G.R. No. 100113 September 3, 1991 RENATO CAYETANO, petitioner, vs. CHRISTIAN MONSOD, HON. JOVITO R.

SALONGA, COMMISSION ON APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as Secretary of Budget and Management, respondents.
PARAS, J.:p

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

We are faced here with a controversy of far-reaching proportions. While ostensibly only legal issues are involved, the Court's decision in this case would indubitably have a profound effect on the political aspect of our national existence. The 1987 Constitution provides in Section 1 (1), Article IX-C:
There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective position in the immediately preceding -elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (Emphasis supplied)

The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in the practice of law when he:
... for valuable consideration engages in the business of advising person, firms, associations or corporations as to their rights under the law, or appears in a representative capacity as an advocate in proceedings pending or prospective, before any court, commissioner, referee, board, body, committee, or commission constituted by law or authorized to settle controversies and there, in such representative capacity performs any act or acts for the purpose of obtaining or defending the rights of their clients under the law. Otherwise stated, one who, in a representative capacity, engages in the business of advising clients as to their rights under the law, or while so engaged performs any act or acts either in court or outside of court for that purpose, is engaged in the practice of law. (State ex. rel. Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)

The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution which similarly provides: There shall be an independent Commission on Elections composed of a Chairman and eight Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age and holders of a college degree. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years.' (Emphasis supplied) Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as a legal qualification to an appointive office. Black defines "practice of law" as:
The rendition of services requiring the knowledge and the application of legal principles and technique to serve the interest of another with his

This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177) stated:
The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and other papers incident to actions and special proceedings, the management of such actions and proceedings on behalf of clients before judges and courts, and in addition, conveying. In general, all advice to clients, and all action taken for them in matters connected with the law incorporation services, assessment and condemnation services contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in matters of estate and guardianship have been held to constitute law practice, as do the preparation and drafting of legal instruments, where the work done involves the determination by the trained

legal mind of the legal effect of facts and conditions. (5 Am. Jr. p. 262, 263). (Emphasis supplied) Practice of law under modem conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects, and the preparation and execution of legal instruments covering an extensive field of business and trust relations and other affairs. Although these transactions may have no direct connection with court proceedings, they are always subject to become involved in litigation. They require in many aspects a high degree of legal skill, a wide experience with men and affairs, and great capacity for adaptation to difficult and complex situations. These customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between that part of the work of the lawyer which involves appearance in court and that part which involves advice and drafting of instruments in his office. It is of importance to the welfare of the public that these manifold customary functions be performed by persons possessed of adequate learning and skill, of sound moral character, and acting at all times under the heavy trust obligations to clients which rests upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] , p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139,144). (Emphasis ours)

The following records of the 1986 Constitutional Commission show that it has adopted a liberal interpretation of the term "practice of law."
MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do during our review of the provisions on the Commission on Audit. May I be allowed to make a very brief statement? THE PRESIDING OFFICER (Mr. Jamir). The Commissioner will please proceed. MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit. Among others, the qualifications provided for by Section I is that "They must be Members of the Philippine Bar" I am quoting from the provision "who have been engaged in the practice of law for at least ten years".

To avoid any misunderstanding which would result in excluding members of the Bar who are now employed in the COA or Commission on Audit, we would like to make the clarification that this provision on qualifications regarding members of the Bar does not necessarily refer or involve actual practice of law outside the COA We have to interpret this to mean that as long as the lawyers who are employed in the COA are using their legal knowledge or legal talent in their respective work within COA, then they are qualified to be considered for appointment as members or commissioners, even chairman, of the Commission on Audit. This has been discussed by the Committee on Constitutional Commissions and Agencies and we deem it important to take it up on the floor so that this interpretation may be made available whenever this provision on the qualifications as regards members of the Philippine Bar engaging in the practice of law for at least ten years is taken up.
MR. OPLE. Will Commissioner Foz yield to just one question. MR. FOZ. Yes, Mr. Presiding Officer. MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the requirement of a law practice that is set forth in the Article on the Commission on Audit? MR. FOZ. We must consider the fact that the work of COA, although it is auditing, will necessarily involve legal work; it will involve legal work. And, therefore, lawyers who are employed in COA now would have the necessary qualifications in accordance with the Provision on qualifications under our provisions on the Commission on Audit. And, therefore, the answer is yes. MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice of law.

The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-1975) listed the dimensions of the practice of law in even broader terms as advocacy, counselling and public service.
One may be a practicing attorney in following any line of employment in the profession. If what he does exacts knowledge of the law and is of a kind usual for attorneys engaging in the active practice of their profession, and he follows some one or more lines of employment such as this he is a practicing attorney at law within the meaning of the statute. (Barr v. Cardell, 155 NW 312)

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

MR. FOZ. Yes, Mr. Presiding Officer. MR. OPLE. Thank you. ... ( Emphasis supplied)

lawyers do continue to litigate and the litigating lawyer's role colors much of both the public image and the self perception of the legal profession. (Ibid.). In this regard thus, the dominance of litigation in the public mind reflects history, not reality. (Ibid.). Why is this so? Recall that the late Alexander SyCip, a corporate lawyer, once articulated on the importance of a lawyer as a business counselor in this wise: "Even today, there are still uninformed laymen whose concept of an attorney is one who principally tries cases before the courts. The members of the bench and bar and the informed laymen such as businessmen, know that in most developed societies today, substantially more legal work is transacted in law offices than in the courtrooms. General practitioners of law who do both litigation and nonlitigation work also know that in most cases they find themselves spending more time doing what [is] loosely desccribe[d] as business counseling than in trying cases. The business lawyer has been described as the planner, the diagnostician and the trial lawyer, the surgeon. I[t] need not [be] stress[ed] that in law, as in medicine, surgery should be avoided where internal medicine can be effective." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4). In the course of a working day the average general practitioner wig engage in a number of legal tasks, each involving different legal doctrines, legal skills, legal processes, legal institutions, clients, and other interested parties. Even the increasing numbers of lawyers in specialized practice wig usually perform at least some legal services outside their specialty. And even within a narrow specialty such as tax practice, a lawyer will shift from one legal task or role such as advicegiving to an importantly different one such as representing a client before an administrative agency. (Wolfram, supra, p. 687). By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare types a litigator who specializes in this work to the exclusion of much else. Instead, the work will require the lawyer to have mastered the full range of traditional lawyer skills of client counselling, advice-giving, document drafting, and negotiation. And increasingly lawyers find that the new skills of evaluation and mediation are both effective for many clients and a source of employment. (Ibid.). Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very important ways, at least theoretically, so as to remove from it some of the salient features of adversarial litigation. Of these special roles, the most prominent is that of prosecutor. In some lawyers' work the constraints are imposed both by the nature of the client and by the way in which the lawyer is organized into a social unit to perform that work. The most common of these roles are those of corporate practice and government legal service. (Ibid.).

Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman and two Commissioners of the Commission on Audit (COA) should either be certified public accountants with not less than ten years of auditing practice, or members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (emphasis supplied) Corollary to this is the term "private practitioner" and which is in many ways synonymous with the word "lawyer." Today, although many lawyers do not engage in private practice, it is still a fact that the majority of lawyers are private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM Career Horizons: Illinois], [1986], p. 15). At this point, it might be helpful to define private practice. The term, as commonly understood, means "an individual or organization engaged in the business of delivering legal services." (Ibid.). Lawyers who practice alone are often called "sole practitioners." Groups of lawyers are called "firms." The firm is usually a partnership and members of the firm are the partners. Some firms may be organized as professional corporations and the members called shareholders. In either case, the members of the firm are the experienced attorneys. In most firms, there are younger or more inexperienced salaried attorneyscalled "associates." (Ibid.). The test that defines law practice by looking to traditional areas of law practice is essentially tautologous, unhelpful defining the practice of law as that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The practice of law is defined as the performance of any acts . . . in or out of court, commonly understood to be the practice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers perform almost every function known in the commercial and governmental realm, such a definition would obviously be too global to be workable.(Wolfram, op. cit.). The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar role for lawyers as well as an uncommon role for the average lawyer. Most lawyers spend little time in courtrooms, and a large percentage spend their entire practice without litigating a case. (Ibid., p. 593). Nonetheless, many

In several issues of the Business Star, a business daily, herein below quoted are emerging trends in corporate law practice, a departure from the traditional concept of practice of law.
We are experiencing today what truly may be called a revolutionary transformation in corporate law practice. Lawyers and other professional groups, in particular those members participating in various legal-policy decisional contexts, are finding that understanding the major emerging trends in corporation law is indispensable to intelligent decision-making. Constructive adjustment to major corporate problems of today requires an accurate understanding of the nature and implications of the corporate law research function accompanied by an accelerating rate of information accumulation. The recognition of the need for such improved corporate legal policy formulation, particularly "model-making" and "contingency planning," has impressed upon us the inadequacy of traditional procedures in many decisional contexts. In a complex legal problem the mass of information to be processed, the sorting and weighing of significant conditional factors, the appraisal of major trends, the necessity of estimating the consequences of given courses of action, and the need for fast decision and response in situations of acute danger have prompted the use of sophisticated concepts of information flow theory, operational analysis, automatic data processing, and electronic computing equipment. Understandably, an improved decisional structure must stress the predictive component of the policymaking process, wherein a "model", of the decisional context or a segment thereof is developed to test projected alternative courses of action in terms of futuristic effects flowing therefrom. Although members of the legal profession are regularly engaged in predicting and projecting the trends of the law, the subject of corporate finance law has received relatively little organized and formalized attention in the philosophy of advancing corporate legal education. Nonetheless, a cross-disciplinary approach to legal research has become a vital necessity. Certainly, the general orientation for productive contributions by those trained primarily in the law can be improved through an early introduction to multi-variable decisional context and the various approaches for handling such problems. Lawyers, particularly with either a master's or doctorate degree in business administration or management, functioning at the legal policy level of decision-making now have some appreciation for the concepts and analytical techniques of other professions which are currently engaged in similar types of complex decision-making.

Truth to tell, many situations involving corporate finance problems would require the services of an astute attorney because of the complex legal implications that arise from each and every necessary step in securing and maintaining the business issue raised. (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4). In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogado de campanilla." He is the "big-time" lawyer, earning big money and with a clientele composed of the tycoons and magnates of business and industry. Despite the growing number of corporate lawyers, many people could not explain what it is that a corporate lawyer does. For one, the number of attorneys employed by a single corporation will vary with the size and type of the corporation. Many smaller and some large corporations farm out all their legal problems to private law firms. Many others have in-house counsel only for certain matters. Other corporation have a staff large enough to handle most legal problems in-house. A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs of a corporation. His areas of concern or jurisdiction may include, inter alia: corporate legal research, tax laws research, acting out as corporate secretary (in board meetings), appearances in both courts and other adjudicatory agencies (including the Securities and Exchange Commission), and in other capacities which require an ability to deal with the law. At any rate, a corporate lawyer may assume responsibilities other than the legal affairs of the business of the corporation he is representing. These include such matters as determining policy and becoming involved in management. ( Emphasis supplied.) In a big company, for example, one may have a feeling of being isolated from the action, or not understanding how one's work actually fits into the work of the orgarnization. This can be frustrating to someone who needs to see the results of his work first hand. In short, a corporate lawyer is sometimes offered this fortune to be more closely involved in the running of the business. Moreover, a corporate lawyer's services may sometimes be engaged by a multinational corporation (MNC). Some large MNCs provide one of the few opportunities available to corporate lawyers to enter the international law field. After all, international law is practiced in a relatively small number of companies and law firms. Because working in a foreign country is perceived by many as glamorous, tills is an area coveted by corporate

lawyers. In most cases, however, the overseas jobs go to experienced attorneys while the younger attorneys do their "international practice" in law libraries. (Business Star, "Corporate Law Practice," May 25,1990, p. 4). This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To borrow the lines of Harvard-educated lawyer Bruce Wassertein, to wit: "A bad lawyer is one who fails to spot problems, a good lawyer is one who perceives the difficulties, and the excellent lawyer is one who surmounts them." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4). Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. No longer are we talking of the traditional law teaching method of confining the subject study to the Corporation Code and the Securities Code but an incursion as well into the intertwining modern management issues. Such corporate legal management issues deal primarily with three (3) types of learning: (1) acquisition of insights into current advances which are of particular significance to the corporate counsel; (2) an introduction to usable disciplinary skins applicable to a corporate counsel's management responsibilities; and (3) a devotion to the organization and management of the legal function itself. These three subject areas may be thought of as intersecting circles, with a shared area linking them. Otherwise known as "intersecting managerial jurisprudence," it forms a unifying theme for the corporate counsel's total learning. Some current advances in behavior and policy sciences affect the counsel's role. For that matter, the corporate lawyer reviews the globalization process, including the resulting strategic repositioning that the firms he provides counsel for are required to make, and the need to think about a corporation's; strategy at multiple levels. The salience of the nationstate is being reduced as firms deal both with global multinational entities and simultaneously with sub-national governmental units. Firms increasingly collaborate not only with public entities but with each other often with those who are competitors in other arenas. Also, the nature of the lawyer's participation in decision-making within the corporation is rapidly changing. The modem corporate lawyer has gained a new role as a stakeholder in some cases participating in the organization and operations of governance through participation on boards and other decision-making roles. Often these new patterns develop alongside existing legal institutions and laws are perceived as barriers. These trends are

complicated as corporations organize for global operations. ( Emphasis supplied) The practising lawyer of today is familiar as well with governmental policies toward the promotion and management of technology. New collaborative arrangements for promoting specific technologies or competitiveness more generally require approaches from industry that differ from older, more adversarial relationships and traditional forms of seeking to influence governmental policies. And there are lessons to be learned from other countries. In Europe, Esprit, Eureka and Race are examples of collaborative efforts between governmental and business Japan's MITI is world famous. (Emphasis supplied) Following the concept of boundary spanning, the office of the Corporate Counsel comprises a distinct group within the managerial structure of all kinds of organizations. Effectiveness of both long-term and temporary groups within organizations has been found to be related to indentifiable factors in the group-context interaction such as the groups actively revising their knowledge of the environment coordinating work with outsiders, promoting team achievements within the organization. In general, such external activities are better predictors of team performance than internal group processes. In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis the managerial mettle of corporations are challenged. Current research is seeking ways both to anticipate effective managerial procedures and to understand relationships of financial liability and insurance considerations. (Emphasis supplied) Regarding the skills to apply by the corporate counsel, three factors are apropos: First System Dynamics. The field of systems dynamics has been found an effective tool for new managerial thinking regarding both planning and pressing immediate problems. An understanding of the role of feedback loops, inventory levels, and rates of flow, enable users to simulate all sorts of systematic problems physical, economic, managerial, social, and psychological. New programming techniques now make the system dynamics principles more accessible to managers including corporate counsels. (Emphasis supplied) Second Decision Analysis. This enables users to make better decisions involving complexity and uncertainty. In the context of a law department, it can be used to appraise the settlement value of litigation, aid in negotiation

settlement, and minimize the cost and risk involved in managing a portfolio of cases. (Emphasis supplied) Third Modeling for Negotiation Management. Computer-based models can be used directly by parties and mediators in all lands of negotiations. All integrated set of such tools provide coherent and effective negotiation support, including hands-on on instruction in these techniques. A simulation case of an international joint venture may be used to illustrate the point. [Be this as it may,] the organization and management of the legal function, concern three pointed areas of consideration, thus: Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of the general counsel's responsibilities. They differ from those of remedial law. Preventive lawyering is concerned with minimizing the risks of legal trouble and maximizing legal rights for such legal entities at that time when transactional or similar facts are being considered and made. Managerial Jurisprudence. This is the framework within which are undertaken those activities of the firm to which legal consequences attach. It needs to be directly supportive of this nation's evolving economic and organizational fabric as firms change to stay competitive in a global, interdependent environment. The practice and theory of "law" is not adequate today to facilitate the relationships needed in trying to make a global economy work. Organization and Functioning of the Corporate Counsel's Office. The general counsel has emerged in the last decade as one of the most vibrant subsets of the legal profession. The corporate counsel hear responsibility for key aspects of the firm's strategic issues, including structuring its global operations, managing improved relationships with an increasingly diversified body of employees, managing expanded liability exposure, creating new and varied interactions with public decision-makers, coping internally with more complex make or by decisions. This whole exercise drives home the thesis that knowing corporate law is not enough to make one a good general corporate counsel nor to give him a full sense of how the legal system shapes corporate activities. And even if the corporate lawyer's aim is not the understand all of the law's effects on corporate activities, he must, at the very least, also gain a working knowledge of the management issues if only to be able to grasp not only the basic legal "constitution' or makeup of the modem corporation. "Business Star", "The Corporate Counsel," April 10, 1991, p. 4).

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

Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of Chairman of the COMELEC in a letter received by the Secretariat of the Commission on Appointments on April 25, 1991. Petitioner opposed the nomination because allegedly Monsod does not possess the required qualification of having been engaged in the practice of law for at least ten years. On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as Chairman of the COMELEC. On June 18, 1991, he took his oath of office. On the same day, he assumed office as Chairman of the COMELEC. Challenging the validity of the confirmation by the Commission on Appointments of Monsod's nomination, petitioner as a citizen and taxpayer, filed the instant petition for certiorari and Prohibition praying that said confirmation and the consequent appointment of Monsod as Chairman of the Commission on Elections be declared null and void. Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960 with a grade of 86-55%. He has been a dues paying member of the Integrated Bar of the Philippines since its inception in 1972-73. He has also been paying his professional license fees as lawyer for more than ten years. (p. 124, Rollo) After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod worked in the law office of his father. During his stint in the World Bank Group (1963-1970), Monsod worked as an operations officer for about two years in Costa Rica and Panama, which involved getting acquainted with the laws of member-countries negotiating loans and coordinating legal, economic, and project work of the Bank. Upon returning to the Philippines in 1970, he worked with the Meralco Group, served as chief executive officer of an investment bank and subsequently of a business conglomerate, and since 1986, has rendered services to various companies as a legal and economic consultant or chief executive officer. As former Secretary-General (1986) and National Chairman (1987) of NAMFREL. Monsod's work involved being knowledgeable in election law. He appeared for NAMFREL in its accreditation hearings before the Comelec. In the field of

advocacy, Monsod, in his personal capacity and as former Co-Chairman of the Bishops Businessmen's Conference for Human Development, has worked with the under privileged sectors, such as the farmer and urban poor groups, in initiating, lobbying for and engaging in affirmative action for the agrarian reform law and lately the urban land reform bill. Monsod also made use of his legal knowledge as a member of the Davide Commission, a quast judicial body, which conducted numerous hearings (1990) and as a member of the Constitutional Commission (1986-1987), and Chairman of its Committee on Accountability of Public Officers, for which he was cited by the President of the Commission, Justice Cecilia MuozPalma for "innumerable amendments to reconcile government functions with individual freedoms and public accountability and the party-list system for the House of Representative. (pp. 128-129 Rollo) ( Emphasis supplied) Just a word about the work of a negotiating team of which Atty. Monsod used to be a member.
In a loan agreement, for instance, a negotiating panel acts as a team, and which is adequately constituted to meet the various contingencies that arise during a negotiation. Besides top officials of the Borrower concerned, there are the legal officer (such as the legal counsel), the finance manager, and an operations officer (such as an official involved in negotiating the contracts) who comprise the members of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies for Developing Country Borrowers," Staff Paper No. 2, Central Bank of the Philippines, Manila, 1982, p. 11). (Emphasis supplied) After a fashion, the loan agreement is like a country's Constitution; it lays down the law as far as the loan transaction is concerned. Thus, the meat of any Loan Agreement can be compartmentalized into five (5) fundamental parts: (1) business terms; (2) borrower's representation; (3) conditions of closing; (4) covenants; and (5) events of default. (Ibid., p. 13). In the same vein, lawyers play an important role in any debt restructuring program. For aside from performing the tasks of legislative drafting and legal advising, they score national development policies as key factors in maintaining their countries' sovereignty. (Condensed from the work paper, entitled "Wanted: Development Lawyers for Developing Nations," submitted by L. Michael Hager, regional legal adviser of the United States Agency for International Development, during the Session on Law for the Development of Nations at the Abidjan World Conference in Ivory Coast, sponsored by the World Peace Through Law Center on August 26-31, 1973). ( Emphasis supplied)

Loan concessions and compromises, perhaps even more so than purely renegotiation policies, demand expertise in the law of contracts, in legislation and agreement drafting and in renegotiation. Necessarily, a sovereign lawyer may work with an international business specialist or an economist in the formulation of a model loan agreement. Debt restructuring contract agreements contain such a mixture of technical language that they should be carefully drafted and signed only with the advise of competent counsel in conjunction with the guidance of adequate technical support personnel. (See International Law Aspects of the Philippine External Debts, an unpublished dissertation, U.S.T. Graduate School of Law, 1987, p. 321). ( Emphasis supplied) A critical aspect of sovereign debt restructuring/contract construction is the set of terms and conditions which determines the contractual remedies for a failure to perform one or more elements of the contract. A good agreement must not only define the responsibilities of both parties, but must also state the recourse open to either party when the other fails to discharge an obligation. For a compleat debt restructuring represents a devotion to that principle which in the ultimate analysis is sine qua non for foreign loan agreements-an adherence to the rule of law in domestic and international affairs of whose kind U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. once said: "They carry no banners, they beat no drums; but where they are, men learn that bustle and bush are not the equal of quiet genius and serene mastery." (See Ricardo J. Romulo, "The Role of Lawyers in Foreign Investments," Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265).

Interpreted in the light of the various definitions of the term Practice of law". particularly the modern concept of law practice, and taking into consideration the liberal construction intended by the framers of the Constitution, Atty. Monsod's past work experiences as a lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and the poor verily more than satisfy the constitutional requirement that he has been engaged in the practice of law for at least ten years. Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court said:
Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been

preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide. (emphasis supplied)

No less emphatic was the Court in the case of (Central Bank v. Civil Service Commission, 171 SCRA 744) where it stated:
It is well-settled that when the appointee is qualified, as in this case, and all the other legal requirements are satisfied, the Commission has no alternative but to attest to the appointment in accordance with the Civil Service Law. The Commission has no authority to revoke an appointment on the ground that another person is more qualified for a particular position. It also has no authority to direct the appointment of a substitute of its choice. To do so would be an encroachment on the discretion vested upon the appointing authority. An appointment is essentially within the discretionary power of whomsoever it is vested, subject to the only condition that the appointee should possess the qualifications required by law. ( Emphasis supplied)

framers of the 1987 Constitution. Moreover, Justice Padilla's definition would require generally a habitual law practice, perhaps practised two or three times a week and would outlaw say, law practice once or twice a year for ten consecutive years. Clearly, this is far from the constitutional intent.

Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written opinion, I made use of a definition of law practice which really means nothing because the definition says that law practice " . . . is what people ordinarily mean by the practice of law." True I cited the definition but only by way of sarcasm as evident from my statement that the definition of law practice by "traditional areas of law practice is essentially tautologous" or defining a phrase by means of the phrase itself that is being defined. Justice Cruz goes on to say in substance that since the law covers almost all situations, most individuals, in making use of the law, or in advising others on what the law means, are actually practicing law. In that sense, perhaps, but we should not lose sight of the fact that Mr. Monsod is a lawyer, a member of the Philippine Bar, who has been practising law for over ten years. This is different from the acts of persons practising law, without first becoming lawyers. Justice Cruz also says that the Supreme Court can even disqualify an elected President of the Philippines, say, on the ground that he lacks one or more qualifications. This matter, I greatly doubt. For one thing, how can an action or petition be brought against the President? And even assuming that he is indeed disqualified, how can the action be entertained since he is the incumbent President? We now proceed: The Commission on the basis of evidence submitted doling the public hearings on Monsod's confirmation, implicitly determined that he possessed the necessary qualifications as required by law. The judgment rendered by the Commission in the exercise of such an acknowledged power is beyond judicial interference except only upon a clear showing of a grave abuse of discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of discretion is clearly shown shall the Court interfere with the Commission's judgment. In the instant case, there is no occasion for the exercise of the Court's corrective power, since no abuse, much less a grave abuse of discretion, that would amount to lack or excess of jurisdiction and would warrant the issuance of the writs prayed, for has been clearly shown.

The appointing process in a regular appointment as in the case at bar, consists of four (4) stages: (1) nomination; (2) confirmation by the Commission on Appointments; (3) issuance of a commission (in the Philippines, upon submission by the Commission on Appointments of its certificate of confirmation, the President issues the permanent appointment; and (4) acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers, p. 200) The power of the Commission on Appointments to give its consent to the nomination of Monsod as Chairman of the Commission on Elections is mandated by Section 1(2) Sub-Article C, Article IX of the Constitution which provides:
The Chairman and the Commisioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of the practice of law is the traditional or stereotyped notion of law practice, as distinguished from the modern concept of the practice of law, which modern connotation is exactly what was intended by the eminent

Additionally, consider the following: (1) If the Commission on Appointments rejects a nominee by the President, may the Supreme Court reverse the Commission, and thus in effect confirm the appointment? Clearly, the answer is in the negative. (2) In the same vein, may the Court reject the nominee, whom the Commission has confirmed? The answer is likewise clear. (3) If the United States Senate (which is the confirming body in the U.S. Congress) decides to confirm a Presidential nominee, it would be incredible that the U.S. Supreme Court would still reverse the U.S. Senate. Finally, one significant legal maxim is:
We must interpret not by the letter that killeth, but by the spirit that giveth life.

Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.) Sarmiento, J., is on leave. Regalado, and Davide, Jr., J., took no part.

Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah (who was Samson's beloved) for help in capturing Samson. Delilah agreed on condition that
No blade shall touch his skin; No blood shall flow from his veins.

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

[G.R. No. 93867 : December 18, 1990.] 192 SCRA 358 SIXTO S. BRILLANTES, JR., Petitioner, vs. HAYDEE B. YORAC, in her capacity as ACTING CHAIRPERSON of the COMMISSION ON ELECTIONS, Respondent. DECISION CRUZ, J.: The petitioner is challenging the designation by the President of the Philippines of Associate Commissioner Haydee B. Yorac as Acting Chairman of the Commission on Elections, in place of Chairman Hilario B. Davide, who had been named chairman of the fact-finding commission to investigate the December 1989 coup d' etat attempt. The qualifications of the respondent are conceded by the petitioner and are not in issue in this case. What is the power of the President of the Philippines to make the challenged designation in view of the status of the Commission on Elections as an independent constitutional body and the specific provision of Article IX-C, Section 1(2) of the Constitution that "(I)n no case shall any Member (of the Commission on Elections) be appointed or designated in a temporary or acting capacity." The petitioner invokes the case of Nacionalista Party v. Bautista, 85 Phil. 101, where President Elpidio Quirino designated the Solicitor General as acting member of the Commission on Elections and the Court revoked the designation as contrary to the Constitution. It is also alleged that the respondent is not even the senior member of the Commission on Elections, being outranked by Associate Commissioner Alfredo E. Abueg, Jr.:-cralaw The petitioner contends that the choice of the Acting Chairman of the Commission on Elections is an internal matter that should be resolved by the members themselves and that the intrusion of the President of the Philippines violates their independence. He cites the practice in this Court, where the senior Associate Justice serves as Acting Chief Justice in the absence of the Chief Justice. No designation from the President of the Philippines is necessary. In his Comment, the Solicitor General argues that no such designation is necessary in the case of the Supreme Court because the temporary succession cited is provided for in Section 12 of the Judiciary Act of 1948. A similar rule is found in

Section 5 of BP 129 for the Court of Appeals. There is no such arrangement, however, in the case of the Commission on Elections. The designation made by the President of the Philippines should therefore be sustained for reasons of "administrative expediency," to prevent disruption of the functions of the COMELEC. Expediency is a dubious justification. It may also be an overstatement to suggest that the operations of the Commission on Elections would have been disturbed or stalemated if the President of the Philippines had not stepped in and designated an Acting Chairman. There did not seem to be any such problem. In any event, even assuming that difficulty, we do not agree that "only the President (could) act to fill the hiatus," as the Solicitor General maintains. Article IX-A, Section 1, of the Constitution expressly describes all the Constitutional Commissions as "independent." Although essentially executive in nature, they are not under the control of the President of the Philippines in the discharge of their respective functions. Each of these Commissions conducts its own proceedings under the applicable laws and its own rules and in the exercise of its own discretion. Its decisions, orders and rulings are subject only to review on Certiorari by this Court as provided by the Constitution in Article IX-A, Section 7. The choice of a temporary chairman in the absence of the regular chairman comes under that discretion. That discretion cannot be exercised for it, even with its consent, by the President of the Philippines. A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will. No cause need be established to justify its revocation. Assuming its validity, the designation of the respondent as Acting Chairman of the Commission on Elections may be withdrawn by the President of the Philippines at any time and for whatever reason she sees fit. It is doubtful if the respondent, having accepted such designation, will not be estopped from challenging its withdrawal.chanrobles virtual law library It is true, as the Solicitor General points out, that the respondent cannot be removed at will from her permanent position as Associate Commissioner. It is no less true, however, that she can be replaced as Acting Chairman, with or without cause, and thus deprived of the powers and perquisites of that temporary position. The lack of a statutory rule covering the situation at bar is no justification for the President of the Philippines to fill the void by extending the temporary designation in favor of the respondent. This is still a government of laws and not of men. The problem allegedly sought to be corrected, if it existed at all, did not call for presidential action. The situation could have been handled by the members of the Commission on Elections themselves without the participation of the President, however well-meaning.

In the choice of the Acting Chairman, the members of the Commission on Elections would most likely have been guided by the seniority rule as they themselves would have appreciated it. In any event, that choice and the basis thereof were for them and not the President to make. The Court has not the slightest doubt that the President of the Philippines was moved only by the best of motives when she issued the challenged designation. But while conceding her goodwill, we cannot sustain her act because it conflicts with the Constitution. Hence, even as this Court revoked the designation in the Bautista case, so too must it annul the designation in the case at bar. The Constitution provides for many safeguards to the independence of the Commission on Elections, foremost among which is the security of tenure of its members. That guaranty is not available to the respondent as Acting Chairman of the Commission on Elections by designation of the President of the Philippines. WHEREFORE, the designation by the President of the Philippines of respondent Haydee B. Yorac as Acting Chairman of the Commission on Elections is declared UNCONSTITUTIONAL, and the respondent is hereby ordered to desist from serving as such. This is without prejudice to the incumbent Associate Commissioners of the Commission on Elections restoring her to the same position if they so desire, or choosing another member in her place, pending the appointment of a permanent Chairman by the President of the Philippines with the consent of the Commission on Appointments.: rd SO ORDERED. Fernan C . J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Gancayco, Padilla, Bidin, Grio-Aquino, Medialdea and Regalado, JJ., concur. Feliciano, J., is on leave. Sarmiento, J., took no part.

[G.R. No. 142038. September 18, 2000] ROLANDO E. COLUMBRES, petitioner, vs. COMMISSION ON ELECTIONS and HILARIO DE GUZMAN, JR., respondents. DECISION BUENA, J.: This petition for certiorari seeks the nullification of the COMELEC En Banc Resolution dated January 25, 2000 which affirmed the Resolution of the Second Division setting aside the decision of the Regional Trial Court of Dagupan City, Branch 40 in Election Case No. D- 31-98 annulling the election and proclamation of private respondent Hilario de Guzman, Jr. as Mayor of San Jacinto, Pangasinan in the May 11, 1998 elections. Petitioner Rolando Columbres and private respondent Hilario de Guzman, Jr. were candidates for the position of Mayor of San Jacinto, Pangasinan during the May 11, 1998 elections. After canvassing, the Municipal Board of Canvassers proclaimed private respondent with 4,248 votes as against petitioner's 4,104 votes. Subsequently, petitioner filed an election protest with the Regional Trial Court docketed as Election Case No. D-31-98. Petitioner contested 42 precincts and prayed for the revision of ballots in the said precincts. On December 7, 1998, the trial court rendered its decision, declaring petitioner as the duly elected mayor of San Jacinto, Pangasinan with 4,037 votes against 3,302 votes of private respondent. Private respondent appealed the decision to the respondent COMELEC. The case was docketed as COMELEC EAC No. A-20-98 and raffled to the COMELEC Second Division. On October 5, 1999, the Second Division promulgated its Resolution reversing and setting aside the decision rendered by the Regional Trial Court and, instead, affirmed the election and proclamation of private respondent. Private respondent was declared to have won by sixty-nine (69) votes. Petitioner filed a motion for reconsideration with respect to the ruling of the COMELEC Second Division, validating 120 marked ballots in favor of private respondent, despite absence of evidence, to prove that the marks have been placed on the ballots by third persons other than the voters themselves. Petitioner

likewise moved for a reconsideration of the decision with respect to the 111 ballots found by the trial court to have been written by two persons, but not so ruled upon by the Second Division, again in favor of private respondent. Lastly, petitioner claimed that the Second Division erred in totally disregarding his other objections and therefore urged the COMELEC EN BANC to review the findings of the Second Division. On January 25, 2000, the respondent COMELEC En Banc issued its Resolution denying petitioner's motion for reconsideration and affirming the ruling of the Second Division. In resolving petitioner's Motion for Reconsideration, the respondent COMELEC En Banc, in the herein assailed Resolution, said: "xxx Protestant-appellee alleges that there were 124 ballots which were written by two (2) persons, and as such they should all be annulled. Instead, the Commission (Second Division) annulled only 13 ballots while validating 111 ballots in favor of protestee-appellant Hilario de Guzman, Jr. Movant contends that the 13 ballots commonly invalidated by both the COMELEC (Second Division) and the trial court as having been written by two persons were no different from the 111 ballots validated by the Commission (Second Division) but invalidated by the trial court. "x x x x x x xxx

"xxx The finding by the Commission (Second Division) that the 111 questioned ballots were written by the same person is a finding of fact that may not be the subject of a motion for reconsideration. Movant protestant-appellee is not challenging the sufficiency of the evidence in this instance but the appreciation thereof by the Commission (Second Division)."i[1] "xxx Movant protestant-appellee (also) contends that there were 120 ballots erroneously validated by the Commission (Second Division) which were admittedly marked. He argues that whenever ballots contain markings very obvious and visible on their faces, the presumption is that the said markings on the ballots were placed thereat by the voter themselves - thus nullifying the said ballots. Stated otherwise, protestant-appellee argues that the purported markings on the questioned ballots are presumed to have been placed there by the voters themselves and, unless proven otherwise, nullifies the ballots. "We disagree. The movant is relying on an erroneous and misleading presumption. The rule is that no ballot should be discarded as marked unless its character as

such is unmistakable. The distinction should always be between marks that were apparently, carelessly, or innocently made, which do not invalidate the ballot, and marks purposely placed thereon by the voter with a view to possible future identification of the ballot, which invalidate it. (Cacho vs. Abad, 62 Phil. 564). The marks which shall be considered sufficient to invalidate the ballot are those which the voter himself deliberately placed on his ballot for the purpose of identifying it thereafter (Valenzuela vs. Carlos, 42 Phil. 428). In other words, a mark placed on the ballot by a person other than the voter himself does not invalidate the ballot as marked. (Tajanlangit vs. Cazenas, 5 SCRA 567)"ii[2] Hence, the present petition. Petitioner raises two issues: 1. Whether or not, the findings of fact of the COMELEC Division, especially so in matters of appreciation of ballots, is absolute and cannot be the subject of a Motion for Reconsideration before the COMELEC En Banc; and 2. Whether or not, in appreciation of ballots, when a ballot is found to be marked, absent any evidence aliunde, there is the presumption that the markings were placed by a third person, and therefore, should not invalidate the ballot. On the first issue, indeed, the COMELEC erred when it declared that "xxx it is emphatic that the grounds of motion for reconsideration should consist of insufficiency of evidence to justify the decision, order or ruling; or that the said decision, order or ruling is contrary to law. Nowhere in the provision can finding of fact be the subject of motion for reconsideration. The finding by the Commission (Second Division) that the 111 questioned ballots were written by the same person is a finding of fact that may not be the subject of a motion for reconsideration. Movant protestant-appellee is not challenging the sufficiency of the evidence in this instance but the appreciation thereof by the Commission (Second Division)."iii[3] Section 1, Rule 19 of the COMELEC Rules of Procedure reads: "Section 1. Grounds of Motion for Reconsideration. - A motion for reconsideration may be filed on the grounds that the evidence is insufficient to justify the decision, order or ruling; or that the said decision, order or ruling is contrary to law." Commissioner Dy-Liaco, in her Dissenting Opinion, correctly opined, and we quote:

"I dissent in part from the majority conclusion that finding of facts on the one hundred eleven (111) questioned ballots cannot be the subject of a motion for reconsideration considering that the movant protestant/appellee 'is not challenging the sufficiency of evidence in this instance but the appreciation thereof by the Commission (Second Division).' Protestant/Appellee in his discussion of his motion for reconsideration (p. 205 of the records of the case/ p. 24 of the MR pleading) imploring the Commission En Banc to review, re-examine and re-inspect the 111 ballots where the Trial Court and the Division disagreed and make its own final findings and determination, in effect disputes the ruling of the Second Division implying that the appreciation is contrary to law. Rule 19, Sec. 1 of the COMELEC Rules of Procedure enumerates the grounds that may be raised in motions for reconsideration and one of which is that the decision, order or ruling is contrary to law. Insufficiency of evidence to justify the decision, order, or ruling is not the only ground for the filing of motions for reconsideration. xxx "When protestant/appellee argued that the appreciation of the Division is erroneous, there is the implication that such finding or ruling is contrary to law and thus, may be a proper subject of a motion for reconsideration." To determine the winning candidate, the application of election law and jurisprudence in appreciating the contested ballots, is essential. Any question on the appreciation of the ballots would directly affect the sufficiency of the evidence supporting the declared winner. As the Solicitor General submits in his comment on the petition, any question on the sufficiency of the evidence supporting the assailed decision, order or ruling of a COMELEC Division is also a proper subject of a motion for reconsideration before the COMELEC en banc. Moreover, the opposing conclusions of the trial court and the COMELEC Second Division should have prompted the COMELEC en banc to undertake an independent appreciation of the contested ballots to see for itself which of the conflicting rulings is valid and should be upheld. Be that as it may, it is our considered opinion, and we rule, that the COMELEC en banc gravely abused its discretion in declaring that the COMELEC Division's findings on the contested ballots are findings of facts "that may not be the subject of a motion for reconsideration". On the second issue, petitioner argues that the findings, both by the trial court as well as the COMELEC's Second Division, are similar - that said 120 ballots (Exhs "R," "R-1" and series) indeed, had markings but the trial court and the COMELEC Second Division differed in their conclusion. The trial court nullified the ballots

(supposedly in favor of herein private respondent) for being admittedly marked. On the other hand, the Second Division declared the ballots valid because the marks were allegedly placed by third person/s, purposely to invalidate the ballots. Petitioner alleges that respondent COMELEC en banc gravely abused its discretion in presuming that the markings found on the ballots have been made by third persons, absent concrete evidence showing that they were placed by the voters themselves. Petitioner is correct that there is no such presumption in law. Instead, the legal presumption is that the sanctity of the ballot has been protected and preserved. Where the ballot, however, shows distinct and marked dissimilarities in the writing of the names of some candidates from the rest, the ballot is void for having been written by two hands.iv[4] A ballot appearing to have been written by two persons is presumed to have been cast "as is" during the voting, and this presumption can only be overcome by showing that the ballot was tampered with after it was deposited in the ballot box.v[5] If the COMELEC Second Division found markings in the contested 111 ballots that were placed by persons other than the voters themselves, then it should not have validated them. To rule the way it did, would require a showing that the integrity of ballots has not been violated. Otherwise, the presumption that they were placed "as is" in the ballot box stands. In his Comment, the Solicitor General raised the following significant questions: "In the absence of showing that the ballot boxes were violated and that somebody else had access to the ballots, how was the COMELEC able to conclude that indeed said marks were placed by persons other than the voters?" Indeed, the poll body is mum on how third persons were able to access the questioned ballots. Furthermore, the COMELEC Second Division neither made a categorical finding as to whether the different markings on the ballots were deliberately placed so as to sufficiently identify them or not. Yet, the COMELEC en banc simplistically concluded that there was "nothing left for xxx [it] but to affirm the VALIDITY of the questioned 120 ballots in favor of protestee-appellant Hilario de Guzman, Jr." In view of the foregoing circumstances, it appears that the COMELEC en banc was remiss in its duties to properly resolve the Motion for Reconsideration before it. It should have given a close scrutiny of the questioned ballots and determined for itself their validity, i.e., whether they were marked ballots or not. There is truly a need to actually examine the questioned ballots in order to ascertain the real nature of the alleged markings thereon. One has to see the writings to be able to

determine whether they were written by different persons, and whether they were intended to identify the ballot. WHEREFORE, the case is hereby remanded to the COMELEC en banc for it to physically re-examine the contested ballots and ascertain their validity. It is further directed to resolve this case within thirty (30) days from receipt of this decision in view of the proximity of the next elections. This decision is immediately executory. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Gonzaga-Reyes, and De Leon, Jr., JJ., concur. Ynares-Santiago, J., on leave.

[G.R. No. 139853. September 5, 2000] FERDINAND THOMAS M. SOLLER, petitioner, vs. COMMISSION ON ELECTIONS, REGIONAL TRIAL COURT OF PINAMALAYAN, ORIENTAL MINDORO (Branch 42) and ANGEL M. SAULONG, respondents. RESOLUTION QUISUMBING, J.: This special civil action for certiorari seeks to annul the resolution promulgated on August 31, 1999, in COMELEC special relief case SPR No. 10-99. The resolution dismissed petitioner's petition to set aside the orders of the Regional Trial Court of Pinamalayan, Oriental Mindoro, dated October 1, 1998 and February 1, 1999, which denied petitioner's motion to dismiss the election protest filed by private respondent against petitioner and the motion for reconsideration, respectively. Petitioner and private respondent were both candidates for mayor of the municipality of Bansud, Oriental Mindoro in the May 11, 1998 elections. On May 14, 1998, the municipal board of canvassers proclaimed petitioner Ferdinand Thomas Soller duly elected mayor. On May 19, 1998, private respondent Angel Saulong filed with the COMELEC a "petition for annulment of the proclamation/exclusion of election return".i[1] On May 25, 1998, private respondent filed with the Regional Trial Court of Pinamalayan, Oriental Mindoro, an election protest against petitioner docketed as EC-31-98. On June 15, 1998, petitioner filed his answer with counter-protest. Petitioner also moved to dismiss private respondent's protest on the ground of lack of jurisdiction, forum-shopping, and failure to state cause of action.i[2] On July 3, 1998, COMELEC dismissed the pre-proclamation case filed by private respondent. On October 1, 1998, the trial court denied petitioner's motion to dismiss. Petitioner moved for reconsideration but said motion was denied. Petitioner then filed with the COMELEC a petition for certiorari contending that respondent RTC acted without or in excess of jurisdiction or with grave abuse of discretion in not dismissing private respondent's election protest.

On August 31, 1999, the COMELEC en banc dismissed petitioner's suit. The election tribunal held that private respondent paid the required filing fee. It also declared that the defect in the verification is a mere technical defect which should not bar the determination of the merits of the case. The election tribunal stated that there was no forum shopping to speak of. Under the COMELEC Rules of Procedure, a motion for reconsideration of its en banc ruling is prohibited except in a case involving an election offense.i[3] Since the present controversy involves no election offense, reconsideration is not possible and petitioner has no appeal or any plain, speedy and adequate remedy in the ordinary course of law. Accordingly, petitioner properly filed the instant petition for certiorari with this Court. On September 21, 1999, we required the parties to maintain the status quo ante prevailing as of September 17, 1999, the date of filing of this petition. Before us, petitioner asserts that the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction: [I] ... IN AFFIRMING RESPONDENT RTC'S REFUSAL TO DISMISS PRIVATE RESPONDENT'S ELECTION PROTEST DESPITE HIS (sic) LACK OF JURISDICTION OVER THE SAME BY REASON OF THE FAILURE OF THE PRIVATE RESPONDENT TO PAY ALL THE REQUISITE FILING FEES. [II] ... IN AFFIRMING RESPONDENT'S RTC'S REFUSAL TO DISMISS PRIVATE RESPONDENT'S ELECTION PROTEST DESPITE THE INSUFFICIENCY OF HIS PETITION IN FORM AND SUBSTANCE AND ITS FAILURE TO STATE A CAUSE OF ACTION. [III] ...IN AFFIRMING RESPONDENT RTC'S REFUSAL TO DISMISS THE ELECTION PROTEST BELOW ON THE GROUNDS OF FORUM-SHOPPING AND FAILURE TO COMPLY WITH THE SUPREME COURT CIRCULAR REQUIRING A TRUTHFUL CERTIFICATION OF NON-FORUM SHOPPING DESPITE INCONTROVERTIBLE EVIDENCE THEREOF.i[4]

In our view, notwithstanding petitioner's formulation of issues, the principal question presented for our resolution is whether or not public respondent COMELEC gravely abused its discretion amounting to lack or excess of jurisdiction in not ordering the dismissal of private respondent's election protest. At the outset, even if not squarely raised as an issue, this Court needs to resolve the question concerning COMELEC's jurisdiction. Unless properly resolved, we cannot proceed further in this case. Section 3, Subdivision C of Article IX of the Constitution reads: "The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite the disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decision shall be decided by the Commission en banc." Thus, in Sarmiento vs. COMELECi[5] and in subsequent cases,i[6] we ruled that the COMELEC, sitting en banc, does not have the requisite authority to hear and decide election cases including pre-proclamation controversies in the first instance. This power pertains to the divisions of the Commission. Any decision by the Commission en banc as regards election cases decided by it in the first instance is null and void. As can be gleaned from the proceedings aforestated, petitioner's petition with the COMELEC was not referred to a division of that Commission but was, instead, submitted directly to the Commission en banc. The petition for certiorari assails the trial court's order denying the motion to dismiss private respondent's election protest. The questioned order of the trial court is interlocutory because it does not end the trial court's task of adjudicating the parties' contentions and determining their rights and liabilities as regards each other.i[7] In our view, the authority to resolve petition for certiorari involving incidental issues of election protest, like the questioned order of the trial court, falls within the division of the COMELEC and not on the COMELEC en banc. Note that the order denying the motion to dismiss is but an incident of the election protest. If the principal case, once decided on the merits, is cognizable on appeal by a division of the COMELEC, then, there is no reason why petitions for certiorari relating to incidents of election protest should not be referred first to a division of the COMELEC for resolution. Clearly, the COMELEC en banc acted without jurisdiction in taking cognizance of petitioner's petition in the first instance.

Since public respondent COMELEC had acted without jurisdiction in this case, the petition herein is without doubt meritorious and has to be granted. But in order to write finis to the controversy at bar, we are constrained to also resolve the issues raised by petitioner, seriatim. Petitioner contends that private respondent's protest should have been dismissed outright as the latter failed to pay the amount of P300.00 filing fee required under the COMELEC rules.i[8] Petitioner's contention is supported by Section 9, Rule 35 of the COMELEC Rules of Procedurei[9] and corresponding receiptsi[10] itemized as follows: P368.00 - Filing fee in EC 31-98, O.R. 7023752; P 32.00 - Filing fee in EC 31-98, O.R. 7022478; P 46.00 - Summons fee in EC 31-98, O.R. 7023752; P 4.00 - Summons fee in EC 31-98, O.R. 4167602; P 10.00 -- Legal Research Fund fee, O.R. 2595144, and; P 5.00 -- Victim Compensation Fund, O.R. 4167979 ----------P465.00 Close scrutiny of the receipts will show that private respondent failed to pay the filing fee of P300.00 for his protest as prescribed by the COMELEC rules. The amount of P368.00 for which OR 7023752 was issued for the Judiciary Development Fund as shown by the entries in the cash book of the clerk of court.i[11] Thus, only P32.00 with OR 7022478 credited to the general fund could be considered as filing fee paid by private respondent for his protest. A court acquires jurisdiction over any case only upon the payment of the prescribed docket fee.i[12] Patently, the trial court did not acquire jurisdiction over private respondent's election protest. Therefore, COMELEC gravely erred in not ordering the dismissal of private respondent's protest case.

We have in a string of casesi[13] had the occasion to rule on this matter. In Loyola vs. COMELEC, the clerk of court assessed private respondent therein the incorrect filing fee of P32.00 at the time of filing of the election protest. Upon filing his counter-protest, petitioner was assessed to pay the same amount. Subsequently, the trial court remedied the situation by directing the parties to pay the balance of P268.00. On review, we held that the lapse was not at all attributable to private respondent and there was substantial compliance with the filing fee requirement. The error lies in the Clerk's misapplication and confusion regarding application of Section 9 of Rule 35 of the COMELEC Rules of Procedure and this Court's resolution dated September 4, 1990 amending Rule 141 of the Rules of Court. An election protest falls within the exclusive original jurisdiction of the Regional Trial Court, in which case the Rules of Court will apply, and that the COMELEC Rules of Procedure is primarily intended to govern election cases before that tribunal. But the Court declared that this decision must not provide relief to parties in future cases involving inadequate payment of filing fees in election cases. Our decisions in Pahilan and Gatchalian bar any claim of good faith, excusable negligence or mistake in any failure to pay the full amount of filing fees in election cases. In Miranda vs. Castillo, private respondents each paid per assessment the amount of P465.00 as filing fees. Of this amount, P414.00 was allocated for the JDF, P 10.00 for legal research fund, P5.00 for victim compensation fee, and only the amount of P32.00 was regarded as filing fee. The Court considered the amount as partial payment of the P300.00 filing fee under the COMELEC rules and required payment of the deficiency in the amount of P268.00. But then again, the Court reiterated the caveat that in view of Pahilan, Gatchalian, and Loyola cases we would no longer tolerate any mistake in the payment of the full amount of filing fees for election cases filed after the promulgation of the Loyola decision on March 27, 1997. Clearly then, errors in the payment of filing fees in election cases is no longer excusable. And the dismissal of the present case for that reason is, in our view, called for. Besides, there is another reason to dismiss private respondent's election protest. We note that the verification of aforesaid protest is defective. In the verification, private respondent merely stated that he caused the preparation of his petition and he has read and understood all the allegations therein.i[14] Certainly, this is insufficient as private respondent failed to state that the contents of his election protest are true and correct of his persoral knowledge.i[15] Since the petition lacks

proper verification, it should be treated as an unsigned pleading and must be dismissed.i[16] Further, we find that private respondent did not comply with the required certification against forum shopping. Private respondent successively filed a "petition for annulment of the proclamation/exclusion of election return" and an election protest. Yet, he did not disclose in his election protest that he earlier filed a petition for annulment of proclamation/exclusion of election returns. It could be argued that private respondent's petition for annulment of proclamation/exclusion of election returns was a pre-proclamation case. The issues raised in that petition pertain to the preparation and appreciation of election returns and the proceedings of the municipal board of canvassers. But note that such petition was filed after the proclamation of petitioner as the winning candidate, thus, the petition was no longer viable, for pre-proclamation controversies may no longer be entertained by the COMELEC after the winning candidates have been proclaimed. It might even be claimed with some reason that private respondent, by resorting to the wrong remedy, abandoned his pre-proclamation case earlier filed.i[17] Nonetheless, private respondent's belief that he no longer had a pending case before the COMELEC because he deemed it abandoned upon filing of his protest is not a valid reason for non-disclosure of the pendency of said pre-proclamation case. Note that the COMELEC dismissed private respondent's pre-proclamation case only on July 3, 1998. Before the dismissal, said case was legally still pending resolution. Similarly, the fact that private respondent's protest was not based on the same cause of action as his pre-proclamation case is not a valid excuse for not complying with the required disclosure in the certification against forum shopping. The requirement to file a certificate of non-forum shopping is mandatory. Failure to comply with this requirement cannot be excused by the fact that a party is not guilty of forum shopping. The rule applies to any complaint, petition, application or other initiatory pleading, regardless of whether the party filing it has actually committed forum shopping. Every party filing any initiatory pleading is required to swear under oath that he has not and will not commit forum shopping. Otherwise we would have an absurd situation, as in this case, where the parties themselves would be the judge of whether their actions constitute a violation of the rule, and compliance therewith would depend on their belief that they might or might not have violated the requirement. Such interpretation of the requirement would defeat the very purpose of the rule.i[18]

Taking into account all the foregoing circumstances in this case, we are persuaded that respondent Regional Trial Court erred and committed grave abuse of discretion in failing to dismiss private respondent's election protest against petitioner. And to reiterate, respondent COMELEC en banc had no jurisdiction to affirm the refusal of respondent trial court to dismiss private respondent's election protest. WHEREFORE, the instant petition is GRANTED. The assailed RESOLUTION of public respondent COMELEC is hereby ANNULLED AND SET ASIDE. The temporary restraining order issued by this Court on September 21, 1999, is made permanent. The Regional Trial Court of Pinamalayan, Oriental Mindoro, Branch 42, is hereby ordered to DISMISS election protest EC No. 31-98. Costs against private respondent. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Purisima, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur. Pardo, J., no part.

[G.R. No. 143398. October 25, 2000]

RUPERTO A. AMBIL, JR., petitioner, vs. THE COMMISSION ON ELECTIONS (FIRST DIVISION, FORMERLY SECOND DIVISION) and JOSE T. RAMIREZ, respondents. DECISION PARDO, J.: The case before the Court is a special civil action for certiorari and prohibition with preliminary injunction or temporary restraining order seeking to nullify the order dated June 15, 2000 of the Commission on Elections (Comelec), First Division,i[1] giving notice to the parties of the promulgation of the resolution on the case entitled Jose T. Ramirez, Protestee, versus Ruperto A. Ambil, Jr., Election Protest Case No. 98-29, on June 20, 2000, at 2:00 in the afternoon and to prohibit the respondent Commission on Election from promulgating the so called Guiani ponencia.i[2] The facts are as follows: Petitioner Ruperto A. Ambil, Jr. and respondent Jose T. Ramirez were candidates for the position of Governor, Eastern Samar, during the May 11, 1998 elections.i[3] On May 16, 1998, the Provincial Board of Canvassers proclaimed Ruperto A. Ambil, Jr. as the duly elected Governor, Eastern Samar, having obtained 46,547 votes, the highest number of votes in the election returns. On June 4, 1998, respondent Ramirez who obtained 45,934 votes, the second highest number of votes, filed with the Comelec, an election protesti[4] challenging the results in a total of 201 precincts.i[5] The case was assigned to the First Division (formerly Second), Commission on Elections.i[6] On January 27, 2000, Commissioner Japal M. Guiani prepared and signed a proposed resolution in the case. To such proposed ponencia, Commissioner Julio F. Desamito dissented. Commissioner Luzviminda G. Tancangco at first did not indicate her vote but said that she would wish to see both positions, if any, to make her (my) final decision.i[7] In the meantime, on February 15, 2000, Commissioner Guiani retired from the service. On March 3, 2000, the President of the Philippines appointed

Commissioner Rufino S. Javier to the seat vacated by Commissioner Guiani. Commissioner Javier assumed office on April 4, 2000. On or about February 24, 2000, petitioner Ambil and respondent Ramirez received a purported resolution promulgated on February 14, 2000, signed by Commissioner Guiani and Tancangco, with Commissioner Desamito dissenting. The result was in favor of respondent Ramirez who was declared winner by a margin of 1,176 votes.i[8] On February 28, 2000, the Comelec, First Division, declared that the thirteen-page resolution is a useless scrap of paper which should be ignored by the parties in this case there being no promulgation of the Resolution in the instant case. i[9] On March 31, 2000, the Comelec, First Division, issued an order setting the promulgation of the resolution in the case (EPC Case No. 98-29) on April 6, 2000, at 2:00 in the afternoon.i[10] However, on April 6, 2000, petitioner Ambil filed a motion to cancel promulgation challenging the validity of the purported Guiani resolution. The Comelec, First Division, acting on the motion, on the same date, postponed the promulgation until this matter is resolved.i[11] On June 14, 2000, two members of the First Division, namely, Commissioners Luzviminda G. Tancangco and Rufino S. Javier, sent a joint memorandum to Commissioner Julio F. Desamito, presiding Commissioner, stating: Pursuant to your recommendation in your April 18, 2000 Memorandum to the Commission En Banc that this case be submitted for a reconsultation by the members of the First Division, it is our position that we promulgate as soon as possible the Guiani Resolution of the case. This is notwithstanding the Jamil vs. Comelec (283 SCRA 349), Solidbank vs. IAC (G. R. No. 73777) and other doctrinal cases on the issue. After all, this Commission stood pat on its policy that what is controlling is the date the ponente signed the questioned Resolution as what we did in promulgating the case of Dumayas vs. Bernal (SPC 98-137). In view of the foregoing, we recommend that we proceed with the promulgation of the subject resolution and let the aggrieved party challenge it through a Motion for Reconsideration before the Commission en banc or through a certiorari case before the Supreme Court.i[12] On June 15, 2000, the Comelec, First Division, through Commissioner Julio F. Desamito, issued an order setting the promulgation of the resolution in the case on June 20, 2000, at 2:00 oclock in the afternoon.i[13]

Without waiting for the promulgation of the resolution, on June 19, 2000, petitioner interposed the instant petition.i[14] Petitioner Ambil seeks to annul the order dated June 15, 2000 setting the promulgation of the resolution of the case (EPC Case No. 98-29) on June 20, 2000 at 2:00 in the afternoon, and prohibiting the Comelec, First Division, from promulgating the purported Guiani resolution and directing the Comelec, First Division, to deliberate anew on the case and to promulgate the resolution reached in the case after such deliberation.i[15] On June 20, 2000, we issued a temporary restraining order enjoining respondent Comelec from implementing the June 15, 2000 order for the promulgation of the resolution set on June 20, 2000 at 2:00 in the afternoon. At the same time, the Court directed the respondents to comment on the petition within ten (10) days from notice. i[16] On July 10, 2000, respondent Ramirez filed his comment.i[17] Respondent Ramirez admitted that the proposed resolution of Commissioner Guiani was no longer valid after his retirement on February 15, 2000.i[18] He submitted that Comelec, First Division, its membership still constituting a majority, must elevate the protest case to the Comelec en banc until resolved with finality.i[19] In his comment filed on August 29, 2000, the Solicitor General interposed no objection to the petition.i[20] At issue in this petition is whether Comelec, First Division, in scheduling the promulgation of the resolution in the case (EPC Case No. 98-29) acted without jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction. We find the petition without merit. To begin with, the power of the Supreme Court to review decisions of the Comelec is prescribed in the Constitution, as follows: Section 7. Each commission shall decide by a majority vote of all its members any case or matter brought before it within sixty days from the date of its 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.i[21] [emphasis supplied] We have interpreted this provision to mean final orders, rulings and decisions of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers.i[22] This decision must be a final decision or resolution of the Comelec en banc,i[23] not of a division,i[24] certainly not an interlocutory order of a division.i[25] The Supreme Court has no power to review via certiorari, an interlocutory order or even a final resolution of a Division of the Commission on Elections.i[26] The mode by which a decision, order or ruling of the Comelec en banc may be elevated to the Supreme Court is by the special civil action of certiorari under Rule 65 of the 1964 Revised Rules of Court, now expressly provided in Rule 64, 1997 Rules of Civil Procedure, as amended.i[27] Rule 65, Section 1, 1997 Rules of Civil Procedure, as amended, requires that there be no appeal, or any plain, speedy and adequate remedy in the ordinary course of law. A motion for reconsideration is a plain and adequate remedy provided by law.i[28] Failure to abide by this procedural requirement constitutes a ground for dismissal of the petition.i[29] In like manner, a decision, order or resolution of a division of the Comelec must be reviewed by the Comelec en banc via a motion for reconsideration before the final en banc decision may be brought to the Supreme Court on certiorari. The prerequisite filing of a motion for reconsideration is mandatory.i[30] Article IX-C, Section 3, 1987 Constitution provides as follows: Section 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. [emphasis supplied] Similarly, the Rules of Procedure of the Comelec provide that a decision of a division may be raised to the en banc via a motion for reconsideration.i[31] The case at bar is an election protest involving the position of Governor, Eastern Samar.i[32] It is within the original jurisdiction of the Commission on Elections in division.i[33] Admittedly, petitioner did not ask for a reconsideration of the divisions

resolution or final decision.i[34] In fact, there was really no resolution or decision to speak of i[35] because there was yet no promulgation, which was still scheduled on June 20, 2000 at 2:00 oclock in the afternoon. Petitioner went directly to the Supreme Court from an order of promulgation of the Resolution of this case by the First Division of the Comelec.i[36] Under the existing Constitutional scheme, a party to an election case within the jurisdiction of the Comelec in division can not dispense with the filing of a motion for reconsideration of a decision, resolution or final order of the Division of the Commission on Elections because the case would not reach the Comelec en banc without such motion for reconsideration having been filed and resolved by the Division. The instant case does not fall under any of the recognized exceptions to the rule in certiorari cases dispensing with a motion for reconsideration prior to the filing of a petition.i[37] In truth, the exceptions do not apply to election cases where a motion for reconsideration is mandatory by Constitutional fiat to elevate the case to the Comelec en banc, whose final decision is what is reviewable via certiorari before the Supreme Court.i[38] We are aware of the ruling in Kho v. Commission on Elections,i[39] that in a situation such as this where the Commission on Elections in division committed grave abuse of discretion or acted without or in excess of jurisdiction in issuing interlocutory orders relative to an action pending before it and the controversy did not fall under any of the instances mentioned in Section 2, Rule 3 of the COMELEC Rules of Procedure, the remedy of the aggrieved party is not to refer the controversy to the Commission en banc as this is not permissible under its present rules but to elevate it to this Court via a petition for certiorari under Rule 65 of the Rules of Court. This is the case relied upon by the dissenting justice to support the proposition that resort to the Supreme Court from a resolution of a Comelec Division is allowed.i[40] Unfortunately, the Kho case has no application to the case at bar. The issue therein is, may the Commission on Elections in division admit an answer with counter-protest after the period to file the same has expired?i[41] The Comelec First Division admitted the answer with counter-protest of the respondent. The Supreme Court declared such order void for having been issued with grave abuse of discretion tantamount to lack of jurisdiction.i[42] However, an important moiety in the Kho case was not mentioned in the dissent. It is that the Comelec, First Division, denied the prayer of petitioner for the elevation of the case to en banc because the orders of admission were mere interlocutory

orders.i[43] Hence, the aggrieved party had no choice but to seek recourse in the Supreme Court. Such important fact is not present in the case at bar. We must emphasize that what is questioned here is the order dated June 15, 2000, which is a mere notice of the promulgation of the resolution in EPC Case No. 9829. We quote the order in question in full, to wit: Pursuant to Section 5 of Rule 18 of the COMELEC RULES OF PROCEDURE, and the Joint Memorandum of Commissioners Luzviminda G. Tancangco and Rufino S. Javier to the Presiding Commissioner of the First Division dated 14 June 2000 paragraph 5 of which states: In view of the foregoing, we recommend that we proceed with the promulgation of the subject resolution and let the aggrieved party challenge it through a Motion for Reconsideration before the Commission en banc or through a certiorari case before the Supreme Court. the promulgation of the Resolution in this case is hereby set on Tuesday, June 20, 2000 at 2:00 oclock in the afternoon at the Comelec Session Hall, Intramuros, Manila. No further motion for postponement of the promulgation shall be entertained. The Clerk of the Commission is directed to give the parties, through their Attorneys, notice of this Order through telegram and by registered mail or personal delivery. SO ORDERED. Given this 15th day of June, 2000 in the City of Manila, Philippines. FOR THE DIVISION: [Sgd.] JULIO F. DESAMITO Presiding Commissioneri[44] There is nothing irregular about the order of promulgation of the resolution in the case, except in the mind of suspicious parties. Perhaps what was wrong in the order was the reference to the memorandum of the two commissioners that was not necessary and was a superfluity, or excessus in linguae. All the members of the Division were incumbent Commissioners of the Commission on Elections

(COMELEC) and had authority to decide the case in the Division. What appears to be patently null and void is the so-called Guiani resolution if it is the one to be promulgated. We cannot assume that the Comelec will promulgate a void resolution and violate the Constitution and the law. We must assume that the members of the Commission in Division or en banc are sworn to uphold and will obey the Constitution. Consequently, the Guiani resolution is not at issue in the case at bar. No one knows the contents of the sealed envelope containing the resolution to be promulgated on June 20, 2000, simply because it has not been promulgated! It may be true that the parties received a copy of what purports to be the Guiani resolution,i[45] declaring respondent Jose T. Ramirez the victor in the case. Such Guiani resolution is admitted by the parties and considered by the Commission on Elections as void. The Solicitor General submitted an advice that the same resolution is deemed vacated by the retirement of Commissioner Guiani on February 15, 2000.i[46] It can not be promulgated anymore for all legal intents and purposes. We rule that the so-called Guiani resolution is void for the following reasons: First: A final decision or resolution becomes binding only after it is promulgated and not before. Accordingly, one who is no longer a member of the Commission at the time the final decision or resolution is promulgated cannot validly take part in that resolution or decision.i[47] Much more could he be the ponente of the resolution or decision. The resolution or decision of the Division must be signed by a majority of its members and duly promulgated. Commissioner Guiani might have signed a draft ponencia prior to his retirement from office, but when he vacated his office without the final decision or resolution having been promulgated, his vote was automatically invalidated.i[48] Before that resolution or decision is so signed and promulgated, there is no valid resolution or decision to speak of.i[49] Second: Atty. Zacarias C. Zaragoza, Jr., Clerk of the First Division, Commission on Elections, denied the release or promulgation of the Guiani resolution. He disowned the initials on the face of the first page of the resolution showing its promulgation on February 14, 2000, and said that it was a forgery. There is no record in the Electoral Contests and Adjudication Department (ECAD) of the Commission on Election that a resolution on the main merits of the case was promulgated.i[50]

Third: By an order dated February 28, 2000, the Comelec, First Division, disclaimed the alleged thirteen (13) page resolution for being a useless scrap of paper which should be ignored by the parties there being no promulgation of the resolution in the case.i[51] Fourth: It is unlikely that Commissioner Tancangco affixed her signature on the Guiani resolution. On the date that it was purportedly promulgated, which was February 14, 2000, the Division issued an order where Commissioner Tancangco expressed her reservations and stated that she wished to see both positions, if any, before she made her final decision.i[52] A final decision or resolution of the Comelec, in Division or en banc is promulgated on a date previously fixed, of which notice shall be served in advance upon the parties or their attorneys personally or by registered mail or by telegram.i[53] It is jurisprudentially recognized that at any time before promulgation of a decision or resolution, the ponente may change his mind.i[54] Moreover, in this case, before a final decision or resolution could be promulgated, the ponente retired and a new commissioner appointed. And the incoming commissioner has decided to take part in the resolution of the case. It is presumed that he had taken the position of his predecessor because he co-signed the request for the promulgation of the Guiani resolution.i[55] If petitioner were afraid that what would be promulgated by the Division was the Guiani resolution, a copy of which he received by mail, which, as heretofore stated, was not promulgated and the signature thereon of the clerk of court was a forgery, petitioner could seek reconsideration of such patently void resolution and thereby the case would be elevated to the Commission en banc.i[56] Considering the factual circumstances, we speculated ex mero motu that the Comelec would promulgate a void resolution. The sea of suspicion has no shore, and the court that embarks upon it is without rudder or compass.i[57] We must not speculate that the Comelec would still promulgate a void resolution despite knowledge that it is invalid or void ab initio. Consequently, the filing of the instant petition before this Court was premature. Petitioner failed to exhaust adequate administrative remedies available before the COMELEC.

In a long line of cases, this Court has held consistently that before a party is allowed to seek the intervention of the court, it is a pre-condition that he should have availed of all the means of administrative processes afforded him. Hence, if a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction, then such remedy should be exhausted first before the courts judicial power can be sought. The premature invocation of courts intervention is fatal to ones cause of action.i[58] This is the rule on exhaustion of administrative remedies. A motion for reconsideration then is a pre-requisite to the viability of a special civil action for certiorari, unless the party who avails of the latter can convincingly show that his case falls under any of the following exceptions to the rule: (1) when the question is purely legal, (2) where judicial intervention is urgent, (3) where its application may cause great and irreparable damage, (4) where the controverted acts violate due process, (5) failure of a high government official from whom relief is sought to act on the matter, and seeks when the issue for non-exhaustion of administrative remedies has been rendered moot.i[59] This doctrine of exhaustion of administrative remedies was not without its practical and legal reasons, for one thing, availment of administrative remedy entails lesser expenses and provides for a speedier disposition of controversies. It is no less true to state that the courts of justice for reasons of comity and convenience will shy away from a dispute until the system of administrative redress has been completed and complied with so as to give the administrative agency concerned every opportunity to correct its error and to dispose of the case. However, we are not amiss to reiterate that the principal of exhaustion of administrative remedies as tested by a battery of cases is not an ironclad rule. This doctrine is a relative one and its flexibility is called upon by the peculiarity and uniqueness of the factual and circumstantial settings of a case. Hence, it is disregarded (1) when there is a violation of due process, (2) when the issue involved is purely a legal question, (3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction, (4) when there is estoppel on the part of the administrative agency concerned, (5) when there is irreparable injury, (6) when the respondent is a department secretary whose acts as an alter ego of the president bears the implied and assumed approval of the latter, (7) when to require exhaustion of administrative remedies would be unreasonable, (8) when it would amount to a nullification of a claim, (9) when the subject matter is a private land in land case proceedings, (10) when the rule does not provide a plain, speedy and adequate remedy, and (11) when there are circumstances indicating the urgency of judicial

intervention.i[60] The administrative authorities must be given an opportunity to act and correct the errors committed in the administrative forum.i[61] Only after administrative remedies are exhausted may judicial recourse be allowed.i[62] This case does not fall under any of the exceptions and indeed, as heretofore stated, the exceptions do not apply to an election case within the jurisdiction of the Comelec in Division. Hence, the petition at bar must be dismissed for prematurity. Failure to exhaust administrative remedies is fatal to a party's cause of action and a dismissal based on that ground is tantamount to a dismissal based on lack of cause of action.i[63] WHEREFORE, the Court hereby DISMISSES the petition for prematurity. The Court orders the Commission on Elections, First Division, to resolve with all deliberate dispatch Election Protest Case No. 98-29 and to promulgate its resolution thereon adopted by majority vote within thirty (30) days from notice hereof. The temporary restraining order issued on June 20, 2000, is hereby lifted and dissolved, effective immediately. No costs. SO ORDERED. Bellosillo, Melo, Puno, Vitug, Panganiban, Purisima, Gonzaga-Reyes, and YnaresSantiago, JJ., concur. Davide, Jr., C.J., Mendoza, and Quisumbing, JJ., join the dissent of Mr. Justice De Leon. Kapunan, J., voted for this ponencia during the deliberations on 17 October 2000. Buena, J., no part. De Leon, Jr., J., see dissenting opinion.

G.R. No. 133486 January 28, 2000 ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION ON ELECTIONS, respondent. PANGANIBAN, J.: The holding of exit polls and the dissemination of their results through mass media constitute an essential part of the freedoms of speech and of the press. Hence, the Comelec cannot ban them totally in the guise of promoting clean, honest, orderly and credible elections. Quite the contrary, exit polls properly conducted and publicized can be vital tools in eliminating the evils of election-fixing and fraud. Narrowly tailored countermeasures may be prescribed by the Comelec so as to minimize or suppress the incidental problems in the conduct of exit polls, without transgressing in any manner the fundamental rights of our people. The Case and the Facts Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission on Elections (Comelec) en banc Resolution No. 98-14191 dated April 21, 1998. In the said Resolution, the poll body RESOLVED to approve the issuance of a restraining order to stop ABSCBN or any other groups, its agents or representatives from conducting such exit survey and to authorize the Honorable Chairman to issue the same. The Resolution was issued by the Comelec allegedly upon "information from [a] reliable source that ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct radio-TV coverage of the elections . . . and to make [an] exit survey of the . . . vote during the elections for national officials particularly for President and Vice President, results of which shall be [broadcast] immediately."2 The electoral body believed that such project might conflict with the official Comelec count, as well as the unofficial quick count of the National Movement for Free Elections (Namfrel). It also noted that it had not authorized or deputized Petitioner ABS-CBN to undertake the exit survey. On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner. We directed the Comelec to cease and desist, until further orders, from

implementing the assailed Resolution or the restraining order issued pursuant thereto, if any. In fact, the exit polls were actually conducted and reported by media without any difficulty or problem. The Issues Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with grave abuse of discretion amounting to a lack or excess of jurisdiction when it approved the issuance of a restraining order enjoining the petitioner or any [other group], its agents or representatives from conducting exit polls during the . . . May 11 elections."3 In his Memorandum,4 the solicitor general, in seeking to dismiss the Petition, brings up additional issues: (1) mootness and (2) prematurity, because of petitioner's failure to seek a reconsideration of the assailed Comelec Resolution. The Court's Ruling The Petition5 is meritorious. Procedural Issues: Mootness and Prematurity The solicitor general contends that the petition is moot and academic, because the May 11, 1998 election has already been held and done with. Allegedly, there is no longer any actual controversy before us. The issue is not totally moot. While the assailed Resolution referred specifically to the May 11, 1998 election, its implications on the people's fundamental freedom of expression transcend the past election. The holding of periodic elections is a basic feature of our democratic government. By its very nature, exit polling is tied up with elections. To set aside the resolution of the issue now will only postpone a task that could well crop up again in future elections.6 In any event, in Salonga v. Cruz Pao, the Court had occasion to reiterate that it "also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees."7 Since the

fundamental freedoms of speech and of the press are being invoked here, we have resolved to settle, for the guidance of posterity, whether they likewise protect the holding of exit polls and the dissemination of data derived therefrom. The solicitor general further contends that the Petition should be dismissed for petitioner's failure to exhaust available remedies before the issuing forum, specifically the filing of a motion for reconsideration. This Court, however, has ruled in the past that this procedural requirement may be glossed over to prevent a miscarriage of justice,8 when the issue involves the principle of social justice or the protection of labor,9 when the decision or resolution sought to be set aside is a nullity,10 or when the need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available.11 The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998, only twenty (20) days before the election itself. Besides, the petitioner got hold of a copy thereof only on May 4, 1998. Under the circumstances, there was hardly enough opportunity to move for a reconsideration and to obtain a swift resolution in time or the May 11, 1998 elections. Moreover, not only is time of the essence; the Petition involves transcendental constitutional issues. Direct resort to this Court through a special civil action for certiorari is therefore justified. Main Issue: Validity of Conducting Exit Polls An exit poll is a species of electoral survey conducted by qualified individuals or groups of individuals for the purpose of determining the probable result of an election by confidentially asking randomly selected voters whom they have voted for, immediately after they have officially cast their ballots. The results of the survey are announced to the public, usually through the mass media, to give an advance overview of how, in the opinion of the polling individuals or organizations, the electorate voted. In our electoral history, exit polls had not been resorted to until the recent May 11, 1998 elections. In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member of the mass media, committed to report balanced election-related data, including "the exclusive results of Social Weather Station (SWS) surveys conducted in fifteen administrative regions."

It argues that the holding of exit polls and the nationwide reporting their results are valid exercises of the freedoms of speech and of the press. It submits that, in precipitately and unqualifiedly restraining the holding and the reporting of exit polls, the Comelec gravely abused its discretion and grossly violated the petitioner's constitutional rights. Public respondent, on the other hand, vehemently denies that, in issuing the assailed Resolution, it gravely abused its discretion. It insists that the issuance thereof was "pursuant to its constitutional and statutory powers to promote a clean, honest, orderly and credible May 11, 1998 elections"; and "to protect, preserve and maintain the secrecy and sanctity of the ballot." It contends that "the conduct of exit surveys might unduly confuse and influence the voters," and that the surveys were designed "to condition the minds of people and cause confusion as to who are the winners and the [losers] in the election," which in turn may result in "violence and anarchy." Public respondent further argues that "exit surveys indirectly violate the constitutional principle to preserve the sanctity of the ballots," as the "voters are lured to reveal the contents of ballots," in violation of Section 2, Article V of the Constitution;12 and relevant provisions of the Omnibus Election Code.13 It submits that the constitutionally protected freedoms invoked by petitioner "are not immune to regulation by the State in the legitimate exercise of its police power," such as in the present case. The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear and present danger of destroying the credibility and integrity of the electoral process," considering that they are not supervised by any government agency and can in general be manipulated easily. He insists that these polls would sow confusion among the voters and would undermine the official tabulation of votes conducted by the Commission, as well as the quick count undertaken by the Namfrel. Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus be more narrowly defined: May the Comelec, in the exercise of its powers, totally ban exit polls? In answering this question, we need to review quickly our jurisprudence on the freedoms of speech and of the press. Nature and Scope of Freedoms of Speech and of the Press

The freedom of expression is a fundamental principle of our democratic government. It "is a 'preferred' right and, therefore, stands on a higher level than substantive economic or other liberties. . . . [T]his must be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom."14 Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech or of the press.15 In the landmark case Gonzales v. Comelec,16 this Court enunciated that at the very least, free speech and a free press consist of the liberty to discuss publicly and truthfully any matter of public interest without prior restraint. The freedom of expression is a means of assuring individual self-fulfillment, of attaining the truth, of securing participation by the people in social and political decision-making, and of maintaining the balance between stability and change.17 It represents a profound commitment to the principle that debates on public issues should be uninhibited, robust, and wide open.18 It means more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, or to take refuge in the existing climate of opinion on any of public consequence. And paraphrasing the eminent Justice Oliver Wendell Holmes,19 we stress that the freedom encompasses the thought we hate, no less than the thought we agree with. Limitations The realities of life in a complex society, however, preclude an absolute exercise of the freedoms of speech and of the press. Such freedoms could not remain unfettered and unrestrained at all times and under all circumstances.20 They are not immune to regulation by the State in the exercise of its police power.21 While the liberty to think is absolute, the power to express such thought in words and deeds has limitations. In Cabansag v. Fernandez22 this Court had occasion to discuss two theoretical test in determining the validity of restrictions to such freedoms, as follows: These are the "clear and present danger" rule and the "dangerous tendency" rule. The first, as interpreted in a number of cases, means that the evil consequence of the comment or utterance must be "extremely serious and the degree of imminence extremely high" before the utterance

can be punished. The danger to be guarded against is the "substantive evil" sought to be prevented. . . .23 The "dangerous tendency" rule, on the other hand, . . . may be epitomized as follows: if the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent.24 Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its earlier decisions in Primicias v. Fugoso25 and American Bible Society v. City of Manila;26 as well as in later ones, Vera v. Arca,27 Navarro v. Villegas,28 Imbong v. Ferrer,29 Blo Umpar Adiong v. Comelec30 and, more recently, in Iglesia ni Cristo v. MTRCB.31 In setting the standard or test for the "clear and present danger" doctrine, the Court echoed the words of Justice Holmes: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree."32 A limitation on the freedom of expression may be justified only by a danger of such substantive character that the state has a right to prevent. Unlike in the "dangerous tendency" doctrine, the danger must not only be clear but also present. "Present" refers to the time element; the danger must not only be probable but very likely to be inevitable.33 The evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a restraint of a writing instrument.34 Justification for a Restriction Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction is treated an exemption. The power to exercise prior restraint is not to be presumed; rather the presumption is against its validity.35 And it is respondent's burden to overthrow such presumption. Any act that restrains speech should be greeted with furrowed brows,36 so it has been said.

To justify a restriction, the promotion of a substantial government interest must be clearly shown.37 Thus: A government regulation is sufficiently justified if it is within the constitutional power of the government, if it furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.38 Hence, even though the government's purposes are legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental personal liberties, when the end can be more narrowly achieved.39 The freedoms of speech and of the press should all the more be upheld when what is sought to be curtailed is the dissemination of information meant. to add meaning to the equally vital right of suffrage.40 We cannot support any ruling or order "the effect of which would be to nullify so vital a constitutional right as free speech."41 When faced with borderline situations in which the freedom of a candidate or a party to speak or the freedom of the electorate to know is invoked against actions allegedly made to assure clean and free elections, this Court shall lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State's power to regulate should not be antagonistic. There can be no free and honest elections if, in the efforts to maintain them, the freedom to speak and the right to know are unduly curtailed.42 True, the government has a stake in protecting the fundamental right to vote by providing voting places that are safe and accessible. It has the duty to secure the secrecy of the ballot and to preserve the sanctity and the integrity of the electoral process. However, in order to justify a restriction of the people's freedoms of speech and of the press, the state's responsibility of ensuring orderly voting must far outweigh them. These freedoms have additional importance, because exit polls generate important research data which may be used to study influencing factors and trends in voting behavior. An absolute prohibition would thus be unreasonably restrictive, because it effectively prevents the use of exit poll data not only for election-day projections, but also for long-term research.43 Comelec Ban on Exit Polling

In the case at bar, the Comelec justifies its assailed Resolution as having been issued pursuant to its constitutional mandate to ensure a free, orderly, honest, credible and peaceful election. While admitting that "the conduct of an exit poll and the broadcast of the results thereof [are] . . . an exercise of press freedom," it argues that "[p]ress freedom may be curtailed if the exercise thereof creates a clear and present danger to the community or it has a dangerous tendency." It then contends that "an exit poll has the tendency to sow confusion considering the randomness of selecting interviewees, which further make[s] the exit poll highly unreliable. The probability that the results of such exit poll may not be in harmony with the official count made by the Comelec . . . is ever present. In other words, the exit poll has a clear and present danger of destroying the credibility and integrity of the electoral process." Such arguments are purely speculative and clearly untenable. First, by the very nature of a survey, the interviewees or participants are selected at random, so that the results will as much as possible be representative or reflective of the general sentiment or view of the community or group polled. Second, the survey result is not meant to replace or be at par with the official Comelec count. It consists merely of the opinion of the polling group as to who the electorate in general has probably voted for, based on the limited data gathered from polled individuals. Finally, not at stake here are the credibility and the integrity of the elections, which are exercises that are separate and independent from the exit polls. The holding and the reporting of the results of exit polls cannot undermine those of the elections, since the former is only part of the latter. If at all, the outcome of one can only be indicative of the other. The Comelec's concern with the possible noncommunicative effect of exit polls disorder and confusion in the voting centers does not justify a total ban on them. Undoubtedly, the assailed Comelec Resolution is too broad, since its application is without qualification as to whether the polling is disruptive or not.44 Concededly, the Omnibus Election Code prohibits disruptive behavior around the voting centers.45 There is no showing, however, that exit polls or the means to interview voters cause chaos in voting centers. Neither has any evidence been presented proving that the presence of exit poll reporters near an election precinct tends to create disorder or confuse the voters. Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any purpose. The valuable information and ideas that could be derived from them, based on the voters' answer to the survey questions will forever remain unknown and unexplored. Unless the ban is restrained, candidates, researchers,

social scientists and the electorate in general would be deprived of studies on the impact of current events and of election-day and other factors on voters' choices.1wphi1.nt In Daily Herald Co. v. Munro,46 the US Supreme Court held that a statute, one of the purposes of which was to prevent the broadcasting of early returns, was unconstitutional because such purpose was impermissible, and the statute was neither narrowly tailored to advance a state interest nor the least restrictive alternative. Furthermore, the general interest of the State in insulating voters from outside influences is insufficient to justify speech regulation. Just as curtailing election-day broadcasts and newspaper editorials for the reason that they might indirectly affect the voters' choices is impermissible, so is impermissible, so is regulating speech via an exit poll restriction.47 The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open any alternative channel of communication to gather the type of information obtained through exit polling. On the other hand, there are other valid and reasonable ways and means to achieve the Comelec end of avoiding or minimizing disorder and confusion that may be brought about by exit surveys. For instance, a specific limited area for conducting exit polls may be designated. Only professional survey groups may be allowed to conduct the same. Pollsters may be kept at a reasonable distance from the voting center. They may be required to explain to voters that the latter may refuse interviewed, and that the interview is not part of the official balloting process. The pollsters may further be required to wear distinctive clothing that would show they are not election officials.48 Additionally, they may be required to undertake an information campaign on the nature of the exercise and the results to be obtained therefrom. These measures, together with a general prohibition of disruptive behavior, could ensure a clean, safe and orderly election. For its part, petitioner ABS-CBN explains its survey methodology as follows: (1) communities are randomly selected in each province; (2) residences to be polled in such communities are also chosen at random; (3) only individuals who have already voted, as shown by the indelible ink on their fingers, are interviewed; (4) the interviewers use no cameras of any sort; (5) the poll results are released to the public only on the day after the elections.49 These precautions, together with the possible measures earlier stated, may be undertaken to abate the Comelec's fear, without consequently and unjustifiably stilling the people's voice.

With the foregoing premises, we conclude that the interest of the state in reducing disruption is outweighed by the drastic abridgment of the constitutionally guaranteed rights of the media and the electorate. Quite the contrary, instead of disrupting elections, exit polls properly conducted and publicized can be vital tools for the holding of honest, orderly, peaceful and credible elections; and for the elimination of election-fixing, fraud and other electoral ills. Violation of Ballot Secrecy The contention of public respondent that exit polls indirectly transgress the sanctity and the secrecy of the ballot is off-tangent to the real issue. Petitioner does not seek access to the ballots cast by the voters. The ballot system of voting is not at issue here. The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification. Thus, voters are prohibited from exhibiting the contents of their official ballots to other persons, from making copies thereof, or from putting distinguishing marks thereon so as to be identified. Also proscribed is finding out the contents of the ballots cast by particular voters or disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is forbidden is the association of voters with their respective votes, for the purpose of assuring that the votes have been cast in accordance with the instructions of a third party. This result cannot, however, be achieved merely through the voters' verbal and confidential disclosure to a pollster of whom they have voted for. In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may also choose not to reveal their identities. Indeed, narrowly tailored countermeasures may be prescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct of exit polls, without transgressing the fundamental rights of our people. WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the Court on May 9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-1419 issued by the Comelec en banc on April 21, 1998 is hereby NULLIFIED and SET ASIDE. No costs. SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Quisumbing, Purisima, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur. Kapunan, J., see dissenting opinion. Vitug, J., please see separate opinion. Melo and Mendoza, JJ., are join the separate opinion of Justice Vitug. Pardo, J., took no part. Separate Opinions KAPUNAN, J., dissenting opinion; I share the view of Justice Jose C. Vitug in his Separate Opinion that the case is technically moot. Since the Comelec has not declared exit polls to be illegal and neither did the petitioner present its methodology or system of conducting the exit polls to the poll body, the nullification of the Comelec's questioned resolution is bereft of empirical basis. The decision of this Court constitutes a mere academic exercise in view of the premature nature of the issues and the lack of "concreteness" of the controversy. I wish however, to express my thoughts on a few material points. The majority opinion cites the general rules that any restrictions to freedom of expression would be burdened with a presumption of invalidity and should be greeted with "furrowed brews."1 While this has been the traditional approach, this rules does not apply where, as in this case, the Comelec exercised its Constitutional functions of securing the secrecy and sanctity of the ballots and ensuring the integrity of the elections. Thus, Mr. Justice Feliciano in National Press (NPC) v. Comelec2 wrote: 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 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 right of free speech and free press. For supervision or regulation of the operations of media enterprises is scarcely conceivable without such accompanying limitation. Thus, the applicable rule is the general, time honored one that a statute is presumed to be constitutional and that the party asserting its unconstitutionality must discharge the burden of clearly and convincingly proving that assertion.3

The NPC decision holds that if the right to free speech collides with a norm of constitutional stature,4 the rule on heavy presumption of invalidity does not apply. Our Constitution mandates the Comelec to enforce and administer laws and regulations relative to the conduct of elections and to secure the secrecy and sanctity of the ballots to ensure orderly, honest, credible and peaceful elections.5 This Constitutional provision effectively displaces the general presumption of invalidity in favor of the presumption that Comelec acted in the exercise of its constitutionally mandated powers. If no presumption of invalidity arises, I see no occasion for the application of the "clear and present danger test." As this Court, through Mr. Justice Mendoza, succinctly observed: . . . the clear-and-present danger test is not, however, a sovereign remedy for all free speech problems. As has been pointed out by a thoughtful student of constitutional law, it was originally formulated for the criminal law and only later appropriated for free speech cases. For the criminal law is necessarily concerned with the line at which innocent preparation ends and guilty conspiracy or attempt begins. Clearly, it is inappropriate as a test for determining the constitutional validity of law which, like 11(b) of R.A. No. 6646, are not concerned with the content of political ads but only with their incidents. To apply the clear-and-present danger test to such regulatory measures would be like using a sledgehammer to drive a nail when a regular hammer is all that is needed.6 On the matter of methodology in conducting polls, petitioner gave assurance that the exit poll results will only be made public a day after the elections, in order to allay fears of "trending," "bandwagon-effect" or disruption. This offers little comfort considering the state of our country's electoral system. Unlike in other countries where voting and counting are computerized, our elections are characterized by snail-paced counting. It is not infrequent that postponement, failure or annulment of elections occur in some areas designated as election hot spots.7 Such being the case, exit poll results made public after the day of voting in the regular elections but before the conduct of special elections in these areas may potentially pose the danger of "trending," "bandwagon-effect" and disruption of elections. In view of the foregoing discussion, I believe the Comelec committed no abuse of discretion in issuing the assailed temporary restraining order stopping petitioner from conducting exit polls. I, therefore, vote to DENY the petition.

Rollo, p. 78 et seq.

VITUG, J., separate opinion; The instant petition, now technically moot, presents issues so significantly that a slights change of circumstances can have a decisive effect on, and possibly spell a difference in, the final outcome of the case. I am not inclined to take the case in an academic fashion and pass upon the views expressed by either party in preemptive judgment. While I understand what the ponencia is saying quite laudably, I also appreciate, upon the other hand, the concern of the Commission on Elections, i.e., that the conduct of exit polls can have some adverse effects on the need to preserve the sanctity of the ballot. The Commission performs an indispensable task of ensuring free, honest, and orderly elections and of guarding against any frustration of the true will of the people. Expectedly, it utilizes all means available within its power and authority to prevent the electoral process from being manipulated and rendered an absurdity. Like my colleagues, I greatly prize the freedom of expression but, so also, I cherish no less the right of the people to express their will by means of the ballot. In any case, I must accept the reality that the right to information and free speech is not illimitable and immune from the valid exercise of an ever demanding and pervasive police power. Whether any kind of restraint should be upheld or declared invalid in the proper balancing of interest is one that must be resolved at any given moment, not on perceived circumstances, but on prevailing facts. Neither of the advocations proffered by the parties in this instance, I believe, should be foreclosed by the Court at this time. I vote, therefore, to dismiss the petition on the foregoing thesis.

Footnotes
1

Rollo, p. 14. Ibid. Words in parentheses in the original; those in brackets supplied. Petition, p. 4.