Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 181613 November 25, 2009

ROSALINDA A. PENERA, Petitioner,

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

RESOLUTION

CARPIO, J.:

We grant Rosalinda A. Peneras (Penera) motion for reconsideration of this Courts Decision of 11
September 2009 (Decision).

The assailed Decision dismissed Peneras petition and affirmed the Resolution dated 30 July 2008
of the COMELEC En Banc as well as the Resolution dated 24 July 2007 of the COMELEC Second
Division. The Decision disqualified Penera from running for the office of Mayor in Sta. Monica,
Surigao del Norte and declared that the Vice-Mayor should succeed Penera.

In support of her motion for reconsideration, Penera submits the following arguments:

1. Penera was not yet a candidate at the time of the incident under Section 11 of RA 8436 as
amended by Section 13 of RA 9369.

2. The petition for disqualification failed to submit convincing and substantial evidence
against Penera for violation of Section 80 of the Omnibus Election Code.

3. Penera never admitted the allegations of the petition for disqualification and has
consistently disputed the charge of premature campaigning.

4. The admission that Penera participated in a motorcade is not the same as admitting she
engaged in premature election campaigning.

Section 79(a) of the Omnibus Election Code defines a "candidate" as "any person aspiring for or
seeking an elective public office, who has filed a certificate of candidacy x x x." The second
sentence, third paragraph, Section 15 of RA 8436, as amended by Section 13 of RA 9369, provides
that "[a]ny person who files his certificate of candidacy within [the period for filing] shall only be
considered as a candidate at the start of the campaign period for which he filed his certificate of
candidacy." The immediately succeeding proviso in the same third paragraph states that "unlawful
acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid
campaign period." These two provisions determine the resolution of this case.

The Decision states that "[w]hen the campaign period starts and [the person who filed his certificate
of candidacy] proceeds with his/her candidacy, his/her intent turning into actuality, we can already
consider his/her acts, after the filing of his/her COC and prior to the campaign period, as the
promotion of his/her election as a candidate, hence, constituting premature campaigning, for which
he/she may be disqualified."1

Under the Decision, a candidate may already be liable for premature campaigning after the filing of
the certificate of candidacy but even before the start of the campaign period. From the filing of the
certificate of candidacy, even long before the start of the campaign period, the Decision considers
the partisan political acts of a person so filing a certificate of candidacy "as the promotion of his/her
election as a candidate." Thus, such person can be disqualified for premature campaigning for acts
done before the start of the campaign period. In short, the Decision considers a person who files a
certificate of candidacy already a "candidate" even before the start of the campaign period. lawphil

The assailed Decision is contrary to the clear intent and letter of the law.

The Decision reverses Lanot v. COMELEC,2 which held that a person who files a certificate of
candidacy is not a candidate until the start of the campaign period. In Lanot, this
Court explained:

Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are: (1) a
person engages in an election campaign or partisan political activity; (2) the act is designed to
promote the election or defeat of a particular candidate or candidates; (3) the act is done outside the
campaign period.

The second element requires the existence of a "candidate." Under Section 79(a), a candidate is one
who "has filed a certificate of candidacy" to an elective public office. Unless one has filed his
certificate of candidacy, he is not a "candidate." The third element requires that the campaign period
has not started when the election campaign or partisan political activity is committed.

Assuming that all candidates to a public office file their certificates of candidacy on the last day,
which under Section 75 of the Omnibus Election Code is the day before the start of the campaign
period, then no one can be prosecuted for violation of Section 80 for acts done prior to such last day.
Before such last day, there is no "particular candidate or candidates" to campaign for or against. On
the day immediately after the last day of filing, the campaign period starts and Section 80 ceases to
apply since Section 80 covers only acts done "outside" the campaign period.

Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only apply to
acts done on such last day, which is before the start of the campaign period and after at least one
candidate has filed his certificate of candidacy. This is perhaps the reason why those running for
elective public office usually file their certificates of candidacy on the last day or close to the last day.

There is no dispute that Eusebios acts of election campaigning or partisan political activities were
committed outside of the campaign period. The only question is whether Eusebio, who filed his
certificate of candidacy on 29 December 2003, was a "candidate" when he committed those acts
before the start of the campaign period on 24 March 2004.

Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of certificates of
candidacy to 120 days before election day. Thus, the original deadline was moved from 23 March
2004 to 2 January 2004, or 81 days earlier. The crucial question is: did this change in the deadline
for filing the certificate of candidacy make one who filed his certificate of candidacy before 2 January
2004 immediately liable for violation of Section 80 if he engaged in election campaign or partisan
political activities prior to the start of the campaign period on 24 March 2004?

Section 11 of RA 8436 provides:

SECTION 11. Official Ballot. The Commission shall prescribe the size and form of the official ballot
which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in
an initiative, referendum or plebiscite. Under each position, the names of candidates shall be
arranged alphabetically by surname and uniformly printed using the same type size. A fixed space
where the chairman of the Board of Election Inspectors shall affix his/her signature to authenticate
the official ballot shall be provided.

Both sides of the ballots may be used when necessary.

For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/
manifestation to participate in the election shall not be later than one hundred twenty (120) days
before the elections: Provided, That, any elective official, whether national or local, running for any
office other than the one which he/she is holding in a permanent capacity, except for president and
vice-president, shall be deemed resigned only upon the start of the campaign period corresponding
to the position for which he/she is running: Provided, further, That, unlawful acts or omissions
applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided,
finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of
candidacy for the positions of President, Vice-President, Senators and candidates under the party-
list system as well as petitions for registration and/or manifestation to participate in the party-list
system shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for
other positions shall be on March 27, 1998.

The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng
Pilipinas at the price comparable with that of private printers under proper security measures which
the Commission shall adopt. The Commission may contract the services of private printers upon
certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the
printing requirements. Accredited political parties and deputized citizens arms of the Commission
may assign watchers in the printing, storage and distribution of official ballots.

To prevent the use of fake ballots, the Commission through the Committee shall ensure that the
serial number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by
inexpensive hardware and shall be impossible to reproduce on a photocopying machine, and that
identification marks, magnetic strips, bar codes and other technical and security markings, are
provided on the ballot.

The official ballots shall be printed and distributed to each city/municipality at the rate of one (1)
ballot for every registered voter with a provision of additional four (4) ballots per precinct.

Under Section 11 of RA 8436, the only purpose for the early filing of certificates of candidacy is to
give ample time for the printing of official ballots. This is clear from the following deliberations of the
Bicameral Conference Committee:

SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the same[,]
uniform for local and national officials?

THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the present
periods.

SENATOR GONZALES. But the moment one files a certificate of candidacy, hes already a
candidate, and there are many prohibited acts on the part of candidate.

THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .

SENATOR GONZALES. And you cannot say that the campaign period has not yet began (sic).

THE CHAIRMAN (REP. TANJUATCO). If we dont provide that the filing of the certificate will not
bring about ones being a candidate.

SENATOR GONZALES. If thats a fact, the law cannot change a fact.

THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the certificate of
candidacy will not result in that official vacating his position, we can also provide that insofar he is
concerned, election period or his being a candidate will not yet commence. Because here, the
reason why we are doing an early filing is to afford enough time to prepare this machine readable
ballots.

So, with the manifestations from the Commission on Elections, Mr. Chairman, the House Panel will
withdraw its proposal and will agree to the 120-day period provided in the Senate version.

THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.

xxxx

SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts which
apply immediately upon being a candidate?

THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to afford the
Comelec enough time to print the ballots, this provision does not intend to change the campaign
periods as presently, or rather election periods as presently fixed by existing law.

THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other prohibition.

THE CHAIRMAN (REP. TANJUATCO). Thats right.

THE ACTING CHAIRMAN (SEN. FERNAN). Okay.

THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict anymore
because we are talking about the 120-day period before election as the last day of filing a certificate
of candidacy, election period starts 120 days also. So that is election period already. But he will still
not be considered as a candidate.

Thus, because of the early deadline of 2 January 2004 for purposes of printing of official ballots,
Eusebio filed his certificate of candidacy on 29 December 2003. Congress, however, never intended
the filing of a certificate of candidacy before 2 January 2004 to make the person filing to become
immediately a "candidate" for purposes other than the printing of ballots. This legislative intent
prevents the immediate application of Section 80 of the Omnibus Election Code to those filing to
meet the early deadline. The clear intention of Congress was to preserve the "election periods as x x
x fixed by existing law" prior to RA 8436 and that one who files to meet the early deadline "will still
not be considered as a candidate."3 (Emphasis in the original)

Lanot was decided on the ground that one who files a certificate of candidacy is not a candidate until
the start of the campaign period. This ground was based on the deliberations of the legislators who
explained the intent of the provisions of RA 8436, which laid the legal framework for an automated
election system. There was no express provision in the original RA 8436 stating that one who files a
certificate of candidacy is not a candidate until the start of the campaign period.

When Congress amended RA 8436, Congress decided to expressly incorporate the Lanot doctrine
into law, realizing that Lanot merely relied on the deliberations of Congress in holding that

The clear intention of Congress was to preserve the "election periods as x x x fixed by existing law"
prior to RA 8436 and that one who files to meet the early deadline "will still not be considered as a
candidate."4 (Emphasis supplied)

Congress wanted to insure that no person filing a certificate of candidacy under the early deadline
required by the automated election system would be disqualified or penalized for any partisan
political act done before the start of the campaign period. Thus, in enacting RA 9369, Congress
expressly wrote the Lanot doctrine into the second sentence, third paragraph of the amended
Section 15 of RA 8436, thus:

xxx

For this purpose, the Commission shall set the deadline for the filing of certificate of
candidacy/petition for registration/manifestation to participate in the election. Any person who files
his certificate of candidacy within this period shall only be considered as a candidate at the start of
the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or
omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign
period: Provided, finally, That any person holding a public appointive office or position, including
active members of the armed forces, and officers and employees in government-owned or -
controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate
the same at the start of the day of the filing of his/her certificate of candidacy. (Boldfacing and
underlining supplied)

Congress elevated the Lanot doctrine into a statute by specifically inserting it as the second
sentence of the third paragraph of the amended Section 15 of RA 8436, which cannot be annulled
by this Court except on the sole ground of its unconstitutionality. The Decision cannot reverse Lanot
without repealing this second sentence, because to reverse Lanot would mean repealing this second
sentence.

The assailed Decision, however, in reversing Lanot does not claim that this second sentence or any
portion of Section 15 of RA 8436, as amended by RA 9369, is unconstitutional. In fact, the Decision
considers the entire Section 15 good law. Thus, the Decision is self-contradictory reversing Lanot
but maintaining the constitutionality of the second sentence, which embodies the Lanot doctrine. In
so doing, the Decision is irreconcilably in conflict with the clear intent and letter of the second
sentence, third paragraph, Section 15 of RA 8436, as amended by RA 9369.

In enacting RA 9369, Congress even further clarified the first proviso in the third paragraph of
Section 15 of RA 8436. The original provision in RA 8436 states

x x x Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect
upon the start of the aforesaid campaign period, x x x.

In RA 9369, Congress inserted the word "only" so that the first proviso now reads
x x x Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon
the start of the aforesaid campaign period x x x. (Emphasis supplied)

Thus, Congress not only reiterated but also strengthened its mandatory directive that election
offenses can be committed by a candidate "only" upon the start of the campaign period. This clearly
means that before the start of the campaign period, such election offenses cannot be so committed.

When the applicable provisions of RA 8436, as amended by RA 9369, are read together, these
provisions of law do not consider Penera a candidate for purposes other than the printing of ballots,
until the start of the campaign period. There is absolutely no room for any other interpretation.

We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio:

x x x The definition of a "candidate" in Section 79(a) of the Omnibus Election Code should be read
together with the amended Section 15 of RA 8436. A "candidate refers to any person aspiring for or
seeking an elective public office, who has filed a certificate of candidacy by himself or through an
accredited political party, aggroupment or coalition of parties." However, it is no longer enough to
merely file a certificate of candidacy for a person to be considered a candidate because "any person
who files his certificate of candidacy within [the filing] period shall only be considered a candidate at
the start of the campaign period for which he filed his certificate of candidacy." Any person may thus
file a certificate of candidacy on any day within the prescribed period for filing a certificate of
candidacy yet that person shall be considered a candidate, for purposes of determining ones
possible violations of election laws, only during the campaign period. Indeed, there is no "election
campaign" or "partisan political activity" designed to promote the election or defeat of a particular
candidate or candidates to public office simply because there is no "candidate" to speak of prior to
the start of the campaign period. Therefore, despite the filing of her certificate of candidacy, the law
does not consider Penera a candidate at the time of the questioned motorcade which was conducted
a day before the start of the campaign period. x x x

The campaign period for local officials began on 30 March 2007 and ended on 12 May 2007. Penera
filed her certificate of candidacy on 29 March 2007. Penera was thus a candidate on 29 March 2009
only for purposes of printing the ballots. On 29 March 2007, the law still did not consider Penera a
candidate for purposes other than the printing of ballots. Acts committed by Penera prior to 30 March
2007, the date when she became a "candidate," even if constituting election campaigning or partisan
political activities, are not punishable under Section 80 of the Omnibus Election Code. Such acts are
within the realm of a citizens protected freedom of expression. Acts committed by Penera within the
campaign period are not covered by Section 80 as Section 80 punishes only acts outside the
campaign period.5

The assailed Decision gives a specious reason in explaining away the first proviso in the third
paragraph, the amended Section 15 of RA 8436 that election offenses applicable to candidates take
effect only upon the start of the campaign period. The Decision states that:

x x x [T]he line in Section 15 of Republic Act No. 8436, as amended, which provides that "any
unlawful act or omission applicable to a candidate shall take effect only upon the start of the
campaign period," does not mean that the acts constituting premature campaigning can only be
committed, for which the offender may be disqualified, during the campaign period. Contrary to the
pronouncement in the dissent, nowhere in said proviso was it stated that campaigning before the
start of the campaign period is lawful, such that the offender may freely carry out the same with
impunity.
As previously established, a person, after filing his/her COC but prior to his/her becoming a
candidate (thus, prior to the start of the campaign period), can already commit the acts described
under Section 79(b) of the Omnibus Election Code as election campaign or partisan political activity,
However, only after said person officially becomes a candidate, at the beginning of the campaign
period, can said acts be given effect as premature campaigning under Section 80 of the Omnibus
Election Code. Only after said person officially becomes a candidate, at the start of the campaign
period, can his/her disqualification be sought for acts constituting premature campaigning.
Obviously, it is only at the start of the campaign period, when the person officially becomes a
candidate, that the undue and iniquitous advantages of his/her prior acts, constituting premature
campaigning, shall accrue to his/her benefit. Compared to the other candidates who are only about
to begin their election campaign, a candidate who had previously engaged in premature
campaigning already enjoys an unfair headstart in promoting his/her candidacy.6 (Emphasis
supplied)

It is a basic principle of law that any act is lawful unless expressly declared unlawful by law. This is
specially true to expression or speech, which Congress cannot outlaw except on very narrow
grounds involving clear, present and imminent danger to the State. The mere fact that the law does
not declare an act unlawful ipso facto means that the act is lawful. Thus, there is no need for
Congress to declare in Section 15 of RA 8436, as amended by RA 9369, that political partisan
activities before the start of the campaign period are lawful. It is sufficient for Congress to state that
"any unlawful act or omission applicable to a candidate shall take effect only upon the start of the
campaign period." The only inescapable and logical result is that the same acts, if done before the
start of the campaign period, are lawful.

In laymans language, this means that a candidate is liable for an election offense only for acts done
during the campaign period, not before. The law is clear as daylight any election offense that may
be committed by a candidate under any election law cannot be committed before the start of the
campaign period. In ruling that Penera is liable for premature campaigning for partisan political acts
before the start of the campaigning, the assailed Decision ignores the clear and express provision of
the law.

The Decision rationalizes that a candidate who commits premature campaigning can be disqualified
or prosecuted only after the start of the campaign period. This is not what the law says. What the law
says is "any unlawful act or omission applicable to a candidate shall take effect only upon the start of
the campaign period." The plain meaning of this provision is that the effective date when partisan
political acts become unlawful as to a candidate is when the campaign period starts. Before the start
of the campaign period, the same partisan political acts are lawful.

The law does not state, as the assailed Decision asserts, that partisan political acts done by a
candidate before the campaign period are unlawful, but may be prosecuted only upon the start of the
campaign period. Neither does the law state that partisan political acts done by a candidate before
the campaign period are temporarily lawful, but becomes unlawful upon the start of the campaign
period. This is clearly not the language of the law. Besides, such a law as envisioned in the
Decision, which defines a criminal act and curtails freedom of expression and speech, would be void
for vagueness.

Congress has laid down the law a candidate is liable for election offenses only upon the start of
the campaign period. This Court has no power to ignore the clear and express mandate of the law
that "any person who files his certificate of candidacy within [the filing] period shall only be
considered a candidate at the start of the campaign period for which he filed his certificate of
candidacy." Neither can this Court turn a blind eye to the express and clear language of the law that
"any unlawful act or omission applicable to a candidate shall take effect only upon the start of the
campaign period."

The forum for examining the wisdom of the law, and enacting remedial measures, is not this Court
but the Legislature. This Court has no recourse but to apply a law that is as clear, concise and
express as the second sentence, and its immediately succeeding proviso, as written in the third
paragraph of Section 15 of RA 8436, as amended by RA 9369.

WHEREFORE, we GRANT petitioner Rosalinda A. Peneras Motion for Reconsideration. We SET

ASIDE the Decision of this Court in G.R. No. 181613 promulgated on 11 September 2009, as well as
the Resolutions dated 24 July 2007 and 30 January 2008 of the COMELEC Second Division and the
COMELEC En Banc, respectively, in SPA No. 07-224. Rosalinda A. Penera shall continue as Mayor
of Sta. Monica, Surigao del Norte.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 161434 March 3, 2004

MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR., petitioners,

vs.
The COMMISSION ON ELECTIONS, RONALD ALLAN KELLY POE (a.k.a. FERNANDO POE,
JR.) and VICTORINO X. FORNIER, respondents.

x-----------------------------x

G.R. No. 161634 March 3, 2004

ZOILO ANTONIO VELEZ, petitioner,

vs.
RONALD ALLAN KELLEY POE, a.k.a. FERNANDO POE, JR., respondent.

x-----------------------------x

G. R. No. 161824 March 3, 2004

VICTORINO X. FORNIER, petitioner,

vs.
HON. COMMISSION ON ELECTIONS and RONALD ALLAN KELLEY POE, ALSO KNOWN AS
FERNANDO POE JR., respondents.
 DECISION

VITUG, J.:

Citizenship is a treasured right conferred on those whom the state believes are deserving of
the privilege. It is a "precious heritage, as well as an inestimable acquisition,"1 that cannot be
taken lightly by anyone - either by those who enjoy it or by those who dispute it.

Before the Court are three consolidated cases, all of which raise a single question of profound
importance to the nation. The issue of citizenship is brought up to challenge the qualifications of a
presidential candidate to hold the highest office of the land. Our people are waiting for the judgment
of the Court with bated breath. Is Fernando Poe, Jr., the hero of silver screen, and now one of the
main contenders for the presidency, a natural-born Filipino or is he not?

The moment of introspection takes us face to face with Spanish and American colonial roots and
reminds us of the rich heritage of civil law and common law traditions, the fusion resulting in a hybrid
of laws and jurisprudence that could be no less than distinctly Filipino.

Antecedent Case Settings

On 31 December 2003, respondent Ronald Allan Kelly Poe, also known as Fernando Poe, Jr.
(hereinafter "FPJ"), filed his certificate of candidacy for the position of President of the Republic of
the Philippines under the Koalisyon ng Nagkakaisang Pilipino (KNP) Party, in the forthcoming
national elections. In his certificate of candidacy, FPJ, representing himself to be a natural-born
citizen of the Philippines, stated his name to be "Fernando Jr.," or "Ronald Allan" Poe, his date of
birth to be 20 August 1939 and his place of birth to be Manila.

Victorino X. Fornier, petitioner in G.R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus
Hon. Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr.,
Respondents," initiated, on 09 January 2004, a petition docketed SPA No. 04-003 before the
Commission on Elections ("COMELEC") to disqualify FPJ and to deny due course or to cancel his
certificate of candidacy upon the thesis that FPJ made a material misrepresentation in his certificate
of candidacy by claiming to be a natural-born Filipino citizen when in truth, according to Fornier, his
parents were foreigners; his mother, Bessie Kelley Poe, was an American, and his father, Allan Poe,
was a Spanish national, being the son of Lorenzo Pou, a Spanish subject. Granting, petitioner
asseverated, that Allan F. Poe was a Filipino citizen, he could not have transmitted his Filipino
citizenship to FPJ, the latter being an illegitimate child of an alien mother. Petitioner based the
allegation of the illegitimate birth of respondent on two assertions - first, Allan F. Poe contracted a
prior marriage to a certain Paulita Gomez before his marriage to Bessie Kelley and, second, even if
no such prior marriage had existed, Allan F. Poe, married Bessie Kelly only a year after the birth of
respondent.

In the hearing before the Third Division of the COMELEC on 19 January 2004, petitioner, in support
of his claim, presented several documentary exhibits - 1) a copy of the certificate of birth of FPJ, 2) a
certified photocopy of an affidavit executed in Spanish by Paulita Poe y Gomez attesting to her
having filed a case for bigamy and concubinage against the father of respondent, Allan F. Poe, after
discovering his bigamous relationship with Bessie Kelley, 3) an English translation of the affidavit
aforesaid, 4) a certified photocopy of the certificate of birth of Allan F. Poe, 5) a certification issued
by the Director of the Records Management and Archives Office, attesting to the fact that there was
no record in the National Archives that a Lorenzo Poe or Lorenzo Pou resided or entered the
Philippines before 1907, and 6) a certification from the Officer-In-Charge of the Archives Division of
the National Archives to the effect that no available information could be found in the files of the
National Archives regarding the birth of Allan F. Poe.

On his part, respondent, presented twenty-two documentary pieces of evidence, the more significant
ones being - a) a certification issued by Estrella M. Domingo of the Archives Division of the National
Archives that there appeared to be no available information regarding the birth of Allan F. Poe in the
registry of births for San Carlos, Pangasinan, b) a certification issued by the Officer-In-Charge of the
Archives Division of the National Archives that no available information about the marriage of Allan
F. Poe and Paulita Gomez could be found, c) a certificate of birth of Ronald Allan Poe, d) Original
Certificate of Title No. P-2247 of the Registry of Deeds for the Province of Pangasinan, in the name
of Lorenzo Pou, e) copies of Tax Declaration No. 20844, No. 20643, No. 23477 and No. 23478 in
the name of Lorenzo Pou, f) a copy of the certificate of death of Lorenzo Pou, g) a copy of the
purported marriage contract between Fernando Pou and Bessie Kelley, and h) a certification issued
by the City Civil Registrar of San Carlos City, Pangasinan, stating that the records of birth in the said
office during the period of from 1900 until May 1946 were totally destroyed during World War II.

On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack of merit. Three days later,
or on 26 January 2004, Fornier filed his motion for reconsideration. The motion was denied on 06
February 2004 by the COMELEC en banc. On 10 February 2004, petitioner assailed the decision of
the COMELEC before this Court conformably with Rule 64, in relation to Rule 65, of the Revised
Rules of Civil Procedure. The petition, docketed G. R. No. 161824, likewise prayed for a temporary
restraining order, a writ of preliminary injunction or any other resolution that would stay the finality
and/or execution of the COMELEC resolutions.

The other petitions, later consolidated with G. R. No. 161824, would include G. R. No. 161434,
entitled "Maria Jeanette C. Tecson, and Felix B. Desiderio, Jr., vs. The Commission on Elections,
Ronald Allan Kelley Poe (a.k.a. Fernando Poe, Jr.), and Victorino X. Fornier," and the other,
docketed G. R. No. 161634, entitled "Zoilo Antonio G. Velez, vs. Ronald Allan Kelley Poe, a.k.a.
Fernando Poe, Jr.," both challenging the jurisdiction of the COMELEC and asserting that, under
Article VII, Section 4, paragraph 7, of the 1987 Constitution, only the Supreme Court had original
and exclusive jurisdiction to resolve the basic issue on the case.

Jurisdiction of the Court

In G. R. No. 161824

In seeking the disqualification of the candidacy of FPJ and to have the COMELEC deny due course
to or cancel FPJs certificate of candidacy for alleged misrepresentation of a material fact (i.e., that
FPJ was a natural-born citizen) before the COMELEC, petitioner Fornier invoked Section 78 of the
Omnibus Election Code

"Section 78. Petition to deny due course to or cancel a certificate of candidacy. --- A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by
any person exclusively on the ground that any material representation contained therein as
required under Section 74 hereof is false"

in consonance with the general powers of COMELEC expressed in Section 52 of the Omnibus
Election Code -

"Section 52. Powers and functions of the Commission on Elections. In addition to the powers
and functions conferred upon it by the Constitution, the Commission shall have exclusive
 charge of the enforcement and administration of all laws relative to the conduct of elections
for the purpose of ensuring free, orderly and honest elections" -

and in relation to Article 69 of the Omnibus Election Code which would authorize "any
interested party" to file a verified petition to deny or cancel the certificate of candidacy of any
nuisance candidate.

Decisions of the COMELEC on disqualification cases may be reviewed by the Supreme Court per
Rule 642 in an action for certiorari under Rule 653 of the Revised Rules of Civil Procedure. Section 7,
Article IX, of the 1987 Constitution also reads

"Each Commission shall decide by a majority vote of all its Members any case or matter
brought before it within sixty days from the date of its submission for decision or resolution. A
case or matter is deemed submitted for decision or resolution upon the filing of the last
pleading, brief, or memorandum, required by the rules of the Commission or by the
Commission itself. Unless otherwise provided by this Constitution or by law, any decision,
order, or ruling of each Commission may be brought to the Supreme Court on certiorari by
the aggrieved party within thirty days from receipt of a copy thereof."

Additionally, Section 1, Article VIII, of the same Constitution provides that judicial power is vested in
one Supreme Court and in such lower courts as may be established by law which power "includes
the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
the Government."

It is sufficiently clear that the petition brought up in G. R. No. 161824 was aptly elevated to, and
could well be taken cognizance of by, this Court. A contrary view could be a gross denial to our
people of their fundamental right to be fully informed, and to make a proper choice, on who could or
should be elected to occupy the highest government post in the land.

In G. R. No. 161434 and G. R. No. 161634

Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in G. R. No. 161634, invoke the
provisions of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the jurisdiction
of the COMELEC when it took cognizance of SPA No. 04-003 and in urging the Supreme Court to
instead take on the petitions they directly instituted before it. The Constitutional provision cited
reads:

"The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the
election, returns, and qualifications of the President or Vice-President, and may promulgate
its rules for the purpose."

The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973
Constitution to designate any tribunal to be the sole judge of presidential and vice-presidential
contests, has constrained this Court to declare, in Lopez vs. Roxas,4 as "not (being) justiciable"
controversies or disputes involving contests on the elections, returns and qualifications of the
President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to enact
Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral Tribunal to Try,
Hear and Decide Protests Contesting the Election of the President-Elect and the Vice-President-
Elect of the Philippines and Providing for the Manner of Hearing the Same." Republic Act 1793
designated the Chief Justice and the Associate Justices of the Supreme Court to be the members of
the tribunal. Although the subsequent adoption of the parliamentary form of government under the
1973 Constitution might have implicitly affected Republic Act No. 1793, the statutory set-up,
nonetheless, would now be deemed revived under the present Section 4, paragraph 7, of the 1987
Constitution.

Ordinary usage would characterize a "contest" in reference to a post-election scenario. Election

contests consist of either an election protest or a quo warranto which, although two distinct
remedies, would have one objective in view, i.e., to dislodge the winning candidate from office. A
perusal of the phraseology in Rule 12, Rule 13, and Rule 14 of the "Rules of the Presidential
Electoral Tribunal," promulgated by the Supreme Court en banc on 18 April 1992, would support this
premise -

"Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of all contests relating to the
election, returns, and qualifications of the President or Vice-President of the Philippines.

"Rule 13. How Initiated. - An election contest is initiated by the filing of an election protest or
a petition for quo warranto against the President or Vice-President. An election protest shall
not include a petition for quo warranto. A petition for quo warranto shall not include an
election protest.

"Rule 14. Election Protest. - Only the registered candidate for President or for Vice-President
of the Philippines who received the second or third highest number of votes may contest the
election of the President or the Vice-President, as the case may be, by filing a verified
petition with the Clerk of the Presidential Electoral Tribunal within thirty (30) days after the
proclamation of the winner."

The rules categorically speak of the jurisdiction of the tribunal over contests relating to the election,
returns and qualifications of the "President" or "Vice-President", of the Philippines, and not of
"candidates" for President or Vice-President. A quo warranto proceeding is generally defined as
being an action against a person who usurps, intrudes into, or unlawfully holds or exercises a public
office.5 In such context, the election contest can only contemplate a post-election scenario. In Rule
14, only a registered candidate who would have received either the second or third highest number
of votes could file an election protest. This rule again presupposes a post-election scenario.

It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4, paragraph 7, of
the 1987 Constitution, would not include cases directly brought before it, questioning the
qualifications of a candidate for the presidency or vice-presidency before the elections are held.

Accordingly, G. R. No. 161434, entitled "Maria Jeanette C. Tecson, et al., vs. Commission on
Elections et al.," and G. R. No. 161634, entitled "Zoilo Antonio Velez vs. Ronald Allan Kelley Poe
a.k.a. Fernando Poe, Jr." would have to be dismissed for want of jurisdiction.

The Citizenship Issue

Now, to the basic issue; it should be helpful to first give a brief historical background on the concept
of citizenship.

Perhaps, the earliest understanding of citizenship was that given by Aristotle, who, sometime in 384
to 322 B.C., described the "citizen" to refer to a man who shared in the administration of justice and
in the holding of an office.6 Aristotle saw its significance if only to determine the constituency of the
"State," which he described as being composed of such persons who would be adequate in number
to achieve a self-sufficient existence.7 The concept grew to include one who would both govern and
be governed, for which qualifications like autonomy, judgment and loyalty could be expected.
Citizenship was seen to deal with rights and entitlements, on the one hand, and with concomitant
obligations, on the other.8 In its ideal setting, a citizen was active in public life and fundamentally
willing to submit his private interests to the general interest of society.

The concept of citizenship had undergone changes over the centuries. In the 18th century, the
concept was limited, by and large, to civil citizenship, which established the rights necessary for
individual freedom, such as rights to property, personal liberty and justice.9 Its meaning expanded
during the 19th century to include political citizenship, which encompassed the right to participate in
the exercise of political power.10 The 20th century saw the next stage of the development of social
citizenship, which laid emphasis on the right of the citizen to economic well-being and social
security.11 The idea of citizenship has gained expression in the modern welfare state as it so
developed in Western Europe. An ongoing and final stage of development, in keeping with the
rapidly shrinking global village, might well be the internationalization of citizenship.12

The Local Setting - from Spanish Times to the Present

There was no such term as "Philippine citizens" during the Spanish regime but "subjects of Spain" or
"Spanish subjects."13 In church records, the natives were called 'indios', denoting a low regard for the
inhabitants of the archipelago. Spanish laws on citizenship became highly codified during the 19th
century but their sheer number made it difficult to point to one comprehensive law. Not all of these
citizenship laws of Spain however, were made to apply to the Philippine Islands except for those
explicitly extended by Royal Decrees.14

Spanish laws on citizenship were traced back to the Novisima Recopilacion, promulgated in Spain
on 16 July 1805 but as to whether the law was extended to the Philippines remained to be the
subject of differing views among experts;15 however, three royal decrees were undisputably made
applicable to Spaniards in the Philippines - the Order de la Regencia of 14 August 1841,16 the Royal
Decree of 23 August 1868 specifically defining the political status of children born in the Philippine
Islands,17 and finally, the Ley Extranjera de Ultramar of 04 July 1870, which was expressly made
applicable to the Philippines by the Royal Decree of 13 July 1870.18

The Spanish Constitution of 1876 was never extended to the Philippine Islands because of the
express mandate of its Article 89, according to which the provisions of the Ultramar among which
this country was included, would be governed by special laws.19

It was only the Civil Code of Spain, made effective in this jurisdiction on 18 December 1889, which
came out with the first categorical enumeration of who were Spanish citizens. -

"(a) Persons born in Spanish territory,

"(b) Children of a Spanish father or mother, even if they were born outside of Spain,

"(c) Foreigners who have obtained naturalization papers,

"(d) Those who, without such papers, may have become domiciled inhabitants of any town of
the Monarchy."20

The year 1898 was another turning point in Philippine history. Already in the state of decline as a
superpower, Spain was forced to so cede her sole colony in the East to an upcoming world power,
the United States. An accepted principle of international law dictated that a change in sovereignty,
while resulting in an abrogation of all political laws then in force, would have no effect on civil laws,
which would remain virtually intact.

The Treaty of Paris was entered into on 10 December 1898 between Spain and the United
States.21 Under Article IX of the treaty, the civil rights and political status of the native inhabitants of
the territories ceded to the United States would be determined by its Congress -

"Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the
present treaty relinquishes or cedes her sovereignty may remain in such territory or may
remove therefrom, retaining in either event all their rights of property, including the right to
sell or dispose of such property or of its proceeds; and they shall also have the right to carry
on their industry, commerce, and professions, being subject in respect thereof to such laws
as are applicable to foreigners. In case they remain in the territory they may preserve their
allegiance to the Crown of Spain by making, before a court of record, within a year from the
date of the exchange of ratifications of this treaty, a declaration of their decision to preserve
such allegiance; in default of which declaration they shall be held to have renounced it and to
have adopted the nationality of the territory in which they reside.

Thus

"The civil rights and political status of the native inhabitants of the territories hereby ceded to
the United States shall be determined by the Congress."22

Upon the ratification of the treaty, and pending legislation by the United States Congress on the
subject, the native inhabitants of the Philippines ceased to be Spanish subjects. Although they did
not become American citizens, they, however, also ceased to be "aliens" under American laws and
were thus issued passports describing them to be citizens of the Philippines entitled to the protection
of the United States.

The term "citizens of the Philippine Islands" appeared for the first time in the Philippine Bill of 1902,
also commonly referred to as the Philippine Organic Act of 1902, the first comprehensive legislation
of the Congress of the United States on the Philippines -

".... that all inhabitants of the Philippine Islands continuing to reside therein, who were
Spanish subjects on the 11th day of April, 1891, and then resided in said Islands, and their
children born subsequent thereto, shall be deemed and held to be citizens of the Philippine
Islands and as such entitled to the protection of the United States, except such as shall have
elected to preserve their allegiance to the Crown of Spain in accordance with the provisions
of the treaty of peace between the United States and Spain, signed at Paris, December tenth
eighteen hundred and ninety eight."23

Under the organic act, a "citizen of the Philippines" was one who was an inhabitant of the
Philippines, and a Spanish subject on the 11th day of April 1899. The term "inhabitant" was taken to
include 1) a native-born inhabitant, 2) an inhabitant who was a native of Peninsular Spain, and 3) an
inhabitant who obtained Spanish papers on or before 11 April 1899.24

Controversy arose on to the status of children born in the Philippines from 11 April 1899 to 01 July
1902, during which period no citizenship law was extant in the Philippines. Weight was given to the
view, articulated in jurisprudential writing at the time, that the common law principle of jus soli,
otherwise also known as the principle of territoriality, operative in the United States and England,
governed those born in the Philippine Archipelago within that period.25 More about this later.
In 23 March 1912, the Congress of the United States made the following amendment to the
Philippine Bill of 1902 -

"Provided, That the Philippine Legislature is hereby authorized to provide by law for the
acquisition of Philippine citizenship by those natives of the Philippine Islands who do not
come within the foregoing provisions, the natives of other insular possession of the United
States, and such other persons residing in the Philippine Islands who would become citizens
of the United States, under the laws of the United States, if residing therein."26

With the adoption of the Philippine Bill of 1902, the concept of "Philippine citizens" had for the first
time crystallized. The word "Filipino" was used by William H. Taft, the first Civil Governor General in
the Philippines when he initially made mention of it in his slogan, "The Philippines for the Filipinos."
In 1916, the Philippine Autonomy Act, also known as the Jones Law restated virtually the provisions
of the Philippine Bill of 1902, as so amended by the Act of Congress in 1912 -

"That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day
of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their
children born subsequently thereto, shall be deemed and held to be citizens of the Philippine
Islands, except such as shall have elected to preserve their allegiance to the Crown of Spain
in accordance with the provisions of the treaty of peace between the United States and
Spain, signed at Paris December tenth, eighteen hundred and ninety-eight and except such
others as have since become citizens of some other country; Provided, That the Philippine
Legislature, herein provided for, is hereby authorized to provide for the acquisition of
Philippine citizenship by those natives of the Philippine Islands who do not come within the
foregoing provisions, the natives of the insular possessions of the United States, and such
other persons residing in the Philippine Islands who are citizens of the United States, or who
could become citizens of the United States under the laws of the United States, if residing
therein."

Under the Jones Law, a native-born inhabitant of the Philippines was deemed to be a citizen of the
Philippines as of 11 April 1899 if he was 1) a subject of Spain on 11 April 1899, 2) residing in the
Philippines on said date, and, 3) since that date, not a citizen of some other country.

While there was, at one brief time, divergent views on whether or not jus soli was a mode of
acquiring citizenship, the 1935 Constitution brought to an end to any such link with common law, by
adopting, once and for all, jus sanguinis or blood relationship as being the basis of Filipino
citizenship -

"Section 1, Article III, 1935 Constitution. The following are citizens of the Philippines -

"(1) Those who are citizens of the Philippine Islands at the time of the adoption of this
Constitution

"(2) Those born in the Philippines Islands of foreign parents who, before the adoption of this
Constitution, had been elected to public office in the Philippine Islands.

"(3) Those whose fathers are citizens of the Philippines.

"(4) Those whose mothers are citizens of the Philippines and upon reaching the age of
majority, elect Philippine citizenship.
"(5) Those who are naturalized in accordance with law."

Subsection (4), Article III, of the 1935 Constitution, taken together with existing civil law provisions at
the time, which provided that women would automatically lose their Filipino citizenship and acquire
that of their foreign husbands, resulted in discriminatory situations that effectively incapacitated the
women from transmitting their Filipino citizenship to their legitimate children and required illegitimate
children of Filipino mothers to still elect Filipino citizenship upon reaching the age of majority.
Seeking to correct this anomaly, as well as fully cognizant of the newly found status of Filipino
women as equals to men, the framers of the 1973 Constitution crafted the provisions of the new
Constitution on citizenship to reflect such concerns -

"Section 1, Article III, 1973 Constitution - The following are citizens of the Philippines:

"(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution.

"(2) Those whose fathers or mothers are citizens of the Philippines.

"(3) Those who elect Philippine citizenship pursuant to the provisions of the Constitution of
nineteen hundred and thirty-five.

"(4) Those who are naturalized in accordance with law."

For good measure, Section 2 of the same article also further provided that

"A female citizen of the Philippines who marries an alien retains her Philippine citizenship,
unless by her act or omission she is deemed, under the law to have renounced her
citizenship."

The 1987 Constitution generally adopted the provisions of the 1973 Constitution, except for
subsection (3) thereof that aimed to correct the irregular situation generated by the questionable
proviso in the 1935 Constitution.

Section I, Article IV, 1987 Constitution now provides:

"The following are citizens of the Philippines:

"(1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution.

"(2) Those whose fathers or mothers are citizens of the Philippines.

"(3) Those born before January 17, 1973 of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority; and

"(4) Those who are naturalized in accordance with law."

The Case Of FPJ

Section 2, Article VII, of the 1987 Constitution expresses:

 "No person may be elected President unless he is a natural-born citizen of the Philippines, a
registered voter, able to read and write, at least forty years of age on the day of the election,
and a resident of the Philippines for at least ten years immediately preceding such election."

The term "natural-born citizens," is defined to include "those who are citizens of the Philippines from
birth without having to perform any act to acquire or perfect their Philippine citizenship."27

The date, month and year of birth of FPJ appeared to be 20 August 1939 during the regime of the
1935 Constitution. Through its history, four modes of acquiring citizenship - naturalization, jus soli,
res judicata and jus sanguinis28 had been in vogue. Only two, i.e., jus soli and jus sanguinis, could
qualify a person to being a "natural-born" citizen of the Philippines. Jus soli, per Roa vs. Collector of
Customs29 (1912), did not last long. With the adoption of the 1935 Constitution and the reversal of
Roa in Tan Chong vs. Secretary of Labor30 (1947), jus sanguinis or blood relationship would now
become the primary basis of citizenship by birth.

Documentary evidence adduced by petitioner would tend to indicate that the earliest established
direct ascendant of FPJ was his paternal grandfather Lorenzo Pou, married to Marta Reyes, the
father of Allan F. Poe. While the record of birth of Lorenzo Pou had not been presented in evidence,
his death certificate, however, identified him to be a Filipino, a resident of San Carlos, Pangasinan,
and 84 years old at the time of his death on 11 September 1954. The certificate of birth of the father
of FPJ, Allan F. Poe, showed that he was born on 17 May 1915 to an Espaol father, Lorenzo Pou,
and a mestiza Espaol mother, Marta Reyes. Introduced by petitioner was an "uncertified" copy of a
supposed certificate of the alleged marriage of Allan F. Poe and Paulita Gomez on 05 July 1936.
The marriage certificate of Allan F. Poe and Bessie Kelley reflected the date of their marriage to be
on 16 September 1940. In the same certificate, Allan F. Poe was stated to be twenty-five years old,
unmarried, and a Filipino citizen, and Bessie Kelley to be twenty-two years old, unmarried, and an
American citizen. The birth certificate of FPJ, would disclose that he was born on 20 August 1939 to
Allan F. Poe, a Filipino, twenty-four years old, married to Bessie Kelly, an American citizen, twenty-
one years old and married.

Considering the reservations made by the parties on the veracity of some of the entries on the birth
certificate of respondent and the marriage certificate of his parents, the only conclusions that could
be drawn with some degree of certainty from the documents would be that -

1. The parents of FPJ were Allan F. Poe and Bessie Kelley;

2. FPJ was born to them on 20 August 1939;

3. Allan F. Poe and Bessie Kelley were married to each other on 16 September, 1940;

4. The father of Allan F. Poe was Lorenzo Poe; and

5. At the time of his death on 11 September 1954, Lorenzo Poe was 84 years old.

Would the above facts be sufficient or insufficient to establish the fact that FPJ is a natural-born
Filipino citizen? The marriage certificate of Allan F. Poe and Bessie Kelley, the birth certificate of
FPJ, and the death certificate of Lorenzo Pou are documents of public record in the custody of a
public officer. The documents have been submitted in evidence by both contending parties during
the proceedings before the COMELEC.
The birth certificate of FPJ was marked Exhibit "A" for petitioner and Exhibit "3" for respondent. The
marriage certificate of Allan F. Poe to Bessie Kelley was submitted as Exhibit "21" for respondent.
The death certificate of Lorenzo Pou was submitted by respondent as his Exhibit "5." While the last
two documents were submitted in evidence for respondent, the admissibility thereof, particularly in
reference to the facts which they purported to show, i.e., the marriage certificate in relation to the
date of marriage of Allan F. Poe to Bessie Kelley and the death certificate relative to the death of
Lorenzo Pou on 11 September 1954 in San Carlos, Pangasinan, were all admitted by petitioner, who
had utilized those material statements in his argument. All three documents were certified true
copies of the originals.

Section 3, Rule 130, Rules of Court states that -

"Original document must be produced; exceptions. - When the subject of inquiry is the
contents of a document, no evidence shall be admissible other than the original document
itself, except in the following cases:

"x x x xxx xxx

"(d) When the original is a public record in the custody of a public office or is recorded in a
public office."

Being public documents, the death certificate of Lorenzo Pou, the marriage certificate of Allan F. Poe
and Bessie Kelly, and the birth certificate of FPJ, constitute prima facie proof of their contents.
Section 44, Rule 130, of the Rules of Court provides:

"Entries in official records. Entries in official records made in the performance of his duty by a
public officer of the Philippines, or by a person in the performance of a duty specially
enjoined by law, are prima facie evidence of the facts therein stated."

The trustworthiness of public documents and the value given to the entries made therein could be
grounded on 1) the sense of official duty in the preparation of the statement made, 2) the penalty
which is usually affixed to a breach of that duty, 3) the routine and disinterested origin of most such
statements, and 4) the publicity of record which makes more likely the prior exposure of such errors
as might have occurred.31

The death certificate of Lorenzo Pou would indicate that he died on 11 September 1954, at the age
of 84 years, in San Carlos, Pangasinan. It could thus be assumed that Lorenzo Pou was born
sometime in the year 1870 when the Philippines was still a colony of Spain. Petitioner would argue
that Lorenzo Pou was not in the Philippines during the crucial period of from 1898 to 1902
considering that there was no existing record about such fact in the Records Management and
Archives Office. Petitioner, however, likewise failed to show that Lorenzo Pou was at any other place
during the same period. In his death certificate, the residence of Lorenzo Pou was stated to be San
Carlos, Pangasinan. In the absence of any evidence to the contrary, it should be sound to conclude,
or at least to presume, that the place of residence of a person at the time of his death was also his
residence before death. It would be extremely doubtful if the Records Management and Archives
Office would have had complete records of all residents of the Philippines from 1898 to 1902.

Proof of Paternity and Filiation

Under Civil Law.

Petitioner submits, in any case, that in establishing filiation (relationship or civil status of the child to
the father [or mother]) or paternity (relationship or civil status of the father to the child) of an
illegitimate child, FPJ evidently being an illegitimate son according to petitioner, the mandatory rules
under civil law must be used.

Under the Civil Code of Spain, which was in force in the Philippines from 08 December 1889 up until
the day prior to 30 August 1950 when the Civil Code of the Philippines took effect, acknowledgment
was required to establish filiation or paternity. Acknowledgment was either judicial (compulsory) or
voluntary. Judicial or compulsory acknowledgment was possible only if done during the lifetime of
the putative parent; voluntary acknowledgment could only be had in a record of birth, a will, or a
public document.32 Complementary to the new code was Act No. 3753 or the Civil Registry Law
expressing in Section 5 thereof, that -

"In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the
parents of the infant or only by the mother if the father refuses. In the latter case, it shall not
be permissible to state or reveal in the document the name of the father who refuses to
acknowledge the child, or to give therein any information by which such father could be
identified."

In order that the birth certificate could then be utilized to prove voluntary acknowledgment of filiation
or paternity, the certificate was required to be signed or sworn to by the father. The failure of such
requirement rendered the same useless as being an authoritative document of recognition.33 In
Mendoza vs. Mella,34 the Court ruled -

"Since Rodolfo was born in 1935, after the registry law was enacted, the question here really
is whether or not his birth certificate (Exhibit 1), which is merely a certified copy of the
registry record, may be relied upon as sufficient proof of his having been voluntarily
recognized. No such reliance, in our judgment, may be placed upon it. While it contains the
names of both parents, there is no showing that they signed the original, let alone swore to
its contents as required in Section 5 of Act No. 3753. For all that might have happened, it
was not even they or either of them who furnished the data to be entered in the civil register.
Petitioners say that in any event the birth certificate is in the nature of a public document
wherein voluntary recognition of a natural child may also be made, according to the same
Article 131. True enough, but in such a case, there must be a clear statement in the
document that the parent recognizes the child as his or her own."

In the birth certificate of respondent FPJ, presented by both parties, nowhere in the document was
the signature of Allan F. Poe found. There being no will apparently executed, or at least shown to
have been executed, by decedent Allan F. Poe, the only other proof of voluntary recognition
remained to be "some other public document." In Pareja vs. Pareja,35 this Court defined what could
constitute such a document as proof of voluntary acknowledgment:

"Under the Spanish Civil Code there are two classes of public documents, those executed by
private individuals which must be authenticated by notaries, and those issued by competent
public officials by reason of their office. The public document pointed out in Article 131 as
one of the means by which recognition may be made belongs to the first class."

Let us leave it at that for the moment.

The 1950 Civil Code categorized the acknowledgment or recognition of illegitimate children into
voluntary, legal or compulsory. Voluntary recognition was required to be expressedly made in a
record of birth, a will, a statement before a court of record or in any authentic writing. Legal
acknowledgment took place in favor of full blood brothers and sisters of an illegitimate child who was
recognized or judicially declared as natural. Compulsory acknowledgment could be demanded
generally in cases when the child had in his favor any evidence to prove filiation. Unlike an action to
claim legitimacy which would last during the lifetime of the child, and might pass exceptionally to the
heirs of the child, an action to claim acknowledgment, however, could only be brought during the
lifetime of the presumed parent.

Amicus Curiae Ruben F. Balane defined, during the oral argument, "authentic writing," so as to be
an authentic writing for purposes of voluntary recognition, simply as being a genuine or indubitable
writing of the father. The term would include a public instrument (one duly acknowledged before a
notary public or other competent official) or a private writing admitted by the father to be his.

The Family Code has further liberalized the rules; Article 172, Article 173, and Article 175 provide:

"Art. 172. The filiation of legitimate children is established by any of the following:

"(1) The record of birth appearing in the civil register or a final judgment; or

"(2) An admission of legitimate filiation in a public document or a private handwritten

instrument and signed by the parent concerned.

"In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

"(1) The open and continuous possession of the status of a legitimate child; or

"(2) Any other means allowed by the Rules of Court and special laws.

"Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime
and shall be transmitted to the heirs should the child die during minority or in a state of
insanity. In these cases, the heirs shall have a period of five years within which to institute
the action.

"The action already commenced by the child shall survive notwithstanding the death of either
or both of the parties.

"x x x xxx x x x.

"Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on
the same, evidence as legitimate children.

"The action must be brought within the same period specified in Article 173, except when the
action is based on the second paragraph of Article 172, in which case the action may be
brought during the lifetime of the alleged parent."

The provisions of the Family Code are retroactively applied; Article 256 of the code reads:

"Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair
vested or acquired rights in accordance with the Civil Code or other laws."

Thus, in Vda. de Sy-Quia vs. Court of Appeals,36 the Court has ruled:
 "We hold that whether Jose was a voluntarily recognized natural child should be decided
under Article 278 of the Civil Code of the Philippines. Article 2260 of that Code provides that
'the voluntary recognition of a natural child shall take place according to this Code, even if
the child was born before the effectivity of this body of laws' or before August 30, 1950.
Hence, Article 278 may be given retroactive effect."

It should be apparent that the growing trend to liberalize the acknowledgment or recognition of
illegitimate children is an attempt to break away from the traditional idea of keeping well apart
legitimate and non-legitimate relationships within the family in favor of the greater interest and
welfare of the child. The provisions are intended to merely govern the private and personal affairs of
the family. There is little, if any, to indicate that the legitimate or illegitimate civil status of the
individual would also affect his political rights or, in general, his relationship to the State. While,
indeed, provisions on "citizenship" could be found in the Civil Code, such provisions must be taken in
the context of private relations, the domain of civil law; particularly -

"Civil Law is that branch of law which has for its double purpose the organization of the
family and the regulation of property. It has thus [been] defined as the mass of precepts
which determine and regulate the relations of assistance, authority and obedience among
members of a family, and those which exist among members of a society for the protection of
private interests."37

In Yaez de Barnuevo vs. Fuster,38 the Court has held:

"In accordance with Article 9 of the Civil Code of Spain, x x x the laws relating to family rights
and duties, or to the status, condition and legal capacity of persons, govern Spaniards
although they reside in a foreign country; that, in consequence, 'all questions of a civil
nature, such as those dealing with the validity or nullity of the matrimonial bond, the domicile
of the husband and wife, their support, as between them, the separation of their properties,
the rules governing property, marital authority, division of conjugal property, the classification
of their property, legal causes for divorce, the extent of the latter, the authority to decree it,
and, in general, the civil effects of marriage and divorce upon the persons and properties of
the spouses, are questions that are governed exclusively by the national law of the husband
and wife."

The relevance of "citizenship" or "nationality" to Civil Law is best exemplified in Article 15 of the Civil
Code, stating that -

"Laws relating to family rights and duties, or to the status, condition and legal capacity of
persons are binding upon citizens of the Philippines, even though living abroad" -

that explains the need to incorporate in the code a reiteration of the Constitutional provisions on
citizenship. Similarly, citizenship is significant in civil relationships found in different parts of the Civil
Code,39 such as on successional rights and family relations.40 In adoption, for instance, an adopted
child would be considered the child of his adoptive parents and accorded the same rights as their
legitimate child but such legal fiction extended only to define his rights under civil law41 and not his
political status.

Civil law provisions point to an obvious bias against illegitimacy. This discriminatory attitude may be
traced to the Spanish family and property laws, which, while defining proprietary and successional
rights of members of the family, provided distinctions in the rights of legitimate and illegitimate
children. In the monarchial set-up of old Spain, the distribution and inheritance of titles and wealth
were strictly according to bloodlines and the concern to keep these bloodlines uncontaminated by
foreign blood was paramount.

These distinctions between legitimacy and illegitimacy were codified in the Spanish Civil Code, and
the invidious discrimination survived when the Spanish Civil Code became the primary source of our
own Civil Code. Such distinction, however, remains and should remain only in the sphere of civil law
and not unduly impede or impinge on the domain of political law.

The proof of filiation or paternity for purposes of determining his citizenship status should thus be
deemed independent from and not inextricably tied up with that prescribed for civil law purposes.
The Civil Code or Family Code provisions on proof of filiation or paternity, although good law, do not
have preclusive effects on matters alien to personal and family relations. The ordinary rules on
evidence could well and should govern. For instance, the matter about pedigree is not necessarily
precluded from being applicable by the Civil Code or Family Code provisions.

Section 39, Rule 130, of the Rules of Court provides -

"Act or Declaration about pedigree. The act or declaration of a person deceased, or unable
to testify, in respect to the pedigree of another person related to him by birth or marriage,
may be received in evidence where it occurred before the controversy, and the relationship
between the two persons is shown by evidence other than such act or declaration. The word
`pedigree includes relationship, family genealogy, birth, marriage, death, the dates when
and the places where these facts occurred, and the names of the relatives. It embraces also
facts of family history intimately connected with pedigree."

For the above rule to apply, it would be necessary that (a) the declarant is already dead or unable to
testify, (b) the pedigree of a person must be at issue, (c) the declarant must be a relative of the
person whose pedigree is in question, (d) declaration must be made before the controversy has
occurred, and (e) the relationship between the declarant and the person whose pedigree is in
question must be shown by evidence other than such act or declaration.

Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of Bessie Kelley Poe
submitted as Exhibit 20 before the COMELEC, might be accepted to prove the acts of Allan F. Poe,
recognizing his own paternal relationship with FPJ, i.e, living together with Bessie Kelley and his
children (including respondent FPJ) in one house, and as one family -

"I, Ruby Kelley Mangahas, of legal age and sound mind, presently residing in Stockton,
California, U.S.A., after being sworn in accordance with law do hereby declare that:

"1. I am the sister of the late Bessie Kelley Poe.

"2. Bessie Kelley Poe was the wife of Fernando Poe, Sr.

"3. Fernando and Bessie Poe had a son by the name of Ronald Allan Poe, more popularly
known in the Philippines as `Fernando Poe, Jr., or `FPJ.

"4. Ronald Allan Poe `FPJ was born on August 20, 1939 at St. Luke's Hospital, Magdalena
Street, Manila.

"x x x xxx xxx

 "7. Fernando Poe Sr., and my sister Bessie, met and became engaged while they were
students at the University of the Philippines in 1936. I was also introduced to Fernando Poe,
Sr., by my sister that same year.

"8. Fernando Poe, Sr., and my sister Bessie had their first child in 1938.

"9. Fernando Poe, Sr., my sister Bessie and their first three children, Elizabeth, Ronald, Allan
and Fernando II, and myself lived together with our mother at our family's house on Dakota
St. (now Jorge Bocobo St.), Malate until the liberation of Manila in 1945, except for some
months between 1943-1944.

"10. Fernando Poe, Sr., and my sister, Bessie, were blessed with four (4) more children after
Ronald Allan Poe.

"x x x xxx xxx

"18. I am executing this Declaration to attest to the fact that my nephew, Ronald Allan Poe is
a natural born Filipino, and that he is the legitimate child of Fernando Poe, Sr.

"Done in City of Stockton, California, U.S.A., this 12th day of January 2004.

Ruby Kelley Mangahas Declarant DNA Testing

In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to
obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child
and any physical residue of the long dead parent could be resorted to. A positive match would clear
up filiation or paternity. In Tijing vs. Court of Appeals,42 this Court has acknowledged the strong weight of
DNA testing -

"Parentage will still be resolved using conventional methods unless we adopt the modern and
scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for
identification and parentage testing. The University of the Philippines Natural Science Research
Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using
short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person
has two (2) copies, one copy from the mother and the other from the father. The DNA from the
mother, the alleged father and the child are analyzed to establish parentage. Of course, being a
novel scientific technique, the use of DNA test as evidence is still open to challenge. Eventually, as
the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence.
For it was said, that courts should apply the results of science when competently obtained in aid of
situations presented, since to reject said result is to deny progress."

Petitioners Argument For Jurisprudential Conclusiveness

Petitioner would have it that even if Allan F. Poe were a Filipino citizen, he could not have
transmitted his citizenship to respondent FPJ, the latter being an illegitimate child. According to
petitioner, prior to his marriage to Bessie Kelley, Allan F. Poe, on July 5, 1936, contracted marriage
with a certain Paulita Gomez, making his subsequent marriage to Bessie Kelley bigamous and
respondent FPJ an illegitimate child. The veracity of the supposed certificate of marriage between
Allan F. Poe and Paulita Gomez could be most doubtful at best. But the documentary evidence
introduced by no less than respondent himself, consisting of a birth certificate of respondent and a
marriage certificate of his parents showed that FPJ was born on 20 August 1939 to a Filipino father
and an American mother who were married to each other a year later, or on 16 September 1940.
Birth to unmarried parents would make FPJ an illegitimate child. Petitioner contended that as an
illegitimate child, FPJ so followed the citizenship of his mother, Bessie Kelley, an American citizen,
basing his stand on the ruling of this Court in Morano vs. Vivo,43 citing Chiongbian vs. de Leo44 and
Serra vs. Republic.45

On the above score, the disquisition made by amicus curiae Joaquin G. Bernas, SJ, is most
convincing; he states -

"We must analyze these cases and ask what the lis mota was in each of them. If the
pronouncement of the Court on jus sanguinis was on the lis mota, the pronouncement would
be a decision constituting doctrine under the rule of stare decisis. But if the pronouncement
was irrelevant to the lis mota, the pronouncement would not be a decision but a mere obiter
dictum which did not establish doctrine. I therefore invite the Court to look closely into these
cases.

"First, Morano vs. Vivo. The case was not about an illegitimate child of a Filipino father. It
was about a stepson of a Filipino, a stepson who was the child of a Chinese mother and a
Chinese father. The issue was whether the stepson followed the naturalization of the
stepfather. Nothing about jus sanguinis there. The stepson did not have the blood of the
naturalized stepfather.

"Second, Chiongbian vs. de Leon. This case was not about the illegitimate son of a Filipino
father. It was about a legitimate son of a father who had become Filipino by election to public
office before the 1935 Constitution pursuant to Article IV, Section 1(2) of the 1935
Constitution. No one was illegitimate here.

"Third, Serra vs. Republic. The case was not about the illegitimate son of a Filipino father.
Serra was an illegitimate child of a Chinese father and a Filipino mother. The issue was
whether one who was already a Filipino because of his mother who still needed to be
naturalized. There is nothing there about invidious jus sanguinis.

"Finally, Paa vs. Chan.46 This is a more complicated case. The case was about the
citizenship of Quintin Chan who was the son of Leoncio Chan. Quintin Chan claimed that his
father, Leoncio, was the illegitimate son of a Chinese father and a Filipino mother. Quintin
therefore argued that he got his citizenship from Leoncio, his father. But the Supreme Court
said that there was no valid proof that Leoncio was in fact the son of a Filipina mother. The
Court therefore concluded that Leoncio was not Filipino. If Leoncio was not Filipino, neither
was his son Quintin. Quintin therefore was not only not a natural-born Filipino but was not
even a Filipino.

"The Court should have stopped there. But instead it followed with an obiter dictum. The
Court said obiter that even if Leoncio, Quintin's father, were Filipino, Quintin would not be
Filipino because Quintin was illegitimate. This statement about Quintin, based on a contrary
to fact assumption, was absolutely unnecessary for the case. x x x It was obiter dictum, pure
and simple, simply repeating the obiter dictum in Morano vs. Vivo.

"x x x xxx xxx

"Aside from the fact that such a pronouncement would have no textual foundation in the
Constitution, it would also violate the equal protection clause of the Constitution not once but
twice. First, it would make an illegitimate distinction between a legitimate child and an
 illegitimate child, and second, it would make an illegitimate distinction between the
illegitimate child of a Filipino father and the illegitimate child of a Filipino mother.

"The doctrine on constitutionally allowable distinctions was established long ago by People
vs. Cayat.47 I would grant that the distinction between legitimate children and illegitimate
children rests on real differences. x x x But real differences alone do not justify invidious
distinction. Real differences may justify distinction for one purpose but not for another
purpose.

"x x x What is the relevance of legitimacy or illegitimacy to elective public service? What
possible state interest can there be for disqualifying an illegitimate child from becoming a
public officer. It was not the fault of the child that his parents had illicit liaison. Why deprive
the child of the fullness of political rights for no fault of his own? To disqualify an illegitimate
child from holding an important public office is to punish him for the indiscretion of his
parents. There is neither justice nor rationality in that. And if there is neither justice nor
rationality in the distinction, then the distinction transgresses the equal protection clause and
must be reprobated."

The other amici curiae, Mr. Justice Vicente Mendoza (a former member of this Court), Professor
Ruben Balane and Dean Martin Magallona, at bottom, have expressed similar views. The thesis of
petitioner, unfortunately hinging solely on pure obiter dicta, should indeed fail.

Where jurisprudence regarded an illegitimate child as taking after the citizenship of its mother, it did
so for the benefit the child. It was to ensure a Filipino nationality for the illegitimate child of an alien
father in line with the assumption that the mother had custody, would exercise parental authority and
had the duty to support her illegitimate child. It was to help the child, not to prejudice or discriminate
against him.

The fact of the matter perhaps the most significant consideration is that the 1935 Constitution,
the fundamental law prevailing on the day, month and year of birth of respondent FPJ, can never be
more explicit than it is. Providing neither conditions nor distinctions, the Constitution states that
among the citizens of the Philippines are "those whose fathers are citizens of the Philippines." There
utterly is no cogent justification to prescribe conditions or distinctions where there clearly are none
provided.

In Sum

(1) The Court, in the exercise of its power of judicial review, possesses jurisdiction over the
petition in G. R. No. 161824, filed under Rule 64, in relation to Rule 65, of the Revised Rules
of Civil Procedure. G.R. No. 161824 assails the resolution of the COMELEC for alleged
grave abuse of discretion in dismissing, for lack of merit, the petition in SPA No. 04-003
which has prayed for the disqualification of respondent FPJ from running for the position of
President in the 10th May 2004 national elections on the contention that FPJ has committed
material representation in his certificate of candidacy by representing himself to be a natural-
born citizen of the Philippines.

(2) The Court must dismiss, for lack of jurisdiction and prematurity, the petitions in G. R. No.
161434 and No. 161634 both having been directly elevated to this Court in the latters
capacity as the only tribunal to resolve a presidential and vice-presidential election contest
under the Constitution. Evidently, the primary jurisdiction of the Court can directly be invoked
only after, not before, the elections are held.
 (3) In ascertaining, in G.R. No. 161824, whether grave abuse of discretion has been
committed by the COMELEC, it is necessary to take on the matter of whether or not
respondent FPJ is a natural-born citizen, which, in turn, depended on whether or not the
father of respondent, Allan F. Poe, would have himself been a Filipino citizen and, in the
affirmative, whether or not the alleged illegitimacy of respondent prevents him from taking
after the Filipino citizenship of his putative father. Any conclusion on the Filipino citizenship
of Lorenzo Pou could only be drawn from the presumption that having died in 1954 at 84
years old, Lorenzo would have been born sometime in the year 1870, when the Philippines
was under Spanish rule, and that San Carlos, Pangasinan, his place of residence upon his
death in 1954, in the absence of any other evidence, could have well been his place of
residence before death, such that Lorenzo Pou would have benefited from the "en masse
Filipinization" that the Philippine Bill had effected in 1902. That citizenship (of Lorenzo Pou),
if acquired, would thereby extend to his son, Allan F. Poe, father of respondent FPJ. The
1935 Constitution, during which regime respondent FPJ has seen first light, confers
citizenship to all persons whose fathers are Filipino citizens regardless of whether such
children are legitimate or illegitimate.

(4) But while the totality of the evidence may not establish conclusively that respondent FPJ
is a natural-born citizen of the Philippines, the evidence on hand still would preponderate in
his favor enough to hold that he cannot be held guilty of having made a material
misrepresentation in his certificate of candidacy in violation of Section 78, in relation to
Section 74, of the Omnibus Election Code. Petitioner has utterly failed to substantiate his
case before the Court, notwithstanding the ample opportunity given to the parties to present
their position and evidence, and to prove whether or not there has been material
misrepresentation, which, as so ruled in Romualdez-Marcos vs. COMELEC,48 must not only
be material, but also deliberate and willful.

WHEREFORE, the Court RESOLVES to DISMISS

1. G. R. No. 161434, entitled "Maria Jeanette C. Tecson and Felix B. Desiderio, Jr.,
Petitioners, versus Commission on Elections, Ronald Allan Kelley Poe (a.k.a. "Fernando
Poe, Jr.,) and Victorino X. Fornier, Respondents," and G. R. No. 161634, entitled "Zoilo
Antonio Velez, Petitioner, versus Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr.,
Respondent," for want of jurisdiction.

2. G. R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus Hon. Commission on

Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr.," for failure to show
grave abuse of discretion on the part of respondent Commission on Elections in dismissing
the petition in SPA No. 04-003.

EN BANC

G.R. Nos. 211789-90, March 17, 2015

DR. REY B. AQUINO, Petitioner, v. COMMISSION ON ELECTIONS, Respondent.

DECISION

BRION, J.:

We resolve in this petition for certiorari and prohibition1 the challenge to the October 19,
20122 and February 18, 20143 resolutions of respondent Commission on Elections (COMELEC) sitting En
Banc, in E.O. Case No. 10-003 and E.O. Case No. 10-008.
The October 19, 2012 resolution, among others, directed the COMELEC's Law Department to file the
appropriate information against petitioner Dr. Rey B. Aquino for violation of COMELEC Resolution No.
87374 in relation to Section 261(h) of the Batas Pambansa Blg. 881 (BP 881) (the Omnibus Election Code of
the Philippines). The February 18, 2014 resolution, in turn, affirmed in toto the October 19,
2012 resolution.chanRo blesvi rtua lLawl ib rary

The Factual Antecedents

On January 8, 2010, Aquino, as President and Chief Executive Officer of the Philippine Health Insurance
Corporation (PHIC), issued PhilHealth Special Order No. 16, Series of 2010 (reassignment order)5 directing
the reassignment of several PHIC officers and employees.

The pertinent portion of PhilHealth SO No. 16-20106 reads: chan roble svirtuallaw lib rary

08 January 2010

SPECIAL ORDER No. 16, s. 2010

Subject:
Re-Assignment of PhilHealth Officials

In the interest of the service and further enhance organizational efficiency and synergy, the following
PhilHealth officials and personnel are hereby re-assigned to the offices opposite their names. This is also
being made to strengthen PhilHealth's organizational capability by providing opportunities to its key
personnel for professional growth and development in strategic management, which is imperative in view of
the impending vacancies in crucial 3rd level positions.

xxxx

By virtue of this Order, the above named officers are bound to perform all the duties and functions required
in their respective assignments and shall receive the corresponding allowances.

This Order shall take effect immediately.

DR. REY B. AQUINO

President and CEO
On the same date, Aquino released the reassignment order, via the PHIC's intranet service, to all PHIC
officers and employees, including the following: (1) Dennis Adre, PHIC Regional Vice-President (VP); (2)
Masiding Alonto, PHIC Regional VP; and (3) Khaliquzzaman M. Macabato, PHIC Assistant Regional VP.

On January 11, 2010, Aquino issued an Advisory implementing the reassignment order. The Advisory
directed these officers to, among others, "report to their new regional assignments; or to the central office;
or to other areas, as the case may be, not later than five (5) working days from the date of issuance of the
reassignment order or January 15, 2010 for officers transferred, reassigned or designated to various posts
located in the central office; and/or ten (10) working days from the ADVISORY or January 22, 2010, in the
case of those reassigned or transferred from a regional office to another or from the central office to a
regional office and vice versa."7

In view of the reassignment order and its directive, Dean Rudyard A. Avila III, consultant to the Chairman of
the Board of PHIC and former Secretary of the PHIC Board of Directors, filed before the COMELEC on
January 18, 2010, a complaint against Aquino and Melinda C. Mercado, PHIC Officer-in-Charge, Executive
VP and Chief Operating Officer, for violation of COMELEC Resolution No. 8737 in relation to Section 261(h)
of BP 881. The case was docketed as E.O. Case No. 10-003.

On February 1, 2010, Adre, Alonto and Macabato, along with Romeo D. Alberto and Johnny
Y. Sychua (PHIC Regional VPs) likewise filed before the COMELEC a similar complaint for violation
of Resolution No. 8737 in relation to Section 261(h) of BP 881 against Tito M. Mendiola, PHIC Senior VP for
Operations Sector, and Ruben John A. Basa, PHIC Group VP for Corporate Affairs. The case was docketed
as E.O. Case No. 10-008.

E.O. Case No. 10-003 and E.O. Case No. 10-008 were subsequently consolidated (consolidated COMELEC
complaints).
Meanwhile, Aquino wrote the COMELEC a letter dated January 11, 2010,8 asking for a "categorical
declaration that the issuance of and transition to the respective office designations of concerned officers x x
x is beyond the purview of COMELEC Resolution No. 8737 x x x." He posited that the reassignment order is
beyond the coverage of this COMELEC resolution as he issued it on January 8, 2010, or prior to the start of
the election period that began on January 11, 2010. Aquino reiterated this request in his letter dated
February 26, 2010.9

On March 29, 2010, Aquino filed a petition10 before the COMELEC reiterating his request and maintaining
that PhilHealth SO No. 16-2010 is beyond the coverage of Resolution No. 8737. This case was docketed
as E.M. Case No. 10-018.

The assailed COMELEC resolutions

1. The October 19, 2012 resolution11

The COMELEC directed its Law Department to file the appropriate information against Aquino for violation
of Resolution No. 8737 in relation to Section 261(h) of BP 881; it dismissed, for lack of merit, the complaint
against Mercado, Mendiola, and Basa.

The COMELEC declared that Aquino violated Section 261(h) of BP 881 when he directed the
transfer/reassignment of the PHIC officers and employees within the declared election period without its
prior approval. It pointed out that Section 261(h) considers an election offense for "any public official who
makes or causes the transfer or detail whatever of any public officer or employee in the civil service xxx
within the election period except upon prior approval of the Commission. "

Citing Regalado, Jr. v. Court of Appeals,12 the COMELEC explained in this regard that "the words 'transfer'
and 'detail' [in Section 261(h) of BP 881] are modified by the word 'whatever' xxx [such that] any
movement of personnel from one station to another during the election, whether or not in the same office or
agency, is covered by the prohibition."13

The COMELEC pointed out, too, that in promulgating Resolution No. 8737, it merely laid down the guidelines
relative to the transfer, detail or reassignment of officers and employees of the civil service for the January
10, 2010 to June 9, 2010 election period set for the May 10, 2010 National and Local Elections (May 10,
2010 elections) which guidelines still fall well within the provisions of Section 261(h) of BP 881. It
emphasized that Resolution No. 8737 merely reiterated Section 261(h)'s prohibition and the requirement of
prior COMELEC approval in any case of personnel transfers or details; and provided penalties in case of
violation of the prohibition.

In this case, the COMELEC noted that while the facts at first glance would support Aquino's contention that
the reassignment order is beyond the coverage of the election transfer ban as Aquino issued it on January 8,
2010, its implementation was carried out after the transfer ban had already set in. Moreover, the
circumstances surrounding its issuance supports the conclusion that Aquino violated the transfer ban, i.e.,
Aquino issued the reassignment order late in the afternoon of January 8, 2010, which was a Friday; he
issued the guidelines implementing the transfer/reassignment order only on January 11, 2010, after the
transfer ban had taken effect; and, even after the election period had already started, he still issued several
transfer/reassignment orders from January 21 to February 15, 2010,14 absent the required prior COMELEC
approval.

In short, the COMELEC found a primafacie case against Aquino for violation of Resolution No. 8737 in
relation to Section 261(h) of BP 881 because while the reassignment order was issued on January 8, 2010,
or prior to the start of the transfer ban, its implementation took effect after the transfer ban had already set
in. To the COMELEC, a transfer/reassignment order must be issued and implemented prior to the start of the
election period to be excluded from the coverage of the transfer ban. Any personnel action issued and/or
implemented during the election period must have prior COMELEC approval to be valid; otherwise, such
personnel action is illegal and renders liable the person who made or caused the movement.

The COMELEC dismissed the complaint against the other respondents because: (1) the documents on record
bear only Aquino's signature; and (2) conspiracy among them was not alleged nor proved.

On December 7, 2012, Aquino sought reconsideration15 of the COMELEC's October 19, 2012 resolution. He
argued that what he directed when he issued the order was only a reassignment, not a transfer, which is not
covered by the transfer ban. In this regard, he pointed to Civil Service Commission Memorandum Circular
No. 2, series of 2005, and the Court's ruling in Tapispisan v. Court of Appeals16 to support his position.

He argued, too, that he issued the directive outside of or before the start of the election period, i.e., on
January 8, 2010.

Lastly, he pointed out that he thrice sought from the COMELEC the required approvals as early as January
11, 2010; as of the date of the filing of this motion, the COMELEC has yet to act on his letter-requests.

2. The February 18, 2014 resolution17

The COMELEC affirmed in toto the October 19, 2012 resolution.

The COMELEC agreed with the complainants' position and ruled that the word "whatever" in Section 261(h)
of BP 881 expanded the coverage of the prohibition so as to include any movement of personnel, including
reassignment, among others. In fact, to dispel any ambiguity as regards Section 261(h)'s
prohibition, Resolution No. 8737 defined the word "transfer" as including any personnel action.

Accordingly, the COMELEC held that insofar as the prohibition provision (under Section 261[h] of BP 881) is
concerned, the terms "transfer" and "reassignment" have similar legal consequences.

Lastly, the COMELEC emphasized that only a prima facie finding of violation or probable cause is required for
purposes of filing an Information for an election offense. In Aquino's case, the facts show such prima
facie case against him for violation of Section 261(h) of BP 881.

COMELEC resolution on Aquino's petition (EM. Case No. 10-018)

In a resolution dated August 20, 2010,18 the COMELEC First Division denied Aquino's petition (for declaration
of the non-coverage of the reassignment order under the transfer ban) and directed the COMELEC's Law
department to conduct preliminary investigation to detemiine whether Aquino committed an election offense
for violation of Resolution No. 8737 in relation to Section 261(h) of BP 881.

The First Division agreed that Section 261(h) of BP 881 and Resolution No. 8737 do not render illegal per
se the transfer of a government officer or employee during election period and that the law, in fact,
recognizes the inherent prerogative of the appointing authority to effect such transfers or details whenever
necessary to meet the exigencies of the public service.

It nevertheless pointed out that the transfers or details in this case were effected without the required prior
COMELEC approval which sufficiently renders Aquino liable for violation of Resolution No. 8737 in relation
with Section 261(h). chanRoblesvi rt ual Lawlib rary

The Petition

Aquino essentially argues that, first, the COMELEC exceeded its authority to implement the election laws
when, in interpreting Section 261(h) of BP 881, it added reassignments as a covered offense when the
prohibitions speaks only of transfer and detail. To him, the COMELEC could not legally and validly add a third
mode of personnel action and hold him accountable for its violation, when the legislative Intent clearly and
specifically prohibited only transfer and detail from among the several modes of personnel action
enumerated under the various laws governing the civil service, i.e., Presidential Decree (PD) No. 807 and
Executive Order (EO) No. 292.

He argues that while the COMELEC indeed has the exclusive authority to implement the election laws, and
with it the authority to issue rules and regulations to supply details or clarify gaps in the law, it cannot
validly extend what these laws provide without running afoul of the basic precept that the power to make
laws is exclusively lodged in the legislature.

Thus, Aquino takes exception to the COMELEC's reliance in Regalado19 arguing that the term "whatever" was
added simply to modify the term "detail" (which it immediately follows) or both the terms "detail and/or
transfer;" the addition of the term "whatever" was never meant to include within the coverage of the
prohibition any mode of personnel action other than transfer and detail.

Then too, he points out that the Court, in Regalado, declared the transfer as falling within the prohibition's
coverage because although made in the exigencies of public service, it was, in fact, used for electioneering
purposes or to harass subordinates of different political persuasion.

In this case, he argues that none of the complaining PHIC officer/personnel even alleged a situation similar
to those in Regalado. Hence, the COMELEC cannot hold him criminally liable for an act that the law does not
prohibit under the maxim nullum crimen sine lege.

Second, the reassignment order did not violate Section 261(h) of BP 881 because he issued it on January 8,
2010, or before the start of the election period on January 10, 2010. He points out that by its terms, the
"reassignments" were immediately executory; it was also released and disseminated via the PHIC's intranet
service and facsimiles, to all concerned officers and employees on the same date of issue.

Further, he argues that Section 3 of BP 881 fixes the start of the election period at ninety (90) days before
the day of the election, not one hundred and twenty (120) days before, which the COMELEC set
in Resolution No. 8737. Hence, the election period for the May 10, 2010 elections should have commenced
on February 9, 2010, not January 10, 2010.

At any rate, Aquino argues that the COMELEC's resolutions and directive to file criminal action against him
were premature and without legal basis. He points out that, if only to comply with the legal requirement of
prior COMELEC approval, he had thrice requested20 the COMELEC for exemption from Resolution No. 8737.
To this date and despite the issuance of the October 19, 2012 and February 18, 2014 resolutions, his
request remains pending before the COMELEC En Banc.21 He insists that the resolution of his
request/petition for exemption is necessary as the issues raised therein were prejudicial questions to the
issues in the consolidated COMELEC complaints. chanRoblesvirtua lLaw lib rary

The Case for the CQMELEC

The COMELEC, through the Solicitor General, argues22 that it has the power to prosecute any reassignment
of officers and employees in the civil service made during the election period. In this regard, it points out
that the words "transfer" and "detail" are precisely modified by the word "whatever" such that any
movement of personnel from one station to another, whether or not in the same office or agency, is covered
by the prohibition under Resolution No. 8737 in relation to Section 261(h) of BP 881. Such personnel action
necessarily includes "reassignment."

In addition, the COMELEC defends that it did not act with grave abuse of discretion when it directed its law
department to file the appropriate information against Aquino for violation of Resolution No. 8737 in relation
to Section 261(h) of BP 881. It points out that: (1) Aquino issued the reassignment order during the election
period, absent its prior approval; and (2) it did not err in fixing the election period for the May 10, 2010
elections and in implementing Resolution No. 8737.

Relying on Regalado, the COMELEC reasons that for an act to fall under Section 261(h) of BP 881, two
elements must concur: (1) a public officer or employee is transferred or detailed within the election period
as fixed by it; and (2) the transfer or detail was effected without its prior approval pursuant to its
implementing rules and regulations.

In this case, it argues that both elements were present. First, while the reassignment order was issued on
January 8, 2010, it actually became effective only on January 11, 2010, well within the election period. To
this end, it points out that: (1) the Order was issued at about four-thirty in the afternoon (4:30 pm) when it
was already too late to be implemented; (2) the complainants in the consolidated complaints received a
copy of the Order only on January 11, 2010; (3) Aquino issued the Advisory likewise only on January 11,
2010; and (4) Aquino issued other reassignment orders between January 21 and February 15, 2010.23

In other words, the COMELEC submits that if a reassignment order was implemented during the election
period, even if issued prior thereto as in this case, it is still covered by the election ban on personnel
transfer.

Second, Aquino issued the reassignment order without its prior approval. To the COMELEC, Aquino's January
11, 2010 and February 26, 2010 letters, as well as his March 18, 2010 petition (for exemption from the
election transfer ban) could not have rectified the deficiency because the letter-requests were submitted and
filed long after the election ban had already taken effect; and the petition for exemption was filed long after
the complaints were filed against him.
Lastly, the COMELEC argues that the election period which it fixed for the May 10, 2010 election is valid and
legal pursuant to its authority under Section 3 of BP 881. The period fixed is likewise valid,24 pursuant to
Section 12 of Resolution No. 873725 in relation to Section 52(m) of BP 88126 and Section 30 of Republic Act
(RA) No. 6646.27

The Issues

The basic issues before us are whether: the COMELEC validly issued Resolution No. 8737 that
defined transfer, as contemplated under Section 261(h) of BP 881, to include all personnel action
including reassignments; and if so, whether the COMELEC validly found prima facie case against Aquino for
violation of Resolution No. 8737 in relation to Section 261(h). chanRoble svirtual Lawlib rary

The Court's Ruling

Preliminary Considerations

In assailing the COMELEC's October 19, 2012 and February 18, 2014 resolutions, Aquino comes to this
Court via Rule 64 in relation to Rule 65 of the Rules of Court.

As a Rule 64 petition (viewed from a Rule 65 approach), the Court's standard of review is "grave abuse of
discretion" or such "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. Mere
abuse of discretion is not enough; the abuse of discretion must be patent and gross as to amount to an
evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of
passion and hostility."28 A lower court or tribunal's violation of the Constitution, law or
existing jurisprudence29 or their use of wrong or irrelevant considerations in deciding an issue is sufficient to
taint their action with grave abuse of discretion.30

In this petition, Aquino ascribes grave abuse of discretion on the part of the COMELEC as it found prima
facie case to indict him for violation of Resolution No. 8737 in relation to Section 261(h) of BP 881. He
presents the following main arguments:

1. The COMELEC exceeded its rule-making authority when it issued Resolution No. 8737 that expanded
the coverage of Section 261(h) of BP 881;

2. The reassignment order is beyond the coverage of Section 261(h) of BP 881 because he issued it
before the start of the election period; and

3. The COMELEC prematurely issued its resolutions (finding prima facie case against him) as the
COMELEC had, then, yet to resolve his request for exemption from the coverage of Resolution No.
8737.

We approach these arguments with the consideration of the distinct role that the COMELEC plays in our
government structure. We consider as well the considerable latitude which the Constitution and the laws
grant it as it ensures the accomplishment of the great objective for which it was created - free, orderly and
honest elections.31 We recognize1 this legal reality and concede that we have no general powers of
supervision over the COMELEC except those which the Constitution specifically grants to us, i.e., to review
its decisions, orders, and rulings within the limited terms of a petition for certiorari.32

Thus, in this Rule 64 petition, the scope of our review is limited to the question: whether the COMELEC's
exercise of its powers as it issued the prima-facie-case-finding resolution and Resolution No. 8737 was
without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction.

Aquino's petition must prosper if the COMELEC, in appreciating and calibrating the evidence as it arrived at
the assailed resolutions, exceeded its authority or exercised its discretion in an excessive, arbitrary, and
gravely abusive manner. The grant of the petition based on these asserted violations in effect recognizes
that, in acting as it did, the COMELEC committed errors of the level that effectively affected its jurisdiction.

Aquino's petition must fail, however, if the COMELEC's acts, even though viewed erroneous under the terms
of the asserted violations, were still well within the limits of its powers under the Constitution and relevant
statutes. The Court must, in such case, recognize the COMELEC's exercise of its discretion in issuing the
assailed resolutions to be proper and well within its jurisdiction.

Viewed in this light, we GRANT the petition; we find grave abuse of discretion on the part of the COMELEC
in the manner that it found prima facie case against Aquino for violation of Resolution No. 8737 in relation to
Section 261(h) of BP 881.

A. COMELEC Resolution No. 8737 is valid

1. The COMELEC's enforcement and administration power and rule-making power

To determine the validity of Resolution No. 8737, we first discuss some of the basic precepts touching on the
powers granted to the COMELEC as it fulfills its mandate under the Constitution and statutes.

We begin with the Constitution - the fundamental law to which all laws must conform. The pertinent
provisions read:c hanro blesvi rt uallawl ibra ry

ARTICLE IX

CONSTITUTIONAL COMMISSIONS

A. COMMON PROVISIONS

xxxx

Section 6. Each Commission en banc may promulgate its own rules concerning pleadings and practice
before it or before any of its offices. Such rules however shall not diminish, increase, or modify substantive
rights.

xxxx

C. THE COMMISSION ON ELECTIONS

Section 2. The Commission on Elections shall exercise the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall.

[emphases and underscoring supplied]

By statute, BP 881 provides: chan roblesv irtuallawl ib rary

Article VII

THE COMMISSION ON ELECTIONS

Sec. 52. Powers and functions of the Commission on elections. - In addition to the powers and functions
conferred upon it by the Constitution, the Commission shall have exclusive charge of the enforcement
and administration of all laws relative to the conduct of elections for the purpose of ensuring free,
orderly and honest elections, and shall:

xxxx

(c) Promulgate rules and regulations implementing the provisions of this Code or other laws which the
Commission is required to enforce and administer x x x x.

[emphases supplied]

A common and clear conclusion that we can gather from these provisions is the obvious and unequivocal
intent of the framers of the Constitution and of the law to grant the COMELEC with powers, necessary and
incidental to achieve the objective of ensuring free, orderly, honest, peaceful and credible elections.

Thus, expressly, the Constitution and the laws grant the COMELEC with the power, first and foremost, to
"[e]nforce and administer all laws and regulations relative to the conduct of an election," and second, to
"promulgate rules and regulations. " Together, these powers ensure that the COMELEC is well armed to
properly enforce and implement the election laws and enable it to fill in the situational gaps which the law
does not provide foir or which the legislature had not foreseen.

In exercising these powers and fulfilling its mandate, the COMELEC, in addition, must necessarily interpret
the provisions of the law that they are to enforce and for which they will craft the guidelines. Thus, to this
extent and in this sense, the COMELEC likewise exercises the power of legal interpretation pursuant to the
legal principle that the grant of a power includes all the powers necessary for the exercise of. the power
expressly given.

Like all grant of powers, however, the grant to the COMELEC of its express - enforcement and
administration, and rule-making - and implied -interpretative - powers are not without limitations. The
exercise of these powers should always be read in conjunction with, not in isolation from, the Constitution
and the laws from where it draws the power.

2. The COMELEC did not exceed the exercise of its rule-making power; reassignment is included
in the prohibition pursuant to the phrase "transfer or detail whatever"

In Resolution No. 8737, the COMELEC defined the phrase "transfer or detail whatever" found in Section
261(h) of BP 881 as including any personnel action, i.e., "reassignment." Aquino questions this COMELEC
interpretation as an unwarranted expansion of the legal prohibition which he argues renders the COMELEC
liable for grave abuse of discretion.

We agree with the questioned COMELEC interpretation of the phrase "transfer or detail whatever."

a. The COMELEC's interpretation, pursuant to our Regalado ruling, is consistent with the constitutional and
legislative intent

A necessary starting point in considering how we are to interpret the phrase "transfer or detail whatever " is
the legal provisions involved - BP 881 and the various laws governing the civil service.

On the one hand, Aquino argues that the laws on the civil service should govern in the interpretation of the
phrase. Under this approach, the term "whatever" is viewed as modifying only either the term "detail"
(which it immediately follows) or both the terms "detail and/or transfer." In such case, "reassignments,"
which is a distinct mode of personnel action under the civil service laws, are automatically excluded.

On the other hand, the COMELEC holds the position that the phrase "transfer or detail whatever" should be
interpreted in the light of the general objectives of our election laws. Under this approach, the
terms transfer and detail, as modified by the term whatever, are to be understood in their general sense
such that any movement of personnel from one station to another, including "reassignments," is covered by
the prohibition.

In Regalado, Jr. v. Court of Appeals,33 the Court already clarified the interpretation of the term whatever as
used in Section 261(h) of BP 881 in relation to the terms transfer and detail. In agreeing with the Solicitor
General's position, this Court declared that the terms transfer and detail are modified by the
term whatever such that "any movement of personnel from one station to another, whether or not in the
same office or agency, during the election period is covered by the prohibition."34

Read in the light of this ruling, we affirm the COMELEC's interpretation of the phrase "transfer or detail
whatever" as we find the Regalado interpretation consistent with the legislative intent.

Indeed, as used in Section 261(h) of BP 881, the term whatever should be not be read strictly in conjunction
with only either the term transfer or the term detail; nor should the phrase transfer or detail whatever be
read in isolation from the purpose of the legal prohibition. Rather, consistent with our rules in reading
provisions of law, the term - whatever - as well as the phrase transfer or detail whatever should be
understood within the broader context of the purpose of BP 881. They should likewise be understood within
the context of all other laws that the COMELEC is required to administer and enforce. This is the proper
approach that anyone, including this Court, should take when reading Section 261(h), as well as all other
provisions of BP 881 and other election laws.

From this perspective, we reiterate our observation in Regalado that any personnel action, when caused or
made during the election period, can be used for electioneering or to harass subordinates with different
political persuasions. This possibility - of being used for electioneering purposes or to harass subordinates -
created by any movement of personnel during the election period is precisely what the transfer ban seeks to
prevent.

Thus, it is immaterial whether or not the personnel action has in fact been actually used for electioneering
purposes or whether there has been any allegation in the complaint to this effect. The mere existence of
such plausibility for electioneering is the reason that animated the legal prohibition against any personnel
action, including transfers and re-assignments, during the election period.

To our mind, the interpretation that includes any form of personnel action, such as reassignment, within the
coverage of the phrase precisely guards against any such electioneering and political harassment situations.
This interpretation also more vigorously enforces the aim not only of BP 881, but more importantly of the
Constitution to secure free, orderly, honest, peaceful, and credible elections.

Thus, to reiterate and emphasize - the election law's prohibition on transfer or detail covers any movement
of personnel from one station to another, whether or not in the same office or agency when
made or caused during the election period.

b. Its interpretation is also consistent with basic statutory construction rules

In addition to what has been discussed, we affirm the COMELEC's interpretation as it is more in keeping with
the following basic statutory construction rules:

First, that a word, phrase or provision in a statute should be construed not in isolation with but in relation
to the whole law. The clauses and phrases of a statute must not be taken as detached and isolated
expressions; but the whole and every part of it must be construed in fixing the meaning of any of its parts in
order to produce a harmonious whole.35 In short, all the words of a statute must be taken into consideration
in order to ascertain and to animate the intention of the law making bodies. Ut magis valeat quam pereat.

In this light, Aquino's interpretation - that the term whatever and the transfer ban itself refers to either only
the term transfer or the term detail, or only to both these terms - would obviously violate this well-known
canon as it essentially views the phrase transfer or detail whatever in isolation from the entire statute.

Second, that the words of a statute are to be understood in their natural, plain, and ordinary acceptation
and the signification that they have in common use, and are to be given their ordinary meaning, unless
otherwise specifically provided.36

When, as in this case, the specific provision in which it was used or the various provisions of the statute
when read as a whole do not betray a legislative intent to give the term a different sense or a technical
meaning, the term whatever as used under Section 261(h) should, therefore, be understood in its ordinary
or common sense.

As commonly understood, the term whatever means "anything at all: any of various other things that might
also be mentioned;" or "something similar but hard to identify with certainty."37 Based on this
definition, whatever would have served no purpose were we to accept Aquino's constrained interpretation.
This is because any of the various other forms of personnel action, under the laws governing the civil service
that would have been covered by the prohibition (with its use of the term whatever), will automatically be
excluded by Section 261(h)'s use of the terms transfer and detail.

In fact, if we were to follow the logic of Aquino's argument, the only form of personnel action that Section
261(h) would prohibit are transfer and detail; any other form of personnel action are and will simply be
allowed. This strict interpretation is clearly and undoubtedly wrong for as we pointed out above, the
interpretation that includes any form of personnel action under the phrase not only guards against any
electioneering and political harassment situations that the prohibition seeks to avoid. It enforces more
vigorously the aim of securing free, orderly, honest, peaceful, and credible elections to effectuate and
safeguard the will of the electorate in choosing their representatives.

In short, Aquino's interpretation will only render the term whatever a mere surplusage if the legislature
intended to limit the prohibition to transfer or detail only as defined by the laws governing the civil service.

Third, that special legal provisions prevail over general ones.38

Our civil service system is currently governed by PD 807,39 otherwise known as the Civil Service Decree, and
EO 29240 or the Administrative Code of 1987.

PD 807 provides for the organization of the Civil Service Commission, its powers and functions, and all other
matters related to the civil service and the Commission. Its primary intent and purpose is to establish a
career service which ensures that appointment in the civil service is made only according to merit and
fitness, and to establish a progressive system of personnel administration as well as measures that promote
morale and the highest degree of responsibility, integrity, loyalty, efficiency, and professionalism in the Civil
Service.41

EO 292, on the other hand, was enacted to incorporate in a unified document the major structural,
functional, and procedural principles and rules of governance.42 Essentially, EO 292 provides the basic rules
that will generally govern the organization and operation of the government.

Together, these laws operate to ensure the efficient and organized operation and administration of the
government and of its various departments and offices, particularly of the executive branch. As a necessary
tool to the government's efficient operation, these laws also ensure that only the fit, in terms of their
satisfaction of the formal and informal qualifications, occupy positions in the government and discharge
public duties.

When what is involved, however, is the exercise of the right to vote and be voted for - a particular right
guaranteed to all citizens of the Philippines - the laws governing the administration of the government and
of the civil service play only a minor, and perhaps, insignificant role. With regard to this particular and
peculiar right and the entire system by which this right is exercised and protected, what governs are our
various election laws, foremost of which is BP 881.

Thus, in reading and interpreting the provisions governing election offenses, we should consider the terms of
the election laws themselves and how they operate as a whole. As a necessary and indispensable tool in this
interpretation process, we must likewise consider these provisions in the light of the constitutional and
legislative goal of attaining free, honest, and peaceful elections. It is only through these considerations that
the right to vote and to be voted for is positively guaranteed.

Under these considerations and with particular regard to election offenses, BP 881 serves as a special law
that is consistent with our basic statutory construction rules and prevails over the more "general laws
governing the civil service. In other words, the treatment by the laws governing the civil service of the
terms "transfer, detail and reassignment" as distinct modes of personnel action does not and cannot control
the interpretation of laws dealing with election and election offenses, including the interpretation of Section
261(h) of BP 881, unless otherwise specifically provided.

In sum, we find the COMELEC's exercise of its discretion - in ruling that reassignments fall within the
coverage of the prohibited transfers or details - to be well within its jurisdiction. To reiterate in clear terms,
the prohibition on transfer or detail whatever during the election period under Section 261(h) of BP 881
covers any personnel action including reassignments.

3. The "120-day before and 30-day after" election period was validly fixed by the COMELEC
pursuant to its rule-making power

As a general rule, the period of election starts at ninety (90) days before and ends thirty (30) days after the
election date pursuant to Section 9, Article IX-C of the Constitution and Section 3 of BP 881. This rule,
however, is not without exception. Under these same provisions, the COMELEC is not precluded from setting
a period different from that provided thereunder.

In this case, the COMELEC fixed the election period for the May 10, 2010 Elections at 120 days before and
30 days after the day of the election. We find this period proper as we find no arbitrariness in the
COMELEC's act of fixing an election period longer than the period fixed in the Constitution and BP 881. For
one, the COMELEC fixed the longer period of 120-days-before-and-30-days-after pursuant to Section 9,
Article IX-C of the Constitution and Section 3 of BP 881.

Also, Resolution No. 8737, through which the COMELEC fixed this alternate period of election, is valid as it
was issued pursuant to the COMELEC's valid exercise of its rule-making power (under Section 6, Article IX-A
of the Constitution and Section 52[c] of BP 881). Too, Resolution No. 8737 is valid as it complied with the
publication requirement. Note that per the record, Resolution No.. 8737 was published twice on December
31, 2009 in the Philippine Daily Inquirer and on January 4, 2010 in the Daily Tribune.43

B. The facts and the clear terms of the law does not support the COMELEC's prima facie finding of
violation of Resolution No. 8737 in relation to Section 261 (h) of BP 881

Under Section 261(h) of BP 881, a person commits the election offense of violation of the election transfer
ban when he makes or causes the transfer or detail whatever of any official or employee of the
government during the election period absent prior approval of the COMELEG.

By its terms, Section 261(h) provides at once the elements of the offense and its exceptions. The elements
are: (1) the making or causing of a government official or employee's transfer or detail whatever, (2) the
making or causing of the transfer or detail whatever was made during the election period; and (3) these
acts were made without the required prior COMELEC approval.

As this provision operates, the making or causing of the movement of personnel during the election period
but without the required COMELEC approval is covered by the prohibition and renders the responsible person
liable for the offense. Conversely, the making or causing (of the movement of personnel) before or after the
election period even without the required COMELEC approval, or during the election period but with the
required COMELEC approval are not covered by the prohibition and do not render the responsible person
liable for this election offense.

A critical point to consider in determining whether or not Aquino may be held liaible under this provision is
the interpretation of the phrase made or caused and the extent to which the prohibition (on transfer or
detail whatever) applies to his case. Factually, it is likewise imperative to consider the date when
Aquino made or caused the reassignment of the affected PHIC officers and employees.

Make is defined as "to cause to exist. To do, perform, or execute; as to make an issue, to make oath, to
make a presentment. To do in form of law; to perform with due formalities; to execute in legal form; as to
make answer, to make a return or report. To execute as one's act or obligation; to prepare and sign; to
issue; to sign, execute, and deliver."44

Cause, on the other hand, is defined as "each separate antecedent of an event. Something that precedes
and brings about an effect or result. A reason for an action or condition x x x x an agent that brings about
something. That which in some manner is accountable for condition that brings about an effect or that
produces a cause for the resultant action or state."45

Significantly, the terms make and cause indicate one and the same thing - the beginning, the start of
something, a precursor; it pertains to an act that brings about a desired result. If we read these definitions
within the context of Section 261(h) of BP 881, the legal prohibition on transfer or detail undoubtedly affects
only those acts that go into the making or causing or to the antecedent acts. Any act that occurs or is
performed after the antecedent act of making or causing or those acts performed to carry out an event or
result desired by the antecedent acts, such as the actual or physical act of transferring, are no longer the
concern of the legal prohibition.

When viewed in terms of how transfer or reassignments of government officers and employees are usually
carried into place, this act of making or causing often consists in the act of issuing the transfer or
reassignment order. To issue something means "to discharge, produce, send out, publish, put into
circulation, come out,"46 "to send forth; to emit; to promulgate; as an officer issues orders, process issues
from a court."47 In this sense, the act of issuing entails the mechanical act of drafting or writing the order,
by the issuing official himself or through a subordinate; the signing of the order; and completed with its
release as addressed to the. concerned officer or employee.

During this phase of the entire transfer or reassignment process, the official responsible for issuing the order
plays an active role at its center. The issuing of the order are his very acts. Thus, if the orders are issued
prior to the start of the election period, they are automatically rendered beyond the coverage of the
prohibition and the issuing official cannot be held liable for violation of Section 261(h) of BP 881.
Conversely, if the orders are issued during the election period and without COMELEC approval, these are
covered by the prohibition and renders the issuing official liable for violation of Section 261(h).

Once the transfer or reassignment order is issued, the making or causing as the defining act that determines
whether a government official may be held liable under Section 261(h) is deemed completed. The
completion of this phase likewise ends the active role the issuing official plays.
Thus, the transfer or reassignment process moves to the next phase the implementation of the order. By
definition, implement refers to "the act of fulfilling or performing."48

At the implementation phase of the transfer or reassignment process, the issuing official shifts to passive
participation. The government officer or employee to whom the order is addressed takes on the active role
in performing the duties needed to implement the order.

During the implementation phase, the addressee may immediately comply with the order assume the
post and discharge its duties or may delay compliance; or choose not to comply at all. In these situations,
the issuing official has no immediate and actual control of the addressee's action.

While the issuing official holds disciplinary power over the addressee in case of delay or non-compliance, the
exercise of his disciplining authority over the erring employee would come after the fact - delay or non-
compliance.

In short, during the making or causing phase of the entire transfer or reassignment process - from drafting
the order, to its signing, up to its release - the issuing official plays a very real and active role. Once the
transfer or reassignment order is issued, the active role is shifted to the addressee of the order who should
now carry out the purpose of the order. At this level - the implementation phase - the issuing official's only
role is to see to it that the concerned officer or employee complies with the order. The issuing official may
only exert discipline upon the addressee who refuses to comply with the order.

Following these considerations, we find that the COMELEC gravely abused its discretion in this case based on
the following facts:

First, Aquino made or caused the reassignment of the concerned PHIC officers and employees before the
election period.

Second, Aquino sent out, via the PHIC's intranet service, the reassignment order to all affected PHIC officers
and employees before the election period.

Third, the reassignment order was complete in its terms, as it enumerated clearly the affected PHIC officers
and employees as well as their respective places of reassignments, and was made effective
immediately or on the day of its issue, which was likewise before the election period.

Fourth, the subsequent orders that Aquino issued were not reassignment orders per se contrary to the
COMELEC's assessment. Rather, they were, in fact, simply either orders of retention, i.e., orders addressed
to the incumbent officer-occupant of the affected position to effectively maintain the status quo and continue
performing the duties of the position while the reassigned officer or employee had not yet assumed or had
been refusing to assume the position and its duties; or orders of temporary discharge of additional
duties, i.e., orders addressed to the officer occupying the position next in rank to discharge the duties of the
affected position while the reassigned officer or employee had not yet assumed or had been refusing to
assume the position and its duties.

Retention of duties and temporary discharge of additional duties do not contemplate or involve any
movement of personnel, whether under any of the various forms of personnel action enumerated under the
laws governing the civil service or otherwise. Hence, the per se subsequent orders could not be covered by
the legal prohibition on transfers or detail.

Based on these clear facts, Aquino completed the act of making or causing the reassignment of the affected
PHIC officers and employees before the start of the election period. In this sense, the evils sought to be
addressed by Section 261(h) of BP 881 is kept intact by the timely exercise of his management prerogative
in rearranging or reassigning PHIC personnel within its various offices necessary for the PHIC's efficient and
smooth operation. As Aquino's acts of issuing the order fell outside the coverage of the transfer prohibition,
he cannot be held liable for violation of Section 261(h).

In sum, the COMELEC gravely abused its discretion when, firstly, it used wrong or irrelevant considerations
when it sought to hold Aquino liable for violation of Section 261 (h) for issuing orders that were clearly not
for reassignment, but which were simply orders for retention of position or orders for temporary discharge of
additional duties.
Secondly, the COMELEC also went beyond the clear contemplation and intention of the law and of
existing jurisprudence when it included within the prohibition's coverage the implementation aspect of the
reassignment process - acts that were obviously no longer within his active and immediate control and
beyond the ambit of making or causing to which the prohibition applies.

In view of this conclusion, we no longer find it necessary to discuss the other issues or matters raised in
this petition.
c ralawred

WHEREFORE, in the light of these considerations, we hereby GRANT the petition. We REVERSE and SET
ASIDE the resolutions dated October 19, 2012, and February 18, 2014, of the Commission on Elections in
E.O. Case No. 10-003 and E.O. Case No. 10-008. The complaints against petitioner Dr. Rey B. Aquino for
violation of RA 8737 in relation to Section 261(h) of BP 881 are hereby dismissed.

SO ORDERED. chanroblesvi rtua llawli bra ry

Sereno, C. J., on official leave.

Carpio,*Velasco, Jr., Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Villarama, Jr., Perez, Mendoza,
Reyes, Perlas-Bernabe, and Leonen, JJ., concur.
Jardeleza, J., no part.

Endnotes:

Republic of the Philippines

Supreme Court
Baguio City

EN BANC

ANG LADLAD LGBT PARTY G.R. No. 190582

represented herein by its Chair,
DANTON REMOTO,
Petitioner, Present:

PUNO, C. J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
- versus - BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
 VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.

COMMISSION ON ELECTIONS, Promulgated:

Respondent. April 8, 2010
x--------------------------------------------------------x

DECISION

DEL CASTILLO, J.:

... [F]reedom to differ is not limited to things that do not matter much. That
would be a mere shadow of freedom. The test of its substance is the right to
differ as to things that touch the heart of the existing order.

Justice Robert A. Jackson

West Virginia State Board of Education v. Barnette[1]

One unavoidable consequence of everyone having the freedom to choose is that others
may make different choices choices we would not make for ourselves, choices we may
disapprove of, even choices that may shock or offend or anger us. However, choices are
not to be legally prohibited merely because they are different, and the right to disagree and
debate about important questions of public policy is a core value protected by our Bill of
Rights. Indeed, our democracy is built on genuine recognition of, and respect for, diversity
and difference in opinion.
Since ancient times, society has grappled with deep disagreements about the
definitions and demands of morality. In many cases, where moral convictions are
concerned, harmony among those theoretically opposed is an insurmountable goal. Yet
herein lies the paradox philosophical justifications about what is moral are indispensable
and yet at the same time powerless to create agreement. This Court recognizes,
however, that practical solutions are preferable to ideological stalemates; accommodation
is better than intransigence; reason more worthy than rhetoric. This will allow persons of
diverse viewpoints to live together, if not harmoniously, then, at least, civilly.

Factual Background
 This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an
application for a writ of preliminary mandatory injunction, filed by Ang Ladlad LGBT
Party (Ang Ladlad) against the Resolutions of the Commission on Elections (COMELEC)
dated November 11, 2009[2] (the First Assailed Resolution) and December 16, 2009[3] (the
Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed
Resolutions). The case has its roots in the COMELECs refusal to accredit Ang Ladlad as a
party-list organization under Republic Act (RA) No. 7941, otherwise known as the Party-
List System Act.[4]

Ang Ladlad is an organization composed of men and women who identify

themselves as lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs).
Incorporated in 2003, Ang Ladlad first applied for registration with the COMELEC in
2006. The application for accreditation was denied on the ground that the organization had
no substantial membership base. On August 17, 2009, Ang Ladlad again filed a
Petition[5] for registration with the COMELEC.

Before the COMELEC, petitioner argued that the LGBT community is a

marginalized and under-represented sector that is particularly disadvantaged because of
their sexual orientation and gender identity; that LGBTs are victims of exclusion,
discrimination, and violence; that because of negative societal attitudes, LGBTs are
constrained to hide their sexual orientation; and that Ang Ladlad complied with the 8-point
guidelines enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v.
Commission on Elections.[6] Ang Ladlad laid out its national membership base consisting
of individual members and organizational supporters, and outlined its platform of
governance.[7]

On November 11, 2009, after admitting the petitioners evidence, the COMELEC
(Second Division) dismissed the Petition on moral grounds, stating that:
x x x This Petition is dismissible on moral grounds. Petitioner defines the
Filipino Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus:

x x x a marginalized and under-represented sector that is

particularly disadvantaged because of their sexual orientation and
gender identity.
and proceeded to define sexual orientation as that which:
 x x x refers to a persons capacity for profound emotional,
affectional and sexual attraction to, and intimate and sexual
relations with, individuals of a different gender, of the same
gender, or more than one gender.

This definition of the LGBT sector makes it crystal clear that petitioner tolerates
immorality which offends religious beliefs. In Romans 1:26, 27, Paul wrote:

For this cause God gave them up into vile affections, for even
their women did change the natural use into that which is against
nature: And likewise also the men, leaving the natural use of the
woman, burned in their lust one toward another; men with men
working that which is unseemly, and receiving in themselves that
recompense of their error which was meet.

In the Koran, the hereunder verses are pertinent:

For ye practice your lusts on men in preference to women ye are indeed a

people transgressing beyond bounds. (7.81) And we rained down on them
a shower (of brimstone): Then see what was the end of those who indulged
in sin and crime! (7:84) He said: O my Lord! Help Thou me against people
who do mischief (29:30).

As correctly pointed out by the Law Department in its Comment dated October
2, 2008:

The ANG LADLAD apparently advocates sexual immorality as

indicated in the Petitions par. 6F: Consensual partnerships or
relationships by gays and lesbians who are already of age. It is
further indicated in par. 24 of the Petition which waves for the
record: In 2007, Men Having Sex with Men or MSMs in
the Philippines were estimated as 670,000 (Genesis 19 is the
history of Sodom and Gomorrah).

Laws are deemed incorporated in every contract, permit, license,

relationship, or accreditation. Hence, pertinent provisions of the
Civil Code and the Revised Penal Code are deemed part of the
requirement to be complied with for accreditation.

ANG LADLAD collides with Article 695 of the Civil Code

which defines nuisance as Any act, omission, establishment,
 business, condition of property, or anything else which x x x (3)
shocks, defies; or disregards decency or morality x x x

It also collides with Article 1306 of the Civil Code: The

contracting parties may establish such stipulations, clauses, terms
and conditions as they may deem convenient, provided they are
not contrary to law, morals, good customs, public order or public
policy. Art 1409 of the Civil Code provides that Contracts whose
cause, object or purpose is contrary to law, morals, good customs,
public order or public policy are inexistent and void from the
beginning.

Finally to safeguard the morality of the Filipino community, the Revised Penal
Code, as amended, penalizes Immoral doctrines, obscene publications and
exhibitions and indecent shows as follows:

Art. 201. Immoral doctrines, obscene publications and

exhibitions, and indecent shows. The penalty of prision mayor or
a fine ranging from six thousand to twelve thousand pesos, or
both such imprisonment and fine, shall be imposed upon:

1. Those who shall publicly expound or proclaim doctrines

openly contrary to public morals;

2. (a) The authors of obscene literature, published with their

knowledge in any form; the editors publishing such literature; and
the owners/operators of the establishment selling the same;

(b) Those who, in theaters, fairs, cinematographs or any other

place, exhibit indecent or immoral plays, scenes, acts or shows, it
being understood that the obscene literature or indecent or
immoral plays, scenes, acts or shows, whether live or in film,
which are prescribed by virtue hereof, shall include those which:
(1) glorify criminals or condone crimes; (2) serve no other
purpose but to satisfy the market for violence, lust or
pornography; (3) offend any race or religion; (4) tend to abet
traffic in and use of prohibited drugs; and (5) are contrary to law,
public order, morals, good customs, established policies, lawful
orders, decrees and edicts.
 3. Those who shall sell, give away or exhibit films, prints,
engravings, sculpture or literature which are offensive to morals.

Petitioner should likewise be denied accreditation not only for advocating

immoral doctrines but likewise for not being truthful when it said that it or any
of its nominees/party-list representatives have not violated or failed to comply
with laws, rules, or regulations relating to the elections.

Furthermore, should this Commission grant the petition, we will be exposing our youth
to an environment that does not conform to the teachings of our faith. Lehman
Strauss, a famous bible teacher and writer in the U.S.A. said in one article
that older practicing homosexuals are a threat to the youth. As an agency of the
government, ours too is the States avowed duty under Section 13, Article II of
the Constitution to protect our youth from moral and spiritual degradation.[8]

When Ang Ladlad sought reconsideration,[9] three commissioners voted to overturn

the First Assailed Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento,
and Armando Velasco), while three commissioners voted to deny Ang Ladlads Motion for
Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R.
Yusoph). The COMELEC Chairman, breaking the tie and speaking for the majority in his
Separate Opinion, upheld the First Assailed Resolution, stating that:

I. The Spirit of Republic Act No. 7941

Ladlad is applying for accreditation as a sectoral party in the party-list system.

Even assuming that it has properly proven its under-representation and
marginalization, it cannot be said that Ladlads expressed sexual orientations per
se would benefit the nation as a whole.

Section 2 of the party-list law unequivocally states that the purpose of the party-
list system of electing congressional representatives is to enable Filipino citizens
belonging to marginalized and under-represented sectors, organizations and
parties, and who lack well-defined political constituencies but who could
contribute to the formulation and enactment of appropriate legislation that will
benefit the nation as a whole, to become members of the House of
Representatives.

If entry into the party-list system would depend only on the ability of an
organization to represent its constituencies, then all representative organizations
would have found themselves into the party-list race. But that is not the intention
of the framers of the law. The party-list system is not a tool to advocate tolerance
and acceptance of misunderstood persons or groups of persons. Rather, the
party-list system is a tool for the realization of aspirations of marginalized
individuals whose interests are also the nations only that their interests have
not been brought to the attention of the nation because of their under
representation. Until the time comes when Ladlad is able to justify that
having mixed sexual orientations and transgender identities is beneficial to
the nation, its application for accreditation under the party-list system will
remain just that.

II. No substantial differentiation

In the United States, whose equal protection doctrine pervades Philippine

jurisprudence, courts do not recognize lesbians, gays, homosexuals, and
bisexuals (LGBT) as a special class of individuals. x x xSignificantly, it has also
been held that homosexuality is not a constitutionally protected fundamental
right, and that nothing in the U.S. Constitution discloses a comparable intent to
protect or promote the social or legal equality of homosexual relations, as in the
case of race or religion or belief.

xxxx

Thus, even if societys understanding, tolerance, and acceptance of LGBTs is

elevated, there can be no denying that Ladlad constituencies are still males and
females, and they will remain either male or female protected by the same
Bill of Rights that applies to all citizens alike.

xxxx

IV. Public Morals

x x x There is no question about not imposing on Ladlad Christian or Muslim

religious practices. Neither is there any attempt to any particular religious
groups moral rules on Ladlad. Rather, what are being adopted as moral
parameters and precepts are generally accepted public morals. They are
possibly religious-based, but as a society, the Philippines cannot ignore its
more than 500 years of Muslim and Christian upbringing, such that some
moral precepts espoused by said religions have sipped [sic] into society and
these are not publicly accepted moral norms.
 V. Legal Provisions

But above morality and social norms, they have become part of the law of the
land. Article 201 of the Revised Penal Code imposes the penalty of prision
mayor upon Those who shall publicly expound or proclaim doctrines openly
contrary to public morals. It penalizes immoral doctrines, obscene publications
and exhibition and indecent shows. Ang Ladlad apparently falls under these
legal provisions. This is clear from its Petitions paragraph 6F: Consensual
partnerships or relationships by gays and lesbians who are already of age It is
further indicated in par. 24 of the Petition which waves for the record: In
2007, Men Having Sex with Men or MSMs in the Philippines were estimated
as 670,000. Moreoever, Article 694 of the Civil Code defines nuisance as any
act, omission x x x or anything else x x x which shocks, defies or disregards
decency or morality x x x. These are all unlawful.[10]

On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the
Assailed Resolutions and direct the COMELEC to grant Ang Ladlads application for
accreditation.Ang Ladlad also sought the issuance ex parte of a preliminary mandatory
injunction against the COMELEC, which had previously announced that it would begin
printing the final ballots for the May 2010 elections by January 25, 2010.

On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its
Comment on behalf of COMELEC not later than 12:00 noon of January 11,
2010.[11] Instead of filing a Comment, however, the OSG filed a Motion for Extension,
requesting that it be given until January 16, 2010 to Comment.[12] Somewhat surprisingly,
the OSG later filed a Comment in support of petitioners application.[13] Thus, in order to
give COMELEC the opportunity to fully ventilate its position, we required it to file its own
comment.[14] The COMELEC, through its Law Department, filed its Comment
on February 2, 2010.[15]

In the meantime, due to the urgency of the petition, we issued a temporary

restraining order on January 12, 2010, effective immediately and continuing until further
orders from this Court, directing the COMELEC to cease and desist from implementing
the Assailed Resolutions.[16]

Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion
to Intervene or to Appear as Amicus Curiae, attaching thereto its Comment-in-
Intervention.[17]The CHR opined that the denial of Ang Ladlads petition on moral grounds
violated the standards and principles of the Constitution, the Universal Declaration of
Human Rights (UDHR), and the International Covenant on Civil and Political Rights
(ICCPR). On January 19, 2010, we granted the CHRs motion to intervene.

On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene[18] which
motion was granted on February 2, 2010.[19]

The Parties Arguments

Ang Ladlad argued that the denial of accreditation, insofar as it justified the
exclusion by using religious dogma, violated the constitutional guarantees against the
establishment of religion. Petitioner also claimed that the Assailed Resolutions
contravened its constitutional rights to privacy, freedom of speech and assembly, and equal
protection of laws, as well as constituted violations of the Philippines international
obligations against discrimination based on sexual orientation.

The OSG concurred with Ang Ladlads petition and argued that the COMELEC erred in
denying petitioners application for registration since there was no basis for COMELECs
allegations of immorality. It also opined that LGBTs have their own special interests and
concerns which should have been recognized by the COMELEC as a separate
classification. However, insofar as the purported violations of petitioners freedom of
speech, expression, and assembly were concerned, the OSG maintained that there had been
no restrictions on these rights.

In its Comment, the COMELEC reiterated that petitioner does not have a concrete
and genuine national political agenda to benefit the nation and that the petition was validly
dismissed on moral grounds. It also argued for the first time that the LGBT sector is not
among the sectors enumerated by the Constitution and RA 7941, and that petitioner made
untruthful statements in its petition when it alleged its national existence contrary to actual
verification reports by COMELECs field personnel.

Our Ruling

We grant the petition.

Compliance with the Requirements of the
Constitution and Republic Act No. 7941

The COMELEC denied Ang Ladlads application for registration on the ground that
the LGBT sector is neither enumerated in the Constitution and RA 7941, nor is it associated
with or related to any of the sectors in the enumeration.

Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the
proposition that only those sectors specifically enumerated in the law or related to said
sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and professionals) may be
registered under the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW
Labor Party v. Commission on Elections,[20] the enumeration of marginalized and under-
represented sectors is not exclusive. The crucial element is not whether a sector is
specifically enumerated, but whether a particular organization complies with the
requirements of the Constitution and RA 7941.
Respondent also argues that Ang Ladlad made untruthful statements in its petition
when it alleged that it had nationwide existence through its members and affiliate
organizations. The COMELEC claims that upon verification by its field personnel, it was
shown that save for a few isolated places in the country, petitioner does not exist in almost
all provinces in the country.[21]
This argument that petitioner made untruthful statements in its petition when it
alleged its national existence is a new one; previously, the COMELEC claimed that
petitioner was not being truthful when it said that it or any of its nominees/party-list
representatives have not violated or failed to comply with laws, rules, or regulations
relating to the elections. Nowhere was this ground for denial of petitioners accreditation
mentioned or even alluded to in the Assailed Resolutions. This, in itself, is quite curious,
considering that the reports of petitioners alleged non-existence were already available to
the COMELEC prior to the issuance of the First Assailed Resolution. At best, this is
irregular procedure; at worst, a belated afterthought, a change in respondents theory, and a
serious violation of petitioners right to procedural due process.

Nonetheless, we find that there has been no misrepresentation. A cursory perusal

of Ang Ladlads initial petition shows that it never claimed to exist in each province of
the Philippines. Rather, petitioner alleged that the LGBT community in the Philippines was
estimated to constitute at least 670,000 persons; that it had 16,100 affiliates and members
around the country, and 4,044 members in its electronic discussion group.[22] Ang
Ladlad also represented itself to be a national LGBT umbrella organization with affiliates
around the Philippines composed of the following LGBT networks:

Abra Gay Association

Aklan Butterfly Brigade (ABB) Aklan
Albay Gay Association
Arts Center of Cabanatuan City Nueva Ecija
Boys Legion Metro Manila
Cagayan de Oro People Like Us (CDO PLUS)
Cant Live in the Closet, Inc. (CLIC) Metro Manila
Cebu Pride Cebu City
Circle of Friends
Dipolog Gay Association Zamboanga del Norte
Gay, Bisexual, & Transgender Youth Association (GABAY)
Gay and Lesbian Activists Network for Gender Equality (GALANG)
Metro Manila
Gay Mens Support Group (GMSG) Metro Manila
Gay United for Peace and Solidarity (GUPS) Lanao del Norte
Iloilo City Gay Association Iloilo City
Kabulig Writers Group Camarines Sur
Lesbian Advocates Philippines, Inc. (LEAP)
LUMINA Baguio City
Marikina Gay Association Metro Manila
Metropolitan Community Church (MCC) Metro Manila
Naga City Gay Association Naga City
ONE BACARDI
Order of St. Aelred (OSAe) Metro Manila
PUP LAKAN
RADAR PRIDEWEAR
Rainbow Rights Project (R-Rights), Inc. Metro Manila
San Jose del Monte Gay Association Bulacan
Sining Kayumanggi Royal Family Rizal
Society of Transexual Women of the Philippines (STRAP)
Metro Manila
Soul Jive Antipolo, Rizal
The Link Davao City
Tayabas Gay Association Quezon
Womens Bisexual Network Metro Manila
 Zamboanga Gay Association Zamboanga City[23]

Since the COMELEC only searched for the names ANG LADLAD LGBT
or LADLAD LGBT, it is no surprise that they found that petitioner had no presence in any
of these regions. In fact, if COMELECs findings are to be believed, petitioner does not
even exist in Quezon City, which is registered as Ang Ladlads principal place of business.

Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its
compliance with the legal requirements for accreditation. Indeed, aside from COMELECs
moral objection and the belated allegation of non-existence, nowhere in the records has the
respondent ever found/ruled that Ang Ladlad is not qualified to register as a party-list
organization under any of the requisites under RA 7941 or the guidelines in Ang Bagong
Bayani. The difference, COMELEC claims, lies in Ang Ladlads morality, or lack thereof.

Religion as the Basis for Refusal to Accept Ang

Ladlads Petition for Registration

Our Constitution provides in Article III, Section 5 that [n]o law shall be made
respecting an establishment of religion, or prohibiting the free exercise thereof. At bottom,
what our non-establishment clause calls for is government neutrality in religious
matters.[24] Clearly, governmental reliance on religious justification is inconsistent with this
policy of neutrality.[25] We thus find that it was grave violation of the non-establishment
clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang
Ladlad.

Rather than relying on religious belief, the legitimacy of the Assailed Resolutions
should depend, instead, on whether the COMELEC is able to advance some justification
for its rulings beyond mere conformity to religious doctrine. Otherwise stated, government
must act for secular purposes and in ways that have primarily secular effects. As we held
in Estrada v. Escritor:[26]

x x x The morality referred to in the law is public and necessarily secular, not
religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as
expressed in public debate may influence the civil public order but public moral
disputes may be resolved only on grounds articulable in secular terms."
 Otherwise, if government relies upon religious beliefs in formulating public
policies and morals, the resulting policies and morals would require conformity
to what some might regard as religious programs or agenda. The non-believers
would therefore be compelled to conform to a standard of conduct buttressed by
a religious belief, i.e., to a "compelled religion," anathema to religious freedom.
Likewise, if government based its actions upon religious beliefs, it would tacitly
approve or endorse that belief and thereby also tacitly disapprove contrary
religious or non-religious views that would not support the policy. As a result,
government will not provide full religious freedom for all its citizens, or even
make it appear that those whose beliefs are disapproved are second-class
citizens.
In other words, government action, including its proscription of immorality as
expressed in criminal law like concubinage, must have a secular purpose. That
is, the government proscribes this conduct because it is "detrimental (or
dangerous) to those conditions upon which depend the existence and progress
of human society" and not because the conduct is proscribed by the beliefs of
one religion or the other. Although admittedly, moral judgments based on
religion might have a compelling influence on those engaged in public
deliberations over what actions would be considered a moral disapprobation
punishable by law. After all, they might also be adherents of a religion and thus
have religious opinions and moral codes with a compelling influence on them;
the human mind endeavors to regulate the temporal and spiritual institutions of
society in a uniform manner, harmonizing earth with heaven. Succinctly put, a
law could be religious or Kantian or Aquinian or utilitarian in its deepest roots,
but it must have an articulable and discernible secular purpose and justification
to pass scrutiny of the religion clauses. x x x Recognizing the religious nature of
the Filipinos and the elevating influence of religion in society, however, the
Philippine constitution's religion clauses prescribe not a strict but a benevolent
neutrality. Benevolent neutrality recognizes that government must pursue its
secular goals and interests but at the same time strive to uphold religious liberty
to the greatest extent possible within flexible constitutional limits. Thus,
although the morality contemplated by laws is secular, benevolent neutrality
could allow for accommodation of morality based on religion, provided it does
not offend compelling state interests.[27]

Public Morals as a Ground to Deny Ang

Ladlads Petition for Registration
 Respondent suggests that although the moral condemnation of homosexuality and
homosexual conduct may be religion-based, it has long been transplanted into generally
accepted public morals. The COMELEC argues:

Petitioners accreditation was denied not necessarily because their group consists
of LGBTs but because of the danger it poses to the people especially the youth.
Once it is recognized by the government, a sector which believes that there is
nothing wrong in having sexual relations with individuals of the same gender is
a bad example. It will bring down the standard of morals we cherish in our
civilized society. Any society without a set of moral precepts is in danger of
losing its own existence.[28]

We are not blind to the fact that, through the years, homosexual conduct, and
perhaps homosexuals themselves, have borne the brunt of societal disapproval. It is not
difficult to imagine the reasons behind this censure religious beliefs, convictions about the
preservation of marriage, family, and procreation, even dislike or distrust of homosexuals
themselves and their perceived lifestyle. Nonetheless, we recall that the Philippines has not
seen fit to criminalize homosexual conduct. Evidently, therefore, these generally accepted
public morals have not been convincingly transplanted into the realm of law.[29]

The Assailed Resolutions have not identified any specific overt immoral act performed
by Ang Ladlad. Even the OSG agrees that there should have been a finding by the
COMELEC that the groups members have committed or are committing immoral
acts.[30] The OSG argues:

x x x A person may be sexually attracted to a person of the same gender, of a

different gender, or more than one gender, but mere attraction does not translate
to immoral acts. There is a great divide between thought and action. Reduction
ad absurdum. If immoral thoughts could be penalized, COMELEC would have
its hands full of disqualification cases against both the straights and the gays.
Certainly this is not the intendment of the law.[31]

Respondent has failed to explain what societal ills are sought to be prevented, or
why special protection is required for the youth. Neither has the COMELEC condescended
to justify its position that petitioners admission into the party-list system would be so
harmful as to irreparably damage the moral fabric of society. We, of course, do not suggest
that the state is wholly without authority to regulate matters concerning morality, sexuality,
and sexual relations, and we recognize that the government will and should continue to
restrict behavior considered detrimental to society. Nonetheless, we cannot countenance
advocates who, undoubtedly with the loftiest of intentions, situate morality on one end of
an argument or another, without bothering to go through the rigors of legal reasoning and
explanation. In this, the notion of morality is robbed of all value. Clearly then, the bare
invocation of morality will not remove an issue from our scrutiny.

We also find the COMELECs reference to purported violations of our penal and
civil laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code defines a
nuisance as any act, omission, establishment, condition of property, or anything else which
shocks, defies, or disregards decency or morality, the remedies for which are a prosecution
under the Revised Penal Code or any local ordinance, a civil action, or abatement without
judicial proceedings.[32] A violation of Article 201 of the Revised Penal Code, on the other
hand, requires proof beyond reasonable doubt to support a criminal conviction. It hardly
needs to be emphasized that mere allegation of violation of laws is not proof, and a mere
blanket invocation of public morals cannot replace the institution of civil or criminal
proceedings and a judicial determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a sufficient
governmental interest to justify exclusion of homosexuals from participation in the party-
list system. The denial of Ang Ladlads registration on purely moral grounds amounts more
to a statement of dislike and disapproval of homosexuals, rather than a tool to further any
substantial public interest.Respondents blanket justifications give rise to the inevitable
conclusion that the COMELEC targets homosexuals themselves as a class, not because of
any particular morally reprehensible act.It is this selective targeting that implicates our
equal protection clause.

Equal Protection

Despite the absolutism of Article III, Section 1 of our Constitution, which

provides nor shall any person be denied equal protection of the laws, courts have never
interpreted the provision as an absolute prohibition on classification. Equality, said
Aristotle, consists in the same treatment of similar persons.[33] The equal protection clause
guarantees that no person or class of persons shall be deprived of the same protection of
laws which is enjoyed by other persons or other classes in the same place and in like
circumstances.[34]
Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor
targets a suspect class, we will uphold the classification as long as it bears a rational
relationship to some legitimate government end.[35] In Central Bank Employees
Association, Inc. v. Banko Sentral ng Pilipinas,[36] we declared that [i]n our jurisdiction, the
standard of analysis of equal protection challenges x x x have followed the rational basis
test, coupled with a deferential attitude to legislative classifications and a reluctance to
invalidate a law unless there is a showing of a clear and unequivocal breach of the
Constitution.[37]

The COMELEC posits that the majority of the Philippine population considers
homosexual conduct as immoral and unacceptable, and this constitutes sufficient reason to
disqualify the petitioner. Unfortunately for the respondent, the Philippine electorate has
expressed no such belief. No law exists to criminalize homosexual behavior or expressions
or parties about homosexual behavior. Indeed, even if we were to assume that public
opinion is as the COMELEC describes it, the asserted state interest here that is, moral
disapproval of an unpopular minority is not a legitimate state interest that is sufficient to
satisfy rational basis review under the equal protection clause. The COMELECs
differentiation, and its unsubstantiated claim that Ang Ladlad cannot contribute to the
formulation of legislation that would benefit the nation, furthers no legitimate state interest
other than disapproval of or dislike for a disfavored group.

From the standpoint of the political process, the lesbian, gay, bisexual, and
transgender have the same interest in participating in the party-list system on the same basis
as other political parties similarly situated. State intrusion in this case is equally
burdensome. Hence, laws of general application should apply with equal force to LGBTs,
and they deserve to participate in the party-list system on the same basis as other
marginalized and under-represented sectors.

It bears stressing that our finding that COMELECs act of differentiating LGBTs
from heterosexuals insofar as the party-list system is concerned does not imply that any
other law distinguishing between heterosexuals and homosexuals under different
circumstances would similarly fail. We disagree with the OSGs position that homosexuals
are a class in themselves for the purposes of the equal protection clause.[38] We are not
prepared to single out homosexuals as a separate class meriting special or differentiated
treatment. We have not received sufficient evidence to this effect, and it is simply
unnecessary to make such a ruling today. Petitioner itself has merely demanded that it be
recognized under the same basis as all other groups similarly situated, and that the
COMELEC made an unwarranted and impermissible classification not justified by the
circumstances of the case.

Freedom of Expression and Association

Under our system of laws, every group has the right to promote its agenda and
attempt to persuade society of the validity of its position through normal democratic
means.[39] It is in the public square that deeply held convictions and differing opinions
should be distilled and deliberated upon. As we held in Estrada v. Escritor:[40]

In a democracy, this common agreement on political and moral ideas is distilled

in the public square. Where citizens are free, every opinion, every prejudice,
every aspiration, and every moral discernment has access to the public square
where people deliberate the order of their life together. Citizens are the bearers
of opinion, including opinion shaped by, or espousing religious belief, and these
citizens have equal access to the public square. In this representative democracy,
the state is prohibited from determining which convictions and moral judgments
may be proposed for public deliberation. Through a constitutionally designed
process, the people deliberate and decide. Majority rule is a necessary principle
in this democratic governance. Thus, when public deliberation on moral
judgments is finally crystallized into law, the laws will largely reflect the beliefs
and preferences of the majority, i.e., the mainstream or median
groups. Nevertheless, in the very act of adopting and accepting a constitution
and the limits it specifies including protection of religious freedom "not only for
a minority, however small not only for a majority, however large but for each
of us" the majority imposes upon itself a self-denying ordinance. It promises not
to do what it otherwise could do: to ride roughshod over the dissenting
minorities.

Freedom of expression constitutes one of the essential foundations of a democratic

society, and this freedom applies not only to those that are favorably received but also to
those that offend, shock, or disturb. Any restriction imposed in this sphere must be
proportionate to the legitimate aim pursued. Absent any compelling state interest, it is not
for the COMELEC or this Court to impose its views on the populace. Otherwise stated, the
COMELEC is certainly not free to interfere with speech for no better reason than
promoting an approved message or discouraging a disfavored one.

This position gains even more force if one considers that homosexual conduct is not
illegal in this country. It follows that both expressions concerning ones homosexuality and
the activity of forming a political association that supports LGBT individuals are protected
as well.
Other jurisdictions have gone so far as to categorically rule that even overwhelming
public perception that homosexual conduct violates public morality does not justify
criminalizing same-sex conduct.[41] European and United Nations judicial decisions have
ruled in favor of gay rights claimants on both privacy and equality grounds, citing general
privacy and equal protection provisions in foreign and international texts.[42] To the extent
that there is much to learn from other jurisdictions that have reflected on the issues we face
here, such jurisprudence is certainly illuminating. These foreign authorities, while not
formally binding on Philippine courts, may nevertheless have persuasive influence on the
Courts analysis.

In the area of freedom of expression, for instance, United States courts have ruled
that existing free speech doctrines protect gay and lesbian rights to expressive conduct. In
order to justify the prohibition of a particular expression of opinion, public institutions must
show that their actions were caused by something more than a mere desire to avoid
the discomfort and unpleasantness that always accompany an unpopular viewpoint.[43]

With respect to freedom of association for the advancement of ideas and beliefs, in
Europe, with its vibrant human rights tradition, the European Court of Human Rights
(ECHR) has repeatedly stated that a political party may campaign for a change in the law
or the constitutional structures of a state if it uses legal and democratic means and the
changes it proposes are consistent with democratic principles. The ECHR has emphasized
that political ideas that challenge the existing order and whose realization is advocated by
peaceful means must be afforded a proper opportunity of expression through the exercise
of the right of association, even if such ideas may seem shocking or unacceptable to the
authorities or the majority of the population.[44]A political group should not be hindered
solely because it seeks to publicly debate controversial political issues in order to find
solutions capable of satisfying everyone concerned.[45] Only if a political party incites
violence or puts forward policies that are incompatible with democracy does it fall outside
the protection of the freedom of association guarantee.[46]
 We do not doubt that a number of our citizens may believe that homosexual conduct
is distasteful, offensive, or even defiant. They are entitled to hold and express that view. On
the other hand, LGBTs and their supporters, in all likelihood, believe with equal fervor that
relationships between individuals of the same sex are morally equivalent to heterosexual
relationships. They, too, are entitled to hold and express that view. However, as far as this
Court is concerned, our democracy precludes using the religious or moral views of one part
of the community to exclude from consideration the values of other members of the
community.

Of course, none of this suggests the impending arrival of a golden age for gay rights
litigants. It well may be that this Decision will only serve to highlight the discrepancy
between the rigid constitutional analysis of this Court and the more complex moral
sentiments of Filipinos. We do not suggest that public opinion, even at its most liberal,
reflect a clear-cut strong consensus favorable to gay rights claims and we neither attempt
nor expect to affect individual perceptions of homosexuality through this Decision.

The OSG argues that since there has been neither prior restraint nor subsequent punishment
imposed on Ang Ladlad, and its members have not been deprived of their right to
voluntarily associate, then there has been no restriction on their freedom of expression or
association. The OSG argues that:

There was no utterance restricted, no publication censored, or any assembly

denied. [COMELEC] simply exercised its authority to review and verify the
qualifications of petitioner as a sectoral party applying to participate in the party-
list system. This lawful exercise of duty cannot be said to be a transgression of
Section 4, Article III of the Constitution.

xxxx

A denial of the petition for registration x x x does not deprive the members of
the petitioner to freely take part in the conduct of elections. Their right to vote
will not be hampered by said denial. In fact, the right to vote is a constitutionally-
guaranteed right which cannot be limited.

As to its right to be elected in a genuine periodic election, petitioner contends

that the denial of Ang Ladlads petition has the clear and immediate effect of
 limiting, if not outrightly nullifying the capacity of its members to fully and
equally participate in public life through engagement in the party list elections.

This argument is puerile. The holding of a public office is not a right but
a privilege subject to limitations imposed by law. x x x[47]
The OSG fails to recall that petitioner has, in fact, established its qualifications to
participate in the party-list system, and as advanced by the OSG itself the moral objection
offered by the COMELEC was not a limitation imposed by law. To the extent, therefore,
that the petitioner has been precluded, because of COMELECs action, from publicly
expressing its views as a political party and participating on an equal basis in the political
process with other equally-qualified party-list candidates, we find that there has, indeed,
been a transgression of petitioners fundamental rights.

Non-Discrimination and International Law

In an age that has seen international law evolve geometrically in scope and promise,
international human rights law, in particular, has grown dynamically in its attempt to bring
about a more just and humane world order. For individuals and groups struggling with
inadequate structural and governmental support, international human rights norms are
particularly significant, and should be effectively enforced in domestic legal systems so
that such norms may become actual, rather than ideal, standards of conduct.

Our Decision today is fully in accord with our international obligations to protect
and promote human rights. In particular, we explicitly recognize the principle of non-
discrimination as it relates to the right to electoral participation, enunciated in the UDHR
and the ICCPR.

The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:

Article 26

All persons are equal before the law and are entitled without any discrimination
to the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection
against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or
other status.
 In this context, the principle of non-discrimination requires that laws of general
application relating to elections be applied equally to all persons, regardless of sexual
orientation. Although sexual orientation is not specifically enumerated as a status or ratio
for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee has
opined that the reference to sex in Article 26 should be construed to include sexual
orientation.[48] Additionally, a variety of United Nations bodies have declared
discrimination on the basis of sexual orientation to be prohibited under various
international agreements.[49]

The UDHR provides:

Article 21.

(1) Everyone has the right to take part in the government of his country,
directly or through freely chosen representatives.
Likewise, the ICCPR states:

Article 25
Every citizen shall have the right and the opportunity, without any of the
distinctions mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely
chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be

by universal and equal suffrage and shall be held by secret ballot, guaranteeing
the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his

country.

As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral
participation is elaborated by the Human Rights Committee in its General Comment No.
25 (Participation in Public Affairs and the Right to Vote) as follows:
 1. Article 25 of the Covenant recognizes and protects the right of every
citizen to take part in the conduct of public affairs, the right to vote and to be
elected and the right to have access to public service. Whatever form of
constitution or government is in force, the Covenant requires States to adopt
such legislative and other measures as may be necessary to ensure that citizens
have an effective opportunity to enjoy the rights it protects. Article 25 lies at the
core of democratic government based on the consent of the people and in
conformity with the principles of the Covenant.

xxxx

15. The effective implementation of the right and the opportunity to

stand for elective office ensures that persons entitled to vote have a free choice
of candidates. Any restrictions on the right to stand for election, such as
minimum age, must be justifiable on objective and reasonable criteria. Persons
who are otherwise eligible to stand for election should not be excluded by
unreasonable or discriminatory requirements such as education, residence or
descent, or by reason of political affiliation. No person should suffer
discrimination or disadvantage of any kind because of that person's candidacy.
States parties should indicate and explain the legislative provisions which
exclude any group or category of persons from elective office.[50]

We stress, however, that although this Court stands willing to assume the
responsibility of giving effect to the Philippines international law obligations, the blanket
invocation of international law is not the panacea for all social ills. We refer now to the
petitioners invocation of the Yogyakarta Principles (the Application of International
Human Rights Law In Relation to Sexual Orientation and Gender Identity),[51] which
petitioner declares to reflect binding principles of international law.

At this time, we are not prepared to declare that these Yogyakarta Principles contain
norms that are obligatory on the Philippines. There are declarations and obligations
outlined in said Principles which are not reflective of the current state of international law,
and do not find basis in any of the sources of international law enumerated under Article
38(1) of the Statute of the International Court of Justice.[52] Petitioner has not undertaken
any objective and rigorous analysis of these alleged principles of international law to
ascertain their true status.
 We also hasten to add that not everything that society or a certain segment of society
wants or demands is automatically a human right. This is not an arbitrary human
intervention that may be added to or subtracted from at will. It is unfortunate that much of
what passes for human rights today is a much broader context of needs that identifies many
social desires as rights in order to further claims that international law obliges states to
sanction these innovations. This has the effect of diluting real human rights, and is a result
of the notion that if wants are couched in rights language, then they are no longer
controversial.

Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a
declaration formulated by various international law professors, are at best de lege
ferenda and do not constitute binding obligations on the Philippines. Indeed, so much of
contemporary international law is characterized by the soft law nomenclature, i.e.,
international law is full of principles that promote international cooperation, harmony, and
respect for human rights, most of which amount to no more than well-meaning desires,
without the support of either State practice or opinio juris.[53]

As a final note, we cannot help but observe that the social issues presented by this
case are emotionally charged, societal attitudes are in flux, even the psychiatric and
religious communities are divided in opinion. This Courts role is not to impose its own
view of acceptable behavior. Rather, it is to apply the Constitution and laws as best as it
can, uninfluenced by public opinion, and confident in the knowledge that our democracy
is resilient enough to withstand vigorous debate.

WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission

on Elections dated November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL)
are hereby SET ASIDE. The Commission on Elections is directed to GRANT petitioners
application for party-list accreditation.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 195649 April 16, 2013

CASAN MACODE MAQUILING, Petitioner,
vs.
COMMISSION ON ELECTIONS, ROMMEL ARNADO y CAGOCO, LINOG G.
BALUA, Respondents.

DECISION

SERENO, CJ.:

THE CASE

This is a Petition for Certiorari ender Rule 64 in conjunction with Rule 65 of the Rules of Court to
review the Resolutions of the Commission on Elections (COMELEC). The Resolution1 in SPA No.
10-1 09(DC) of the COMELEC First Division dated 5 October 201 0 is being assailed for applying
Section 44 of the Local Government Code while the Resolution2 of the COMELEC En Banc dated 2
February 2011 is being questioned for finding that respondent Rommel Arnado y Cagoco
(respondent Arnado/Arnado) is solely a Filipino citizen qualified to run for public office despite his
continued use of a U.S. passport.

FACTS

Respondent Arnado is a natural born Filipino citizen.3 However, as a consequence of his subsequent
naturalization as a citizen of the United States of America, he lost his Filipino citizenship. Arnado
applied for repatriation under Republic Act (R.A.) No. 9225 before the Consulate General of the
Philippines in San Franciso, USA and took the Oath of Allegiance to the Republic of the Philippines
on 10 July 2008.4 On the same day an Order of Approval of his Citizenship Retention and Re-
acquisition was issued in his favor.5

The aforementioned Oath of Allegiance states:

I, Rommel Cagoco Arnado, solemnly swear that I will support and defend the Constitution of the
Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted
authorities of the Philippines and I hereby declare that I recognize and accept the supreme authority
of the Philippines and will maintain true faith and allegiance thereto; and that I impose this obligation
upon myself voluntarily without mental reservation or purpose of evasion.6

On 3 April 2009 Arnado again took his Oath of Allegiance to the Republic and executed an Affidavit
of Renunciation of his foreign citizenship, which states:

I, Rommel Cagoco Arnado, do solemnly swear that I absolutely and perpetually renounce all
allegiance and fidelity to the UNITED STATES OF AMERICA of which I am a citizen, and I divest
myself of full employment of all civil and political rights and privileges of the United States of
America.

I solemnly swear that all the foregoing statement is true and correct to the best of my knowledge and
belief.7

On 30 November 2009, Arnado filed his Certificate of Candidacy for Mayor of Kauswagan, Lanao del
Norte, which contains, among others, the following statements:

I am a natural born Filipino citizen / naturalized Filipino citizen.

I am not a permanent resident of, or immigrant to, a foreign country.

I am eligible for the office I seek to be elected to.

I will support and defend the Constitution of the Republic of the Philippines and will maintain true
faith and allegiance thereto. I will obey the laws, legal orders and decrees promulgated by the duly
constituted authorities.

I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion.8

On 28 April 2010, respondent Linog C. Balua (Balua), another mayoralty candidate, filed a petition to
disqualify Arnado and/or to cancel his certificate of candidacy for municipal mayor of Kauswagan,
Lanao del Norte in connection with the 10 May 2010 local and national elections.9

Respondent Balua contended that Arnado is not a resident of Kauswagan, Lanao del Norte and that
he is a foreigner, attaching thereto a certification issued by the Bureau of Immigration dated 23 April
2010 indicating the nationality of Arnado as "USA-American."10To further bolster his claim of
Arnados US citizenship, Balua presented in his Memorandum a computer-generated travel
record11 dated 03 December 2009 indicating that Arnado has been using his US Passport No.
057782700 in entering and departing the Philippines. The said record shows that Arnado left the
country on 14 April 2009 and returned on 25 June 2009, and again departed on 29 July 2009,
arriving back in the Philippines on 24 November 2009.

Balua likewise presented a certification from the Bureau of Immigration dated 23 April 2010,
certifying that the name "Arnado, Rommel Cagoco" appears in the available Computer
Database/Passenger manifest/IBM listing on file as of 21 April 2010, with the following pertinent
travel records:

DATE OF Arrival : 01/12/2010

NATIONALITY : USA-AMERICAN

PASSPORT : 057782700

DATE OF Arrival : 03/23/2010

NATIONALITY : USA-AMERICAN

PASSPORT : 05778270012

On 30 April 2010, the COMELEC (First Division) issued an Order13 requiring the respondent to
personally file his answer and memorandum within three (3) days from receipt thereof.

After Arnado failed to answer the petition, Balua moved to declare him in default and to present
evidence ex-parte.

Neither motion was acted upon, having been overtaken by the 2010 elections where Arnado
garnered the highest number of votes and was subsequently proclaimed as the winning candidate
for Mayor of Kauswagan, Lanao del Norte.
It was only after his proclamation that Arnado filed his verified answer, submitting the following
documents as evidence:14

1. Affidavit of Renunciation and Oath of Allegiance to the Republic of the Philippines dated
03 April 2009;

2. Joint-Affidavit dated 31 May 2010 of Engr. Virgil Seno, Virginia Branzuela, Leoncio
Daligdig, and Jessy Corpin, all neighbors of Arnado, attesting that Arnado is a long-time
resident of Kauswagan and that he has been conspicuously and continuously residing in his
familys ancestral house in Kauswagan;

3. Certification from the Punong Barangay of Poblacion, Kauswagan, Lanao del Norte dated
03 June 2010 stating that Arnado is a bona fide resident of his barangay and that Arnado
went to the United States in 1985 to work and returned to the Philippines in 2009;

4. Certification dated 31 May 2010 from the Municipal Local Government Operations Office
of Kauswagan stating that Dr. Maximo P. Arnado, Sr. served as Mayor of Kauswagan, from
January 1964 to June 1974 and from 15 February 1979 to 15 April 1986; and

5. Voter Certification issued by the Election Officer of Kauswagan certifying that Arnado has
been a registered voter of Kauswagan since 03 April 2009.

THE RULING OF THE COMELEC FIRST DIVISION

Instead of treating the Petition as an action for the cancellation of a certificate of candidacy based on
misrepresentation,15 the COMELEC First Division considered it as one for disqualification. Baluas
contention that Arnado is a resident of the United States was dismissed upon the finding that "Balua
failed to present any evidence to support his contention,"16 whereas the First Division still could "not
conclude that Arnado failed to meet the one-year residency requirement under the Local
Government Code."17

In the matter of the issue of citizenship, however, the First Division disagreed with Arnados claim
that he is a Filipino citizen.18

We find that although Arnado appears to have substantially complied with the requirements of R.A.
No. 9225, Arnados act of consistently using his US passport after renouncing his US citizenship on
03 April 2009 effectively negated his Affidavit of Renunciation.

xxxx

Arnados continued use of his US passport is a strong indication that Arnado had no real intention to
renounce his US citizenship and that he only executed an Affidavit of Renunciation to enable him to
run for office. We cannot turn a blind eye to the glaring inconsistency between Arnados unexplained
use of a US passport six times and his claim that he re-acquired his Philippine citizenship and
renounced his US citizenship. As noted by the Supreme Court in the Yu case, "a passport is defined
as an official document of identity and nationality issued to a person intending to travel or sojourn in
foreign countries." Surely, one who truly divested himself of US citizenship would not continue to
avail of privileges reserved solely for US nationals.19

The dispositive portion of the Resolution rendered by the COMELEC

First Division reads:

WHEREFORE, in view of the foregoing, the petition for disqualification and/or to cancel the
certificate of candidacy of Rommel C. Arnado is hereby GRANTED. Rommel C. Arnados
proclamation as the winning candidate for Municipal Mayor of Kauswagan, Lanao del Nore is hereby
ANNULLED. Let the order of succession under Section 44 of the Local Government Code of 1991
take effect.20

The Motion for Reconsideration and

the Motion for Intervention

Arnado sought reconsideration of the resolution before the COMELEC En Banc on the ground that
"the evidence is insufficient to justify the Resolution and that the said Resolution is contrary to
law."21 He raised the following contentions:22

1. The finding that he is not a Filipino citizen is not supported by the evidence consisting of
his Oath of Allegiance and the Affidavit of Renunciation, which show that he has substantially
complied with the requirements of R.A. No. 9225;

2. The use of his US passport subsequent to his renunciation of his American citizenship is
not tantamount to a repudiation of his Filipino citizenship, as he did not perform any act to
swear allegiance to a country other than the Philippines;

3. He used his US passport only because he was not informed of the issuance of his
Philippine passport, and that he used his Philippine passport after he obtained it;

4. Baluas petition to cancel the certificate of candidacy of Arnado was filed out of time, and
the First Divisions treatment of the petition as one for disqualification constitutes grave
abuse of discretion amounting to excess of jurisdiction;23

5. He is undoubtedly the peoples choice as indicated by his winning the elections;

6. His proclamation as the winning candidate ousted the COMELEC from jurisdiction over
the case; and

7. The proper remedy to question his citizenship is through a petition for quo warranto, which
should have been filed within ten days from his proclamation.

Petitioner Casan Macode Maquiling (Maquiling), another candidate for mayor of Kauswagan, and
who garnered the second highest number of votes in the 2010 elections, intervened in the case and
filed before the COMELEC En Banc a Motion for Reconsideration together with an Opposition to
Arnados Amended Motion for Reconsideration. Maquiling argued that while the First Division
correctly disqualified Arnado, the order of succession under Section 44 of the Local Government
Code is not applicable in this case. Consequently, he claimed that the cancellation of Arnados
candidacy and the nullification of his proclamation, Maquiling, as the legitimate candidate who
obtained the highest number of lawful votes, should be proclaimed as the winner.

Maquiling simultaneously filed his Memorandum with his Motion for Intervention and his Motion for
Reconsideration. Arnado opposed all motions filed by Maquiling, claiming that intervention is
prohibited after a decision has already been rendered, and that as a second-placer, Maquiling
undoubtedly lost the elections and thus does not stand to be prejudiced or benefitted by the final
adjudication of the case.

RULING OF THE COMELEC EN BANC

In its Resolution of 02 February 2011, the COMELEC En Banc held that under Section 6 of Republic
Act No. 6646, the Commission "shall continue with the trial and hearing of the action, inquiry or
protest even after the proclamation of the candidate whose qualifications for office is questioned."

As to Maquilings intervention, the COMELEC En Banc also cited Section 6 of R.A. No. 6646 which
allows intervention in proceedings for disqualification even after elections if no final judgment has
been rendered, but went on further to say that Maquiling, as the second placer, would not be
prejudiced by the outcome of the case as it agrees with the dispositive portion of the Resolution of
the First Division allowing the order of succession under Section 44 of the Local Government Code
to take effect.

The COMELEC En Banc agreed with the treatment by the First Division of the petition as one for
disqualification, and ruled that the petition was filed well within the period prescribed by law,24 having
been filed on 28 April 2010, which is not later than 11 May 2010, the date of proclamation.

However, the COMELEC En Banc reversed and set aside the ruling of the First Division and granted
Arnados Motion for Reconsideration, on the following premises:

First:

By renouncing his US citizenship as imposed by R.A. No. 9225, the respondent embraced his
Philippine citizenship as though he never became a citizen of another country. It was at that time,
April 3, 2009, that the respondent became a pure Philippine Citizen again.

xxxx

The use of a US passport does not operate to revert back his status as a dual citizen prior to his
renunciation as there is no law saying such. More succinctly, the use of a US passport does not
operate to "un-renounce" what he has earlier on renounced. The First Divisions reliance in the case
of In Re: Petition for Habeas Corpus of Willy Yu v. Defensor-Santiago, et al. is misplaced. The
petitioner in the said case is a naturalized citizen who, after taking his oath as a naturalized Filipino,
applied for the renewal of his Portuguese passport. Strict policy is maintained in the conduct of
citizens who are not natural born, who acquire their citizenship by choice, thus discarding their
original citizenship. The Philippine State expects strict conduct of allegiance to those who choose to
be its citizens. In the present case, respondent is not a naturalized citizen but a natural born citizen
who chose greener pastures by working abroad and then decided to repatriate to supposedly help in
the progress of Kauswagan. He did not apply for a US passport after his renunciation. Thus the
mentioned case is not on all fours with the case at bar.

xxxx

The respondent presented a plausible explanation as to the use of his US passport. Although he
applied for a Philippine passport, the passport was only issued on June 18, 2009. However, he was
not notified of the issuance of his Philippine passport so that he was actually able to get it about
three (3) months later. Yet as soon as he was in possession of his Philippine passport, the
respondent already used the same in his subsequent travels abroad. This fact is proven by the
respondents submission of a certified true copy of his passport showing that he used the same for
his travels on the following dates: January 31, 2010, April 16, 2010, May 20, 2010, January 12,
2010, March 31, 2010 and June 4, 2010. This then shows that the use of the US passport was
because to his knowledge, his Philippine passport was not yet issued to him for his use. As probably
pressing needs might be undertaken, the respondent used whatever is within his control during that
time.25

In his Separate Concurring Opinion, COMELEC Chairman Sixto Brillantes cited that the use of
foreign passport is not one of the grounds provided for under Section 1 of Commonwealth Act No.
63 through which Philippine citizenship may be lost.

"The application of the more assimilative principle of continuity of citizenship is more appropriate in
this case. Under said principle, once a person becomes a citizen, either by birth or naturalization, it
is assumed that he desires to continue to be a citizen, and this assumption stands until he voluntarily
denationalizes or expatriates himself. Thus, in the instant case respondent after reacquiring his
Philippine citizenship should be presumed to have remained a Filipino despite his use of his
American passport in the absence of clear, unequivocal and competent proof of expatriation.
Accordingly, all doubts should be resolved in favor of retention of citizenship."26

On the other hand, Commissioner Rene V. Sarmiento dissented, thus:

Respondent evidently failed to prove that he truly and wholeheartedly abandoned his allegiance to
the United States. The latters continued use of his US passport and enjoyment of all the privileges
of a US citizen despite his previous renunciation of the afore-mentioned citizenship runs contrary to
his declaration that he chose to retain only his Philippine citizenship. Respondents submission with
the twin requirements was obviously only for the purpose of complying with the requirements for
running for the mayoralty post in connection with the May 10, 2010 Automated National and Local
Elections.

Qualifications for elective office, such as citizenship, are continuing requirements; once any of them
is lost during his incumbency, title to the office itself is deemed forfeited. If a candidate is not a
citizen at the time he ran for office or if he lost his citizenship after his election to office, he is
disqualified to serve as such. Neither does the fact that respondent obtained the plurality of votes for
the mayoralty post cure the latters failure to comply with the qualification requirements regarding his
citizenship.

Since a disqualified candidate is no candidate at all in the eyes of the law, his having received the
highest number of votes does not validate his election. It has been held that where a petition for
disqualification was filed before election against a candidate but was adversely resolved against him
after election, his having obtained the highest number of votes did not make his election valid. His
ouster from office does not violate the principle of vox populi suprema est lex because the
application of the constitutional and statutory provisions on disqualification is not a matter of
popularity. To apply it is to breath[e] life to the sovereign will of the people who expressed it when
they ratified the Constitution and when they elected their representatives who enacted the law.27

THE PETITION BEFORE THE COURT

Maquiling filed the instant petition questioning the propriety of declaring Arnado qualified to run for
public office despite his continued use of a US passport, and praying that Maquiling be proclaimed
as the winner in the 2010 mayoralty race in Kauswagan, Lanao del Norte.
Ascribing both grave abuse of discretion and reversible error on the part of the COMELEC En Banc
for ruling that Arnado is a Filipino citizen despite his continued use of a US passport, Maquiling now
seeks to reverse the finding of the COMELEC En Banc that Arnado is qualified to run for public
office.

Corollary to his plea to reverse the ruling of the COMELEC En Banc or to affirm the First Divisions
disqualification of Arnado, Maquiling also seeks the review of the applicability of Section 44 of the
Local Government Code, claiming that the COMELEC committed reversible error in ruling that "the
succession of the vice mayor in case the respondent is disqualified is in order."

There are three questions posed by the parties before this Court which will be addressed seriatim as
the subsequent questions hinge on the result of the first.

The first question is whether or not intervention is allowed in a disqualification case.

The second question is whether or not the use of a foreign passport after renouncing foreign
citizenship amounts to undoing a renunciation earlier made.

A better framing of the question though should be whether or not the use of a foreign passport after
renouncing foreign citizenship affects ones qualifications to run for public office.

The third question is whether or not the rule on succession in the Local Government Code is
applicable to this case.

OUR RULING

Intervention of a rival candidate in a

disqualification case is proper when
there has not yet been any
proclamation of the winner.

Petitioner Casan Macode Maquiling intervened at the stage when respondent Arnado filed a Motion
for Reconsideration of the First Division Resolution before the COMELEC En Banc. As the candidate
who garnered the second highest number of votes, Maquiling contends that he has an interest in the
disqualification case filed against Arnado, considering that in the event the latter is disqualified, the
votes cast for him should be considered stray and the second-placer should be proclaimed as the
winner in the elections.

It must be emphasized that while the original petition before the COMELEC is one for cancellation of
the certificate of candidacy and / or disqualification, the COMELEC First Division and the COMELEC
En Banc correctly treated the petition as one for disqualification.

The effect of a disqualification case is enunciated in Section 6 of R.A. No. 6646:

Sec. 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment to
be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such election, the Court or Commission shall
continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is strong.
Mercado v. Manzano28

clarified the right of intervention in a disqualification case. In that case, the Court said:

That petitioner had a right to intervene at that stage of the proceedings for the disqualification
against private respondent is clear from Section 6 of R.A. No. 6646, otherwise known as the
Electoral Reforms Law of 1987, which provides: Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If
for any reason a candidate is not declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such election, the Court or Commission
shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of guilt is strong. Under this provision,
intervention may be allowed in proceedings for disqualification even after election if there has yet
been no final judgment rendered.29

Clearly then, Maquiling has the right to intervene in the case. The fact that the COMELEC En Banc
has already ruled that Maquiling has not shown that the requisites for the exemption to the second-
placer rule set forth in Sinsuat v. COMELEC30 are present and therefore would not be prejudiced by
the outcome of the case, does not deprive Maquiling of the right to elevate the matter before this
Court.

Arnados claim that the main case has attained finality as the original petitioner and respondents
therein have not appealed the decision of the COMELEC En Banc, cannot be sustained. The
elevation of the case by the intervenor prevents it from attaining finality. It is only after this Court has
ruled upon the issues raised in this instant petition that the disqualification case originally filed by
Balua against Arnado will attain finality.

The use of foreign passport after renouncing ones foreign citizenship is a positive and
voluntary act of representation as to ones nationality and citizenship; it does not divest
Filipino citizenship regained by repatriation but it recants the Oath of Renunciation required
to qualify one to run for an elective position.

Section 5(2) of The Citizenship Retention and Re-acquisition Act of 2003 provides:

Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political
rights and be subject to all attendant liabilities and responsibilities under existing laws of the
Philippines and the following conditions:

xxxx

(2)Those seeking elective public in the Philippines shall meet the qualification for holding such public
office as required by the Constitution and existing laws and, at the time of the filing of the certificate
of candidacy, make a personal and sworn renunciation of any and all foreign before any public
officer authorized to administer an oath.

x x x31

Rommel Arnado took all the necessary steps to qualify to run for a public office. He took the Oath of
Allegiance and renounced his foreign citizenship. There is no question that after performing these
twin requirements required under Section 5(2) of R.A. No. 9225 or the Citizenship Retention and Re-
acquisition Act of 2003, he became eligible to run for public office.

Indeed, Arnado took the Oath of Allegiance not just only once but twice: first, on 10 July 2008 when
he applied for repatriation before the Consulate General of the Philippines in San Francisco, USA,
and again on 03 April 2009 simultaneous with the execution of his Affidavit of Renunciation. By
taking the Oath of Allegiance to the Republic, Arnado re-acquired his Philippine citizenship. At the
time, however, he likewise possessed American citizenship. Arnado had therefore become a dual
citizen.

After reacquiring his Philippine citizenship, Arnado renounced his American citizenship by executing
an Affidavit of Renunciation, thus completing the requirements for eligibility to run for public office.

By renouncing his foreign citizenship, he was deemed to be solely a Filipino citizen, regardless of
the effect of such renunciation under the laws of the foreign country.32

However, this legal presumption does not operate permanently and is open to attack when, after
renouncing the foreign citizenship, the citizen performs positive acts showing his continued
possession of a foreign citizenship.33

Arnado himself subjected the issue of his citizenship to attack when, after renouncing his foreign
citizenship, he continued to use his US passport to travel in and out of the country before filing his
certificate of candidacy on 30 November 2009. The pivotal question to determine is whether he was
solely and exclusively a Filipino citizen at the time he filed his certificate of candidacy, thereby
rendering him eligible to run for public office.

Between 03 April 2009, the date he renounced his foreign citizenship, and 30 November 2009, the
date he filed his COC, he used his US passport four times, actions that run counter to the affidavit of
renunciation he had earlier executed. By using his foreign passport, Arnado positively and voluntarily
represented himself as an American, in effect declaring before immigration authorities of both
countries that he is an American citizen, with all attendant rights and privileges granted by the United
States of America.

The renunciation of foreign citizenship is not a hollow oath that can simply be professed at any time,
only to be violated the next day. It requires an absolute and perpetual renunciation of the foreign
citizenship and a full divestment of all civil and political rights granted by the foreign country which
granted the citizenship.

Mercado v. Manzano34 already hinted at this situation when the Court declared:

His declarations will be taken upon the faith that he will fulfill his undertaking made under oath.
Should he betray that trust, there are enough sanctions for declaring the loss of his Philippine
citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-Santiago, we
sustained the denial of entry into the country of petitioner on the ground that, after taking his oath as
a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in
commercial documents executed abroad that he was a Portuguese national. A similar sanction can
be taken against anyone who, in electing Philippine citizenship, renounces his foreign nationality, but
subsequently does some act constituting renunciation of his Philippine citizenship.

While the act of using a foreign passport is not one of the acts enumerated in Commonwealth Act
No. 63 constituting renunciation and loss of Philippine citizenship,35 it is nevertheless an act which
repudiates the very oath of renunciation required for a former Filipino citizen who is also a citizen of
another country to be qualified to run for a local elective position.

When Arnado used his US passport on 14 April 2009, or just eleven days after he renounced his
American citizenship, he recanted his Oath of Renunciation36 that he "absolutely and perpetually
renounce(s) all allegiance and fidelity to the UNITED STATES OF AMERICA"37 and that he
"divest(s) himself of full employment of all civil and political rights and privileges of the United States
of America."38

We agree with the COMELEC En Banc that such act of using a foreign passport does not divest
Arnado of his Filipino citizenship, which he acquired by repatriation. However, by representing
himself as an American citizen, Arnado voluntarily and effectively reverted to his earlier status as a
dual citizen. Such reversion was not retroactive; it took place the instant Arnado represented himself
as an American citizen by using his US passport.

This act of using a foreign passport after renouncing ones foreign citizenship is fatal to Arnados bid
for public office, as it effectively imposed on him a disqualification to run for an elective local position.

Arnados category of dual citizenship is that by which foreign citizenship is acquired through a
positive act of applying for naturalization. This is distinct from those considered dual citizens by
virtue of birth, who are not required by law to take the oath of renunciation as the mere filing of the
certificate of candidacy already carries with it an implied renunciation of foreign citizenship.39 Dual
citizens by naturalization, on the other hand, are required to take not only the Oath of Allegiance to
the Republic of the Philippines but also to personally renounce foreign citizenship in order to qualify
as a candidate for public office.

By the time he filed his certificate of candidacy on 30 November 2009, Arnado was a dual citizen
enjoying the rights and privileges of Filipino and American citizenship. He was qualified to vote, but
by the express disqualification under Section 40(d) of the Local Government Code,40 he was not
qualified to run for a local elective position.

In effect, Arnado was solely and exclusively a Filipino citizen only for a period of eleven days, or
from 3 April 2009 until 14 April 2009, on which date he first used his American passport after
renouncing his American citizenship.

This Court has previously ruled that:

Qualifications for public office are continuing requirements and must be possessed not only at the
time of appointment or election or assumption of office but during the officer's entire tenure. Once
any of the required qualifications is lost, his title may be seasonably challenged. x x x.41

The citizenship requirement for elective public office is a continuing one. It must be possessed not
just at the time of the renunciation of the foreign citizenship but continuously. Any act which violates
the oath of renunciation opens the citizenship issue to attack.

We agree with the pronouncement of the COMELEC First Division that "Arnados act of consistently
using his US passport effectively negated his "Affidavit of Renunciation."42 This does not mean, that
he failed to comply with the twin requirements under R.A. No. 9225, for he in fact did.
It was after complying with the requirements that he performed positive acts which effectively
disqualified him from running for an elective public office pursuant to Section 40(d) of the Local
Government Code of 1991.

The purpose of the Local Government Code in disqualifying dual citizens from running for any
elective public office would be thwarted if we were to allow a person who has earlier renounced his
foreign citizenship, but who subsequently represents himself as a foreign citizen, to hold any public
office.

Arnado justifies the continued use of his US passport with the explanation that he was not notified of
the issuance of his Philippine passport on 18 June 2009, as a result of which he was only able to
obtain his Philippine passport three (3) months later.43

The COMELEC En Banc differentiated Arnado from Willy Yu, the Portuguese national who sought
naturalization as a Filipino citizen and later applied for the renewal of his Portuguese passport. That
Arnado did not apply for a US passport after his renunciation does not make his use of a US
passport less of an act that violated the Oath of Renunciation he took. It was still a positive act of
representation as a US citizen before the immigration officials of this country.

The COMELEC, in ruling favorably for Arnado, stated "Yet, as soon as he was in possession of his
Philippine passport, the respondent already used the same in his subsequent travels abroad."44 We
cannot agree with the COMELEC. Three months from June is September. If indeed, Arnado used
his Philippine passport as soon as he was in possession of it, he would not have used his US
passport on 24 November 2009.

Besides, Arnados subsequent use of his Philippine passport does not correct the fact that after he
renounced his foreign citizenship and prior to filing his certificate of candidacy, he used his US
passport. In the same way that the use of his foreign passport does not undo his Oath of
Renunciation, his subsequent use of his Philippine passport does not undo his earlier use of his US
passport.

Citizenship is not a matter of convenience. It is a badge of identity that comes with attendant civil
and political rights accorded by the state to its citizens. It likewise demands the concomitant duty to
maintain allegiance to ones flag and country. While those who acquire dual citizenship by choice are
afforded the right of suffrage, those who seek election or appointment to public office are required to
renounce their foreign citizenship to be deserving of the public trust. Holding public office demands
full and undivided allegiance to the Republic and to no other.

We therefore hold that Arnado, by using his US passport after renouncing his American citizenship,
has recanted the same Oath of Renunciation he took. Section 40(d) of the Local Government Code
applies to his situation. He is disqualified not only from holding the public office but even from
becoming a candidate in the May 2010 elections.

We now resolve the next issue.

Resolving the third issue necessitates revisiting Topacio v. Paredes45 which is the jurisprudential
spring of the principle that a second-placer cannot be proclaimed as the winner in an election
contest. This doctrine must be re-examined and its soundness once again put to the test to address
the ever-recurring issue that a second-placer who loses to an ineligible candidate cannot be
proclaimed as the winner in the elections.

The Facts of the case are as follows:

On June 4, 1912, a general election was held in the town of Imus, Province of Cavite, to fill the office
of municipal president. The petitioner, Felipe Topacio, and the respondent, Maximo Abad, were
opposing candidates for that office. Topacio received 430 votes, and Abad 281. Abad contested the
election upon the sole ground that Topacio was ineligible in that he was reelected the second time to
the office of the municipal president on June 4, 1912, without the four years required by Act No.
2045 having intervened.46

Abad thus questioned the eligibility of To p a c i o on the basis of a statutory prohibition for seeking a
second re-election absent the four year interruption.

The often-quoted phrase in Topacio v. Paredes is that "the wreath of victory cannot be transferred
from an ineligible candidate to any other candidate when the sole question is the eligibility of the one
receiving a plurality of the legally cast ballots."47

This phrase is not even the ratio decidendi; it is a mere obiter dictum. The Court was comparing "the
effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in
the elections x x x with that produced by declaring a person ineligible to hold such an office."

The complete sentence where the phrase is found is part of a comparison and contrast between the
two situations, thus:

Again, the effect of a decision that a candidate is not entitled to the office because of fraud or
irregularities in the elections is quite different from that produced by declaring a person ineligible to
hold such an office. In the former case the court, after an examination of the ballots may find that
some other person than the candidate declared to have received a plurality by the board of
canvassers actually received the greater number of votes, in which case the court issues its
mandamus to the board of canvassers to correct the returns accordingly; or it may find that the
manner of holding the election and the returns are so tainted with fraud or illegality that it cannot be
determined who received a plurality of the legally cast ballots. In the latter case, no question as to
the correctness of the returns or the manner of casting and counting the ballots is before the
deciding power, and generally the only result can be that the election fails entirely. In the former, we
have a contest in the strict sense of the word, because of the opposing parties are striving for
supremacy. If it be found that the successful candidate (according to the board of canvassers)
obtained a plurality in an illegal manner, and that another candidate was the real victor, the former
must retire in favor of the latter. In the other case, there is not, strictly speaking, a contest, as the
wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the
sole question is the eligibility of the one receiving a plurality of the legally cast ballots. In the one
case the question is as to who received a plurality of the legally cast ballots; in the other, the
question is confined to the personal character and circumstances of a single individual.48 (Emphasis
supplied)

Note that the sentence where the phrase is found starts with "In the other case, there is not, strictly
speaking, a contest" in contrast to the earlier statement, "In the former, we have a contest in the
strict sense of the word, because of the opposing parties are striving for supremacy."

The Court in Topacio v. Paredes cannot be said to have held that "the wreath of victory cannot be
transferred from an ineligible candidate to any other candidate when the sole question is the
eligibility of the one receiving a plurality of the legally cast ballots."

A proper reading of the case reveals that the ruling therein is that since the Court of First Instance is
without jurisdiction to try a disqualification case based on the eligibility of the person who obtained
the highest number of votes in the election, its jurisdiction being confined "to determine which of the
contestants has been duly elected" the judge exceeded his jurisdiction when he "declared that no
one had been legally elected president of the municipality of Imus at the general election held in that
town on 4 June 1912" where "the only question raised was whether or not Topacio was eligible to be
elected and to hold the office of municipal president."

The Court did not rule that Topacio was disqualified and that Abad as the second placer cannot be
proclaimed in his stead. The Court therein ruled:

For the foregoing reasons, we are of the opinion and so hold that the respondent judge exceeded his
jurisdiction in declaring in those proceedings that no one was elected municipal president of the
municipality of Imus at the last general election; and that said order and all subsequent proceedings
based thereon are null and void and of no effect; and, although this decision is rendered on
respondents' answer to the order to show cause, unless respondents raised some new and
additional issues, let judgment be entered accordingly in 5 days, without costs. So ordered.49

On closer scrutiny, the phrase relied upon by a host of decisions does not even have a legal basis to
stand on. It was a mere pronouncement of the Court comparing one process with another and
explaining the effects thereof. As an independent statement, it is even illogical.

Let us examine the statement:

"x x x the wreath of victory cannot be transferred from an ineligible candidate to any other candidate
when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots."

What prevents the transfer of the wreath of victory from the ineligible candidate to another
candidate?

When the issue being decided upon by the Court is the eligibility of the one receiving a plurality of
the legally cast ballots and ineligibility is thereafter established, what stops the Court from adjudging
another eligible candidate who received the next highest number of votes as the winner and
bestowing upon him that "wreath?"

An ineligible candidate who receives the highest number of votes is a wrongful winner. By express
legal mandate, he could not even have been a candidate in the first place, but by virtue of the lack of
material time or any other intervening circumstances, his ineligibility might not have been passed
upon prior to election date. Consequently, he may have had the opportunity to hold himself out to the
electorate as a legitimate and duly qualified candidate. However, notwithstanding the outcome of the
elections, his ineligibility as a candidate remains unchanged. Ineligibility does not only pertain to his
qualifications as a candidate but necessarily affects his right to hold public office. The number of
ballots cast in his favor cannot cure the defect of failure to qualify with the substantive legal
requirements of eligibility to run for public office.

The popular vote does not cure the

ineligibility of a candidate.

The ballot cannot override the constitutional and statutory requirements for qualifications and
disqualifications of candidates. When the law requires certain qualifications to be possessed or that
certain disqualifications be not possessed by persons desiring to serve as elective public officials,
those qualifications must be met before one even becomes a candidate. When a person who is not
qualified is voted for and eventually garners the highest number of votes, even the will of the
electorate expressed through the ballot cannot cure the defect in the qualifications of the candidate.
To rule otherwise is to trample upon and rent asunder the very law that sets forth the qualifications
and disqualifications of candidates. We might as well write off our election laws if the voice of the
electorate is the sole determinant of who should be proclaimed worthy to occupy elective positions in
our republic.

This has been, in fact, already laid down by the Court in Frivaldo v. COMELEC50 when we
pronounced:

x x x. The fact that he was elected by the people of Sorsogon does not excuse this patent violation
of the salutary rule limiting public office and employment only to the citizens of this country. The
qualifications prescribed for elective office cannot be erased by the electorate alone.

The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially
if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule
requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the
Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and
renouncing all fealty and fidelity to any other state.51(Emphasis supplied)

This issue has also been jurisprudentially clarified in Velasco v. COMELEC52 where the Court ruled
that the ruling in Quizon and Saya-ang cannot be interpreted without qualifications lest "Election
victory x x x becomes a magic formula to bypass election eligibility requirements."53

We have ruled in the past that a candidates victory in the election may be considered a sufficient
basis to rule in favor of the candidate sought to be disqualified if the main issue involves defects in
the candidates certificate of candidacy. We said that while provisions relating to certificates of
candidacy are mandatory in terms, it is an established rule of interpretation as regards election laws,
that mandatory provisions requiring certain steps before elections will be construed as directory after
the elections, to give effect to the will of the people. We so ruled in Quizon v. COMELEC and Saya-
ang v. COMELEC:

The present case perhaps presents the proper time and opportunity to fine-tune our above ruling.
We say this with the realization that a blanket and unqualified reading and application of this ruling
can be fraught with dangerous significance for the rule of law and the integrity of our elections. For
one, such blanket/unqualified reading may provide a way around the law that effectively negates
election requirements aimed at providing the electorate with the basic information to make an
informed choice about a candidates eligibility and fitness for office.

The first requirement that may fall when an unqualified reading is made is Section 39 of the LGC
which specifies the basic qualifications of local government officials. Equally susceptive of being
rendered toothless is Section 74 of the OEC that sets out what should be stated in a COC. Section
78 may likewise be emasculated as mere delay in the resolution of the petition to cancel or deny due
course to a COC can render a Section 78 petition useless if a candidate with false COC data wins.
To state the obvious, candidates may risk falsifying their COC qualifications if they know that an
election victory will cure any defect that their COCs may have. Election victory then becomes a
magic formula to bypass election eligibility requirements. (Citations omitted)

What will stop an otherwise disqualified individual from filing a seemingly valid COC, concealing any
disqualification, and employing every strategy to delay any disqualification case filed against him so
he can submit himself to the electorate and win, if winning the election will guarantee a disregard of
constitutional and statutory provisions on qualifications and disqualifications of candidates?

It is imperative to safeguard the expression of the sovereign voice through the ballot by ensuring that
its exercise respects the rule of law. To allow the sovereign voice spoken through the ballot to trump
constitutional and statutory provisions on qualifications and disqualifications of candidates is not
democracy or republicanism. It is electoral anarchy. When set rules are disregarded and only the
electorates voice spoken through the ballot is made to matter in the end, it precisely serves as an
open invitation for electoral anarchy to set in.
1w phi 1

Maquiling is not a second-placer as

he obtained the highest number of
votes from among the qualified
candidates.

With Arnados disqualification, Maquiling then becomes the winner in the election as he obtained the
highest number of votes from among the qualified candidates.

We have ruled in the recent cases of Aratea v. COMELEC54 and Jalosjos v. COMELEC55 that a void
COC cannot produce any legal effect.

Thus, the votes cast in favor of the ineligible candidate are not considered at all in determining the
winner of an election.

Even when the votes for the ineligible candidate are disregarded, the will of the electorate is still
respected, and even more so. The votes cast in favor of an ineligible candidate do not constitute the
sole and total expression of the sovereign voice. The votes cast in favor of eligible and legitimate
candidates form part of that voice and must also be respected.

As in any contest, elections are governed by rules that determine the qualifications and
disqualifications of those who are allowed to participate as players. When there are participants who
turn out to be ineligible, their victory is voided and the laurel is awarded to the next in rank who does
not possess any of the disqualifications nor lacks any of the qualifications set in the rules to be
eligible as candidates.

There is no need to apply the rule cited in Labo v. COMELEC56 that when the voters are well aware
within the realm of notoriety of a candidates disqualification and still cast their votes in favor said
candidate, then the eligible candidate obtaining the next higher number of votes may be deemed
elected. That rule is also a mere obiter that further complicated the rules affecting qualified
candidates who placed second to ineligible ones.

The electorates awareness of the candidates disqualification is not a prerequisite for the
disqualification to attach to the candidate. The very existence of a disqualifying circumstance makes
the candidate ineligible. Knowledge by the electorate of a candidates disqualification is not
necessary before a qualified candidate who placed second to a disqualified one can be proclaimed
as the winner. The second-placer in the vote count is actually the first-placer among the qualified
candidates.

That the disqualified candidate has already been proclaimed and has assumed office is of no
moment. The subsequent disqualification based on a substantive ground that existed prior to the
filing of the certificate of candidacy voids not only the COC but also the proclamation.

Section 6 of R.A. No. 6646 provides:

Section 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment
to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such election, the Court or Commission shall
continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is strong.

There was no chance for Arnados proclamation to be suspended under this rule because Arnado
failed to file his answer to the petition seeking his disqualification. Arnado only filed his Answer on 15
June 2010, long after the elections and after he was already proclaimed as the winner.

The disqualifying circumstance surrounding Arnados candidacy involves his citizenship. It does not
involve the commission of election offenses as provided for in the first sentence of Section 68 of the
Omnibus Election Code, the effect of which is to disqualify the individual from continuing as a
candidate, or if he has already been elected, from holding the office.

The disqualifying circumstance affecting Arnado is his citizenship. As earlier discussed, Arnado was
both a Filipino and an American citizen when he filed his certificate of candidacy. He was a dual
citizen disqualified to run for public office based on Section 40(d) of the Local Government Code.

Section 40 starts with the statement "The following persons are disqualified from running for any
elective local position." The prohibition serves as a bar against the individuals who fall under any of
the enumeration from participating as candidates in the election.

With Arnado being barred from even becoming a candidate, his certificate of candidacy is thus
rendered void from the beginning. It could not have produced any other legal effect except that
Arnado rendered it impossible to effect his disqualification prior to the elections because he filed his
answer to the petition when the elections were conducted already and he was already proclaimed
the winner.

To hold that such proclamation is valid is to negate the prohibitory character of the disqualification
which Arnado possessed even prior to the filing of the certificate of candidacy. The affirmation of
Arnado's disqualification, although made long after the elections, reaches back to the filing of the
certificate of candidacy. Arnado is declared to be not a candidate at all in the May 201 0 elections.

Arnado being a non-candidate, the votes cast in his favor should not have been counted. This leaves
Maquiling as the qualified candidate who obtained the highest number of votes. Therefore, the rule
on succession under the Local Government Code will not apply.

WHEREFORE, premises considered, the Petition is GRANTED. The Resolution of the COMELEC
En Bane dated 2 February 2011 is hereby ANNULLED and SET ASIDE. Respondent ROMMEL
ARNADO y CAGOCO is disqualified from running for any local elective position. CASAN MACODE
MAQUILING is hereby DECLARED the duly elected Mayor of Kauswagan, Lanao del Norte in the 10
May 2010 elections.

This Decision is immediately executory.

Let a copy of this Decision be served personally upon the parties and the Commission on Elections.

No pronouncement as to costs.

SO ORDERED.
MARIA LOURDES P. A. SERENO
Chief Justice

WE CONCUR:

PRESIDENTIAL ELECTORAL TRIBUNAL

[P.E.T. CASE No. 002. March 29, 2005]

RONALD ALLAN POE a.k.a. FERNANDO POE, JR., protestant,

vs. GLORIA MACAPAGAL-ARROYO, protestee.

RESOLUTION
QUISUMBING, J.:

The moving finger writes, says Omar Khayyam in the Rubayyat, and having writ,
moves on. Nor all your piety nor wit, adds the poet, could lure it back to cancel half a line;
nor all your tears wash out a word of it.
Such is my view on the providential case for our consideration.
Before this Electoral Tribunal, composed pursuant to the Constitution, by all the
fifteen members of the Supreme Court, is a matter of first impression. We are tasked not
only to determine, as originally prayed for, who between the Protestant and the Protestee
was the true winner in the May 10, 2004 Presidential Elections, but also to decide now
whether the Protestants widow (Mrs. Jesusa Sonora Poe, popularly known as the cinema
star Susan Roces) could intervene and/or substitute for the deceased party,
assuming arguendo that the protest could survive his death.
If one were guided by folk wisdom expressed in the adage that in a democracy, the
voice of the people is the voice of God, then it would appear our task had been made
easy by fateful events. Past midnight, in the early hours of June 24, 2004, the Congress
as the representatives of the sovereign people and acting as the National Board of
Canvassers, in a near-unanimous roll-call vote, proclaimed Mrs. Gloria Macapagal Arroyo
(GMA) the duly elected President of the Philippines. She obtained 12,905,808 votes, as
against 11,782,232 votes for the second-placer, the movie actor Fernando Poe, Jr.
(FPJ).[1] She took her Oath of Office before the Chief Justice of the Supreme Court on
June 30, 2004.
Refusing to concede defeat, the second-placer in the elections, Mr. FPJ, filed
seasonably an election protest before this Electoral Tribunal on July 23, 2004. Mrs. GMA,
through counsel, filed her Answer with Counter Protest on August 5, 2004. As counsels
for the parties exchanged lively motions to rush the presentation of their respective
positions on the controversy, an act of God intervened. On December 14, 2004, the
Protestant died in the course of his medical treatment at St. Lukes Hospital. The medical
certificate, filed by counsel as part of the Notice of Death of the Protestant, showed that
he died of cardio-pulmonary arrest, secondary to cerebral infarction.
However, neither the Protestees proclamation by Congress nor the death of her main
rival as a fortuitous intervening event, appears to abate the present controversy in the
public arena. Instead, notice may be taken of periodic mass actions, demonstrations, and
rallies raising an outcry for this Tribunal to decide the electoral protest of Mr. FPJ against
Mrs. GMA once and for all. The oracular function of this Tribunal, it would appear, needs
to be fully exercised to make manifest here and abroad who is the duly elected leader of
the Filipino nation. All these, despite the fact that the submissions by the parties on their
respective sides in the protest and the counter-protest are thus far, far from completed.
Needless to stress, this Tribunal cannot shirk its constitutional duty. Yet, neither could
it go beyond its mandate under the Constitution and the law. Further, this Tribunal is
guided by its Rules, as well as the Rules of Court in a suppletory manner. Considering
the transcendental importance of the electoral contest involving the Presidency, a rush to
judgment is simply out of the question. Yet decide the matter we must, without further
delay, to prevent popular unrest and avoid further destabilization of government at the
highest level.
Together with the formal Notice of the Death of Protestant, his counsel has submitted
to the Tribunal, dated January 10, 2005, a MANIFESTATION with URGENT
PETITION/MOTION to INTERVENE AS A SUBSTITUTE FOR DECEASED
PROTESTANT FPJ, by the widow, Mrs. Jesusa Sonora Poe, who signed the verification
and certification therein.
As movant/intervenor, Mrs. FPJ claims that because of the untimely demise of her
husband and in representation not only of her deceased husband but more so because
of the paramount interest of the Filipino people, there is an urgent need for her to continue
and substitute for her late husband in the election protest initiated by him to ascertain the
true and genuine will of the electorate in the 2004 elections. In support of her assertion,
she cites De Castro v. Commission on Elections,[2] and Lomugdang v. Javier,[3] to the effect
that the death of the protestant does not constitute a ground for the dismissal of the
contest nor oust the trial court of the jurisdiction to decide the election contest. She
stresses nevertheless that even if the instant protest case succeeds, she is cognizant that
as a mere substitute she cannot succeed, assume or be entitled to said elective office,
and her utmost concern is not personal but one that involves the publics interest. She
prays, however, that if subsequently determined that the protestee Gloria Macapagal-
Arroyo did not get the highest number of votes for president, for protestee to be disallowed
from remaining in office, and thus prevented from exercising the powers, duties,
responsibilities and prerogatives reserved only to the duly-elected president or her
legitimate successor.
In her Comment, the Protestee, Mrs. GMA, relying on Vda. de De Mesa v.
Mencias[4] and subsequent cases including analogous cases decided by the House of
Representatives Electoral Tribunal (HRET), asserts that the widow of a deceased
candidate is not the proper party to replace the deceased protestant since a public office
is personal and not a property that passes on to the heirs. She points out that the widow
has no legal right to substitute for her husband in an election protest, since no such right
survives the husband, considering that the right to file an election protest is personal and
non-transmissible.
Protestee also contends Mrs. FPJ cannot substitute for her deceased husband
because under the Rules of the Presidential Electoral Tribunal, only the registered
candidates who obtained the 2nd and 3rd highest votes for the presidency may contest the
election of the president and patently, Mrs. FPJ did not receive the 2 nd and 3rd highest
votes for she was not even a candidate for the presidency in the election that is being
contested.
Citing pertinent PET Rules, protestee also stresses that this Tribunal has no
jurisdiction over actions of surviving spouses to ascertain the vote of the electorate as the
Tribunal has jurisdiction only over election protests and quo warranto cases.
According to protestee, movant/intervenor Mrs. FPJ cannot use the public interest to
justify her request to be substituted for her husband. Public interest, i.e. the need to dispel
uncertainty over the real choice of the electorate, is applicable only in election contests,
not in an action to merely ascertain the true and genuine will of the people. She asserts
that the only case herein cognizable by this Tribunal is an election protest involving a
protestant and a protestee, not between the electorate and the protestee. Citing
analogous HRET cases, protestee avers that in a case where the protestant, the primary
adversary in an election protest case dies, the public interest in said protest dies with him.
Protestee also contends that in the adversarial nature of a protest case where one of
the parties dies, a correct ruling cannot be had because the dead protestant could no
longer refute his adversarys allegations because death has rendered him hors de combat.
Further citing Defensor-Santiago v. Ramos,[5] protestee points out that this Tribunal,
nonetheless, confirmed its power to dismiss an electoral case on technical grounds. She
adds that if the Tribunal can do so on a technicality, all the more it could for a stronger
reason, that of protestants death.
In her Reply, movant/intervenor argues that reference of protestee to the HRET case
of Abadilla v. Ablan,[6] was erroneous inasmuch as said case was a congressional protest
and the controlling case is De Castro. She likewise contends that protestant failed to
distinguish between a right to an office which protestant concedes is personal and non-
transmissible vis--vis the right to pursue the process which is not personal but imbued
with public interest. She likewise stresses that the death of the protestant abolished the
personal/private character of the protest, as protestants right to assume if he prevails,
necessarily disappears, and the same cannot be transferred to anyone else, protestants
widow included. She insists, however, that the public interest remains. Further,
movant/intervenor posits that the protest having been commenced cannot be abated by
the death of the protestant and the only real issue is the determination of the proper
substitute. She avers that the Tribunals rule is clear on who can commence and initiate a
protest compared to the persons who can initiate a quo warranto. She admits that in the
former, only the second and third placers in the presidential election are authorized to
commence the contest, while in the latter, any voter may initiate the petition. She contends
that with no personal interest involved, any registered voter can continue the duly-
commenced protest as the real-party-in-interest which is analogous to a quo warranto.
She contradicts protestee and insists that allowing any voter to substitute just like in a quo
warranto will not open the floodgate to whimsical protests, and the imagined political
instability feared by protestee will even more be pronounced if the protest is dismissed.
Movant/intervenor reiterates that the issue at hand involves just the continuation of
proceedings by allowing substitution and the taking over by the substitute of the
prosecution of the protest already duly commenced.
Plainly, the issue here is: May the widow substitute/intervene for the protestant who
died during the pendency of the latters protest case?
The fundamental rule applicable in a presidential election protest is Rule 14 of the
PET Rules. It provides,

Rule 14. Election Protest.Only the registered candidate for President or for Vice-
President of the Philippines who received the second or third highest number of votes
may contest the election of the President or the Vice-President, as the case may be, by
filing a verified petition with the Clerk of the Presidential Electoral Tribunal within
thirty (30) days after the proclamation of the winner.

Pursuant to this rule, only two persons, the 2nd and 3rd placers, may contest the
election. By this express enumeration, the rule makers have in effect determined the real
parties in interest concerning an on-going election contest. It envisioned a scenario
where, if the declared winner had not been truly voted upon by the electorate, the
candidate who received that 2ndor the 3rd highest number of votes would be the legitimate
beneficiary in a successful election contest.
This Tribunal, however, does not have any rule on substitution nor intervention but it
does allow for the analogous and suppletory application of the Rules of Court, decisions
of the Supreme Court, and the decisions of the electoral tribunals.[7]
Rule 3, Section 16 is the rule on substitution in the Rules of Court. [8] This rule allows
substitution by a legal representative. It can be gleaned from the citation of this rule that
movant/intervenor seeks to appear before this Tribunal as the legal
representative/substitute of the late protestant prescribed by said Section 16. However,
in our application of this rule to an election contest, we have every time ruled that a public
office is personal to the public officer and not a property transmissible to the heirs upon
death.[9] Thus, we consistently rejected substitution by the widow or the heirs in election
contests where the protestant dies during the pendency of the protest. In Vda. de De
Mesa v. Mencias,[10] we recognized substitution upon the death of the protestee but denied
substitution by the widow or heirs since they are not the real parties in interest. Similarly,
in the later case of De la Victoria v. Commission on Elections,[11] we struck down the claim
of the surviving spouse and children of the protestee to the contested office for the same
reason. Even in analogous cases before other electoral tribunals,[12]involving substitution
by the widow of a deceased protestant, in cases where the widow is not a real party in
interest, we denied substitution by the wife or heirs.
 This is not to say that death of the protestant necessarily abates the pending action.
We have held as early as Vda. de De Mesa (1966) that while the right to a public office is
personal and exclusive to the public officer, an election protest is not purely personal and
exclusive to the protestant or to the protestee such that the death of either would oust the
court of all authority to continue the protest proceedings.[13] Hence, we have allowed
substitution and intervention but only by a real party in interest. A real party in interest is
the party who would be benefited or injured by the judgment, and the party who is entitled
to the avails of the suit.[14] In Vda. de De Mesa v. Mencias[15] and Lomugdang v. Javier,[16] we
permitted substitution by the vice-mayor since the vice-mayor is a real party in interest
considering that if the protest succeeds and the protestee is unseated, the vice-mayor
succeeds to the office of the mayor that becomes vacant if the one duly elected cannot
assume office. In contrast, herein movant/intervenor, Mrs. FPJ, herself denies any claim
to the august office of President. Thus, given the circumstances of this case, we can
conclude that protestants widow is not a real party in interest to this election protest.
We are not unaware that a contest before election tribunals has two aspects. First, it
is in pursuit of ones right to a public office, and second, it is imbued with public interest.
Indeed the personal aspect of the case is inextricably linked with the public interest.
For an election protest involves not merely conflicting private aspirations but is imbued
with public interest which raises it into a plane over and above ordinary civil actions. [17] But
herein movant/intervenor, Mrs. FPJ, has overly stressed that it is with the paramount
public interest in mind that she desires to pursue the process commenced by her late
husband. She avers that she is pursuing the process to determine who truly won the
election, as a service to the Filipino people. We laud her noble intention and her interest
to find out the true will of the electorate. However, nobility of intention is not the point of
reference in determining whether a person may intervene in an election protest. Rule 19,
Section 1 of the Rules of Court[18] is the applicable rule on intervention in the absence of
such a rule in the PET Rules. In such intervention, the interest which allows a person to
intervene in a suit must be in the matter of litigation and of such direct and immediate
character that the intervenor will either gain or lose by the effect of the judgment. In this
protest, Mrs. FPJ will not immediately and directly benefit from the outcome should it be
determined that the declared president did not truly get the highest number of votes. We
fully appreciate counsels manifestation that movant/intervenor herself claims she has no
interest in assuming the position as she is aware that she cannot succeed to the
presidency, having no legal right to it. Yet thus far, in this case, no real parties such as
the vice-presidential aspirants in the 2004 elections, have come forward to intervene, or
to be substituted for the deceased protestant. In our view, if persons not real parties in
the action could be allowed to intervene, proceedings will be unnecessarily complicated,
expensive and interminable and this is not the policy of the law.[19] It is far more prudent to
abide by the existing strict limitations on intervention and substitution under the law and
the rules.
Conformably then with the law, the rules and prevailing jurisprudence, this Tribunal
finds no justifiable reason to grant the petition/motion for intervention and substitution.
 WHEREFORE, the motion of movant/intervenor JESUSA SONORA POE a.k.a.
SUSAN ROCES to intervene and substitute for the deceased protestant is DENIED for
lack of merit.
Acting on the protest and considering the Notice of the Death, submitted by counsel
of protestant RONALD ALLAN POE, a.k.a. FERNANDO POE, JR., we also resolve that
Presidential Electoral Tribunal Case No. 002, entitled Ronald Allan Poe a.k.a. Fernando
Poe, Jr. v. Gloria Macapagal-Arroyo, should be as it is hereby DISMISSED on the ground
that no real party in interest has come forward within the period allowed by law, to
intervene in this case or be substituted for the deceased protestant.
No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-
Nazario, and Garcia, JJ., concur.

MIRIAM DEFENSOR SANTIAGO versus FIDEL RAMOS (253 SCRA 559)

Facts:
The protestant, Miriam Defensor-Santiago ran for presidency and lost in the May 1992 election. In her
Motion on the 16th day of August in the year 1995, reiterated in her comment of the 29th of August of
the same year, protestant Defensor-Santiago prayed that the revision in the remaining precincts of the
pilot areas be dispensed with and the revision process in the pilot areas be deemed computed.

The Court deferred action on the motion and required, instead, the protestant and protestee to submit
their respective memoranda. Hence, this petition.

Issue:
Whether or not the election protest filed by Defensor-Santiago is moot and academic by her election as
a Senator in the May 1995 election and her assumption of office as such on the 30th of June in the year
1995.

Held:
YES. The Court held that the election protest filed by Santiago has been abandoned or considered
withdrawn as a consequence of her election and assumption of office as Senator and her discharge of
the duties and functions thereof.

The protestant abandoned her determination to protest and pursue the public interest involved in the
matter of who is the real choice of the electorate.

Moreover, the dismissal of this protest would serve public interest as it would dissipate the aura of
uncertainty as to the results of the 1992 presidential elections, thereby enhancing the all too crucial
political stability of the nation during this period of national recovery.

Also, the PET issued a resolution ordering the protestant to inform the PET within 10 days if after the
completion of the revision of the ballots from her pilot areas, she still wishes to present evidence.
Since DS has not informed the Tribunal of any such intention, such is a manifest indication that she no
longer intends to do so.