Sei sulla pagina 1di 55

MCALINTAL VS.

COMELEC
ATTY. ROMULO B. MACALINTAL, petitioner, vs.
COMMISSION ON ELECTIONS, HON. ALBERTO ROMULO,
in his official capacity as Executive Secretary, and
HON. EMILIA T. BONCODIN, Secretary of the
Department of Budget and Management, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for certiorari and
prohibition filed by Romulo B. Macalintal, a member of
the Philippine Bar, seeking a declaration that certain
provisions of Republic Act No. 9189 (The Overseas
Absentee Voting Act of 2003)[1] suffer from
constitutional infirmity. Claiming that he has actual and
material legal interest in the subject matter of this case
in seeing to it that public funds are properly and
lawfully used and appropriated, petitioner filed the
instant petition as a taxpayer and as a lawyer.
The Court upholds the right of petitioner to file the
present petition.
R.A. No. 9189, entitled, An Act Providing for A System
of Overseas Absentee Voting by Qualified Citizens of
the Philippines Abroad, Appropriating Funds Therefor,
and for Other Purposes, appropriates funds under
Section 29 thereof which provides that a supplemental
budget on the General Appropriations Act of the year of
its enactment into law shall provide for the necessary
amount to carry out its provisions. Taxpayers, such as
herein petitioner, have the right to restrain officials
from wasting public funds through the enforcement of
an unconstitutional statute.[2] The Court has held that
they may assail the validity of a law appropriating
public funds[3] because expenditure of public funds by
an officer of the State for the purpose of executing an
unconstitutional act constitutes a misapplication of
such funds.[4]
The challenged provision of law involves a public right
that affects a great number of citizens. The Court has
adopted the policy of taking jurisdiction over cases
whenever the petitioner has seriously and convincingly
presented an issue of transcendental significance to
the Filipino people. This has been explicitly pronounced
in Kapatiran ng mga Naglilingkod sa Pamahalaan ng
Pilipinas, Inc. vs. Tan,[5] where the Court held:
Objections to taxpayers suit for lack of sufficient
personality standing, or interest are, however, in the
main procedural matters. Considering the importance
to the public of the cases at bar, and in keeping with
the Courts duty, under the 1987 Constitution, to
determine whether or not the other branches of
government have kept themselves within the limits of
the Constitution and the laws and that they have not
abused the discretion given to them, the Court has
brushed aside technicalities of procedure and has
taken cognizance of these petitions.[6]
Indeed, in this case, the Court may set aside
procedural rules as the constitutional right of suffrage
of a considerable number of Filipinos is involved.
The question of propriety of the instant petition which
may appear to be visited by the vice of prematurity as
there are no ongoing proceedings in any tribunal,

board or before a government official exercising


judicial, quasi-judicial or ministerial functions as
required by Rule 65 of the Rules of Court, dims in light
of the importance of the constitutional issues raised by
the petitioner. In Taada vs. Angara,[7] the Court held:
In seeking to nullify an act of the Philippine Senate on
the ground that it contravenes the Constitution, the
petition no doubt raises a justiciable controversy.
Where an action of the legislative branch is seriously
alleged to have infringed the Constitution, it becomes
not only the right but in fact the duty of the judiciary to
settle the dispute. The question thus posed is judicial
rather than political. The duty (to adjudicate) remains
to assure that the supremacy of the Constitution is
upheld. Once a controversy as to the application or
interpretation of constitutional provision is raised
before this Court (as in the instant case), it becomes a
legal issue which the Court is bound by constitutional
mandate to decide.
In another case of paramount impact to the Filipino
people, it has been expressed that it is illogical to await
the adverse consequences of the law in order to
consider the controversy actual and ripe for judicial
resolution.[8] In yet another case, the Court said that:
. . . despite the inhibitions pressing upon the Court
when confronted with constitutional issues, it will not
hesitate to declare a law or act invalid when it is
convinced that this must be done. In arriving at this
conclusion, its only criterion will be the Constitution
and God as its conscience gives it in the light to probe
its meaning and discover its purpose. Personal motives
and political considerations are irrelevancies that
cannot influence its decisions. Blandishment is as
ineffectual as intimidation, for all the awesome power
of the Congress and Executive, the Court will not
hesitate to make the hammer fall heavily, where the
acts of these departments, or of any official, betray the
peoples will as expressed in the Constitution . . .[9]
The need to consider the constitutional issues raised
before the Court is further buttressed by the fact that it
is now more than fifteen years since the ratification of
the 1987 Constitution requiring Congress to provide a
system for absentee voting by qualified Filipinos
abroad. Thus, strong reasons of public policy demand
that the Court resolves the instant petition[10] and
determine whether Congress has acted within the
limits of the Constitution or if it had gravely abused the
discretion entrusted to it.[11]
The petitioner raises three principal questions:
A. Does Section 5(d) of Rep. Act No. 9189 allowing the
registration of voters who are immigrants or
permanent residents in other countries by their mere
act of executing an affidavit expressing their intention
to return to the Philippines, violate the residency
requirement in Section 1 of Article V of the
Constitution?
B. Does Section 18.5 of the same law empowering the
COMELEC to proclaim the winning candidates for
national offices and party list representatives including
the President and the Vice-President violate the
constitutional mandate under Section 4, Article VII of

the Constitution that the winning candidates for


President and the Vice-President shall be proclaimed as
winners by Congress?
C. May Congress, through the Joint Congressional
Oversight Committee created in Section 25 of Rep. Act
No. 9189, exercise the power to review, revise, amend,
and approve the Implementing Rules and Regulations
that the Commission on Elections shall promulgate
without violating the independence of the COMELEC
under Section 1, Article IX-A of the Constitution?
The Court will resolve the questions in seriatim.
A. Does Section 5(d) of Rep. Act No. 9189 violate
Section 1, Article V of the 1987 Constitution of the
Republic of the Philippines?
Section 5(d) provides:
Sec. 5. Disqualifications. The following shall be
disqualified from voting under this Act:
.........
d) An immigrant or a permanent resident who is
recognized as such in the host country, unless he/she
executes, upon registration, an affidavit prepared for
the purpose by the Commission declaring that he/she
shall resume actual physical permanent residence in
the Philippines not later than three (3) years from
approval of his/her registration under this Act. Such
affidavit shall also state that he/she has not applied for
citizenship in another country. Failure to return shall be
cause for the removal of the name of the immigrant or
permanent resident from the National Registry of
Absentee Voters and his/her permanent disqualification
to vote in absentia.
Petitioner posits that Section 5(d) is unconstitutional
because it violates Section 1, Article V of the 1987
Constitution which requires that the voter must be a
resident in the Philippines for at least one year and in
the place where he proposes to vote for at least six
months immediately preceding an election. Petitioner
cites the ruling of the Court in Caasi vs. Court of
Appeals[12] to support his claim. In that case, the
Court held that a green card holder immigrant to the
United States is deemed to have abandoned his
domicile and residence in the Philippines.
Petitioner further argues that Section 1, Article V of the
Constitution does not allow provisional registration or a
promise by a voter to perform a condition to be
qualified to vote in a political exercise;[13] that the
legislature should not be allowed to circumvent the
requirement of the Constitution on the right of suffrage
by providing a condition thereon which in effect
amends or alters the aforesaid residence requirement
to qualify a Filipino abroad to vote.[14] He claims that
the right of suffrage should not be granted to anyone
who, on the date of the election, does not possess the
qualifications provided for by Section 1, Article V of the
Constitution.
Respondent COMELEC refrained from commenting on
this issue.[15]

In compliance with the Resolution of the Court, the


Solicitor General filed his comment for all public
respondents. He contraposes that the constitutional
challenge to Section 5(d) must fail because of the
absence of clear and unmistakable showing that said
provision of law is repugnant to the Constitution. He
stresses: All laws are presumed to be constitutional; by
the doctrine of separation of powers, a department of
government owes a becoming respect for the acts of
the other two departments; all laws are presumed to
have adhered to constitutional limitations; the
legislature intended to enact a valid, sensible, and just
law.
In addition, the Solicitor General points out that Section
1, Article V of the Constitution is a verbatim
reproduction of those provided for in the 1935 and the
1973 Constitutions. Thus, he cites Co vs. Electoral
Tribunal of the House of Representatives[16] wherein
the Court held that the term residence has been
understood to be synonymous with domicile under
both Constitutions. He further argues that a person can
have only one domicile but he can have two
residences, one permanent (the domicile) and the
other temporary;[17] and that the definition and
meaning given to the term residence likewise applies
to absentee voters. Invoking Romualdez-Marcos vs.
COMELEC[18] which reiterates the Courts ruling in
Faypon vs. Quirino,[19] the Solicitor General maintains
that Filipinos who are immigrants or permanent
residents abroad may have in fact never abandoned
their Philippine domicile.[20]
Taking issue with the petitioners contention that green
card holders are considered to have abandoned their
Philippine domicile, the Solicitor General suggests that
the Court may have to discard its ruling in Caasi vs.
Court of Appeals[21] in so far as it relates to
immigrants and permanent residents in foreign
countries who have executed and submitted their
affidavits conformably with Section 5(d) of R.A. No.
9189. He maintains that through the execution of the
requisite affidavits, the Congress of the Philippines with
the concurrence of the President of the Republic had in
fact given these immigrants and permanent residents
the opportunity, pursuant to Section 2, Article V of the
Constitution, to manifest that they had in fact never
abandoned their Philippine domicile; that indubitably,
they would have formally and categorically expressed
the requisite intentions, i.e., animus manendi and
animus revertendi; that Filipino immigrants and
permanent residents abroad possess the
unquestionable right to exercise the right of suffrage
under Section 1, Article V of the Constitution upon
approval of their registration, conformably with R.A. No.
9189.[22]
The seed of the present controversy is the
interpretation that is given to the phrase, qualified
citizens of the Philippines abroad as it appears in R.A.
No. 9189, to wit:
SEC. 2. Declaration of Policy. It is the prime duty of the
State to provide a system of honest and orderly
overseas absentee voting that upholds the secrecy and
sanctity of the ballot. Towards this end, the State
ensures equal opportunity to all qualified citizens of the

Philippines abroad in the exercise of this fundamental


right.
SEC. 3. Definition of Terms. For purposes of this Act:
a) Absentee Voting refers to the process by which
qualified citizens of the Philippines abroad, exercise
their right to vote;
. . . (Emphasis supplied)
f) Overseas Absentee Voter refers to a citizen of the
Philippines who is qualified to register and vote under
this Act, not otherwise disqualified by law, who is
abroad on the day of elections. (Emphasis supplied)
SEC. 4. Coverage. All citizens of the Philippines abroad,
who are not otherwise disqualified by law, at least
eighteen (18) years of age on the day of elections, may
vote for president, vice-president, senators and partylist representatives. (Emphasis supplied)
in relation to Sections 1 and 2, Article V of the
Constitution which read:
SEC. 1. Suffrage may be exercised by all citizens of the
Philippines not otherwise disqualified by law, who are
at least eighteen years of age, and who shall have
resided in the Philippines for at least one year and in
the place wherein they propose to vote for at least six
months immediately preceding the election. No
literacy, property, or other substantive requirement
shall be imposed on the exercise of suffrage.
SEC. 2. The Congress shall provide a system for
securing the secrecy and sanctity of the ballot as well
as a system for absentee voting by qualified Filipinos
abroad.
. . . . . . . . . (Emphasis supplied)
Section 1, Article V of the Constitution specifically
provides that suffrage may be exercised by (1) all
citizens of the Philippines, (2) not otherwise
disqualified by law, (3) at least eighteen years of age,
(4) who are residents in the Philippines for at least one
year and in the place where they propose to vote for at
least six months immediately preceding the election.
Under Section 5(d) of R.A. No. 9189, one of those
disqualified from voting is an immigrant or permanent
resident who is recognized as such in the host country
unless he/she executes an affidavit declaring that
he/she shall resume actual physical permanent
residence in the Philippines not later than three years
from approval of his/her registration under said Act.
Petitioner questions the rightness of the mere act of
execution of an affidavit to qualify the Filipinos abroad
who are immigrants or permanent residents, to vote.
He focuses solely on Section 1, Article V of the
Constitution in ascribing constitutional infirmity to
Section 5(d) of R.A. No. 9189, totally ignoring the
provisions of Section 2 empowering Congress to
provide a system for absentee voting by qualified
Filipinos abroad.
A simple, cursory reading of Section 5(d) of R.A. No.
9189 may indeed give the impression that it

contravenes Section 1, Article V of the Constitution.


Filipino immigrants and permanent residents overseas
are perceived as having left and abandoned the
Philippines to live permanently in their host countries
and therefore, a provision in the law enfranchising
those who do not possess the residency requirement of
the Constitution by the mere act of executing an
affidavit expressing their intent to return to the
Philippines within a given period, risks a declaration of
unconstitutionality. However, the risk is more apparent
than real.
The Constitution is the fundamental and paramount
law of the nation to which all other laws must conform
and in accordance with which all private rights must be
determined and all public authority administered.[23]
Laws that do not conform to the Constitution shall be
stricken down for being unconstitutional.
Generally, however, all laws are presumed to be
constitutional. In Peralta vs. COMELEC, the Court said:
. . . An act of the legislature, approved by the
executive, is presumed to be within constitutional
limitations. The responsibility of upholding the
Constitution rests not on the courts alone but on the
legislature as well. The question of the validity of every
statute is first determined by the legislative
department of the government itself.[24]
Thus, presumption of constitutionality of a law must be
overcome convincingly:
. . . To declare a law unconstitutional, the repugnancy
of that law to the Constitution must be clear and
unequivocal, for even if a law is aimed at the
attainment of some public good, no infringement of
constitutional rights is allowed. To strike down a law
there must be a clear showing that what the
fundamental law condemns or prohibits, the statute
allows it to be done.[25]
As the essence of R.A. No. 9189 is to enfranchise
overseas qualified Filipinos, it behooves the Court to
take a holistic view of the pertinent provisions of both
the Constitution and R.A. No. 9189. It is a basic rule in
constitutional construction that the Constitution should
be construed as a whole. In Chiongbian vs. De Leon,
[26] the Court held that a constitutional provision
should function to the full extent of its substance and
its terms, not by itself alone, but in conjunction with all
other provisions of that great document. Constitutional
provisions are mandatory in character unless, either by
express statement or by necessary implication, a
different intention is manifest.[27] The intent of the
Constitution may be drawn primarily from the language
of the document itself. Should it be ambiguous, the
Court may consider the intent of its framers through
their debates in the constitutional convention.[28]
R.A. No. 9189 was enacted in obeisance to the
mandate of the first paragraph of Section 2, Article V of
the Constitution that Congress shall provide a system
for voting by qualified Filipinos abroad. It must be
stressed that Section 2 does not provide for the
parameters of the exercise of legislative authority in
enacting said law. Hence, in the absence of restrictions,
Congress is presumed to have duly exercised its

function as defined in Article VI (The Legislative


Department) of the Constitution.
To put matters in their right perspective, it is necessary
to dwell first on the significance of absentee voting.
The concept of absentee voting is relatively new. It is
viewed thus:
The method of absentee voting has been said to be
completely separable and distinct from the regular
system of voting, and to be a new and different
manner of voting from that previously known, and an
exception to the customary and usual manner of
voting. The right of absentee and disabled voters to
cast their ballots at an election is purely statutory;
absentee voting was unknown to, and not recognized
at, the common law.
Absentee voting is an outgrowth of modern social and
economic conditions devised to accommodate those
engaged in military or civil life whose duties make it
impracticable for them to attend their polling places on
the day of election, and the privilege of absentee
voting may flow from constitutional provisions or be
conferred by statutes, existing in some jurisdictions,
which provide in varying terms for the casting and
reception of ballots by soldiers and sailors or other
qualified voters absent on election day from the district
or precinct of their residence.
Such statutes are regarded as conferring a privilege
and not a right, or an absolute right. When the
legislature chooses to grant the right by statute, it
must operate with equality among all the class to
which it is granted; but statutes of this nature may be
limited in their application to particular types of
elections. The statutes should be construed in the light
of any constitutional provisions affecting registration
and elections, and with due regard to their texts prior
to amendment and to predecessor statutes and the
decisions thereunder; they should also be construed in
the light of the circumstances under which they were
enacted; and so as to carry out the objects thereof, if
this can be done without doing violence to their
provisions and mandates. Further, in passing on
statutes regulating absentee voting, the court should
look to the whole and every part of the election laws,
the intent of the entire plan, and reasons and spirit of
their adoption, and try to give effect to every portion
thereof.[29] (Emphasis supplied)
Ordinarily, an absentee is not a resident and vice
versa; a person cannot be at the same time, both a
resident and an absentee.[30] However, under our
election laws and the countless pronouncements of the
Court pertaining to elections, an absentee remains
attached to his residence in the Philippines as
residence is considered synonymous with domicile.
In Romualdez-Marcos,[31] the Court enunciated:
Article 50 of the Civil Code decrees that [f]or the
exercise of civil rights and the fulfillment of civil
obligations, the domicile of natural persons is their
place of habitual residence. In Ong vs. Republic, this
court took the concept of domicile to mean an
individuals permanent home, a place to which,
whenever absent for business or for pleasure, one

intends to return, and depends on facts and


circumstances in the sense that they disclose intent.
Based on the foregoing, domicile includes the twin
elements of the fact of residing or physical presence in
a fixed place and animus manendi, or the intention of
returning there permanently.
Residence, in its ordinary conception, implies the
factual relationship of an individual to a certain place.
It is the physical presence of a person in a given area,
community or country. The essential distinction
between residence and domicile in law is that
residence involves the intent to leave when the
purpose for which the resident has taken up his abode
ends. One may seek a place for purposes such as
pleasure, business, or health. If a persons intent be to
remain, it becomes his domicile; if his intent is to leave
as soon as his purpose is established it is residence. It
is thus, quite perfectly normal for an individual to have
different residences in various places. However, a
person can only have a single domicile, unless, for
various reasons, he successfully abandons his domicile
in favor of another domicile of choice. In Uytengsu vs.
Republic, we laid this distinction quite clearly:
There is a difference between domicile and residence.
Residence is used to indicate a place of abode, whether
permanent or temporary; domicile denotes a fixed
permanent residence to which, when absent, one has
the intention of returning. A man may have a residence
in one place and a domicile in another. Residence is not
domicile, but domicile is residence coupled with the
intention to remain for an unlimited time. A man can
have but one domicile for the same purpose at any
time, but he may have numerous places of residence.
His place of residence is generally his place of
domicile, but it is not by any means necessarily so
since no length of residence without intention of
remaining will constitute domicile.
For political purposes the concepts of residence and
domicile are dictated by the peculiar criteria of political
laws. As these concepts have evolved in our election
law, what has clearly and unequivocally emerged is the
fact that residence for election purposes is used
synonymously with domicile.[32] (Emphasis supplied)
Aware of the domiciliary legal tie that links an overseas
Filipino to his residence in this country, the framers of
the Constitution considered the circumstances that
impelled them to require Congress to establish a
system for overseas absentee voting, thus:
MR. OPLE. With respect to Section 1, it is not clear
whether the right of suffrage, which here has a
residential restriction, is not denied to citizens
temporarily residing or working abroad. Based on the
statistics of several government agencies, there ought
to be about two million such Filipinos at this time.
Commissioner Bernas had earlier pointed out that
these provisions are really lifted from the two previous
Constitutions of 1935 and 1973, with the exception of
the last paragraph. They could not therefore have
foreseen at that time the phenomenon now described
as the Filipino labor force explosion overseas.
According to government data, there are now about
600,000 contract workers and employees, and

although the major portions of these expatriate


communities of workers are to be found in the Middle
East, they are scattered in 177 countries in the world.
In a previous hearing of the Committee on
Constitutional Commissions and Agencies, the
Chairman of the Commission on Elections, Ramon
Felipe, said that there was no insuperable obstacle to
making effective the right of suffrage for Filipinos
overseas. Those who have adhered to their Filipino
citizenship notwithstanding strong temptations are
exposed to embrace a more convenient foreign
citizenship. And those who on their own or under
pressure of economic necessity here, find that they
have to detach themselves from their families to work
in other countries with definite tenures of employment.
Many of them are on contract employment for one,
two, or three years. They have no intention of changing
their residence on a permanent basis, but are
technically disqualified from exercising the right of
suffrage in their countries of destination by the
residential requirement in Section 1 which says:
Suffrage shall be exercised by all citizens of the
Philippines not otherwise disqualified by law, who are
eighteen years of age or over, and who shall have
resided in the Philippines for at least one year and in
the place wherein they propose to vote for at least six
months preceding the election.
I, therefore, ask the Committee whether at the proper
time they might entertain an amendment that will
make this exercise of the right to vote abroad for
Filipino citizens an effective, rather than merely a
nominal right under this proposed Constitution.
FR. BERNAS. Certainly, the Committee will consider
that. But more than just saying that, I would like to
make a comment on the meaning of residence in the
Constitution because I think it is a concept that has
been discussed in various decisions of the Supreme
Court, particularly in the case of Faypon vs. Quirino, a
1954 case which dealt precisely with the meaning of
residence in the Election Law. Allow me to quote:
A citizen may leave the place of his birth to look for
greener pastures, as the saying goes, to improve his lot
and that, of course, includes study in other places,
practice of his avocation, reengaging in business.
When an election is to be held, the citizen who left his
birthplace to improve his lot may decide to return to
his native town, to cast his ballot, but for professional
or business reasons, or for any other reason, he may
not absent himself from the place of his professional or
business activities.
So, they are here registered as voters as he has the
qualifications to be one, and is not willing to give up or
lose the opportunity to choose the officials who are to
run the government especially in national elections.
Despite such registration, the animus revertendi to his
home, to his domicile or residence of origin has not
forsaken him.
This may be the explanation why the registration of a
voter in a place other than his residence of origin has
not been deemed sufficient to consider abandonment
or loss of such residence of origin.

In other words, residence in this provision refers to two


residence qualifications: residence in the Philippines
and residence in the place where he will vote. As far as
residence in the Philippines is concerned, the word
residence means domicile, but as far as residence in
the place where he will actually cast his ballot is
concerned, the meaning seems to be different. He
could have a domicile somewhere else and yet he is a
resident of a place for six months and he is allowed to
vote there. So that there may be serious constitutional
obstacles to absentee voting, unless the vote of the
person who is absent is a vote which will be considered
as cast in the place of his domicile.
MR. OPLE. Thank you for citing the jurisprudence.
It gives me scant comfort thinking of about two million
Filipinos who should enjoy the right of suffrage, at least
a substantial segment of these overseas Filipino
communities. The Committee, of course, is aware that
when this Article of the Constitution explicitly and
unequivocally extends the right of effective suffrage to
Filipinos abroad, this will call for a logistical exercise of
global proportions. In effect, this will require budgetary
and administrative commitments on the part of the
Philippine government, mainly through the COMELEC
and the Ministry of Foreign Affairs, and perhaps, a more
extensive elaboration of this mechanism that will be
put in place to make effective the right to vote.
Therefore, seeking shelter in some wise jurisprudence
of the past may not be sufficient to meet the demands
of the right of suffrage for Filipinos abroad that I have
mentioned. But I want to thank the Committee for
saying that an amendment to this effect may be
entertained at the proper time. . . . . . . . . .
[33] (Emphasis supplied)
Thus, the Constitutional Commission recognized the
fact that while millions of Filipinos reside abroad
principally for economic reasons and hence they
contribute in no small measure to the economic uplift
of this country, their voices are marginal insofar as the
choice of this countrys leaders is concerned.
The Constitutional Commission realized that under the
laws then existing and considering the novelty of the
system of absentee voting in this jurisdiction, vesting
overseas Filipinos with the right to vote would spawn
constitutional problems especially because the
Constitution itself provides for the residency
requirement of voters:
MR. REGALADO. Before I act on that, may I inquire from
Commissioner Monsod if the term absentee voting also
includes transient voting; meaning, those who are, let
us say, studying in Manila need not go back to their
places of registration, for instance, in Mindanao, to cast
their votes.
MR. MONSOD. I think our provision is for absentee
voting by Filipinos abroad.
MR. REGALADO. How about those people who cannot
go back to the places where they are registered?
MR. MONSOD. Under the present Election Code, there
are provisions for allowing students and military people

who are temporarily in another place to register and


vote. I believe that those situations can be covered by
the Omnibus Election Code. The reason we want
absentee voting to be in the Constitution as a mandate
to the legislature is that there could be inconsistency
on the residence rule if it is just a question of
legislation by Congress. So, by allowing it and saying
that this is possible, then legislation can take care of
the rest.[34] (Emphasis supplied)

LIVING ABROAD, would that not satisfy the


requirement?

Thus, Section 2, Article V of the Constitution came into


being to remove any doubt as to the inapplicability of
the residency requirement in Section 1. It is precisely
to avoid any problems that could impede the
implementation of its pursuit to enfranchise the largest
number of qualified Filipinos who are not in the
Philippines that the Constitutional Commission
explicitly mandated Congress to provide a system for
overseas absentee voting.

MR. TINGSON. That is right. So does the Committee


accept?

The discussion of the Constitutional Commission on the


effect of the residency requirement prescribed by
Section 1, Article V of the Constitution on the proposed
system of absentee voting for qualified Filipinos abroad
is enlightening:

THE PRESIDENT. Commissioner Regalado is recognized.

MR. SUAREZ. May I just be recognized for a


clarification. There are certain qualifications for the
exercise of the right of suffrage like having resided in
the Philippines for at least one year and in the place
where they propose to vote for at least six months
preceding the elections. What is the effect of these
mandatory requirements on the matter of the exercise
of the right of suffrage by the absentee voters like
Filipinos abroad?
THE PRESIDENT. Would Commissioner Monsod care to
answer?
MR. MONSOD. I believe the answer was already given
by Commissioner Bernas, that the domicile
requirements as well as the qualifications and
disqualifications would be the same.
THE PRESIDENT. Are we leaving it to the legislature to
devise the system?
FR. BERNAS. I think there is a very legitimate problem
raised there.
THE PRESIDENT. Yes.
MR. BENGZON. I believe Commissioner Suarez is
clarified.
FR. BERNAS. But I think it should be further clarified
with regard to the residence requirement or the place
where they vote in practice; the understanding is that
it is flexible. For instance, one might be a resident of
Naga or domiciled therein, but he satisfies the
requirement of residence in Manila, so he is able to
vote in Manila.
MR. TINGSON. Madam President, may I then suggest to
the Committee to change the word Filipinos to
QUALIFIED FILIPINO VOTERS. Instead of VOTING BY
FILIPINOS ABROAD, it should be QUALIFIED FILIPINO
VOTERS. If the Committee wants QUALIFIED VOTERS

THE PRESIDENT. What does Commissioner Monsod say?


MR. MONSOD. Madam President, I think I would accept
the phrase QUALIFIED FILIPINOS ABROAD because
QUALIFIED would assume that he has the qualifications
and none of the disqualifications to vote.

FR. BERNAS. QUALIFIED FILIPINOS ABROAD?


THE PRESIDENT. Does the Committee accept the
amendment?
MR. REGALADO. Madam President.

MR. REGALADO. When Commissioner Bengzon asked


me to read my proposed amendment, I specifically
stated that the National Assembly shall prescribe a
system which will enable qualified citizens, temporarily
absent from the Philippines, to vote. According to
Commissioner Monsod, the use of the phrase absentee
voting already took that into account as its meaning.
That is referring to qualified Filipino citizens
temporarily abroad.
MR. MONSOD. Yes, we accepted that. I would like to say
that with respect to registration we will leave it up to
the legislative assembly, for example, to require where
the registration is. If it is, say, members of the
diplomatic corps who may be continuously abroad for a
long time, perhaps, there can be a system of
registration in the embassies. However, we do not like
to preempt the legislative assembly.
THE PRESIDENT. Just to clarify, Commissioner Monsods
amendment is only to provide a system.
MR. MONSOD. Yes.
THE PRESIDENT. The Commissioner is not stating here
that he wants new qualifications for these absentee
voters.
MR. MONSOD. That is right. They must have the
qualifications and none of the disqualifications.
THE PRESIDENT. It is just to devise a system by which
they can vote.
MR. MONSOD. That is right, Madam President.[35]
(Emphasis supplied)
Clearly therefrom, the intent of the Constitutional
Commission is to entrust to Congress the responsibility
of devising a system of absentee voting. The
qualifications of voters as stated in Section 1 shall
remain except for the residency requirement. This is in
fact the reason why the Constitutional Commission
opted for the term qualified Filipinos abroad with
respect to the system of absentee voting that Congress
should draw up. As stressed by Commissioner Monsod,

by the use of the adjective qualified with respect to


Filipinos abroad, the assumption is that they have the
qualifications and none of the disqualifications to vote.
In fine-tuning the provision on absentee voting, the
Constitutional Commission discussed how the system
should work:

his name is then entered in the official registration


book in Angeles City, for instance.

MR. SUAREZ. For clarification purposes, we just want to


state for the record that in the case of qualified Filipino
citizens residing abroad and exercising their right of
suffrage, they can cast their votes for the candidates in
the place where they were registered to vote in the
Philippines. So as to avoid any complications, for
example, if they are registered in Angeles City, they
could not vote for a mayor in Naga City.

MR. MONSOD. That is right. He does not have to come


home to the Philippines to comply with the registration
procedure here.

In other words, if that qualified voter is registered in


Angeles City, then he can vote only for the local and
national candidates in Angeles City. I just want to make
that clear for the record.

FR. BERNAS. In other words, he is not a registered


voter of Los Angeles, but a registered voter of a locality
here.

FR. BERNAS. So, he does not have to come home.


MR. BENGZON. Madam President, the Floor Leader
wishes to inquire if there are more clarifications needed
from the body.
Also, the Floor Leader is happy to announce that there
are no more registered Commissioners to propose
amendments. So I move that we close the period of
amendments.

MR. REGALADO. Madam President.


THE PRESIDENT. What does Commissioner Regalado
say?
MR. REGALADO. I just want to make a note on the
statement of Commissioner Suarez that this envisions
Filipinos residing abroad. The understanding in the
amendment is that the Filipino is temporarily abroad.
He may not be actually residing abroad; he may just be
there on a business trip. It just so happens that the day
before the elections he has to fly to the United States,
so he could not cast his vote. He is temporarily abroad,
but not residing there. He stays in a hotel for two days
and comes back. This is not limited only to Filipinos
temporarily residing abroad. But as long as he is
temporarily abroad on the date of the elections, then
he can fall within the prescription of Congress in that
situation.
MR. SUAREZ. I thank the Commissioner for his further
clarification. Precisely, we need this clarification on
record.
MR. MONSOD. Madam President, to clarify what we
mean by temporarily abroad, it need not be on very
short trips. One can be abroad on a treaty traders visa.
Therefore, when we talk about registration, it is
possible that his residence is in Angeles and he would
be able to vote for the candidates in Angeles, but
Congress or the Assembly may provide the procedure
for registration, like listing ones name, in a registry list
in the embassy abroad. That is still possible under the
system.
FR. BERNAS. Madam President, just one clarification if
Commissioner Monsod agrees with this.
Suppose we have a situation of a child of a diplomatic
officer who reaches the voting age while living abroad
and he has never registered here. Where will he
register? Will he be a registered voter of a certain
locality in the Philippines?
MR. MONSOD. Yes, it is possible that the system will
enable that child to comply with the registration
requirements in an embassy in the United States and

[36] (Emphasis supplied)


It is clear from these discussions of the members of the
Constitutional Commission that they intended to
enfranchise as much as possible all Filipino citizens
abroad who have not abandoned their domicile of
origin. The Commission even intended to extend to
young Filipinos who reach voting age abroad whose
parents domicile of origin is in the Philippines, and
consider them qualified as voters for the first time.
It is in pursuance of that intention that the Commission
provided for Section 2 immediately after the residency
requirement of Section 1. By the doctrine of necessary
implication in statutory construction, which may be
applied in construing constitutional provisions,[37] the
strategic location of Section 2 indicates that the
Constitutional Commission provided for an exception to
the actual residency requirement of Section 1 with
respect to qualified Filipinos abroad. The same
Commission has in effect declared that qualified
Filipinos who are not in the Philippines may be allowed
to vote even though they do not satisfy the residency
requirement in Section 1, Article V of the Constitution.
That Section 2 of Article V of the Constitution is an
exception to the residency requirement found in
Section 1 of the same Article was in fact the subject of
debate when Senate Bill No. 2104, which became R.A.
No. 9189, was deliberated upon on the Senate floor,
thus:
Senator Arroyo. Mr. President, this bill should be looked
into in relation to the constitutional provisions. I think
the sponsor and I would agree that the Constitution is
supreme in any statute that we may enact.
Let me read Section 1, Article V, of the Constitution
entitled, Suffrage. It says:
Section 1. Suffrage may be exercised by all citizens of
the Philippines not otherwise disqualified by law, who
are at least eighteen years of age, and who shall have
resided in the Philippines for at least one year and in
the place wherein they propose to vote for at least six
months immediately preceding the election.

Now, Mr. President, the Constitution says, who shall


have resided in the Philippines. They are permanent
immigrants. They have changed residence so they are
barred under the Constitution. This is why I asked
whether this committee amendment which in fact does
not alter the original text of the bill will have any effect
on this?
Senator Angara. Good question, Mr. President. And this
has been asked in various fora. This is in compliance
with the Constitution. One, the interpretation here of
residence is synonymous with domicile.
As the gentleman and I know, Mr. President, domicile is
the intent to return to ones home. And the fact that a
Filipino may have been physically absent from the
Philippines and may be physically a resident of the
United States, for example, but has a clear intent to
return to the Philippines, will make him qualified as a
resident of the Philippines under this law.
This is consistent, Mr. President, with the constitutional
mandate that we that Congress must provide a
franchise to overseas Filipinos.

That is why I am raising this point because I think we


have a fundamental difference here.
Senator Angara. It is a good point to raise, Mr.
President. But it is a point already well-debated even in
the constitutional commission of 1986. And the reason
Section 2 of Article V was placed immediately after the
six-month/one-year residency requirement is to
demonstrate unmistakably that Section 2 which
authorizes absentee voting is an exception to the sixmonth/one-year residency requirement. That is the first
principle, Mr. President, that one must remember.
The second reason, Mr. President, is that under our
jurisprudence and I think this is so well-entrenched that
one need not argue about it residency has been
interpreted as synonymous with domicile.
But the third more practical reason, Mr. President, is, if
we follow the interpretation of the gentleman, then it is
legally and constitutionally impossible to give a
franchise to vote to overseas Filipinos who do not
physically live in the country, which is quite ridiculous
because that is exactly the whole point of this exercise
to enfranchise them and empower them to vote.

If we read the Constitution and the suffrage principle


literally as demanding physical presence, then there is
no way we can provide for offshore voting to our
offshore kababayan, Mr. President.

[38] (Emphasis supplied)


Accordingly, Section 4 of R.A. No. 9189 provides for the
coverage of the absentee voting process, to wit:

Senator Arroyo. Mr. President, when the Constitution


says, in Section 2 of Article V, it reads: The Congress
shall provide a system for securing the secrecy and
sanctity of the ballot as well as a system for absentee
voting by qualified Filipinos abroad.

SEC. 4. Coverage. All citizens of the Philippines abroad,


who are not otherwise disqualified by law, at least
eighteen (18) years of age on the day of elections, may
vote for president, vice-president, senators and partylist representatives.

The key to this whole exercise, Mr. President, is


qualified. In other words, anything that we may do or
say in granting our compatriots abroad must be
anchored on the proposition that they are qualified.
Absent the qualification, they cannot vote. And
residents (sic) is a qualification.

which does not require physical residency in the


Philippines; and Section 5 of the assailed law which
enumerates those who are disqualified, to wit:

I will lose votes here from permanent residents socalled green-card holders, but the Constitution is the
Constitution. We cannot compromise on this. The
Senate cannot be a party to something that would
affect or impair the Constitution.

a) Those who have lost their Filipino citizenship in


accordance with Philippine laws;

Look at what the Constitution says In the place wherein


they propose to vote for at least six months
immediately preceding the election.
Mr. President, all of us here have run (sic) for office.
I live in Makati. My neighbor is Pateros where Senator
Cayetano lives. We are separated only by a creek. But
one who votes in Makati cannot vote in Pateros unless
he resides in Pateros for six months. That is how
restrictive our Constitution is. I am not talking even
about the Election Code. I am talking about the
Constitution.
As I have said, if a voter in Makati would want to vote
in Pateros, yes, he may do so. But he must do so, make
the transfer six months before the election, otherwise,
he is not qualified to vote.

SEC. 5. Disqualifications. The following shall be


disqualified from voting under this Act:

b) Those who have expressly renounced their


Philippine citizenship and who have pledged allegiance
to a foreign country;
c) Those who have committed and are convicted in a
final judgment by a court or tribunal of an offense
punishable by imprisonment of not less than one (1)
year, including those who have committed and been
found guilty of Disloyalty as defined under Article 137
of the Revised Penal Code, such disability not having
been removed by plenary pardon or amnesty: Provided,
however, That any person disqualified to vote under
this subsection shall automatically acquire the right to
vote upon expiration of five (5) years after service of
sentence; Provided, further, That the Commission may
take cognizance of final judgments issued by foreign
courts or tribunals only on the basis of reciprocity and
subject to the formalities and processes prescribed by
the Rules of Court on execution of judgments;
d) An immigrant or a permanent resident who is
recognized as such in the host country, unless he/she

executes, upon registration, an affidavit prepared for


the purpose by the Commission declaring that he/she
shall resume actual physical permanent residence in
the Philippines not later than three (3) years from
approval of his/her registration under this Act. Such
affidavit shall also state that he/she has not applied for
citizenship in another country. Failure to return shall be
cause for the removal of the name of the immigrant or
permanent resident from the National Registry of
Absentee Voters and his/her permanent disqualification
to vote in absentia.
e) Any citizen of the Philippines abroad previously
declared insane or incompetent by competent
authority in the Philippines or abroad, as verified by the
Philippine embassies, consulates or foreign service
establishments concerned, unless such competent
authority subsequently certifies that such person is no
longer insane or incompetent.
As finally approved into law, Section 5(d) of R.A. No.
9189 specifically disqualifies an immigrant or
permanent resident who is recognized as such in the
host country because immigration or permanent
residence in another country implies renunciation of
ones residence in his country of origin. However, same
Section allows an immigrant and permanent resident
abroad to register as voter for as long as he/she
executes an affidavit to show that he/she has not
abandoned his domicile in pursuance of the
constitutional intent expressed in Sections 1 and 2 of
Article V that all citizens of the Philippines not
otherwise disqualified by law must be entitled to
exercise the right of suffrage and, that Congress must
establish a system for absentee voting; for otherwise, if
actual, physical residence in the Philippines is required,
there is no sense for the framers of the Constitution to
mandate Congress to establish a system for absentee
voting.
Contrary to the claim of petitioner, the execution of the
affidavit itself is not the enabling or enfranchising act.
The affidavit required in Section 5(d) is not only proof
of the intention of the immigrant or permanent
resident to go back and resume residency in the
Philippines, but more significantly, it serves as an
explicit expression that he had not in fact abandoned
his domicile of origin. Thus, it is not correct to say that
the execution of the affidavit under Section 5(d)
violates the Constitution that proscribes provisional
registration or a promise by a voter to perform a
condition to be qualified to vote in a political exercise.
To repeat, the affidavit is required of immigrants and
permanent residents abroad because by their status in
their host countries, they are presumed to have
relinquished their intent to return to this country; thus,
without the affidavit, the presumption of abandonment
of Philippine domicile shall remain.
Further perusal of the transcripts of the Senate
proceedings discloses another reason why the Senate
required the execution of said affidavit. It wanted the
affiant to exercise the option to return or to express his
intention to return to his domicile of origin and not to
preempt that choice by legislation. Thus:
Senator Villar. Yes, we are going back.

It states that: For Filipino immigrants and those who


have acquired permanent resident status abroad, a
requirement for the registration is the submission of a
Sworn Declaration of Intent to Return duly sworn before
any Philippine embassy or consulate official authorized
to administer oath
Mr. President, may we know the rationale of this
provision? Is the purpose of this Sworn Declaration to
include only those who have the intention of returning
to be qualified to exercise the right of suffrage? What if
the Filipino immigrant has no purpose of returning? Is
he automatically disbarred from exercising this right to
suffrage?
Senator Angara. The rationale for this, Mr. President, is
that we want to be expansive and all-inclusive in this
law. That as long as he is a Filipino, no matter whether
he is a green-card holder in the U.S. or not, he will be
authorized to vote. But if he is already a green-card
holder, that means he has acquired permanent
residency in the United States, then he must indicate
an intention to return. This is what makes for the
definition of domicile. And to acquire the vote, we
thought that we would require the immigrants and the
green-card holders . . . Mr. President, the three
administration senators are leaving, maybe we may
ask for a vote [Laughter].
Senator Villar. For a merienda, Mr. President.
Senator Angara. Mr. President, going back to the
business at hand. The rationale for the requirement
that an immigrant or a green-card holder should file an
affidavit that he will go back to the Philippines is that, if
he is already an immigrant or a green-card holder, that
means he may not return to the country any more and
that contradicts the definition of domicile under the
law.
But what we are trying to do here, Mr. President, is
really provide the choice to the voter. The voter, after
consulting his lawyer or after deliberation within the
family, may decide No, I think we are risking our
permanent status in the United States if we file an
affidavit that we want to go back. But we want to give
him the opportunity to make that decision. We do not
want to make that decision for him. [39] (Emphasis
supplied)
The jurisprudential declaration in Caasi vs. Court of
Appeals that green card holders are disqualified to run
for any elective office finds no application to the
present case because the Caasi case did not, for
obvious reasons, consider the absentee voting rights of
Filipinos who are immigrants and permanent residents
in their host countries.
In the advent of The Overseas Absentee Voting Act of
2003 or R.A. 9189, they may still be considered as a
qualified citizen of the Philippines abroad upon
fulfillment of the requirements of registration under the
new law for the purpose of exercising their right of
suffrage.
It must be emphasized that Section 5(d) does not only
require an affidavit or a promise to resume actual

physical permanent residence in the Philippines not


later than three years from approval of his/her
registration, the Filipinos abroad must also declare that
they have not applied for citizenship in another
country. Thus, they must return to the Philippines;
otherwise, their failure to return shall be cause for the
removal of their names from the National Registry of
Absentee Voters and his/her permanent disqualification
to vote in absentia.

country. His having become an immigrant or


permanent resident of his host country does not
necessarily imply an abandonment of his intention to
return to his domicile of origin, the Philippines.
Therefore, under the law, he must be given the
opportunity to express that he has not actually
abandoned his domicile in the Philippines by executing
the affidavit required by Sections 5(d) and 8(c) of the
law.

Thus, Congress crafted a process of registration by


which a Filipino voter permanently residing abroad who
is at least eighteen years old, not otherwise
disqualified by law, who has not relinquished Philippine
citizenship and who has not actually abandoned his/her
intentions to return to his/her domicile of origin, the
Philippines, is allowed to register and vote in the
Philippine embassy, consulate or other foreign service
establishments of the place which has jurisdiction over
the country where he/she has indicated his/her address
for purposes of the elections, while providing for
safeguards to a clean election.

Petitioners speculative apprehension that the


implementation of Section 5(d) would affect the
credibility of the elections is insignificant as what is
important is to ensure that all those who possess the
qualifications to vote on the date of the election are
given the opportunity and permitted to freely do so.
The COMELEC and the Department of Foreign Affairs
have enough resources and talents to ensure the
integrity and credibility of any election conducted
pursuant to R.A. No. 9189.

Thus, Section 11 of R.A. No. 9189 provides:


SEC. 11. Procedure for Application to Vote in Absentia.
11.1. Every qualified citizen of the Philippines abroad
whose application for registration has been approved,
including those previously registered under Republic
Act No. 8189, shall, in every national election, file with
the officer of the embassy, consulate or other foreign
service establishment authorized by the Commission, a
sworn written application to vote in a form prescribed
by the Commission. The authorized officer of such
embassy, consulate or other foreign service
establishment shall transmit to the Commission the
said application to vote within five (5) days from
receipt thereof. The application form shall be
accomplished in triplicate and submitted together with
the photocopy of his/her overseas absentee voter
certificate of registration.
11.2. Every application to vote in absentia may be
done personally at, or by mail to, the embassy,
consulate or foreign service establishment, which has
jurisdiction over the country where he/she has
indicated his/her address for purposes of the elections.
11.3. Consular and diplomatic services rendered in
connection with the overseas absentee voting
processes shall be made available at no cost to the
overseas absentee voter.
Contrary to petitioners claim that Section 5(d)
circumvents the Constitution, Congress enacted the
law prescribing a system of overseas absentee voting
in compliance with the constitutional mandate. Such
mandate expressly requires that Congress provide a
system of absentee voting that necessarily
presupposes that the qualified citizen of the Philippines
abroad is not physically present in the country. The
provisions of Sections 5(d) and 11 are components of
the system of overseas absentee voting established by
R.A. No. 9189. The qualified Filipino abroad who
executed the affidavit is deemed to have retained his
domicile in the Philippines. He is presumed not to have
lost his domicile by his physical absence from this

As to the eventuality that the Filipino abroad would


renege on his undertaking to return to the Philippines,
the penalty of perpetual disenfranchisement provided
for by Section 5(d) would suffice to serve as deterrence
to non-compliance with his/her undertaking under the
affidavit.
Petitioner argues that should a sizable number of
immigrants renege on their promise to return, the
result of the elections would be affected and could
even be a ground to contest the proclamation of the
winning candidates and cause further confusion and
doubt on the integrity of the results of the election.
Indeed, the probability that after an immigrant has
exercised the right to vote, he shall opt to remain in his
host country beyond the third year from the execution
of the affidavit, is not farfetched. However, it is not for
this Court to determine the wisdom of a legislative
exercise. As expressed in Taada vs. Tuvera,[40] the
Court is not called upon to rule on the wisdom of the
law or to repeal it or modify it if we find it impractical.
Congress itself was conscious of said probability and in
fact, it has addressed the expected problem. Section
5(d) itself provides for a deterrence which is that the
Filipino who fails to return as promised stands to lose
his right of suffrage. Under Section 9, should a
registered overseas absentee voter fail to vote for two
consecutive national elections, his name may be
ordered removed from the National Registry of
Overseas Absentee Voters.
Other serious legal questions that may be raised would
be: what happens to the votes cast by the qualified
voters abroad who were not able to return within three
years as promised? What is the effect on the votes cast
by the non-returnees in favor of the winning
candidates? The votes cast by qualified Filipinos abroad
who failed to return within three years shall not be
invalidated because they were qualified to vote on the
date of the elections, but their failure to return shall be
cause for the removal of the names of the immigrants
or permanent residents from the National Registry of
Absentee Voters and their permanent disqualification
to vote in absentia.

In fine, considering the underlying intent of the


Constitution, the Court does not find Section 5(d) of
R.A. No. 9189 as constitutionally defective.

which gives to Congress the duty to canvass the votes


and proclaim the winning candidates for president and
vice-president.

B. Is Section 18.5 of R.A. No. 9189 in relation to Section


4 of the same Act in contravention of Section 4, Article
VII of the Constitution?

The Solicitor General asserts that this provision must


be harmonized with paragraph 4, Section 4, Article VII
of the Constitution and should be taken to mean that
COMELEC can only proclaim the winning Senators and
party-list representatives but not the President and
Vice-President.[41]

Section 4 of R.A. No. 9189 provides that the overseas


absentee voter may vote for president, vice-president,
senators and party-list representatives.

Respondent COMELEC has no comment on the matter.


Section 18.5 of the same Act provides:
SEC. 18. On-Site Counting and Canvassing.
.........
18. 5 The canvass of votes shall not cause the delay of
the proclamation of a winning candidate if the outcome
of the election will not be affected by the results
thereof. Notwithstanding the foregoing, the
Commission is empowered to order the proclamation of
winning candidates despite the fact that the scheduled
election has not taken place in a particular country or
countries, if the holding of elections therein has been
rendered impossible by events, factors and
circumstances peculiar to such country or countries, in
which events, factors and circumstances are beyond
the control or influence of the Commission. (Emphasis
supplied)
Petitioner claims that the provision of Section 18.5 of
R.A. No. 9189 empowering the COMELEC to order the
proclamation of winning candidates insofar as it affects
the canvass of votes and proclamation of winning
candidates for president and vice-president, is
unconstitutional because it violates the following
provisions of paragraph 4, Section 4 of Article VII of the
Constitution:
SEC. 4 . . .
The returns of every election for President and VicePresident, duly certified by the board of canvassers of
each province or city, shall be transmitted to the
Congress, directed to the President of the Senate. Upon
receipt of the certificates of canvass, the President of
the Senate shall, not later than thirty days after the
day of the election, open all the certificates in the
presence of the Senate and the House of
Representatives in joint public session, and the
Congress, upon determination of the authenticity and
due execution thereof in the manner provided by law,
canvass the votes.
The person having the highest number of votes shall
be proclaimed elected, but in case two or more shall
have an equal and highest number of votes, one of
them shall forthwith be chosen by the vote of a
majority of all the Members of both Houses of the
Congress, voting separately.
The Congress shall promulgate its rules for the
canvassing of the certificates.
...

Indeed, the phrase, proclamation of winning


candidates, in Section 18.5 of R.A. No. 9189 is far too
sweeping that it necessarily includes the proclamation
of the winning candidates for the presidency and the
vice-presidency.
Section 18.5 of R.A. No. 9189 appears to be repugnant
to Section 4, Article VII of the Constitution only insofar
as said Section totally disregarded the authority given
to Congress by the Constitution to proclaim the winning
candidates for the positions of president and vicepresident.
In addition, the Court notes that Section 18.4 of the
law, to wit:
18.4. . . . Immediately upon the completion of the
canvass, the chairman of the Special Board of
Canvassers shall transmit via facsimile, electronic mail,
or any other means of transmission equally safe and
reliable the Certificates of Canvass and the Statements
of Votes to the Commission, . . . [Emphasis supplied]
clashes with paragraph 4, Section 4, Article VII of the
Constitution which provides that the returns of every
election for President and Vice-President shall be
certified by the board of canvassers to Congress.
Congress could not have allowed the COMELEC to
usurp a power that constitutionally belongs to it or, as
aptly stated by petitioner, to encroach on the power of
Congress to canvass the votes for president and vicepresident and the power to proclaim the winners for
the said positions. The provisions of the Constitution as
the fundamental law of the land should be read as part
of The Overseas Absentee Voting Act of 2003 and
hence, the canvassing of the votes and the
proclamation of the winning candidates for president
and vice-president for the entire nation must remain in
the hands of Congress.
C. Are Sections 19 and 25 of R.A. No. 9189 in violation
of Section 1, Article IX-A of the Constitution?
Petitioner avers that Sections 19 and 25 of R.A. No.
9189 violate Article IX-A (Common Provisions) of the
Constitution, to wit:
Section 1. The Constitutional Commissions, which shall
be independent, are the Civil Service Commission, the
Commission on Elections, and the Commission on
Audit. (Emphasis supplied)
He submits that the creation of the Joint Congressional
Oversight Committee with the power to review, revise,

amend and approve the Implementing Rules and


Regulations promulgated by the COMELEC, R.A. No.
9189 intrudes into the independence of the COMELEC
which, as a constitutional body, is not under the control
of either the executive or legislative departments of
government; that only the COMELEC itself can
promulgate rules and regulations which may be
changed or revised only by the majority of its
members; and that should the rules promulgated by
the COMELEC violate any law, it is the Court that has
the power to review the same via the petition of any
interested party, including the legislators.

The Solicitor General takes exception to his prefatory


statement that the constitutional challenge must fail
and agrees with the petitioner that Sections 19 and 25
are invalid and unconstitutional on the ground that
there is nothing in Article VI of the Constitution on
Legislative Department that would as much as imply
that Congress has concurrent power to enforce and
administer election laws with the COMELEC; and by the
principles of exclusio unius est exclusio alterius and
expressum facit cessare tacitum, the constitutionally
enumerated powers of Congress circumscribe its
authority to the exclusion of all others.

It is only on this question that respondent COMELEC


submitted its Comment. It agrees with the petitioner
that Sections 19 and 25 of R.A. No. 9189 are
unconstitutional. Like the petitioner, respondent
COMELEC anchors its claim of unconstitutionality of
said Sections upon Section 1, Article IX-A of the
Constitution providing for the independence of the
constitutional commissions such as the COMELEC. It
asserts that its power to formulate rules and
regulations has been upheld in Gallardo vs. Tabamo, Jr.
[42] where this Court held that the power of the
COMELEC to formulate rules and regulations is implicit
in its power to implement regulations under Section
2(1) of Article IX-C[43] of the Constitution. COMELEC
joins the petitioner in asserting that as an independent
constitutional body, it may not be subject to
interference by any government instrumentality and
that only this Court may review COMELEC rules and
only in cases of grave abuse of discretion.

The parties are unanimous in claiming that Sections


19, 25 and portions of Section 17.1 are
unconstitutional. Thus, there is no actual issue forged
on this question raised by petitioner.

The COMELEC adds, however, that another provision,


vis--vis its rule-making power, to wit:
SEC. 17. Voting by Mail.
17.1. For the May, 2004 elections, the Commission
shall authorize voting by mail in not more than three
(3) countries, subject to the approval of the
Congressional Oversight Committee. Voting by mail
may be allowed in countries that satisfy the following
conditions:
a) Where the mailing system is fairly well-developed
and secure to prevent occasion for fraud;
b) Where there exists a technically established
identification system that would preclude multiple or
proxy voting; and
c) Where the system of reception and custody of
mailed ballots in the embassies, consulates and other
foreign service establishments concerned are adequate
and well-secured.
Thereafter, voting by mail in any country shall be
allowed only upon review and approval of the Joint
Congressional Oversight Committee.
. . . . . . . . . (Emphasis supplied)
is likewise unconstitutional as it violates Section 1,
Article IX-A mandating the independence of
constitutional commissions.

However, the Court finds it expedient to expound on


the role of Congress through the Joint Congressional
Oversight Committee (JCOC) vis--vis the independence
of the COMELEC, as a constitutional body.
R.A. No. 9189 created the JCOC, as follows:
SEC. 25. Joint Congressional Oversight Committee. A
Joint Congressional Oversight Committee is hereby
created, composed of the Chairman of the Senate
Committee on Constitutional Amendments, Revision of
Codes and Laws, and seven (7) other Senators
designated by the Senate President, and the Chairman
of the House Committee on Suffrage and Electoral
Reforms, and seven (7) other Members of the House of
Representatives designated by the Speaker of the
House of Representatives: Provided, That, of the seven
(7) members to be designated by each House of
Congress, four (4) should come from the majority and
the remaining three (3) from the minority.
The Joint Congressional Oversight Committee shall
have the power to monitor and evaluate the
implementation of this Act. It shall review, revise,
amend and approve the Implementing Rules and
Regulations promulgated by the Commission.
(Emphasis supplied)
SEC. 19. Authority of the Commission to Promulgate
Rules. The Commission shall issue the necessary rules
and regulations to effectively implement the provisions
of this Act within sixty (60) days from the effectivity of
this Act. The Implementing Rules and Regulations shall
be submitted to the Joint Congressional Oversight
Committee created by virtue of this Act for prior
approval.
. . . . . . . . . (Emphasis supplied)
Composed of Senators and Members of the House of
Representatives, the Joint Congressional Oversight
Committee (JCOC) is a purely legislative body. There is
no question that the authority of Congress to monitor
and evaluate the implementation of R.A. No. 9189 is
geared towards possible amendments or revision of the
law itself and thus, may be performed in aid of its
legislation.
However, aside from its monitoring and evaluation
functions, R.A. No. 9189 gives to the JCOC the following

functions: (a) to review, revise, amend and approve the


Implementing Rules and Regulations (IRR) promulgated
by the COMELEC [Sections 25 and 19]; and (b) subject
to the approval of the JCOC [Section 17.1], the voting
by mail in not more than three countries for the May
2004 elections and in any country determined by
COMELEC.
The ambit of legislative power under Article VI of the
Constitution is circumscribed by other constitutional
provisions. One such provision is Section 1 of Article IXA of the 1987 Constitution ordaining that constitutional
commissions such as the COMELEC shall be
independent.
Interpreting Section 1, Article X of the 1935
Constitution providing that there shall be an
independent COMELEC, the Court has held that
[w]hatever may be the nature of the functions of the
Commission on Elections, the fact is that the framers of
the Constitution wanted it to be independent from the
other departments of the Government.[44] In an earlier
case, the Court elucidated:
The Commission on Elections is a constitutional body. It
is intended to play a distinct and important part in our
scheme of government. In the discharge of its
functions, it should not be hampered with restrictions
that would be fully warranted in the case of a less
responsible organization. The Commission may err, so
may this court also. It should be allowed considerable
latitude in devising means and methods that will insure
the accomplishment of the great objective for which it
was created free, orderly and honest elections. We may
not agree fully with its choice of means, but unless
these are clearly illegal or constitute gross abuse of
discretion, this court should not interfere. Politics is a
practical matter, and political questions must be dealt
with realistically not from the standpoint of pure theory.
The Commission on Elections, because of its factfinding facilities, its contacts with political strategists,
and its knowledge derived from actual experience in
dealing with political controversies, is in a peculiarly
advantageous position to decide complex political
questions.
[45] (Emphasis supplied)
The Court has no general powers of supervision over
COMELEC which is an independent body except those
specifically granted by the Constitution, that is, to
review its decisions, orders and rulings.[46] In the
same vein, it is not correct to hold that because of its
recognized extensive legislative power to enact
election laws, Congress may intrude into the
independence of the COMELEC by exercising
supervisory powers over its rule-making authority.
By virtue of Section 19 of R.A. No. 9189, Congress has
empowered the COMELEC to issue the necessary rules
and regulations to effectively implement the provisions
of this Act within sixty days from the effectivity of this
Act. This provision of law follows the usual procedure in
drafting rules and regulations to implement a law the
legislature grants an administrative agency the
authority to craft the rules and regulations
implementing the law it has enacted, in recognition of
the administrative expertise of that agency in its
particular field of operation.[47] Once a law is enacted

and approved, the legislative function is deemed


accomplished and complete. The legislative function
may spring back to Congress relative to the same law
only if that body deems it proper to review, amend and
revise the law, but certainly not to approve, review,
revise and amend the IRR of the COMELEC.
By vesting itself with the powers to approve, review,
amend, and revise the IRR for The Overseas Absentee
Voting Act of 2003, Congress went beyond the scope of
its constitutional authority. Congress trampled upon the
constitutional mandate of independence of the
COMELEC. Under such a situation, the Court is left with
no option but to withdraw from its usual reticence in
declaring a provision of law unconstitutional.
The second sentence of the first paragraph of Section
19 stating that [t]he Implementing Rules and
Regulations shall be submitted to the Joint
Congressional Oversight Committee created by virtue
of this Act for prior approval, and the second sentence
of the second paragraph of Section 25 stating that [i]t
shall review, revise, amend and approve the
Implementing Rules and Regulations promulgated by
the Commission, whereby Congress, in both provisions,
arrogates unto itself a function not specifically vested
by the Constitution, should be stricken out of the
subject statute for constitutional infirmity. Both
provisions brazenly violate the mandate on the
independence of the COMELEC.
Similarly, the phrase, subject to the approval of the
Congressional Oversight Committee in the first
sentence of Section 17.1 which empowers the
Commission to authorize voting by mail in not more
than three countries for the May, 2004 elections; and
the phrase, only upon review and approval of the Joint
Congressional Oversight Committee found in the
second paragraph of the same section are
unconstitutional as they require review and approval of
voting by mail in any country after the 2004 elections.
Congress may not confer upon itself the authority to
approve or disapprove the countries wherein voting by
mail shall be allowed, as determined by the COMELEC
pursuant to the conditions provided for in Section 17.1
of R.A. No. 9189.[48] Otherwise, Congress would
overstep the bounds of its constitutional mandate and
intrude into the independence of the COMELEC.
During the deliberations, all the members of the Court
agreed to adopt the separate opinion of Justice
Reynato S. Puno as part of the ponencia on the
unconstitutionality of Sections 17.1, 19 and 25 of R.A.
No. 9189 insofar as they relate to the creation of and
the powers given to the Joint Congressional Oversight
Committee.
WHEREFORE, the petition is partly GRANTED. The
following portions of R.A. No. 9189 are declared VOID
for being UNCONSTITUTIONAL:
a) The phrase in the first sentence of the first
paragraph of Section 17.1, to wit: subject to the
approval of the Joint Congressional Oversight
Committee;

b) The portion of the last paragraph of Section 17.1, to


wit: only upon review and approval of the Joint
Congressional Oversight Committee;
c) The second sentence of the first paragraph of
Section 19, to wit: The Implementing Rules and
Regulations shall be submitted to the Joint
Congressional Oversight Committee created by virtue
of this Act for prior approval; and
d) The second sentence in the second paragraph of
Section 25, to wit: It shall review, revise, amend and
approve the Implementing Rules and Regulations
promulgated by the Commission of the same law;
for being repugnant to Section 1, Article IX-A of the
Constitution mandating the independence of
constitutional commission, such as COMELEC.
The constitutionality of Section 18.5 of R.A. No. 9189 is
UPHELD with respect only to the authority given to the
COMELEC to proclaim the winning candidates for the
Senators and party-list representatives but not as to
the power to canvass the votes and proclaim the
winning candidates for President and Vice-President
which is lodged with Congress under Section 4, Article
VII of the Constitution.
The constitutionality of Section 5(d) is UPHELD.
Pursuant to Section 30 of R.A. No. 9189, the rest of the
provisions of said law continues to be in full force and
effect.
MACQUILING vs. COMELEC
CASAN MACODE MACQUILING, PETITIONER,
vs.
COMMISSION ON ELECTIONS, ROMMEL ARNADO Y
CAGOCO, AND LINOG G. BALUA. RESPONDENTS.
RESOLUTION
SERENO, J.:
This Resolution resolves the Motion for Reconsideration
filed by respondent on May 10, 2013 and the
Supplemental Motion for Reconsideration filed on May
20, 2013.
We are not unaware that the term of office of the local
officials elected in the May 2010 elections has already
ended on June 30, 2010. Arnado, therefore, has
successfully finished his term of office. While the relief
sought can no longer be granted, ruling on the motion
for reconsideration is important as it will either affirm
the validity of Arnados election or affirm that Arnado
never qualified to run for public office.
Respondent failed to advance any argument to support
his plea for the reversal of this Courts Decision dated
April 16, 2013. Instead, he presented his
accomplishments as the Mayor of Kauswagan, Lanao
del Norte and reiterated that he has taken the Oath of
Allegiance not only twice but six times. It must be
stressed, however, that the relevant question is the
efficacy of his renunciation of his foreign citizenship
and not the taking of the Oath of Allegiance to the
Republic of the Philippines. Neither do his

accomplishments as mayor affect the question before


this Court.
Respondent cites Section 349 of the Immigration and
Naturalization Act of the United States as having the
effect of expatriation when he executed his Affidavit of
Renunciation of American Citizenship on April 3, 2009
and thus claims that he was divested of his American
citizenship. If indeed, respondent was divested of all
the rights of an American citizen, the fact that he was
still able to use his US passport after executing his
Affidavit of Renunciation repudiates this claim.
The Court cannot take judicial notice of foreign laws,1
which must be presented as public documents2 of a
foreign country and must be "evidenced by an official
publication thereof."3 Mere reference to a foreign law
in a pleading does not suffice for it to be considered in
deciding a case.
Respondent likewise contends that this Court failed to
cite any law of the United States "providing that a
person who is divested of American citizenship thru an
Affidavit of Renunciation will re-acquire such American
citizenship by using a US Passport issued prior to
expatriation."4
American law does not govern in this jurisdiction.
Instead, Section 40(d) of the Local Government Code
calls for application in the case before us, given the
fact that at the time Arnado filed his certificate of
candidacy, he was not only a Filipino citizen but, by his
own declaration, also an American citizen. It is the
application of this law and not of any foreign law that
serves as the basis for Arnados disqualification to run
for any local elective position.
With all due respect to the dissent, the declared policy
of Republic Act No. (RA) 9225 is that "all Philippine
citizens who become citizens of another country shall
be deemed not to have lost their Philippine citizenship
under the conditions of this Act."5 This policy pertains
to the reacquisition of Philippine citizenship. Section
5(2)6 requires those who have re-acquired Philippine
citizenship and who seek elective public office, to
renounce any and all foreign citizenship.
This requirement of renunciation of any and all foreign
citizenship, when read together with Section 40(d) of
the Local Government Code7 which disqualifies those
with dual citizenship from running for any elective local
position, indicates a policy that anyone who seeks to
run for public office must be solely and exclusively a
Filipino citizen. To allow a former Filipino who
reacquires Philippine citizenship to continue using a
foreign passport which indicates the recognition of a
foreign state of the individual as its national even
after the Filipino has renounced his foreign citizenship,
is to allow a complete disregard of this policy.
Further, we respectfully disagree that the majority
decision rules on a situation of doubt.
Indeed, there is no doubt that Section 40(d) of the
Local Government Code disqualifies those with dual
citizenship from running for local elective positions.

There is likewise no doubt that the use of a passport is


a positive declaration that one is a citizen of the
country which issued the passport, or that a passport
proves that the country which issued it recognizes the
person named therein as its national.
It is unquestioned that Arnado is a natural born Filipino
citizen, or that he acquired American citizenship by
naturalization. There is no doubt that he reacquired his
Filipino citizenship by taking his Oath of Allegiance to
the Philippines and that he renounced his American
citizenship. It is also indubitable that after renouncing
his American citizenship, Arnado used his U.S. passport
at least six times.
If there is any remaining doubt, it is regarding the
efficacy of Arnados renunciation of his American
citizenship when he subsequently used his U.S.
passport. The renunciation of foreign citizenship must
be complete and unequivocal. The requirement that
the renunciation must be made through an oath
emphasizes the solemn duty of the one making the
oath of renunciation to remain true to what he has
sworn to. Allowing the subsequent use of a foreign
passport because it is convenient for the person to do
so is rendering the oath a hollow act. It devalues the
act of taking of an oath, reducing it to a mere
ceremonial formality.
The dissent states that the Court has effectively left
Arnado "a man without a country".1wphi1 On the
contrary, this Court has, in fact, found Arnado to have
more than one. Nowhere in the decision does it say
that Arnado is not a Filipino citizen. What the decision
merely points out is that he also possessed another
citizenship at the time he filed his certificate of
candidacy.

23 March 2010, Arnado arrived in the Philippines using


his U.S. Passport No. 057782700 which also indicated
therein that his nationality is USA-American. Adding
these two travel dates to the travel record provided by
the Bureau of Immigration showing that Arnado also
presented his U.S. passport four times (upon departure
on 14 April 2009, upon arrival on 25 June 2009, upon
departure on 29 July 2009 and upon arrival on 24
November 2009), these incidents sum up to six.
The COMELEC En Banc concluded that "the use of the
US passport was because to his knowledge, his
Philippine passport was not yet issued to him for his
use."10 This conclusion, however, is not supported by
the facts. Arnado claims that his Philippine passport
was issued on 18 June 2009. The records show that he
continued to use his U.S. passport even after he
already received his Philippine passport. Arnados
travel records show that he presented his U.S. passport
on 24 November 2009, on 21 January 2010, and on 23
March 2010. These facts were never refuted by Arnado.
Thus, the ruling of the COMELEC En Banc is based on a
misapprehension of the facts that the use of the U.S.
passport was discontinued when Arnado obtained his
Philippine passport. Arnados continued use of his U.S.
passport cannot be considered as isolated acts
contrary to what the dissent wants us to believe.
It must be stressed that what is at stake here is the
principle that only those who are exclusively Filipinos
are qualified to run for public office. If we allow dual
citizens who wish to run for public office to renounce
their foreign citizenship and afterwards continue using
their foreign passports, we are creating a special
privilege for these dual citizens, thereby effectively
junking the prohibition in Section 40(d) of the Local
Government Code.

Well-settled is the rule that findings of fact of


administrative bodies will not be interfered with by the
courts in the absence of grave abuse of discretion on
the part of said agencies, or unless the aforementioned
findings are not supported by substantial evidence.8
They are accorded not only great respect but even
finality, and are binding upon this Court, unless it is
shown that the administrative body had arbitrarily
disregarded or misapprehended evidence before it to
such an extent as to compel a contrary conclusion had
such evidence been properly appreciated.9

WHEREFORE, the Motion for Reconsideration and the


Supplemental Motion for Reconsideration are hereby
DENIED with finality.

Nevertheless, it must be emphasized that COMELEC


First Division found that Arnado used his U.S. Passport
at least six times after he renounced his American
citizenship. This was debunked by the COMELEC En
Banc, which found that Arnado only used his U.S.
passport four times, and which agreed with Arnados
claim that he only used his U.S. passport on those
occasions because his Philippine passport was not yet
issued. The COMELEC En Banc argued that Arnado was
able to prove that he used his Philippine passport for
his travels on the following dates: 12 January 2010, 31
January 2010, 31 March 2010, 16 April 2010, 20 May
2010, and 4 June 2010.

Crisostomo F. Parinas for petitioner.

None of these dates coincide with the two other dates


indicated in the certification issued by the Bureau of
Immigration showing that on 21 January 2010 and on

MILLARE vs. HON. GIRONELLA


ISIDRO MILLARE, petitioner,
vs.
HON. LEOPOLDO B. GIRONELLA, Judge of the Court of
First Instance of Abra, HON. ADRIANO BERNARDINO,
Acting Municipal Circuit Judge of Tayum, Abra, and
ALFREDO ELVEA respondents.

Alberto Benesa for respondents.


VASQUEZ, J:
Petitioner Isidro Millare ran for the position of Barangay
Captain of Barangay Budac, Tayum Abra, against
private respondent Alfredo Elvea during the barangay
election held on May 17, 1982. On May 10, 1982,
Elvea filed in the Municipal Circuit Court of Tayum,
Abra, a petition for the exclusion and disqualification of
Millare, docketed as Barangay Election Case No. 48.
The said petition sought to strike out Millare's name
from the voters' list, and to disqualify him as a
candidate for the position of barangay captain of
barangay Budac on the ground that he was not an

actual resident of the said barangay for at least six


months prior to the elections, as required by Section 7
of Batas Pambansa Blg. 222. At the hearing of the said
petition, Millare failed to appear and, after receiving
the evidence of Elvea the respondent Municipal
Circuit Judge of Tayum, Judge Adriano Bernardino,
issued an order striking out Millare's name from the
voters' list and declaring him disqualified to run as
barangay captain of barangay Budac.
On May 14, 1982, Millare filed a motion for a
reconsideration of the said order. The motion was set
for hearing, and in an order dated May 16, 1982, Judge
Bernardino denied the, same, with the modification
that Millare's name was allowed to remain in the
voters' list. Millare received a copy of the order denying
his motion for reconsideration at 3:00 o'clock in the
afternoon of May 16, 1982, which was a Sunday, the
eve of election day.
Despite the declaration as to his disqualification,
Millare ran just the same in the election held on May
17, 1982. It appears undisputed that he garnered more
votes than Elvea His votes, however, were not
considered by the barangay board of tellers, they
having been declared as stray. The barangay board of
canvassers proclaimed Elvea as the duly elected
Barangay Captain of barangay Budac. He took his oath
of office as such.
Millare did not appeal the orders in Election Case No.
48 which declared him disqualified to run as barangay
captain of barangay Budac. On May 20, 1982, Millare
filed with the respondent Municipal Circuit Court
Election Protest No. 49 against Elvea praying for the
annulment of the proclamation of Elvea and for a
declaration that he (Millare) was the duly elected
Barangay Captain of barangay Budac. At the hearing of
said election protest, Millare asked that the ballot
boxes be reopened so as to show to the court that he
got more votes than Elvea. This prayer was denied.
When placed on the witness stand, Millare was not
allowed to testify on the ground that he had already
been disqualified as a candidate. In his order dated
June 22, 1982, Judge Bernardino dismissed the election
protest for lack of merit. He reasoned out that the
election protest may not be availed of as a means of
appealing the decision dated May 16, 1982 in Election
Case No. 48 which declared Millare as disqualified as a
candidate and which had already become final and
executory, there having been no appeal taken from the
same.
Millare appealed the order of dismissal of Election
Protest No. 49 to the Court of First Instance of Tayum,
wherein it was docketed as Special Civil Case No. 1687
"For Review on certiorari on Questions of Law." The
then court of first instance, through public respondent
Judge Leopoldo B. Gironella, rendered a decision dated
July 19, 1982 affirming the decision of the Municipal
Circuit Court in Election Protest No. 49.
On August 16, 1982, Millare filed the instant petition
which he entitled as a "Petition for Review on certiorari
on Questions of Law." He prays principally that the
aforementioned decision and orders of the respondents
Judge Gironella and Judge Bernardino be nullified, and
that Election Protest No. 49 be remanded to the

Municipal Circuit Court of Tayum for trial on the merits.


The petition was given due course and the parties have
filed their respective memoranda.
The respondents are pinning down Millare on his failure
to appeal the order of Judge Bernardino in Election
Case No. 48 declaring him disqualified to run for the
position of barangay captain of barangay Budac on the
ground of non-residence. Such failure, it was reasoned
out, resulted in the said order becoming final and
executory, and that by virtue thereof, Millare lacked the
requisite personality to file Election Protest No. -49. It
was for this reason that Judge Bernardino denied his
motion to re-open the ballot boxes for a recanvassing
of the contents of the same, and also his attempt to
testify in the said proceeding.
From a strict legal standpoint, the view that the order
disqualifying Millare had become final and executory
due to his failure to appeal the same may be said to be
technically correct. The law governing barangay
elections is contained in Batas Pambansa Blg. 222,
otherwise known as the Barangay Election Act of 1982.
Section 21 of the said law provides that "the provisions
of the 1978 Election Code and the Revised Barangay
Chapter no, inconsistent herewith shall be applicable in
a suppletory character to the election of barrio officials.
" Section 8 of the Revised Barangay Chapter, Republic
Act No. 3590, as amended and as adopted by
Presidential Decree No. 557, provides in its last
paragraph as follows:
All disputes over barangay elections shad be brought
before the municipal court of the municipality
concerned; and in the determination and decision
thereof, the court shall follow as closely as possible the
procedure prescribed for inferior courts in Rule 4 (now
Rule 5), Rules of Court. The decision of the municipal
court shag be appealable pursuant to the Rules of
Court to the Court of First Instance whose decision shall
be final on questions of fact. (last par., See. 8, R.A. No.
3590, as amended.)
The above-quoted provision deals with "all disputes
over barangay elections." It apparently includes
proceedings to disqualify a candidate, there being no
other provision expressly applicable to such cases,
unlike in the case of actions for exclusion or inclusion in
the voters' lists which are explicitly provided for in the
first paragraph of Section 20 of Batas Pambansa Blg.
222 and in Sections 93 to 96 of the 1978 Election Code.
The pertinent provisions of the Rules of Court which
have been made applicable to "all disputes over
barangay elections" require that the decision of a
municipal court be appealed to the Court of First
Instance (now the Regional Trial Court) "within fifteen
days after notification of the judgment complained of."
(Sec. 2, Rule 40, Rules of Court.) It is a fact that Millare
did not take an appeal from the orders issued by Judge
Bernardino in Election Case No. 48.
However, We find Ourselves unable to go along with
the stoically legalistic stance taken by the respondents
which not only disregards the equities involved, but
also contravenes the unquestioned policy in the
interpretation of election laws and the disposition of
election cases. We have repeatedly ruled that "the
purpose of election laws is to give effect to rather than

frustrate, the will of the voters." (Canceran vs.


COMELEC, 107 Phil. 607; Silverio vs. Castro, 19 SCRA
520; Cauton vs. COMELEC, 19 SCRA 912; Pacis vs.
COMELEC, 25 SCRA 377 )

The decision of the city, municipal or municipal district


courts in the case stated in Section 191 hereof shall
not be appealable and shall immediately be final and
executory.

Under the undisputed facts, Millare could not have


appealed the order disqualifying him as a candidate
before the election. The order denying his motion for
reconsideration or the order dated May 13, 1982 in
Election Case No. 48 was received by Millare only at
3:00 o'clock in the afternoon of May 16, 1982, a
Sunday, or only a few hours before the opening of the
polling places.

The choice between appealing the order of


disqualification in Election Case No. 48 and filing
election contest after the election had been held was
thus not easy to make. Or, having made such decision,
may one be certain as to the correctness of the same.
In several cases brought before the Supreme Court, a
disqualification proceeding based on the so-called
"turncoatism" filed after the election were ordered
dismissed, the proper remedy having been held to be
an election contest or a quo warranto proceeding. If
filed before the election, the dismissal of such a case
after the proclamation of the winner became the
subject of conflicting views. (Desini v. COMELEC, G.R.
No. 52502, Dec. 30, 1982; Venezuela vs. COMELEC, 98
SCRA 790; Aguinaldo vs. COMELEC, 102 SCRA 1; Singco
v. COMELEC, 101 SCRA 420; Faderanga vs. COMELEC,
105 SCRA 124.) Reliance on the doctrine laid upon in
said cases is even impaired by the fact that not one of
them involved the election of barangay officials which
is governed by different provisions of law.

However, as to whether Millare should have appealed


the said order of disqualification after election day,
more particularly when his votes, which were more
than those of his opponents, were not credited to him,
they having been considered stray due to the
aforementioned disqualification, was not plain nor
certain enough as the proper course of action to take.
The barangay board of tellers had considered the order
of his disqualification as already final and executory,
for which reason they considered his votes stray. If the
order of disqualification was still appealable, as
contended by the respondents, such action on the part
of the barangay board of tellers was legally unjustified
and erroneous. The quandary in the mind of Millare as
to what course of action to take after Elvea was
proclaimed the winner despite his having received less
votes than Millare was not helped any by the state of
the law and of the applicable decisions on the matter.
As aforesaid, there is no express legal provision or
pertinent jurisprudence which indicates whether, under
such a situation, Millare should have appealed the
order of his disqualification, or file an election protest.
Existing provisions seemingly indicate that the
appropriate step to take is to file an election contest.
The second paragraph of Section 20 of Batas
Pambansa Blg. 222 provides as follows:
A sworn petition contesting the election of any
barangay official shall be filed with the city or
municipal or metropolitan trial court, as the case may
be, within ten days from the date of the proclamation
of the winners. The trial court shall decide the election
protest within fifteen days after the filing thereof. The
decision of the municipal or city or metropolitan trial
court may be appealed within ten days from receipt of
a copy thereof to the Regional Trial Court (CFI) which
shall decide within thirty days from submission, and
whose decision shall be final.
Section 191 of the 1978 Election Code, in turn,
prescribes the following:
A sworn petition contesting the election of a barangay
officer shall be filed with the proper city or municipal
court by any candidate for the same office who has
duly filed a certificate of candidacy, within ten days
after the proclamation of the election.
In the last paragraph of Section 196 of the same Code,
We find the following:
xxx xxx xxx

The propriety of Millare's filing a separate election


contest in lieu of appealing the order of disqualification
in Election Case No. 48 could have been induced also
by the need to raise issues in the election contest other
than the sole question of the alleged non-residence of
Millare in Barangay Budac; such as, the denial of due
process consisting in the lack of opportunity to present
evidence in his behalf, the propriety of declaring the
votes cast in his favor as stray, and the refusal of Judge
Bernardino to allow the reopening of the ballot boxes
for a recanvassing of the votes. At any rate, if appeal is
indeed the proper remedy, the filing of Election Protest
No. 49 on May 20, 1982, or well within the period of
appeal, may be considered as in the same nature of
that remedy. Whatever procedural mis-step may have
been committed in this regard may not override the
paramount consideration of upholding the sovereign
will of the people expressed through the democratic
process of suffrage. Millare may not be faulted for
sleeping on his rights. He had insisted on his
qualification for the position he ran for, and took
determined and seasonable steps to assert the same.
We accordingly find merit in the petitioner's complaint
against the actuations of the public respondents. The
issue of the petitioner's non-residence in Barangay
Budac upon which his disqualification was predicated
in the decisions and orders complained of had never
been ventilated at all, it having been buried and lost
sight of in a maze of technicalities. Millare was never
afforded the chance to prove that he was an actual
resident of Barangay Budac (where, according to him,
he has been residing for the last twenty years in a big
house of strong materials) for at least six months prior
to the elections, and as such qualified to run for the
position of Barangay Captain thereof. The least that he
is entitled to is to be given that chance, if only to give
satisfaction to those who voted for him.
WHEREFORE, the petition is hereby GRANTED. The
orders of Judge Bernardino in Election Case No. 48 and
Election Protest No. 49 and the decision of Judge

Gironella in Special Civil Case No. 1687 are hereby


ANNULLED and SET ASIDE. Election Contest No. 48
should be deemed consolidated with Election Protest
No. 49 which are hereby ordered remanded to the
Municipal Circuit Trial Court of Tayum, Abra, for further
proceedings. The two cases shall be tried together, and
the said court is ordered to allow the petitioner to
present evidence in his behalf to grant his motion for a
reopening of the ballot boxes and for the recanvassing
of their contents and, after trial, to render judgment
thereon as the evidence and the law may warrant.
Private respondent Alfredo Elvea shall pay the costs.
YSIP vs. MUNICIPAL COUNCIL OF CABIAO, NUEVA
ECIJA, ET AL.
BONIFACIO YSIP, petitioner,
vs.
MUNICIPAL COUNCIL OF CABIAO, NUEVA ECIJA, ET AL.,
respondents.
The petitioner in his own behalf.
The municipal president De Leon for respondents.
MALCOLM, J.:
The issue squarely raised in this case concerns the
rights of the Partido Nacionalista Colectivista to
election inspectors at the approaching election.
The facts are undisputed. At the last general election in
1919, two parties, the Partido Democrata and the
Partido Nacionalista, contested for supremacy in the
municipality of Cabiao, Nueva Ecija. The highest
number of votes was cast for the Partido Nacionalista,
and the second highest number for the Partido
Democrata. Recently, however, as appears from the
record, and as a matter of current political history of
which the courts can take judicial notice, the Partido
Nacionalista divided into two parties, the Partido
Nacionalista, commonly known as Unipersonalista, and
the Partido Nacionalista Colectivista; or, if this
statement be objected to by partisans of the Partido
Nacionalista a new party known as Partido Nacionalista
Colectivista was organized. The Partido Nacionalista
Colectivista was inaugurated in the municipality of
Cabiao, Nueva Ecija, on February 28, 1922. By exhibits
presented, the court is given to understand that in
Cabiao, and, in other towns in Nueva Ecija, the
adherents of the old Nacionalista Party have gone over
to the Partido Nacionalista Colectivista.
The law applicable to the facts is equally certain. A
portion of section 11 of Act No. 3030 of the Philippine
Legislature, reads:
Should there be in such municipality one or more
political parties or branches or fractions thereof, or
political groups, then two of said inspectors and two
substitutes for the same shall belong to the party
which polled the largest number of votes in said
municipality at such preceding election and the other
inspector and his substitute shall belong to the party,
branch or fraction thereof, or political group which
polled the next largest number of votes at said
election; and the inspectors so appointed shall be
persons proposed by the legitimate representative or
representatives of such political parties, branches or
fractions thereof, or political group.

When the court comes to apply the law, with reference


to not only the case before it but to a general condition
of political affairs, it must be frankly admitted that
difficulties are encountered.
A strict construction of the law would necessarily result
in the Nacionalista Party being granted two inspectors
in many municipalities, since no one can deny that this
is "the party which polled the largest number of votes,"
in such municipalities at the preceding election. Nor
can it be denied that the law contemplates bi-partisan
elections and only takes into account the successful
party, and the party which polled the next largest
number of votes. In certain instances, as where the
Democrata Party obtains two inspectors in an election
precinct and where only one inspector remains for
another party, the courts are forced to rely on the
letter of the law, and to assign the minority inspector
to the Nacionalista Party. Other states of facts could be
imagined, such as where the Nacionalista Party might
have divided into three, four, or more branches, and
which necessarily would make impossible a division of
two election inspectors among the various new parties
and which again would force the courts to return to the
exact terminology of the law.
A liberal construction of the law will, on the other hand,
permit the Nacionalista Colectivista Party to have
representation on election boards in all municipalities
in which the old Nacionalista Party polled the largest
number of votes at the last election. Such
interpretation and application of the law will not do
violence to it, in view of the notorious fact that the
party which won the election in many municipalities,
such as Cabiao, Nueva Ecija, the Nacionalista Party has
now split its forces between the old party and a new
party. Such interpretation and application of the law
would, moreover, be in accord with the underlying
purpose of the Election Law, which is to provide as
complete a method as possible to obtain a clean
election.
If we must choose between a strict and literal
interpretation of the law and a liberal and reasonable
interpretation of the law, if we must choose between
the letter of the law which "killeth" and the spirit of the
law which "giveth life", can any one doubt what our
decision will be? We adopt that construction which will
produce the most beneficial results.
We hold that, in municipalities where it is shown that
the Partido Nacionalista polled the largest number of
votes at the last election and the Partido Democrata
the next largest number of votes at said election, and
where in such municipalities, in addition to the Partido
Nacionalista there has been duly organized a new party
known as the Partido Nacionalista Colectivista, one
election inspector and one substitute shall belong each
to the Partido Nacionalista, the Partido Nacionalista
Colectivista and the Partido Democrata.
As the municipal council of Cabiao, Nueva Ecija,
following the circular of the Chief of the Executive
Bureau, named one election inspector for each election
precinct for the Partido Nacionalista, the Partido
Nacionalista Colectivista, and the Partido Democrata,

the writ prayed for must be denied, with costs against


the petitioner. So ordered.

on the ground that the latter belatedly filed his Brief in


violation of the COMELEC rule on the filing of briefs.

Ostrand, Johns and Romualdez, JJ., concur.

On August 19, 2010, petitioner filed a Motion for


Reconsideration8 with the COMELEC en banc
contending that it was only on August 16, 2010 that he
received a copy of the Order of the COMELEC which set
the preliminary conference on August 12, 2010.

VIOLAGO SR. vs. COMELEC


PERALTA, J.:
Before the Court is a special civil action for certiorari
under Rule 65 of the Rules of Court seeking to set aside
the August 12, 2010 Order of the 2nd Division of the
Commission on Elections (COMELEC) and the Order of
the COMELEC en banc dated September 21, 2010 in
EPC No. 2010-23. The August 12, 2010 Order dismissed
the election protest filed by herein petitioner against
herein private respondent, while the September 21,
2010 Order denied petitioners Motion for
Reconsideration.

In its second assailed Order9 dated September 21,


2010, the COMELEC en banc denied petitioners Motion
for Reconsideration on the ground that petitioner failed
to file a verified motion in violation of Section 3, Rule
19 of the COMELEC Rules of Procedure.

The factual and procedural antecedents of the case are


as follows:

No notice of preliminary conference hearing was sent


to petitioner before the August 12, 2010 hearing.

Herein petitioner and private respondent were


candidates for the mayoralty race during the May 10,
2010 elections in the City of Meycauayan, Bulacan.
Private respondent was proclaimed the winner.

2. The COMELEC did not exercise sound judicial


discretion when it denied the Motion for
Reconsideration.

On May 21, 2010, petitioner filed a Petition1 with the


COMELEC questioning the proclamation of private
respondent on the following grounds: (1) massive votebuying; (2) intimidation and harassment; (3) election
fraud; (4) non-appreciation by the Precinct Count
Optical Scan (PCOS) machines of valid votes cast
during the said election; and, (5) irregularities due to
non-observance of the guidelines set by the COMELEC.
On June 15, 2010, private respondent filed her Answer
with Motion to Set for Hearing Affirmative Defenses in
the Nature of a Motion to Dismiss for Being Insufficient
in Form and Substance.2

Hence, the present petition based on the following


grounds:

3. Petitioner is totally blameless and the COMELEC


committed undue haste and speed in disposing the
case.
4. The denial of the MR, although within the discretion
of the COMELEC, was not based on sound judicial
discretion.10
Petitioners basic contention is that the COMELEC 2nd
Division and the COMELEC en banc committed grave
abuse of discretion in dismissing his electoral protest
and in denying his motion for reconsideration,
respectively.

Thereafter, on July 16, 2010, the COMELEC 2nd Division


issued an Order3 setting the preliminary conference on
August 12, 2010 and directing the parties to file their
Preliminary Conference Briefs at least one (1) day
before the scheduled conference.

The Court finds the petition meritorious.

On August 11, 2010, private respondent filed her


Preliminary Conference Brief.4
Petitioner, on the other hand, filed his Brief5 on the day
of the scheduled preliminary conference. He, likewise,
filed an Urgent Motion to Reset Preliminary Conference
on the ground that he did not receive any notice and
only came to know of it when he inquired with the
COMELEC a day before the scheduled conference.
Petitioner also claimed that on the date set for the
preliminary conference, his counsel and his associate
were scheduled to appear before different tribunals in
connection with other cases they were handling.6
Subsequently, petitioner and his counsel failed to
appear during the actual conference on August 12,
2010. On even date, private respondents counsel
moved for the dismissal of the case.

However, a perusal of the records of the instant case


would show that petitioner was able to present a copy
of the Certification11 issued by the Postmaster of
Meycauayan City, Bulacan, attesting to the fact that
the Order sent by the COMELEC to petitioners counsel
informing the latter of the scheduled hearing set on
August 12, 2010 and directing him to file his
Preliminary Conference Brief was received only on
August 16, 2010. Petitioner likewise submitted an
advisory issued by the Chief of the Operations Division
of the TELECOM Office in Meycauayan that the
telegraph service in the said City, through which the
COMELEC also supposedly sent petitioner a notice
through telegram, has been terminated and the office
permanently closed and transferred to Sta. Maria,
Bulacan as of April 1, 2009.12 Respondent did not
question the authenticity of these documents.

In its assailed Order7 dated August 12, 2010, the


COMELEC 2nd Division dismissed petitioners protest

The COMELEC 2nd Divisions reason for dismissing


petitioners election protest is the latters failure to
timely file his Preliminary Conference Brief.

On the basis of the abovementioned documents, the


Court finds no justifiable reason why the COMELEC 2nd

Division hastily dismissed petitioners election protest.


There is no indication that the COMELEC 2nd Division
made prior verification from the proper or concerned
COMELEC department or official of petitioners
allegation that he did not receive a copy of the subject
Order. In fact, it was only on the day following such
dismissal that the Electoral Contests Adjudication
Department, through the 2nd Division Clerk, sent a
letter to the Postmaster of Meycauayan City, Bulacan
requesting for a certification as to the date of receipt of
the said Order stating therein that the certification is
urgently needed for the proper and appropriate
disposition13 of petitioners election protest. Fairness
and prudence dictate that the COMELEC 2nd Division
should have first waited for the requested certification
before deciding whether or not to dismiss petitioners
protest on technical grounds.
Petitioner should not be penalized for belatedly filing
his Preliminary Conference Brief. While it may be
argued that petitioner acquired actual knowledge of
the scheduled conference a day prior to the date set
through means other than the official notice sent by
the COMELEC, the fact remains that, unlike his
opponent, he was not given sufficient time to
thoroughly prepare for the said conference. A one-day
delay, as in this case, does not justify the outright
dismissal of the protest based on technical grounds
where there is no indication of intent to violate the
rules on the part of petitioner and the reason for the
violation is justifiable. Thus, the COMELEC 2nd Division
committed grave abuse of discretion in dismissing
petitioners protest.

lawful choice of the people. What is sought is the


correction of the canvass of votes, which was the basis
of proclamation of the winning candidate. An election
contest therefore involves not only the adjudication of
private and pecuniary interests of rival candidates but
paramount to their claims is the deep public concern
involved and the need of dispelling the uncertainty
over the real choice of the electorate. And the court
has the corresponding duty to ascertain, by all means
within its command, who is the real candidate elected
by the people.
Moreover, the Comelec Rules of Procedure are subject
to a liberal construction. This liberality is for the
purpose of promoting the effective and efficient
implementation of the objectives of ensuring the
holding of free, orderly, honest, peaceful and credible
elections and for achieving just, expeditious and
inexpensive determination and disposition of every
action and proceeding brought before the Comelec.
Thus, we have declared:

With respect to the COMELEC en bancs denial of


petitioners Motion for Reconsideration, it is true that
Section 3, Rule 20 of the COMELEC Rules of Procedure
on Disputes in an Automated Election System,14 as
well as Section 3, Rule 19 of the COMELEC Rules of
Procedure, clearly require that a motion for
reconsideration should be verified. However, the
settled rule is that the COMELEC Rules of Procedure are
subject to liberal construction.

It has been frequently decided, and it may be stated as


a general rule recognized by all courts, that statutes
providing for election contests are to be liberally
construed to the end that the will of the people in the
choice of public officers may not be defeated by mere
technical objections. An election contest, unlike an
ordinary action, is imbued with public interest since it
involves not only the adjudication of the private
interests of rival candidates but also the paramount
need of dispelling the uncertainty which beclouds the
real choice of the electorate with respect to who shall
discharge the prerogatives of the office within their
gift. Moreover, it is neither fair nor just to keep in office
for an uncertain period one whos right to it is under
suspicion. It is imperative that his claim be
immediately cleared not only for the benefit of the
winner but for the sake of public interest, which can
only be achieved by brushing aside technicalities of
procedure which protract and delay the trial of an
ordinary action.19

In Quintos v. Commission on Elections,15 this Court


held that the alleged lack of verification of private
respondents Manifestation and Motion for Partial
Reconsideration is merely a technicality that should not
defeat the will of the electorate. The COMELEC may
liberally construe or even suspend its rules of
procedure in the interest of justice, including obtaining
a speedy disposition of all matters pending before the
COMELEC.16

This principle was reiterated in the more recent


consolidated cases of Tolentino v. Commission on
Elections,20 and De Castro v. Commission on
Elections,21 where the Court held that in exercising its
powers and jurisdiction, as defined by its mandate to
protect the integrity of elections, the COMELEC must
not be straitjacketed by procedural rules in resolving
election disputes.

In the same manner, this Court, in the case of Panlilio


v. Commission on Elections,17 restated the prevailing
principle that the COMELECs rules of procedure for the
verification of protests and certifications of non-forum
shopping should be liberally construed.
In Pacanan v. Commission on Elections,18 this Court, in
clarifying the mandated liberal construction of election
laws, held thus:
x x x An election contest, unlike an ordinary civil
action, is clothed with a public interest. The purpose of
an election protest is to ascertain whether the
candidate proclaimed by the board of canvassers is the

In the present case, notwithstanding the fact that


petitioners motion for reconsideration was not verified,
the COMELEC en banc should have considered the
merits of the said motion in light of petitioners
meritorious claim that he was not given timely notice
of the date set for the preliminary conference. The
essence of due process is to be afforded a reasonable
opportunity to be heard and to submit any evidence in
support of ones claim or defense.22 It is the denial of
this opportunity that constitutes violation of due
process of law.23 More particularly, procedural due
process demands prior notice and hearing.24 As
discussed above, the fact that petitioner somehow
acquired knowledge or information of the date set for

the preliminary conference by means other than the


official notice sent by the COMELEC is not an excuse to
dismiss his protest, because it cannot be denied that
he was not afforded reasonable notice and time to
adequately prepare for and submit his brief. This is
precisely the reason why petitioner was only able to file
his Preliminary Conference Brief on the day of the
conference itself. Petitioners counsel may not likewise
be blamed for failing to appear during the scheduled
conference because of prior commitments and for,
instead, filing an Urgent Motion to Reset Preliminary
Conference.
Hence, by denying petitioners motion for
reconsideration, without taking into consideration the
violation of his right to procedural due process, the
COMELEC en banc is also guilty of grave abuse of
discretion.
WHEREFORE, the petition for certiorari is GRANTED.
The Order of the COMELEC 2nd Division dated August
12, 2010, as well as the Order of the COMELEC en banc
dated September 21, 2010, in EPC No. 2010-23 are
REVERSED and SET ASIDE. Petitioners election protest
is REINSTATED. The COMELEC 2nd Division is hereby
DIRECTED to continue with the proceedings in EPC No.
2010-23 and to resolve the same with dispatch.
US vs. CUETO
MALCOLM, J. :
In the general election held on June 6, 1916, Elias
Cueto, now the defendant and appellant, was an
election inspector for an election precinct in the
municipality of Tiaong, Province of Tayabas. For the
position of municipal president of this municipality, two
gentlemen named Mayo and Magbiray were
candidates. Toribio Briones, a qualified elector,
belonged to the Mayo party. He was given a slip
containing the slate of candidates of the Mayo faction
for the different offices, such as is circulated at election
time, and, with this in his possession, entered the
polling place. Being a disabled person, because of
failing sight and rheumatism in his hand, although still
able when necessary to read and write, Briones
secured the assistance of Cueto to prepare his ballot.
Instead, however, of copying the name of Mayo, the
candidate for municipal president found on the slip of
paper, for whom Briones desired to vote, Cueto
inserted the name of Magbiray. When once outside the
dark booth, Briones noticed that his ballot contained
the name of Magbiray and, on his objecting, a new
ballot with the name of Mayo was prepared for him by
the election inspector.
On these facts, which we find supported by the proof,
Cueto was charged with, and convicted of, a violation
of the Election Law, and sentenced to two months
imprisonment and to pay the costs. This statement,
with the addition of what is hereafter said, disposes of
the sole assignment of error by the Appellant.
The Philippine Bill and subsequent Acts of Congress
conceded to qualified persons the high prerogative of
suffrage. To carry out this purpose, the Election Law
was carefully drafted and enacted, and then revised by
the Philippine Legislature. Its primal feature was to

allow the citizen to vote secretly for whom he pleased,


free from improper influences. As was well said in the
instructive decision in Gardiner v. Romulo ([1914], 26
Phil., 521, 550):jgc:chanrobles.com.ph
"The purity of elections is one of the most important
and fundamental requisites of popular government. To
banish the spectre of revenge from the minds of the
timid or defenseless, to render precarious and
uncertain the bartering of votes, and lastly, to secure a
fair and honest count of the ballots cast, is the aim of
the law. To accomplish these ends, Act No. 1582 was
enacted. This law requires that only qualified electors
shall be admitted to the polls; that they shall vote in
absolute secrecy, and that the returns shall be justly
compiled and announced. In its essential details, this
law is a counterpart of the ballot laws almost
universally adopted within comparatively recent times
in the United States, and is generically called by
textwriters the Australian ballot law.
x
x
x
". . . The central idea of the Australian ballot law, as so
often expressed in the cases, is to shroud the marking
of the ballots in absolute secrecy. All the efforts to
secure a free and untrammeled expression of the
electors will lead up to and depart from that
point."cralaw virtua1aw library
The accused, as already remarked, was an election
inspector. To hold this office it was necessary for him to
have certain qualifications. He had to be a qualified
elector of his precinct, of good character, not convicted
of an offense involving moral turpitude, and able to
read, write, and speak either English, Spanish, or the
local dialect understandingly. The accused took an
oath, honestly and justly to administer his duties
according to the Election Law without prejudice or
favor toward any persons candidate, party, society, or
religious sect. One of his functions was, in conjunction
with another inspector (the accused, however, violated
this provision of the law by acting alone), to prepare
ballots for disabled persons. The law made it his duty,
and his duty only, with another inspector, to ascertain
the wishes of the disabled voter and to prepare the
ballot of the voter in proper form according to his
wishes. (See sections 417-424, 453, Administrative
Code of 1917.)
The election inspector in giving assistance to a
disabled voter has but one function to perform,
namely, the mechanical act of preparing the ballot. The
exercise of any discretion as to the selection of
candidates for the voter assisted is prohibited to the
marker, and the substitution of his own for the voters
choice in such selection is a flagrant violation of an
official trust. (Patton v. Watkins [1901], 131 Ala., 387;
90 Am. St. Rep., 43; Board v. Dill [1910], 26 Okla., 104;
Ann. Cas. [1912] B, 101; Re Prangley, 21 Ont. L. Rep.,
54.) An inspector who fails to write upon the ballot the
name or names expressly indicated by the voter is
guilty of a fraud practiced against the voter and thus of
a violation of the penal provisions of the Election Law.
(U. S. v. De la Serna and Callet [1909], 12 Phil., 672.)
Of course, an election officer is not responsible for a
mere mistake in judgment but only for a willful

disregard of duty. All that the law requires of an


election officer is the exercise of prudence, of
intelligent deliberation leading him to judgment; and
when he does that, although he does not live up to the
law there is no crime, because there is no criminal
intent. (See 15 Cyc., p. 344, citing numerous cases.)
But when, as in the instant case, the election officer is
given a specific duty to perform and, notwithstanding
this duty, deliberately disregards the wishes of the
voter, criminal intent exists. "The color of the act
determines the complexion of the intent. In the
investigation of human affairs, whether connected with
contract or crime, we are constrained to infer the
motive from the act. The intent to affect the result of
the election is properly presumed when unlawful acts,
which naturally or necessarily have that effect, are
proved to have been intentionally committed, or
knowingly permitted, by those having charge of such
elections." (U. S. v. Carpenter [1889], 41 Fed., 330.)
The election officer, who scorns the law which he is
sworn to enforce, undermines the entire edifice of
democratic institutions and is deserving of the severest
condemnation.
In a case which was decided by the first division of this
court and which, because of the doctrine enunciated in
the decision, should be known to all, Mr. Justice Johnson
said:jgc:chanrobles.com.ph
"Rarely are the courts called upon to decide criminal
cases which show a greater culpability on the part of
an appellant than the facts in the present case. The
appellant, by his own confession, has convicted himself
of an attempt to defeat the will of the people in their
participation in the affairs of their own selfgovernment. The people of the Philippine Islands have
been granted the right to select, by secret ballot, the
men who shall make laws for them. They have been
given a right to participate directly in the form of
government under which they live. Such a right is
among the most important and sacred of the rights of
the people in self-government, and one which must be
most vigilantly guarded if a people desires to maintain
for themselves and their posterity a republican form of
government in which the individual may, in accordance
with law, have a voice in the form of his government. If
republics are to survive and if the people are to
continue to exercise the right to govern themselves
and to directly participate in the affairs of their
government by selecting their representatives by
secret ballot, then the maxims of such a government
must be left to the watchful care and reverential
guardianship of the people. Eternal vigilance is the
price paid by a free people for a continuance of their
right to directly participate in the affairs of their
government. Designing, ambitious, corrupt, and
unscrupulous politicians, if the people are off their
guard, will ingeniously and persistently encroach upon
the rights of an unwary people, and will finally
undermine the very foundations of self-government
and the rights of the people. It behooves the people
under a free government to prosecute to the limit,
without stint or favor, every person who attempts, in
the slightest degree, to interfere with, or who attempts
to defeat, their direct participation, by secret ballot,
under the forms prescribed by law, in the affairs of
their government. If nefarious practices of officials of
the government, such as is described in the complaint

in the present case, are to be continued or permitted


by those in authority, and punishment is not meted out
speedily and severely upon those who rob the people
of their political rights, the result is generally a
revolution in which the people again repossess
themselves of the jewels of personal and political
liberty and the right to self-government, through blood
and carnage.
"The defendant not only convicts himself out of his own
mouth of an attempt to defeat the will of the people of
his district in their effort to choose their
representatives in the legislative branch of the
government, but also violated his oath of office in
which he asked God to help him honestly and justly to
administer his duties as an inspector of elections
without prejudice or favor toward any person,
candidate, party, society, or religious sect, which oath
must have been taken freely or without evasion or
mental reservation whatsoever. (Section 516. Act No.
2657: section 419, Act No. 2711.) In addition to
convicting himself of an attempt to violate the rights of
the people, together with the violation of a solemn
oath, he also convicts himself of the falsification of a
public document, and might be punished for the latter
offense in a manner very much more severe than for
the crime for which he is being tried. (Articles 300 and
301 of the Penal Code, as amended by Act No. 2712.)
"In consideration of all of the foregoing, we are of the
opinion that the maximum penalty of the law should be
imposed. Therefore, the sentence of the lower court is
hereby revoked, and it is hereby order
RULLADO vs. COMELEC
PETRONILA S. RULLODA, petitioner, vs. COMMISSION
ON ELECTIONS (COMELEC), ELECTION OFFICER
LUDIVICO L. ASUNCION OF SAN JACINTO, PANGASINAN;
BARANGAY BOARD OF CANVASSERS OF BRGY. STO.
TOMAS, SAN JACINTO, PANGASINAN, Board of Election
Tellers of Prec. Nos. 30A/30A1, 31A, 31A1, and 32A1,
and REMEGIO PLACIDO, respondents.
DECISION
YNARES-SANTIAGO, J.:
In the barangay elections of July 15, 2002, Romeo N.
Rulloda and Remegio L. Placido were the contending
candidates for Barangay Chairman of Sto. Tomas, San
Jacinto, Pangasinan. On June 22, 2002, Romeo suffered
a heart attack and passed away at the Mandaluyong
City Medical Center.[1]
His widow, petitioner Petronila Betty Rulloda, wrote a
letter to the Commission on Elections on June 25, 2002
seeking permission to run as candidate for Barangay
Chairman of Sto. Tomas in lieu of her late husband.[2]
Petitioners request was supported by the AppealPetition containing several signatures of people
purporting to be members of the electorate of
Barangay Sto. Tomas.[3]
On July 14, 2002, Election Officer Ludivico L. Asuncion
issued a directive to the Chairman and Members of the
Barangay Board of Canvassers of Sto. Tomas as follows:
Just in case the names BETTY or PETRONILA or the
surname RULLODA is written on the ballot, read the

same as it is written but add the words NOT COUNTED


like BETTY NOT COUNTED or RULLODA NOT COUNTED.
[4]
Based on the tally of petitioners watchers who were
allowed to witness the canvass of votes during the July
15, 2002 elections, petitioner garnered 516 votes while
respondent Remegio Placido received 290 votes.[5]
Despite this, the Board of Canvassers proclaimed
Placido as the Barangay Chairman of Sto. Tomas.[6]
After the elections, petitioner learned that the
COMELEC, acting on the separate requests of Andres
Perez Manalaysay and Petronila Rulloda to be
substituted as candidates for Barangay Chairman of
Barangay La Fuente, Sta. Rosa, Nueva Ecija and
Barangay Sto. Tomas, San Jacinto, Pangasinan,
respectively, issued Resolution No. 5217 dated July 13,
2002 which states:
PREMISES CONSIDERED, the Commission RESOLVED,
as it hereby RESOLVES, to ADOPT the recommendation
of the Law Department as follows:
1. To deny due course the Certificates of Candidacy of
ANDRES PEREZ MANALAYSAY and PETRONILA S.
RULLODA; and
2. To direct the Election Officer of Sta. Rosa, Nueva
Ecija and San Jacinto, Pangasinan to delete the name of
ANDRES PEREZ MANALAYSAY, candidate for Barangay
Chairman in Barangay La Fuente, Sta. Rosa, Nueva
Ecija; and the name of PETRONILA S. RULLODA,
candidate for Barangay Captain in Barangay Sto.
Tomas, San Jacinto, Pangasinan.
Let the Law Department implement this resolution.
SO ORDERED.[7]
The above-quoted Resolution cited as authority the
COMELECs Resolution No. 4801 dated May 23, 2002,
setting forth the guidelines on the filing of certificates
of candidacy in connection with the July 15, 2002
synchronized Barangay and Sangguniang Kabataan
elections, more particularly Section 9 thereof which
reads:
Sec. 9. Substitution of candidates. There shall be no
substitution of candidates for barangay and
sangguniang kabataan officials.[8]
Hence, petitioner filed the instant petition for certiorari,
seeking to annul Section 9 of Resolution No. 4801 and
Resolution No. 5217, both of the COMELEC, insofar as
they prohibited petitioner from running as substitute
candidate in lieu of her deceased husband; to nullify
the proclamation of respondent; and to proclaim her as
the duly elected Barangay Chairman of Sto. Tomas, San
Jacinto, Pangasinan.
Private respondent Remegio Placido filed his Comment,
arguing that since the barangay election is nonpartisan, substitution of candidates is not allowed.
Moreover, petitioner did not file any certificate of
candidacy; hence, there was only one candidate for
Barangay Chairman of Sto. Tomas, namely, respondent
Placido.[9]

Public respondent COMELEC also filed its Comment. It


contends that its Resolution No. 4801 was issued not
pursuant to its quasi-judicial functions but as an
incident of its inherent administrative functions over
the conduct of the barangay elections. Therefore, the
same may not be the subject of review in a petition for
certiorari. Further, the COMELEC alleges that it did not
commit grave abuse of discretion in denying due
course to petitioners certificate of candidacy and in
proclaiming respondent considering that he was the
only candidate for Barangay Chairman of Sto. Tomas.
[10]
We find merit in the petition.
At the outset, there is no dispute that petitioner
garnered 516 votes while respondent got only 290
votes. Respondents did not deny this in their respective
Comments.
In our jurisdiction, an election means the choice or
selection of candidates to public office by popular vote
through the use of the ballot, and the elected officials
which are determined through the will of the
electorate. An election is the embodiment of the
popular will, the expression of the sovereign power of
the people. The winner is the candidate who has
obtained a majority or plurality of valid votes cast in
the election. Sound policy dictates that public elective
offices are filled by those who receive the highest
number of votes cast in the election for that office. For,
in all republican forms of government the basic idea is
that no one can be declared elected and no measure
can be declared carried unless he or it receives a
majority or plurality of the legal votes cast in the
election.[11]
Respondents base their argument that the substitution
of candidates is not allowed in barangay elections on
Section 77 of the Omnibus Elections Code, which
states:
Section 77. Candidates in case of death,
disqualification or withdrawal of another. If after the
last day of the filing of certificates of candidacy, an
official candidate of a registered or accredited political
party dies, withdraws or is disqualified for any cause,
only a person belonging to, and certified by the same
political party may file a certificate of candidacy to
replace the candidate who died, withdrew or was
disqualified. The substitute candidate nominated by
the political party concerned may file his certificate of
candidacy for the office affected in accordance with the
preceding sections not later than mid-day of the
election. If the death, withdrawal or disqualification
should occur between the day before the election and
mid-day of election day, said certificate may be filed
with any board of election inspectors in the political
subdivision where he is a candidate or, in the case of
candidates to be voted by the entire electorate of the
country, with the Commission.
Private respondent argues that inasmuch as the
barangay election is non-partisan, there can be no
substitution because there is no political party from
which to designate the substitute. Such an
interpretation, aside from being non sequitur, ignores

the purpose of election laws which is to give effect to,


rather than frustrate, the will of the voters.[12] It is a
solemn duty to uphold the clear and unmistakable
mandate of the people. It is well-settled that in case of
doubt, political laws must be so construed as to give
life and spirit to the popular mandate freely expressed
through the ballot.[13]
Contrary to respondents claim, the absence of a
specific provision governing substitution of candidates
in barangay elections can not be inferred as a
prohibition against said substitution. Such a restrictive
construction cannot be read into the law where the
same is not written. Indeed, there is more reason to
allow the substitution of candidates where no political
parties are involved than when political considerations
or party affiliations reign, a fact that must have been
subsumed by law.
Private respondent likewise contends that the votes in
petitioners favor can not be counted because she did
not file any certificate of candidacy. In other words, he
was the only candidate for Barangay Chairman. His
claim is refuted by the Memorandum of the COMELEC
Law Department as well as the assailed Resolution No.
5217, wherein it indubitably appears that petitioners
letter-request to be allowed to run as Barangay
Chairman of Sto. Tomas in lieu of her late husband was
treated as a certificate of candidacy.[14]

The 1987 Constitution is unique in many ways. For one


thing, it institutionalized people power in law-making.
Learning from the bitter lesson of completely
surrendering to Congress the sole authority to make,
amend or repeal laws, the present Constitution
concurrently vested such prerogatives in the electorate
by expressly recognizing their residual and sovereign
authority to ordain legislation directly through the
concepts and processes of initiative and of referendum.
In this Decision, this Court distinguishes referendum
from initiative and discusses the practical and legal
implications of such differences. It also sets down some
guidelines in the conduct and implementation of these
two novel and vital features of popular democracy, as
well as settles some relevant questions on jurisdiction
-- all with the purpose of nurturing, protecting and
promoting the people's exercise of direct democracy.
In this action for certiorari and prohibition, petitioner
seeks to nullify the respondent Commission on
Elections' Ruling dated April 17, 1996 and Resolution
No. 2848 promulgated on June 27, 1996[1] denying
petitioner's plea to stop the holding of a local initiative
and referendum on the proposition to recall
Pambayang Kapasyahan Blg. 10, Serye 1993, of the
Sangguniang Bayan of Morong, Bataan.
The Facts

To reiterate, it was petitioner who obtained the plurality


of votes in the contested election. Technicalities and
procedural niceties in election cases should not be
made to stand in the way of the true will of the
electorate. Laws governing election contests must be
liberally construed to the end that the will of the
people in the choice of public officials may not be
defeated by mere technical objections.[15]
Election contests involve public interest, and
technicalities and procedural barriers must yield if they
constitute an obstacle to the determination of the true
will of the electorate in the choice of their elective
officials. The Court frowns upon any interpretation of
the law that would hinder in any way not only the free
and intelligent casting of the votes in an election but
also the correct ascertainment of the results.[16]
WHEREFORE, in view of the foregoing, the instant
petition is GRANTED. The assailed Resolution No. 5217
of the Commission on Elections, insofar as it denied
due course to petitioners certificate of candidacy, is
declared NULL and VOID. The proclamation of
respondent Remegio L. Placido as Barangay Chairman
of Sto. Tomas, San Jacinto, Pangasinan is SET ASIDE,
and the Board of Canvassers of the said Barangay is
ORDERED to proclaim petitioner as the duly elected
Barangay Chairman thereof.
SUBIC BAY METROPOLITAN AUTHORITY vs.
COMELEC
SUBIC BAY METROPOLITAN AUTHORITY, petitioner, vs.
COMMISSION ON ELECTIONS, ENRIQUE T. GARCIA and
CATALINO A. CALIMBAS, respondents.
DECISION
PANGANIBAN, J.:

On March 13, 1992, Congress enacted Republic Act No.


7227 (The Bases Conversion and Development Act of
1992), which among others, provided for the creation
of the Subic Special Economic Zone, thus:
"Sec. 12. Subic Special Economic Zone. - Subject to the
concurrence by resolution of the Sangguniang
Panlungsod of the City of Olongapo and the
Sangguniang Bayan of the Municipalities of Subic,
Morong and Hermosa, there is hereby created a Special
Economic and Free-port Zone consisting of the City of
Olongapo and the Municipality of Subic, Province of
Zambales, the lands occupied by the Subic Naval Base
and its contiguous extensions as embraced, covered
and defined by the 1947 Military Bases Agreement
between the Philippines and the United States of
America as amended, and within the territorial
jurisdiction of the Municipalities of Morong and
Hermosa, Province of Bataan, hereinafter referred to as
the Subic Special Economic Zone whose metes and
bounds shall be delineated in a proclamation to be
issued by the President of the Philippines. Within thirty
(30) days after the approval of this Act, each local
government unit shall submit its resolution of
concurrence to join the Subic Special Economic Zone to
the Office of the President. Thereafter, the President of
the Philippines shall issue a proclamation defining the
metes and bounds of the zone as provided herein."
(Underscoring supplied)
RA 7227 likewise created petitioner to implement the
declared national policy of converting the Subic
military reservation into alternative productive uses.[2]
Petitioner was organized with an authorized capital
stock of P20 billion which was fully subscribed and fully
paid up by the Republic of the Philippines with, among
other assets, "(a)ll lands embraced, covered and

defined in Section 12 hereof, as well as permanent


improvements and fixtures upon proper inventory not
otherwise alienated, conveyed, or transferred to
another government agency.[3]

(I) Tapusin ang pagkokonkreto ng mga daang MorongTala-Orani at Morong-Tasig-Dinalupihan para sa


kabutihan ng mga taga-Bataan at tuloy makatulong sa
pangangalaga ng mga kabundukan.

On November 24, 1992, the American navy turned over


the Subic military reservation to the Philippine
government. Immediately, petitioner commenced the
implementation of its task, particularly the
preservation of the seaports, airports, buildings,
houses and other installations left by the American
navy.

(J) Magkakaroon ng sapat na representasyon sa


pamunuan ng SBMA ang Morong, Hermosa at Bataan."

In April 1993, the Sangguniang Bayan of Morong,


Bataan passed a Pambayang Kapasyahan Bilang 10,
Serye 1993, expressing therein its absolute
concurrence, as required by said Sec. 12 of RA 7227, to
join the Subic Special Economic Zone. On September 5,
1993, the Sangguniang Bayan of Morong submitted
Pambayang Kapasyahan Bilang 10, Serye 1993 to the
Office of the President.
On May 24, 1993, respondents Garcia, Calimbas and
their companions filed a petition with the Sangguniang
Bayan of Morong to annul Pambayang Kapasyahan Blg.
10, Serye 1993. The petition prayed for the following:
"I. Bawiin, nulipikahin at pawalang-bisa ang
Pambayang Kapasyahan Blg. 10 Serye 1993 ng
Sangguniang Bayan para sa pag-anib ng Morong sa
SSEFZ na walang kundisyon.

The Sangguniang Bayan of Morong acted upon the


petition of respondents Garcia, Calimbas, et al. by
promulgating Pambayang Kapasyahan Blg. 18, Serye
1993, requesting Congress of the Philippines to amend
certain provisions of R.A. No. 7227, particularly those
concerning the matters cited in items (A), (B), (K), (E)
and (G) of private respondents' petition. The
Sangguniang Bayan of Morong also informed
respondents that items (D) and (H) had already been
referred to and favorably acted upon by the
government agencies concerned, such as the Bases
Conversion Development Authority and the Office of
the President.
Not satisfied, and within 30 days from submission of
their petition, herein respondents resorted to their
power of initiative under the Local Government Code of
1991,[4] Sec. 122 paragraph (b) of which provides as
follows:
"Sec. 122. Procedure in Local Initiative. xxxxxxxxx

II. Palitan ito ng isang Pambayang kapasiyahan na


aanib lamang ang Morong sa SSEFZ kung ang mga
sumusunod na kondisyones ay ipagkakaloob,
ipatutupad at isasagawa para sa kapakanan at interes
ng Morong at Bataan:

(b) If no favorable action thereon is taken by the


sanggunian concerned, the proponents, through their
duly authorized and registered representatives, may
invoke their power of initiative, giving notice thereof to
the sanggunian concerned.

(A) Ibalik sa Bataan ang 'Virgin Forests' -- isang bundok


na hindi nagagalaw at punong-puno ng malalaking
punong-kahoy at iba't-ibang halaman.

x x x x x x x x x."

(B) Ihiwalay ang Grande Island sa SSEFZ at ibalik ito sa


Bataan.
(K) Isama ang mga lupain ng Bataan na nakapaloob sa
SBMA sa pagkukuenta ng salaping ipinagkaloob ng
pamahalaang national o 'Internal Revenue Allotment'
(IRA) sa Morong, Hermosa at sa Lalawigan.
(D) Payagang magtatag rin ng sariling 'special
economic zones' ang bawat bayan ng Morong,
Hermosa at Dinalupihan.
(E) Ibase sa laki ng kanya-kanyang lupa ang
pamamahagi ng kikitain ng SBMA.
(G) Ibase rin ang alokasyon ng pagbibigay ng trabaho
sa laki ng nasabing mga lupa.
(H) Pabayaang bukas ang pinto ng SBMA na nasa
Morong ng 24 na oras at bukod dito sa magbukas pa
ng pinto sa hangganan naman ng Morong at Hermosa
upang magkaroon ng pagkakataong umunlad rin ang
mga nasabing bayan, pati na rin ng iba pang bayan ng
Bataan.

On July 6, 1993, respondent Commission En Banc in


Comelec Resolution No. 93-1623 denied the petition for
local initiative by herein private respondents on the
ground that the subject thereof was merely a resolution
(pambayang kapasyahan) and not an ordinance. On
July 13, 1993, public respondent Comelec En Banc
(thru Comelec Resolution no. 93-1676) further directed
its Provincial Election Supervisor to hold action on the
authentication of signatures being solicited by private
respondents.
On August 15, 1993, private respondents instituted a
petition for certiorari and mandamus[5] before this
Court against the Commission on Elections and the
Sangguniang Bayan of Morong, Bataan, to set aside
Comelec Resolution No. 93-1623 insofar as it
disallowed the conduct of a local initiative to annul
Pambayang Kapasyahan Bilang 10, Serye 1993, and
Comelec Resolution No. 93-1676 insofar as it prevented
the Provincial Election Supervisor of Bataan from
proceeding with the authentication of the required
number of signatures in support of the initiative and
the gathering of signatures.
On February 1, 1995, pursuant to Sec. 12 of RA 7227,
the President of the Philippines issued proclamation No.
532 defining the metes and bounds of the SSEZ. Said
proclamation included in the SSEZ all the lands within

the former Subic Naval Base, including Grande Island


and that portion of the former naval base within the
territorial jurisdiction of the Municipality of Morong.
On June 18, 1996, respondent Comelec issued
Resolution No. 2845, adopting therein a "Calendar of
Activities for local referendum on certain municipal
ordinance passed by the Sangguniang Bayan of
Morong, Bataan", and which indicated, among others,
the scheduled referendum Day (July 27, 1996,
Saturday). On June 27, 1996, the Comelec promulgated
the assailed Resolution No. 2848 providing for "the
rules and guidelines to govern the conduct of the
referendum proposing to annul or repeal Kapasyahan
Blg. 10, Serye 1993 of the Sangguniang Bayan of
Morong, Bataan".
On July 10, 1996, petitioner instituted the present
petition for certiorari and prohibition contesting the
validity of Resolution No. 2848 and alleging, inter alia,
that public respondent "is intent on proceeding with a
local initiative that proposes an amendment of a
national law. x x x"
The Issues
The petition[6] presents the following "argument":
"Respondent Commission on Elections committed
grave abuse of discretion amounting to lack of
jurisdiction in scheduling a local initiative which seeks
the amendment of a national law."
In his Comment, private respondent Garcia claims that
(1) petitioner has failed to show the existence of an
actual case or controversy; (2) x x x petitioner seeks to
overturn a decision/judgment which has long become
final and executory; (3) x x x public respondent has not
abused its discretion and has in fact acted within its
jurisdiction; (and) (4) x x x the concurrence of local
government units is required for the establishment of
the Subic Special Economic Zone."
Private respondent Calimbas, now the incumbent
Mayor of Morong, in his Reply (should be Comment)
joined petitioner's cause because "(a)fter several
meetings with petitioner's Chairman and staff and after
consultation with legal counsel, respondent Calimbas
discovered that the demands in the petition for a local
initiative/referendum were not legally feasible."[7]
The Solicitor General, as counsel for public respondent,
identified two issues, as follows:
"1. Whether or not the Comelec can be enjoined from
scheduling/conducting the local intiative proposing to
annul Pambayang Kapasyahan Blg. 10, Serye 1993 of
the Sangguniang Bayan of Morong, Bataan.
2. Whether or not the Comelec committed grave abuse
of discretion in denying the request of petitioner SBMA
to stop the local initiative."

respondent Enrique T. Garcia, dated July 22, 1996 and


(2) NOTE the: (a) Reply (should be comment) to the
petition for certiorari and prohibition with prayer for
temporary restraining order and/or writ of preliminary
injunctiom, filed by counsel for respondent Catalino
Calimbas, dated July 22, 1996; (b) Separate Comments
on the petition, filed by: (b-1) the Solicitor General for
respondent Commission on Elections dated July 19,
1996 and (b-2) counsel for private respondent Enrique
T. Garcia, dated July 22, 1996 and (c) Manifestation
filed by counsel for petitioner dated July 22, 1996.
At the hearing of this case this morning, Atty. Rodolfo
O. Reyes appeared and argued for petitioner Subic Bay
Metropolitan Authority (SBMA) while Atty. Sixto
Brillantes for private respondent Enrique T. Garcia, and
Atty. Oscar L. Karaan for respondent Catalino Calimbas.
Solicitor General Raul Goco, Assistant Solicitor General
Cecilio O. Estoesta and Solicitor Zenaida HernandezPerez appeared for respondent Commission on
Elections with Solicitor General Goco arguing.
Before the Court adjourned, the Court directed the
counsel for both parties to INFORM this Court by Friday,
July 26, 1996, whether or not Commission on Elections
would push through with the initiative/referendum this
Saturday, July 27, 1996.
Thereafter, the case shall be considered SUBMITTED for
resolution.
At 2:50 p.m. July 23, 1996, the Court received by
facsimile transmission an Order dated also on July 23,
1996 from the respondent Commission on Elections En
Banc inter alia 'to hold in abeyance the scheduled
referendum (initiative) on July 27, 1996 pending
resolution of G.R. No. 125416.' In view of this Order,
the petitioner's application for a temporary restraining
order and/or writ of preliminary injunction has become
moot and academic and will thus not be passed upon
by this Court at this time. Puno, J., no part due to
relationship. Bellosillo, J., is on leave."
After careful study of and judicious deliberation on the
submissions and arguments of the parties, the Court
believes that the issues may be restated as follows:
(1) Whether this petition "seeks to overturn a
decision/judgment which has long become final and
executory"; namely G.R. No. 111230, Enrique Garcia, et
al. vs. Commission on Elections, et al.;
(2) Whether the respondent Comelec committed grave
abuse of discretion in promulgating and implementing
its Resolution No. 2848 which "govern(s) the conduct of
the referendum proposing to annul or repeal
Pambayang Kapasyahan Blg. 10, Serye 1993 of the
Sangguniang Bayan of Morong, Bataan;" and
(3) Whether the questioned local initiative covers a
subject within the powers of the people of Morong to
enact; i.e., whether such initiative "seeks the
amendment of a national law."

On July 23, 1996, the Court heard oral argument by the


parties, after which, it issued the following resolution:

First Issue: Bar by Final Judgment

"The Court Resolved to (1) GRANT the Motion to Admit


the Attached Comment filed by counsel for private

Respondent Garcia contends that this Court had


already ruled with finality in Enrique T. Garcia, et al. vs.

Commission on Elections, et. al.[8] on "the very issue


raised in (the) petition: whether or not there can be an
initiative by the people of Morong, Bataan on the
subject proposition -- the very same proposition, it
bears emphasizing, the submission of which to the
people of Morong, Bataan is now sought to be enjoined
by petitioner x x x".
We disagree. The only issue resolved in the earlier
Garcia case is whether a municipal resolution as
contra-distinguished from an ordinance may be the
proper subject of an initiative and/or referendum. We
quote from our said Decision:[9]
"In light of this legal backdrop, the essential issue to be
resolved in the case at bench is whether Pambayang
Kapasyahan Blg. 10, serye 1993 of the Sangguniang
Bayan of Morong, Bataan is the proper subject of an
initiative. Respondents take the negative stance as
they contend that under the Local Government Code of
1991 only an ordinance can be the subject of initiative.
They rely on Section 120, Chapter 2, Title XI, Book I of
the Local Government Code of 1991 which provides:
'Local Initiative Defined. -- Local initiative is the legal
process whereby the registered voters of a local
government unit may directly propose, enact, or
amend any ordinance.'
We reject respondent's narrow and literal reading of
the above provision for it will collide with the
Constitution and will subvert the intent of the
lawmakers in enacting the provisions of the Local
Government of 1991 on initiative and referendum.
The Constitution clearly includes not only ordinances
but resolutions as appropriate subjects of a local
initiative. Section 32 of Article VI provides in luminous
language: 'The Congress shall, as early as possible,
provide for a system of initiative and referendum, and
the exceptions therefrom, whereby the people can
directly propose and enact laws or approve or reject
any act or law or part thereof passed by the Congress,
or local legislative body x x x'. An act includes a
resolution. Black defines an acts 'an expression of will
or purpose . . . it may denote something done . . . as a
legislature, including not merely physical acts, but also
decrees, edicts, laws, judgement, resolves, awards and
determination x x x.' It is basic that a law should be
construed in harmony with and not in violation of the
Constitution. In line with this postulates, we held in In
Re Guarina that if there is doubt or uncertainly as to
the meaning of the legislative, if the words or
provisions are obscure, or if the enactment is fairly
susceptible of two or more construction, that
interpretations will be adopted which will avoid the
effect of unconstitutionality, even though it may be
necessary, for this purpose, to disregard the more
usual or apparent import of the language used.' "
Moreover, we reviewed our rollo in said G.R. No.
111230 and we found that the sole issue presented by
the pleadings was the question of "whether or not a
Sangguniang Bayan Resolution can be the subject of a
valid initiative or referendum".[10]
In the present case, petitioner is not contesting the
propriety of municipal resolution as the form by which
these two new constitutional prerogatives of the people

may validly exercised. What is at issue here is whether


Pambayang Kapasyahan Blg. 10, Serye 1993, as
worded, is sufficient in form and substance for
submission to the people for their approval; in fine,
whether the Comelec acted properly and juridically in
promulgating and implementing Resolution No. 2848.
Second Issue: Sufficiency of Comelec Resolution No.
2848
The main issue in this case may be re-started thus: Did
respondent Comelec commit grave abuse of discretion
in promulgating and implementing Resolution No.
2848?
We answer the question in the affirmative.
To begin with, the process started by private
respondents was an INITIATIVE but respondent
Comelec made preparations for a REFERENDUM only. In
fact, in the body of the Resolution[11] as reproduced in
the footnote below the word "referendum" is repeated
at least 27 times, but "initiative" is not mentioned at
all. The Comelec labeled the exercise as a
"Referendum"; the counting of votes was entrusted to
a "Referendum Committee"; the documents were
called "referendum returns"; the canvassers,
"Referendum Board of Canvassers" and the ballots
themselves bore the description "referendum". To
repeat, not once was the word "initiative" used in said
body of Resolution No. 2848. And yet, this exercise is
unquestionably an INITIATIVE.
There are statutory and conceptual demarcations
between a referendum and an initiative. In enacting
the "Initiative and Referendum Act,[12] Congress
differentiated one term from the other, thus:
(a) "Initiative" is the power of the people to propose
amendments to the Constitution or to propose and
enact legislations through an election called for the
purpose.
There are three (3) systems of initiative, namely:
a.1. Initiative on the Constitution which refers to a
petition proposing amendments to the Constitution;
a.2. Initiative on statutes which refers to a petition
proposing to enact a national legislation; and
a.3. Initiative on local legislation which refers to a
petition proposing to enact a regional, provincial, city,
municipal, or barangay law, resolution or ordinance.
(b) "Indirect initiative" is exercise of initiative by the
people through a proposition sent to Congress or the
local legislative body for action.
(c) "Referendum" is the power of the electorate to
approve or reject a legislation through an election
called for the purpose. It may be of two classes,
namely:
c.1. Referendum on statutes which refers to a petition
to approve or reject an act or law, or part thereof,
passed by Congress; and

c.2. Referendum on local law which refers to a petition


to approve or reject a law, resolution or ordinance
enacted by regional assemblies and local legislative
bodies.
Along these statutory definitions, Justice Isagani A.
Cruz[13] defines initiative as the "power of the people
to propose bills and laws, and to enact or reject them
at the polls independent of the legislative assembly."
On the other hand, he explains that referendum "is the
right reserved to the people to adopt or reject any act
or measure which has been passed by a legislative
body and which in most cases would without action on
the part of electors become a law." The foregoing
definitions, which are based on Black's[14] and other
leading American authorities, are echoed in the Local
Government Code (RA 7160) substantially as follows:
"SEC. 120. Local Initiative Defined. -- Local Initiative is
the legal process whereby the registered voters of a
local government unit may directly propose, enact, or
amend any ordinance.
"SEC. 126. Local Referendum Defined. -- Local
referendum is the legal process whereby the registered
voters of the local government units may approve,
amend or reject any ordinance enacted by the
sanggunian.
The local referendum shall be held under the control
and direction of the Comelec within sixty (60) days in
case of provinces and cities, forty-five (45) days in case
of municipalities and thirty (30) days in case of
barangays.
The Comelec shall certify and proclaim the results of
the said referendum."
Prescinding from these definitions, we gather that
initiative is resorted to (or initiated) by the people
directly either because the law-making body fails or
refuses to enact the law, ordinance, resolution or act
that they desire or because they want to amend or
modify one already existing. Under Sec. 13 of R.A.
6735, the local legislative body is given the opportunity
to enact the proposal. If its refuses/neglects to do so
within thirty (30) days from its presentation, the
proponents through their duly-authorized and
registered representatives may invoke their power of
initiative, giving notice thereof to the local legislative
body concerned. Should the proponents be able to
collect the number of signed conformities within the
period granted by said statute, the Commission on
Elections "shall then set a date for the initiative (not
referendum) at which the proposition shall be
submitted to the registered voters in the local
government unit concerned x x x".
On the other hand, in a local referendum, the lawmaking body submits to the registered voters of its
territorial jurisdiction, for approval or rejection, any
ordinance or resolution which is duly enacted or
approved by such law-making authority. Said
referendum shall be conducted also under the control
and direction of the Commission on Elections.[15]
In other words, while initiative is entirely the work of
the electorate, referendum is begun and consented to

by the law-making body. Initiative is a process of lawmaking by the people themselves without the
participation and against the wishes of their elected
representatives, while referendum consists merely of
the electorate approving or rejecting what has been
drawn up or enacted by a legislative body. Hence, the
process and the voting in an initiative are
understandably more complex than in a referendum
where expectedly the voters will simply write either
"Yes" or "No" in the ballot.
[Note: While the above quoted laws variously refer to
initiative and referendum as "powers" or "legal
processes", these can also be "rights", as Justice Cruz
terms them, or "concepts", or "the proposal" itself (in
the case of initiative) being referred to in this
Decision.]
From the above differentiation, it follows that there is
need for the Comelec to supervise an initiative more
closely, its authority thereon extending not only to the
counting and canvassing of votes but also to seeing to
it that the matter or act submitted to the people is in
the proper form and language so it may be easily
understood and voted upon by the electorate. This is
especially true where the proposed legislation is
lengthy and complicated, and should thus be broken
down into several autonomous parts, each such part to
be voted upon separately. Care must also be exercised
that "(n)o petition embracing more than one subject
shall be submitted to the electorate,"[16] although
"two or more propositions may be submitted in an
initiative".[17]
It should be noted that under Sec. 13 (c) of RA 6735,
the "Secretary of Local Government or his designated
representative shall extend assistance in the
formulation of the proposition."
In initiative and referendum, the Comelec exercises
administration and supervision of the process itself,
akin to its powers over the conduct of elections. These
law-making powers belong to the people, hence the
respondent Commission cannot control or change the
substance or the content of legislation. In the exercise
of its authority, it may (in fact it should have done so
already) issue relevant and adequate guidelines and
rules for the orderly exercise of these "people-power"
features of our Constitution.
Third Issue: Withdrawal of Adherence and Imposition of
Conditionalities -- Ultra Vires?
Petitioner maintains that the proposition sought to be
submitted in the plebiscite, namely, Pambayang
Kapasyahan Blg. 10, Serye 1993, is ultra vires or
beyond the powers of the Sangguniang Bayan to enact,
[18] stressing that under Sec. 124 (b) of RA 7160 (the
Local Government Code), "local initiative shall cover
only such subjects or matters as are within the legal
powers of the sanggunians to enact." Elsewise stated,
a local initiative may enact only such ordinances or
resolutions as the municipal council itself could, if it
decided to so enact.[19] After the Sangguniang Bayan
of Morong and the other municipalities concerned
(Olongapo, Subic and Hermosa) gave their resolutions
of concurrence, and by reason of which the SSEZ had
been created, whose metes and bounds had already

been delineated by Proclamation No. 532 issued on


February 1, 1995 in accordance with Section 12 of R.A.
No. 7227, the power to withdraw such concurrence
and/or to substitute therefore a conditional
concurrence is no longer within the authority and
competence of the Municipal Council of Morong to
legislate. Furthermore, petitioner adds, the specific
conditionalities included in the questioned municipal
resolution are beyond the powers of the Council to
impose. Hence, such withdrawal can no longer be
enacted or conditionalities imposed by initiative. In
other words, petitioner insists, the creation of SSEZ is
now a fait accompli for the benefit of the entire nation.
Thus, Morong cannot unilaterally withdraw its
concurrence or impose new conditions for such
concurrence as this would effectively render nugatory
the creation by (national) law of the SSEZ and would
deprive the entire nation of the benefits to be derived
therefrom. Once created, SSEZ has ceased to be a local
concern. It has become a national project.
On the other hand, private respondent Garcia counters
that such argument is premature and conjectural
because at this point, the resolution is just a proposal.
If the people should reject it during the referendum,
then there is nothing to declare as illegal.
Deliberating on this issue, the Court agrees with
private respondent Garcia that indeed, the municipal
resolution is still in the proposal stage. It is not yet an
approved law. Should the people reject it, then there
would be nothing to contest and to adjudicate. It is only
when the people have voted for it and it has become
an approved ordinance or resolution that rights and
obligations can be enforced or implemented
thereunder. At this point, it is merely a proposal and
the writ of prohibition cannot issue upon a mere
conjecture or possibility. Constitutionally speaking,
courts may decide only actual controversies, not
hypothetical questions or cases.[20]
We also note that the Initiative and Referendum Act
itself provides[21] that "(n)othing in this Act shall
prevent or preclude the proper courts from declaring
null and void any proposition approved pursuant to this
Act x x x."
So too, the Supreme Court is basically a review court.
[22] It passes upon errors of law (and sometimes of
fact, as in the case of mandatory appeals of capital
offenses) of lower courts as well as determines
whether there had been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part
of any "branch or instrumentality" of government. In
the present case, it is quite clear that the Court has
authority to review Comelec Resolution No. 2848 to
determine the commission of grave abuse of
discretion. However, it does not have the same
authority in regard to the proposed initiative since it
has not been promulgated or approved, or passed
upon by any "branch or instrumentality" or lower court,
for that matter. The Commission on Elections itself has
made no reviewable pronouncements about the issues
brought by the pleadings. The Comelec simply included
verbatim the proposal in its questioned Resolution No.
2848. Hence, there is really no decision or action made
by a branch, instrumentality or court which this Court

could take cognizance of and acquire jurisdiction over,


in the exercise of its review powers.
Having said that, we are in no wise suggesting that the
Comelec itself has no power to pass upon proposed
resolutions in an initiative. Quite the contrary, we are
ruling that these matters are in fact within the
initiatory jurisdiction of the Commission -- to which
then the herein basic questions ought to have been
addressed, and by which the same should have been
decided in the first instance. In other words, while
regular courts may take jurisdiction over "approved
propositions" per said Sec. 18 of R.A. 6735, the
Comelec in the exercise of its quasi-judicial and
administrative powers may adjudicate and pass upon
such proposals insofar as their form and language are
concerned, as discussed earlier; and it may be added,
even as to content, where the proposals or parts
thereof are patently and clearly outside the "capacity
of the local legislative body to enact."[23] Accordingly,
the question of whether the subject of this initiative is
within the capacity of the Municipal Council of Morong
to enact may be ruled upon by the Comelec upon
remand and after hearing the parties thereon.
While on the subject of capacity of the local lawmaking
body, it would be fruitful for the parties and the
Comelec to plead and adjudicate, respectively, the
question of whether Grande Island and the "virgin
forests" mentioned in the proposed initiative belong to
the national government and thus cannot be
segregated from the Zone and "returned to Bataan" by
the simple expedient of passing a municipal resolution.
We note that Sec. 13 (e) of R.A. 7227 speaks of the full
subscription and payment of the P20 billion authorized
capital stock of the Subic Authority by the Republic,
with, aside from cash and other assets, the "... lands,
embraced, covered and defined in Section 12
hereof, ..." which includes said island and forests. The
ownership of said lands is a question of fact that may
be taken up in the proper forum -- the Commission on
Elections.
Another question which the parties may wish to submit
to the Comelec upon remand of the initiative is
whether the proposal, assuming it is within the
capacity of the Municipal Council to enact, may be
divided into several parts for purposes of voting. Item
"I" is a proposal to recall, nullify and render without
effect (bawiin, nulipikahin at pawalangbisa) Municipal
Resolution No. 10, Series of 1993. On the other hand,
Item "II" proposes to change or replace (palitan) said
resolution with another municipal resolution of
concurrence provided certain conditions enumerated
thereunder would be granted, obeyed and
implemented (ipagkakaloob, ipatutupad at isasagawa)
for the benefit and interest of Morong and Bataan. A
voter may favor Item I -- i.e., he may want a total
dismemberment of Morong from the Authority -- but
may not agree with any of the conditions set forth in
Item II. Should the proposal then be divided and be
voted upon separately and independently?
All told, we shall not pass upon the third issue of ultra
vires on the ground of prematurity.
Epilogue

In sum, we hold that (i) our decision in the earlier


Garcia case is not a bar to the present controversy as
the issue raised and decided therein is different from
the questions involved here; (ii) the respondent
Commission should be given an opportunity to review
and correct its errors in promulgating its Resolution No.
2848 and in preparing -- if necessary -- for the
plebiscite; and (iii) that the said Commission has
administrative and initiatory quasi-judicial jurisdiction
to pass upon the question of whether the proposal is
sufficient in form and language and whether such
proposal or part or parts thereof are clearly and
patently outside the powers of the municipal council of
Morong to enact, and therefore violative of law.
In deciding this case, the Court realizes that initiative
and referendum, as concepts and processes, are new
in our country. We are remanding the matter to the
Comelec so that proper corrective measures, as above
discussed, may be undertaken, with a view to helping
fulfill our people's aspirations for the actualization of
effective direct sovereignty. Indeed we recognize that
"(p)rovisions for initiative and referendum are liberally
construed to effectuate their purposes, to facilitate and
not to hamper the exercise by the voters of the rights
granted thereby."[24] In his authoritative treatise on
the Constitution, Fr. Joaquin G. Bernas, S.J. treasures
these "instruments which can be used should the
legislature show itself indifferent to the needs of the
people."[25] Impelled by a sense of urgency, Congress
enacted Republic Act No. 6735 to give life and form to
the constitutional mandate. Congress also interphased
initiative and referendum into the workings of local
governments by including a chapter on this subject in
the local Government Code of 1991.[26] And the
Commission on Elections can do no less by seasonably
and judiciously promulgating guidelines and rules, for
both national and local use, in implementation of these
laws. For its part, this Court early on expressly
recognized the revolutionary import of reserving
people power in the process of law-making.[27]
Like elections, initiative and referendum are powerful
and valuable modes of expressing popular sovereignty.
And this Court as a matter of policy and doctrine will
exert every effort to nurture, protect and promote their
legitimate exercise. For it is but sound public policy to
enable the electorate to express their free and
untrammeled will, not only in the election of their
anointed lawmakers and executives, but also in the
formulation of the very rules and laws by which our
society shall be governed and managed.
WHEREFORE the petition is GRANTED. Resolution No.
2848 is ANNULLED and SET ASIDE. The initiative on
Pambayang Kapasyahan Blg. 10, Serye 1993 is
REMANDED to the Commission on Elections for further
proceedings consistent with the foregoing discussion.
No costs.
CLAUDIO vs. COMELEC
JOVITO O. CLAUDIO, petitioner, vs. COMMISSION ON
ELECTIONS, DEPARTMENT OF BUDGET AND
MANAGEMENT, COMMISSION ON AUDIT and RICHARD
ADVINCULA, respondents.
[G.R. No. 140714. May 4, 2000]

PREPARATORY RECALL ASSEMBLY OF PASAY CITY,


herein represented by its Chairman, RICHARD
ADVINCULA, petitioner, vs. THE COMMISSION ON
ELECTIONS, DEPARTMENT OF BUDGET AND
MANAGEMENT, COMMISSION ON AUDIT and HON.
JOVITO O. CLAUDIO, respondents.
DECISION
MENDOZA, J.:
These are petitions arising from the proceedings
initiated by the Preparatory Recall Assembly of Pasay
City (PRA) in the Commission on Elections in E.M. No.
99-005 entitled IN THE MATTER OF THE PREPARATORY
RECALL ASSEMBLY RESOLUTION NO. 01, S-1999
ADOPTED ON 29 MAY 1999 FOR THE RECALL OF MAYOR
JOVITO CLAUDIO OF PASAY CITY. G.R. No. 140560 is a
petition for certiorari and prohibition, seeking the
nullification of the resolution,[1] dated October 18,
1999, of the COMELEC giving due course to the petition
for the recall of petitioner Jovito O. Claudio as mayor of
Pasay City. On the other hand, G.R. No. 140714 is a
petition for mandamus filed by the PRA, represented by
its Chair, Richard Advincula, to compel the COMELEC to
set the date for the holding of recall elections in Pasay
City pursuant to the aforecited resolution of the
COMELEC.
The facts are as follows:
Jovito O. Claudio, petitioner in G.R. No. 140560, was the
duly elected mayor of Pasay City in the May 11, 1998
elections. He assumed office on July 1, 1998.
Sometime during the second week of May 1999, the
chairs of several barangays in Pasay City gathered to
discuss the possibility of filing a petition for recall
against Mayor Claudio for loss of confidence. On May
19, 1999, at the residence of barangay chair Benjamin
Lim, Jr. in Barangay 11, Zone 4, Pasay City, several
barangay chairs formed an ad hoc committee for the
purpose of convening the PRA. Richard Advincula,
private respondent in G.R. No. 140560 and petitioner in
G.R. No. 140714, was designated chair.
On May 29, 1999, 1,073 members of the PRA
composed of barangay chairs, kagawads, and
sangguniang kabataan chairs of Pasay City, adopted
Resolution No. 01, S-1999, entitled RESOLUTION TO
INITIATE THE RECALL OF JOVITO O. CLAUDIO AS MAYOR
OF PASAY CITY FOR LOSS OF CONFIDENCE. In a letter
dated June 29, 1999, Advincula, as chair of the PRA,
invited the Mayor, Vice-Mayor, Station Commander,
and thirteen (13) Councilors of Pasay City to witness
the formal submission to the Office of the Election
Officer on July 2, 1999 of the petition for recall. Mesm
As scheduled, the petition for recall was filed on July 2,
1999, accompanied by an affidavit of service of the
petition on the Office of the City Mayor. Pursuant to the
rules of the COMELEC, copies of the petition were
posted on the bulletin boards of the local COMELEC
office, the City Hall, the Police Department, the public
market at Libertad St. and Taft Avenue, and at the
entrance of the Sta. Clara Church on P. Burgos St., all in
Pasay City. Subsequently, a verification of the

authenticity of the signatures on the resolution was


conducted by Ligaya Salayon, the election officer for
Pasay City designated by the COMELEC.
Oppositions to the petition were filed by petitioner
Jovito O. Claudio, Rev. Ronald Langub, and Roberto L.
Angeles, alleging procedural and substantive defects in
the petition, to wit: (1) the signatures affixed to the
resolution were actually meant to show attendance at
the PRA meeting; (2) most of the signatories were only
representatives of the parties concerned who were
sent there merely to observe the proceedings; (3) the
convening of the PRA took place within the one-year
prohibited period; (4) the election case,[2] filed by
Wenceslao Trinidad in this Court, seeking the
annulment of the proclamation of petitioner Claudio as
mayor of Pasay City, should first be decided before
recall proceedings against petitioner could be filed; and
(5) the recall resolution failed to obtain the majority of
all the members of the PRA, considering that 10 were
actually double entries, 14 were not duly accredited
members of the barangays, 40 sangguniang kabataan
officials had withdrawn their support, and 60 barangay
chairs executed affidavits of retraction. Slx
In its resolution of October 18, 1999, the COMELEC
granted the petition for recall and dismissed the
oppositions against it. On the issue of whether the PRA
was constituted by a majority of its members, the
COMELEC held that the 1,073 members who attended
the May 29, 1999 meeting were more than necessary
to constitute the PRA, considering that its records
showed the total membership of the PRA was 1,790,
while the statistics of the Department of Interior and
Local Government (DILG) showed that the total
membership of the PRA was 1,876. In either case, since
only a majority is required to constitute the PRA,
clearly, a majority had been obtained in support of the
recall resolution. Based on the verification made by
election officer Ligaya Salayon, the COMELEC found the
signatures of 958 members of the PRA sufficient. On
whether the pendency of the case questioning the
proclamation of petitioner was a prejudicial question
which must first be decided before any recall election
could be held, the COMELEC ruled that it was not and
that petitioner was merely using the pendency of the
case to delay the recall proceedings. Finally, on
whether the petition for recall violated the bar on recall
within one year from the elective official's assumption
of office, the COMELEC ruled in the negative, holding
that recall is a process which starts with the filing of
the petition for recall. Since the petition was filed on
July 2, 1999, exactly one year and a day after
petitioner Claudio's assumption of office, it was held
that the petition was filed on time.
Hence, these petitions. Oral arguments were held in
these cases in Baguio City on April 4, 2000, after which
the Court, by the vote of 8 to 6 of its members,[3]
resolved to dismiss the petition in G.R. No. 140560 for
lack of showing that the COMELEC committed a grave
abuse of discretion. On the other hand, the Court
unanimously dismissed the petition in G.R. No. 140714
on the ground that the issue raised therein had
become moot and academic.
We now proceed to explain the grounds for our
resolution.

In its Resolution No. 3121, dated March 9, 2000, the


COMELEC set the date of the recall elections in Pasay
City on April 15, 2000. Consequently, the petition for
mandamus in G.R. No. 140714 to compel the COMELEC
to fix a date for the recall elections in Pasay City is no
longer tenable. We are thus left with only petitioner
Claudio's action for certiorari and prohibition.
The bone of contention in this case is 74 of the Local
Government Code (LCG)[4] which provides: Scslx
Limitations on Recall. - (a) Any elective local official
may be the subject of a recall election only once during
his term of office for loss of confidence.
(b) No recall shall take place within one (1) year from
the date of the official's assumption to office or one (1)
year immediately preceding a regular local election.
As defined at the hearing of these cases on April 4,
2000, the issues are:
WHETHER, under Section 74 of the Local Government
Code of 1991 (R.A. No. 7160) ...
A. The word "recall" in paragraph (b) covers a process
which includes the convening of the Preparatory Recall
Assembly and its approval of the recall resolution.
B. The term "regular local election" in the last clause of
paragraph (b) includes the election period for that
regular election or simply the date of such election.
(1)
On Whether the Word "Recall" in Paragraph (b) of 74 of
the Local Government Code Includes the Convening of
the Preparatory Recall Assembly and the Filing by it of
a Recall Resolution
Petitioner contends that the term "recall" in 74(b)
refers to a process, in contrast to the term "recall
election" found in 74(a), which obviously refers to an
election. He claims that "when several barangay
chairmen met and convened on May 19, 1999 and
unanimously resolved to initiate the recall, followed by
the taking of votes by the PRA on May 29, 1999 for the
purpose of adopting a resolution to initiate the recall of
Jovito Claudio as Mayor of Pasay City for loss of
confidence, the process of recall began" and, since May
29, 1999 was less than a year after he had assumed
office, the PRA was illegally convened and all
proceedings held thereafter, including the filing of the
recall petition on July 2, 1999, were null and void. Slxsc
The COMELEC, on the other hand, maintains that the
process of recall starts with the filing of the petition for
recall and ends with the conduct of the recall election,
and that, since the petition for recall in this case was
filed on July 2, 1999, exactly one year and a day after
petitioner's assumption of office, the recall was validly
initiated outside the one-year prohibited period.
Both petitioner Claudio and the COMELEC thus agree
that the term "recall" as used in 74 refers to a process.
They disagree only as to when the process starts for

purposes of the one-year limitation in paragraph (b) of


74.
We can agree that recall is a process which begins with
the convening of the preparatory, recall assembly or
the gathering of the signatures at least 25% of the
registered voters of a local government unit, and then
proceeds to the filing of a recall resolution or petition
with the COMELEC, the verification of such resolution
or petition, the fixing of the date of the recall election,
and the holding of the election on the scheduled date.
[5] However, as used in paragraph (b) of 74, "recall"
refers to the election itself by means of which voters
decide whether they should retain their local official or
elect his replacement. Several reasons can be cited in
support of this conclusion.
First, 74 deals with restrictions on the power of recall. It
is in fact entitled "Limitations on Recall." On the other
hand, 69 provides that "the power of recall ...shall be
exercised by the registered voters of a local
government unit to which the local elective official
belongs." Since the power vested on the electorate is
not the power to initiate recall proceedings[6] but the
power to elect an official into office, the limitations in
74 cannot be deemed to apply to the entire recall
proceedings. In other words, the term "recall" in
paragraph (b) refers only to the recall election,
excluding the convening of the PRA and the filing of a
petition for recall with the COMELEC, or the gathering
of the signatures of at least 25 % of the voters for a
petition for recall.
Thus, there may be several PRAs held (as in the case of
Bataan Province in 1993) or petitions for recall filed
with the COMELEC - there is no legal limit on the
number of times such processes may be resorted to.
These are merely preliminary steps for the purpose of
initiating a recall. The limitations in 74 apply only to
the exercise of the power of recall which is vested in
the registered voters. It is this - and not merely, the
preliminary steps required to be taken to initiate a
recall - which paragraph (b) of 74 seeks to limit by
providing that no recall shall take place within one year
from the date of assumption of office of an elective
local official.
Indeed, this is the thrust of the ruling in Garcia v.
COMELEC[7] where two objections were raised against
the legality of PRAs: (1) that even the power to initiate
recall proceedings is the sole prerogative of the
electorate which cannot be delegated to PRAs, and (2)
that by vesting this power in a PRA, the law in effect
unconstitutionally authorizes it to shorten the term of
office of incumbent elective local officials. Both
objections were dismissed on the ground that the
holding of a PRA is not the recall itself. With respect to
the first objection, it was held that it is the power to
recall and not the power to initiate recall that the
Constitution gave to the people. With respect to the
second objection, it was held that a recall resolution
"merely sets the stage for the official concerned before
the tribunal of the people so he can justify why he
should be allowed to continue in office. [But until] the
people render their sovereign judgment, the official
concerned remains in office . . . ." Sdaadsc

If these preliminary proceedings do not produce a


decision by the electorate on whether the local official
concerned continues to enjoy the confidence of the
people, then, the prohibition in paragraph (b) against
the holding of a recall, except one year after the
official's assumption of office, cannot apply to such
proceedings.
The second reason why the term "recall" in paragraph
(b) refers to recall election is to be found in the
purpose of the limitation itself. There are two
limitations in paragraph (b) on the holding of recalls:
(1) that no recall shall take place within one year from
the date of assumption of office of the official
concerned, and (2) that no recall shall take place within
one year immediately preceding a regular local
election.
The purpose of the first limitation is to provide a
reasonable basis for judging the performance of an
elective local official. In the Bower case[8] cited by this
Court in Angobung v. COMELEC,[9] it was held that
"The only logical reason which we can ascribe for
requiring the electors to wait one year before
petitioning for a recall election is to prevent premature
action on their part in voting to remove a newly elected
official before having had sufficient time to evaluate
the soundness of his policies and decisions." The oneyear limitation was reckoned as of the filing of a
petition for recall because the Municipal Code involved
in that case expressly provided that "no removal
petition shall be filed against any officer or until he has
actually held office for at least twelve months." But
however the period of prohibition is determined, the
principle announced is that the purpose of the
limitation is to provide a reasonable basis for
evaluating the performance of an elective local official.
Hence, in this case, as long as the election is held
outside the one-year period, the preliminary
proceedings to initiate a recall can be held even before
the end of the first year in office of a local official.
It cannot be argued that to allow recall proceedings to
be initiated before the official concerned has been in
office for one-year would be to allow him to be judged
without sufficient basis. As already stated, it is not the
holding of PRA nor the adoption of recall resolutions
that produces a judgment on the performance of the
official concerned; it is the vote of the electorate in the
Election that does. Therefore, as long as the recall
election is not held before the official concerned has
completed one year in office, he will not be judged on
his performance prematurely. Rtcspped
Third, to construe the term "recall" in paragraph (b) as
including the convening of the PRA for the purpose of
discussing the performance in office of elective local
officials would be to unduly restrict the constitutional
right of speech and of assembly of its members. The
people cannot just be asked on the day of the election
to decide on the performance of their officials. The
crystallization and formation of an informed public
opinion takes time. To hold, therefore, that the first
limitation in paragraph (b) includes the holding of
assemblies for the exchange of ideas and opinions
among citizens is to unduly curtail one of the most
cherished rights in a free society. Indeed, it is wrong to
assume that such assemblies will always eventuate in

a recall election. To the contrary, they may result in the


expression of confidence in the incumbent.

more representative of the people, as the petition filed


by 25 % of the registered voters is claimed to be?

Our esteemed colleague Justice Puno says in his


dissent that the purpose of the one-year period in
paragraph (b) is to provide the local official concerned
a "period of repose" during which "[his] attention
should not be distracted by any impediment, especially
by disturbance due to political partisanship."
Unfortunately, the law cannot really provide for a
period of honeymoon or moratorium in politics. From
the day an elective official assumes office, his acts
become subject to scrutiny and criticism, and it is not
always easy to determine when criticism of his
performance is politically motivated and when it is not.
The only safeguard against the baneful and enervating
effects of partisan politics is the good sense and self
restraint of the people and its leaders against such
shortcomings of our political system. A respite from
partisan politics may, have the incidental effect of
providing respite from partisanship, but that is not
really the purpose of the limitation on recall under the
law. The limitation is only intended to provide a
sufficient basis for evaluating and judging the
performance of an elected local official.

To sum up, the term "recall" in paragraph (b) refers to


the recall election and not to the preliminary
proceedings to initiate recall -

In any event, it is argued that the judgments of PRAs


are not "as politically unassailable as recalls initiated
directly by the people." Justice Puno cites the
"embarrassing repudiation by the people of [Kaloocan
City's] Preparatory Recall Assembly" when, instead of
ousting Mayor Rey Malonzo, they reelected him.
Two points may be made against this argument.
One is that it is no disparagement of the PRA that in
the ensuing election the local official whose recall is
sought is actually reelected. Laws converting
municipalities into cities and providing for the holding
of plebiscites during which the question of cityhood is
submitted to the people for their approval are not
always approved by the people. Yet, no one can say
that Congress is not a good judge of the will of the
voters in the locality. In the case of recall elections in
Kaloocan City, had it been shown that the PRA was
resorted to only because those behind the move to
oust the incumbent mayor failed to obtain the
signatures of 25% of the voters of that city to a petition
for his recall, there may be some plausibility for the
claim that PRAs are not as good a gauge of the
people's will as are the 25 % of the voters.
Indeed, recalls initiated directly by 25% of the
registered voters of a local government unit cannot be
more representative of the sentiments of the people
than those initiated by PRAs whose members represent
the entire electorate in the local government unit.
Voters who directly initiate recalls are just as
vulnerable to political maneuverings or manipulations
as are those composing PRAs. Korte
The other point regarding Justice Punos claim is that
the question here is not whether recalls initiated by
25% of the voters are better. The issue is whether the
one-year period of limitation in paragraph (b) includes
the convening of the PRA. Given that question, will
convening the PRA outside this period make it any

1. Because 74 speaks of limitations on "recall" which,


according to 69, is a power which shall be exercised by
the registered voters of a local government unit. Since
the voters do not exercise such right except in an
election, it is clear that the initiation of recall
proceedings is not prohibited within the one-year
period provided in paragraph (b);
2. Because the purpose of the first limitation in
paragraph (b) is to provide voters a sufficient basis for
judging an elective local official, and final judging is not
done until the day of the election; and
3. Because to construe the limitation in paragraph (b)
as including the initiation of recall proceedings would
unduly curtail freedom of speech and of assembly
guaranteed in the Constitution.
As the recall election in Pasay City is set on April 15,
2000, more than one year after petitioner assumed
office as mayor of that city, we hold that there is no bar
to its holding on that date.
(2)
On Whether the Phrase "Regular Local Election" in the
Same Paragraph (b) of 74 of the Local Government
Code includes the Election Period for that Regular
Election or Simply the Date of Such Election
Petitioner contends, however, that the date set by the
COMELEC for the recall election is within the second
period of prohibition in paragraph (b). He argues that
the phrase "regular local elections" in paragraph (b)
does not only mean "the day of the regular local
election" which, for the year 2001 is May 14, but the
election period as well, which is normally at least forty
five (45) days immediately before the day of the
election. Hence, he contends that beginning March 30,
2000, no recall election may be held. Sclaw
This contention is untenable.
The law is unambiguous in providing that "[n]o recall
shall take place within . . . one (1) year immediately
preceding a regular local election." Had Congress
intended this limitation to refer to the campaign period,
which period is defined in the Omnibus Election Code,
[10] it could have expressly said so.
Moreover, petitioner's interpretation would severely
limit the period during which a recall election may be
held. Actually, because no recall election may be held
until one year after the assumption of office of an
elective local official, presumably on June 30 following
his election, the free period is only the period from July
1 of the following year to about the middle of May of
the succeeding year. This is a period of only nine
months and 15 days, more or less. To construe the
second limitation in paragraph (b) as including the
campaign period would reduce this period to eight

months. Such an interpretation must be rejected,


because it would devitalize the right of recall which is
designed to make local government units" more
responsive and accountable." Sclex

at the meeting twice. It is more probable to believe


that they signed pages 94-104 to signify their
concurrence in the recall resolution of which the pages
in question are part.

Indeed, there is a distinction between election period


and campaign period. Under the Omnibus Election
Code,[11] unless otherwise fixed by the COMELEC, the
election period commences ninety (90) days before the
day of the election and ends thirty (30) days thereafter.
Thus, to follow petitioner's interpretation that the
second limitation in paragraph (b) includes the
"election period" would emasculate even more a vital
right of the people.

The other point raised by petitioner is that the recall


petition filed in the COMELEC was not duly verified,
because Atty. Nelson Ng, who notarized it, is not
commissioned as notary public for Pasay City but for
Makati City. As in the case of the first claim, this issue
was not raised before the COMELEC itself. It cannot,
therefore, be raised now.

To recapitulate the discussion in parts 1 and 2, 74


imposes limitations on the holding of recall elections.
First, paragraph (a) prohibits the holding of such
election more than once during the term of office of an
elective local official. Second, paragraph (b) prohibits
the holding of such election within one year from the
date the official assumed office. And third, paragraph
(b) prohibits the holding of a recall election within one
year immediately preceding a regular local election. As
succinctly stated in Paras v. COMELEC,[12]
"[p]aragraph (b) construed together with paragraph (a)
merely designates the period when such elective local
official may be subject to recall election, that is, during
the second year of office."
(3)
On Whether the Recall RESOLUTION was Signed by a
Majority of the PRA and Duly Verified
Petitioner alleges other grounds for seeking the
annulment of the resolution of the COMELEC ordering
the holding of a recall election. He contends that a
majority of the signatures of the members of the PRA
was not obtained because 74 members did not really
sign the recall resolution. According to petitioner, the
74 merely signed their names on pages 94-104 of the
resolution to signify their attendance and not their
concurrence. Petitioner claims that this is shown by the
word "Attendance" written by hand at the top of the
page on which the signatures of the 74 begin.
This contention has no basis. To be sure, this claim is
being raised for the first time in this case. It was not
raised before the COMELEC, in which the claim made
by petitioner was that some of the names in the
petition were double entries, that some members had
withdrawn their support for the petition, and that
Wenceslao Trinidad's pending election protest was a
prejudicial question which must first be resolved before
the petition for recall could be given due course. The
order of the COMELEC embodying the stipulations of
the parties and defining the issues to be resolved does
not include the issue now being raised by petitioner.
Xlaw
Although the word "Attendance" appears at the top of
the page, it is apparent that it was written by mistake
because it was crossed out by two parallel lines drawn
across it. Apparently, it was mistaken for the
attendance sheet which is a separate document. It is
absurd to believe that the 74 members of the PRA who
signed the recall resolution signified their attendance

WHEREFORE, G.R. No. 140560 is DISMISSED for lack of


merit, while the petition in G.R. No. 140714 is
DISMISSED for having been rendered moot and
academic.
MAYOR ANGOBUNG vs. COMELEC
MAYOR RICARDO M. ANGOBUNG, petitioner, vs.
COMMISSSION ON ELECTIONS EN BANC, and ATTY.
AURORA S. DE ALBAN, respondents.
DECISION
HERMOSISIMA, JR., J.:
Before us on certiorari is a petition seeking to annul
and set aside Resolution No. 96-2951[1] dated October
15, 1996 issued by public respondent Commission on
Elections (COMELEC) which (1) approved the Petition
for Recall filed and signed by only one registered voter
- herein private respondent Ma. Aurora Siccuan de
Alban, against petitioner - incumbent Mayor Ricardo
Angobung; (2) set the further signing of said petition
by the rest of the registered voters of Tumauini, Isabela
on November 9, 1996; and (3) in case the said petition
is signed by at least 25% of the total number of
registered votes in Tumauni, Isabela, scheduled the
recall election on December 2, 1996.
On October 25, 1996, this court issued a Temporary
Restraining Order[2] enjoining public respondent
COMELEC from implementing and enforcing Resolution
No. 96-2951.
The facts of this case are not disputed.
Petitioner won as the duly elected Mayor of the
Municipality of Tumauini, Isabela in the local elections
of 1995. He garnered 55% of all the votes cast. Private
respondent de Alban was also a candidate in said
elections.
Sometime in early September, 1996, private
respondent filed with the Local Election Registrar in
Tumauni, Isabela, a Petition for Recall[3] against
petitioner. On September 12, 1996, petitioner received
a copy of this petition. Subsequently said petition was
forwarded to the Regional Office in Tuguegarao,
Cagayan and then to the main office of COMELEC in
Manila, for approval.
Acting on the petition, Deputy Executive Director for
Operations Pio Jose Joson submitted to the COMELEC
En Banc, a Memorandum[4] dated October 8, 1996
recommending approval of the petition for recall filed
by private respondent and its signing by other qualified
voters in order to garner at least 25% of the total

number of registered voters as required by Section


69(d) of the Local Government code of 1991.
In turn acting on the abovementioned Memorandum of
Deputy Executive Director Joson, the COMELEC en banc
issued the herein assailed Resolution No. 96-2951.
Petitioner now attacks the aforementioned resolution
as being unconstitutional and therefore invalid, on two
main grounds: (1) that the resolution approved the
Petition for Recall albeit same was signed by just one
person in violation of the statutory 25% minimum
requirement as to the number of signatures supporting
and petition for recall; and (2) that the resolution
scheduled the recall election within one (1) year from
the May 12, 1997 Barangay Elections.
In at least three (3) urgent motions, private respondent
has sought the lifting of the Temporary Restraining
Order issued last October 25, 1996 on the twin grounds
(1) that the issue of the one-year bar on recall elections
has been resolved in the case of Paras v. COMELEC[5]
promulgated on November 4, 1996; and (2) that the
procedure prescribed by Resolution No. 96-2951
involving petition signing upon initiation of even just
one person, is no different from that provided for in
COMELEC Resolution No. 2272 which was upheld as
constitutional in the 1991 cases of Sanches, et al. v.
COMELEC[6] and Evardone v. COMELEC[7]
Private respondent is correct in saying that in the light
of our pronouncement in Paras v. COMELEC[8], the
recall election scheduled on December 2, 1996 in the
instant case cannot be said to be barred by the May
12, 1997 Barangay Elections. In construing the
meaning of the term, regular local election in Section
74 of the Local Government Code of 1991 which
provides that no recall shall take place within one (1)
year x x x immediately preceding a regular local
election, we ruled that for the time bar to apply, the
approaching regular local election must be one where
the position of the official to be recalled, is to be
actually contested and filled by the electorate. Thus, in
the instant case where the time bar is being invoked by
petitioner mayor in view of the approaching Barangay
Elections in May 1997, there can be no application of
the one year bar, hence no invalidity may be ascribed
to Resolution No. 96-2951 on this ground.
We, however, find petitioners second ground to be
impressed with merit.
Before the enactment of the 1991 Local Government
Code, the recall of public officials voted for in popular
elections, was governed by Sections 54 to 59 of Batas
Pambansa Blg. 337, otherwise known as the Local
Government Code of 1983. Pursuant to Section 59
thereof, which states that the Commission on Elections
shall conduct and supervise the process of and election
on recall x x x and, in pursuance thereof, promulgate
the necessary rules and regulations, the COMELEC
promulgated Resolution No. 2272 Sections 4 and 5 of
which provide as follows:
Sec. 4. How instituted. - The recall of an elective
provincial, city or municipal official shall be
commenced by the filing of a duly verified notice of
recall containing the address and precinct number of

the voter filing the notice, and the name of the official
sought to be recalled, his position, and the ground(s)
for the recall. Each notice shall refer to only one
official.lex
The notice shall be filed in triplicate with the local
Election Registrar if the recall involves a city or
municipal official, or with the Provincial Election
Supervisor if it involves a provincial official, one copy of
which shall be posted upon receipt thereof on the
bulletin board in the city/municipal hall.
If the recall involves a provincial official, two additional
copies of the notice shall also be furnished by the voter
filing the notice to the Election Registrar of each city
and municipality in the province, one copy of which
shall be posted upon receipt thereof on the bulletin
board in the city/municipal hall.
In every case, the voter filing the notice of recall shall
furnish a copy thereof to the official sought to be
recalled, the Commission on Elections in Manila and
the Election Records and Statistics Department of the
Commission.
Section 5. Schedule and place of signing of the
petition. - The Election Registrar shall submit to the
Commission on Elections, not later than ten days from
filing of the notice of recall, the schedule of the signing
of the petition to recall for approval and funding x x x.
[9]
In the case of Sanchez v. COMELEC[10], petitioners
therein contended that the aforegoing Resolution No.
2272 is unconstitutional there being no legislative
enactment yet on [the] mechanism of recall as
mandated under Sec. 3, Art. X of the Constitution[11] It
is true, as private respondent asseverates, that we
upheld the constitutionality of Resolution No. 2272, but
not because we found nothing constitutionally infirm
about the procedure of allowing the initiatory recall
petition to be filed by only one person. The issue in
Sanchez was not this questioned procedure but the
legal basis for the exercise by the COMELEC of its rulemaking power in the alleged absence of a grant of such
power by an enabling statute on recall. Thus we ruled:
lexWhile it is true that Sec. 3, Art. X of the Constitution
mandates the Congress to enact a local government
code providing among others for an effective
mechanism of recall, nothing in said provision could be
inferred the repeal of BP 337, the local government
code existing prior to the adoption of the 1987
Constitution. Sec. 3, Art. X of the Constitution merely
provides that the local government code to be enacted
by Congress shall be more responsive than the one
existing at present. Until such time that a more
responsive and effective local government code is
enacted, the present code shall remain in full force and
effect. Thus, under Sec. 3, Art. XVIII, (a)ll existing laws,
decrees, executive orders, proclamations, letters of
instructions and other executive issuances not
inconsistent with this Constitution shall remain
operative until amended, repealed, or revoked.
Considering that the present local government code
(BP 337) is still in effect, respondent COMELECs
promulgation of Resolution No. 2272 is therefore valid

and constitutional, the same having been issued


pursuant to Sec. 59 of BP 337. It reads:
Sec. 59. Supervision by the Commission on Elections. The Commission on Elections shall conduct and
supervise the process of and election on recall x x x
and, in pursuance thereof, promulgate the necessary
rules and regulations.[12]
We reiterated the foregoing ruling in the case of
Evardone v. COMELEC[13] in this wise:
Article XVIII, Section 3 of the 1987 Constitution
expressly provides that all existing laws not
inconsistent with the 1987 Constitution shall remain
operative, until amended, repealed or revoked.
Republic Act No. 7160 providing for the Local
Government Code of 1991, approved by the President
on 10 October 1991, specifically repeals B.P. Blg. 337
as provided in Sec. 534, Title Four of said Act. But the
Local Government Code of 1991 will take effect only on
1 January 1992 and therefore the old Local
Government Code (B.P. Blg. 337) is still the law
applicable to the present case.
xxx
Chapter (Sections 54 to 59) of B.P. Blg. 337 provides for
the mechanism for recall of local elective officials.
Section 59 expressly authorizes the respondent
COMELEC to conduct and supervise the process of and
election on recall and in the exercise of such powers,
promulgate the necessary rules and regulations. x x x
Thus, pursuant to the rule-making power vested in
respondent COMELEC, it promulgated Resolution No.
2272 on 23 May 1990.
We therefore rule that Resolution No. 2272
promulgated by respondent COMELEC is valid and
constitutional. Consequently, the respondent COMELEC
had the authority to approve the petition for recall and
set the date for the signing of said petition.[14]
In Sanchez and Evardone, the COMELEC prescribed
procedure of (1) allowing the recall petition to be filed
by at least one person or by less than 25% of the total
number of registered voters and then (2) inviting
voters to sign said petition on a date set for that
purpose, was never put to issue. As this is the crux of
the present constitutional challenge, the proper time
has come for this court to issue a definitive ruling on
the matter.
Apropos for starters is the following chronicle of the
evolution of the mechanism of recall as a mode of
removing a public officer by direction action of the
people, essayed in the case of Garcia v. COMELEC:[15]
Recall is a mode of removal of a public officer by the
people before the end of his term of office. The peoples
prerogative to remove a public officer is an incident of
their sovereign power and in the absence of
constitutional restraint, the power is implied in all
governmental operations. Such power has been held to
be indispensable for the proper administration of public
affairs. Not undeservedly, it is frequently described as
a fundamental right of the people in a representative
democracy.

Recall as a mode of removal of elective local officials


made its maiden appearance in section 2 of Article XI
entitled Local Government, viz:
SEC. 2. The Batasang Pambansa shall enact a local
government code which may not thereafter be
amended except by a majority vote of all its Members,
defining a more responsive and accountable local
government structure with an effective system of recall
xxx
The Batasang Pambansa then enacted BP 337 entitled,
The Local Government Code of 1983 Section 54 of its
Chapter 3 provided only one mode of initiating the
recall elections of local election officials, i.e., by
petition of at least twenty-five percent (25%) of the
total number of registered voters in the local
government unit concerned x x x.
Our legal history does not reveal any instance when
this power of recall as provided by BP 337 was
exercised by our people.
In February , 1986, however, our people more than
exercised their right of recall for they resorted to
revolution and they booted out of office the highest
elective officials of the land. The successful use of
people power to remove public officials who have
forfeited the trust of the electorate led to its firm
institutionalization of the 1987 Constitution. Its Articles
XIII expressly recognized the Role and Rights of Peoples
Organizations x x x.
Section 3 of its Article X also reiterated the mandate
for Congress to enact a local government code which
shall provide for a more responsive and accountable
local government structure instituted through a system
of decentralization with effective mechanisms of recall,
initiative and referendum x x x. In response to this
constitutional call, Congress enacted R.A. 7160,
otherwise known as the Local Government Code of
1991, which took effect on January 1, 1992.[16]
Section 69(d) of the Local Government Code of 1991
expressly provides that recall of any elective x x x
municipal x x x official may also be validly initiated
upon petition of at least twenty-five percent (25%) of
the total number of registered voters in the local
government unit concerned during the election in
which the local official sought to be recalled was
elected. The law is plain and unequivocal as to what
initiates recall proceedings: only a petition of at least
25% of the total number of registered voters, may
validly initiate recall proceedings. We take careful note
of the phrase, petition of at least twenty-five percent
(25%) and point out that the law does not state that
the petition must be signed by at least 25% of the
registered voters; rather, the petition must be of or by,
at least 25% of the registered voters, i.e., the petition
must be filed, not by one person only, but by at least
25% of the total number of registered voters. This is
understandable, since the signing of the petition is
statutorily required to be undertaken before the
election registrar or his representative, and in the
presence of a represetantive of the official sought to be
recalled, and in public place in the x x x municipality x
x x.[17] Hence, while the initiatory recall petition may

not yet contain the signatures of at least 25% of the


total number of registered voters, the petition must
contain the names of at least 25% of the total number
of registered voters in whose behalf only one person
may sign the petition in the meantime.
We cannot sanction the procedure of the filing of the
recall petition by a number of people less than the
foregoing 25% statutory requirement, much less, the
filing thereof by just one person, as in the instant case,
since this is indubitably violative of clear and
categorical provisions of subsisting law.
Our legislators did not peg the voter requirement at
25% out of caprice or in a vacuum. They knew that this
is the requirement under a majority of the constitution
and recall statutes in various American states to the
same extent that they were aware of the rationale
therefor. While recall was intended to be an effective
and speedy remedy to remove an official who is not
giving satisfaction to the electorate regardless of
whether or not he is discharging his full duty to the
best of his ability and as his conscience dictates,[18] it
is a power granted to the people who, in concert,
desire to change their leaders for reasons only they, as
a collective, can justify. In other words, recall must be
pursued by the people, not just by one disgruntled
loser in the elections or a small percentage of
disenchanted electors. Otherwise, its purposes as a
direct remedy of the people shall be defeated by the ill
motives of a few among them whose selfish resort to
recall would destabilize the community and seriously
disrupt the running of government.
A scrutiny of the rationale underlying the time bar
provisions and the percentage of minimum voter
requirement in American recall statutes, unmistakably
reveals the vigilance of lawmakers against the abuse of
the power of recall. For instance, the Supreme Court of
Illinois held in the case of In Re Bower[19] that:
[t]the only logical reasons which we can ascribe for
requiring the electors to wait one year before
petitioning for a recall election is to prevent premature
action on their parting voting to remove a newly
elected official before having had sufficient time to
evaluate the soundness of his political policies and
decisions. We view the statutory provision requiring the
number of petition signers to equal at least 45% of the
total votes case in the last general election for mayor
as a further attempt to insure that an official will not
have to defend his policies against frivolous attacks
launched by a small percentage of disenchanted
electors.[20]
Along the same lines, the Supreme Court of Colorado
held in the case of Bernzen v. City of Boulder[21] that:
[t]he framers, by requiring that a recall petition contain
the signatures of at least 25% of all votes cast in the
last election for all candidates for the position which
the person sought to be recalled occupies, assured that
a recall election will not be held in response to the
wishes of a small and unrepresentative minority.
However, once at least 25% of the electorate have
expressed their dissatisfaction, the constitution
reserves the recall power to the will of the electorate.
[22]

And in the case of Wallace v. Tripp[23], the Supreme


Court of Michigan, echoed the foregoing posturings in
this wise:
Much of what has been said to justify a limit upon recall
clearly not provided or contemplated by the
Constitution has revealed fears about an irresponsible
electorate xxx. A much cited Nebraska case pertaining
to a Nebraska recall statute provides some answers
which are equally applicable to the Michigan
constitutional right of recall:
xxx Doubtless the provision requiring 30 per cent of
the electors to sign the petition before the council [is]
compelled to act was designed to avoid such a
contingency. The legislature apparently assumed that
nearly one-third of the electorate would not entail upon
the taxpayers the cost of an election unless the
charges made approved themselves to their
understanding and they were seriously dissatisfied with
the services of the incumbent of the office.[24]
In the instant case, this Court is confronted with a
procedure that is unabashedly repugnant to the
applicable law and no less such to the spirit underlying
that law. Private respondent who is a lawyer, knows
that Section 69(d) of the Local Government Code
plainly provides that recall is validly initiated by a
petition of 25% of the total number of registered
voters. Notwithstanding such awareness, private
respondent proceeded to file the petition for recall with
only herself as the filer and initiator. She claims in her
petition that she has, together with many others in
Tumauini, Isabela, lost confidence in the leadership of
petitioner. But the petition does not bear the names of
all these other citizens of Tumauini who have
reportedly also become anxious to oust petitioner from
the post of mayor. There is no doubt that private
respondent is truly earnest in her cause, and the very
fact that she affixed her name in the petition shows
that she claims responsibility for the seeming affront to
petitioners continuance in office. But the same cannot
be said of all the other people whom private
respondent claims to have sentiments similar to hers.
While the people are vested with the power to recall
their elected officials, the same power is accompanied
by the concomitant responsibility to see through all the
consequences of the exercise of such power, including
rising above anonymity, confronting the official sought
to be recalled, his family, his friends, and his
supporters, and seeing the recall election to its
ultimate end. The procedure of allowing just one
person to file the initiatory recall petition and then
setting a date for the signing of the petition, which
amounts to inviting and courting the public which may
have not, in the first place, even entertained any
displeasure in the performance of the official sought to
be recalled, is not only violative of statutory law but
also tainted with an attempt to go around the law. We
can not and must not, under any and all
circumstances, countenance a circumvention of the
explicit 25% minimum voter requirement in the
initiation of the recall process.
WHEREFORE, premises considered, the PETITION FOR
CERTIORARI is hereby GRANTED. COMELEC Resolution

No. 96-2951 is hereby DECLARED NULL and VOID and


accordingly SET ASIDE.
The RESTRAINING ORDER heretofore issued is hereby
made permanent.
PERALTA VS. COMELEC
These six (6) consolidated petitions pose for the
determination of this Court the constitutionality of
specific provisions of the 1978 Election Code
(Presidential Decree No. 1269).
I
The first issue posed for resolution is: Whether or not
the voting system provided for in Sections 140 and
155, subparagraphs 26 to 28, of the 1978 Election
Code, granting to the voter the option to vote either for
individual candidates by filling in the proper spaces in
the ballot the names of candidates he desires to elect,
or to vote for all the candidates of a political party,
group or aggrupation by simply waiting in the space
provided for in the ballot the name of the political
party, group or aggrupation, violates Section 1 of
Article IV and Section 9(1) of article XII-C of the
Constitution.
The specific provisions of the 1978 Election Code which
are assailed as being in violation of the equal
protection clause are the following:
SEC. 140. Manner of preparing the ballot. The voter
upon receiving his folded ballot shall forthwith proceed
to one of the empty voting booths and shall there fill
his ballot by writing in the proper space for each office
the name of the candidate for whom he desires to
vote: Provided, That in the election of regional
representatives to the interim Batasang Pambansa, the
voter may choose to vote for individual candidates by
filling in the proper spaces of the ballot the names of
candidates he desires to elect, but if for any reason he
chooses to vote for all the candidates of a political
party, group or aggrupation, by writing in the space
provided for in the ballot the name of the political
party, group or aggrupation: Provided further, That the
ballots for the election of regional representatives to
theinterim Batasang Pambansa shall be prepared by
the Commission in such manner that the voter may
vote for the straight ticket of a political party, group or
aggrupation or for individual candidates, and for this
purpose, the ticket of a regularly organized political
party, group or aggrupation as certified under oath by
their respective directorates or duly authorized
representatives as wen as candidates not belonging to
any particular political party, group or aggrupation,
shall be printed in the upper portion of said ballots in a
manner which does not give undue advantage to any
political party, group or aggrupation or candidate, and
there shall also be a column containing blank spaces
for the names of such candidates which spaces are to
be filled by the voter who does not desire to vote for a
straight ticket: Provided, finally, That a candidate may
be in the ticket of only one political party, group or
aggrupation; if he is included in the ticket of more than
one political party, group or aggrupation presenting
different sets of candidates, he shall immediately
inform the Commission as to which ticket he chooses to
be included, and if he fails to do so, he shall cease to

be considered to belong to any ticket. The following


notice shall be printed on the ballot: If you want to
vote for all the official candidates of a political party,
group or aggrupation to the exclusion of all other
candidates, write the name of such political party,
group or aggrupation in the space indicated. It shag
then be unnecessary for you to write the names of
Candidates you vote for. On the other hand, if you want
to vote for candidates belonging to different parties,
groups or aggrupations and/or for individual
candidates, write in the respective blank spaces the
names of the candidates you vote for and the names
written by you in the respective blank spaces in the
ballot shall then be considered as validly voted for.
xxx xxx xxx
SEC. 155. Rules for the appreciation of ballots. In the
reading and appreciation of ballots, the committee
shall observe the following rules:
xxx xxx xxx
26. If a voter has written in the proper space of the
ballot the name of a political party, group or
aggrupation which has nominated official candidates, a
vote shall be counted for each of the official candidates
of such party, group or aggrupation.
27. If a voter has written in the proper space of the
ballot the name of a political party, group or
aggrupation which has nominated official candidates
and the names of individual candidates belonging to
the ticket of the same political party, group or
aggrupation in the spaces provided therefor, a vote
shall be counted for each of the official candidates of
such party, group or aggrupation and the votes for the
individual candidates written on the ballot shall be
considered as stray votes.
28. If a voter has written in the proper space of his
ballot the name of a political party, group or
aggrupation which has nominated official candidates
and the names of individual candidates not belonging
to the ticket of the same political party, group or
aggrupation in the spaces provided therefor, an of the
votes indicated in the ballot shall be considered as
stray votes and shall not be counted. Provided,
however, That if the number of candidates nominated
by the political party, group or aggrupation written by
the voter in the ballot is less than the number of seats
to be filled in the election and the voter also writes the
names of individual candidates in the spaces provided
therefor not belonging to the ticket of the political
party, group or aggrupation he has written in the
ballot, the ballot shall be counted as votes in favor of
the candidates of the political party, group or
aggrupation concerned and the individual candidates
whose names were firstly written by the voter in the
spaces provided therefor, until the authorized number
of seats is fined.
The system which allows straight party voting is not
unique in the Philippine experience. As early as 1941,
the Second National Assembly of the Philippines
enacted Commonwealth Act No. 666, entitled An Act
to Provide for the First Election for President and VicePresident of the Philippines, Senators, and Members of

the House of Representatives, Under the Constitution


and the Amendments Thereof. Said Commonwealth
Act enabled the voter to vote for individual candidates
or for a straight party ticket by writing either the
names of the candidates of his choice or of the political
party he favored on designated blank spaces on the
ballot. 1
While the original Election Code, Commonwealth Act
No. 357, dated August 22, 1938, did not carry
provisions for optional straight party voting, 2 the
system was, however, substantially reinstituted in
Republic Act No. 180, or the Revised Election Code,
enacted on June 21, 1947. 3 The only im portent
difference introduced was that in appreciating ballots
on which the voter had written both the name of a
political party and the names of candidates not
members of said party, Republic Act No. 180 provided
that the individual candidates whose names were
written shall be considered voted for, 4 whereas
Commonwealth Act No. 666 provided that the vote
shall be counted in favor of the political party. 5
Likewise, it should be noted that in other jurisdictions,
ballots providing for optional straight party voting have
been accepted as a standard form, in addition to the
office-block ballots in which all candidates for each
office grouped together. Among the different states of
the United States, for example, the following has been
observed:
The party-column ballot, used in about 30 states, is
sometimes called the Indiana-type ballot because the
Indiana law of 1889 has served as a model for other
states. In most states using the party column ballot, it
is possible to vote for the candidates of a single party
for all offices by making a single cross in the circle at
the head of the column containing the partys
candidates. In some states, the party emblem is
carried at the top of its column, a feature which, in less
literate days, was of some utility in guiding the voter to
the right column on the ballot. To vote a split ticket on
a party-column ballot usually requires the recording of
a choice for each office, path the voter will presumably
hesitate to follow when he has the alternative of
making a single crossmark. Professional party workers
generally favor the use of the party-column ballot
because it encourages straight ticket voting.
In contrast with the party-column ballot is the officeblock ballot, or, as it is sometimes called by virtue of its
origin, the Massachussetts ballot. Names of all
candidates, by whatever party nominated, for each
office are grouped together on the office-block ballot,
usually with an indication alongside each name of the
party affiliation. The supposition is that the voter will
be compelled to consider separately the candidates for
each ballot, in contrast with the encouragement given
to straight-ticket voting by the party column ballot.
Pennsylvania uses a variation of the office-block ballot:
the candidates are grouped according to office but
provision is made for straight-ticket voting by a single
mark. 6
Election laws providing for the Indiana-type ballot, as
aforementioned, have been held constitutional as
against the contention that they interfere with the
freedom and equality of elections. Thus, in Oughton, et

al. v. Black, et al., 7assailed as unconstitutional was a


statutory proviso which required that ballots should be
printed with the following instructions: To vote a
straight party ticket, mark a cross (x) in the square
opposite the name of the party of your choice, in the
first column. a crossmark in the square opposite the
name of any candidate indicates a vote for that
candidate.
It was contended that such provision interferes with
the freedom and equality of elections, and authorizes a
method of voting for political parties and not or men. It
was alleged that the special privilege given to straight
ticket voters and denied to others injured appellants,
who, as candidates, were opposed by other candidates
who can much more easily be voted for. In resolving
such question and declaring the law valid, the Supreme
Court of Pennsylvania held that the free and equal
exercises of the elective franchise by every elector is
not impaired by the statute, but simply regulated. The
regulation is for the convenience of the electors. The
constitutionality of the law is not to be tested by the
fact that one voter can cast his ballot by making one
mark while another may be required to make two or
more to express his will. When each has been afforded
the opportunity and been provided with reasonable
facilities to vote, the Constitution, and lies in the sound
discretion of the Legislature. 8
The Pennsylvania Court further emphasized that
elections are equal when the vote of every candidate is
equal in its influence on the result, to the vote of every
candidate; when each ballot is as effective as every
other ballot. 9
To the same effect is the holding in Ritchie v. Richards,
which sustained the validity of a statute containing a
similar provisional. 10
At any rate, voting by party has been accepted in
various states as a form of democratic electoral
process. In Israel, for example, where the election
system is one of proportional representation in which
each political party presents a list of candidates to the
citizenry, the voter selects a party, not a candidate,
and each party is then represented in the Knesset in
proportion to its strength on the polls. The head of the
largest party is asked to form a government. 11 In
France, on the other hand, under the electoral law of
October 5, 1946, providing for the selection of National
Assembly members, a list system of proportional
representation was set up, whereby each electoral area
elected several candidates in proportion to its voting
strength. The voter was required to vote only for one
party list; he could not split his vote among several
candidates on different party lists, but could depart
from the order of preference set up by the party.
Commissioners then count the ballots for each party
list and distribute the total number of seats among the
different successful parties. 12 In Italy and West
Germany, party voting is likewise in practice, and
proportional representation seats are distributed on the
basis of the number of votes received by the successful
parties.
Petitioners in the cases at bar invoke the constitutional
mandate that no person shag be denied the equal
protection of the laws (Article IV, Section 1) and the

provision that bona fide candidates for any public


office shall be free from any form of harassment or
discrimination (Article XII-C, Section 9[l]). The word
discrmination in the latter provision should be
construed in relation to the equal protection clause and
in the manner and degree in which it is taken therein,
since said provision is in line with the provision of the
Bill of Rights that no person shall be denied the equal
protection of the laws . 13
The main objection of petitioners against the optional
straight party voting provided for in the Code is that
an independent candidate would be discriminated
against because by merely writing on his ballot the
name of a political party, a voter would have voted for
all the candidates of that party, an advantage which
the independent candidate does not enjoy. In effect, it
discontended that the candidate who is not a party
member is deprived of the equal protection of the laws,
as provided in Section 1 of Article IV, in relation to
Section 9 of Article XII, of the Constitution.
The equal protection clause does not forbid all legal
classifications. What is proscribes is a classification
which is arbitrary and unreasonable. It is not violated
by a reasonable classification based upon substantial
distinctions, where the classification is germane to the
purpose of the law and applies equally to all those
belonging to the same class. 14 The equal protection
clause is not infringed by legislation which applies only
to those persons falling within a specified class, if it
applies alike to all persons within such class, and
reasonable grounds exist for making a distinction
between those who fall within the class and those who
do not. 15 There is, of course, no concise or easy
answer as to what an arbitrary classification is. No
definite rule has been or can be laid down on the basis
of which such question may be resolved. The
determination must be made in accordance with the
facts presented by the particular case. The general
rule, which is well-settled by the authorities, is that a
classification, to be valid, must rest upon material
differences between the persons, activities or things
included and those excluded. There must, in other
words, be a basis for distinction. Furthermore, such
classification must be germane and pertinent to the
purpose of the law. And, finally, the basis of
classification must, in general, be so drawn that those
who stand in substantially the same position with
respect to the law are treated alike. It is, however,
conceded that it is almost impossible in some matters
to foresee and provide for every imaginable and
exceptional case. Exactness in division is impossible
and never looked for in applying the legal test. All that
is required is that there must be, in general, some
reasonable basis on general lines for the division. 16
Classification which has some reasonable basis does
not offend the equal protection clause merely because
it is not made with mathematical nicety. 17
In the cases at bar, the assailed classification springs
from the alleged differential treatment afforded to
candidates who are party members as against those
who run as independents. It must be emphasized in the
election law must carry the burden of showing that it
does not rest upon a reasonable basis, but is
essentially arbitrary. 18 The factual foundation to

demonstrate invalidity must be established by the


litigant challenging its constitutionality. 19 These
principles are predicated upon the presumption in favor
of constitutionality.
This has to be so because of the fundamental criteria
in cases of this nature that all reasonable doubts
should be resolved in favor of the constitutionality of a
statute. An act of the legislature, approved by the
executive, is presumed to be within constitutional
limitations. The responsibility of upholding the
Constitution rests not on the courts alone but on the
legislature as well. The question of the validity of every
statute is first determined by the legislative
department of the government itself. 20
Thus, to justify the nullification of a law, there must be
a clear and unequivocal breach of the Constitution,
not a doubtful and argumentative implication. 21
There is practical unanimity among the courts in the
pronouncement that laws shag not be declared invalid
unless the conflict with the Constitution is clear beyond
a reasonable doubt. 22
We shall now test the validity of petitioners arguments
on the basis of these principles.
In the challenged provision of the electoral law, unlike
the previous block- voting statutes, all the names of
the candidates, whether of parties, groups or
independent candidates, are printed on the ballot.
Before he prepares his ballot, the voter will be able to
read all the names of the candidates. No candidate will
receive more than one vote, whether he is voted
individually or as a candidate of a party group or
aggrupation. The voter is free to vote for the individual
candidates or to vote by party, group or aggrupation.
The choice is His. No one can compel him to do
otherwise. In the case of candidates, the decision on
whether to run as an independent candidate or to join
a political party, group or aggrupation is left entirely to
their discretion. Certainly, before filing his certificate of
candidacy, a candidate is aware of the advantages
under the law accruing to candidates of a political
party or group. If he wishes to avail hihiself of such
alleged advantages as an official candidate of a party,
he is free to do so by joining a political party group or
aggrupation. In other words, the choice is his. In
making his decision, it must be assumed that the
candidate had carefully weighed and considered the
relative advantages and disavantages of either
alternative. So long as the application of the rule
depends on his voluntary action or decision, he cannot,
after exercising his discretion, claim that he was the
victim of discrimination.
In the ordinary course of things, those who join or
become members of associations, such as political
parties or any other lawful groups or organizations,
necessarily enjoy certain benefits and privileges which
are incident to, or are consequences of such
membership. Freedom of association has been
enshrined in the Constitution to enable individuals to
join others of like persuasion to pursue common
objectives and to engage in lawful activities.
Membership in associations is considered as an
extension of individual freedom. Effective advocacy of
both public and private views or opinions is undeniably

enhanced by group association. Freedom to engage in


associations for the advancement of beliefs and Ideas
is, therefore, an inseparable aspect of the liberty
guaranteed by the fundamental law. Therefore, if, as an
incident of joining a political party, group or
aggrupation, the candidate is given certain privileges,
this is constitutionally Permissible. Thus, under the
provisions of the previous election laws, only the
parties who polled the largest and the next largest
number of votes in the last preceding presidential
elections were entitled to representation in the Board
of Election Inspectors. 23 Independent candidates had
no representation in the Board; and yet it was never
contended that the independent candidates were
denied the equal protection of the laws.
The official candidates of an organized political party
may be distinguished from an independent candidate.
The former are bound by the partys rules. They owe
loyalty to the party, its tenets, its policies, its platform
and programmes of government. To the electorate,
they represent the party, its principles, ideals and
objectives. This is not true of an independent
candidate. If the electoral law has bias in favor of
political parties, it is because political parties constitute
a basic element of the democractic institutional
apparatus. Government derives its strength from the
support, activity or passive, of a coalition of elements
of society. In modern nines the political party has
become the instrument for the organization of
societies. This is predicated on the doctrine that
government exists with the consent of the governed.
Political parties per. form an essential function in the
management of succession to power, as well as in the
process of obtaining popular consent to the course of
public policy. They amass sufficient support to buttress
the authority of governments; or, on the contrary, they
attract or organize discontent and dissatisfaction
sufficient to oust the government. In either case they
perform the function of the articulation of the interests
and aspirations of a substantial segment of the
citizenry, usually in ways contended to be promotive of
the national weal. 24
The Constitution establishes a parliamentary system of
government. Such a system implies the existence of
responsible political parties with distinct programmes
of government.
The parliamentary system works best when party
distinctions are well defined by differences in principle.
As observed by a noted authority on political law,
under a parliamentary system; the maintenance and
development party system becomes not only
necessary but indispensable for the enforcement of the
idea and the rule of government responsibility and
accountability to the people in the political
management of the country. 25 Indeed, the extent to
which political parties can become effective
instruments of self-government depends, in the final
analysis, on the degree of the citizens competence in
politics and their willingness to contribute political
resources to the parties.
It is also contended that the system of optional straight
party voting is anathema to free, orderly and honest
elections or that it encourages laziness or political
irresponsibility. These are objections that go to the

wisdom of the statute. It is well to remember that this


Court does not pass upon questions of wisdom or
expediency of legislation. We have reiterated in a
previous case that: It is settled that only
congressional power or competence, not the wisdom of
the action taken, may be the basis for declaring a
statute invalid. 26 This notwithstanding, We deem it
necessary, for the information of everyone concerned,
to explain why such fears, in a growing climate of
political maturity and social responsibility appear
conjectural.
There are no data to show that the system herein
assailed was the proximate cause of all the frauds in
the 1941, 1947 and 1949 elections. Besides, all
procedures or manners of voting are susceptible to
fraud. The important thing to consider is that the 1978
Election Code is replete with new provisions designed
to guarantee the sanctity and secrecy of the peoples
vote.
As demonstrated in the experience of other democratic
states, such a system has its advantages. It may
enable deserving young candidates but without
adequate financial resources of their own to win,
with party support, in countrywide or regional
elections. Since candidates of a party or group may
pool their resources, it will tend to make elections less
expensive. As this system of voting favors the strongly
organized parties or groups, it tends to prevent the
proliferation of political parties or groups. It thus results
in the formation of stable and responsible political
parties. On the part of the electorate, such a system of
voting facilitates the exercise of their right of suffrage.
It enables the laborer, the farmer and the voter of
ordinary education to vote with greater facility for all
the official candidates of the party of his choice. It thus
broadens the ways and means by which the sovereign
will can be expressed.
Nor could it be true, as petitioners contend, that a
system which allows straight ticket voting encourages
laziness and political irresponsibility. While there may
be those who may be moved to vote straight party by
reason of lack of interest, nevertheless, there are still
those sufficiently interested to cast an intelligent vote.
It has been observed that in a straight ticket the
motivated voter is more likely to organize his ballot in a
highly structure pattern. His motivation may derive
from an interest in parties, candidates, or issues or any
combination of those. As observed by a survey
research group: Motivated straight ticket voting
appears to reflect an intention on the part of the voter
to accomplish his political purpose as fully as possible.
Such a voter does not scatter his choices casually, he
has a political direction in mind and he implements it
through the choice of one party or the other on the
ballot. The more highly motivated he is toward this
political objective, the less willing he is to dilute his
vote by crossing party lines. 27
II
The second issue before Us is: Whether or not the
provisions of Sections 11, 12 and 14 of the 1978
Election Code, which authorize the elections of the
members of the interim Batasang Pambansa by
regions, violate Section 2 of Article VIII of the

Constitution which provides that the members of the


National Assembly shall be apportioned among the
provinces, representative districts and cities.
Assailed as unconstitutional are the following
provisions of the 1978 Election Code:
SEC. 11. Composition. The interim Batasang
Pambansa shall be composed of the incumbent
President of the Philippines, representatives elected
from the different regions of the nation, those who
shag not be less than eighteen years of age elected by
their respective sectors, and those chosen by the
incumbent President from the members of the
Cabinet.
SEC. 12. Apportionment of regional representatives.
There shall be 160 regional representatives to the
interim Batasang Pambansa apportioned among the
thirteen regions of the nation in accordance with the
number of their respective inhabitants and on the basis
of a uniform and progressive ratio :
xxx xxx xxx
The foregoing apportionment shall be not considered a
precedent in connection with the re-apportionment of
representative districts for the regular National
Assembly under Section 2, Article VIII and Section 6,
Article XVI I of the Constitution.
Notwithstanding the foregoing provisions, the number
of regional representative for any region shall not be
less than the number of representative districts therein
existing at the time of the ratification of the
Constitution. There are also allotted two additional
seats for regional representatives to Region IV in view
of inhabitants, such as students, in the region not
taken into account in the 1975 census.
SEC. 14. Voting by region. Each region shall be
entitled to such number of regional representatives as
are allotted to it in Section 12 of Article II hereof. All
candidates for region representatives shall be voted
upon at large by the registered voters of their
respective regions. The candidates receiving the
highest number of votes from the entire region shall be
declared elected.
The constitutional provision relied upon is Section 2 of
Article VIII, which provides:
SEC. 2. The National Assembly shall be composed of as
many Members as may be provided by law to be
apportioned among the provinces, representative
districts and cities in accordance with the number of
their respective inhabitants and on the basis of a
uniform and progressive ratio. Each district shall
Comprise, as far as practicable, contiguous, compact,
and adjacent territory. Representative districts or
provinces already created or existing at the time of the
ratification of this Constitution shag have at least one
Member each.
In resolving the issue, the provisions of Amendment
No. 1 to the Constitution, which took effect on October
27, 1976, should be considered and not, as pointed out
by petitioner Juan T. David, those of Section 2 of Article

VIII of the Constitution, which deal with the


composition of the regular National Assembly.
It should be recalled that under the term of the
Transitory Provisions of the Constitution, 28 the
membership of theinterim National Assembly would
consists of the Incumbent President and Vice-President,
the Senators and the Representatives of the old
Congress and the Delegates to the Constitutional
Convention who have opted to serve therein. The
Filipino people rejected the convening of the interim
National Assembly, and for a perfectly justifiable
reason.
By September of 1976, the consensus had emerged for
a referendum partaking of the character of a plebiscite
which would be held to establish the solid foundation
for the next step towards normalizing the political
process. By the will of the people, as expressed
overwhelmingly in the plebiscite of October 15 and 16,
1976, Amendments Nos. 1 to 9 were approved,
abolishing the interim National Assembly and creating
in its stead an interim Batasang Pambansa. T was
intended as a preparatory and experimental step
toward the establishment of full parliamentary
government as provided for in the Constitution.
Amendment No. 1 provides:
1. There shall be, in lieu of the interim National
Assembly, an interim Batasang Pambansa, Members of
the interim Batasang Pambansa, which shall not be
more than 120, unless otherwise provided by law, shall
include the incumbent President of the Philippines,
representatives elected from the different regions of
the nation, those who shall not be less than eighteen
years of age elected by their respective sectors, and
those chosen by the incumbent President from the
Members of the Cabinet.Regional representatives shall
be apportioned among the regions in accordance with
the number of their respective inhabitants and on the
basis of a uniform and progressive ratio, while the
sectors shall be determined by law. The number of
representatives from each region or sector and the
manner of their election shall be prescribed and
regulated by law. (Emphasis supplied.)
The provisions of the Above Amendment are clear.
Instead of providing that representation in the
interimBatasang Pambansa shall be by representative
districts, it specifically provides that; (1) the
representatives shall be elected from the different
regions of the nation; and (2) the Regional
representatives shall be apportioned among the
regions in accordance with the number of their
respective inhabitants and on the basis of a uniform
and progressive ratio while the sector shall be
determined by law. No mention whatsoever is made
of 4 provinces, representative districts and cities.
Where the intent is to relate to the regular National
Assembly, the Constitution made it clear and manifest,
as indicated in Amendment No. 2 of the Constitution.
29 It is significant to note that nowhere in the said
amendment is it provided that the members of the
interim Batasang Pambansa shall be apportioned
among the representative districts, in the same
manner as the regular National Assembly. The clear
import and intent of the Constitutional Amendment is,

therefore, the election of the representatives from the


different regions of the nation, and such regional
representatives shall be alloted or distributed among
the regions in accordance with the number of their
respective inhabitants and on the basis of a uniform
and progressive ratio. Neither does the Amendment
provide that the members of the interim Batasang
Pambansa shall be elected by the qualified electors in
their respective district for term of six years as
provided in Section 3[l] of Article VIII of the
Constitution. To hold that Section 3[l] of Article VIII is
applicable to the interim Batasang Pambansa would
lead to the conclusion that the members of the
Batasan shall have a term of six years, which is of
course inconsistent with its transitory character. That
the interim Batasang Pambansa is a distinct and
special body, which, by reason of its transitory nature
should be governed by specifically formulated rules, is
apparent from the constitutional amendment which
created it. Thus, its membership shall not be more
than 120, unless otherwise provided by law.
Furthermore, it shall include the incumbent President
of the Philippines, representatives elected from the
different regions of the nation, those who shall not be
less than eighteen years of age elected by their
respective sectors, and those chosen by the incumbent
President from the Members of the Cabinet. The
regular National Assembly, on the other hand, is
limited in its membership to representatives to be
apportioned among the provinces, representative
districts and cities. By reason of its provisional
character, the interim Batasang Pambansa has to be
more flexible, both in its representation and the
manner of election of its members. There is no denying
the fact that as wide a range of representation as
possible is required in order to hasten the nations
return to normalcy. It is for t reason that sectors are
given adequate representation 30 and are considered
as national aggrupations. Elections of sectoral
representatives are specially provided for in the 1978
Election Code. 31 It should be emphasized that the
regular National Assembly is distinct and different in
composition, powers and manner of elections of its
members from the interim Batasang Pambansa is to
function during the period of transition while the
regular National Assembly is to operate upon the
restoration of normalcy.
The composition of the interim Batasang Pambansa is
indeed experimental. It is an experiment in size, form
and distribution of constituencies in the hope of
securing a legislature most truly representative of the
views of the electorate. It would, therefore, be
ludicrous to confine the members of such body within
the strictures of the representative districts of the
regular National Assembly. The fear of petitioner Juan T.
David that several representative districts will be
deprived of representation misconstrues the concept of
regional elections. The representatives are to be
elected by the voters of the entire region. They will
represent the whole region and not merely its integral
provinces, districts or cities. Moreover, Section 12 of
the Code ensures that there shall be sufficient
representatives for each region by providing that the
number of regional representatives for any region shall
not be less than the number of representative districts
therein existing at the time of the ratification of the
Constitution.

III
The following two issues raised by petitioners are
interrelated and must be jointly discussed herein. They
are:
(a) Whether or not the Kilusang Bagong Lipunan (KBL)
and the Lakas ng Bayan (LABAN) may be registered
and accredited as political parties under Section 8 of
Article XII-C of the Constitution, so that their respective
candidates for membership in the interim Batasang
Pambansa may be voted for as a group under the 1978
Election Code; and
(b) Whether or not members of a political party in the
l971 elections may run under the ticket sponsored by
any other party, group or aggrupation, considering the
provisions of Section 10 of Article XII-C of the
Constitution which prohibition candidates for any
elective public office from changing party affiliation
within six months s immediately preceding or following
an election
The resolution of the foregoing issues calls for the
determination of the constitutionality of Section 199 of
the 1978 Election Code, questioned by petitioners. Said
section provides:
SEC. 199. Registration of political parties. Pending
the promulgation of rules and regulations to govern the
registration and accreditation of political parties by the
Commission in accordance with Article XII[C] of the
Constitution, the registration with the Commission
previous to 1972 of the Nacionalista Party, Liberal
Party, Citizens Party, and other national parties shall
be deemed to continue and they may, upon notice to
the Commission through their respective presidents or
duly authorized representatives, amend or change
their names, constitutions, by-laws, or other
organizational papers, platfor, officers and members,
and shag be entitled to nominate and support their
respective candidates for representatives in the interim
Batasang Pambansa. Similarly, any other group of
persons pursuing the same political Ideals in
government may register with the Commission and be
entitled to the same rights and privileges.
Invoked by petitioner are Sections 8 and 10 of Article
XII-C of the Constitution, which provide:
SEC. 8. A political party shall be entitled to
accreditation by the Commission if, in the immediately
preceding election, such party has obtained at least
the third highest number of votes cast in the
constituency to which it seeks accreditation. No
religious sect shall be registered as political party, and
no political party which seeks to achieve its goals
through violence or subversion shall be entitled to
accreditation.
SEC. 10. No elective public officer may change political
party affiliation during term of office, and no candidate
for any elective public office may change political party
affiliation within six months immediately preceding g or
following an election.

It should be recalled that the object of the afore-quoted


provisions of the Constitution was to develop a third
party and break the heretofore dominant hold on the
political system by the two major political parties which
have been in existence since the birth of the republic.
These two major parties were considered as in fact a
one party system with two factions openly disagreeing
on fringe issues but tacitly united by one common aim:
alternate monopoly of power through a pattern of
patronage politics. 32 The framers of the Constitution
examined the weaknesses of the party system and saw
the need for discarding the old party system as a
political farce that has been largely responsible for
many of the countrys ills . 33 They envisioned,
therefore, a new era in Philippine politics, where
elections were to be decided on issues rather than on
personalities, and where the electoral process was to
be free, less expensive government depends on an
organized and vigorous citizenry. Such can only exist if
citizens can increase their effectiveness in politics by
modernizing and using political parties to set the
general directions of public policy and to influence the
specific decisions of public institutions that affect their
daily lives.
It was intended, however, that some of these
provisions would not operate during the interim period.
Thus, from the wording of Section 8, it is obvious that
said section is incapable of application during the first
election because it states that no political party shall
be entitled to accreditation unless in the immediately
preceding election, it obtained at least the third
highest number of votes cast in the constituency to
which it seeks accreditation. That there cannot be any
accreditation during the first election under the 1973
Constitution is evident from the sponsorship speech of
the proponent of t constitutional provision. 34
Although their members are united by common policies
and principles of government and apparently impelled
by the same political Ideals, neither the Kilusang
Bagong Lipunan (KBL) nor the Lakas ng Bayan (LABAN)
professes to be a political party in the sense of a stable
organization with a degree of permanence, imposing
strict discipline among the members, and with a party
platform drafted and ratified in a party convention. It
does not follow, however, that the KBL and LABAN are
not political parties, in a generic sense, since a political
party has been generally defined as an association of
voters believing in certain principles of government,
formed to urge the adoption and execution of such
principles in governmental affairs through officers of
like belief. 35. Political parties result from the
voluntary association of electors, and do not exist by
operation of law. The element of time is not essential to
the formation of a legal party; it may spring into
existence from the exigencies of a particular election,
and with no intention of continuing after the exigency
has passed. 36 As a matter of fact, it is only the
Kilusang Bagong Lipunan (KBL) and the Lakas ng
Bayan (LABAN) that have polarized the major
differences on vital public issues affecting the nation.
And, during t first election in t period of transition
when, obviously, no political party can be accredited,
does the Constitution, in Article XII-C, Sections 2[5] and
8 limit registration to political parties as strictly
understood by withholding it from aggrupations of
persons pursuing the same political Ideals of

government as provided in Section 199 of the 1978


Election Code? It clearly does not. The listing of
political parties appears to have a dual aspect
registration and accreditation Registration is a means
by which the government is enabled to supervise and
regulate the activities of various elements participating
in an election.
It would appear from Section 8 of Article XII-C that the
only groups which cannot be registered are: (a)
religious groups or sects; and (b) those political parties
or groups who seek to achieve its goals through
violence and subversion. Accreditation is the means
by which the registration requirement is made effective
by conferring benefits to registered political parties.
The condition for accreditation, aside from those
mentioned, is that the political party must have
obtained, in the immediately preceding election, at
least the third highest number of votes cast in the
constituency to which it seeks accreditation. The
Constitution, however, does not state what are the
effects of accreditation. There is, therefore, necessity
for legislation. Moreover, to construe the term political
party restrictively would delimit the supervisory
authority of the Commission on Elections. More
specifically, it would exempt aggrupations or other
political groups from certain requirements. Under
Section 199, the 1978 Election Code allows the
registration of aggrupations or groups of persons
pursuing the same political Ideals in government;
consequently, they are subjected to the regulation of
propaganda materials (Sec. 41) and the limitation of
expenses for candidates (Sec. 52).
From another point of view, a narrow construction may
discourage the robust exercise of the right of
association guaranteed by the Bill of Rights, which at t
stage of our political tory appears, necessary.
The facts that the coming polls will be the first that we
shall hold since the proclamation of martial law on
September 21, 1972 makes it an event of no ordinary
significance. The Filipino society has outgrown its age
of innocence. Today the acts of Filipino politicians must
be judged by more mature standards and the test of
national allegiance has become more strict and more
demanding, even more binding. 37 By the election,
we shall inaugurate a new stage in our political life,
and commence our fateful transition from crisis
government to a parliamentary system.
But as President Ferdinand E. Marcos has significantly
observed:
this step, I repeat, is no mere restoration of electoral
processes and representative government. The coming
elections would be a perilous exercise indeed if they
would merely return us to elections and representative
institutions as we had known them in the past, and
compromise what had taken us so much time and
effort to construct over the last five years.
What we envision in t initiative is the permanence and
continuity of the refor that we have launched under the
aegis of crisis government. We envision in it the full
emergence of a new political order that will give life
and sustenance to our national vision of a new society.
And it will have permanence and continuity because by

the grace of suffrage and representative government,


we shag thereby attain a formal mechanism for the
exercise of participation and involvement by our
people in nation-building and national development. 38
It is, therefore, necessary at t stage to encourage the
emergence or growth of political parties that will truly
reflect the opinions and aspirations of our people. The
right of individuals to form associations as guaranteed
by the fundamental law, includes the freedom to
associate or refrain from association. 39 In accord with
t constitutional precept, it is recognized that no man is
compelled by law to become a member of a political
party, or, after having become such, to remain a
member. 40
The existence of responsible political parties with
distinct programs of government is essential to the
effectiveness of a parliamentary system of
government. It is in recognition of t fact that Section
199 of the 1978 Election Code allows or sanctions the
registration of groups of persons pursuing the same
political ideals in government with the Commission on
Elections. Moreover, to what extent the rights of
organized political parties should be regulated by law is
a matter of public policy to be determined by the
lawmaker a matter which does not concern the
courts. 41
T brings us to the next point raised by petitioners,
namely, that under Section 10 of Article XII-C of the
Constitution, no candidate for elective office may
change party affiliation within six months immediately
preceding or following an election. In the cases at bar,
We understand that no candidate voluntarily changed
party affiliation. On the contrary, the claim that the KBL
and the LABAN are not political parties is based partly
on the fact that the candidates running under their
banners have retained their party affiliation. Section 10
is a statement of a basic principle against political
opportunism. To begin with, no legislation has been
enacted to implement t constitutional prohibition.
Indeed, it is difficult to conceive how the courts may
apply the prohibition, in all the varied facts and
circutances under which it may be invoked, without the
aid of supplementary legislation. For instance, the
provision in question states that no elective public
officer may change political party affiliation during
term of office. Suppose an elected representative in
the legislature, belonging to one party, shall always
vote and side with another political party. Will he be
considered a turncoat even if he does not formally
change party affiliation? Suppose it be decided that he
is a turncoat. What sanctions should be adopted?
Should he be suspended or ousted from the
legislature?
When one turns to political candidates, the same
questions as to what should be considered political
opportunism or turncoatism will be encountered.
But the problem of procedure for hearing and deciding
infringements of the prohibition or the determination of
the appropriate sanction becomes more acute. Is the
sanction to be found in the refusal by the Commission
on Elections to register the party or group, or in the
denial of certificate of candidacy, or are there other
ways? Should political parties be prevented from
adopting candidates? Or from forming coalitions?

All of these are questions of policy, in resolving winch


many immensurable factors have to be considered.
The afore-cited constitutional provisions are commands
to the legislature to enact laws to carry out the
constitutional purpose. They are, therefore, addressed
initially to the lawmaking department of the
government. It is not part of the judicial department to
deal with such questions without their authoritative
solutions by the legislative department. It may be
relevant to emphasize here that the jurisdiction of t
Court is limited to cases and controversies, presented
in such form, with adverse litigants, that the judicial
power is capable of acting upon them, and
pronouncing and carrying into effect a judgment
between the parties, and does not extend to the
determination of abstract questions or issues framed
for the purpose of invoking the advice of the court
without real parties or a real case. 42
In any event, We cannot perceive how such
constitutional prohibition could be applied in t first
election. Precisely, the overriding constitutional
purpose is to remove the dominant hold of the two
major political parties and encourage the formation of
new political parties. The intention is not to rebuild old
party coalitions but to define new political means and
instruments, within the parties or beyond them, that
will allow the Filipino people to express their deeper
concerns and aspirations through popular government.
IV
The fourth issue is: whether or not the forty-five-day
period of campaign prescribed in the 1978 Election
Code violates the Constitution because. (a) it was
decreed by the President and not by the Commission
on Elections as provided by Section 6 of Article XII-C;
and (b) the period should cover at least ninety (90)
days.
Petitioners question the constitutionality of Section 4 of
the 1978 Election Code, which provides:
SEC. 4. Election and campaign periods. The election
period shall be fixed by the Commission on Elections in
accordance with Section 6, Article XII-C of the
Constitution. The period of campaign shall not be more
than forty- five days immediately preceding the
election, excluding the day before and the day of the
election: Provided, That for the election of
representatives to the interim Batasang Pambansa, the
period of campaign shall commence on February 17,
1978 except that no election campaign or partisan
political activity may be conducted on March 23 and
24, 1978.
In support of the allegation of unconstitutionality,
petitioners rely on Section 6 of Article XII-C of the
Constitution, thus:
SEC. 6. Unless otherwise fixed by the Commission in
special cases, the election period shall commence
ninety days before the day of election and shall end
thirty days thereafter.
At the outset, it should be considered that Amendment
No. 1 provides that the number of representatives

from each region and the manner of their election shall


be prescribed and regulated by law (emphasis
supplied). Under Amendment No. 5, the incumbent
President shall continue to exercise legislative powers
until martial law shall have been lifted. The power
conferred by these Amendment upon the lawmaker
necessarily included the authority to prescribe the date
and procedure for the holding of such elections. It
should be borne in mind that the forthcoming election
for members in the interim Batasang Pambansa will be
a special election during a regime of martial law. It is,
therefore, an election in a state of emergency. The
exigencies of the situation require that it be governed
by special rules. At t point, the objective is to hasten
the normalization of government and, at the same
time, to ensure that the nation is not exposed to the
same critical proble that necessitated the declaration
of martial law. In conferring upon the incumbent
President the authority to determine the date of the
election, those who drafted the Amendments must
have realized that it is only the incumbent President
who has the authority and the means of obtaining,
through the various facilities in the civil and military
agencies of the government, information on the peace
and order condition of the country, and to determine
the period within which an electoral campaign may be
adequately conducted in all the regions of the nation.
Thus, the 1978 Election Code was formulated to meet a
special need, and t is emphasized by the fact that the
Code itself limits its application. 43
Even assuming that it should be the Commission on
Elections that should fix the period for campaign, the
constitutional mandate is complied with by the fact
that the Commission on Elections has adopted and is
enforcing the period fixed in Section 4, Article I of the
1978 Election Code.
At any rate, insofar as objections to the fixing of the
campaign period for elections in general are
concerned, it is apparent that there is a distinction
between the ter election period and campaign
period. Thus, Section 4, Article I of the 1978 Election
Code provides that the election period shag be fixed
by the Commission on Elections in accordance with
Section 6, Article XII (C) of the Constitution. The
campaign period, however, has been fixed so that it
shall not be more than forty-five days immediately
preceding the election: Provided, That for the election
of representatives to the interim Batasang Pambansa,
the period of campaign shag commence on February
17, 1978 except that no election campaign or partisan
political activity may be conducted on March 23 and
24, 1978. The distinction is further made apparent by
the fact that the election period under Section 5 of
Article XII-C of the Constitution extends even beyond
the day of the election itself, while the campaign
period, by reason of its nature and purpose, must
necessarily be before the elections are held. There is,
therefore, no conflict with the constitutional provision.
At t juncture, it may be relevant to note the efforts of
the Commission on Elections to give more substance
and meaning to the intent and spirit of the Constitution
and the 1978 Election Code by giving the same
practicable opportunities to candidates, groups or
parties involved in the April 7, 1978 interim Batasang
Pambansa elections. Thus, in Resolution No. 1289, the

COMELEC removed the so-called undue advantage


which the Nacionalista Party and the Kilusang Bagong
Lipunan (KBL) had over the Lakas ng Bayan (LABAN) in
ter of authorized election expenses, appointment of
election watchers and use of print and broadcast
media. T circutance, contrary to the clai of petitioners,
shows that the Commission on Elections, as a
constitutional body charged with the enforcement and
administration of all laws relative to the conduct of
elections, and with broad powers, functions and duties
under the 1973 Constitution, can give candidates,
irrespective of parties, equal opportunities under equal
circutances.
WHEREFORE, in view of the foregoing, the instant
petitions are hereby DISMISSED, without costs.
DIGEST:
Peralta was an independent candidate in the April 1978
Interim Batasang Pambansa Elections. He, along with
others, assailed the constitutionality of PD 1269 or the
1978 Election Code. Secs140 and 155, sub-paragraphs
26 to 28, of the 1978 Election Code, grants the voter
the option to vote either for individual candidates by
filling in the proper spaces in the ballot the names of
candidates he desires to elect, or to vote for all the
candidates of a political party, group or aggrupation by
simply writing in the space provided for in the ballot
the name of the political party, group or aggrupation
(office-block ballot). Peralta was vehement in
contending that the optional block voting scheme is
violative of this provision of the Constitution: Bona
fide candidates for any public office shall be free from
any form of harassment and discrimination. He
sought the shelter of its protection for himself and
other independent candidates who, according to him,
would be thus made to suffer if the assailed provision is
not nullified. Essentially, in terms of individual rights,
he would raise a due process and equal protection
question. The main objection of Peralta against the
optional straight party voting provided for in the Code
is that an independent candidate would be
discriminated against because by merely writing on his
ballot the name of a political party, a voter would have
voted for all the candidates of that party, an advantage
which the independent candidate does not enjoy. In
effect, it is contended that the candidate who is not a
party-member is deprived of the equal protection of
the laws, as provided in Sec 1 of Article IV, in relation
to Sec 9 of Article XII, of the 1973 Constitution.
ISSUE: Whether or not the 1978 Election Code is
violative of equal protection.
HELD: The SC ruled that the 1978 Election Code is
valid. Before a voter prepares his ballot, the voter will
be able to read all the names of the candidates. No
candidate will receive more than one vote, whether he
is voted individually or as a candidate of a party group
or aggrupation. The voter is free to vote for the
individual candidates or to vote by party, group or
aggrupation. The choice is his. No one can compel him
to do otherwise. In the case of candidates, the decision
on whether to run as an independent candidate or to
join a political party, group or aggrupation is left
entirely to their discretion. Certainly, before filing his
certificate of candidacy, a candidate is aware of the
advantages under the law accruing to candidates of a

political party or group. If he wishes to avail himself of


such alleged advantages as an official candidate of a
party, he is free to do so by joining a political party
group or aggrupation. In other words, the choice is his.
In making his decision, it must be assumed that the
candidate had carefully weighed and considered the
relative advantages and disadvantages of either
alternative. So long as the application of the rule
depends on his voluntary action or decision, he cannot,
after exercising his discretion, claim that he was the
victim of discrimination.

and disqualification from public office for a period of


not more than four years.

PEOPLE vs. CORRAL


THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiffappellee,
vs.
AMADEO CORRAL, defendant-appellant.

The modern conception of the suffrage is that voting is


a function of government. The right to vote is not a
natural right but is a right created by law. Suffrage is a
privilege granted by the State to such persons or
classes as are most likely to exercise it for the public
good. In the early stages of the evolution of the
representative system of government, the exercise of
the right of suffrage was limited to a small portion of
the inhabitants. But with the spread of democratic
ideas, the enjoyment of the franchise in the modern
states has come to embrace the mass of the audit
classes of persons are excluded from the franchise.
Among the the generally excluded classes are minors
idiots, paupers, and convicts.

Generoso, Pelayo, Castillo, Braganza, Chavez, Doromal,


Diaz and Capili for appellant.
Office of the Solicitor General Hilado for appellee.
ABAD SANTOS, J.:
Appellant was charged having voted illegally at the
general elections held on June 5, 1934. After due trial,
he was convicted on the ground that he had voted
while laboring under a legal disqualification. The
judgment of conviction was based on section 2642, in
connection with section 432. of the Revised
Administrative Code.
Said Section 432 reads as follows:
The following persons shall be disqualified from voting:
(a) Any person who, since the thirteenth day of August,
eighteen hundred and ninety-eight, has been
sentenced by final judgment to suffer not less than
eighteen months of imprisonment, such disability not
having been removed by plenary pardon.
(b) Any person who has violated an oath of allegiance
taken by him to the United States.
(c) Insane of feeble-minded persons.
(d) Deaf-mutes who cannot read and write.
(e) Electors registered under subsection (c) of the next
proceeding section who, after failing to make sworn
statement to the satisfaction of the board of inspectors
at any of its two meetings for registration and revision,
that they are incapacitated for preparing their ballots
due to permanent physical disability, present
themselves at the hour of voting as incapacitated,
irrespective of whether such incapacity be real or
feigned.
And section 2642 provides:
Whoever at any election votes or attempts to vote
knowing that he is not entitled so to do, ... shall be
punished by imprisonment for not less than one month
nor more than one year and by a fine of not less than
one hundred pesos nor more than one thousand pesos,
and in all cases by deprivation of the right of suffrage

It is undisputed that appellant was sentenced by final


judgment of this court promulgated on March 3, 1910,1
to suffer eight years and one day of presidio mayor. No
evidence was presented to show that prior to June 5,
1934, he had been granted a plenary pardon. It is
likewise undisputed that at the general elections held
on June 5, 1934, the voted in election precinct No. 18
of the municipality of Davao, Province of Davao.

The right of the State to deprive persons to the right of


suffrage by reason of their having been convicted of
crime, is beyond question. "The manifest purpose of
such restrictions upon this right is to preserve the
purity of elections. The presumption is that one
rendered infamous by conviction of felony, or other
base offense indicative of moral turpitude, is unfit to
exercise the privilege of suffrage or to hold office. The
exclusion must for this reason be adjudged a mere
disqualification, imposed for protection and not for
punishment, the withholding of a privilege and not the
denial of a personal right. (9 R.C.L., 1042.)
Upon the facts established in this case, it seems clear
that the appellant was not entitled to vote on June 5
1934, because of section 432 of the Revised
Administrative Code which disqualified from voting any
person who, since the 13th day of August, 1898, had
been sentenced by final judgment to offer not less than
eighteen months of imprisonment, such disability not
having been removed by plenary pardon. As above
stated, the appellant had been sentenced by final
judgment to suffer eight years and one day of presidio
mayor, and had not been granted a plenary pardon.
Counsel for the appellant contend that inasmuch as the
latter voted in 1928 his offense had already prescribed,
and he could no longer be prosecuted for illegal voting
at the general election held on June 5, 1934. This
contention is clearly without merit. The disqualification
for crime imposed under section 432 of the Revised
Administrative Code having once attached on the
appellant and not having been subsequently removed
by a plenary pardon, continued and rendered it illegal
for the appellant to vote at the general elections of
1934.
Neither is there any merit in the contention advanced
by counsel for the appellant that the disqualification
imposed on the latter must be considered as having
been removed at the expiration of his sentence. This

claim is based upon an erroneous theory of the nature


of the disqualification. It regards it as a punishment
when, as already indicated, the correct view is that it is
imposed, "for protection and not for punishment,. the
withholding of a prvilege and not the denial of a
personal right." Judicial interpretation and long
established administrative practice are against such a
view.
The judgment appealed from is affirmed with costs
against the appellant. So ordered.

9,904
Baroy
1,849
3,275
4,195
Iligan City
44,925
27,409
15,485
PARTIAL SUB-TOTAL
52,783
39,315
35,150

DIMAPORO vs. COMELEC


UNDER consideration is a petition for certiorari via Rule
65 of the 1997 Rules of Civil Procedure assailing the (1)
Resolution[1] of the Commission on Elections
(COMELEC) Second Division dated July 10, 2007 and (2)
Resolution[2] of the COMELEC En Banc promulgated on
September 5, 2007.
The antecedent facts:
Petitioner Imelda Dimaporo and private respondent
Vicente Belmonte were both candidates for
Representative of the 1st Congressional District of
Lanao del Norte during the May 14, 2007 elections.
The said legislative district is composed of seven (7)
towns and one (1) city, namely: the Municipalities of
Linamon, Kauswagan, Bacolod, Maigo, Kolambugan,
Tubod, Baroy and the City of Iligan.
On May 22, 2007, the Provincial Board of Canvassers[3]
(PBOC) completed the canvass of the Certificates of
Canvass (COCs) for the City of Iligan and four (4) of the
municipalities, namely, Linamon, Kolambugan, Tubod
and Baroy. Upon adjournment on May 22, 2007, the
said PBOC issued a Certification showing respondent
Belmonte in the lead, with 52,783 votes, followed by
candidate Badelles with 39,315 votes, and petitioner
Dimaporo in third place with only 35,150 votes, viz.:
OFFICIAL PARTIAL TOTAL VOTES
FOR MEMBER, HOUSE OF REPRESENTATIVES
BASED ON THE CANVASS BY THE PBOC
OF THE COCs OF FOUR (4) MUNICIPALITIES OF 1st
DISTRICT AND OF THE COC OF ILIGAN CITY
(Votes for Candidates Leo M. Zaragoza and Uriel G.
Borja omitted)
MUNICIPALITY
BELMONTE
BADELLES
DIMAPORO
Linamon
2,395
1,737
1,835
Kolambugan
1,530
4,287
3,731
Tubod
2,084
2,607

Sometime in the evening of May 19, 2007, the ballot


boxes containing the COCs of Kauswagan, Bacolod and
Maigo were allegedly forcibly opened, their padlocks
destroyed and the envelopes containing the COCs and
the Statement of Votes (SOV) opened and violated.
When the PBOC was about to resume the canvassing at
around 9:00 a.m. the succeeding day, the forced
opening of the ballot boxes was discovered prompting
the PBOC to suspend the canvass.
On May 22, 2007, the Commissioner-in-Charge of
CARAGA Region, Nicodemo Ferrer, issued a Resolution
ordering that the canvassing of the ballots contained in
the tampered ballot boxes of Kauswagan, Maigo and
Bacolod be suspended until after the National Bureau
of Investigation (NBI) submits its findings to the
Commission.
On May 24, 2007, the NBI submitted its report. It found
as follows:
In our assessment and observation, the culprit(s)
managed to enter the room of the Vice-Governor [Irma
Umpa Ali] which he/she used as a staging and hiding
place while persons are still allowed to enter the
building during the canvassing. On the night of May 19,
2007 the culprit(s) hide (sic) in the said room and
waited until there were no persons allowed inside the
building except the provincial guard on duty who was
manning the ground floor at the area near the entrance
door. The culprit(s) then entered the Session Hall by
using some hard ID Card or any similar object which
was inserted in between the door and door-lock, and
once inside specifically destroyed the padlocks of the
ballot boxes for the Municipalities of Bacolod, Maigo
and Kauswagan. x x x.
On May 24, 2007, Atty. Dennis L. Ausan, Regional
Director, Region X, issued a Very Urgent Memorandum
addressed to the COMELEC En Banc, enclosing the NBI
report, with the following recommendation:
[T]hat the Commission En Banc comes out with an
order directing the Provincial Board of Canvassers of
Lanao del Norte to immediately reconvene solely for
the purpose of retrieving the three envelopes
supposedly containing the COCs from the said three (3)
municipalities, to open the same in the presence of all
watchers, counsels and representatives of all
contending parties and the accredited Citizens Arm of

the Commission and right there and then to turn over


the same to the representative of the NBI for technical
examination by their questioned documents expert.
Further, it is requested that it must also be
incorporated in the En Bancs order the directive for the
PBOC to turnover to the NBI the copies of the COC of
the three (3) municipalities intended for the
Commission and the Election Officer for purposes of
comparison with that retrieved from the questioned
ballot box.
Thereafter, on May 25, 2007, COMELEC issued
Resolution No. 8073 adopting in part the
recommendation of Atty. Ausan directing the PBOC of
Lanao del Norte to immediately reconvene solely for
the purpose of retrieving the three envelopes
supposedly containing the COCs from the
municipalities of Kauswagan, Bacolod and Maigo and to
open the same in the presence of all watchers,
counsels, and representatives of all contending parties
and the accredited Citizens Arm of the Commission and
right there and then to direct the representatives of the
dominant majority and minority parties to present their
respective copies of the COCs for comparison with the
COCs intended for the COMELEC and with the COCs
inside the envelope just opened.
The COMELEC further resolved that when discrepancies
show signs of tampering and falsifying, the PBOC is to
immediately turnover to the NBI the copies of the COCs
of said three (3) municipalities intended for the
Commission and the Election Officer for purposes of
comparison with those retrieved from the questioned
ballot boxes.
On May 30, 2007, Commissioner Nicodemo Ferrer
issued his Memorandum relieving the PBOC of its
functions and constituting a special provincial board of
canvassers (SPBOC).[4] He further ordered as follows:
The previous En Banc Resolution No. 8073 promulgated
on May 25, 2007 is hereby amended to state that upon
the opening of the envelopes containing the COCs
found inside the tampered ballot boxes for the towns of
Kauswagan, Maigo and Bacolod, the same shall at once
be canvassed in the presence of the candidates and/or
their representatives, taking note of whatever
objections that they may interpose on any of the
entries in said COCs.
However, no canvassing took place on May 30, 2007 in
view of the human barricade of some 100 persons who
effectively blocked the entrance to the Sangguniang
Panlalawigan building.
On May 31, 2007, Commissioner Nicodemo Ferrer
issued another Memorandum constituting another
SPBOC for Lanao del Norte composed of Atty. Lordino
Salvana, as chairman, with Atty. Anna Ma. Dulce
Cuevas-Banzon and Atty. Gina Luna Zayas, as
members. In said Memorandum, Ferrer gave the
following instructions:
Considering the heightened controversies occasioned
by the admitted tampering of the three (3) ballot boxes

containing the COCs of said towns to be canvassed,


you are directed to refrain from proclaiming any
candidate until ordered by the Commission through the
undersigned Commissioner-in-Charge of Region X.
Appeal, if any, should be immediately elevated to the
Commission for evaluation.
This amends the urgent memorandum addressed to
Atty. Joseph Hamilton Cuevas dated May 30, 2007.
The chairman and members of the new SPBOC arrived
at the venue of the canvassing at Tubod, Lanao del
Norte at 10:15 p.m. on May 31, 2007. However, the
human barricade which blocked the entrance to the
Sangguniang Panlalawigan building had now swelled
into a horde of some 300 persons. As a consequence,
the canvassing still did not take place.
On June 1, 2007, the new SPBOC convened and opened
the ballot boxes for the towns of Kauswagan, Maigo
and Bacolod. As the SPBOC proceeded with the
canvass, private respondent Belmonte objected to the
inclusion of the COCs of the concerned municipalities
on the following grounds:
1.) There were manifest errors in the COCs;

2.) The numbers of votes in words and in figures


opposite the names of appellant and appellees
Badelles and Dimaporo contain intercalations done
through the application of a white correction fluid
(SnoPake), which intercalations are visible to the naked
eye;
3.) The COCs were obviously manufactured;
4.) The COCs were tampered or falsified;
5.) The intercalations in the COCs were not made or
prepared by the Municipal Board of Canvassers (MBOC)
concerned; and
6.) The SOVs likewise contain intercalations done
through SnoPake resulting in an altered number of
votes for appellant and respondents.
The SPBOC denied Belmontes objections due to lack of
jurisdiction.
On that same day, June 1, 2007, Belmonte filed his
verified notice of appeal before the SPBOC. On June 5,
2007, Belmonte filed his appeal with appeal
memorandum. On June 7, 2007, Belmonte filed with
the COMELEC his alternative petition to correct
manifest errors.
In the assailed Resolution of July 10, 2007, the Second
Division of the COMELEC granted Belmontes petition.
While conceding that it has no jurisdiction to hear and
decide pre-proclamation cases against members of the
house, it took cognizance of the petition as one for the
correction of manifest errors, hence, within its

jurisdiction as per the last sentence of Section 15 of


Republic Act (R.A.) No. 7166. The law provides:
Sec. 15. Pre-proclamation Cases in Elections for
President, Vice-President, Senator, and Member of the
House of Representatives. For purpose of the elections
for president, vice-president, senator, and member of
the house of representatives, no pre-proclamation
cases shall be allowed on matters relating to the
preparation, transmission, receipt, custody and
appreciation of election returns or the certificates of
canvass, as the case may be, except as provided for in
Sec. 30 hereof. However, this does not preclude the
authority of the appropriate canvassing body motu
proprio or upon written complaint of an interested
person to correct manifest errors in the certificate of
canvass or election returns before it. (Underscoring
supplied)
The dispositive portion of the challenged Resolution
reads:
WHEREFORE, premises considered, the Commission
(Second Division) resolves to GRANT the Petition and
the questioned Rulings of the respondent MBC is
hereby REVERSED AND SET ASIDE. The questioned
COCs are hereby ordered excluded and should not be
canvassed.

The Board of Canvassers is hereby directed to


RECONVENE here in Manila (for security purposes) and
issue a new certificate of canvass of votes excluding
the election returns subject of this appeal and
substituting the proper entries as are evident in the
authentic copies of the election returns related to the
subject COCs. The winning candidate who garners the
most number of votes in accordance with our
observation shall after proper canvass be proclaimed
by the Board of Canvassers.
SO ORDERED.
On July 13, 2007, Dimaporo moved for a
reconsideration. This was denied in the COMELECs
equally assailed En Banc Resolution of September 5,
2007. The second Resolution prompted Dimaporo to
file, on September 7, 2007, the present petition for
certiorari with prayer for the issuance of a temporary
restraining order and/or writ of preliminary injunction
questioning the jurisdiction of the COMELEC over the
case.
In her petition, Dimaporo claims that the subject
matter involved does not pertain to manifest errors but
to the preparation, transmission, receipt, custody and
appreciation of certificates of canvass, a matter
outside the realm of the COMELECs jurisdiction when a
congressional seat is involved. She cites Section 15 of
R.A. No. 7166.
Dimaporo prays as follows:

1. upon filing of this petition, a temporary restraining


order be issued by the Honorable Court enjoining the

implementation of the questioned Resolution of July 10,


2007 of the COMELEC (Second Division) and the
COMELEC En Banc Resolution promulgated on
September 5, 2007 affirming the Second Division upon
such bond as may be required by the Honorable Court;
2. after due hearing, the questioned Resolution of July
10, 2007 of the COMELEC (Second Resolution) and the
COMELEC En Banc Resolution promulgated on
September 5, 2007 be both reversed and set aside;
3. petitioner be ordered proclaimed as the duly elected
Representative of the First Congressional District of the
Province of Lanao del Norte in the May 14, 2007
elections;
4. for such other relief as may be deemed just and
equitable under the premises.[5]
On September 13, 2007, Dimaporo filed an urgent
motion reiterating the prayer for the issuance of a
temporary restraining order. This was followed by the
filing of a manifestation and motion for the issuance of
a status quo ante order and/or temporary restraining
order on September 25, 2007. On October 1, 2007,
Dimaporo, again, filed a motion to maintain the status
quo at the time of the filing of the petition.
On October 2, 2007, the Court En Banc, acting upon
Dimaporos motion for the issuance of a status quo ante
order and/or temporary restraining order, issued the
following Resolution:
Acting on the Manifestation and Motion for the
Issuance of a Status Quo Ante Order and/or Temporary
Restraining Order dated September 12, 2007 filed by
counsel for petitioner, the Court Resolved to require
public respondent Commission on Elections to observe
the STATUS QUO prevailing at the time of the filing of
the petition and refrain from implementing the
resolutions of July 10, 2007 and September 5, 2007 of
the COMELEC Second Division and En Banc,
respectively.
The Court further Resolved to NOTE the Motion to
Maintain the Status Quo at the Time of the Filing of the
Petition, dated October 1, 2007, filed by counsel for
petitioner.
The succeeding day, October 3, 2007, a status quo
ante order was issued to the COMELEC stating:
NOW, THEREFORE, effective immediately and
continuing until further orders from this Court, You,
Respondent COMELEC, your agents, representatives, or
persons acting in your place and stead, are hereby
required to observe the STATUS QUO that is prevailing
at the time of the filing of the petition.
On October 8, 2007, private respondent Belmonte filed
his comment in which he brought to Our attention that
on September 26, 2007, even before the issuance of
the status quo ante order of the Court, he had already
been proclaimed by the PBOC as the duly elected
Member of the House of Representatives of the First
Congressional District of Lanao del Norte. On that very

same day, he had taken his oath before Speaker of the


House Jose de Venecia, Jr. and assumed his duties
accordingly.

protest before the HRET would be the appropriate


course of action.
WHEREFORE, the petition is DISMISSED.

In light of this development, jurisdiction over this case


has already been transferred to the House of
Representatives Electoral Tribunal (HRET). When there
has been a proclamation and a defeated candidate
claims to be the winner, it is the Electoral Tribunal
already that has jurisdiction over the case.[6]
In Lazatin v. Commission on Elections,[7] the Court had
this to say:
The petition is impressed with merit because petitioner
has been proclaimed winner of the Congressional
elections in the first district of Pampanga, has taken his
oath of office as such, and assumed his duties as
Congressman. For this Court to take cognizance of the
electoral protest against him would be to usurp the
function of the House Electoral Tribunal. The alleged
invalidity of the proclamation (which had been
previously ordered by the COMELEC itself) despite
alleged irregularities in connection therewith, and
despite the pendency of protests of the rival
candidates, is a matter that is also addressed,
considering the premises, to the sound judgment of the
Electoral Tribunal. (Emphasis supplied)
This was reiterated in Aggabao v. Commission on
Elections:[8]
The HRET has sole and exclusive jurisdiction overall
contests relative to the election, returns, and
qualifications of members of the House of
Representatives. Thus, once a winning candidate has
been proclaimed, taken his oath, and assumed office
as a Member of the House of Representatives,
COMELECs jurisdiction over election contests relating
to his election, returns, and qualifications ends, and the
HRETs own jurisdiction begins.
The COMELEC was not amiss in quickly deciding
Belmontes petition to correct manifest errors then
proclaiming him the winner. Election cases are imbued
with public interest.[9] They involve not only the
adjudication of the private interest of rival candidates
but also the paramount need of dispelling the
uncertainty which beclouds the real choice of the
electorate with respect to who shall discharge the
prerogatives of the offices within their gift.[10] It has
always been the policy of the election law that preproclamation controversies should be summarily
decided, consistent with the laws desire that the
canvass and proclamation be delayed as little as
possible.[11]
Considering that at the time of proclamation, there had
yet been no status quo ante order or temporary
restraining order from the court, such proclamation is
valid and, as such, it has vested the HRET with
jurisdiction over the case as Belmonte has, with the
taking of his oath, already become one of their own.
Hence, should Dimaporo wish to pursue further her
claim to the congressional seat, the filing of an election

BANAGA, JR. vs. COMELEC


TOMAS T. BANAGA, JR., petitioner, vs. COMMISSION ON
ELECTIONS and FLORENCIO M. BERNABE, JR.,
respondents.
DECISION
QUISUMBING, J.:
This special civil action for certiorari seeks to annul the
en banc resolution of public respondent Commission on
Elections promulgated on June 29, 1998, in a COMELEC
special action case, SPA No. 98-383.
The factual antecedents of this case are as follows:
Petitioner and private respondent were the candidates
for vice-mayor of the City of Paraaque in the May 11,
1998 election. On May 19, 1998, the city board of
canvassers proclaimed private respondent, Florencio
M. Bernabe, Jr., the winner for having garnered a total
of Seventy One Thousand Nine Hundred Seventy Seven
(71,977) votes of the total votes cast for the vicemayoralty position. On the other hand, petitioner,
Tomas T. Banaga, Jr., received the second highest
number of votes for the said position, with Sixty Eight
Thousand Nine Hundred Seventy (68,970) of the total
votes cast. Thus, the difference between the votes
received by the private respondent and the petitioner
is three thousand seven (3,007) votes.
Dissatisfied, petitioner filed with the COMELEC on May
29, 1998, an action denominated as Petition to Declare
Failure of Elections and/or For Annulment of Elections,
[1] alleging that:
3. xxx the local elections for the office of Vice-Mayor in
the City of Paraaque, Metro Manila, held on 11 May
1998, amounts to a denigration of the expression of
the true will of the people, as it was tainted with
widespread election anomalies which constitutes
election fraud. The local elections for the position of
Vice-Mayor in the City of Paraaque, Metro Manila, was
replete with election offenses, specifically vote buying
and flying voters being allowed to vote. Moreover,
during the canvassing of votes before the Board of
Canvasser, numerous Election Returns were discovered
to contain glaring discrepancies and are replete with
blatant omissions, not to mention the fact that
numerous election returns appeared to be tampered
with. All told, it is readily apparent that the portion of
the Election Returns pertaining to the position of ViceMayor in the City of Paraaque, appear to be altered,
falsified or fabricated.
4. The will of the legitimate voters of the City of
Paraaque were denigrated during the 11 May 1998
election as a consequence of the fact that an
indeterminable number of flying voters were allowed to
vote.
xxx
5. The 11 May 1998 elections for local officials in the
City of Paraaque has likewise been marred by massive

vote buying. To cite but one example, in Precinct Nos.


111-112 at the Tambo Elementary School in the City of
Paraaque, a certain Dennis Sambilay Agayan (Agayan)
was arrested for voting in substitution of registered
voter Ramon Vizcarra. Agayan admitted before SPO1
Alberto V. Parena that he was paid One Hundred Fifty
Pesos (P150.00) to vote at precincts No. 111-112 and
use the name Ramon Vizcarra. As proof of the
foregoing, attached hereto as Annex E is the
Information dated 11 May 1998 filed against Agayan.
The magnitude of the vote buying in the 11 May 1998
local elections in the City of Paraaque, is such that the
voters involved number in the thousands. Evidence in
this regard shall be presented in the proper time.
6. Also, there have been several instances where
purported voters were depositing more than one (1)
ballot inside the ballot box. As evidence thereof,
attached hereto as Annex F is the Affidavit of a certain
Rosemarie Pascua of Barangay Baclaran, City of
Paraaque.
7. The foregoing incidents alone actually suffices to
establish that a failure of elections should be declared
on the ground that the will of the electorate of the City
of Paraaque has been denigrated. The elections for the
office of the Vice-Mayor in the City of Paraaque, on 11
May 1998 cannot be considered as reflective of the
true will of the electorate. However, the anomalies do
not stop there.
8. In addition to the foregoing, during the canvassing of
votes before the Board of Canvassers, it was
discovered that numerous election returns contain
glaring discrepancies and are replete with blatant
omissions, not to mention the fact that several election
returns appeared to be tampered with or appear to be
fabricated. The Honorable Commission should seriously
consider these anomalies specially on account of the
fact that the lead of the respondent over the petitioner
is a mere Three Thousand Seven (3,007) votes.
xxx
9. Moreover, several Election Returns are found to have
glaring discrepancies which may materially alter the
results of the election for the office of Vice-Mayor in the
City of Paraaque.
xxx
10. Finally, what seriously casts doubt on the
legitimacy of the elections for the office of the ViceMayor in the City of Paraaque is the fact that the
results thereof are statistically improbable. A case in
point is precinct number 483 where petitioner
shockingly is supposed to have received zero (0) votes.
Petitioner is the incumbent Vice-Mayor of the City of
Paraaque. It is, thus, impossible that he will receive
zero (0) votes in any given precinct.[2]
Petitioner asked the COMELEC for the following reliefs:
1. After trial, judgment be rendered as follows:

1.1 Declaring a failure of elections, or declaring the


annulment of the elections, for the office of the ViceMayor in the City of Paraaque, Metro Manila;
1.2. Annulling the proclamation of the respondent as
the elected Vice-Mayor of the City of Paraaque, Metro
Manila, during the 11 May 1998 elections; and
1.3. Declaring that special elections should be held for
the office of Vice-Mayor in the City of Paraaque, Metro
Manila.
2. Alternatively, in the remote event that the Honorable
Commission does not render judgment as aforesaid, an
order be issued to the Treasurer of the City of Paraaque
to bring and present before this Honorable Commission
on or before the day of the hearing of the Election
Protest, the ballot boxes, copies of the registry lists,
election returns, the minutes of election in all precincts,
and the other documents used in the local elections for
the Office of the Vice-Mayor held on 11 May 1998 in
the said City, for the Honorable Commission to reexamine and revise the same; and
3. After due trial judgment be rendered as follows:
3.1. The election of respondent FLORENCIO M.
BERNABE, JR., for the office of Vice-Mayor in the City of
Paraaque, Metro Manila be annulled;
3.2. The petitioner, TOMAS T. BANAGA, JR., be adjudged
as the duly elected Vice-Mayor in the City of Paraaque,
during the 11 May 1998 local elections; and
3.3. The expenses, costs and damages incurred in
these proceedings be assessed against the respondent.
Other just and equitable reliefs are likewise prayed for.
[3]
On June 29, 1998, the COMELEC dismissed petitioners
suit. It held that the grounds relied upon by petitioner
do not fall under any of the instances enumerated in
Section 6 of the Omnibus Election Code. The election
tribunal concluded that based on the allegations of the
petition, it is clear that an election took place and that
it did not result in a failure to elect.[4]
Considering that a motion for reconsideration of a
COMELEC en banc ruling is prohibited, except in a case
involving an election offense,[5] and aggrieved by the
COMELECs dismissal of his suit, petitioner timely filed
the instant petition for certiorari with this Court.
Before us, petitioner now claims that the COMELEC
committed grave abuse of discretion amounting to lack
or excess of jurisdiction when it dismissed his petition
motu propio without any basis whatsoever and without
giving him the benefit of a hearing. He contends that:
I
THE PETITION DATED 28 MAY 1998 IS ESSENTIALLY AN
ELECTION PROTEST. HENCE, THE COMELEC COULD NOT
LEGALLY DISMISS THE ENTIRE PETITION MERELY ON
THE GROUND THAT THERE WAS ALLEGEDLY NO
FAILURE OF ELECTION IN THE CITY OF PARANAQUE
DURING THE 11 MAY 1998 ELECTIONS.

II
THE AUTHORITY RELIED UPON BY THE COMELEC AS
BASIS FOR THE DISMISSAL OF THE PETITION DATED 28
MAY 1998, THAT OF EDWIN SAR[D]EA, ET. AL. V.
COMELEC, ET. AL., AND MITMUG V. COMELEC, ARE NOT
APPLICABLE TO THE CASE AT BAR CONSIDERING THAT
ASIDE FROM BEING AN ELECTION PROTEST, THE SAID
PETITION SEEKS THE ANNULMENT OF AN ELECTION
PURSUANT TO THE DOCTRINE LAID DOWN BY THE
HONORABLE SUPREME COURT IN LOONG V. COMELEC.
[6]
Clearly, the issue for our resolution is whether or not
public respondent acted with grave abuse of discretion
in dismissing petitioners petition, in the light of
petitioners foregoing contentions.
While petitioner may have intended to institute an
election protest by praying that said action may also
be considered an election protest, in our view,
petitioners action is a petition to declare a failure of
elections or annul election results. It is not an election
protest.
First, his petition before the COMELEC was instituted
pursuant to Section 4 of Republic Act No. 7166 in
relation to Section 6 of the Omnibus Election Code.
Section 4 of RA 7166 refers to postponement, failure of
election and special elections[7] while Section 6 of the
Omnibus Election Code relates to failure of election. It
is simply captioned as Petition to Declare Failure of
Elections and/or For Annulment of Elections.
Second, an election protest is an ordinary action while
a petition to declare a failure of elections is a special
action under the 1993 COMELEC Rules of Procedure as
amended. An election protest is governed by Rule 20
on ordinary actions, while a petition to declare failure
of elections is covered by Rule 26 under special
actions.
In this case, petitioner filed his petition as a special
action and paid the corresponding fee therefor. Thus,
the petition was docketed as SPA-98-383. This
conforms to petitioners categorization of his petition as
one to declare a failure of elections or annul election
results. In contrast, an election protest is assigned a
docket number starting with EPC, meaning election
protest case.
Third, petitioner did not comply with the requirements
for filing an election protest. He failed to pay the
required filing fee and cash deposits for an election
protest. Failure to pay filing fees will not vest the
election tribunal jurisdiction over the case. Such
procedural lapse on the part of a petitioner would
clearly warrant the outright dismissal of his action.
Fourth, an en banc decision of COMELEC in an ordinary
action becomes final and executory after thirty (30)
days from its promulgation, while an en banc decision
in a special action becomes final and executory after
five (5) days from promulgation, unless restrained by
the Supreme Court.[8] For that reason, a petition
cannot be treated as both an election protest and a
petition to declare failure of elections.

Fifth, the allegations in the petition decisively


determine its nature. Petitioner alleged that the local
elections for the office of vice-mayor in Paraaque City
held on May 11, 1998, denigrates the true will of the
people as it was marred with widespread anomalies on
account of vote buying, flying voters and glaring
discrepancies in the election returns. He averred that
those incidents warrant the declaration of a failure of
elections.[9]
Given these circumstances, public respondent cannot
be said to have gravely erred in treating petitioners
action as a petition to declare failure of elections or to
annul election results.
The COMELECs authority to declare a failure of
elections is provided in our election laws. Section 4 of
RA 7166 provides that the COMELEC sitting en banc by
a majority vote of its members may decide, among
others, the declaration of failure of election and the
calling of special election as provided in Section 6 of
the Omnibus Election Code. Said Section 6, in turn,
provides as follows:
Section 6. Failure of Elections. --- If, on account of force
majeure, violence, terrorism, fraud or other analogous
causes the election in any polling place has not been
held on the date fixed, or had been suspended before
the hour fixed by law for the closing of the voting, or
after the voting and during the preparation and the
transmission of the election returns or in the custody or
canvass thereof, such election results in a failure to
elect, and in any of such cases the failure or
suspension of election would affect the result of the
election, the Commission shall, on the basis of verified
petition by any interested party and after due notice
and hearing, call for the holding or continuation of the
election not held, suspended or which resulted in a
failure to elect on a date reasonably close to the date
of the election not held, suspended or which resulted in
a failure to elect but not later than thirty days after the
cessation of the cause of such postponement or
suspension of the election or failure to elect.
There are three instances where a failure of election
may be declared, namely, (a) the election in any
polling place has not been held on the date fixed on
account of force majeure, violence, terrorism, fraud or
other analogous causes; (b) the election in any polling
place has been suspended before the hour fixed by law
for the closing of the voting on account of force
majeure, violence, terrorism, fraud or other analogous
causes; or (c) after the voting and during the
preparation and transmission of the election returns or
in the custody or canvass thereof, such election results
in a failure to elect on account of force majeure,
violence, terrorism, fraud or other analogous causes. In
these instances, there is a resulting failure to elect.
This is obvious in the first two scenarios, where the
election was not held and where the election was
suspended. As to the third scenario, where the
preparation and the transmission of the election
returns give rise to the consequence of failure to elect
must as aforesaid, is interpreted to mean that nobody
emerged as a winner.[10]

Before the COMELEC can act on a verified petition


seeking to declare a failure of election two conditions
must concur, namely (1) no voting took place in the
precinct or precincts on the date fixed by law, or even
if there was voting, the election resulted in a failure to
elect; and (2) the votes not cast would have affected
the result of the election.[11] Note that the cause of
such failure of election could only be any of the
following: force majeure, violence, terrorism, fraud or
other analogous causes.
We have painstakingly examined the petition filed by
petitioner Banaga before the COMELEC. But we found
that petitioner did not allege at all that elections were
either not held or suspended. Neither did he aver that
although there was voting, nobody was elected. On the
contrary, he conceded that an election took place for
the office of vice-mayor of Paraaque City, and that
private respondent was, in fact, proclaimed elected to
that post. While petitioner contends that the election
was tainted with widespread anomalies, it must be
noted that to warrant a declaration of failure of election
the commission of fraud must be such that it prevented
or suspended the holding of an election, or marred
fatally the preparation and transmission, custody and
canvass of the election returns. These essential facts
ought to have been alleged clearly by the petitioner
below, but he did not.
In Mitmug vs. COMELEC,[12] petitioner instituted with
the COMELEC an action to declare failure of election in
forty-nine precincts where less than a quarter of the
electorate were able to cast their votes. He also lodged
an election protest with the Regional Trial Court
disputing the result of the election in all precincts in his
municipality. The COMELEC denied motu propio and
without due notice and hearing the petition to declare
failure of election despite petitioners argument that he
has meritorious grounds in support thereto, that is,
massive disenfranchisement of voters due to terrorism.
On review, we ruled that the COMELEC did not gravely
abuse its discretion in denying the petition. It was not
proven that no actual voting took place. Neither was it
shown that even if there was voting, the results
thereon would be tantamount to failure to elect.
Considering that there is no concurrence of the
conditions seeking to declare failure of election, there
is no longer need to receive evidence on alleged
election irregularities.
In Sardea vs. COMELEC,[13] all election materials and
paraphernalia with the municipal board of canvassers
were destroyed by the sympathizers of the losing
mayoralty candidate. The board then decided to use
the copies of election returns furnished to the
municipal trial court. Petitioner therein filed a petition
to stop the proceedings of the board of canvassers on
the ground that it had no authority to use said election
returns obtained from the municipal trial court. The
petition was denied. Next, he filed a petition assailing
the composition of the board of canvassers. Despite
that petition, the board of canvassers proclaimed the
winning candidates. Later on, petitioner filed a petition
to declare a failure of election alleging that the
attendant facts would justify declaration of such failure.
On review, we ruled that petitioners first two actions
involved pre-proclamation controversies which can no

longer be entertained after the winning candidates


have been proclaimed. Regarding the petition to
declare a failure of election, we held that the
destruction and loss of copies of election returns
intended for the municipal board of canvassers on
account of violence is not one of the causes that would
warrant the declaration of failure of election. The
reason is that voting actually took place as scheduled
and other valid election returns still existed. Moreover,
the destruction or loss did not affect the result of the
election. We also declared that there is failure of
elections only when the will of the electorate has been
muted and cannot be ascertained. If the will of the
people is determinable, the same must as far as
possible be respected.
These aforecited cases are instructive in the resolution
of the present case because they involve similar
actions and issues. No error could be attributed to
public respondent for its reliance on these precedents.
In Loong vs. Comelec,[14] the petition for annulment of
election results or to declare failure of elections in
Parang, Sulu, on the ground of statistical improbability
and massive fraud was granted by the COMELEC.[15]
Even before the technical examination of election
documents was conducted, the COMELEC already
observed badges of fraud just by looking at the
election results in Parang. Nevertheless, the COMELEC
dismissed the petition for annulment of election results
or to declare failure of elections in the municipalities of
Tapul, Panglima Estino, Pata, Siasi and Kalinggalang
Calauag. The COMELEC dismissed the latter action on
ground of untimeliness of the petition, despite a finding
that the same badges of fraud evident from the results
of the election based on the certificates of canvass of
votes in Parang, are also evident in the election results
of the five mentioned municipalities. We ruled that
COMELEC committed grave abuse of discretion in
dismissing the petition as there is no law which
provides for a reglementary period to file annulment of
elections when there is yet no proclamation. The
election resulted in a failure to elect on account of
fraud. Accordingly, we ordered the COMELEC to
reinstate the aforesaid petition. Those circumstances,
however, are not present in this case, so that reliance
on Loong by petitioner Banaga is misplaced.
Petitioner argues that the COMELEC should not have
treated his prayer for annulment of elections as a
prayer for declaration of failure of elections.[16] This
argument is plainly gratuitous as well as immaterial. A
prayer to declare failure of elections and a prayer to
annul the election results for vice mayor in this case
are actually of the same nature. Whether an action is
for declaration of failure of elections or for annulment
of election results, based on allegations of fraud,
terrorism, violence or analogous cause, the Omnibus
Election Code denominates them similarly.[17] No
positive gain will accrue to petitioners cause by making
a distinction without a difference.
Finally, petitioner claims that public respondent gravely
abused its discretion when it dismissed his petition
motu propio. However, the fact that a verified petition
has been filed does not mean that a hearing on the
case should first be held before COMELEC can act on it.
The petition to declare a failure of election and/or to

annul election results must show on its face that the


conditions necessary to declare a failure to elect are
present. In their absence, the petition must be denied
outright.[18] Public respondent had no recourse but to
dismiss petition. Nor may petitioner now complain of
denial of due process, on this score, for his failure to
properly file an election protest. The COMELEC can only
rule on what was filed before it. It committed no grave

abuse of discretion in dismissing his petition to declare


failure of elections and/or for annulment of elections
for being groundless, hence without merit.
WHEREFORE, the instant petition is DISMISSED. The
assailed RESOLUTION of public respondent is
AFFIRMED. Costs against petitioner.