specifying
the duration of its effectivity.
On December 2, 2010, complainant filed its Compliance, 6 maintaining that no injunctive writ should issue in
favor of the plaintiffs, and that the petition should be dismissed on the grounds of forum shopping and litis
pendentia. It appears that the plaintiffs had instituted a similar case before the Municipal Trial Court in Cities
(MTCC) of Bacolod City seeking the enjoinment of the foreclosure sale. 7 Subsequently, complainant also filed
its Answer, 8 praying for the dismissal of the petition and reiterating the affirmative defenses in its Compliance.
Furthermore, in a Manifestation with Motion 9 dated June 14, 2011, complainant alleged that there were other
pending incidents in the case that respondent needed to resolve. CAIHTE
Unfortunately, respondent failed to resolve all pending incidents in connection with the case for a relatively
long time. The scheduled hearings were also postponed several times for various reasons, one of which was
the information given to the court by plaintiffs' counsel that the parties were in the process of negotiations for a
final settlement. 10
Thereafter, or on March 18, 2013, complainant again moved 11 for the prompt resolution of all pending
incidents in the case. Although it denied that the parties were currently undergoing amicable settlement, 12
complainant nonetheless expressed its willingness to enter into a compromise agreement with plaintiffs. 13
However, no compromise agreement was reached for failure of the plaintiffs to cooperate with complainant.
Finally, in an Order 14 dated July 24, 2013, respondent suspended the proceedings in and archived Civil Case
No. 10-27-MY "pending resolution of the other related case in Bacolod City." 15
In his defense, 16 respondent claimed that he issued the July 24, 2013 Order in the honest belief that the
parties were in the process of finalizing an amicable settlement, especially since complainant's counsel did not
object thereto. 17 He explained that the suspension of the proceedings was not intended to delay the
resolution of the case, but to facilitate the parties' negotiations preparatory to a compromise agreement. 18
In rebuttal, 19 complainant maintained that respondent's failure to promptly resolve all pending incidents in the
case, i.e., the motion to lift the cease and desist order and the motion to dismiss Civil Case No. 10-27-MY,
despite repeated pleas for their immediate resolution, constituted gross dereliction of duty and violation of A.M.
No. 99-10-05-0. 20 Likewise, complainant pointed out that its several manifestations and motions praying for
the early resolution of the pending incidents should have been sufficient to apprise respondent that it was no
longer willing to enter into a compromise agreement with plaintiffs. As such, respondent had no basis to
assume that the parties were close to having an amicable settlement. 21 aScITE
133
JULY 11, 2019
Finally, although respondent admitted 22 that there were several incidents which remained unacted upon, he
insisted that it was because the preliminary hearing on complainant's affirmative defenses has not yet been
terminated due to the latter's failure to appear. He claimed that complainant actively participated in the similar
case pending before the MTCC in Bacolod City, where the parties were allegedly negotiating for an amicable
settlement. 23
The OCA's Report and Recommendation
In a Memorandum 24 dated June 28, 2017, the Office of the Court Administrator (OCA) recommended, inter
alia, that respondent be found guilty of: (a) gross ignorance of the law and be fined in the amount of
P30,000.00; and (b) undue delay in resolving pending incidents in Civil Case No. 10-27-MY and violation of
Sections 3 and 5, Canon 6 of the New Code of Judicial Conduct for the Philippine Judiciary, 25 and
additionally be fined in the amount of P11,000.00. 26
Citing the provisions of Section 5, 27 Rule 58 of the Rules of Court on the issuance of a preliminary injunction,
the OCA found that since respondent issued the "cease and desist" Order dated November 19, 2010 — which
was in the nature of a TRO — without any justification or any indication of its effectivity, and that he also failed
to conduct a summary hearing within seventy-two (72) hours from its issuance to determine whether the same
should be extended, he should therefore be found guilty of gross ignorance of the law and procedure. 28 The
OCA held that while there was no finding of malice or bad faith against respondent, the rules that the latter
violated were so basic that all magistrates are presumed to know. 29 DETACa
Gross ignorance of the law is a serious charge punishable by either dismissal from service, suspension from
office without salary and other benefits for more than three (3) months but not exceeding six (6) months, or a
fine of more than P20,000.00, but not exceeding P40,000.00. Considering that this is respondent's first
offense, the OCA recommended that he be meted the penalty of a fine in the amount of P30,000.00. 30
Similarly, the OCA observed that respondent's failure to expeditiously resolve the pending incidents in the case
resulted in the undue and inordinate delay in the resolution thereof. Moreover, although a judge may order that
a civil case be archived under several circumstances, 31 the prescribed period should not exceed ninety (90)
days after which, the case should immediately be included in the trial calendar. In this case, a period of two (2)
years had already lapsed, displaying respondent's lackadaisical treatment of the case. 32
Under Item No. 1, Section 9, 33 Rule 140 of the Rules of Court, undue delay in rendering an order is a less
serious charge punishable by suspension from office without salary and other benefits for not less than one (1)
month nor more than three (3) months, or a fine of more than P10,000.00, but not exceeding P20,000.00.
Citing jurisprudence, the OCA recommended that respondent be fined in the amount of P11,000.00 for this
particular offense. 34 HEITAD
The Issue Before the Court
The sole issue for the Court's determination is whether or not respondent should be held administratively
liable.
The Court's Ruling
After a punctilious review of this case, the Court finds respondent guilty of gross ignorance of the law and
undue delay in rendering an order.
"To be able to render substantial justice and maintain public confidence in the legal system, judges should be
embodiments of competence, integrity[,] and independence. Judges are also expected to exhibit more than
just a cursory acquaintance with statutes and procedural rules and to apply them properly in all good faith.
Judges are likewise expected to demonstrate mastery of the principles of law, keep abreast of prevailing
jurisprudence, and discharge their duties in accordance therewith." 35 aDSIHc
In this case, respondent's "cease and desist" Order issued on November 19, 2010 was, as the OCA had
correctly pointed out, in the nature of a TRO. However, the aforesaid order failed to justify the necessity for its
issuance, as it merely issued the directive to the Clerk of Court, acting as Ex-Officio Sheriff, and the Deputy
Sheriff without stating the reasons therefor. Likewise, it did not specify any period for its effectivity, in essence
making the same indefinite. These omissions on respondent's part are contrary to the provisions of Section 5,
Rule 58 of the Rules of Court, which provides:
Section 5. Preliminary injunction not granted without notice; exception. — No preliminary injunction shall be
granted without hearing and prior notice to the party or person sought to be enjoined. If it shall appear from
facts shown by affidavits or by the verified application that great or irreparable injury would result to the
applicant before the matter can be heard on notice, the court to which the application for preliminary injunction
CONSTI REV – FULL TEXT
was made, may issue a temporary restraining order to be effective only for a period of twenty (20) days from
service on the party or person sought to be enjoined, except as herein provided. Within the said twenty-day
period, the court must order said party or person to show cause, at a specified time and place, why the
injunction should not be granted, determine within the same period whether or not the preliminary injunction
shall be granted, and accordingly issue the corresponding order. (See Resolution dated February 17, 1998 in
Bar Matter No. 803 entitled "RE: CORRECTION OF CLERICAL ERRORS IN THE 1997 RULES OF CIVIL
PROCEDURE WHICH WERE APPROVED ON APRIL 8, 1997, EFFECTIVE JULY 1, 1997.) ATICcS
However, and subject to the provisions of the preceding sections, if the matter is of extreme urgency and the
applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple-sala court or the
presiding judge of a single sala court may issue ex parte a temporary restraining order effective for only
seventy-two (72) hours from issuance but he shall immediately comply with the provisions of the next
preceding section as to service of summons and the documents to be served therewith. Thereafter, within the
aforesaid seventy-two (72) hours, the judge before whom the case is pending shall conduct a summary
hearing to determine whether the temporary restraining order shall be extended until the application for
preliminary injunction can be heard. In no case shall the total period of effectivity of the temporary restraining
order exceed twenty (20) days, including the original seventy-two hours provided herein.
In the event that the application for preliminary injunction is denied or not resolved within the said period, the
temporary restraining order is deemed, automatically vacated. The effectivity of a temporary restraining order
is not extendible without need of any judicial declaration to that effect and no court shall have authority to
extend or renew the same on the same ground for which it was issued. ETHIDa
However, if issued by the Court of Appeals or a member thereof, the temporary restraining order shall be
effective for sixty (60) days from service on the party or person sought to be enjoined. A restraining, order
issued by the Supreme Court or a member thereof shall be effective until further orders. (Emphases supplied)
In issuing an indefinite cease and desist order, respondent clearly failed to observe the rules and restrictions
regarding the issuance of a TRO, which are basic tenets of procedure, and hence, renders him
administratively liable for gross ignorance of the law. Case law states that "when a law or a rule is basic,
judges owe it to their office to simply apply the law." 36 It is of no moment that he was motivated by good faith
or acted without malice, as these affect his competency and conduct as a judge in the discharge of his official
functions. According to jurisprudence, gross ignorance of the law or incompetence cannot be excused by a
claim of good faith. 37 TIADCc
Similarly, the Court finds respondent guilty of undue delay in rendering an order for his failure to expeditiously
resolve the pending incidents in Civil Case No. 10-27-MY despite complainant's repeated motions for early
resolution. In fact, it was only when the case was transferred to another judge that it was finally acted upon. 38
Likewise, his explanation for archiving the case on the ground that the parties were in the process of entering
into an amicable settlement does not justify the prolonged inaction thereon, in light of the provisions of
Administrative Circular No. 7-A-92 or the "Guidelines in the Archiving of Cases," which provides that a case
may be archived only for a period not exceeding ninety (90) days, after which, it shall be immediately included
in the trial calendar after the lapse thereof. Respondent's failure to perform his judicial duty with reasonable
promptness in this respect clearly contravenes the provisions of Sections 3 and 5, Canon 6 of the New Code
of Judicial Conduct for the Philippine Judiciary, to wit:
Section 3. Judges shall take reasonable steps to maintain and enhance their knowledge, skills and personal
qualities necessary for the proper performance of judicial duties, taking advantage for this purpose of the
training and other facilities which should be made available, under judicial control, to judges.
Section 5. Judges shall perform all judicial duties, including the delivery of reserved decisions, efficiently,
fairly and with reasonable promptness. cSEDTC
Under Rule 140 of the Revised Rules of Court, as amended, gross ignorance of the law or procedure is a
serious charge 39 punishable by either: (a) dismissal from service, forfeiture of all or part of the benefits as the
Court may determine, and disqualification from reinstatement or appointment to any public office, including
government-owned and controlled corporation; or (b) suspension from office without salary and other benefits
for more than three (3) months, but not exceeding six (6) months; or (c) a fine of more than P20,000.00 but not
exceeding P40,000.00. 40 On the other hand, undue delay in rendering a decision or order is a less serious
charge 41 punishable by either: (a) suspension from office without salary and other benefits for not less than
one (1) month nor more than three (3) months; or (b) a fine of more than P10,000.00, but not exceeding
P20,000.00. 42
134
JULY 11, 2019
Considering that this is the first time that respondent has been found administratively liable for both offenses,
and in light of relevant jurisprudence 43 where separate penalties had been imposed on a respondent judge
who is found guilty of two (2) or more offenses, the Court metes upon respondent in this case the penalty of a
fine in the amount of P30,000.00 for gross ignorance of the law, as well as a fine of P11,000.00 for undue
delay in resolving pending incidents in Civil Case No. 10-27-MY. Further, respondent is sternly warned that a
repetition of the same or similar acts shall be dealt with more severely. AIDSTE
At this juncture, it may be ruminated: is not Section 50, Rule 10 of the Revised Rules on Administrative Cases
in the Civil Service (RRACCS) 44 — which provides that "[i]f the respondent is found guilty of two (2) or more
charges or counts, the penalty to be imposed should be that corresponding to the most serious charge and the
rest shall be considered as aggravating circumstances" — applicable in meting out the penalties on herein
respondent?
The Court is aware that in previous cases, 45 it had indeed applied Section 50, Rule 10 of the RRACCS in
imposing penalties on erring judges who were found guilty of multiple administrative charges or counts. In
Hipe v. Literato, 46 the Court found Judge Rolando T. Literato liable for two (2) offenses, particularly gross
ignorance of the law and undue delay in rendering a decision. Applying Section 50, Rule 10 of the RRACCS, it
imposed a penalty of fine in the amount of P30,000.00, which corresponds to the penalty for the most serious
charge, while undue delay in deciding a case was considered only as an aggravating circumstance. 47 In
Spouses Crisologo v. Omelio, 48 respondent judge was found guilty of four (4) counts of gross ignorance of
the law, for which the Court imposed the penalty for the offense "in its maximum, due to the presence of
aggravating circumstances." 49 In Re: Anonymous Complaints against Bandong, 50 retired Judge Dinah
Evangeline B. Bandong was found liable for gross misconduct, conduct prejudicial to the best interest of
service, and violation of Supreme Court rules but the penalty imposed on her was a single fine of P40,000.00,
based on her most serious charge of gross misconduct, while the rest were only considered as aggravating
circumstances.
In contrast, in another set of cases (which were above-cited and applied herein), 51 the Court had imposed
separate penalties on respondent judges who were found guilty of two (2) or more offenses. In Re: Evaluation
of Administrative Liability of Lubao, 52 the Court found Judge Antonio C. Lubao guilty of various offenses 53
under Rule 140 of the Rules of Court and separately penalized the judge for each violation. In Medina v.
Canoy, 54 Judge Victor A. Canoy was found guilty of gross ignorance of the law and undue delay in rendering
a decision under Rule 140 of the Rules of Court, and accordingly, was meted separate fines for each offense.
55 Similarly, in Reyes v. Paderanga, 56 Judge Rustico D. Paderanga was found guilty of two (2) offenses
under Rule 140 of the Rules of Court and was separately fined for each offense. 57 SDAaTC
Recognizing these diverging strands of jurisprudence, the Court finds it opportune to herein settle the conflict
by resolving that henceforth, in administrative cases involving judges and justices of the lower courts, the
respondent shall be charged and penalized under Rule 140 of the Rules of Court, and accordingly, separate
penalties shall be imposed for every offense. The penalty provisions under the RRACCS shall not apply in
such cases. To avoid any confusion, the underlying considerations therefor shall be explicated below.
Fundamentally, the setting of parameters pertaining to the discipline of all court personnel, including judges
and justices, clearly fall within the sole prerogative of the Court. The Supreme Court's exclusive authority to
set these parameters is based on no other than the 1987 Constitution, which provides:
ARTICLE VIII
Section 6. The Supreme Court shall have administrative supervision over all courts and the personnel
thereof. (Emphases supplied)
In this relation, Section 11, Article VIII of the Constitution particularly states that "[t]he Supreme Court en banc
shall have the power to discipline judges of lower courts, or order their dismissal x x x." 58 AaCTcI
Anchored on these constitutional mandates, the Court issued two (2) separate body of rules to govern judicial
discipline cases, to wit: (a) Rule 140 of the Rules of Court to apply to judges and justices of lower courts; and
(b) the Code of Conduct for Court Personnel (CCCP), 59 which incorporates the RRACCS, to apply to all
judiciary personnel "who are not justices or judges." 60 Each shall be discussed in turn.
In its present form, Rule 140 61 of the Rules of Court is entitled "Discipline of Judges of Regular and Special
Courts and Justices of the Court of Appeals and the Sandiganbayan." As its titular heading denotes, Rule 140
was crafted to specifically govern the discipline of judges and justices of the lower courts, providing therein not
only a distinct classification of charges but also the applicable sanctions. 62 A perusal of the offenses listed
therein shows that they are broad enough to cover all kinds of administrative charges related to judicial
functions, as they even include violations of the codes of conduct for judges, as well as of Supreme Court
CONSTI REV – FULL TEXT
directives. 63 It is likewise apparent that the list of offenses therein includes even violations of the civil service
rules, such as acts of dishonesty, 64 gambling in public, 65 and engaging in partisan political activities. 66 The
Court therefore holds that violations of civil service laws and rules are subsumed under the charges
enumerated in Rule 140 of the Rules of Court. On this score, it is highly-instructive to echo the observations of
retired Associate Justice Presbitero J. Velasco, Jr. in his Separate Opinion in the case of OCA v. Chavez, 67
explaining the "non-application of administrative offenses under the ordinary civil service rules with respect to
judges by reason of them being covered by another set of rules or law that specially deals with the grounds for
their discipline," viz.: acEHCD
1. The RRACCS is intended to govern administrative proceedings in the entire civil service, in
general. Rule 140 of the Rules of the Court, on the other hand, is specifically meant to govern the disciplinary
proceedings against members of the judiciary. Since the RRACCS could not possibly have repealed Rule 140,
the latter rule ought to be considered as an exception to the former rule. In other words, the RRACCS must
yield to Rule 140 with respect to matters specifically treated in the latter.
Among those specifically treated under Rule 140 of the Rules of Court are the different
administrative offenses that a member of the judiciary may be charged with and held liable under. Viewed
thusly, the administrative offenses under RRACCS can have no application to members of the judiciary.
2. The above conclusion is supported by the 1982 case of Macariola v. Asuncion [199 Phil. 295
(1982)].
In Macariola, a judge, who associated himself with a private corporation as an officer and a
stockholder during his incumbency, was administratively charged of, among others, violating a provision of the
Civil Service Rules which was promulgated by the CSC pursuant to Republic Act (RA) No. 2260 or the Civil
Service Act of 1959. The issue then was whether the judge may be held administratively liable under such a
charge.
Macariola answered the issue in the negative and dismissed the said charge. It ruled that
administrative charges under the Civil Service Act of 1959 and the rules that were promulgated thereunder do
not apply to judges, they being members of the judiciary and thus covered by the Judiciary Act of 1948 as to
matters pertaining to grounds for their discipline. EcTCAD
3. While the rules and laws referred to in Macariola had since been superseded by more recent
issuances and enactments, the doctrine established therein, i.e., the non-application of administrative offenses
under the ordinary civil service rules with respect to judges by reason of them being covered by another set of
rules or law that specially deals with the grounds for their discipline, remains valid. Like it was during the time
of Macariola, the grounds for the discipline of members of the judiciary are still provided for under a special set
of rules distinct from the ordinary civil service rules promulgated by the CSC.
Rule 140 of the Rules of Court are the set of rules especially promulgated by the Court to govern
disciplinary proceedings against members of the judiciary. Sections 8, 9[,] and 10 of the said rule, in turn,
provide the specific administrative charges that can be applied against a member of the judiciary. These
provisions are completely separate from the administrative offenses under Section 46 of the RRACCS.
SDHTEC
4. There is also practical value in maintaining the Macariola doctrine. A contrary rule, i.e., allowing the
administrative offenses under the RRACCS to be concurrently applied with those under Rule 140, will only
lead to confusion and even compromise the court's ability, in administrative proceedings against members of
the judiciary, to impose uniform sanctions in cases that bear similar sets of facts. A couple of examples quickly
comes to mind:
a. A judge who fails to render a decision within the reglementary period under the Constitution is
liable for the less serious charge of Undue Delay in Rendering Decision under Rule 140 of the Rules of Court.
However, if the offenses under the RRACCS are rendered applicable, then another judge who commits the
same fault may instead find himself charged with the grave offense of Gross Neglect of Duty under the said
rule.
b. A judge who is an alcoholic and a habitual drunk is liable for a serious charge under Rule 140 of
the Rules of Court. However, should the RRACCS be made applicable, a second judge who is every bit as
alcoholic and drunk as the first may instead be held accountable only for a less grave offense under the said
rule.
135
JULY 11, 2019
The above examples, needless to state, are merely the proverbial tip of the iceberg of confusion
that may follow should we allow the administrative offenses under the RRACCS to be applied against
members of the judiciary. 68 (Emphases supplied) HSAcaE
Hence, in resolving administrative cases against judges or justices of the lower courts, reference need only be
made to Rule 140 of the Rules of Court as regards the charges, as well as the imposable penalties. If the
respondent judge or justice is found liable for two (2) or more charges, separate penalties shall be imposed on
him/her such that Section 50 of the RRACCS shall have no application in imposing sanctions.
On the other hand, as regards other court personnel who are not judges or justices, the CCCP governs the
Court's exercise of disciplinary authority over them. It must be pointed out that the CCCP explicitly
incorporates civil service rules, viz.:
INCORPORATION OF OTHER RULES
Section 1. All provisions of law, Civil Service rules, and issuances of the Supreme Court governing or
regulating the conduct of public officers and employees applicable to the Judiciary are deemed incorporated
into this Code. (Emphases supplied)
Hence, offenses under civil service laws and rules committed by court personnel constitute violations of the
CCCP, for which the offender will be held administratively liable. However, considering that the CCCP does not
specify the sanctions for those violations, the Court has, in the exercise of its discretion, adopted the penalty
provisions under existing civil service rules, such as the RRACCS, including Section 50 thereof. AScHCD
Accordingly, in cases where a respondent court personnel had committed multiple infractions, the Court has
applied Section 50 of the RRACCS. To illustrate, in the recent case of Paduga v. Dimson, 69 a sheriff was
found guilty of three (3) offenses amounting to conduct prejudicial to the best interest of the service, less
serious dishonesty, and simple neglect of duty under the RRACCS. Since there were multiple violations, the
Court applied Section 50 of the RRACCS in imposing the penalty of suspension for one (1) year. Similarly, in
Anonymous Complaint against Camay, Jr., 70 a utility worker of the Judiciary was found guilty of various
serious offenses, and applying Section 50 of the RRACCS, the Court dismissed him from service.
Consistent with these cases, the Court resolves that in administrative cases wherein the respondent court
personnel commits multiple administrative infractions, the Court, adopting Section 50 of the RRACCS, shall
impose the penalty corresponding to the most serious charge, and consider the rest as aggravating
circumstances.
Thus, to summarize the foregoing discussion, the following guidelines shall be observed:
(a) Rule 140 of the Rules of Court shall exclusively govern administrative cases involving judges or
justices of the lower courts. If the respondent judge or justice of the lower court is found guilty of multiple
offenses under Rule 140 of the Rules of Court, the Court shall impose separate penalties for each violation;
and HESIcT
(b) The administrative liability of court personnel (who are not judges or justices of the lower courts)
shall be governed by the Code of Conduct for Court Personnel, which incorporates, among others, the civil
service laws and rules. If the respondent court personnel is found guilty of multiple administrative offenses, the
Court shall impose the penalty corresponding to the most serious charge, and the rest shall be considered as
aggravating circumstances.
The multiplicity of penalties to be imposed on judges and justices is consistent with the higher level of
decorum expected from them. Nevertheless, it must be pointed out that the guidelines herein set forth are
based on the prevailing legal framework in judicial discipline cases, which the Court may, in its discretion,
eventually revise through the proper administrative issuance. After all, the power of supervision over all
judiciary personnel is exclusively vested in the Court. 71
WHEREFORE, respondent Candelario V. Gonzalez, Presiding Judge of the Regional Trial Court of Bais City,
Negros Oriental, Branch 45 is hereby found GUILTY of Gross Ignorance of the Law and accordingly, meted
the penalty of FINE in the amount of P30,000.00. Likewise, he is found GUILTY of Undue Delay in Rendering
an Order and accordingly, meted the penalty of FINE in the amount of P11,000.00. He is STERNLY WARNED
that a repetition of the same or similar offenses shall be dealt with more severely. AcICHD
Furthermore, the Court hereby RESOLVES that the aforestated guidelines shall be observed. These
guidelines shall APPLY to all pending and future administrative cases involving court employees, subject to
revision by the Court through the pertinent issuance therefor.
CONSTI REV – FULL TEXT JULY 11, 2019

SO ORDERED. 34. See rollo, pp. 69-70.

35. Re: Anonymous Letter dated August 12, 2010, Complaining against Judge Pinto, 696 Phil. 21, 26 (2012), citations
Leonardo-de Castro, C.J., Carpio, Peralta, Del Castillo, Leonen, Jardeleza, Caguioa, Tijam and A.B. Reyes, Jr., JJ., concur. omitted.
Bersamin * and Gesmundo, ** JJ., are on official business. 36. Id. at 28; citing Conquilla v. Bernardo, 657 Phil. 289, 299 (2011).
J.C. Reyes, Jr., *** J., is on official leave. 37. Id., citing De los Santos-Reyes v. Montesa, Jr., 317 Phil. 101, 112-113 (1995).
Footnotes 38. See rollo, p. 67.
* On official business. 39. See Item No. 9, Section 8, Rule 140 of the Rules of Court.
** On official business. 40. See Item Nos. 1, 2, and 3, Section 11 (A), Rule 140 of the Rules of Court.
*** On official leave. 41. See Item No. 1, Section 9, Rule 140 of the Rules of Court.
1. Dated July 21, 2014. Rollo, pp. 1-6. 42. See Item Nos. 1 and 2, Section 11 (B), Rule 140 of the Rules of Court.
2. Otherwise known as the "PROCEDURE IN EXTRAJUDICIAL OR JUDICIAL FORECLOSURE OF REAL ESTATE 43. See Re: Evaluation of Administrative Liability of Lubao, A.M. No. 15-09-314-RTC, April 19, 2016, 790 SCRA 188;
MORTGAGES," as amended (March 10, 2007). See also Office of the Court Administrator (OCA) Circular No. 25-07 dated Medina v. Canoy, 682 Phil. 397 (2012); and Reyes v. Paderanga, 572 Phil. 27 (2008), the particulars of which shall be briefly
March 5, 2007. discussed below.
3. Dated November 17, 2010. Id. at 7-9. 44. CSC Resolution No. 1101502, promulgated on November 8, 2011.
4. Id. at 10-11. 45. See Re: Anonymous Complaints against Bandong, A.M. No. RTJ-17-2507, October 9, 2017; Spouses Crisologo v.
5. Id. at 11; italics supplied. Omelio, 696 Phil. 30 (2012); and Hipe v. Literato, 686 Phil. 723 (2012).
6. Dated November 26, 2010. Id. at 12-16. 46. See Hipe v. Literato, id.
7. See id. at 13-14. 47. See id. at 735.
8. Dated December 10, 2010. Id. at 17-22. 48. See Spouses Crisologo v. Omelio, supra note 45.
9. Id. at 26-27. 49. Id. at 68.
10. See Order dated December 3, 2012; id. at 34. See also id. at 63. 50. See Re: Anonymous Complaints against Bandong, supra note 45.
11. See Manifestation with Motion dated March 12, 2013; id. at 35-37. 51. See supra note 43.
12. Id. at 35. 52. See Re: Evaluation of Administrative Liability of Lubao, supra note 43.
13. See Manifestation with Motion dated July 1, 2013; id. at 40-41. 53. I.e., gross misconduct, undue delay in rendering decisions and submission of monthly reports, violation of Supreme
14. Id. at 42. Court rules, directives, and circulars. (Id. at 203-204.)
15. Id. 54. See Medina v. Canoy, supra note 43.
16. See Compliance with a Motion to Dismiss dated October 9, 2014; id. at 44-48. 55. See id. at 410.
17. See id. at 46. 56. See Reyes v. Paderanga, supra note 43.
18. See id. at 47. 57. See id. at 44.
19. See Manifestation dated July 13, 2015; id. at 58-61. 58. Emphasis and underscoring supplied.
20. See id. at 58. 59. A.M. No. 03-06-13-SC (June 1, 2004).
21. See id. at 60. 60. CCCP, Section 1, Scope; emphasis supplied.
22. See Counter Manifestation dated August 3, 2015; id. at 49-51. 61. See Rule 140 of the Rules of Court, as amended by A.M. No. 01-8-10-SC, entitled "RE: PROPOSED
23. See id. at 49-50. AMENDMENT TO RULE 140 OF THE RULES OF COURT RE DISCIPLINE OF JUSTICES AND JUDGES" (October 1, 2001).
24. Id. at 62-70. Issued by Court Administrator Jose Midas P. Marquez and Deputy Court Administrator Jenny Lind R. Section 11, Article VIII of the CONSTITUTION further stresses the Court's disciplinary power over them.
Aldecoa-Delorino. 62. See Sections 7-11, Rule 140 of the Rules of Court, as amended.
25. Entitled "ADOPTING THE NEW CODE OF JUDICIAL CONDUCT FOR THE PHILIPPINE JUDICIARY," A.M. No. 63. Rule 140 of the Rules of Court incorporates violations of the Code of Judicial Conduct as serious charges (see Item
03-05-01-SC (June 1, 2004). No. 3, Section 8) and violations of Supreme Court rules, directives, and circulars as less serious charges (see Item No. 4,
26. Rollo, p. 70. Section 9). The New Code of Judicial Conduct for the Philippine Judiciary states that it "supersedes the Canons of Judicial Ethics
27. Section 5. Preliminary injunction not granted without notice; exception. — No preliminary injunction shall be granted and the Code of Judicial Conduct" but "in case of deficiency or absence of specific provisions in [the] New Code, the Canons of
without hearing and prior notice to the party or person sought to be enjoined. If it shall appear from facts shown by affidavits or Judicial Ethics and the Code of Judicial Conduct shall" apply suppletorily.
by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, 64. This is listed as a serious charge under Item No. 2, Section 8, Rule 140 of the Rules of Court and is likewise
the court to which the application for preliminary injunction was made, may issue a temporary restraining order to be effective prohibited under Section 46 (b) (1), Chapter 7, Subtitle A, Title I, Book V of Executive Order No. 292, entitled "INSTITUTING THE
only for a period of twenty (20) days from service on the party or person sought to be enjoined, except as herein provided. Within 'ADMINISTRATIVE CODE OF 1987,'" also known as the "ADMINISTRATIVE CODE OF 1987" (August 3, 1988), as well as
the said twenty-day period, the court must order said party or person to show cause, at a specified time and place, why the Section 50 (A) (1) and (B) (1), Rule 10 of the "2017 RULES ON ADMINISTRATIVE CASES IN THE CIVIL SERVICE (2017
injunction should not be granted, determine within the same period whether or not the preliminary injunction shall be granted, RACCS)," CSC Resolution No. 1701077, approved on July 3, 2017.
and accordingly issue the corresponding order. (See Resolution dated February 17, 1998 in Bar Matter No. 803 entitled "RE: 65. This is a light charge under Item No. 2, Section 10, Rule 140 of the Rules of Court, and is also a light offense under
CORRECTION OF CLERICAL ERRORS IN THE 1997 RULES OF CIVIL PROCEDURE WHICH WERE APPROVED ON APRIL Section 50 (F) (5), Rule 10 of the 2017 RACCS. This is likewise prohibited under Section 46 (b) (16) Chapter 7, Subtitle A, Title I,
8, 1997, EFFECTIVE JULY 1, 1997.) Book V of the ADMINISTRATIVE CODE OF 1987.
However, and subject to the provisions of the preceding sections, if the matter is of extreme urgency and the 66. This is listed as a serious charge under Item No. 10, Section 8, Rule 140 of the Rules of Court, and is likewise
applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple-sala court or the presiding judge of a prohibited under Section 46 (b) (26) of the ADMINISTRATIVE CODE OF 1987. This is also listed as a less grave offense under
single sala court may issue ex parte a temporary restraining order effective for only seventy-two (72) hours from issuance but he Section 50 (D) (10), Rule 10 of the 2017 RACCS.
shall immediately comply with the provisions of the next preceding section as to service of summons and the documents to be 67. See A.M. No. RTJ-10-2219 and A.M. No. 12-7-130-RTC, August 1, 2017.
served therewith. Thereafter, within the aforesaid seventy-two (72) hours, the judge before whom the case is pending shall 68. See id.; citations omitted.
conduct a summary hearing to determine whether the temporary restraining order shall be extended until the application for 69. See A.M. No. P-18-3833, April 16, 2018.
preliminary injunction can be heard. In no case shall the total period of effectivity of the temporary restraining order exceed 70. See A.M. No. P-17-3659, March 20, 2018.
twenty (20) days, including the original seventy-two hours provided herein. 71. See Maceda v. Vasquez, G.R. No. 102781, April 22, 1993, 221 SCRA 464, 466-467.
In the event that the application for preliminary injunction is denied or not resolved within the said period, the
temporary restraining order is deemed, automatically vacated. The effectivity of a temporary restraining order is not extendible
without need of any judicial declaration to that effect and no court shall have authority to extend or renew the same on the same
ground for which it was issued.
However, if issued by the Court of Appeals or a member thereof, the temporary restraining order shall be effective
for sixty (60) days from service on the party or person sought to be enjoined.
28. See rollo, pp. 65-66.
29. Id. at 67.
30. See id. at 67.
31. See Administrative Circular No. 7-A-92, entitled "Re: GUIDELINES IN THE ARCHIVING OF CASES," issued on
June 21, 1993.
32. See rollo, pp. 67-68.
33. Section. 9. Less Serious Charges. — Less serious charges include:
1. Undue delay in rendering a decision or order, or in transmitting the records of a case[.]

136
CONSTI REV – FULL TEXT
SECOND DIVISION
[A.M. No. RTJ-10-2247. March 2, 2011.]
(Formerly OCA I.P.I. No. 09-3143-RTJ)
JOCELYN DATOON, complainant, vs. JUDGE BETHANY G. KAPILI, Presiding Judge of Regional Trial Court,
Branch 24, Maasin City, Southern Leyte, respondent.
DECISION
MENDOZA, J p:
Before this Court is a verified Complaint 1 filed on March 17, 2009, by complainant Jocelyn Datoon (Datoon)
charging respondent Judge Bethany G. Kapili (Judge Kapili), Presiding Judge of Regional Trial Court Branch
24, Maasin City (RTC), with Conduct Unbecoming a Member of the Judiciary, and Gross Misconduct
amounting to Violation of the Code of Judicial Conduct, relative to an incident which occurred at the Salvacion
Oppus Yñiguez Memorial Hospital (SOYMH) in Maasin City, Southern Leyte. STaIHc
On August 16, 2010, the administrative complaint was referred to the Executive Justice of the Court of
Appeals, Cebu Station, for raffle among the Associate Justices thereat for investigation, report and
recommendation in accordance with the recommendation of the Office of the Court Administrator (OCA).
Datoon testified on her own behalf but presented no other witnesses. She also submitted the following
documents: her verified Complaint to which were attached the Incident Report of the guard-on-duty, her
Affidavit, the Affidavit of her father, Jose Gagan; her verified Reply; 2 and verified Sur-Rejoinder. 3
Judge Kapili also testified on his own behalf and presented, as additional witnesses, Judge Ma. Daisy Paler-
Gonzales (Judge Paler-Gonzales), Efledo Hernandez (Hernandez), and Rodulfo Orit (Orit). He also submitted
the following documents: the Affidavit 4 of Judge Paler-Gonzales, the Affidavit 5 of Hernandez and the Affidavit
6 of Orit.
The facts as borne out by the records and findings of the Investigating Justice are as follows:
Datoon averred that on December 11, 2008, at around 3:00 o'clock in the morning, she was in the labor room
of SOYMH waiting to give birth. She was accompanied by her father, Jose Gagan (Gagan). Suddenly, they
were disturbed by the appearance of Judge Kapili who appeared to her to be drunk as his face was reddish
and his eyes were sleepy. She noticed a gun at his waist over his tucked-in t-shirt and she became nervous.
Judge Kapili entered the labor room calling "Lor, Lor," looking for his wife, Dr. Lorna Kapili (Dr. Kapili), a
practicing obstetrician-gynecologist. Not seeing his wife around, Judge Kapili left and entered the delivery
room, but returned to the labor room a few minutes later. Datoon was crying, as she was already having labor
pains at the time. Judge Kapili then pointed his gun at her and asked "What's your problem?" This caused her
to start crying hysterically while saying "Please don't sir, have pity." At this time, she was lying in bed while
Judge Kapili was standing at the left side of the bed near her head. At that moment, a woman entered the
room and informed Judge Kapili of the whereabouts of Dr. Kapili, after which he left. Datoon claimed that
because of this incident, she was unable to go through normal delivery of her baby and had to undergo
caesarian operation instead. Her testimony appeared in the records as follows:
Q: When you saw the man who was carrying a gun, what was your reaction? DSETac
A: I was frightened.
Q: You said earlier he went inside the delivery room. Before he went inside the labor room and then
he went inside the delivery room. After the delivery room, what happened next?
A: A little later, he went inside the labor room.
Q: What happened next when the man went back inside the labor room?
A: I looked at the man and he pointed the gun at me and uttered the words, "Unsa man, ha?" So I
pleaded, "Ayaw tawon, sir, maluoy ka." Then I heard someone saying, "Dra. was in the other room."
Q: After uttering those words, "Unsa man, ha," your reply was?
A: "Ayaw tawon, sir, maluoy ka."
Q: When the man pointed the gun at you, where were you then?
A: I was in bed, lying.
137
JULY 11, 2019
Q: Where was the man positioned when he pointed the gun at you?
A: He was standing at the left side of the bed near my head.
Q: When the man pointed the gun at you and you said, "Ayaw tawon, sir, maluoy ka," what happened
next? HaIATC
A: The gun was still pointing at me when I heard somebody said, "Si doctora, toa sa pikas nga room."
Q: When you heard the voice saying, "si doctora, toa sa pikas nga room," what happened next?
A: He went outside.
Q: You said your father was inside the labor room. Where was your father at that time?
A: He was opposite my bed. 7
In his Comment, 8 Judge Kapili admitted being at SOYMH on December 11, 2008, but denied having a gun.
He related that he received several phone calls from a woman patient who was looking for his wife, Dr. Lorna
Kapili. He tried to contact his wife by telephone, but she failed to answer, prompting him to proceed to the
hospital to look for her with his security escort, PO2 Jimmy Ganosa (PO2 Ganosa), whose Affidavit 9 was
attached to the Comment. At the hospital, Judge Kapili instructed PO2 Ganosa to proceed to his mother-in-
law's house to check if his wife was there. He then proceeded to the labor room where he saw Datoon who
appeared to be in pain and was surprised by his appearance. He was irked by her reaction so he approached
her to ask what her problem was.
Judge Kapili further asserted that he did not have a gun and was only carrying a clutch bag, which Datoon
might have mistaken as containing a firearm. He also stated that Gagan was not in the labor room and the
only persons present were Datoon and a midwife named Ermelinda Costillas, who was the woman who
informed him that his wife was resting in the doctors' lounge and whose Affidavit 10 was attached to the
Comment. He was unaware that he had created any disturbance as he had not received any notice of such
until more than four months later, or on April 16, 2009, when he received a copy of the Complaint. SHADEC
Judge Kapili was of the belief that the complaint might have been orchestrated and financed by the hospital
administrator, Cielveto Almario (Almario), in retaliation for the various letters he wrote to the hospital
management and to various government agencies criticizing the services of the hospital.
In her verified Reply, Datoon stated that Judge Kapili came from an influential family and had been sending
emissaries to convince her to drop the complaint. She noted that Judge Kapili did not make any categorical
denial of her claim that he was drunk on the night of the incident.
In his Rejoinder, Judge Kapili claimed that Datoon told a co-worker, Flordeliza Marcojos (Marcojos), that he did
not really point a gun at her and that Datoon was made to sign a prepared complaint in exchange for
employment in the government office in the Province of Southern Leyte. He admitted sending persons to
contact Datoon and her father, but explained that it was for the purpose of meeting them, and not to harass or
bribe them. He added that, according to Orit, it was Gagan who insinuated that they be paid P150,000.00 for
the dropping of the case. The affidavits of Marcojos 11 and Orit 12 were attached to his Rejoinder.
In her Verified Sur-Rejoinder, Datoon denied entering into any agreement with the hospital administrator,
Almario, in exchange for the filing of the complaint. She insisted that she fully understood the allegations in the
complaint and denied the assertion that she was only trying to extort money from Judge Kapili.
Judge Paler-Gonzales of RTC, Branch 25, Maasin City, testified that she went to see Datoon in the Provincial
Library where the latter was working at the time; that Datoon told her that the Complaint and Affidavit were
already prepared by Almario; and that she could not be certain if what was stated in her affidavit was true
because she was experiencing labor pains at that time. DHITcS
In support of Judge Kapili's position, Hernandez, Executive Assistant to the Governor of Maasin City, stated in
his Affidavit and testified that he talked to Datoon upon the Governor's instructions to verify the report that
certain persons were extorting money from Judge Kapili. During their conversation, Datoon was said to have
stated that Judge Kapili was carrying a clutch bag but never pointed a gun at her and she did not know who
prepared the affidavit for it was only brought to her for her signature.
Orit, 13 a Kagawad of Brgy. Mantahan, Maasin City, testified that he went to the house of Datoon's father,
Gagan, to convey Judge Kapili's wish to talk with them. At said meeting, Gagan told him that if Judge Kapili
had P150,000.00, then they would meet him.
CONSTI REV – FULL TEXT JULY 11, 2019

On February 7, 2011, Investigating Justice Portia Alino-Hormachuelos submitted her Final Report and 2. Id. at 28-39.
Recommendation, 14 wherein she recommended the dismissal of the complaint for lack of merit after finding 3. Id. at 90-99.
4. Id. at 55-56.
that Datoon failed to prove her charges both by clear, convincing and satisfactory evidence and beyond
5. Id. at 53-54.
reasonable doubt. 6. Id. at 51-52.
7. Id. at 127-128.
The Court adopts the findings and recommendation of the Investigating Justice. 8. Id. at 18-22.
9. Id. at 23.
Administrative charges against judges have been viewed by this Court with utmost care, as the respondent
10. Id. at 24-25.
stands to face the penalty of dismissal or disbarment. Thus, proceedings of this character are in their nature 11. Id. at 47.
highly penal in character and are to be governed by the rules of law applicable to criminal cases. The charges 12. Id. at 51-52.
in such case must, therefore, be proven beyond reasonable doubt. 15 13. Id. at 156.
14. Id. at 239-248.
In light of the evidence submitted in this case, the Court is of the view that the charges against Judge Kapili 15. Verginesa-Suarez v. Dilag, A.M. Nos. RTJ-06-2014 and 06-07-415-RTC, March 4, 2009, 580 SCRA 491, 509.
were not sufficiently substantiated by Datoon who has the burden of proof in administrative proceedings. 16 16. San Buenaventura v. Judge Malaya, 435 Phil. 19, 37 (2002); citing Narag v. Narag, 353 Phil. 643, 655-656 (1998).
The evidence presented was not sufficient to compel the Court to exercise its disciplinary powers over the 17. Section 6. The Supreme Court shall have administrative supervision over all courts and the personnel thereof.
respondent judge as mandated under Article VIII, Section 6 of the 1987 Constitution. 17 DEaCSA 18. Rollo, p. 126.
19. Id. at 2.
Datoon's testimony was uncorroborated. She failed to present any witness to support her charges. Although 20. Id. at 13.
she presented the affidavit of her father, Gagan, who allegedly witnessed the incident, she did not present him 21. Id. at 124.
22. Id.
as a witness to corroborate her testimony, or to refute Judge Kapili's testimony that they had attempted to 23. Id. at 247.
extort money from him, despite the fact that he was present during the hearing. Neither did she present the old 24. Id. at 126.
woman 18 who, she claimed, was also in the room at the time of the incident. 25. Id. at 142.
26. Id. at 148-149.
The Court cannot help but notice that Datoon's testimony was also replete with inconsistencies. As to where 27. Id. at 148.
the gun was at the time Judge Kapili first entered the labor room, her Complaint 19 and Affidavit 20 stated that 28. Id. at 142.
while she "was waiting to give birth in the labor room of the hospital, a man, who was drunk and holding a gun 29. Heirs of Bernardo Ulep v. Ducat, G.R. No. 159284, January 27, 2009, 577 SCRA 6, 18; citing, Rufina Patis Factory
suddenly barged into the room looking for one Dr. Lorna Kapili." On the other hand, during her testimony, 21 v. Alusitain, 478 Phil. 544, 558 (2004).
she stated that he was "carrying a gun on his waist" when he first entered the labor room. She further testified
that Judge Kapili was later holding a gun and pointing it at her when he came back into the labor room.
Furthermore, it was highly unlikely that her crying would have caused Judge Kapili to pull out his gun and point
it at her, considering that he knew he was in the labor room of the hospital where pregnant patients would be
in labor and understandably in pain. Datoon's testimony is contradictory, inconsistent and contrary to human
nature and experience.
As to Judge Kapili's alleged intoxicated state, Datoon only surmised that he was drunk because his face was
flushed and his eyes were sleepy. 22 This was an unfounded conclusion. His sleepy eyes could be attributed
to the fact that it was 3:00 o'clock in the morning, while his reddish face could be explained by his natural
coloration, as observed by the Investigating Justice. 23 Moreover, Datoon admitted that Judge Kapili did not
smell of alcohol or liquor at the time of the incident. 24
Lastly, both Judge Paler-Gonzales 25 and Hernandez 26 testified that Datoon admitted to them that she
signed the Complaint and Affidavit without meeting the lawyers who prepared the same. Hernandez further
bared that Datoon admitted to him that Judge Kapili never pointed a gun at her. 27 On her part, Judge Paler-
Gonzales testified that Datoon admitted that she was not sure if the contents of her Complaint and Affidavit
were true because she was in pain at the time of the incident. 28 HACaSc
Datoon failed to address these accusations as she was not presented for rebuttal. Section 26, Rule 130 of the
Rules of Evidence provides that admissions of a party may be given in evidence against him or her. Datoon's
admission against her interest, as narrated by two credible and neutral witnesses, militates against the
credibility of her charges. The presumption is that no person would declare anything against himself unless
such declaration were true. 29
From all the foregoing, it is clear that Datoon failed to prove her charges against Judge Kapili.
WHEREFORE, the complaint against Judge Bethany G. Kapili is DISMISSED.
SO ORDERED.
Carpio, Velasco, Jr., * Del Castillo ** and Abad, JJ., concur.
Footnotes
* Designated as additional member in lieu of Associate Justice Antonio Eduardo B. Nachura per Special Order No.
933 dated January 24, 2011.
** Designated as additional member in lieu of Associate Justice Diosdado M. Peralta per Special Order No. 954 dated
February 21, 2011.
1. Rollo, pp. 1-11.

138
CONSTI REV – FULL TEXT
EN BANC
[G.R. No. 176162. October 9, 2012.]
CIVIL SERVICE COMMISSION, petitioner, vs. COURT OF APPEALS, DR. DANTE G. GUEVARRA and ATTY.
AUGUSTUS F. CEZAR, respondents.
[G.R. No. 178845. October 9, 2012.]
ATTY. HONESTO L. CUEVA, petitioner, vs. COURT OF APPEALS, DR. DANTE G. GUEVARRA and ATTY.
AUGUSTUS F. CEZAR, respondents.
DECISION
MENDOZA, J p:
These are consolidated petitions for review under Rule 45 of the Revised Rules of Civil Procedure assailing
the December 29, 2006 Decision 1 of the Court of Appeals (CA) in CA-G.R. SP No. 95293, entitled "Dr. Dante
G. Guevarra and Atty. Augustus Cezar v. Civil Service Commission and Atty. Honesto L. Cueva." CHIEDS
The Facts
Respondents Dante G. Guevarra (Guevarra) and Augustus F. Cezar (Cezar) were the Officer-in-
Charge/President and the Vice President for Administration, respectively, of the Polytechnic University of the
Philippines (PUP) 2 in 2005.
On September 27, 2005, petitioner Honesto L. Cueva (Cueva), then PUP Chief Legal Counsel, filed an
administrative case against Guevarra and Cezar for gross dishonesty, grave misconduct, falsification of official
documents, conduct prejudicial to the best interest of the service, being notoriously undesirable, and for
violating Section 4 of Republic Act (R.A.) No. 6713. 3 Cueva charged Guevarra with falsification of a public
document, specifically the Application for Bond of Accountable Officials and Employees of the Republic of the
Philippines, in which the latter denied the existence of his pending criminal and administrative cases. As the
head of the school, Guevarra was required to be bonded in order to be able to engage in financial transactions
on behalf of PUP. 4 In his Application for Bond of Accountable Officials and Employees of the Republic of the
Philippines (General Form No. 58-A), he answered Question No. 11 in this wise:
11. Do you have any criminal or administrative records? — NO. If so, state briefly the nature thereof —
NO. 5
This was despite the undisputed fact that, at that time, both Guevarra and Cezar admittedly had 17 pending
cases for violation of Section 3 (e) of R.A. No. 3019 before the Sandiganbayan. 6 Cezar, knowing fully well
that both he and Guevarra had existing cases before the Sandiganbayan, endorsed and recommended the
approval of the application. 7
The respondents explained that they believed "criminal or administrative records" to mean final conviction in a
criminal or administrative case. 8 Thus, because their cases had not yet been decided by the Sandiganbayan,
they asserted that Guevarra responded to Question No. 11 in General Form No. 58-A correctly and in good
faith. 9
On March 24, 2006, the Civil Service Commission (CSC) issued Resolution No. 060521 10 formally charging
Guevarra with Dishonesty and Cezar with Conduct Prejudicial to the Best Interest of the Service after a prima
facie finding that they had committed acts punishable under the Civil Service Law and Rules. AHECcT
Subsequently, the respondents filed their Motion for Reconsideration and Motion to Declare Absence of Prima
Facie Case 11 praying that the case be suspended immediately and that the CSC declare a complete absence
of a prima facie case against them. Cueva, on the other hand, filed an Urgent Ex-Parte Motion for the
Issuance of Preventive Suspension 12 and an Omnibus Motion 13 seeking the issuance of an order of
preventive suspension against Guevarra and Cezar and the inclusion of the following offenses in the formal
charge against them: Grave Misconduct, Falsification of Official Document, Conduct Prejudicial to the Best
Interest of the Service, Being Notoriously Undesirable, and Violation of Section 4 of R.A. No. 6713.
In Resolution No. 061141, dated June 30, 2006, 14 the CSC denied the motion for reconsideration filed by the
respondents for being a non-responsive pleading, akin to a motion to dismiss, which was a prohibited pleading
under Section 16 of the Uniform Rules on Administrative Cases in the Civil Service Commission. 15 It also
denied Cueva's motion to include additional charges against the respondents. The CSC, however, placed
Guevarra under preventive suspension for ninety (90) days, believing it to be necessary because, as the
officer-in-charge of PUP, he was in a position to unduly influence possible witnesses against him.
139
JULY 11, 2019
Aggrieved, Guevarra and Cezar filed a petition for certiorari and prohibition before the CA essentially
questioning the jurisdiction of the CSC over the administrative complaint filed against them by Cueva. On
December 29, 2006, the CA rendered its Decision granting the petition and nullifying and setting aside the
questioned resolutions of the CSC for having been rendered without jurisdiction. According to the CA, Section
47, Chapter 7, Subtitle A, Title I, Book V of Executive Order No. 292 (The Administrative Code of 1987), the
second paragraph of which states that heads of agencies and instrumentalities "shall have jurisdiction to
investigate and decide matters involving disciplinary action against officers and employees under their
jurisdiction," bestows upon the Board of Regents the jurisdiction to investigate and decide matters involving
disciplinary action against respondents Guevarra and Cezar. In addition, the CA noted that the CSC erred in
recognizing the complaint filed by Cueva, reasoning out that the latter should have exhausted all
administrative remedies by first bringing his grievances to the attention of the PUP Board of Regents.
EAIcCS
Hence, these petitions.
THE ISSUE
In G.R. No. 176162, petitioner CSC raises the sole issue of:
Whether or not the Civil Service Commission has original concurrent jurisdiction over administrative cases
falling under the jurisdiction of heads of agencies.
The same issue is among those raised by petitioner Cueva in G.R. No. 178845.
The Court agrees that the only question which must be addressed in this case is whether the CSC has
jurisdiction over administrative cases filed directly with it against officials of a chartered state university.
The Court's Ruling
The petitions are meritorious.
Both CSC and Cueva contend that because the CSC is the central personnel agency of the government, it has
been expressly granted by Executive Order (E.O.) No. 292 the authority to assume original jurisdiction over
complaints directly filed with it. The CSC explains that under the said law, it has appellate jurisdiction over all
administrative disciplinary proceedings and original jurisdiction over complaints against government officials
and employees filed before it by private citizens. 16 Accordingly, the CSC has concurrent original jurisdiction,
together with the PUP Board of Regents, over the administrative case against Guevarra and Cezar and it can
take cognizance of a case filed directly with it, despite the fact that the Board of Regents is the disciplining
authority of university employees.
Respondents Guevarra and Cezar, on the other hand, fully adopted the position of the CA in its questioned
decision and propounded the additional argument that the passage of R.A. No. 8292 has effectively removed
from the CSC the authority to hear and decide on cases filed directly with it. IECAaD
CSC has jurisdiction over cases
filed directly with it, regardless of
who initiated the complaint
The CSC, as the central personnel agency of the government, has the power to appoint and discipline its
officials and employees and to hear and decide administrative cases instituted by or brought before it directly
or on appeal. 17 Section 2 (1), Article IX (B) of the 1987 Constitution defines the scope of the civil service:
The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government,
including government-owned or controlled corporations with original charters.
By virtue of Presidential Decree (P.D.) No. 1341, 18 PUP became a chartered state university, thereby making
it a government-owned or controlled corporation with an original charter whose employees are part of the Civil
Service and are subject to the provisions of E.O. No. 292. 19
The parties in these cases do not deny that Guevarra and Cezar are government employees and part of the
Civil Service. The controversy, however, stems from the interpretation of the disciplinary jurisdiction of the
CSC as specified in Section 47, Chapter 7, Subtitle A, Title I, Book V of E.O. No. 292:
SECTION 47. Disciplinary Jurisdiction. — (1) The Commission shall decide upon appeal all
administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days,
or fine in an amount exceeding thirty days' salary, demotion in rank or salary or transfer, removal or dismissal
CONSTI REV – FULL TEXT
from office. A complaint may be filed directly with the Commission by a private citizen against a government
official or employee in which case it may hear and decide the case or it may deputize any department or
agency or official or group of officials to conduct the investigation. The results of the investigation shall be
submitted to the Commission with recommendation as to the penalty to be imposed or other action to be
taken. SECHIA
(2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities
shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and
employees under their jurisdiction. Their decisions shall be final in case the penalty imposed is suspension for
not more than thirty days or fine in an amount not exceeding thirty days' salary. In case the decision rendered
by a bureau or office head is appealable to the Commission, the same may be initially appealed to the
department and finally to the Commission and pending appeal, the same shall be executory except when the
penalty is removal, in which case the same shall be executory only after confirmation by the Secretary
concerned. [Emphases and underscoring supplied]
While in its assailed decision, the CA conceded that paragraph one of the same provision abovequoted allows
the filing of a complaint directly with the CSC, it makes a distinction between a complaint filed by a private
citizen and that of an employee under the jurisdiction of the disciplining authority involved. The CA resolved
that because Cueva was then the Dean of the College of Law and the Chief Legal Counsel of PUP when he
filed the complaint with the CSC, he was under the authority of the PUP Board of Regents. Thus, it is the
Board of Regents which had exclusive jurisdiction over the administrative case he initiated against Guevarra
and Cezar.
The Court finds itself unable to sustain the reading of the CA. DHSEcI
The issue is not novel.
The understanding by the CA of Section 47, Chapter 7, Subtitle A, Title I, Book V of E.O. No. 292 which states
that "a complaint may be filed directly with the Commission by a private citizen against a government official or
employee" is that the CSC can only take cognizance of a case filed directly before it if the complaint was made
by a private citizen.
The Court is not unaware of the use of the words "private citizen" in the subject provision and the plain
meaning rule of statutory construction which requires that when the law is clear and unambiguous, it must be
taken to mean exactly what it says. The Court, however, finds that a simplistic interpretation is not in keeping
with the intention of the statute and prevailing jurisprudence. It is a well-established rule that laws should be
given a reasonable interpretation so as not to defeat the very purpose for which they were passed. As such, "a
literal interpretation is to be rejected if it would be unjust or lead to absurd results." 20 In Secretary of Justice v.
Koruga, 21 the Court emphasized this principle and cautioned us on the overzealous application of the plain
meaning rule:
The general rule in construing words and phrases used in a statute is that in the absence of legislative intent
to the contrary, they should be given their plain, ordinary, and common usage meaning. However, a literal
interpretation of a statute is to be rejected if it will operate unjustly, lead to absurd results, or contract the
evident meaning of the statute taken as a whole. After all, statutes should receive a sensible construction,
such as will give effect to the legislative intention and so as to avoid an unjust or an absurd conclusion.
Indeed, courts are not to give words meanings that would lead to absurd or unreasonable consequences. 22
A literal interpretation of E.O. 292 would mean that only private citizens can file a complaint directly with the
CSC. For administrative cases instituted by government employees against their fellow public servants, the
CSC would only have appellate jurisdiction over those. Such a plain reading of the subject provision of E.O.
202 would effectively divest CSC of its original jurisdiction, albeit shared, provided by law. Moreover, it is
clearly unreasonable as it would be tantamount to disenfranchising government employees by removing from
them an alternative course of action against erring public officials. TcDaSI
There is no cogent reason to differentiate between a complaint filed by a private citizen and one filed by a
member of the civil service, especially in light of Section 12 (11), Chapter 3, Subtitle A, Title I, Book V of the
same E.O. No. 292 which confers upon the CSC the power to "hear and decide administrative cases instituted
by or brought before it directly or on appeal" without any qualification.
In the case of Camacho v. Gloria, 23 the Court stated that "under E.O. No. 292, a complaint against a state
university official may be filed with either the university's Board of Regents or directly with the Civil Service
Commission." 24 It is important to note that the Court did not interpret the Administrative Code as limiting such
authority to exclude complaints filed directly with it by a member of the civil service.
140
JULY 11, 2019
Moreover, as early as in the case of Hilario v. Civil Service Commission, 25 the Court interpreted Section 47,
Chapter 7, Subtitle A, Title I, Book V of E.O. No. 292 as allowing the direct filing with the CSC by a public
official of a complaint against a fellow government employee. In the said case, Quezon City Vice-Mayor
Charito Planas directly filed with the CSC a complaint for usurpation, grave misconduct, being notoriously
undesirable, gross insubordination, and conduct prejudicial to the best interest of the service against the City
Legal Officer of Quezon City. The CSC issued a resolution ruling that the respondent official should not be
allowed to continue holding the position of legal officer. In a petition to the Supreme Court, the official in
question asserted that the City Mayor was the only one who could remove him from office directly and not the
CSC. The Court upheld the decision of the CSC, citing the same provision of the Administrative Code:
Although respondent Planas is a public official, there is nothing under the law to prevent her from filing a
complaint directly with the CSC against petitioner. Thus, when the CSC determined that petitioner was no
longer entitled to hold the position of City Legal Officer, it was acting within its authority under the
Administrative Code to hear and decide complaints filed before it. 26 [Underscoring supplied]
It has been argued that Hilario is not squarely in point. 27 While it is true that the circumstances present in the
two cases are not identical, a careful reading of Hilario reveals that petitioner therein questioned the authority
of the CSC to hear the disciplinary case filed against him, alleging that the CSC's jurisdiction was only
appellate in nature. Hence, the reference to the abovequoted passage in Hilario is very appropriate in this
case as respondents herein pose a similar query before us. IDSaAH
It cannot be overemphasized that the identity of the complainant is immaterial to the acquisition of jurisdiction
over an administrative case by the CSC. The law is quite clear that the CSC may hear and decide
administrative disciplinary cases brought directly before it or it may deputize any department or agency to
conduct an investigation.
CSC has concurrent original jurisdiction
with the Board of Regents over
administrative cases
The Uniform Rules on Administrative Cases in the Civil Service 28 (the Uniform Rules) explicitly allows the
CSC to hear and decide administrative cases directly brought before it:
Section 4. Jurisdiction of the Civil Service Commission. — The Civil Service Commission shall hear and
decide administrative cases instituted by, or brought before it, directly or on appeal, including contested
appointments, and shall review decisions and actions of its offices and of the agencies attached to it.
Except as otherwise provided by the Constitution or by law, the Civil Service Commission shall have the final
authority to pass upon the removal, separation and suspension of all officers and employees in the civil
service and upon all matters relating to the conduct, discipline and efficiency of such officers and employees.
[Emphases and underscoring supplied]
The CA construed the phrase "the Civil Service Commission shall have the final authority to pass upon the
removal, separation and suspension of all officers and employees in the civil service" to mean that the CSC
could only step in after the relevant disciplinary authority, in this case the Board of Regents of PUP, had
investigated and decided on the charges against the respondents. Regrettably, the CA failed to take into
consideration the succeeding section of the same rules which undeniably granted original concurrent
jurisdiction to the CSC and belied its suggestion that the CSC could only take cognizance of cases on appeal:
Section 7. Jurisdiction of Heads of Agencies. — Heads of Departments, agencies, provinces, cities,
municipalities and other instrumentalities shall have original concurrent jurisdiction, with the Commission, over
their respective officers and employees. 29 [Emphasis supplied] aHcDEC
It was also argued that although Section 4 of the Uniform Rules is silent as to who can file a complaint directly
with the CSC, it cannot be construed to authorize one who is not a private citizen to file a complaint directly
with the CSC. This is because a rule issued by a government agency pursuant to its law-making power cannot
modify, reduce or enlarge the scope of the law which it seeks to implement. 30
Following the earlier disquisition, it can be said that the Uniform Rules does not contradict the Administrative
Code. Rather, the former simply provides a reasonable interpretation of the latter. Such action is perfectly
within the authority of the CSC, pursuant to Section 12 (2), Chapter 3, Subtitle A, Title I, Book V of E.O. No.
292, which gives it the power to "prescribe, amend and enforce rules and regulations for carrying into effect
the provisions of the Civil Service Law and other pertinent laws."
CONSTI REV – FULL TEXT
Another view has been propounded that the original jurisdiction of the CSC has been further limited by Section
5 of the Uniform Rules, such that the CSC can only take cognizance of complaints filed directly with it which:
(1) are brought against personnel of the CSC central office, (2) are against third level officials who are not
presidential appointees, (3) are against officials and employees, but are not acted upon by the agencies
themselves, or (4) otherwise require direct or immediate action in the interest of justice:
Section 5. Jurisdiction of the Civil Service Commission Proper. — The Civil Service Commission Proper shall
have jurisdiction over the following cases:
A. Disciplinary
1. Decisions of the Civil Service Regional Offices brought before it on petition for review; IEAacS
2. Decisions of heads of departments, agencies, provinces, cities, municipalities and other
instrumentalities, imposing penalties exceeding thirty days suspension or fine in an amount exceeding thirty
days salary brought before it on appeal;
3. Complaints brought against Civil Service Commission Proper personnel;
4. Complaints against third level officials who are not presidential appointees;
5. Complaints against Civil Service officials and employees which are not acted upon by the agencies
and such other complaints requiring direct or immediate action, in the interest of justice;
6. Requests for transfer of venue of hearing on cases being heard by Civil Service Regional Offices;
7. Appeals from the Order of Preventive Suspension; and
8. Such other actions or requests involving issues arising out of or in connection with the foregoing
enumerations.
It is the Court's position that the Uniform Rules did not supplant the law which provided the CSC with original
jurisdiction. While the Uniform Rules may have so provided, the Court invites attention to the cases of Civil
Service Commission v. Alfonso 31 and Civil Service Commission v. Sojor, 32 to be further discussed in the
course of this decision, both of which buttressed the pronouncement that the Board of Regents shares its
authority to discipline erring school officials and employees with the CSC. It can be presumed that, at the time
of their promulgation, the members of this Court, in Alfonso and Sojor, were fully aware of all the existing laws
and applicable rules and regulations pertaining to the jurisdiction of the CSC, including the Uniform Rules. In
fact, Sojor specifically cited the Uniform Rules in support of its ruling allowing the CSC to take cognizance of
an administrative case filed directly with it against the president of a state university. As the Court, in the two
cases, did not consider Section 5 of the Uniform Rules as a limitation to the original concurrent jurisdiction of
the CSC, it can be stated that Section 5 is merely implementary. It is merely directory and not restrictive of the
CSC's powers. The CSC itself is of this view as it has vigorously asserted its jurisdiction over this case through
this petition.
The case of Alfonso 33 is on all fours with the case at bench. The case involved a complaint filed before the
CSC against a PUP employee by two employees of the same university. The CA was then faced with the
identical issue of whether it was the CSC or the PUP Board of Regents which had jurisdiction over the
administrative case filed against the said PUP employee. The CA similarly ruled that the CSC could take
cognizance of an administrative case if the decisions of secretaries or heads of agencies, instrumentalities,
provinces, cities and municipalities were appealed to it or if a private citizen directly filed with the CSC a
complaint against a government official or employee. Because the complainants in the said case were PUP
employees and not private citizens, the CA held that the CSC had no jurisdiction to hear the administrative
case. It further posited that even assuming the CSC had the authority to do so, immediate resort to the CSC
violated the doctrine of exhaustion of administrative remedies as the complaint should have been first lodged
with the PUP Board of Regents to allow them the opportunity to decide on the matter. This Court, however,
reversed the said decision and declared the following: DCaEAS
. . . . Admittedly, the CSC has appellate jurisdiction over disciplinary cases decided by government
departments, agencies and instrumentalities. However, a complaint may be filed directly with the CSC, and the
Commission has the authority to hear and decide the case, although it may opt to deputize a department or an
agency to conduct the investigation. . . .
xxx xxx xxx
We are not unmindful of certain special laws that allow the creation of disciplinary committees and governing
bodies in different branches, subdivisions, agencies and instrumentalities of the government to hear and
141
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decide administrative complaints against their respective officers and employees. Be that as it may, we cannot
interpret the creation of such bodies nor the passage of laws such as — R.A. Nos. 8292 and 4670 allowing for
the creation of such disciplinary bodies — as having divested the CSC of its inherent power to supervise and
discipline government employees, including those in the academe. To hold otherwise would not only negate
the very purpose for which the CSC was established, i.e., to instill professionalism, integrity, and accountability
in our civil service, but would also impliedly amend the Constitution itself.
xxx xxx xxx
But it is not only for this reason that Alfonso's argument must fail. Equally significant is the fact that he had
already submitted himself to the jurisdiction of the CSC when he filed his counter-affidavit and his motion for
reconsideration and requested for a change of venue, not from the CSC to the BOR of PUP, but from the
CSC-Central Office to the CSC-NCR. It was only when his motion was denied that he suddenly had a change
of heart and raised the question of proper jurisdiction. This cannot be allowed because it would violate the
doctrine of res judicata, a legal principle that is applicable to administrative cases as well. At the very least,
respondent's active participation in the proceedings by seeking affirmative relief before the CSC already bars
him from impugning the Commission's authority under the principle of estoppel by laches.
In this case, the complaint-affidavits were filed by two PUP employees. These complaints were not lodged
before the disciplinary tribunal of PUP, but were instead filed before the CSC, with averments detailing
respondent's alleged violation of civil service laws, rules and regulations. After a fact-finding investigation, the
Commission found that a prima facie case existed against Alfonso, prompting the Commission to file a formal
charge against the latter. Verily, since the complaints were filed directly with the CSC, and the CSC has opted
to assume jurisdiction over the complaint, the CSC's exercise of jurisdiction shall be to the exclusion of other
tribunals exercising concurrent jurisdiction. To repeat, it may, however, choose to deputize any department or
agency or official or group of officials such as the BOR of PUP to conduct the investigation, or to delegate the
investigation to the proper regional office. But the same is merely permissive and not mandatory upon the
Commission. 34 [Emphases and underscoring supplied]
It has been opined that Alfonso does not apply to the case at bar because respondent therein submitted
himself to the jurisdiction of the CSC when he filed his counter-affidavit before it, thereby preventing him from
later questioning the jurisdiction of the CSC. Such circumstance is said to be totally absent in this case. 35
The records speak otherwise. As in Alfonso, respondents herein submitted themselves to the jurisdiction of the
CSC when they filed their Joint Counter-Affidavit. 36 It was only when their Motion for Reconsideration and
Motion to Declare Absence of Prima Facie Case 37 was denied by the CSC that they thought to put in issue
the jurisdiction of the CSC before the CA, clearly a desperate attempt to evade prosecution by the CSC. As in
Alfonso, respondents are also estopped from questioning the jurisdiction of the CSC. ITADaE
Based on all of the foregoing, the inescapable conclusion is that the CSC may take cognizance of an
administrative case filed directly with it against an official or employee of a chartered state college or
university. This is regardless of whether the complainant is a private citizen or a member of the civil service
and such original jurisdiction is shared with the Board of Regents of the school.
Gaoiran not applicable
In its decision, the CA relied heavily on Gaoiran v. Alcala 38 to support its judgment that it is the Board of
Regents, and not the CSC, which has jurisdiction over the administrative complaint filed against the
respondents. A thorough study of the said case, however, reveals that it is irrelevant to the issues discussed in
the case at bench. Gaoiran speaks of a complaint filed against a high school teacher of a state-supervised
school by another employee of the same school. The complaint was referred to the Legal Affairs Service of the
Commission on Higher Education (LAS-CHED). After a fact-finding investigation established the existence of a
prima facie case against the teacher, the Officer-in-Charge of the Office of the Director of LAS-CHED issued a
formal charge for Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service, together with
the Order of Preventive Suspension. The newly-appointed Director of LAS-CHED, however, dismissed the
administrative complaint on the ground that the letter-complaint was not made under oath. Unaware of this
previous resolution, the Chairman of the CHED issued another resolution finding petitioner therein guilty of the
charges against him and dismissing him from the service. The trial court upheld the resolution of the director of
LAS-CHED but on appeal, this was reversed by the CA, affirming the decision of the CHED chairman
removing petitioner from service. One of the issues raised therein before this Court was whether the CA erred
in disregarding the fact that the complaint was not made under oath as required by the Omnibus Rules
Implementing Book V of E.O. 292.
CONSTI REV – FULL TEXT
In the said case, the Court concurred with the findings of the CA that it was the formal charge issued by the
LAS-CHED which constituted the complaint, and because the same was initiated by the appropriate
disciplining authority, it need not be subscribed and sworn to and CHED acquired jurisdiction over the case.
The Court further affirmed the authority of the heads of agencies to investigate and decide matters involving
disciplinary action against their officers and employees. It bears stressing, at this point, that there is nothing in
the case that remotely implies that this Court meant to place upon the Board of Regent exclusive jurisdiction
over administrative cases filed against their employees.
In fact, following the ruling in Gaoiran, it can be argued that it was CSC Resolution No. 060521 which formally
charged respondents that constituted the complaint, and since the complaint was initiated by the CSC itself as
the disciplining authority, the CSC properly acquired jurisdiction over the case. ICcaST
R.A. No. 8292 is not in conflict
with E.O. No. 292.
In addition, the respondents argue that R.A. No. 8292, which granted to the board of regents or board of
trustees disciplinary authority over school employees and officials of chartered state colleges and universities,
should prevail over the provisions of E.O. No. 292. 39 They anchor their assertion that the Board of Regents
has exclusive jurisdiction over administrative cases on Section 4 of R.A. No. 8292, 40 to wit:
Section 4. Powers and duties of Governing Boards. — The governing board shall have the following specific
powers and duties in addition to its general powers of administration and the exercise of all the powers
granted to the board of directors of a corporation under Section 36 of Batas Pambansa Blg. 68 otherwise
known as the Corporation Code of the Philippines;
xxx xxx xxx
(h) to fix and adjust salaries of faculty members and administrative officials and employees subject to
the provisions of the revised compensation and classification system and other pertinent budget and
compensation laws governing hours of service, and such other duties and conditions as it may deem proper;
to grant them, at its discretion, leaves of absence under such regulations as it may promulgate, any provisions
of existing law to the contrary not with standing; and to remove them for cause in accordance with the
requirements of due process of law. [Emphasis supplied]
The respondents are mistaken.
Basic is the principle in statutory construction that interpreting and harmonizing laws is the best method of
interpretation in order to form a uniform, complete, coherent, and intelligible system of jurisprudence, in
accordance with the legal maxim interpretare et concordare leges legibus est optimus interpretandi modus. 41
Simply because a later statute relates to a similar subject matter as that of an earlier statute does not result in
an implied repeal of the latter. 42
A perusal of the abovequoted provision clearly reveals that the same does not indicate any intention to remove
employees and officials of state universities and colleges from the ambit of the CSC. What it merely states is
that the governing board of a school has the authority to discipline and remove faculty members and
administrative officials and employees for cause. It neither supersedes nor conflicts with E.O. No. 292 which
allows the CSC to hear and decide administrative cases filed directly with it or on appeal. HDIaST
In addition to the previously cited case of Alfonso, the case of The Civil Service Commission v. Sojor 43 is
likewise instructive. In the said case, this Court ruled that the CSC validly took cognizance of the
administrative complaints directly filed with it concerning violations of civil service rules committed by a
university president. This Court acknowledged that the board of regents of a state university has the sole
power of administration over a university, in accordance with its charter and R.A. No. 8292. With regard to the
disciplining and removal of its employees and officials, however, such authority is not exclusive to it because
all members of the civil service fall under the jurisdiction of the CSC:
Verily, the BOR of NORSU has the sole power of administration over the university. But this power is not
exclusive in the matter of disciplining and removing its employees and officials.
Although the BOR of NORSU is given the specific power under R.A. No. 9299 to discipline its employees and
officials, there is no showing that such power is exclusive. When the law bestows upon a government body the
jurisdiction to hear and decide cases involving specific matters, it is to be presumed that such jurisdiction is
exclusive unless it be proved that another body is likewise vested with the same jurisdiction, in which case,
both bodies have concurrent jurisdiction over the matter.
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All members of the civil service are under the jurisdiction of the CSC, unless otherwise provided by law. Being
a non-career civil servant does not remove respondent from the ambit of the CSC. Career or non-career, a
civil service official or employee is within the jurisdiction of the CSC. 44 [Emphases and underscoring
supplied]
It has been pointed out that the case of Sojor is not applicable to the case at bar because the distinction
between a complaint filed by a private citizen and one filed by a government employee was not taken into
consideration in the said case. 45 The dissent fails to consider that Sojor is cited in the ponencia to support
the ruling that R.A. No. 8292 is not in conflict with E.O. No. 292 and to counter respondents' flawed argument
that the passage of R.A. No. 8292 granted the Board of Regents exclusive jurisdiction over administrative
cases against school employees and officials of chartered state colleges and universities. Also noteworthy is
the fact that the complainants before the CSC in Sojor were faculty members of a state university and were,
thus, government employees. Nevertheless, despite this, the Court allowed the CSC to assert jurisdiction over
the administrative case, proclaiming that the power of the Board of Regents to discipline its officials and
employees is not exclusive but is concurrent with the CSC. 46
The case of University of the Philippines v. Regino 47 was also cited to bolster the claim that original
jurisdiction over disciplinary cases against government officials is vested upon the department secretaries and
heads of agencies and instrumentalities, provinces, cities and municipalities, whereas the CSC only enjoys
appellate jurisdiction over such cases. 48 The interpretation therein of the Administrative Code supposedly
renders effectual the provisions of R.A. No. 8292 and does not "deprive the governing body of the power to
discipline its own officials and employees and render inutile the legal provisions on disciplinary measures
which may be taken by it." 49
The Court respectfully disagrees. Regino is obviously inapplicable to this case because there, the school
employee had already been found guilty and dismissed by the Board of Regents of the University of the
Philippines. Therefore, the issue put forth before this Court was whether the CSC had appellate jurisdiction
over cases against university employees, considering the university charter which gives it academic freedom
allegedly encompassing institutional autonomy. In contrast, no administrative case was filed before the Board
of Regents of PUP because the case was filed directly with the CSC and so, the question here is whether the
CSC has original concurrent jurisdiction over disciplinary cases. Rationally, the quoted portions in Regino find
no application to the case at bench because those statements were made to uphold the CSC's appellate
jurisdiction which was being contested by petitioner therein. At the risk of being repetitive, it is hereby stressed
that the authority of the CSC to hear cases on appeal has already been established in this case. What is in
question here is its original jurisdiction over administrative cases. TCaEIc
A different interpretation of the Administrative Code was suggested in order to harmonize the provisions of
R.A. No. 8292 and E.O. 292. By allowing only a private citizen to file a complaint directly with the CSC, the
CSC maintains its power to review on appeal decisions of the Board of Regents while at the same time the
governing board is not deprived of its power to discipline its officials and employees. 50
To begin with, there is no incongruity between R.A. No. 8292 and E.O. No. 292, as previously explained in
Sojor. Moreover, the Court fails to see how a complaint filed by a private citizen is any different from one filed
by a government employee. If the grant to the CSC of concurrent original jurisdiction over administrative cases
filed by private citizens against public officials would not deprive the governing bodies of the power to
discipline their own officials and employees and would not be violative of R.A. No. 8292, it is inconceivable
that a similar case filed by a government employee would do so. Such a distinction between cases filed by
private citizens and those by civil servants is simply illogical and unreasonable. To accede to such a mistaken
interpretation of the Administrative Code would be a great disservice to our developing jurisprudence.
It is therefore apparent that despite the enactment of R.A. No. 8292 giving the board of regents or board of
trustees of a state school the authority to discipline its employees, the CSC still retains jurisdiction over the
school and its employees and has concurrent original jurisdiction, together with the board of regents of a state
university, over administrative cases against state university officials and employees. IHaECA
Finally, with regard to the concern that the CSC may be overwhelmed by the increase in number of cases filed
before it which would result from our ruling, 51 it behooves us to allay such worries by highlighting two
important facts. Firstly, it should be emphasized that the CSC has original concurrent jurisdiction shared with
the governing body in question, in this case, the Board of Regents of PUP. This means that if the Board of
Regents first takes cognizance of the complaint, then it shall exercise jurisdiction to the exclusion of the CSC.
52 Thus, not all administrative cases will fall directly under the CSC. Secondly, Section 47, Chapter 7, Subtitle
A, Title I, Book V of the Administrative Code affords the CSC the option of whether to decide the case or to
deputize some other department, agency or official to conduct an investigation into the matter, thereby
considerably easing the burden placed upon the CSC.
CONSTI REV – FULL TEXT
Having thus concluded, the Court sees no need to discuss the other issues raised in the petitions.
WHEREFORE, the petitions are GRANTED. The December 29, 2006 Decision of the Court of Appeals is
hereby REVERSED and SET ASIDE. Resolution Nos. 060521 and 061141 dated March 24, 2006 and June
30, 2006, respectively, of the Civil Service Commission are REINSTATED.
SO ORDERED. cCAIDS
Carpio, Leonardo-de Castro, Del Castillo, Villarama, Jr., Perez and Perlas-Bernabe, JJ., concur.
Sereno, C.J., Brion, Bersamin and Abad, JJ., join the dissent of J. Velasco.
Velasco, Jr., J., Please see dissenting opinion.
Peralta and Reyes, JJ., took no part.
Separate Opinions
VELASCO, JR., J., dissenting:
Where the law is clear and unambiguous, it must be taken to mean exactly what it says and the Court has no
choice but to see to it that its mandate is obeyed. 1
The Case
For consideration before the Court are consolidated petitions for review on certiorari assailing the December
29, 2006 Decision 2 of the Court of Appeals (CA) in CA-G.R. SP No. 95293, nullifying and setting aside the
resolutions of the Civil Service Commission (CSC) on jurisdictional ground. ECAaTS
The Facts
On September 27, 2005, petitioner Honesto L. Cueva (Cueva), then Chief Legal Counsel of the Polytechnic
University of the Philippines (PUP), filed an administrative complaint with the CSC against respondents Dante
G. Guevarra (Guevarra) and Augustus F. Cezar (Cezar), who were the Officer-in-Charge/President and the
Vice-President for Administration, respectively, of the PUP. The charge was for gross dishonesty, grave
misconduct, falsification of official documents, conduct prejudicial to the best interest of the service, notorious
undesirability and violation of Section 4 of Republic Act (R.A.) No. 6713. 3
According to Cueva, Guevarra falsified General Form No. 58-A (Application for Bond of Accountable Officials
and Employees of the Republic of the Philippines), a public document, which he was required to accomplish
as the head of PUP in order to be bonded and consequently engage in financial transactions on said
institution's behalf. 4 Guevarra allegedly committed falsification when he wrote on the application that he has
no pending criminal and administrative cases when both respondents at that time have seventeen (17)
pending cases for violation of Sec. 3 (e) of R.A. No. 3019 before the Sandiganbayan. 5 Guevarra also claimed
that Cezar, notwithstanding his knowledge of these existing cases against them, still endorsed and
recommended for approval said application. 6
On their part, respondents clarified that it was their understanding that the phrase "criminal or administrative
records" pertain to final conviction in a criminal administrative case. They add that, inasmuch as the adverted
seventeen (17) cases had not yet been decided by the Sandiganbayan, Guevarra's negative answer to
Question No. 11 in General Form No. 58-A which states, "Do you have any criminal or administrative
records?" was correct. 7
After a prima facie finding that respondents committed acts punishable under the Civil Service Law and Rules,
the CSC, on March 24, 2006, issued Resolution No. 060521 8 formally charging Guevarra with Dishonesty
and Cezar with Conduct Prejudicial to the Best Interest of the Service. ICcDaA
Thereafter, respondents filed their Motion for Reconsideration and Motion to Declare Absence of Prima Facie
Case, 9 therein praying, among other things, that the case be immediately suspended. Cueva, on the other
hand, interposed an Urgent Ex-Parte Motion for the Issuance of Preventive Suspension, 10 as well as an
Omnibus Motion, 11 praying that an order of preventive suspension against respondents issue and the
inclusion of the certain offenses in the formal charge against the two, particularly: grave misconduct,
falsification of official document, conduct prejudicial to the best interest of the service, being notoriously
undesirable, and violation of Sec. 4 of R.A. No. 6713.
By Resolution No. 061141 dated June 30, 2006, the CSC denied both respondents' motion for reconsideration
and Cueva's motion to include additional charges against respondents. 12 Nonetheless, the CSC placed
Guevarra under preventive suspension for ninety (90) days.
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JULY 11, 2019
Therefrom, respondents went to the CA on a petition for certiorari and prohibition questioning the jurisdiction of
the CSC over the administrative complaint filed against them. On December 29, 2006, the CA rendered a
Decision granting the petition and nullifying the resolution issued by the CSC for lack of jurisdiction.
Aggrieved, petitioners have filed the instant separate petitions.
Issue
WHETHER THE CIVIL SERVICE COMMISSION HAS ORIGINAL CONCURRENT JURISDICTION OVER
ADMINISTRATIVE CASES FALLING UNDER THE JURISDICTION OF HEADS OF AGENCIES. ECSaAc
Discussion
The petitions are bereft of merit.
Jurisdiction as conferred by law
It is a basic legal precept that "[j]urisdiction over the subject matter of a case is conferred by law." 13 In the
instant case, the pertinent legal provision is Section 47, Chapter 7, Subtitle A, Title I, Book V of Executive
Order No. 292 (otherwise known as the "Administrative Code"), which reads:
Sec. 47. Disciplinary Jurisdiction. — (1) The Commission shall decide upon appeal all administrative
disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine in an
amount exceeding thirty days' salary, demotion in rank or salary or transfer, removal or dismissal from office. A
complaint may be filed directly with the Commission by a private citizen against a government official or
employee in which case it may hear and decide the case or it may deputize any department or agency or
official or group of officials to conduct the investigation. The results of the investigation shall be submitted to
the Commission with recommendation as to the penalty to be imposed or other action to be taken.
(2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities
shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and
employees under their jurisdiction. Their decisions shall be final in case the penalty imposed is suspension for
not more than thirty days or fine in an amount not exceeding thirty days', salary. In case the decision rendered
by a bureau or office head is appealable to the Commission, the same may be initially appealed to the
department and finally to the Commission and pending appeal, the same shall be executory except when the
penalty is removal, in which case the same shall be executory only after confirmation by the Secretary
concerned. (Emphasis supplied.)
Based on the first paragraph of the above-quoted provision of the Administrative Code, it is clear that, as a
general rule, the CSC shall have appellate jurisdiction over "all administrative disciplinary cases involving the
imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days'
salary, demotion in rank or salary or transfer, removal or dismissal from office." This jurisdictional grant
complements the second paragraph of the same provision which vests upon the department secretaries and
heads of agencies and instrumentalities, provinces, cities and municipalities the original jurisdiction to
investigate and decide matters involving disciplinary action against officers and employees under their
jurisdiction. Concomitantly, the law even accords finality to their decisions "in case the penalty imposed is
suspension for not more than thirty days or fine in an amount not exceeding thirty days' salary."
By way of exception, the same provision allows a complaint to be "filed directly with the Commission by a
private citizen against a government official or employee in which case it may hear and decide the case or it
may deputize any department or agency or official or group of officials to conduct the investigation." Evidently,
the law sanctions the direct filing of a complaint with the CSC, but only if a private citizen is the complainant.
Thus, the CSC has concurrent jurisdiction with the department secretaries and heads of agencies and
instrumentalities, provinces, cities and municipalities when the complaint is filed by a private citizen. cSIADa
In this case, Cueva, then Chief Legal Counsel of the PUP, filed the administrative complaint directly with the
CSC against respondents. Applying the abovementioned provision of the Administrative Code, since a public
employee and not a private citizen filed the complaint, the case falls under the original jurisdiction of the
disciplining authority involved, which is the Board of Regents (BOR) of the PUP. 14 The CSC merely has
appellate jurisdiction. As stated under Section 4 (h) of R.A. No. 8292, otherwise known as the "Higher
Education Modernization Act of 1997":
Section 4. Powers and duties of Governing Boards. — The governing board 15 shall have the following
specific powers and duties in addition to its general powers of administration and the exercise of all the powers
granted to the board of directors of a corporation under Section 36 of Batas Pambansa Blg. 68 otherwise
known as the Corporation Code of the Philippines:
CONSTI REV – FULL TEXT
xxx xxx xxx
(h) . . . and to remove [faculty members and administrative officials and employees] for cause in
accordance with the requirements of due process of law. (Emphasis supplied.)
Admittedly, the Revised Uniform Rules on Administrative Cases in the Civil Service 16 (Civil Service Rules) is
silent as to who can file a complaint directly with the CSC. The pertinent provision of the Civil Service Rules
provides:
Sec. 4. Jurisdiction of the Civil Service Commission. — The Civil Service Commission shall hear and
decide administrative cases instituted by, or brought before it, directly or on appeal, including contested
appointments, and shall review decisions and actions of its offices and of agencies attached to it.
Except as otherwise provided by the Constitution or by law, the Civil Service Commission shall have the final
authority to pass upon the removal, separation and suspension of all officers and employees in the civil
service and upon all matters relating to the conduct, discipline and efficiency of such officers and employees.
(Emphasis supplied.) TESDcA
It is basic that a rule issued by a government agency pursuant to its quasi-legislative power cannot modify,
reduce or enlarge the scope of the law which it seeks to implement. The discourse made by the Court in Lokin,
Jr. v. Commission on Elections is instructive:
The authority to make IRRs in order to carry out an express legislative purpose, or to effect the operation and
enforcement of a law is not a power exclusively legislative in character, but is rather administrative in nature.
The rules and regulations adopted and promulgated must not, however, subvert or be contrary to existing
statutes. The function of promulgating IRRs may be legitimately exercised only for the purpose of carrying out
the provisions of a law. The power of administrative agencies is confined to implementing the law or putting it
into effect. Corollary to this is that administrative regulation cannot extend the law and amend a legislative
enactment. It is axiomatic that the clear letter of the law is controlling and cannot be amended by a mere
administrative rule issued for its implementation. Indeed, administrative or executive acts shall be valid only
when they are not contrary to the laws or the Constitution. 17 (Emphasis supplied.)
Moreover, in Padunan v. Department of Agrarian Reform Adjudication Board, 18 this Court held:
It must be stated at the outset that it is the law that confers jurisdiction and not the rules. Jurisdiction over a
subject matter is conferred by the Constitution or the law and rules of procedure yield to substantive law.
Otherwise stated, jurisdiction must exist as a matter of law. (Emphasis supplied.) ADETca
Taking the foregoing into consideration, Sec. 4 of the Civil Service Rules cannot be construed as authorizing
one other than a private citizen to file a complaint directly with the CSC, contrary to the ruling in the ponencia.
Pertinently, even Sec. 7 of the Civil Service Rules cannot run counter to the clear provision of the
Administrative Code. Sec. 7 of the Civil Service Rules reads:
Section 7. Jurisdiction of Heads of Agencies. — Heads of Departments, agencies, provinces, cities,
municipalities and other instrumentalities shall have original concurrent jurisdiction, with the Commission, over
their respective officers and employees. (Emphasis supplied.)
In this regard, "original concurrent jurisdiction" means that the CSC and the BOR have original concurrent
jurisdiction over complaints filed by a private citizen against a member of the civil service, but the BOR has
original and exclusive jurisdiction over complaints filed by a member of the civil service against an officer or
employee of the university. A contrary interpretation violates the explicit provision of the Administrative Code,
as this is clearly covered by Sec. 47 of the said Code.
Be that as it may, and considering that the Civil Service Rules does not explicitly mention who can file a
complaint directly with the CSC, then the clear import of Sec. 47 of the Administrative Code 19 should be
controlling, that is, only private citizens can file administrative complaints directly with the CSC.
Power to discipline administrative officials and employees
Indeed, government employees, in general, being members of the civil service, are under the jurisdiction of the
CSC. Thus, CSC's power to discipline erring government employees cannot be doubted. As this Court held in
Garcia v. Molina: EHaDIC
The civil service encompasses all branches and agencies of the Government, including government-owned or
controlled corporations (GOCCs) with original charters, like the GSIS, or those created by special law. As
such, the employees are part of the civil service system and are subject to the law and to the circulars, rules
and regulations issued by the CSC on discipline, attendance and general terms and conditions of employment.
144
JULY 11, 2019
The CSC has jurisdiction to hear and decide disciplinary cases against erring employees. 20 (Emphasis
supplied; citations omitted.)
Nonetheless, CSC's jurisdiction to hear and decide disciplinary cases against erring government officials is not
without limitation. As discussed above, the Administrative Code vests the CSC appellate jurisdiction over "all
administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days,
or fine in an amount exceeding thirty days' salary, demotion in rank or salary or transfer, removal or dismissal
from office." Original jurisdiction is vested upon the department secretaries and heads of agencies and
instrumentalities, provinces, cities and municipalities to investigate and decide matters involving disciplinary
action against officers and employees under their jurisdiction. In University of the Philippines v. Regino, 21 this
Court held:
The Civil Service Law (PD 807) expressly vests in the Commission appellate jurisdiction in administrative
disciplinary cases involving members of the Civil Service. Section 9(j) mandates that the Commission shall
have the power to "hear and decide administrative disciplinary cases instituted directly with it in accordance
with Section 37 or brought to it on appeal." And Section 37(a), provides that, "The Commission shall decide
upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more
than thirty (30) days, or fine in an amount exceeding thirty days' salary, demotion in rank or salary or transfer,
removal or dismissal from office."
Under the 1972 Constitution, all government-owned or controlled corporations, regardless of the manner of
their creation, were considered part of the Civil Service. Under the 1987 Constitution only government-owned
or controlled corporations with original charters fall within the scope of the Civil Service pursuant to Article IX-
B, Section 2(1), which states: TEAaDC
The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the government,
including government-owned or controlled corporations with original charters.
As a mere government-owned or controlled corporation, UP was clearly a part of the Civil Service under the
1973 Constitution and now continues to be so because it was created by a special law and has an original
charter. As a component of the Civil Service, UP is therefore governed by PD 807 and administrative cases
involving the discipline of its employees come under the appellate jurisdiction of the Civil Service Commission.
(Emphasis supplied.)
Even if Regino involves the application of Presidential Decree No. 807 22 (PD 807), still, the doctrine
enunciated therein is still applicable as the provision on the disciplinary jurisdiction of the CSC under PD 807
is retained almost verbatim in the Administrative Code.
Such interpretation renders effectual the provisions of R.A. No. 8292, which vests the governing boards of the
universities and colleges with the power to discipline their erring administrative officials and employees.
Specifically, aside from its general powers of administration, the BOR as a governing board is granted with the
specific power to appoint vice presidents, deans, directors, heads of departments, faculty members and other
officials and employees. 23 Consistent with its power to hire or appoint is the power to discipline its officials
and personnel. Moreover, as mentioned above, R.A. No. 8292 also grants the BOR the power to remove its
officials and employees for cause in accordance with the requirements of due process of law. 24 Clearly, the
power of the BOR to discipline university officials and employees cannot be denied.
Concomitantly, a ruling that CSC's jurisdiction to hear and decide disciplinary cases against erring government
officials without limitation will inevitably deprive the BOR of the power to discipline its own officials and
employees and render inutile the legal provisions on disciplinary measures which may be taken by it.
More importantly, if all the complaints filed by a civil service member against another government employee
come under the concurrent jurisdiction of the CSC, then the day will come when the CSC will be swamped
with all kinds of cases, including those where the penalty involved is suspension not exceeding 30 days or fine
not exceeding 30 days' salary. IAaCST
Cases cited
The ponencia cited several cases to support its ruling on the CSC's original jurisdiction to take cognizance of a
complaint directly filed before it by a government employee or official.
The first is Camacho v. Gloria, 25 which, as viewed in the ponencia, did not limit CSC's authority to exclude
complaints filed directly with it by a member of the civil service. On such point, it is worth mentioning that there
is no need for the Court to limit CSC's authority in said case because the facts therein do not call for such
delineation. As a matter of fact, petitioner therein contends that "the Board of Regents has no jurisdiction over
his case considering that as a teacher, original jurisdiction over the administrative case against him is vested
CONSTI REV – FULL TEXT JULY 11, 2019

with a committee whose composition must be in accordance with [R.A.] No. 4670, the Magna Carta for Public 15. Section 16. Formal Charge. — After a finding of a prima facie case, the disciplining authority shall formally charge
School Teachers." Evidently, there was no issue on CSC's jurisdiction to take cognizance of a complaint the person complained of. . . .
If the respondent has submitted his comment and counter-affidavits during the preliminary investigation, he shall be
directly filed before it by a member of the civil service. Moreover, it is not the Court which may limit CSC's
given the opportunity to submit additional evidence.
authority to acquire original jurisdiction over administrative complaints filed by a member of the civil service. The disciplining authority shall not entertain requests for clarification, bills of particulars or motions to dismiss which
Rather, it is the law which may make such limitation, and in this particular case, it is the clear provision of the are obviously designed to delay the administrative proceedings. If any of these pleadings are interposed by the respondent, the
Administrative Code. same shall be considered as an answer and shall be evaluated as such. [Underscoring supplied]
16. Rollo (G.R. No. 176162), pp. 730-731.
The second is Civil Service Commission v. Alfonso, 26 which I submit does not also apply to the case at bar. 17. Constitution (1987), Article IX (B), Section 2; Executive Order No. 292 (1987), Book V, Title I, Subtitle A, Chapter 3,
The significant difference between the instant case and Alfonso lies in the fact that respondent therein Section 12 (6) and (11).
submitted himself to the jurisdiction of the CSC when he filed his counter-affidavit before it. Significantly, 18. (1978).
respondent therein questioned CSC's jurisdiction over the complaint filed against him only when his motion for 19. Executive Order No. 292 (1987), Book V, Title I, Subtitle A, Chapter 2, Section 6:
SECTION 6. Scope of the Civil Service. — (1) The Civil Service embraces all branches, subdivisions,
reconsideration was denied. Thus, he was already estopped from questioning the jurisdiction of the CSC. instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters.
Such circumstance is totally absent in the instant case. Clearly, Alfonso is not, and should not be, a precedent 20. Municipality of Nueva Era, Ilocos Norte v. Municipality of Marcos, Ilocos Norte, G.R. No. 169435, February 27,
to the case at bar. Moreover, Alfonso is a stray decision which runs counter to the clear provision of Sec. 47 of 2008, 547 SCRA 71, 96.
the Administrative Code. 21. G.R. No. 166199, April 24, 2009, 586 SCRA 513.
22. Id. at 523-524.
The third, Civil Service Commission v. Sojor, 27 is also not binding in the instant case. As it were, the issue 23. 456 Phil. 399 (2003).
concerning the distinction between a complaint filed by a private citizen and one filed by a government 24. Id. at 411.
employee was not taken into consideration in Sojor. HTCESI 25. 312 Phil. 1157 (1995).
26. Id. at 1165.
Finally, Hilario v. Civil Service Commission 28 is also not squarely in point. For one, at the time the 27. Dissenting Opinion (J. Velasco), pp. 10-11.
administrative complaint was filed against petitioner therein before the CSC, he was already considered 28. Civil Service Commission Resolution No. 99-1936 (1999) in Memorandum Circular No. 19 (1999).
29. Id.
resigned by then Quezon City (QC) Mayor Ismael A. Mathay, Jr. (Mayor Mathay) almost about a year ago. 30. Dissenting Opinion (J. Velasco), pp. 6-7.
Therefore, if then QC Vice-Mayor Charito L. Planas would still file the case against petitioner before the Office 31. G.R. No. 179452, June 11, 2009, 589 SCRA 88.
of the Mayor, this would just evidently be an exercise in futility. And for another, considering the fact that 32. G.R. No. 168766, May 22, 2008, 554 SCRA 160.
petitioner was already considered resigned by Mayor Mathay, it would be absurd if the latter would still be 33. Civil Service Commission v. Alfonso, supra note 31.
required to take cognizance of an administrative complaint filed against him, who is, for all intents and 34. Id. at 96-100.
purposes, already separated from employment. 35. Dissenting Opinion (J. Velasco), p. 10.
36. Rollo (G.R. No. 176162), pp. 232-235.
Laws harmonized and rendered effectual 37. Id. at 106-132.
38. 486 Phil. 657 (2004).
To the ponencia, Sec. 4 (h) of R.A. No. 8292 (power of the governing board of universities and colleges to 39. Rollo (G.R. No. 176162), pp. 603-604.
remove their administrative officials and employees for cause in accordance with the requirements of due 40. (1997).
41. Valencia v. Court of Appeals, 449 Phil. 711, 726 (2003) and Dreamwork Construction, Inc. v. Janiola, G.R. 184861,
process of law) "does not indicate any intention to remove employees and officials of state universities and
June 30, 2009, 591 SCRA 466, 474.
colleges from the ambit of the CSC." This is true, to a point. 42. Valera v. Tuason, Jr., 80 Phil. 823, 827 (1948).
43. Supra note 32.
In this regard, it bears stressing that with my submission that only a private citizen can file a complaint directly 44. Id. at 176.
with the CSC, the latter is not deprived of its jurisdiction over administrative cases filed by a member of the 45. Dissenting Opinion (J. Velasco), p. 10.
civil service against other erring government employees. In such case, the CSC retains the power of review 46. Civil Service Commission v. Sojor, supra note 32, at 174.
over the decisions of the governing boards of the colleges or universities when these decisions are brought 47. G.R. No. 88167, May 3, 1993, 221 SCRA 598.
before it, on appeal, pursuant to Sec. 47 of the Administrative Code. At the same time, with such interpretation, 48. Dissenting Opinion (J. Velasco), p. 8.
these governing boards are not unduly deprived of the power to discipline their own officials and employees 49. Id. at 9.
50. Id. at 11.
under R.A. No. 8292 and the Administrative Code. This way, not only are laws harmonized with each other, all 51. Id. at 9.
of them are also rendered effectual and operative. 52. Puse v. Delos Santos-Puse, G.R. No. 183678, March 15, 2010, 615 SCRA 500.
VELASCO, JR., J., dissenting:
In view of the foregoing, I submit that the CSC does not have original jurisdiction to take cognizance of the 1. Abello v. Commissioner of Internal Revenue, G.R. 120721, February 23, 2005, 452 SCRA 162; citations omitted.
complaint directly filed before it by Cueva, then PUP legal counsel. Only a private citizen can directly file a 2. Rollo (G.R. No. 176162), pp. 57-72.
complaint with the CSC and no other. TSCIEa 3. Id. at 97.
4. Id. at 197.
Accordingly, I vote to deny the petitions and affirm the appealed December 29, 2006 Decision of the Court of 5. Id. at 98, 197 and 233.
Appeals. 6. Id. at 197.
7. Id. at 107.
Footnotes 8. Id. at 196-199.
1. Rollo (G.R. No. 176162), pp. 57-72. 9. Id. at 106-120.
2. Id. at 57. 10. Id. at 146-148.
3. Id. at 97. 11. Id. at 155-162.
4. Id. at 196-197. 12. Id. at 200-212.
5. Id. at 196. 13. City of Dumaguete v. Philippine Ports Authority, G.R. No. 168973, August 24, 2011.
6. Id. at 98, 197. 14. Section 4 (h) of Republic Act No. 8292 or the Higher Education Modernization Act of 1997.
7. Id. at 197. 15. Under Section 3 (a) of R.A. No. 8292, "[t]he governing body of state universities and colleges is hereby in the
8. Id. at 107. Board of Regents for universities and in the Board of Trustees for Colleges . . . ."
9. Id. at 110. 16. Promulgated by the Civil Service Commission through Resolution No. 99-1936 dated August 31, 1999 and
10. Id. at 196-199. implemented by CSC Memorandum Circular No. 19, Series of 1999.
11. Id. at 106-120. 17. G.R. Nos. 179431-32, June 22, 2010, 621 SCRA 385; citing Metropolitan Bank and Trust Company, Inc. v. National
12. Id. at 146-148. Wages and Productivity Commission, G.R. No. 144322, February 6, 2007, 514 SCRA 346, 349-350.
13. Id. at 155-162. 18. G.R. No. 132163, January 28, 2003, 396 SCRA 196.
14. Id. at 200-212.

145
CONSTI REV – FULL TEXT JULY 11, 2019

19. Section 47, Chapter 7, Subtitle A, Title I, Book V of the Administrative Code.
20. G.R. Nos. 157383 & 174137, August 10, 2010, 627 SCRA 540.
21. G.R. No. 88167, May 3, 1993, 221 SCRA 598.
22. The Civil Service Law.
23. Sec. 4 (g) of R.A. No. 8292.
24. Sec. 4 (h) of R.A. No. 8292.
25. G.R. No. 138862, August 15, 2003, 409 SCRA 174.
26. G.R. No. 179452, June 11, 2009, 589 SCRA 88.
27. G.R. No. 168766, May 22, 2008, 554 SCRA 160.
28. G.R. No. 116041, March 31, 1995, 243 SCRA 206.

146
CONSTI REV – FULL TEXT
SECOND DIVISION
[G.R. No. 209331. August 24, 2015.]
DEPARTMENT OF FINANCE, represented by HON. CESAR V. PURISIMA in his official capacity as
SECRETARY, and the BUREAU OF CUSTOMS, represented by HON. ROZZANO RUFINO B. BIAZON, in his
official capacity as Commissioner of Customs, petitioners, vs. HON. MARINO M. DELA CRUZ, JR., in his
capacity as Executive Judge, Regional Trial Court, Manila, HON. FELICITAS O. LARON-CACANINDIN, in her
capacity as Presiding Judge, Regional Trial Court, Manila, Branch 17, RONNIE C. SILVESTRE, EDWARD P.
DELA CUESTA, ROGEL C. GATCHALIAN, IMELDA D. CRUZ, LILIBETH S. SANDAG, RAYMOND P.
VENTURA, MA. LIZA S. TORRES, ARNEL C. ALCARAZ, MA. LOURDES V. MANGAOANG, FRANCIS
AGUSTIN Y. ERPE, CARLOS T. SO, MARIETTA D. ZAMORANOS, CARMELITA M. TALUSAN, 1 AREFILES
H. CARREON, 2 and ROMALINO G. VALDEZ, respondents.
DECISION
CARPIO, J p:
The Case
Petitioners assail the Order dated 4 October 2013 3 issued by Judge Felicitas O. Laron-Cacanindin (Judge
Laron-Cacanindin) of the Regional Trial Court of Manila, Branch 17 (RTC Branch 17), in Civil Case No. 13-
130820. The Order extended the 72-hour Temporary Restraining Order (TRO) issued by Executive Judge
Marino M. Dela Cruz, Jr. (Executive Judge Dela Cruz) in favor of respondents Silvestre, et al. 4 to 20 days or
until 21 October 2013 without need of posting bond.
The Antecedent Facts
The case stemmed from the issuance of Executive Order No. 140 (EO 140) on 2 September 2013, which
created the Customs Policy Research Office (CPRO) in the Department of Finance (DOF). EO 140 states that
the CPRO "shall be responsible for reviewing the customs administration policies, rules and procedures, and
thereafter providing sound recommendations for the improvement of the same." Section 3 of EO 140 provides
that "CPRO shall be composed of its organic personnel, as approved by the Department of Budget and
Management (DBM) upon recommendation of the DOF Secretary, augmented and reinforced by DOF and
BOC personnel as well as those detailed or seconded from other agencies, whether attached to the DOF or
not. . . . ." Section 9 of EO 140 states that it shall "take effect immediately upon publication in two (2)
newspapers of general circulation." EO 140 was published in Manila Bulletin and Philippine Star on 17
September 2013. HTcADC
On the same day of the publication of EO 140, Bureau of Customs (BOC) Commissioner Rozzano Rufino B.
Biazon (Commissioner Biazon) issued Customs Personnel Order No. B-189-2013 (CPO 189-2013) detailing
27 BOC personnel holding the positions of Collector of Customs V and VI, including respondents in this case,
to CPRO "effective immediately and valid until sooner revoked." CPO 189-2013 was approved by DOF
Secretary Cesar V. Purisima (Secretary Purisima).
On 30 September 2013, respondents filed an action for Declaratory Relief with Application for Temporary
Restraining Order and/or Writ of Preliminary Injunction before the Regional Trial Court (RTC) of Manila. On 1
October 2013, Executive Judge Dela Cruz issued a TRO for a period of 72 hours enjoining petitioners or any
person acting for and in their behalf from implementing CPO 189-2013. Thereafter, the case was raffled to the
sala of Judge Laron-Cacanindin.
In the assailed Order of 4 October 2013, Judge Laron-Cacanindin extended Executive Judge Dela Cruz's 72-
hour TRO for 20 days or until 21 October 2013. She then set the hearing for the issuance of a preliminary
injunction on 18 October 2013.
On 21 October 2013, petitioners filed a Petition for Certiorari and Prohibition before this Court, with prayer for
the issuance of a TRO or a writ of preliminary mandatory injunction. Petitioners alleged that the case involves
personnel action affecting public officers which is under the exclusive jurisdiction of the Civil Service
Commission (CSC). Petitioners also alleged that respondents failed to exhaust all administrative remedies
available to them before filing the petition before the RTC. Petitioners also alleged that CPO 189-2013 is an
internal personnel order with application that is limited to and only within BOC and as such, it cannot be the
subject of an action for declaratory relief.
In their Comment, respondents alleged that the case involves the validity and constitutionality of CPO 189-
2013, and thus, it is beyond the jurisdiction of the CSC. Respondents further alleged that EO 140 violated
Article 2 of the Civil Code when it became effective immediately after its publication. CAIHTE
147
JULY 11, 2019
In their Reply, petitioners alleged that respondents only assailed the validity of EO 140 to justify their filing of
an action for declaratory relief. As regards its effectivity, petitioners alleged that EO 140 states that it shall
"take effect immediately upon publication in two (2) newspapers of general circulation."
In an Order dated 21 October 2013, Judge Laron-Cacanindin denied respondents' application for the issuance
of a writ of preliminary injunction.
In an Order dated 5 November 2013, Judge Laron-Cacanindin inhibited herself from further hearing the case.
The Issues
The issues for determination by this Court are the following:
1. Whether the RTC has jurisdiction over the action for declaratory relief filed by respondents;
2. Whether respondents failed to exhaust administrative remedies in filing the action before the RTC;
3. Whether EO 140 violated Article 2 of the Civil Code when it became effective immediately after its
publication; and
4. Whether CPO 189-2013 was validly issued.
The Ruling of this Court
Jurisdiction over the Petition
The CSC has jurisdiction over all employees of government branches, subdivisions, instrumentalities, and
agencies, including government-owned or controlled corporations with original charters. 5 The CSC is the sole
arbiter of controversies relating to the civil service. 6 The rule is that disciplinary cases and cases involving
personnel actions, including "appointment through certification, promotion, transfer, reinstatement,
reemployment, detail, reassignment, demotion, and separation," are within the exclusive jurisdiction of the
CSC. 7 This rule is embodied in Section 1, Rule V of the Omnibus Rules Implementing Book V of Executive
Order No. 292 and Other Pertinent Civil Service Laws (Omnibus Rules) which states: aScITE
SECTION 1. . . . .
As used in these Rules, any action denoting movement or progress of personnel in the civil service shall be
known as personnel action. Such action shall include promotion, transfer, reinstatement, reemployment, detail,
secondment, reassignment, demotion and separation. . . . .
Under Section 8, Rule VII of the Omnibus Rules, "[a] detail is the movement of an employee from one
department or agency which is temporary in nature, which does not involve a reduction in rank, status or
salary and does not require the issuance of another appointment." CPO 189-2013 is an order detailing
personnel from the BOC to CPRO under the DOF.
A reading of the petition filed before the RTC shows that respondents were questioning their mass detail and
reassignment to CPRO. According to respondents, their detail was carried out in bad faith and was meant to
remove them from their permanent positions in the BOC. The action appears to be a personnel action under
the jurisdiction of the CSC.
However, the petition went beyond questioning the detail of respondents. Respondents further assailed the
validity and constitutionality of CPO 189-2013. Respondents alleged that CPO 189-2013 was issued even
before EO 140, pursuant to which CPO 189-2013 was issued, became effective. Respondents alleged that
CPO 189-2013 was issued to beat the deadline of the Commission on Elections' ban on personnel movement
from 28 September 2013 to 20 October 2013 due to the scheduled barangay elections. When respondents
raised the issue of validity and constitutionality of CPO 189-2013, the issue took the case beyond the scope of
the CSC's jurisdiction because the matter is no longer limited to personnel action. Thus, the RTC did not
abuse its discretion in taking cognizance of the action. DETACa
Failure to Exhaust Administrative Remedies
Petitioners allege that respondents failed to exhaust their administrative remedies before filing the case with
the RTC.
The doctrine of exhaustion of administrative remedies allows administrative agencies to carry out their
functions and discharge their responsibilities within the specialized areas of their respective competence. 8
The doctrine entails lesser expenses and provides for the speedier resolution of controversies. 9 Therefore,
CONSTI REV – FULL TEXT
direct recourse to the trial court, when administrative remedies are available, is a ground for dismissal of the
action.
The doctrine, however, is not without exceptions. Among the exceptions are: (1) where there is estoppel on the
part of the party invoking the doctrine; (2) where the challenged administrative act is patently illegal,
amounting to lack of jurisdiction; (3) where there is unreasonable delay or official inaction that will irretrievably
prejudice the complainant; (4) where the amount involved is relatively so small as to make the rule impractical
and oppressive; (5) where the question involved is purely legal and will ultimately have to be decided by the
courts of justice; (6) where judicial intervention is urgent; (7) where the application of the doctrine may cause
great and irreparable damage; (8) where the controverted acts violate due process; (9) where the issue of
non-exhaustion of administrative remedies had been rendered moot; (10) where there is no other plain,
speedy and adequate remedy; (11) where strong public interest is involved; and (12) in quo warranto
proceedings. 10
In this case, respondents allege that CPO 189-2013 is contrary to law and unconstitutional. Respondents
assail CPO 189-2013 as patently illegal, arbitrary, and oppressive. This case clearly falls within the exceptions
where exhaustion of administrative remedies need not be resorted to by respondents.
Effectivity of EO 140
Respondents allege that EO 140 took effect only on 2 October 2013, fifteen days after its publication in two
newspapers of general circulation. Hence, respondents argue that when CPO 189-2013 was issued, EO 140
was not yet effective. HEITAD
Article 2 of the Civil Code of the Philippines, as amended by Executive Order No. 200, 11 is clear on this
issue. It states:
Art. 2. Laws shall take effect after fifteen days following the completion of their publication either in the
Official Gazette, or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.
The proviso "unless it is otherwise provided" refers to an effectivity date other than after fifteen days following
the completion of the law's publication. 12 Thus, it is within the discretion of the legislature, or the Executive
Department in this case, whether to shorten or extend the fifteen-day period 13 as long as there is compliance
with the requirement of publication.
Here, Section 9 of EO 140 provides that the "order shall take effect immediately upon publication in two (2)
newspapers of general circulation." EO 140 was published in Manila Bulletin and Philippine Star on 17
September 2013. As such, EO 140 took effect on 17 September 2013.
In addition, the Court already ruled that "[i]nterpretative regulations and those merely internal in nature, that is,
regulating only the personnel of the administrative agency and not the public, need not be published." 14 EO
140 is an internal regulation that affects primarily the personnel of the DOF and the BOC. It remains valid even
without publication.
Validity of CPO 189-2013
Respondents assail the validity of CPO 189-2013. Respondents allege that under EO 140, CPRO shall be
composed of its organic personnel, as approved by the DBM upon recommendation of the DOF Secretary.
The organic personnel was supposed to be augmented and reinforced by DOF and BOC personnel.
Respondents allege that they were detailed to CPRO even before its organic personnel could be constituted.
We rule for respondents.
Section 3 of EO 140 provides: aDSIHc
SECTION 3. Personnel and Staffing Complement. The CPRO shall be composed of its organic
personnel, as approved by the Department of Budget and Management (DBM) upon recommendation of the
DOF Secretary, augmented and reinforced by DOF and BOC personnel as well as those detailed or seconded
from other agencies, whether attached to the DOF or not. In addition, the CPRO, upon approval of the DOF
Secretary, may hire or engage technical consultants to provide necessary support in the performance of its
mandate.
Respondents were supposed to augment and reinforce the existing organic personnel of CPRO. Yet, at the
time of respondents' detail, CPRO had not been formally organized. CPRO had no organic personnel that had
been approved by the DBM upon recommendation of the DOF Secretary. The DOF Secretary had yet to
promulgate rules and regulations and to prescribe procedures and processes to enable CPRO to effectively
exercise its powers and duties, as required by Section 4 of EO 140.
148
JULY 11, 2019
In addition, under Section 8, Rule VII of the Omnibus Rules, a detail is temporary in nature. In fact, detail of
employees is only allowed for a maximum period for those occupying professional, technical, and scientific
positions. 15 Section 8, Rule VII of the Omnibus Rules provides:
SEC. 8. A detail is the movement of an employee from one department or agency to another which is
temporary in nature, which does not involve a reduction in rank, status or salary and does not require the
issuance of another appointment.
The employee detailed receives his salary only from his mother unit/agency.
Detail shall be allowed only for a maximum period in the case of employees occupying professional, technical
and scientific position. If the employee believes that there is no justification for the detail, he may appeal his
case to the Commission. Pending appeal, the decision to detail the employee shall be executory unless
otherwise ordered by the Commission.
Section 2 of CSC Resolution No. 021181, dated 13 September 2002, 16 clarified the maximum period of detail
of employees. It states:
Section 2. Duration of the detail. The detail shall be allowed only for a maximum period of one year. Details
beyond one year may be allowed provided it is with the consent of the detailed employee. The extension or
renewal of the period of the detail shall be within the authority of the mother agency.
If the employee believes that there is no justification for the detail, he/she may appeal his/her case to the
proper Civil Service Commission Regional Office. Pending appeal, the detail shall be executory unless
otherwise ordered by said regional office. Decision of said regional office may be further appealed to the
Commission en banc.
In this case, CPO 189-2013 did not provide for the period of respondents' detail. It only provided that the order
"shall be effective immediately and valid until sooner revoked," making the detail of respondents indefinite.
There was nothing to show that respondents were occupying professional, technical, and scientific positions
that would have allowed their detail for the maximum period provided under Section 8, Rule VII of the
Omnibus Rules. Further, CSC Resolution No. 021181 did not distinguish between an ordinary employee and
an employee occupying professional, technical, and scientific position. Hence, it should have been specified
that the maximum period of respondents' detail should not exceed one year.
Petitioners assert, and we quote: ATICcS
There is a cancer of corruption we must extinguish. The drive to rid the government of graft and corruption
deserves the support of everyone.
The principle of good governance cannot, should not, be trivialized nor oversimplified by tenuous whimpering
and individualism intended to detract from the urgent need to cleanse the Republic from a mainstream culture
of unabated corruption, perpetuated with impunity and sense of self-entitlement. The issue at hand is not
about who, but what; it is not about individual loss, but about national gain. Whether from the birth pains of
reform, this nation can gain a foothold, nay, a stride into restoring this nation into its prideful place from the
clutches of a "kleptocratic mafia" that had gained a strangehold into one of the nation's primary sources of
revenue. 17
Indeed, we commend and support the reforms being undertaken in the different agencies of the government.
However, we cannot allow department heads to take shortcuts that will undermine and disregard the basic
procedures of the law.
WHEREFORE, we PARTIALLY GRANT the petition. We sustain the validity of Executive Order No. 140. We
rule that the Regional Trial Court has jurisdiction over the action for declaratory relief filed by respondents. We
further rule that Customs Personnel Order No. B-189-2013 was not validly issued.
SO ORDERED.
Peralta, * Del Castillo and Mendoza, JJ., concur.
Leonen, J., see separate dissenting opinion.
Separate Opinions
LEONEN, J., dissenting:
Respectfully, I dissent.
CONSTI REV – FULL TEXT JULY 11, 2019

The Civil Service Commission has exclusive jurisdiction over questions regarding personnel actions affecting ESTRELLA
civil service employees. 3 It is the sole arbiter that decides controversies regarding the civil service at first
instance. 4 Courts should not directly assume jurisdiction based on allegations of unconstitutionality and 6. SILVESTRE, RONNIE CRUZ Collector of Customs VI (26)
invalidity of government regulations when the question, in essence, involves a personnel action. ETHIDa 7. MANDANGAN, MACABANTUG Collector of Customs V (25)
This is a Petition for certiorari and prohibition with very urgent prayer for the immediate issuance of a DIMAPUNTUG
temporary restraining order and/or writ of preliminary mandatory injunction 5 filed by the Department of
Finance and the Bureau of Customs before this court, assailing the Manila Regional Trial Court's Order 6 8. BAUZON, PRISCILLA DE VERA Collector of Customs V (25)
dated October 1, 2013 issued by Executive Judge Marino M. Dela Cruz, Jr., the Order 7 dated October 4,
9. CRUZ, IMELDA DE JESUS Collector of Customs V (25)
2013 issued by Presiding Judge Felicitas O. Laron-Cacanindin, and all other subsequent Orders preventing
the implementation of Customs Personnel Order No. B-189-2013. 8 The Department of Finance and Bureau of 10. TOGONON, MA. SONIA IRINEA
Customs also pray for the dismissal of the Petition for declaratory relief filed by private respondents before the
Regional Trial Court of Manila. 9 CALUYO Collector of Customs V (25)

On September 2, 2013, President Benigno Aquino III issued Executive Order No. 140 10 creating the Customs 11. SANDAG, LILIBETH SUMBILLA Collector of Customs V (25)
Policy Research Office in the Department of Finance. 11 The Customs Policy Research Office shall review the 12. VENTURA, RAYMOND P. Collector of Customs V (25)
Bureau of Customs' administration policies, rules, and procedures, and provide recommendations for their
improvement. 12 Section 3 of Executive Order No. 140 provides for the composition of the Customs Policy 13. ROQUE, TERESITA SIOSON Collector of Customs V (25)
Research Office:
14. TORRES, MA. LIZA SEBASTIAN Collector of Customs V (25)
SECTION 3. Personnel and Staffing Complement. The [Customs Policy Research Office] shall be
composed of its organic personnel, as approved by the Department of Budget and Management (DBM) upon 15. MARTIN, MARITESS
recommendation of the [Department of Finance] Secretary, augmented and reinforced by [Department of THEODOSSIS Collector of Customs V (25)
Finance] and [Bureau of Customs] personnel as well as those detailed or seconded from other agencies,
whether attached to the [Department of Finance] or not. In addition, the [Customs Policy Research Office], 16. ALCARAZ, ARNEL CRUZ Collector of Customs V (25)
upon approval of the [Department of Finance] Secretary, may hire or engage technical consultants to provide
17. ALCID, TOMAS LADERA Collector of Customs V (25)
necessary support in the performance of its mandate. 13
18. MANGAOANG, MA. LOURDES
Executive Order No. 140 was published on September 17, 2013 in Manila Bulletin and Philippine Star. 14
Section 9 of Executive Order No. 140 provides: VILLAMAR Collector of Customs V (25)
SECTION 9. Effectivity. This Order shall take effect immediately upon publication in two (2) 19. ERPE, FRANCIS AGUSTIN
newspapers of general circulation. 15
YANCHA Collector of Customs V (25)
On September 17, 2013, or on the same day of publication of Executive Order No. 140, Bureau of Customs
Commissioner Rozzano Rufino B. Biazon issued Customs Personnel Order No. B-189-2013, 16 with the 20. VILLAGARCIA, ROGELIO
approval of Department of Finance Secretary Cesar V. Purisima. 17 Customs Personnel Order No. B-189- VELACRUZ Collector of Customs V (25)
2013 detailed 27 Bureau of Customs personnel to the Customs Policy Research Office under the Department
of Finance. 18 Thus: TIADCc 21. ZAMORANOS, MARIETTA DANTE Collector of Customs V (25)
September 17, 2013 22. TAN, JUAN NATIVIDAD Collector of Customs V (25)
CUSTOMS PERSONNEL ORDER 23. TALUSAN, CARMELITA
No. B-189-2013 MANAHAN Collector of Customs V (25)
Under Section 3 of Executive Order No. 140, series of 2013, the Customs Policy Research Office ("the 24. CARREON, AREFILES HAMOY Collector of Customs V (25)
CPRO") shall be composed of its organic personnel, augmented and reinforced by personnel from the
Department of Finance and Bureau of Customs as well [as] those detailed or seconded from other agencies. 25. PACARDO, RUSTUM LANUEVO Collector of Customs V (25)
Pursuant to the foregoing, the following personnel are detailed from the Bureau of Customs to [Customs Policy 26. VALDEZ, ROMALINO GABRIEL Collector of Customs V (25)
Research Office] under the Department of Finance:
27. PABLO, TALEK J. Collector of Customs V (25)
FULL NAME POSITION TITLE AND
All orders, circulars, memoranda, issuances contrary to or inconsistent herewith are hereby revoked and/or
(Surname, First Name) SALARY GRADE modified, and all concerned shall be guided accordingly. cSEDTC
1. GATCHALIAN, ROGEL CRUZ Collector of Customs VI (26) This Order shall be effective immediately and valid until sooner revoked.
2. SO, CARLOS TAN Collector of Customs VI (26) For strict compliance.
3. DELA CUESTA, EDUARD Collector of Customs VI (26) (signed)
PALAFOX ROZZANO RUFINO B. BIAZON
4. BELMONTE, RICARDO RACIMO Collector of Customs VI (26) Commissioner of Customs
5. MOLINA, ADELINA SANTOS Collector of Customs VI (26) APPROVED:

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CONSTI REV – FULL TEXT
(signed)
CESAR V. PURISIMA
Secretary
Department of Finance
Date: ____ 19
Only 12 20 of the affected employees complied with the directive in Customs Personnel Order No. B-189-2013
and reported to the Customs Policy Research Office after its effectivity on September 17, 2014. 21
The other 15 22 affected employees refused to comply with the Order 23 and instead filed on September 30,
2013 a Petition 24 for declaratory relief with an application for a temporary restraining order and/or a writ of
preliminary injunction before the Regional Trial Court of Manila. 25
The 15 employees assailed the validity of Customs Personnel Order No. B-189-2013. 26 They argued that
Customs Personnel Order No. B-189-2013 violated (a) Section 703 27 of Republic Act No. 1937 or the Tariff
and Customs Code; 28 (b) their right to security of tenure as career service officers defined under Book V, Title
I, Subtitle A, Chapter 2, Section 7 of Executive Order No. 292; 29 and (c) Section 3 of Executive Order No.
140. 30 They further argued that Customs Personnel Order No. B-189-2013 was invalid for having been
issued prior to the effectivity of Executive Order No. 140. 31 They relied on Article 2 32 of the Civil Code that
provides that laws become effective 15 days after complete publication. 33
On October 1, 2013, Executive Judge Marino M. Dela Cruz, Jr. granted a 72-hour temporary restraining order
to stop the implementation of Customs Personnel Order No. B-189-2013. 34 The case was then raffled to
Branch 17 presided by Judge Felicitas O. Laron-Cacanindin (Judge Laron-Cacanindin). 35
On October 4, 2013, 36 the Department of Finance and the Bureau of Customs filed a Motion to Dismiss. 37
They argued that the Regional Trial Court had no jurisdiction over the employees' Petition for declaratory relief
and that the requisites for the filing of a Petition for declaratory relief were lacking. 38
In the Order dated October 4, 2013, Judge Laron-Cacanindin extended the temporary restraining order to 20
days after finding that Customs Personnel Order No. B-189-2013 had "violate[d] the rules on detail because it
failed to provide the duration of the detail." 39 In the same Order, Judge Laron-Cacanindin stated that the
Order was without prejudice to further findings of the court after trial on the merits of the main case for
declaratory relief. 40 AIDSTE
In the Order 41 dated October 21, 2013, Judge Laron-Cacanindin denied the employees' application for a writ
of preliminary injunction. 42 The denial of their application for a writ of preliminary injunction prompted six (6)
of the employees who filed the Petition to report to the Customs Policy Research Office. 43 The returning
employees reasoned that they reported for work so they would not be charged with insubordination. 44
On October 21, 2013, the Department of Finance and Bureau of Customs filed this Petition for certiorari and
prohibition. 45
This court required the 15 employees to file a Comment on the Petition. 46 After filing the Comment, 47 the
Department of Finance and Bureau of Customs were ordered to file a Reply. 48
In their Petition for certiorari, the Department of Finance and Bureau of Customs argued that the Civil Service
Commission, not the Regional Trial Court, had jurisdiction over the subject matter of this case and that the 15
employees failed to exhaust all available administrative remedies before filing their Petition for declaratory
relief. 49 According to the Department of Finance and Bureau of Customs, Customs Personnel Order No. B-
189-2013 was a personnel action, and questions involving personnel actions in the civil service should be
lodged before the Civil Service Commission. 50
Further, the Department of Finance and Bureau of Customs argued that some of the requirements for filing a
Petition for declaratory relief were absent. 51 First, a declaratory relief is available only when the government
issuance being questioned is a national law or an ordinance of general application. 52 Since Customs
Personnel Order No. B-189-2013 was an internal personnel order whose application was limited within the
Bureau of Customs, it cannot be a subject of a Petition for declaratory relief. 53 Second, the declaratory relief
was no longer available because Customs Personnel Order No. B-189-2013 had been breached prior to the
filing of the Petition. 54 The 15 employees allegedly committed a breach when they failed to report to the
Customs Policy Research Office upon the effectivity of Customs Personnel Order No. B-189-2013 on
September 17, 2013. 55 Third, a declaratory relief was not available to the 15 employees because they had an
adequate remedy with the Civil Service Commission. 56
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JULY 11, 2019
Regarding the duration of the detail, the Department of Finance and Bureau of Customs argued that the detail
was not indefinite and that pursuant to Civil Service Commission Resolution No. 021181 57 or the Policies on
Detail, the detail shall only last for at most, one (1) year. 58 SDAaTC
In their Comment dated January 8, 2014, the 15 employees countered that the Regional Trial Court had
jurisdiction as the main issue was the validity and constitutionality of Customs Personnel Order No. B-189-
2013. 59 The resolution of this issue required the exercise of judicial review, which was beyond the
competence of the Civil Service Commission. 60
Since the 15 employees' Petition for declaratory relief alleges that Customs Personnel Order No. B-189-2013
is unconstitutional and invalid, those allegations should suffice for the Regional Trial Court to assume
jurisdiction. 61
According to the 15 employees, Customs Personnel Order No. B-189-2013 is unconstitutional for violating
their right to security of tenure. 62 Their detail to the Customs Policy and Research Office amounts to
constructive dismissal 63 as they are now "mere researchers[.]" 64
The 15 employees argue that all the requisites for the filing of a Petition for declaratory relief are present. 65
They claim that Customs Personnel Order No. B-189-2013 is a government regulation, affecting their rights,
duties, rank, and status. 66 Hence, Customs Personnel Order No. B-189-2013 is a proper subject of a Petition
for declaratory relief. 67 They also argue that Customs Personnel Order No. B-189-2013 is void, producing no
effect. 68 According to them, a void or unconstitutional law or issuance cannot be a source of an obligation so
it cannot be breached. 69
This case should consider the following issues:
First, whether the Regional Trial Court has jurisdiction over private respondents' Petition for declaratory relief;
Second, whether all the requisites for the filing of a Petition for declaratory relief are present; and
Finally, whether Customs Personnel Order No. B-189-2013 is void because of its indefinite term.
I.
The Constitution confers jurisdiction over the Civil Service Commission for cases involving the civil service.
Article IX (B), Section 1 (1) of the Constitution provides:
SECTION 1. (1) The Civil Service shall be administered by the Civil Service Commission composed of a
Chairman and two Commissioners who shall be natural-born citizens of the Philippines and, at the time of their
appointment, at least thirty-five years of age, with proven capacity for public administration, and must not have
been candidates for any elective position in the elections immediately preceding their appointment. (Emphasis
supplied)
As part of the Civil Service Commission's mandate to administer the civil service, Article IX (B), Section 3 of
the Constitution provides: AaCTcI
SECTION 3. The Civil Service Commission, as the central personnel agency of the Government, shall
establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness,
progressiveness, and courtesy in the civil service. It shall strengthen the merit and rewards system, integrate
all human resources development programs for all levels and ranks, and institutionalize a management
climate conducive to public accountability. It shall submit to the President and the Congress an annual report
on its personnel programs. (Emphasis supplied)
The Constitution gives the Civil Service Commission quasi-judicial powers through Article IX (A), Sections 6
and 7, which provide:
SECTION 6. Each Commission en banc may promulgate its own rules concerning pleadings and practice
before it or before any of its offices. Such rules, however, shall not diminish, increase, or modify substantive
rights.
SECTION 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought
before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed
submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the
rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law,
any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the
aggrieved party within thirty days from receipt of a copy thereof. (Emphasis supplied)
CONSTI REV – FULL TEXT JULY 11, 2019

As the "central personnel agency of the Government," 70 Book V, Title I, Subtitle A, Chapter 3, Section 12 (11)
of Executive Order No. 292 or the Administrative Code of 1987 provides:
SECTION 12. Powers and Functions. — The [Civil Service] Commission shall have the following
powers and functions:
xxx xxx xxx
(11) Hear and decide administrative cases instituted by or brought before it directly or on appeal,
including contested appointments, and review decisions and actions of its offices and of the agencies attached
to it. Officials and employees who fail to comply with such decisions, orders, or rulings shall be liable for
contempt of the Commission. Its decisions, orders, or rulings shall be final and executory. Such decisions,
orders, or rulings may be brought to the Supreme Court on certiorari by the aggrieved party within thirty (30)
days from receipt of a copy thereof[.] (Emphasis supplied)
Further, for the implementation of Book V, Title I, Subtitle A, Chapter 3, Section 12 (11) of Executive Order No.
292, 71 Sections 5 (B) (3), 6 (B) (3), and 7 (B) (2) of Civil Service Commission Memorandum Circular No. 19-
99 or the Revised Uniform Rules on Administrative Cases in the Civil Service lay down the different offices of
the civil service where complaints involving personnel actions should be filed. Hence: acEHCD
SECTION 5. Jurisdiction of the Civil Service Commission Proper. 72 — The Civil Service Commission Proper
shall have jurisdiction over the following cases:
xxx xxx xxx
Customs] Commissioner Rozzano Rufino B. Biazon and approved by [Department of Finance] Secretary,
Cesar V. Purisima on even date. [Customs Personnel Order] No. B-189-2013 states:
Under Section 3 of Executive Order No. 140, series of 2013, the Customs Policy Research Office (the
"CPRO") shall be composed of its organic personnel, augmented and reinforced by personnel from the
Department of Finance and Bureau of Customs as well as those (sic) detailed or seconded from other
agencies. Pursuant to the foregoing, the following personnel are detailed from the Bureau of Customs to [the
Customs Policy Research Office] under the Department of Finance:
xxx xxx xxx
9. Thus, [private respondents'] original and permanent appointments in plantilla positions as
Collectors of Customs VI and V were effectively and constructively revoked even before the effectivity of
[Executive Order] No. 140 creating the [Customs Policy Research Office]. They are all "detailed" to the
[Customs Policy Research Office] without any appointment papers providing for their specific functions, status,
salary grades, ranks, and designation. By virtue of the assailed issuance, [private respondents] were all
removed from their respective permanent positions as Collectors of Customs to form a supposed "research
body."
10. The Department of Budget and Management (DBM), pursuant to [Executive Order] No. 140 has
not even approved the composition of the organic personnel of the [Customs Policy Research Office]. Neither
has the [Department of Finance] appeared to have made the requisite recommendation for that purpose, as
mandated by [Executive Order] No. 140.

B. Non-Disciplinary 11. While they have not been officially notified thereof, [private respondents] were reliably informed of
the issuance of [Customs Personnel Order] No. B-189-2013 and [petitioners'] attempt to unlawfully "detail"
xxx xxx xxx them to the [Customs Policy Research Office].
3. Protests against the appointment, or other personnel actions, involving third level officials; 73 and xxx xxx xxx
xxx xxx xxx 13. While the [Bureau of Customs] Commissioner's authority to reorganize is recognized, it is neither
absolute nor unbridled. The exercise thereof should not violate the law and the 1987 Constitution. The
SECTION 6. Jurisdiction of Civil Service Regional Offices. — The Civil Service Commission Regional Offices
Constitution clearly mandates that "no officer or employee of the civil service shall be removed or suspended
shall have jurisdiction over the following cases:
except for cause provided by law."
xxx xxx xxx
14. Section 703 of [Republic Act] No. 1937, as amended, provides that: SDHTEC
B. Non-Disciplinary
Assignment of Customs Officers and Employees to other duties. — The Commissioner of Customs may, with
xxx xxx xxx the approval of the Secretary of Finance, assign any employee of the Bureau of Customs to any port, service,
division or office within the Bureau or assign him duties as the best interest of the service may require, in
3. Decisions of national agencies and local government units within their geographical boundaries accordance with the staffing pattern or organizational set-up as may be prescribed by the Commissioner of
relative to personnel actions and non-disciplinary cases brought before it on appeal; and Customs with the approval of the Secretary of Finance: Provided, that such assignment shall not affect the
xxx xxx xxx tenure of office of the employees nor result in the change of status, demotion in rank and/or deduction of
salary.
SECTION 7. Jurisdiction of Heads of Agencies. — Heads of Departments, agencies, provinces, cities,
municipalities and other instrumentalities shall have original concurrent jurisdiction, with the Commission, 74 15. Section 2 of [Republic Act] No. 6656 [or An Act to Protect the Security of Tenure of Civil Service
over their respective officers and employees. Officers and Employees in the Implementation of Government Reorganization] further provides that due notice
and hearing are required to remove a public officer or employee pursuant to a bona fide reorganization, viz.:
xxx xxx xxx
No officer or employee in the career service shall be removed except for a valid cause and after due notice
B. Non-Disciplinary and hearing. A valid cause for removal exists when, pursuant to a bona fide reorganization, a position has
been abolished or rendered redundant or there is a need to merge, divide, or consolidate positions in order to
xxx xxx xxx meet the exigencies of the service, or other lawful causes allowed by the Civil Service Law.
2. Complaints on personnel actions and other non-disciplinary actions of their respective personnel. 16. Thus, while the necessity and indispensability of reorganization when public interest demands may
(Emphasis supplied) be justified, civil service employees, much more career service officers with permanent appointments like
As the "central personnel agency of the Government" 75 with quasi-judicial powers 76 and as the body tasked [private respondents], cannot be removed, suspended, or demoted from office except for cause provided by
to administer the civil service, 77 the Civil Service Commission is the "sole arbiter of controversies relating to law.
the civil service[,]" 78 including personnel actions, as this court has ruled. 79 xxx xxx xxx
The material allegations in the Complaint or Petition and the character of the relief sought determine which 18. In this case, [Customs Personnel Order] No. B-189-2013 allegedly "detailed" all 15 [private
court has jurisdiction. 80 In private respondents' 44 paragraphs in their Petition for declaratory relief filed respondents], together with 12 other Collectors of Customs, to an advisory capacity of a policy coordinating
before the Regional Trial Court, they alleged: EcTCAD body (CPRO) under the guise of reorganization, thus effectively rendering vacant the 27 positions of collector
8. On 17 September 2013, without waiting for [Executive Order] No. 140's effectivity on 2 October of customs throughout the country.
2013, the [Bureau of Customs] issued [Customs Personnel Order] No. B-189-2013, signed by [Bureau of

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CONSTI REV – FULL TEXT
19. Section 8, Rule VII of Civil Service Commission (CSC) Resolution No. 91-1631, otherwise known
as the "Omnibus Civil Service Rules and Regulations," provides that a "detail" is "the movement of an
employee from one department or agency to another which is temporary in nature, which does not involve a
reduction in rank, status or salary and does not require the issuance of another appointment."
20. The patent nullity of [Customs Personnel Order] No. B-189-2013 is readily apparent since Section
703 of [the Tariff and Customs Code] merely authorizes the [Bureau of Customs] Commissioner to assign or
move [Bureau of Customs] personnel only within the Bureau. Since the [Customs Policy Research Office] is a
newly created "office" outside of the [Bureau of Customs], the [Bureau of Customs] Commissioner's issuance
of [Customs Personnel Order] No. B-189-2013 which "details" [private respondents] to the [Customs Policy
Research Office] is clearly an ultra vires act, and is therefore invalid. In fact, the [Bureau of Customs]
Commissioner's own admission proves this ultra vires and invalid issuance, thus:
"It is more than a reshuffle because [private respondents] have actually been transferred to the [Department of
Finance], out of the Bureau of Customs," Biazon said in an ANC interview, confirming news first reported by
the Philippine Daily Inquirer. "Instead of just reassignment [to] another port, they're basically reassigned to
another office." HSAcaE
"After their transfer out of the [Bureau of Customs], the next-in-rank collectors or division heads are taking
over as officers-in-charge of the different ports," he said.
21. There is no bona fide reorganization that took place. [Private respondents'] mass "detail" to the
[Customs Policy Research Office] was without any clear or definite direction as to their career status and
functions. As a consequence, [private respondents] were intentionally and effectively placed on a "floating
status."
22. Furthermore, [Executive Order] No. 140 clearly provides that the [Customs Policy Research Office]
shall be composed of its organic personnel, and that said policy research body — after the organization of its
own organic personnel — shall merely be augmented and reinforced by Department of Finance and Bureau of
Customs personnel. Despite the absence of any organic personnel, much less approval from the Department
of Budget and Management or even a recommendation from the [Department of Finance], [private
respondents] have, in speed haste, already been ordered to be "detailed" by the [Bureau of Customs] to the
[Customs Policy Research Office], and thus, effectively removed from their current respective permanent
positions.
23. The landmark case of Dario v. Mison, et al., where the Supreme Court voided the personnel
reorganization within the [Bureau of Customs], is highly instructive in this case, thus:
Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith. . . .
xxx xxx xxx
24. By no stretch of the imagination can the issuance of [Customs Personnel Order] No. B-189-2013
be said to have been carried out in good faith. The undue haste in issuing [Customs Personnel Order] No. B-
189-2013 clearly shows that respondents are attempting to beat the deadline on the COMELEC election ban
on personnel movement from 28 September 2013 to 28 October 2013 due to the forthcoming Barangay
Elections. It cannot be denied that [Executive Order] No. 140, which was signed by the President on 2
September 2013, has yet to take effect on 2 October 2013, which is 15 days after its publication in two (2)
newspapers of general circulation. On 17 September 2013, however, the [Bureau of Customs] already issued
[Customs Personnel Order] No. B-189-2013, which is based on [Executive Order] No. 140, and attempted to
serve copies thereof to [respondents] on 26 to 27 September 2013 supposedly just in time before the
COMELEC election ban on personnel movement takes effect on 28 September 2013.
25. More importantly, [Executive Order] No. 140 mandates that the transfer of [Bureau of Customs]
personnel should merely augment or reinforce the organic personnel of the [Customs Policy Research Office].
Obviously, without any organic personnel, there is still nothing to augment or reinforce. . . . Hence, [private
respondents'] "detail" to the [Customs Policy Research Office] absent any compliance with the requirements
under [Executive Order] No. 140, was surely carried out in bad faith, and was meant to illegally remove
[private respondents] from their respective permanent positions, in blatant violation of the law and the
Constitution.
26. It should also be stressed that [private respondents] were appointed as Collectors of Customs with
Position Titles VI and V, with specific functions, duties, titles, and ranks clearly provided for in their respective
appointment papers. In contrast, their supposed "detail" to the [Customs Policy Research Office] under
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JULY 11, 2019
[Customs Personnel Order] No. B-189-2013 does not even provide for a definite period of duty, their titles, new
functions, or ranks. AScHCD
27. Moreover, under CSC Memorandum Circular No. 06-05, otherwise known as the "Guidelines on
Designation," it is clear that:
xxx xxx xxx
B. Designees can only be designated to positions within the level they are currently occupying.
However, Division Chiefs may be designated to perform the duties of third level positions.
First level personnel cannot be designated to perform the duties of second level positions.
xxx xxx xxx
29. The basis of [private respondents'] reassignment or the exigency necessary to remove them from
their positions is likewise inexistent. Such blanket "detail" relinquishes [private respondents'] permanent
positions as Collectors of Customs without due process and is contrary to their Constitutional right to security
of tenure. Clearly, the disparity between the positions of a Collector of Customs and a mere researcher is
blatant. Therefore, the transfer from the former to the latter unmistakeably denotes demotion. . . .
xxx xxx xxx
30. In the case of Pastor v. City of Pasig, the Supreme Court held that a reassignment or even detail
which is indefinite and which results in a reduction of rank and status is effectively a constructive dismissal
from the service. . . .
xxx xxx xxx
31. The principles on constructive dismissal clearly find analogous application to [private respondents].
By definition, constructive dismissal is a quitting because continued employment is rendered impossible,
unreasonable or unlikely; when there is a demotion in rank or a diminution of pay. The test of constructive
dismissal is whether a reasonable person in the employee's position would have felt compelled to give up his
position under the circumstances. It is an act amounting to dismissal but is made to appear as if it were not.
Constructive dismissal is therefore a dismissal in disguise. The law recognizes and resolves this situation in
favor of employees in order to protect their rights and interests from the coercive acts of the employer. Thus,
the Supreme Court has ruled that the management prerogative to transfer an employee "cannot be used as a
subterfuge by the employer to rid himself of an undesirable worker."
32. Evidently, [private respondents'] "detail" to the [Customs Policy Research Office] operated as a
blanket and forced relinquishment of their permanent positions as Collectors of Customs in violation of their
right to security of tenure. In view thereof, it behooves upon this Honorable Court to correct such abuse of
powers and retain [private respondents] to their rightful ranks. HESIcT
xxx xxx xxx
35. . . . in accordance with the Supreme Court's ruling in Tañada v. Tuvera, laws and executive
issuances shall take effect after fifteen (15) days following the completion of their publication in the Official
Gazette, or in a newspaper of general circulation.
36. In this case, [Executive Order] No. 140 was published in the 17 September 2013 issue of the
broadsheet newspaper, Manila Bulletin. Thus, following the above legal standards, it is clear that [Executive
Order] No. 140 has yet to take legal effect on 2 October 2013. In other words, the [Bureau of Customs']
issuance of [Customs Personnel Order] No. B-189-2013 on 17 September 2013 simply has no legal basis, and
is therefore premature and patently invalid. To deprive [private respondents] of their permanent positions as
Collectors of Customs and to "detail" all 15 of them indefinitely as members of a research body on the basis of
an invalid [Bureau of Customs] and [Department of Finance] order are not only illegal but also unconstitutional
for being violative of [private respondents'] right to security of tenure.
37. An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no
protection; it creates no office; it is, in legal contemplation, inoperative, as if it had not been passed. . . . For
these reasons, [Customs Personnel Order] No. B-189-2013 should be nullified and set aside, and its
enforcement enjoined.
38. . . . . The consequence [of implementing Customs Personnel Order No. B-189-2013] that is also
readily obvious is the chaos entailed in port operations, the collection of much needed Government revenues
and public service as [private respondents] perform functions either as District Collectors of all the 17
CONSTI REV – FULL TEXT
Collection Districts in the country, or as Deputy Collectors for administration, assessment and operation in
those different ports. caITAC
xxx xxx xxx
41. It cannot be overemphasized that the issuance of [Customs Personnel Order] No. B-189-2013 is
illegal, and blatantly violates existing law and the Constitution. As above mentioned, respondents intend to
have [Customs Personnel Order] No. B-189-2013 immediately effective. Thus, there is a manifest urgency for
this Honorable Court to immediately restrain [petitioners] from implementing [Customs Personnel Order] No.
B-189-2013 upon receipt of this petition and before the matter can be heard on notice. Otherwise, grave
injustice and irreparable injury would be suffered by [private respondents], in that:
(a) [Executive Order] No. 140, on which [Customs Personnel Order] No. B-189-2013 is based, has yet
to take effect upon publication in two (2) newspapers of general circulation. [Executive Order] No. 140 was
published in the 17 September 2013 issue of the Manila Bulletin, hence, it will only take effect on 2 October
2013. [Customs Personnel Order] No. B-189-2013 cannot be given any effectivity as it is invalid for being
blatantly premature and without legal basis;
(b) [Customs Personnel Order] No. B-189-2013 violates [Executive Order] No. 140, as the latter
mandates that the [Department of Finance], with the approval of the [Department of Budget and Management],
has to recommend the composition of the organic personnel of the [Customs Policy Research Office]. No such
recommendation by the [Department of Finance], much less the approval of the [Department of Budget and
Management], has been made. In fact, [Executive Order] No. 140 provides that the transfer of [Bureau of
Customs] personnel should merely augment or reinforce the organic personnel of the [Customs Policy
Research Office]. Obviously, without any organic personnel, there is still nothing to augment or reinforce. The
[Customs Policy Research Office] is thus in limbo, as there is yet no organic personnel in place;
(c) [Customs Personnel Order] No. B-189-2013 is also contrary to Section 703 of [Republic Act] No.
1937, as amended, which provides that "(t)he Commissioner of Customs may, with the approval of the
Secretary of Finance, assign any employee of the Bureau of Customs to any port, service, division or office
within the Bureau or assign him duties as the best interest of the service may require." Even Commissioner
Biazon, in an interview with [the ABS-CBN News Channel] admitted that "it is more than a reshuffle because
they have actually been transferred to the [Department of Finance], out of the Bureau of Customs." The
Commissioner of Customs thus committed an illegal and ultra vires act in "detailing" [private respondents] to
the [Customs Policy Research Office], an office admittedly outside the [Bureau of Customs]; and TAIaHE
(d) [private respondents'] "detail" to the [Customs Policy Research Office] is [petitioners'] scheme to
constructively dismiss and demote [private respondents]. [Customs Personnel Order] No. B-189-2013
operates as a blanket and forced relinquishment of [private respondents'] permanent positions as Collectors of
Customs in violation of their constitutional right to security of tenure. [Private respondents] are all "detailed" to
the [Customs Policy Research Office] without any appointment papers providing for their specific functions,
status, salary grades, ranks, and designation, thereby intentionally and effectively placing them on "floating
status."
(e) [Private respondents] would be unduly displaced from their permanent positions with the
appointment and/or designation by the [Bureau of Customs] of new Collectors of Customs. 81 (Emphasis
supplied, citations omitted)
An examination of the text of the Petition for declaratory relief readily shows that private respondents originally
questioned a personnel action. They essentially questioned their detail to the Customs Policy and Research
Office.
Book V, Title I, Subtitle A, Chapter 5, Section 26 of Executive Order No. 292 defines a personnel action:
SECTION 26. Personnel Actions. — . . .
As used in this Title, any action denoting the movement or progress of personnel in the civil service shall be
known as personnel action. Such action shall include appointment through certification, promotion, transfer,
reinstatement, re-employment, detail, reassignment, demotion, and separation. (Emphasis supplied)
The assailed Customs Personnel Order No. B-189-2013 is a personnel action because it details 27 employees
from the Bureau of Customs to the Customs Policy Research Office. It is a movement of personnel in the civil
service.
Cases involving personnel actions are within the exclusive jurisdiction of the Civil Service Commission and not
within the trial courts' jurisdiction. 82
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JULY 11, 2019
The issue is not novel.
In Olanda v. Bugayong, 83 respondent Leonardo G. Bugayong (Bugayong), as President of the Philippine
Merchant Marine Academy, relieved petitioner Menelieto A. Olanda (Olanda) from his post as the Dean of the
College of Marine Engineering of the Philippine Merchant Marine Academy 84 and imposed a three (3)-month
suspension 85 on the latter for allegedly "misusing classified information." 86 Olanda filed before the Regional
Trial Court of Iba, Zambales a Petition for "quo warranto, mandamus, and prohibition with prayer for the
issuance of a writ of preliminary injunction and damages, claiming that there was no valid cause to deprive him
of his position[.]" 87 ICHDca
This court ruled that the trial court had no jurisdiction. 88 Hence:
Disciplinary cases and cases involving "personnel actions" affecting employees in the civil service including
"appointment through certification, promotion, transfer, reinstatement, reemployment, detail, reassignment,
demotion and separation" are within the exclusive jurisdiction of the Civil Service Commission which is the
sole arbiter of controversies relating to the civil service.
xxx xxx xxx
It was thus error for the trial court, which does not have jurisdiction, to, in the first, [sic] place take cognizance
of the petition of petitioner assailing his relief as Dean and his designation to another position. This leaves it
unnecessary to dwell on the issues herein raised by petitioner.
WHEREFORE, the petition is, upon the ground of lack of jurisdiction of the trial court, hereby DENIED.
SO ORDERED. 89 (Emphasis supplied, citation omitted)
In Casimina v. Judge Legaspi, 90 petitioner Pablo B. Casimina (Casimina), General Manager of the Philippine
Fisheries Development Authority, issued Special Order No. 82, which reassigned private respondent
Emmanuel T. Illera (Illera), Port Manager of the Iloilo Fishing Port Complex, from Iloilo to the central office in
Quezon City. 91 After the denial of his request for reconsideration, 92 Illera filed for injunction with a prayer for
temporary restraining order and a writ of preliminary injunction against Casimina before the Regional Trial
Court of Iloilo "to restrain [Casimina] from transferring him to the central office in Quezon City." 93
Casimina filed an Omnibus Motion to dismiss the Complaint on the ground of, among others, lack of
jurisdiction. 94 This court ruled that the trial court has no jurisdiction over the Petition. 95 "[T]his case falls
within the jurisdiction of the Civil Service Commission (CSC) because it involves the movement of government
personnel to promote order and efficiency in public service." 96 cDHAES
In Mantala v. Salvador, 97 Dr. Julia P. Regino (Regino) filed a formal protest before the Committee on
Evaluation and Protest of the Department of Health questioning the appointment of Dr. Mariquita J. Mantala
(Dr. Mantala). 98 The Committee on Evaluation and Protest upheld Dr. Mantala's appointment. 99 Upon
appeal and reconsideration, the Civil Service Commission also upheld Dr. Mantala's appointment. 100 The
Resolution of the Civil Service Commission became final and executory. 101 Regino then filed an action for
quo warranto and mandamus before the Regional Trial Court in Quezon City. 102 The trial court annulled and
set aside Dr. Mantala's appointment and directed the Secretary of Health to withdraw Dr. Mantala's
appointment and to issue another for Regino. 103 Dr. Mantala then filed a Petition for Review on certiorari
before this court. 104 This court granted the Petition and annulled the Decision of the trial court: 105
Disciplinary cases, and cases involving "personnel actions" affecting employees in the civil service —
including "appointment through certification, promotion, transfer reinstatement, reemployment, detail,
reassignment, demotion and separation," and, of course, employment status and qualification standards —
are within the exclusive jurisdiction of the Civil Service Commission. The Constitution declares the
Commission to be "the central personnel agency of the Government," having power and authority to
administer the civil service; to promulgate its own rules concerning pleadings and practice before it or before
any of its offices; and to render decision in "any case or matter brought before it within sixty days from the date
of its submission for decision or resolution," which decision, or order or ruling "may be brought to the Supreme
Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof."
xxx xxx xxx
It was thus error, because beyond its competence, for the respondent Trial Court to take cognizance of the
quo warranto and mandamus action instituted by Dr. Regino which was in essence a protest against the
appointment of Dr. Mantala. 106 (Emphasis supplied, citations omitted)
CONSTI REV – FULL TEXT
In all these cases, this court upheld the jurisdiction of the Civil Service Commission over complaints involving
the movement of personnel in the civil service. TCAScE
II.
The doctrine of primary administrative jurisdiction precludes trial courts from resolving a controversy involving
a question that is within the exclusive jurisdiction of an administrative tribunal. 107 The doctrine disallows
courts "to arrogate unto itself the authority to resolve a controversy the jurisdiction over which is initially lodged
with an administrative body of special competence." 108
In Pambujan Sur United Mine Workers v. Samar Mining Company, Inc., 109 the plaintiff Pambujan Sur United
Mine Workers filed a Complaint before the Court of First Instance (now Regional Trial Court) against the
Samar Mining Company, Inc. (Samar Mining) alleging breach of their closed-shop agreement. 110 Samar
Mining filed a Motion to Dismiss arguing that the regular courts had no jurisdiction over the subject matter of
the Complaint. 111 Samar Mining argued that the Court of Industrial Relations (now National Labor Relations
Commission) had jurisdiction over cases involving conditions of employment. 112 The Court of First Instance
granted the Motion to Dismiss. 113
Upon appeal, this court applied the "exclusion theory," 114 i.e., "where jurisdiction is conferred in express
terms upon one court, and not upon another [and where] it has been held that it is the intention that the
jurisdiction conferred shall be exclusive" 115 and upheld the exclusive jurisdiction of the Court of Industrial
Relations (now National Labor Relations Commission). 116 Hence:
But judicial wisdom in this particular matter would seem to favor adherence to the exclusion theory, what with
the litigant's ordinary duty to exhaust administrative remedies and the "doctrine of primary administrative
jurisdiction," sense-making and expedient.
"That the courts cannot or will not determine a controversy involving a question which is within the jurisdiction
of an administrative tribunal prior to the decision of that question by the administrative tribunal, where the
question demands the exercise of sound administrative discretion requiring the special knowledge,
experience, and services of the administrative tribunal to determine technical and intricate matters of fact, and
a uniformity of ruling is essential to comply with the purposes of the regulatory statute administered." (42 Am.
Jur., 698.) 117
This court also made a similar ruling in Javier v. Court of Appeals. 118 In Javier, Normito Javier (Normito) was
"employed by private respondent Jebsens Maritime, Inc. as a boatswain[.]" 119 Normito, however, died at sea.
120 Upon learning of her husband's death, Lolita Javier (Lolita) went to the office of Jebsens Maritime, Inc.
and the latter "promised to give the corresponding death benefits[.]" 121 After Jebsens Maritime, Inc. had
failed to pay the promised death benefits, Lolita filed a Complaint before the Regional Trial Court of Makati for
a sum of money for herself and on behalf of her six (6) minor children against Jebsens Maritime, Inc. and its
shipmaster. 122 ASEcHI
This court ruled that under Section 3 (d) 123 of Executive Order No. 247 or the Reorganization Act of the
Philippine Overseas Employment Administration, it was the Philippine Overseas Employment Administration
that had original and exclusive jurisdiction over Lolita's Complaint and that the trial court had no jurisdiction
over the subject matter of her Complaint. 124 Hence, under the doctrine of primary administrative jurisdiction,
the trial court cannot resolve the controversy. 125 This court ordered the Regional Trial Court to dismiss the
case for lack of jurisdiction. 126
In Catipon, Jr. v. Japson, 127 respondent Jerome Japson (Japson), "a former Senior Member Services
Representative of [the] [Social Security System,] Bangued, filed a letter-complaint [before] the Civil Service
Commission-[Cordillera Administrative Region] Regional Director[.]" 128 He alleged that petitioner Macario U.
Catipon, Jr. (Catipon) made deliberate false entries in his application to take the Civil Service Professional
Examination. 129 The Civil Service Commission-Cordillera Administrative Region Regional Director found
Catipon guilty of conduct prejudicial to the best interest of the service. 130
Catipon appealed to the Court of Appeals, which dismissed the appeal. 131 The Court of Appeals held that
instead of filing the appeal before the Court of Appeals, Catipon should have appealed to the Civil Service
Commission, based on Sections 5 (A) (1), 132 43, 133 and 49 134 of the Civil Service Commission Uniform
Rules on Administrative Cases. 135
This court affirmed the Decision of the Court of Appeals 136 and held:
The [Court of Appeals] is further justified in refusing to take cognizance of the petition for review, as "[t]he
doctrine of primary jurisdiction does not warrant a court to arrogate unto itself the authority to resolve a
controversy the jurisdiction over which is initially lodged with an administrative body of special competence."
154
JULY 11, 2019
When petitioner's recourse lies in an appeal to the Commission Proper in accordance with the procedure
prescribed in [Revised Uniform Rules on Administrative Cases in the Civil Service], the [Court of Appeals] may
not be faulted for refusing to acknowledge petitioner before it. 137 (Emphasis supplied)
Hence, considering the exclusive jurisdiction of the Civil Service Commission to hear and decide
administrative cases, including those involving personnel actions, as granted by the Constitution, the Regional
Trial Court cannot assume jurisdiction based on the doctrine of primary administrative jurisdiction.
In sustaining the trial court's assumption of jurisdiction over the Petition for declaratory relief, the ponencia
held that the case falls under an exception to the doctrine of exhaustion of administrative remedies. 138 The
ponencia states:
In this case, respondents allege that [Customs Personnel Order No. B-189-2013] is contrary to law and
unconstitutional. Respondents assail [Customs Personnel Order No. B-189-2013] as patently illegal, arbitrary,
and oppressive. This case clearly falls within the exceptions where exhaustion of administrative remedies
need not be resorted to by respondents. 139 cTDaEH
Private respondents, citing Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan
ng Muntinlupa, Inc. (KBMBPM) v. Dominguez, 140 likewise argue that exceptions to the doctrine of exhaustion
of administrative remedies apply. 141 Hence:
Moreover, the doctrine of exhaustion of administrative remedies also yields to other exceptions, such as when
the question involved is purely legal, as in the instant case, or where the questioned act is patently illegal,
arbitrary or oppressive. 142
The doctrine of exhaustion of administrative remedies does not apply and, consequently, its exceptions.
The doctrine of primary administrative jurisdiction is different from the doctrine of exhaustion of administrative
remedies.
Under the doctrine of primary administrative jurisdiction, when an administrative agency is granted primary
jurisdiction over the subject matter, the courts "cannot or will not determine a controversy involving a question
which is within the jurisdiction of an administrative tribunal prior to the decision of that question by the
administrative tribunal[.]" 143 The doctrine of primary administrative jurisdiction presupposes that the
administrative agency has jurisdiction over the subject matter while the court does not. The Complaint or
Petition, therefore, cannot be filed before the court. As the issue is jurisdictional, there should be no exception
to the doctrine of primary administrative jurisdiction. When the complaint or petition is filed before a court with
no subject matter jurisdiction, the court has no other option but to dismiss the case. 144
On the other hand, under the doctrine of exhaustion of administrative remedies, before a party may seek
intervention from the court, he or she should have already exhausted all the remedies in the administrative
level. 145 If there is still a remedy available within the administrative machinery, "then such remedy should be
exhausted first before [the] court's judicial power can be sought." 146 The doctrine of exhaustion of
administrative remedies presupposes that both the courts and the administrative agency have concurrent
jurisdiction. This is because non-observance of the doctrine of exhaustion of administrative remedies does not
affect the court's jurisdiction. 147 In Soto v. Jareno, 148 this court ruled:
Failure to observe the doctrine of exhaustion of administrative remedies does not affect the jurisdiction of the
court. We have repeatedly stressed this in a long line of decisions. The only effect of non-compliance with this
rule is that it will deprive the complainant of a cause of action, which is a ground for a motion to dismiss. If not
invoked at the proper time, this ground is deemed waived and the court can then take cognizance of the case
and try it. 149 (Emphasis supplied)
Hence, the doctrine of exhaustion of administrative remedies presupposes that the court has jurisdiction over
the subject matter of the complaint or petition. Otherwise, it can never have the power to take cognizance of
the case as contemplated by Soto. ITAaHc
While both the court and the administrative agency have jurisdiction over the subject matter, the general rule is
that the courts, because of comity, practicality, and convenience, will not interfere with the administrative
process until the process comes to an end. 150 This is because availing administrative remedies entails lesser
expenses and results in a speedier resolution of controversies. 151 On the other hand, since the court and the
administrative agency have concurrent jurisdiction, exceptions may be warranted by the circumstances, 152
and the court may choose to assume jurisdiction over the controversy.
Hence, when jurisdiction is exclusively granted to an administrative agency, the doctrine of exhaustion of
administrative remedies does not apply. Here, considering that the Civil Service Commission is granted
CONSTI REV – FULL TEXT
exclusive jurisdiction over cases involving personnel actions, the doctrine of primary administrative jurisdiction,
not the doctrine of exhaustion of administrative remedies, applies.
The exceptions to the doctrine of exhaustion of administrative remedies likewise do not apply because the
Regional Trial Court has no jurisdiction to resolve the dispute in the first place. In order for the exceptions to
apply, the court to which the petition was prematurely filed should have jurisdiction; otherwise, the orders of
the court would be null and void for lack of jurisdiction. Decisions or orders rendered by tribunals and agencies
that do not have subject matter jurisdiction are null and void. 153 Hence, the exceptions to the doctrine of
exhaustion of administrative remedies should not be applicable since the Regional Trial Court, the court to
which the Petition for declaratory relief was filed, lacks subject matter jurisdiction, and any order or decision
rendered by it would be null and void.
Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan ng Muntinlupa, Inc.
(KBMBPM) cited by private respondents finds no application here. In KBMBPM, petitioners questioned the
takeover by the Department of Agriculture of the management of petitioner KBMBPM, a service cooperative
organized by and composed of vendors of the New Muntinlupa Public Market. 154 There is no personnel
action involved in KBMBPM. Hence, private respondents' reliance on the case is misplaced.
The ponencia held that "[w]hen respondents raised the issue of validity and constitutionality of [Customs
Personnel Order No. B-189-2013], the issue took the case beyond the scope of the [Civil Service
Commission's] jurisdiction because the matter is no longer limited to personnel action. Thus, the [Regional
Trial Court] did not abuse its discretion in taking cognizance of the action." 155
The constitutional issues alleged in the Petition for declaratory relief do not suffice for the Regional Trial Court
to assume jurisdiction. cSaATC
The Civil Service Commission cannot be ousted from its jurisdiction "by the simple expediency of appending
an allegedly constitutional or legal dimension to an issue" 156 that clearly involves a personnel action. 157
In Corsiga v. Judge Defensor, 158 petitioner Eduardo Corsiga (Corsiga), "then Regional Irrigation Manager of
the [National Irrigation Administration], Region VI, issued Regional Office Memorandum (ROM) No. 52,
reassigning private respondent [Romeo Ortizo (Ortizo)] to [the] Aganan-Sta. Barbara River Irrigation System[.]"
159 Ortizo filed before the "Regional Trial Court of Iloilo City a complaint for prohibition and injunction, with
prayer for issuance of [a] Temporary Restraining Order and/or Writ of Preliminary Injunction." 160 He argued
that the transfer or assignment without his consent is a violation of his constitutional right to security of tenure.
161 Corsiga moved to dismiss the Petition for lack of jurisdiction. 162
This court ruled that the Regional Trial Court had no jurisdiction over Ortizo's Complaint. 163 Hence:
It is the intent of the Civil Service Law, in requiring the establishment of a grievance procedure in Rule XII,
Section 6 of the same rules, that decisions of lower level officials be appealed to the agency head, then to the
Civil Service Commission. Decisions of the Civil Service Commission, in turn, may be elevated to the Court of
Appeals. Under this set up, the trial court does not have jurisdiction over personnel actions and, thus,
committed an error in taking jurisdiction over Civil Case No. 22462. The trial court should have dismissed the
case on motion of petitioner and let private respondent question RMO [sic] No. 52 before the NIA
Administrator, and then the Civil Service Commission. As held in Mantala vs. Salvador, cases involving
personnel actions, reassignment included, affecting civil service employees, are within the exclusive
jurisdiction of the Civil Service Commission. 164 (Emphasis supplied, citations omitted)
Despite allegations of Regional Office Memorandum No. 52's constitutional infirmities, this court still upheld
the exclusive jurisdiction of the Civil Service Commission over cases involving personnel actions.
In Department of Agrarian Reform v. Trinidad Valley Realty & Development Corporation, 165 Trinidad Valley
Realty & Development Corporation and the other respondents (Trinidad Valley Realty & Development
Corporation, et al.) are registered owners of a parcel of land in Negros Oriental. 166 The Department of
Agrarian Reform placed a substantial portion of the land under the coverage of the Comprehensive Agrarian
Reform Law of 1988 or Republic Act No. 6657. 167 Administrative Order No. 10, Series of 1989,
Administrative Orders No. 12, Series of 1989, No. 9, Series of 1990, and No. 2, Series of 1996, Administrative
Order No. 10, Series of 1990, Joint DAR-LRA Memorandum Circular No. 20, Series of 1997, and Executive
Order No. 405, among others, (collectively, Orders) were then issued. 168 CHTAIc
Private respondents Trinidad Valley Realty & Development Corporation, et al. filed before the Regional Trial
Court a Petition for declaration of unconstitutionality through certiorari, prohibition and mandamus against the
Land Registration Authority, the Department of Agrarian Reform, and the beneficiaries under the
Comprehensive Agrarian Reform Program questioning the Orders. 169 This was later amended to an ordinary
155
JULY 11, 2019
action of annulment of land titles. 170 In its Answer, the Department of Agrarian Reform asserted that
"jurisdiction over all agrarian reform matters is exclusively vested in the [Department of Agrarian Reform,]" 171
not in the regular courts. This court ruled that the Regional Trial Court had no jurisdiction. 172
The Court likewise ruled in the similar case of [Department of Agrarian Reform] v. Cuenca that "[a]ll
controversies on the implementation of the Comprehensive Agrarian Reform Program (CARP) fall under the
jurisdiction of the Department of Agrarian Reform (DAR), even though they raise questions that are also legal
or constitutional in nature." In said case, it was noted that the main thrust of the allegations in the Complaint
was the propriety of the Notice of Coverage and "not . . . the 'pure question of law' spawned by the alleged
unconstitutionality of EO 405 — but . . . the annulment of the DAR's Notice of Coverage." The Court thus held
that:
To be sure, the issuance of the Notice of Coverage constitutes the first necessary step towards the acquisition
of private land under the CARP. Plainly then, the propriety of the Notice relates to the implementation of the
CARP, which is under the quasi-judicial jurisdiction of the DAR. Thus, the DAR could not be ousted from its
authority by the simple expediency of appending an allegedly constitutional or legal dimension to an issue that
is clearly agrarian. cHDAIS
The legal recourse undertaken by Trinidad Valley Realty and Development Corporation, et al. is on all-fours
with the remedy adopted by the private respondents in Cuenca. In this case, Trinidad Valley Realty and
Development Corporation, et al. cloaked the issue as a constitutional question — assailing the constitutionality
of administrative issuances promulgated to implement the agrarian reform law — in order to annul the titles
issued therein. In Cuenca, private respondents assailed the constitutionality of EO 45 in order to annul the
Notice of Coverage issued therein. The only difference is that in Cuenca, private respondents directly filed with
the RTC their complaint to obtain the aforesaid reliefs while in this case, Trinidad Valley Realty and
Development Corporation, et al. filed their original petition for certiorari with the RTC after the protest of
Trinidad Valley Realty and Development Corporation against the coverage of its landholding under CARP was
dismissed by the DAR Regional Director and such dismissal was affirmed by DAR OIC Secretary Jose Mari B.
Ponce. But in both cases, it is evident that the constitutional angle was an attempt to exclude the cases from
the ambit of the jurisdictional prescriptions under RA 6657. 173 (Emphasis supplied, citations omitted)
Invocations of issues of validity and constitutionality of Customs Personnel Order No. B-189-2013 will not
suffice for the courts to assume jurisdiction, if the order sought to be declared invalid is a personnel action.
Since the questioned order is a personnel action, the exclusive jurisdiction of the Civil Service Commission as
the sole arbiter of controversies relating to the civil service must be upheld.
In any case, detail of government personnel to other offices does not involve and violate the employees'
security of tenure in the absence of any grave abuse of discretion or improper motive or purpose. 174
Hence, the Regional Trial Court has no jurisdiction over private respondents' Petition for declaratory relief.
IV.
Private respondents rely on Commissioner of Customs, et al. v. Hypermix Feeds Corporation. 175 They argue
that based on Hypermix, "[t]he determination of whether a specific rule or set of rules issued by an
administrative agency contravenes the law or the [C]onstitution is within the jurisdiction of the regular courts."
176 They add that the "Constitution vests the power of judicial review or the power to declare a law, treaty,
international or executive agreement, presidential decree, order, instruction, ordinance, or regulation in the
courts, including the regional trial courts." 177 EATCcI
In Hypermix, Hypermix Feeds Corporation filed a Petition for declaratory relief before the Regional Trial Court,
with the Petition challenging the validity and constitutionality of Customs Memorandum Order (CMO) 27-2003.
178 CMO 27-2003 classified wheat according to (1) importer or consignee; (2) country of origin; and (3) port of
discharge, and imposed different tariff rates depending on such classification. 179 This court concluded that "a
petition for declaratory relief is the right remedy given the circumstances of the case." 180 Hypermix cannot be
applied because the circumstances in that case differ from the circumstances here as Hypermix does not
involve a personnel action.
V.
A petition for declaratory relief may prosper only if there is no breach or violation yet of the assailed
government regulation, and adequate relief is not available through other means or other forms of action or
proceeding.
Rule 63, Section 1 of the Rules of Court provides:
CONSTI REV – FULL TEXT
SECTION 1. Who may file petition. — Any person interested under a deed, will, contract or other written
instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or any other
governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional
Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or
duties, thereunder. (Emphasis supplied)
In Republic v. Roque, 181 this court enumerated the requisites for a petition for declaratory relief to prosper:
Case law states that the following are the requisites for an action for declaratory relief: first, the subject matter
of the controversy must be a deed, will, contract or other written instrument, statute, executive order or
regulation, or ordinance; second, the terms of said documents and the validity thereof are doubtful and require
judicial construction; third, there must have been no breach of the documents in question; fourth, there must
be an actual justiciable controversy or the "ripening seeds" of one between persons whose interests are
adverse; fifth, the issue must be ripe for judicial determination; and sixth, adequate relief is not available
through other means or other forms of action or proceeding. 182 (Emphasis in the original, citation omitted)
DHITCc
The third and sixth requisites are absent. The Complaint before the lower court did not simply ask for a
declaration of a hypothetical breach. Adequate relief through the Civil Service Commission was also available.
Executive Order No. 140 was published on September 17, 2013. According to Section 9, Executive Order No.
140 shall take effect immediately. On September 17, 2013, Bureau of Customs Commissioner Rozzano Rufino
B. Biazon issued Customs Personnel Order No. B-189-2013. On September 30, 2013, private respondents
filed their Petition for declaratory relief. There was no denial by private respondents that they did not report for
work upon Custom Personnel Order No B-189-2013's effectivity. 183 Private respondents Arnel C. Alcaraz,
Ma. Lourdes V. Mangaoang, Romalino G. Valdez, Lilibeth S. Sandag, Ma. Liza S. Torres, and Raymond P.
Ventura only reported for work after the trial court's denial of their application for a writ of preliminary
injunction. 184
By not reporting for work upon the issuance of Customs Personnel Order No. B-189-2013 on September 17,
2015, private respondents committed a breach of the Order. Since they committed the breach prior to the filing
of their Petition for declaratory relief, the petition is no longer available.
In Martelino, et al. v. National Home Mortgage Finance Corporation, et al., 185 petitioners (Martelino, et al.)
obtained housing loans from respondents National Home Mortgage Finance Corporation and Home
Development Mutual Fund. 186 National Home Mortgage Finance Corporation and Home Development
Mutual Fund directly released the proceeds of the housing loans to the subdivision developer, Shelter
Philippines, Inc. (Shelter). 187
Shelter did not complete the subdivision pursuant to its subdivision plan. 188 Martelino, et al. then filed a
Petition for declaratory relief to determine whether they can suspend payment to National Home Mortgage
Finance Corporation and Home Development Mutual Fund because of Shelter's failure to complete the
subdivision and whether interests and penalties should also be suspended. 189
This court found that at the time of the filing of their Petition for declaratory relief, Martelino, et al. already
suspended payment of their amortizations to National Home Mortgage Finance Corporation and Home
Development Mutual Fund. 190 Hence, this court concluded that the Regional Trial Court cannot assume
jurisdiction over the Petition for declaratory relief. 191 Hence: CAacTH
Indeed, under Section 1, Rule 63, a person must file a petition for declaratory relief before breach or violation
of a deed, will, contract, other written instrument, statute, executive order, regulation, ordinance or any other
governmental regulation. In this case, the petitioners had stated in their petition that respondents assessed
them interest and penalties on their outstanding loans, initiated foreclosure proceedings against petitioner
Rafael Martelino as evidenced by the notice of extra-judicial sale and threatened to foreclose the mortgages of
the other petitioners, all in disregard of their right to suspend payment to Shelter for its failure to complete the
subdivision. Said statements clearly mean one thing: petitioners had already suspended paying their
amortization payments. Unfortunately, their actual suspension of payments defeated the purpose of the action
to secure an authoritative declaration of their supposed right to suspend payment, for their guidance. Thus, the
RTC could no longer assume jurisdiction over the action for declaratory relief because its subject initially
unspecified, now identified as P.D. No. 957 and relied upon — correctly or otherwise — by petitioners, and
assumed by the RTC to be Rep. Act No. 8501, was breached before filing the action. As we said in
Tambunting, Jr. v. Sumabat:
. . . The purpose of the action [for declaratory relief] is to secure an authoritative statement of the rights and
obligations of the parties under a statute, deed, contract, etc. for their guidance in its enforcement or
156
JULY 11, 2019
compliance and not to settle issues arising from its alleged breach. It may be entertained only before the
breach or violation of the statute, deed, contract, etc. to which it refers. Where the law or contract has already
been contravened prior to the filing of an action for declaratory relief, the court can no longer assume
jurisdiction over the action. . . . Under such circumstances, inasmuch as a cause of action has already accrued
in favor of one or the other party, there is nothing more for the court to explain or clarify short of a judgment or
final order. 192 (Emphasis supplied, citations omitted)
In Aquino v. Municipality of Malay, Aklan, 193 petitioner Crisostomo B. Aquino (Aquino) is "the president and
chief executive officer of Boracay Island West Cove Management Philippines, Inc. (Boracay West Cove)." 194
The Office of the Mayor of Malay, Aklan issued Executive Order No. 10, Series of 2011, ordering the closure
and demolition of a hotel owned by Boracay West Cove. 195 On June 10, 2011, Executive Order No. 10 was
implemented partially. 196
To stop the implementation of Executive Order No. 10, Aquino filed a Petition for certiorari with prayer for
injunctive relief before the Court of Appeals. 197 The Court of Appeals dismissed the Petition on the ground
that the correct remedy was for Aquino "to file a petition for declaratory relief with the Regional Trial Court."
198 cEaSHC
This court disagreed with the Court of Appeals and stated:
An action for declaratory relief presupposes that there has been no actual breach of the instruments involved
or of the rights arising thereunder. Since the purpose of an action for declaratory relief is to secure an
authoritative statement of the rights and obligations of the parties under a statute, deed, or contract for their
guidance in the enforcement thereof, or compliance therewith, and not to settle issues arising from an alleged
breach thereof, it may be entertained before the breach or violation of the statute, deed or contract to which it
refers. A petition for declaratory relief gives a practical remedy for ending controversies that have not reached
the state where another relief is immediately available; and supplies the need for a form of action that will set
controversies at rest before they lead to a repudiation of obligations, an invasion of rights, and a commission
of wrongs.
In the case at bar, the petition for declaratory relief became unavailable by Executive Order No. 10's]
enforcement and implementation. The closure and demolition of the hotel rendered futile any possible
guidelines that may be issued by the trial court for carrying out the directives in the challenged [Executive
Order No. 10]. Indubitably, the CA erred when it ruled that declaratory relief is the proper remedy given such a
situation. 199 (Emphasis supplied, citation omitted)
In City of Lapu-Lapu v. Philippine Economic Zone Authority, 200 the City of Lapu-Lapu and the Province of
Bataan demanded from the Philippine Economic Zone Authority payment of real property taxes. 201 The
Philippine Economic Zone Authority filed a Petition for declaratory relief before the Regional Trial Court,
"praying that the trial court declare it exempt from payment of real property taxes." 202 This court ruled that
the Regional Trial Court had no jurisdiction to decide Philippine Economic Zone Authority's Petition for
declaratory relief. 203 This court explained:
We rule that the [Philippine Economic Zone Authority] erred in availing itself of a petition for declaratory relief
against the City. The City had already issued demand letters and real property tax assessment against the
[Philippine Economic Zone Authority], in violation of the [Philippine Economic Zone Authority's] alleged tax-
exempt status under its charter. The Special Economic Zone Act of 1995, the subject matter of [Philippine
Economic Zone Authority's] petition for declaratory relief, had already been breached. The trial court,
therefore, had no jurisdiction over the petition for declaratory relief. IAETDc
There are several aspects of jurisdiction. Jurisdiction over the subject matter is "the power to hear and
determine cases of the general class to which the proceedings in question belong." It is conferred by law,
which may either be the Constitution or a statute. Jurisdiction over the subject matter means "the nature of the
cause of action and the relief sought." Thus, the cause of action and character of the relief sought as alleged
in the complaint are examined to determine whether a court had jurisdiction over the subject matter. Any
decision rendered by a court without jurisdiction over the subject matter of the action is void. 204 (Emphasis
supplied, citations omitted)
Further, Tambunting, Jr. v. Spouses Sumabat 205 declared that when a court assumed jurisdiction over a
Petition for declaratory relief when there was already a breach of the subject instrument or government
regulation, the orders made by that court would be null and void for want of jurisdiction. 206 Hence:
In other words, a court has no more jurisdiction over an action for declaratory relief if its subject, i.e., the
statute, deed, contract, etc., has already been infringed or transgressed before the institution of the action.
CONSTI REV – FULL TEXT
Under such circumstances, inasmuch as a cause of action has already accrued in favor of one or the other
party, there is nothing more for the court to explain or clarify short of a judgment or final order.
Here, an infraction of the mortgage terms had already taken place before the filing of Civil Case No. C-7496.
Thus, the CFI lacked jurisdiction when it took cognizance of the case in 1979. And in the absence of
jurisdiction, its decision was void and without legal effect. As this Court held in Arevalo v. Benedicto:
Furthermore, the want of jurisdiction by a court over the subject-matter renders its judgment void and a mere
nullity, and considering that a void judgment is in legal effect no judgment, by which no rights are divested,
from which no rights can be obtained, which neither binds nor bars any one, and under which all acts
performed and all claims flowing out of are void, and considering further, that the decision, for want of
jurisdiction of the court, is not a decision in contemplation of law, and, hence, can never become executory, it
follows that such a void judgment cannot constitute a bar to another case by reason of res judicata. 207
(Emphasis supplied, citations omitted) CTIEac
This was reiterated in Malana, et al. v. Tappa, et al. 208 where this court declared:
Where the law or contract has already been contravened prior to the filing of an action for declaratory relief,
the courts can no longer assume jurisdiction over the action. In other words, a court has no more jurisdiction
over an action for declaratory relief if its subject has already been infringed or transgressed before the
institution of the action. 209
Private respondents argue that Customs Personnel Order No. B-189-2013 is void, producing no effect. Hence,
"there is actually no breach, real or imaginary, to speak of in this case." 210
Subscribing to petitioners' theory will render ineffective the phrase "before breach or violation thereof" found in
Section 1 of Rule 63 of the Rules of Court when a petitioner questions the validity of a written instrument or
governmental regulation. By arguing that the instrument or regulation questioned is void at the onset, a
petitioner may file any time a petition for declaratory relief with no regard to whether he or she violated the
"void" instrument or regulation.
Private respondents' belated compliance with Customs Personnel Order No. B-189-2013 cannot cure the
defect of want of jurisdiction. In Gomez v. Palomar, etc., et al., 211 this court declared:
The prime specification of an action for declaratory relief is that it must be brought "before breach or violation"
of the statute has been committed. Rule 64, section 1 so provides. Section 6 of the same rule, which allows
the court to treat an action for declaratory relief as an ordinary action, applies only if the breach or violation
occurs after the filing of the action but before the termination thereof.
Hence, if, as the trial court itself admitted, there had been a breach of the statute before the filing of this action,
then indeed the remedy of declaratory relief cannot be availed of, much less can the suit be converted into an
ordinary action. 212 (Emphasis supplied, citation omitted)
Considering that there was already a breach of Customs Personnel Order No. B-189-2013 when private
respondents filed their Petition for declaratory relief, the Regional Trial Court can no longer act on the Petition
for want of jurisdiction.
For a Petition for declaratory relief to prosper, there should be no other adequate relief available to petitioners.
213 "If adequate relief is available through another form of action or proceeding, the other action must be
preferred over an action for declaratory relief." 214
In Ferrer, Jr., et al. v. Mayor Roco, Jr., et al., 215 this court affirmed the dismissal of a Petition for declaratory
relief where the doctrine of primary administrative jurisdiction applied because it meant that there was another
adequate remedy available to petitioners. 216 DcHSEa
Here, private respondents' correct remedy was to file a Complaint or Petition before the Civil Service
Commission to assail their detail to the Customs Policy Research Office. Since they have another adequate
remedy available to them, their Petition for declaratory relief must fail.
All told, a Petition for declaratory relief was not an available remedy for private respondents. It was, therefore,
error for the Regional Trial Court to assume jurisdiction over private respondents' Petition for declaratory relief.
The Orders of the Regional Trial Court dated October 1, 2013, October 4, 2013, and October 21, 2013 are
declared void for want of jurisdiction. All other Orders of the Regional Trial Court pursuant to private
respondents' Petition for declaratory relief are also void for lack of jurisdiction.
The Regional Trial Court should be directed to dismiss private respondents' Petition for declaratory relief.
157
JULY 11, 2019
VI.
Customs Personnel Order No. B-189-2013 provides that it "shall be effective immediately and valid until
sooner revoked." 217
Civil Service Commission Resolution No. 021181 entitled Policies on Detail and dated September 13, 2002
"govern[s] the detail of employees in all agencies of the government." 218 Section 2 of Policies on Detail
provides:
Section 2. Duration of the Detail. — The detail shall be allowed only for a maximum period of one year. Details
beyond one year may be allowed provided it is with the consent of the detailed employee. The extension or
renewal of the period of the detail shall be within the authority of the mother agency.
If the employee believes that there is no justification for the detail, he/she may appeal his/her case to the
proper Civil Service Commission Regional Office. Pending appeal, the detail shall be executory unless
otherwise ordered by said regional office. Decision of said regional office may be further appealed to the
Commission en banc. 219 (Emphasis supplied)
Customs Personnel Order No. B-189-2013's provision stating that "[t]his Order shall be effective immediately
and valid until sooner revoked" appears contrary to Section 2 of Resolution No. 02-1181. Pursuant, however,
to Section 2 of Civil Service Commission Resolution No. 02-1181, Customs Personnel Order No. B-189-2013
should be read as valid only for a period of one (1) year. Consistency in executive issuances is of utmost
importance. 220 As much as possible, it is the duty of the courts to harmonize and reconcile them. 221
In Philippine International Trading Corporation v. Presiding Judge Angeles, 222 this court ruled: SaCIDT
Thus, there is no real inconsistency between LOI 444 and EO 133. There is, admittedly, a rearranging of the
administrative functions among the administrative bodies affected by the edict, but not an abolition of
executive power. Consistency in statutes as in executive issuances, is of prime importance, and, in the
absence of a showing to the contrary, all laws are presumed to be consistent with each other. Where it is
possible to do so, it is the duty of courts, in the construction of statutes, to harmonize and reconcile them, and
to adopt a construction of a statutory provision which harmonizes and reconciles it with other statutory
provisions. The fact that a later enactment may relate to the same subject matter as that of an earlier statute is
not of itself sufficient to cause an implied repeal of the latter, since the law may be cumulative or a continuation
of the old one. 223 (Emphasis supplied, citations omitted)
Similarly, this court should also uphold as much as possible the validity of Customs Personnel Order No. B-
189-2013 as a valid exercise of executive power to conform to the Policies on Detail.
"Every inten[t] of the law should lean towards its validity, not its invalidity." 224 Hence, the duration of Customs
Personnel Order No. B-189-2013, being independent and severable from the order of detail itself, should be
the only provision declared void.
Since there is no record that private respondents consented to be detailed for more than one (1) year from
September 17, 2013, Customs Personnel Order No. B-189-2013, while effective for the duration of one (1)
year from enactment, already ceased to take effect.
The ponencia ruled that Customs Personnel Order No. B-189-2013 violates Section 3 of Executive Order No.
140 because at the time of its issuance, the Customs Policy Research Office had no organic personnel yet.
225 The ponencia also ruled that the Department of Finance Secretary had not yet issued rules and
regulations for the Customs Policy Research Office. 226
There is nothing in Executive Order No. 140 that requires that the organic personnel of the Customs Policy
Research Office must first be organized and that rules must first be issued by the Department of Finance
Secretary before the Bureau of Customs can start forming its team that will augment and reinforce the organic
personnel of the Customs Policy Research Office. Courts should avoid as much as possible any construction
invalidating administrative issuances. 227 Unless there is a clear violation of Executive Order No. 140,
Customs Personnel Order No. B-189-2013 should remain valid. SCaITA
ACCORDINGLY, the Petition should be GRANTED. Private respondents' Petition for declaratory relief filed
before the Regional Trial Court should be DISMISSED for lack of jurisdiction.
Footnotes
* Designated acting member per Raffle dated 10 August 2015.
1. Carmelita M. Talusan withdrew as petitioner in Civil Case No. 13-130820, noted by the trial court in its Order dated
4 October 2013. Rollo, p. 58.
CONSTI REV – FULL TEXT JULY 11, 2019

2. Arefiles H. Carreon manifested his intent to withdraw as petitioner in Civil Case No. 13-130820 per letter to counsel (3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director,
dated 16 October 2013. Id. at 119. Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of
3. Id. at 57-63. equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President;
4. Ronnie C. Silvestre, Edward P. Dela Cuesta, Rogel C. Gatchalian, Imelda D. Cruz, Lilibeth S. Sandag, Raymond P. (4) Career officers, other than those in the Career Executive Service, who are appointed by the President, such as
Ventura, Ma. Liza S. Torres, Arnel C. Alacaraz, Ma. Lourdes V. Mangaoang, Francis Agustin Y. Erpe, Carlos T. So, Marietta D. the Foreign Service Officers in the Department of Foreign Affairs;
Zamoranos, Carmelita M. Talusan, Arefiles H. Carreon, and Romalino G. Valdez. (5) Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system;
5. Corsiga v. Judge Defensor, 439 Phil. 875 (2002). (6) Personnel of government-owned or controlled corporations, whether performing governmental or proprietary
6. Id. functions, who do not fall under the non-career service; and
7. Olanda v. Bugayong, 459 Phil. 626 (2003). (7) Permanent laborers, whether skilled, semi-skilled, or unskilled.
8. Addition Hills Mandaluyong Civic & Social Organization, Inc. v. Megaworld Properties & Holdings, Inc., G.R. No. 30. Rollo, pp. 80-81.
175039, 18 April 2012, 670 SCRA 83. 31. Id. at 80 and 84.
9. Id. 32. CIVIL CODE, art. 2, as amended by Exec. Order No. 200 (1987), provides:
10. Vigilar v. Aquino, 654 Phil. 755 (2011). ART. 2. Laws shall take effect after fifteen days following the completion of their publication either in the Official
11. Providing for the Publication of Laws Either in the Official Gazette or in a Newspaper of General Circulation in the Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.
Philippines as a Requirement for their Effectivity. 33. Rollo, p. 84.
12. Nagkakaisang Maralita ng Sitio Masigasig, Inc. v. Military Shrine Services-Philippine Veteran Affairs Office, 34. Id. at 15-16.
Department of National Defense, G.R. No. 187587, 5 June 2013, 697 SCRA 359. 35. Id. at 16.
13. Tañada v. Tuvera, 230 Phil. 528 (1986), Resolution on Motion for Reconsideration. 36. Id.
14. Id. 37. Id. at 94-115.
15. Section 26 (6), Chapter V, Book V, Title I of Executive Order No. 292 provides that the detail shall be allowed "only 38. Id. at 98-99.
for a limited period in the case of employees occupying professional, technical and scientific positions." 39. Id. at 39.
16. As contained in CSC Memorandum Circular No. 21, Series of 2002. 40. Id. at 62.
17. Rollo, p. 10. 41. Id. at 323-326.
LEONEN, J., dissenting: 42. Id. at 326.
1. Rollo, p. 58. Carmelita M. Talusan withdrew as petitioner in Civil Case No. 13-130820. The withdrawal was noted 43. Id. at 351. The employees were Arnel C. Alcaraz, Ma. Lourdes V. Mangaoang, Romalino G. Valdez, Lilibeth S.
by the trial court in its Order dated October 4, 2013. Sandag, Ma. Liza S. Torres, and Raymond P. Ventura.
2. Id. at 119. Arefiles H. Carreon manifested his intent to withdraw as petitioner in Civil Case No. 13-130820 per letter 44. Id.
to counsel dated October 16, 2013. 45. Id. at 9.
3. Olanda v. Bugayong, 459 Phil. 626, 632 (2003) [Per J. Carpio Morales, Third Division]. 46. Id. at 125.
4. Id. 47. Id. at 127-154.
5. Rollo, pp. 10-50. 48. Id. at 359.
6. Id. at 54-56. 49. Id. at 24-25.
7. Id. at 57-63. 50. Id. at 28.
8. Id. at 44. 51. Id. at 24.
9. Id. 52. Id. at 33.
10. Id. at 64-67. 53. Id.
11. Id. at 14. 54. Id. at 35.
12. Id. at 65; Exec. Order No. 140 (2013), sec. 1. 55. Id.
13. Rollo, p. 66. 56. Id. at 37.
14. Id. at 14. 57. Id. at 116-118.
15. Id. at 67. 58. Id. at 39-40.
16. Id. at 69-70. 59. Id. at 135.
17. Id. at 14. 60. Id. at 140.
18. Id. at 69; BOC Customs Personnel Order No. B-189-2013, par. 1. 61. Id. at 143.
19. Rollo, pp. 69-70. 62. Id. at 137-140.
20. Id. at 71. 12 out of the 27 affected employees did not file for a Petition for declaratory relief. 63. Id. at 149-150.
21. Id. at 400. 64. Id. at 142.
22. Id. at 71. 65. Id. at 141-144.
23. Id. at 400. 66. Id. at 141-143.
24. Id. at 71-93. The Petition was docketed as Civil Case No. 13-130820. 67. Id. at 143.
25. Id. at 15. 68. Id.
26. Id. at 72. 69. Id.
27. Rep. Act No. 1937 (1957), sec. 703, as amended, provides: 70. CONST., art. IX (B), sec. 3.
SECTION 703. Assignment of Customs Officers and Employees to Other Duties. — The Commissioner of Customs 71. CSC Memorandum Circular No. 19-99 (1999), second Whereas clause.
may, with the approval of the Secretary of Finance, assign any employee of the Bureau of Customs to any port, service, division 72. CSC Memorandum Circular No. 19-99 (1999), Rule I, sec. 2 (c) provides:
or office within the Bureau or assign him duties as the best interest of the service may require, in accordance with the staffing SECTION 2. Coverage and Definition of Terms. — . . .
pattern or organizational set-up as may be prescribed by the Commissioner of Customs with the approval of the Secretary of c. COMMISSION PROPER refers to the Civil Service Commission-Central Office.
Finance: Provided, That such assignment shall not affect the tenure of office of the employees nor result in the change of status, 73. CSC Memorandum Circular No. 19-99 (1999), Rule I, sec. 2 (o) provides:
demotion in rank and/or deduction in salary. (Emphasis supplied) SECTION 2. Coverage and Definition of Terms. — . . .
28. Rollo, pp. 76-77. o. THIRD LEVEL refers to positions in the Career Executive Service (CES) which include Undersecretary, Assistant
29. Id. at 77; Exec. Order No. 292 (1987), Book V, Title I, subtitle A, chap. 2, sec. 7 provides: Secretary, Bureau Director, Regional Director, Assistant Regional Director and other officers of equivalent rank.
SECTION 7. Career Service. — The Career Service shall be characterized by (1) entrance based on merit and 74. CSC Memorandum Circular No. 19-99 (1999), Rule 1, sec. 2 (b) provides:
fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2) SECTION 2. Coverage and Definition of Terms. — . . .
opportunity for advancement to higher career positions; and (3) security of tenure. b. COMMISSION refers to the Civil Service Commission (Central Office and Regional Offices).
The Career Service shall include: 75. CONST., art. IX (B), sec. 3.
(1) Open Career positions for appointment to which prior qualification in an appropriate examination is required; 76. CONST., art. IX (A), secs. 6 and 7.
(2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty and 77. CONST., art. IX (B), sec. 1 (1).
academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which 78. Corsiga v. Judge Defensor, 439 Phil. 875, 883 (2002) [Per J. Quisumbing, Second Division].
shall establish and maintain their own merit systems; 79. Mantala v. Salvador, G.R. No. 101646, February 13, 1992, 206 SCRA 264, 267 [Per C.J. Narvasa, En Banc].
80. Department of Agrarian Reform v. Cuenca, 482 Phil. 208, 216 (2004) [Per J. Panganiban, Third Division].
81. Rollo, pp. 75-88.

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82. Olanda v. Bugayong, 459 Phil. 626, 632-633 (2003) [Per J. Carpio Morales, Third Division]; Mantala v. Salvador, except where the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary
G.R. No. 101646, February 13, 1992, 206 SCRA 264, 267 [Per C.J. Narvasa, En Banc]; and Corsiga v. Judge Defensor, 439 concerned.
Phil. 875, 883-884 (2002) [Per J. Quisumbing, Second Division]. A notice of appeal including the appeal memorandum shall be filed with the appellate authority, copy furnished the
83. 459 Phil. 626 (2003) [Per J. Carpio Morales, Third Division]. disciplining office. The latter shall submit the records of the case, which shall be systematically and chronologically arranged,
84. Id. at 629. paged and securely bound to prevent loss, with its comment, within fifteen (15) days, to the appellate authority.
85. Id. at 630. 134. CSC Memorandum Circular No. 19-99 (1999), Rule III, sec. 49 provides:
86. Id. at 629. SECTION 49. Petition for Review. — A complainant may elevate the decision of the Civil Service Regional Office
87. Id. at 630. dismissing a complaint for lack of a prima facie case before the Commission Proper through a Petition for Review within fifteen
88. Id. at 633. (15) days from the receipt of said decision.
89. Id. at 632-633. 135. Catipon, Jr. v. Japson, G.R. No. 191787, June 22, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?
90. 500 Phil. 560 (2005) [Per J. Corona, Third Division]. file=/jurisprudence/2015/june2015/191787.pdf> 5 [Per J. Del Castillo, Second Division].
91. Id. at 563. 136. Id. at 12.
92. Id. at 565-566. 137. Id. at 10, citing Vidad v. Regional Trial Court of Negros Oriental, Branch 42, G.R. No. 98084, October 18, 1993, 227
93. Id. at 566. SCRA 271, 276 [Per J. Vitug, En Banc].
94. Id. 138. Ponencia, p. 6.
95. Id. at 570. 139. Id.
96. Id. 140. G.R. No. 85439, January 13, 1992, 205 SCRA 92, 110 [Per J. Davide, Jr., En Banc].
97. G.R. No. 101646, February 13, 1992, 206 SCRA 264 [Per C.J. Narvasa, En Banc]. 141. Rollo, p. 140.
98. Id. at 265. 142. Id.
99. Id. 143. Javier v. Court of Appeals, G.R. No. 96617, October 14, 1992, 214 SCRA 572, 576 [Per J. Nocon, Second
100. Id. at 266. Division].
101. Id. 144. See Katon v. Palanca, Jr., 481 Phil. 168, 183 (2004) [Per J. Panganiban, Third Division].
102. Id. 145. Rosales v. Court of Appeals, 247-A Phil. 437, 443-444 (1988) [Per J. Bidin, Third Division].
103. Id. 146. Paat v. Court of Appeals, 334 Phil. 146, 152 (1997) [Per J. Torres, Jr., Second Division].
104. Id. at 267. 147. Soto v. Jareno, 228 Phil. 117, 119 (1986) [Per J. Cruz, First Division].
105. Id. at 269. 148. 228 Phil. 117 (1986) [Per J. Cruz, First Division].
106. Id. at 267-268. 149. Id. at 119, citing C. N. Hodges v. Municipal Board of Iloilo City, et al., 125 Phil. 442, 447-448 [Per J. Ruiz Castro, En
107. Javier v. Court of Appeals, G.R. No. 96617, October 14, 1992, 214 SCRA 572, 576 [Per J. Nocon, Second Banc], Municipality of La Trinidad, Benguet v. Court of First Instance of Baguio-Benguet, et al., 208 Phil. 78, 83 (1983) [Per J.
Division]. Escolin, Second Division], Pineda v. Court of First Instance of Davao, 111 Phil. 643, 650 (1961) [Per J. Concepcion, En Banc],
108. Catipon, Jr. v. Japson, G.R. No. 191787, June 22, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html? and Atlas Consolidated Mining and Development Corporation v. Hon. Mendoza, et al., 112 Phil. 960, 965 (1961) [Per J.
file=/jurisprudence/2015/june2015/191787.pdf> 10 [Per J. Del Castillo, Second Division]. Concepcion, En Banc].
109. 94 Phil. 932 (1954) [Per J. Bengzon, En Banc]. 150. Paat v. Court of Appeals, 334 Phil. 146, 153 (1997) [Per J. Torres, Jr., Second Division].
110. Id. at 933. 151. Id.
111. Id. at 934. 152. Id. This court held: "However, we are not amiss to reiterate that the principle of exhaustion of administrative
112. Id. remedies as tested by a battery of cases is not an ironclad rule. This doctrine is a relative one and its flexibility is called upon by
113. Id. the peculiarity and uniqueness of the factual and circumstantial settings of a case. Hence, it is disregarded (1) when there is a
114. Id. at 941. violation of due process, (2) when the issue involved is purely a legal question, (3) when the administrative action is patently
115. Id. illegal amounting to lack or excess of jurisdiction, (4) when there is estoppel on the part of the administrative agency concerned,
116. Id. at 941-942. (5) when there is irreparable injury, (6) when the respondent is a department secretary whose acts as an alter ego of the
117. Id. at 941. President bears the implied and assumed approval of the latter, (7) when to require exhaustion of administrative remedies would
118. G.R. No. 96617, October 14, 1992, 214 SCRA 572 [Per J. Nocon, Second Division]. be unreasonable, (8) when it would amount to a nullification of a claim, (9) when the subject matter is a private land in land case
119. Id. at 573. proceedings, (10) when the rule does not provide a plain, speedy and adequate remedy, and (11) when there are circumstances
120. Id. at 574. indicating the urgency of judicial intervention." (Citations omitted)
121. Id. 153. Spouses Atuel v. Spouses Valdez, 451 Phil. 631, 646 (2003) [Per J. Carpio, First Division].
122. Id. 154. Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan ng Muntinlupa, Inc. (KBMBPM) v.
123. Exec. Order No. 247 (1987), sec. 3 (d) provides: Dominguez, G.R. No. 85439, January 13, 1992, 205 SCRA 92, 95-96 [Per J. Davide, Jr., En Banc].
SECTION 3. Powers and Functions. — 155. Ponencia, p. 5.
(d) Exercise original and exclusive jurisdiction to hear and decide all claims arising out of an employer-employee 156. Department of Agrarian Reform v. Trinidad Valley Realty & Development Corporation, G.R. No. 173386, February
relationship or by virtue of any law or contract involving Filipino workers for overseas employment including the disciplinary 11, 2014, 715 SCRA 650, 670 [Per J. Villarama, Jr., En Banc].
cases[.] 157. See Department of Agrarian Reform v. Trinidad Valley Realty & Development Corporation, G.R. No. 173386,
124. Javier v. Court of Appeals, G.R. No. 96617, October 14, 1992, 214 SCRA 572, 575-576 [Per J. Nocon, Second February 11, 2014, 715 SCRA 650, 670 [Per J. Villarama, Jr., En Banc].
Division]. 158. 439 Phil. 875 (2002) [Per J. Quisumbing, Second Division].
125. Id. at 576. 159. Id. at 879.
126. Id. at 575 and 577. 160. Id. at 880.
127. G.R. No. 191787, June 22, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html? 161. Id. at 882.
file=/jurisprudence/2015/june2015/191787.pdf> [Per J. Del Castillo, Second Division]. 162. Id. at 881.
128. Id. at 2. 163. Id. at 883-884.
129. Id. 164. Id. at 883-884.
130. Id. 165. G.R. No. 173386, February 11, 2014, 715 SCRA 650 [Per J. Villarama, Jr., En Banc].
131. Id. at 5. 166. Id. at 653-654.
132. CSC Memorandum Circular No. 19-99 (1999), Rule I, sec. 5 (A) (1) provides: 167. Id. at 654.
SECTION 5. Jurisdiction of the Civil Service Commission Proper. — The Civil Service Commission Proper shall 168. Id. at 661-662.
have jurisdiction over the following cases: 169. Id. at 654.
A. Disciplinary 170. Id. at 656.
1. Decisions of Civil Service Regional Offices brought before it on petition for review[.] 171. Id. at 655.
133. CSC Memorandum Circular No. 19-99 (1999), Rule III, sec. 43 provides: 172. Id. at 671.
SECTION 43. Filing of Appeals. — Decisions of heads of departments, agencies, provinces, cities, municipalities 173. Id. at 670-671.
and other instrumentalities imposing a penalty exceeding thirty (30) days suspension or fine in an amount exceeding thirty days 174. Borres v. Hon. Canonoy, etc., et al., 195 Phil. 81, 92-93 (1981) [Per J. De Castro, First Division].
salary, may be appealed to the Commission Proper within a period of fifteen (15) days from receipt thereof. 175. 680 Phil. 681 (2012) [Per J. Sereno, Second Division].
In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be 176. Rollo, p. 141.
initially appealed to the department head and finally to the Commission Proper. Pending appeal, the same shall be executory 177. Id.

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178. Commissioner of Customs, et al. v. Hypermix Feeds Corporation, 680 Phil. 681, 686 (2012) [Per J. Sereno, Second
Division].
179. Id. at 684-685.
180. Id. at 691.
181. G.R. No. 204603, September 24, 2013, 706 SCRA 273 [Per J. Perlas-Bernabe, En Banc].
182. Id. at 283.
183. Rollo, pp. 400-401.
184. Id. at 351.
185. 579 Phil. 145 (2008) [Per J. Quisumbing, Second Division].
186. Id. at 148.
187. Id.
188. Id.
189. Id. at 148-149.
190. Id. at 155.
191. Id.
192. Id. at 155-156.
193. G.R. No. 211356, September 29, 2014, 737 SCRA 145 [Per J. Velasco, Jr., Third Division].
194. Id. at 152.
195. Id. at 154.
196. Id.
197. Id.
198. Id. at 155.
199. Id. at 157.
200. G.R. No. 184203, November 26, 2014 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?
file=/jurisprudence/2014/november2014/184203.pdf> [Per J. Leonen, Second Division].
201. Id. at 8.
202. Id. at 4.
203. Id. at 21.
204. Id.
205. Tambunting, Jr. v. Spouses Sumabat, 507 Phil. 94 (2005) [Per J. Corona, Third Division].
206. Id. at 98-99.
207. Id. at 99.
208. 616 Phil. 177 (2009) [Per J. Chico-Nazario, Third Division].
209. Id. at 189.
210. Rollo, p. 143.
211. 134 Phil. 771 (1968) [Per J. Castro, En Banc].
212. Id. at 779.
213. Republic v. Roque, G.R. No. 204603, September 24, 2013, 706 SCRA 273, 283 [Per J. Perlas-Bernabe, En Banc].
214. G.R. No. 184203, November 26, 2014 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?
file=/jurisprudence/2014/november2014/184203.pdf> 18 [Per J. Leonen, Second Division].
215. 637 Phil. 310 (2010) [Per J. Mendoza, Second Division].
216. Id. at 318-319.
217. Rollo, p. 70; BOC Customs Personnel Order No. B-189-2013, penultimate paragraph.
218. CSC Memorandum Circular No. 21, Series of 2002.
219. Rollo, p. 117.
220. Philippine International Trading Corporation v. Presiding Judge Angeles, 331 Phil. 723, 747 (1996) [Per J. Torres,
Jr., Second Division].
221. Id. at 748.
222. 331 Phil. 723 (1996) [Per J. Torres, Jr., Second Division].
223. Id. at 747-748.
224. San Miguel Corporation v. Judge Avelino, 178 Phil. 47, 53 (1979) [Per J. Fernando, Second Division].
225. Ponencia, p. 7.
226. Id.
227. Philippine International Trading Corporation v. Presiding Judge Angeles, 331 Phil. 723, 748 (1996) [Per J. Torres,
Jr., Second Division].

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THIRD DIVISION
[G.R. No. 178454. March 28, 2011.]
FILIPINA SAMSON, petitioner, vs. JULIA A. RESTRIVERA, respondent.
DECISION
VILLARAMA, JR., J p:
Petitioner Filipina Samson appeals the Decision 1 dated October 31, 2006 of the Court of Appeals (CA) in CA-
G.R. SP No. 83422 and its Resolution 2 dated June 8, 2007, denying her motion for reconsideration. The CA
affirmed the Ombudsman in finding petitioner guilty of violating Section 4 (b) 3 of Republic Act (R.A.) No. 6713,
otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees.
CTHDcS
The facts are as follows:
Petitioner is a government employee, being a department head of the Population Commission with office at
the Provincial Capitol, Trece Martirez City, Cavite.
Sometime in March 2001, petitioner agreed to help her friend, respondent Julia A. Restrivera, to have the
latter's land located in Carmona, Cavite, registered under the Torrens System. Petitioner said that the
expenses would reach P150,000 and accepted P50,000 from respondent to cover the initial expenses for the
titling of respondent's land. However, petitioner failed to accomplish her task because it was found out that the
land is government property. When petitioner failed to return the P50,000, respondent sued her for estafa.
Respondent also filed an administrative complaint for grave misconduct or conduct unbecoming a public
officer against petitioner before the Office of the Ombudsman.
The Ombudsman found petitioner guilty of violating Section 4 (b) of R.A. No. 6713 and suspended her from
office for six months without pay. The Ombudsman ruled that petitioner failed to abide by the standard set in
Section 4 (b) of R.A. No. 6713 and deprived the government of the benefit of committed service when she
embarked on her private interest to help respondent secure a certificate of title over the latter's land. 4 cCSDTI
Upon motion for reconsideration, the Ombudsman, in an Order 5 dated March 15, 2004, reduced the penalty
to three months suspension without pay. According to the Ombudsman, petitioner's acceptance of
respondent's payment created a perception that petitioner is a fixer. Her act fell short of the standard of
personal conduct required by Section 4 (b) of R.A. No. 6713 that public officials shall endeavor to discourage
wrong perceptions of their roles as dispensers or peddlers of undue patronage. The Ombudsman held:
. . . [petitioner] admitted . . . that she indeed received the amount of P50,000.00 from the [respondent] and
even contracted Engr. Liberato Patromo, alleged Licensed Geodetic Engineer to do the surveys.
While it may be true that [petitioner] did not actually deal with the other government agencies for the
processing of the titles of the subject property, we believe, however, that her mere act in accepting the money
from the [respondent] with the assurance that she would work for the issuance of the title is already enough to
create a perception that she is a fixer. Section 4(b) of [R.A.] No. 6713 mandates that public officials and
employees shall endeavor to discourage wrong perception of their roles as dispenser or peddler of undue
patronage.
xxx xxx xxx
. . . [petitioner's] act to . . . restore the amount of [P50,000] was to avoid possible sanctions.
. . . [d]uring the conciliation proceedings held on 19 October 2002 at the barangay level, it was agreed upon by
both parties that [petitioner] be given until 28 February 2003 within which to pay the amount of P50,000.00
including interest. If it was true that [petitioner] had available money to pay and had been persistent in
returning the amount of [P50,000.00] to the [respondent], she would have easily given the same right at that
moment (on 19 October 2002) in the presence of the Barangay Officials. 6 . . . . (Stress in the original.)
The CA on appeal affirmed the Ombudsman's Order dated March 19, 2004. The CA ruled that contrary to
petitioner's contentions, the Ombudsman has jurisdiction even if the act complained of is a private matter. The
CA also ruled that petitioner violated the norms of conduct required of her as a public officer when she
demanded and received the amount of P50,000 on the representation that she can secure a title to
respondent's property and for failing to return the amount. The CA stressed that Section 4 (b) of R.A. No. 6713
requires petitioner to perform and discharge her duties with the highest degree of excellence, professionalism,
161
JULY 11, 2019
intelligence and skill, and to endeavor to discourage wrong perceptions of her role as a dispenser and peddler
of undue patronage. 7 cdasiajur
Hence, this petition which raises the following issues:
1. Does the Ombudsman have jurisdiction over a case involving a private dealing by a government
employee or where the act complained of is not related to the performance of official duty?
2. Did the CA commit grave abuse of discretion in finding petitioner administratively liable despite the
dismissal of the estafa case?
3. Did the CA commit grave abuse of discretion in not imposing a lower penalty in view of mitigating
circumstances? 8
Petitioner insists that where the act complained of is not related to the performance of official duty, the
Ombudsman has no jurisdiction. Petitioner also imputes grave abuse of discretion on the part of the CA for
holding her administratively liable. She points out that the estafa case was dismissed upon a finding that she
was not guilty of fraud or deceit, hence misconduct cannot be attributed to her. And even assuming that she is
guilty of misconduct, she is entitled to the benefit of mitigating circumstances such as the fact that this is the
first charge against her in her long years of public service. 9
Respondent counters that the issues raised in the instant petition are the same issues that the CA correctly
resolved. 10 She also alleges that petitioner failed to observe the mandate that public office is a public trust
when she meddled in an affair that belongs to another agency and received an amount for undelivered work.
11
We affirm the CA and Ombudsman that petitioner is administratively liable. We hasten to add, however, that
petitioner is guilty of conduct unbecoming a public officer.
On the first issue, we agree with the CA that the Ombudsman has jurisdiction over respondent's complaint
against petitioner although the act complained of involves a private deal between them. 12 Section 13 (1), 13
Article XI of the 1987 Constitution states that the Ombudsman can investigate on its own or on complaint by
any person any act or omission of any public official or employee when such act or omission appears to be
illegal, unjust, or improper. Under Section 16 14 of R.A. No. 6770, otherwise known as the Ombudsman Act of
1989, the jurisdiction of the Ombudsman encompasses all kinds of malfeasance, misfeasance, and
nonfeasance committed by any public officer or employee during his/her tenure. Section 19 15 of R.A. No.
6770 also states that the Ombudsman shall act on all complaints relating, but not limited, to acts or omissions
which are unfair or irregular. Thus, even if the complaint concerns an act of the public official or employee
which is not service-connected, the case is within the jurisdiction of the Ombudsman. The law does not qualify
the nature of the illegal act or omission of the public official or employee that the Ombudsman may investigate.
It does not require that the act or omission be related to or be connected with or arise from the performance of
official duty. Since the law does not distinguish, neither should we. 16 DTcACa
On the second issue, it is wrong for petitioner to say that since the estafa case against her was dismissed, she
cannot be found administratively liable. It is settled that administrative cases may proceed independently of
criminal proceedings, and may continue despite the dismissal of the criminal charges. 17
For proper consideration instead is petitioner's liability under Sec. 4 (A) (b) of R.A. No. 6713.
We quote the full text of Section 4 of R.A. No. 6713:
SEC. 4. Norms of Conduct of Public Officials and Employees. — (A) Every public official and employee
shall observe the following as standards of personal conduct in the discharge and execution of official duties:
(a) Commitment to public interest. — Public officials and employees shall always uphold the public
interest over and above personal interest. All government resources and powers of their respective offices
must be employed and used efficiently, effectively, honestly and economically, particularly to avoid wastage in
public funds and revenues.
(b) Professionalism. — Public officials and employees shall perform and discharge their duties with
the highest degree of excellence, professionalism, intelligence and skill. They shall enter public service with
utmost devotion and dedication to duty. They shall endeavor to discourage wrong perceptions of their roles as
dispensers or peddlers of undue patronage.
(c) Justness and sincerity. — Public officials and employees shall remain true to the people at all
times. They must act with justness and sincerity and shall not discriminate against anyone, especially the poor
and the underprivileged. They shall at all times respect the rights of others, and shall refrain from doing acts
CONSTI REV – FULL TEXT JULY 11, 2019

contrary to law, good morals, good customs, public policy, public order, public safety and public interest. They
shall not dispense or extend undue favors on account of their office to their relatives whether by consanguinity
or affinity except with respect to appointments of such relatives to positions considered strictly confidential or
as members of their personal staff whose terms are coterminous with theirs.
(d) Political neutrality. — Public officials and employees shall provide service to everyone without
unfair discrimination and regardless of party affiliation or preference. ICHcTD
(e) Responsiveness to the public. — Public officials and employees shall extend prompt, courteous,
and adequate service to the public. Unless otherwise provided by law or when required by the public interest,
public officials and employees shall provide information on their policies and procedures in clear and
understandable language, ensure openness of information, public consultations and hearings whenever
appropriate, encourage suggestions, simplify and systematize policy, rules and procedures, avoid red tape
and develop an understanding and appreciation of the socioeconomic conditions prevailing in the country,
especially in the depressed rural and urban areas.
(f) Nationalism and patriotism. — Public officials and employees shall at all times be loyal to the
Republic and to the Filipino people, promote the use of locally-produced goods, resources and technology and
encourage appreciation and pride of country and people. They shall endeavor to maintain and defend
Philippine sovereignty against foreign intrusion.
Evidently, both the Ombudsman and CA interpreted Section 4 (A) of R.A. No. 6713 as broad enough to apply
even to private transactions that have no connection to the duties of one's office. We hold, however, that
petitioner may not be penalized for violation of Section 4 (A) (b) of R.A. No. 6713. The reason though does not
lie in the fact that the act complained of is not at all related to petitioner's discharge of her duties as
department head of the Population Commission.
In addition to its directive under Section 4 (B), Congress authorized 19 the Civil Service Commission (CSC) to
promulgate the rules and regulations necessary to implement R.A. No. 6713. Accordingly, the CSC issued the
Rules Implementing the Code of Conduct and Ethical Standards for Public Officials and Employees (hereafter,
Implementing Rules). Rule V of the Implementing Rules provides for an Incentive and Rewards System for
public officials and employees who have demonstrated exemplary service and conduct on the basis of their
observance of the norms of conduct laid down in Section 4 of R.A. No. 6713, to wit: DHIETc
RULE V. INCENTIVES AND REWARDS SYSTEM
SECTION 1. Incentives and rewards shall be granted officials and employees who have
demonstrated exemplary service and conduct on the basis of their observance of the norms of conduct laid
down in Section 4 of the Code, namely:
(a) Commitment to public interest. — . . .

(g) Commitment to democracy. — Public officials and employees shall commit themselves to the (b) Professionalism. — . . .
democratic way of life and values, maintain the principle of public accountability, and manifest by deed the (c) Justness and sincerity. — . . .
supremacy of civilian authority over the military. They shall at all times uphold the Constitution and put loyalty
to country above loyalty to persons or party. (d) Political neutrality. — . . .

(h) Simple living. — Public officials and employees and their families shall lead modest lives (e) Responsiveness to the public. — . . .
appropriate to their positions and income. They shall not indulge in extravagant or ostentatious display of
(f) Nationalism and patriotism. — . . .
wealth in any form.
(g) Commitment to democracy. — . . .
(B) The Civil Service Commission shall adopt positive measures to promote (1) observance of these
standards including the dissemination of information programs and workshops authorizing merit increases (h) Simple living. — . . .
beyond regular progression steps, to a limited number of employees recognized by their office colleagues to
be outstanding in their observance of ethical standards; and (2) continuing research and experimentation on On the other hand, Rule X of the Implementing Rules enumerates grounds for administrative disciplinary
measures which provide positive motivation to public officials and employees in raising the general level of action, as follows:
observance of these standards. RULE X. GROUNDS FOR ADMINISTRATIVE
Both the Ombudsman and CA found the petitioner administratively liable for violating Section 4 (A) (b) on DISCIPLINARY ACTION
professionalism. "Professionalism" is defined as the conduct, aims, or qualities that characterize or mark a
profession. A professional refers to a person who engages in an activity with great competence. Indeed, to call SECTION 1. In addition to the grounds for administrative disciplinary action prescribed under
a person a professional is to describe him as competent, efficient, experienced, proficient or polished. 18 In existing laws, the acts and omissions of any official or employee, whether or not he holds office or employment
the context of Section 4 (A) (b) of R.A. No. 6713, the observance of professionalism also means upholding the in a casual, temporary, hold-over, permanent or regular capacity, declared unlawful or prohibited by the Code,
integrity of public office by endeavoring "to discourage wrong perception of their roles as dispensers or shall constitute grounds for administrative disciplinary action, and without prejudice to criminal and civil
peddlers of undue patronage." Thus, a public official or employee should avoid any appearance of impropriety liabilities provided herein, such as:
affecting the integrity of government services. However, it should be noted that Section 4 (A) enumerates the
standards of personal conduct for public officers with reference to "execution of official duties." cSIACD (a) Directly or indirectly having financial and material interest in any transaction requiring the approval
of his office. . . . .
In the case at bar, the Ombudsman concluded that petitioner failed to carry out the standard of
professionalism by devoting herself on her personal interest to the detriment of her solemn public duty. The (b) Owning, controlling, managing or accepting employment as officer, employee, consultant, counsel,
Ombudsman said that petitioner's act deprived the government of her committed service because the broker, agent, trustee, or nominee in any private enterprise regulated, supervised or licensed by his office,
generation of a certificate of title was not within her line of public service. In denying petitioner's motion for unless expressly allowed by law; cDHCAE
reconsideration, the Ombudsman said that it would have been sufficient if petitioner just referred the (c) Engaging in the private practice of his profession unless authorized by the Constitution, law or
respondent to the persons/officials incharge of the processing of the documents for the issuance of a regulation, provided that such practice will not conflict or tend to conflict with his official functions;
certificate of title. While it may be true that she did not actually deal with the other government agencies for the
processing of the titles of the subject property, petitioner's act of accepting the money from respondent with (d) Recommending any person to any position in a private enterprise which has a regular or pending
the assurance that she would work for the issuance of the title is already enough to create a perception that official transaction with his office, unless such recommendation or referral is mandated by (1) law, or (2)
she is a fixer. international agreements, commitment and obligation, or as part of the functions of his office;
On its part, the CA rejected petitioner's argument that an isolated act is insufficient to create those "wrong xxx xxx xxx
perceptions" or the "impression of influence peddling." It held that the law enjoins public officers, at all times to
(e) Disclosing or misusing confidential or classified information officially known to him by reason of his
respect the rights of others and refrain from doing acts contrary to law, good customs, public order, public
office and not made available to the public, to further his private interests or give undue advantage to anyone,
policy, public safety and public interest. Thus, it is not the plurality of the acts that is being punished but the
or to prejudice the public interest;
commission of the act itself.

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CONSTI REV – FULL TEXT
(f) Soliciting or accepting, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything
of monetary value which in the course of his official duties or in connection with any operation being regulated
by, or any transaction which may be affected by the functions of, his office. . . . .
xxx xxx xxx
(g) Obtaining or using any statement filed under the Code for any purpose contrary to morals or public
policy or any commercial purpose other than by news and communications media for dissemination to the
general public;
(h) Unfair discrimination in rendering public service due to party affiliation or preference;
(i) Disloyalty to the Republic of the Philippines and to the Filipino people;
(j) Failure to act promptly on letters and request within fifteen (15) days from receipt, except as
otherwise provided in these Rules;
(k) Failure to process documents and complete action on documents and papers within a reasonable
time from preparation thereof, except as otherwise provided in these Rules; CSIcTa
(l) Failure to attend to anyone who wants to avail himself of the services of the office, or to act
promptly and expeditiously on public personal transactions;
(m) Failure to file sworn statements of assets, liabilities and net worth, and disclosure of business
interests and financial connections; and
(n) Failure to resign from his position in the private business enterprise within thirty (30) days from
assumption of public office when conflict of interest arises, and/or failure to divest himself of his shareholdings
or interests in private business enterprise within sixty (60) days from such assumption of public office when
conflict of interest arises: Provided, however, that for those who are already in the service and a conflict of
interest arises, the official or employee must either resign or divest himself of said interests within the periods
herein-above provided, reckoned from the date when the conflict of interest had arisen.
In Domingo v. Office of the Ombudsman, 20 this Court had the occasion to rule that failure to abide by the
norms of conduct under Section 4 (A) (b) of R.A. No. 6713, in relation to its implementing rules, is not a ground
for disciplinary action, to wit:
The charge of violation of Section 4(b) of R.A. No. 6713 deserves further comment. The provision commands
that "public officials and employees shall perform and discharge their duties with the highest degree of
excellence, professionalism, intelligence and skill." Said provision merely enunciates "professionalism as an
ideal norm of conduct to be observed by public servants, in addition to commitment to public interest, justness
and sincerity, political neutrality, responsiveness to the public, nationalism and patriotism, commitment to
democracy and simple living. Following this perspective, Rule V of the Implementing Rules of R.A. No. 6713
adopted by the Civil Service Commission mandates the grant of incentives and rewards to officials and
employees who demonstrate exemplary service and conduct based on their observance of the norms of
conduct laid down in Section 4. In other words, under the mandated incentives and rewards system, officials
and employees who comply with the high standard set by law would be rewarded. Those who fail to do so
cannot expect the same favorable treatment. However, the Implementing Rules does not provide that they will
have to be sanctioned for failure to observe these norms of conduct. Indeed, Rule X of the Implementing
Rules affirms as grounds for administrative disciplinary action only acts "declared unlawful or prohibited by the
Code." Rule X specifically mentions at least twenty three (23) acts or omissions as grounds for administrative
disciplinary action. Failure to abide by the norms of conduct under Section 4(b) of R.A. No. 6713 is not one of
them. (Emphasis supplied.) DHECac
Consequently, the Court dismissed the charge of violation of Section 4 (A) (b) of R.A. No. 6713 in that case.
We find no compelling reason to depart from our pronouncement in Domingo. Thus, we reverse the CA and
Ombudsman that petitioner is administratively liable under Section 4 (A) (b) of R.A. No. 6713. In so ruling, we
do no less and no more than apply the law and its implementing rules issued by the CSC under the authority
given to it by Congress. Needless to stress, said rules partake the nature of a statute and are binding as if
written in the law itself. They have the force and effect of law and enjoy the presumption of constitutionality
and legality until they are set aside with finality in an appropriate case by a competent court. 21
But is petitioner nonetheless guilty of grave misconduct, which is a ground for disciplinary action under R.A.
No. 6713?
We also rule in the negative.
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JULY 11, 2019
Misconduct is a transgression of some established and definite rule of action, more particularly, unlawful
behavior or gross negligence by a public officer. The misconduct is grave if it involves any of the additional
elements of corruption, willful intent to violate the law or to disregard established rules, which must be proved
by substantial evidence. Otherwise, the misconduct is only simple. 22 Conversely, one cannot be found guilty
of misconduct in the absence of substantial evidence. In one case, we affirmed a finding of grave misconduct
because there was substantial evidence of voluntary disregard of established rules in the procurement of
supplies as well as of manifest intent to disregard said rules. 23 We have also ruled that complicity in the
transgression of a regulation of the Bureau of Internal Revenue constitutes simple misconduct only as there
was failure to establish flagrancy in respondent's act for her to be held liable of gross misconduct. 24 On the
other hand, we have likewise dismissed a complaint for knowingly rendering an unjust order, gross ignorance
of the law, and grave misconduct, since the complainant did not even indicate the particular acts of the judge
which were allegedly violative of the Code of Judicial Conduct. 25
In this case, respondent failed to prove (1) petitioner's violation of an established and definite rule of action or
unlawful behavior or gross negligence, and (2) any of the aggravating elements of corruption, willful intent to
violate a law or to disregard established rules on the part of petitioner. In fact, respondent could merely point to
petitioner's alleged failure to observe the mandate that public office is a public trust when petitioner allegedly
meddled in an affair that belongs to another agency and received an amount for undelivered work. HEaCcD
True, public officers and employees must be guided by the principle enshrined in the Constitution that public
office is a public trust. However, respondent's allegation that petitioner meddled in an affair that belongs to
another agency is a serious but unproven accusation. Respondent did not even say what acts of interference
were done by petitioner. Neither did respondent say in which government agency petitioner committed
interference. And causing the survey of respondent's land can hardly be considered as meddling in the affairs
of another government agency by petitioner who is connected with the Population Commission. It does not
show that petitioner made an illegal deal or any deal with any government agency. Even the Ombudsman has
recognized this fact. The survey shows only that petitioner contracted a surveyor. Respondent said nothing on
the propriety or legality of what petitioner did. The survey shows that petitioner also started to work on her task
under their agreement. Thus, respondent's allegation that petitioner received an amount for undelivered work
is not entirely correct. Rather, petitioner failed to fully accomplish her task in view of the legal obstacle that the
land is government property.
However, the foregoing does not mean that petitioner is absolved of any administrative liability.
But first, we need to modify the CA finding that petitioner demanded the amount of P50,000 from respondent
because respondent did not even say that petitioner demanded money from her. 26 We find in the allegations
and counter-allegations that respondent came to petitioner's house in Biñan, Laguna, and asked petitioner if
she can help respondent secure a title to her land which she intends to sell. Petitioner agreed to help. When
respondent asked about the cost, petitioner said P150,000 and accepted P50,000 from respondent to cover
the initial expenses. 27
We agree with the common finding of the Ombudsman and the CA that, in the aftermath of the aborted
transaction, petitioner still failed to return the amount she accepted. As aptly stated by the Ombudsman, if
petitioner was persistent in returning the amount of P50,000 until the preliminary investigation of the estafa
case on September 18, 2003, 28 there would have been no need for the parties' agreement that petitioner be
given until February 28, 2003 to pay said amount including interest. Indeed, petitioner's belated attempt to
return the amount was intended to avoid possible sanctions and impelled solely by the filing of the estafa case
against her. ECaHSI
For reneging on her promise to return aforesaid amount, petitioner is guilty of conduct unbecoming a public
officer. In Joson v. Macapagal, we have also ruled that the respondents therein were guilty of conduct
unbecoming of government employees when they reneged on their promise to have pertinent documents
notarized and submitted to the Government Service Insurance System after the complainant's rights over the
subject property were transferred to the sister of one of the respondents. 29 Recently, in Assistant Special
Prosecutor III Rohermia J. Jamsani-Rodriguez v. Justices Gregory S. Ong, et al., we said that unbecoming
conduct means improper performance and applies to a broader range of transgressions of rules not only of
social behavior but of ethical practice or logical procedure or prescribed method. 30
This Court has too often declared that any act that falls short of the exacting standards for public office shall
not be countenanced. 31 The Constitution categorically declares as follows:
SECTION 1. Public office is a public trust. — Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with
patriotism and justice, and lead modest lives. 32
CONSTI REV – FULL TEXT JULY 11, 2019

Petitioner should have complied with her promise to return the amount to respondent after failing to 18. Reyes v. Rural Bank of San Miguel (Bulacan), Inc., G.R. No. 154499, February 27, 2004, 424 SCRA 135, 144,
accomplish the task she had willingly accepted. However, she waited until respondent sued her for estafa, citing Webster's Third New International Dictionary.
19. SEC. 12. Promulgation of Rules and Regulations, Administration and Enforcement of this Act. — The Civil Service
thus reinforcing the latter's suspicion that petitioner misappropriated her money. Although the element of deceit
Commission shall have the primary responsibility for the administration and enforcement of this Act. . . . .
was not proven in the criminal case respondent filed against the petitioner, it is clear that by her actuations, The Civil Service Commission is hereby authorized to promulgate rules and regulations necessary to carry out the
petitioner violated basic social and ethical norms in her private dealings. Even if unrelated to her duties as a provisions of this Act, . . . .
public officer, petitioner's transgression could erode the public's trust in government employees, moreso 20. G.R. No. 176127, January 30, 2009, 577 SCRA 476, 484.
because she holds a high position in the service. 21. See Abakada Guro Party List v. Purisima, G.R. No. 166715, August 14, 2008, 562 SCRA 251, 288-289, citing Eslao
v. Commission on Audit, G.R. No. 108310, September 1, 1994, 236 SCRA 161, 175, Sierra Madre Trust v. Sec. of Agr. and
As to the penalty, we reprimanded the respondents in Joson and imposed a fine in Jamsani-Rodriguez. Under Natural Resources, Nos. L-32370 & 32767, April 20, 1983, 121 SCRA 384 and People v. Maceren, No. L-32166, October 18,
the circumstances of this case, a fine of P15,000 in lieu of the three months suspension is proper. In imposing 1977, 79 SCRA 450.
said fine, we have considered as a mitigating circumstance petitioner's 37 years of public service and the fact 22. See Civil Service Commission v. Ledesma, G.R. No. 154521, September 30, 2005, 471 SCRA 589, 603.
23. Roque v. Court of Appeals, G.R. No. 179245, July 23, 2008, 559 SCRA 660, 675.
that this is the first charge against her. 33 Section 53 34 of the Revised Uniform Rules on Administrative 24. Bureau of Internal Revenue v. Organo, G.R. No. 149549, February 26, 2004, 424 SCRA 9, 17.
Cases in the Civil Service provides that mitigating circumstances such as length of service shall be 25. Diomampo v. Alpajora, A.M. No. RTJ-04-1880, October 19, 2004, 440 SCRA 534, 539-540.
considered. And since petitioner has earlier agreed to return the amount of P50,000 including interest, we find 26. Rollo, pp. 20-21, 73-76.
it proper to order her to comply with said agreement. Eventually, the parties may even find time to rekindle 27. Id. at 27-28.
their friendship. EAHDac 28. Id. at 23.
29. A.M. No. P-02-1591, June 21, 2002, 383 SCRA 403, 406-407.
WHEREFORE, we SET ASIDE the Decision dated October 31, 2006 of the Court of Appeals and its 30. A.M. No. 08-19-SB-J, August 24, 2010, p. 22.
Resolution dated June 8, 2007 in CA-G.R. SP No. 83422, as well as the Decision dated January 6, 2004 and 31. Pablejan v. Calleja, A.M. No. P-06-2102, January 24, 2006, 479 SCRA 562, 569.
32. Sec. 1 of Article XI of the 1987 Constitution.
Order dated March 15, 2004 of the Ombudsman in OMB-L-A-03-0552-F, and ENTER a new judgment as
33. Rollo, p. 44.
follows: 34. Sec. 53. . . . Mitigating . . . Circumstances. —
xxx xxx xxx
We find petitioner GUILTY of conduct unbecoming a public officer and impose upon her a FINE of P15,000.00 j. Length of service in the government
to be paid at the Office of the Ombudsman within five (5) days from finality of this Decision. xxx xxx xxx
We also ORDER petitioner to return to respondent the amount of P50,000.00 with interest thereon at 12% per
annum from March 2001 until the said amount shall have been fully paid. ADTEaI
With costs against the petitioner.
SO ORDERED.
Carpio Morales, Brion, Bersamin and Sereno, JJ., concur.
Footnotes
1. Rollo, pp. 126-142. Penned by Presiding Justice Ruben T. Reyes (now a retired Member of this Court) with the
concurrence of Associate Justices Juan Q. Enriquez and Vicente S.E. Veloso.
2. Id. at 145-146.
3. SEC. 4. Norms of Conduct of Public Officials and Employees. — (A) Every public official and employee shall
observe the following as standards of personal conduct in the discharge and execution of official duties:
xxx xxx xxx
(b) Professionalism. — Public officials and employees shall perform and discharge their duties with the highest
degree of excellence, professionalism, intelligence and skill. They shall enter public service with utmost devotion and dedication
to duty. They shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage.
4. Rollo, pp. 37-38.
5. Id. at 40-45.
6. Id. at 42-43.
7. Id. at 141.
8. Id. at 12.
9. Id. at 13-16.
10. Id. at 73.
11. Id. at 74.
12. See Santos v. Rasalan, G.R. No. 155749, February 8, 2007, 515 SCRA 97, 102.
13. Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties:
(1) Investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient.
xxx xxx xxx
14. SEC. 16. Applicability. — The provisions of this Act shall apply to all kinds of malfeasance, misfeasance, and
nonfeasance that have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure of office.
15. SEC. 19. Administrative Complaints. — The Ombudsman shall act on all complaints relating, but not limited to acts
or omissions which:
xxx xxx xxx
(2) Are . . . unfair . . .;
xxx xxx xxx
(6) Are otherwise irregular . . . .
16. See Santos v. Rasalan, supra note 12 at 102, citing Vasquez v. Hobilla-Alinio, G.R. Nos. 118813-14, April 8, 1997,
271 SCRA 67, 74.
17. Bejarasco, Jr. v. Buenconsejo, A.M. No. MTJ-02-1417, May 27, 2004, 429 SCRA 212, 221.

164