SEC 11, RULE 66 Limitations.
There is no question that petitioner's right of action, if any, accrued in July, 1946, when
Nothing contained in this Rule shall be construed to authorize an action against a public
officer or employee for his ouster from office unless the same be commenced within one
(1) year after the cause of such ouster, or the right of the petitioner to hold such office or
position, arose; nor to authorize an action for damages in accordance with the provisions
of the next preceding section unless the same be commenced within one (1) year after
the entry of the judgment establishing the petitioner’s right to the office in question.
G.R. No. L-2451 February 24, 1949
JOSE M. TUMULAK, petitioner,
vs.
PROTOLICO EGAY, respondent.
Petitioner Tumulak in his own behalf.
Respondent Egay in his own behalf.
BENGZON, J.:
Thought this quo warranto proceeding filed in August 1948, the petitioner seeks to wrest
from respondent the position of justice of the peace of the municipalities of Gigaquit and
Bacuag, Province of Surigao. He appointed that in December 1932, he became the duly
appointed judge of said towns and acted accordingly until August 1942, when the
Japanese seized the province until August, 1942, when the Japanese seized the province;
that after the liberation and in January, 1946, he received from President Sergio Osmeña
an appointment ad interim for the same position; that in May, 1946, he duly qualified and
assumed the office; that thereafter he went to Cebu to fetch his family. but upon
returning he found the respondent Protolico Egay occupying the pose beginning July,
1946; that he "had no other remedy" but to "accept the situation"; that in February,
1948, he was informed of the decision of this Court in Tavora vs. Gavina,1 that thereafter
and pursuant to said decision he asked the Department of Justice for reinstatement; and
that, having failed to obtain relief, he instituted this litigation to vindicate his right to the
office.
Required to answer, respondent submits a motion to dismiss the case, asserting that the
action has lapsed because it was commenced more than one year after the cause of
action had accrued.
The Rules provide that:
SEC. 16. Limitations. — Nothing contained in this rule shall be construed . . . to
authorize an action against an officer for his ouster from office unless the same
be commenced within one year after the cause; . . . (Rule 68, Rules of Court ,
page 139.).
respondent allegedly usurped the office. From that day to August, 1948, more than one
year has elapsed. This petition is , therefore, out of time and may not be entertained.
(Bautista vs. Fajardo, 38 Phil., 624; Abeto vs. Rodas, supra, p. 59 46 Off. Gaz., 930-938).
During our deliberations, some doubt was expressed as to the validity of this period of
limitation when it refers to officers whose tenure is protected by the Constitution.
Reduced to its simplest terms, the position seems to be that a statute may not limit the
period within which a constitutional right should be asserted or enforced before judicial
tribunals. The statement, however, would, in effect, contradict settled doctrines and
practices. For instance, the right to recover real property admittedly prescribes after ten
years; yet nobody will deny that such right is verily protected by the Constitution.
Contracts are guaranteed by the Constitution; but none, question the applicability of the
statute of limitations to belated proceedings to enforce contractual obligations.
Furthermore, constitutional rights may certainly be waived,2 and the inaction of the
officer for one year could be validly considered as a waiver, i.e., a renunciation which no
principle of justice may prevent, he being at liberty to resign of justice anytime he
pleases.
And there is good justification for the limitation period: it is not proper that the tile to
public office should be subjected to continued uncertainty, and the people's interest
requires that such right should be determined as speedily as practicable.
Remembering that the period fixed may not procedural in nature, it is quite that some
persons will question the validity of the rule of court on the point. However, it should be
obvious that if we admit the inefficacy of the particular rule of court hereinbefore
transcribed, the previous statue on the subject (act (190, section 216) — equally
providing on the subject (Act 190 section 216) — equally providing for a one-year term
— would automatically come into effect and we return to where we started: one year has
passed.
It is also suggested that according to Agcaoili vs. Suguitan,3 the one year period does not
refer to public officers, but to corporations. In that litigation, it is true that the court, on
this particular point, decided by a bare majority, the case for the petitioners on two
grounds, namely. (1) the one year period applies only to actions against corporations and
not to actions against public officers and (b) even if its applied to officers the period had
not lapsed in view of the particular circumstances. However, upon a reconsideration this
Court "modified" the decision "heretofore announced"4 by limiting it the second ground.
And thereafter — this is conclusive — this Court, with the concurrence of justices who
had signed the original Agcaoili decision, expressly applied the one-year period in quo
warranto contest between two justices of the peace.5
Wherefore, the petition is dismissed, with costs, So ordered.
1
RECALL
RA 7160 AN ACT PROVIDING FOR A LOCAL GOVERNMENT CODE OF 1991
Section 69. By Whom Exercised. - The power of recall for loss of confidence shall be
exercised by the registered voters of a local government unit to which the local elective
official subject to such recall belongs.
Section 70. Initiation of the Recall Process. -
(a) Recall may be initiated by a preparatory recall assembly or by the
registered voters of the local government unit to which the local elective official
subject to such recall belongs.
(b) There shall be a preparatory recall assembly in every province, city, district,
and municipality which shall be composed of the following:
(1) Provincial level. - All mayors, vice-mayors, and sanggunian
members of the municipalities and component cities;
(2) City level. - All punong barangay and sanggunian barangay
members in the city;
(3) Legislative District level. - In case where sangguniang
panlalawigan members are elected by district, all elective municipal
officials in the district; and in cases where sangguniang panlungsod
members are elected by district, all elective barangay officials in the
district; and
(4) Municipal level. - All punong barangay and sangguniang barangay
members in the municipality.
(c) A majority of all the preparatory recall assembly members may convene in
session in a public place and initiate a recall proceedings against any elective
official in the local government unit concerned. Recall of provincial, city, or
municipal officials shall be validly initiated through a resolution adopted by a
majority of all the members of the preparatory recall assembly concerned
during its session called for the purpose.
(d) Recall of any elective provincial, city, municipal, or barangay official may
also be validly initiated upon petition of at least twenty-five percent (25%) of
the total number of registered voters in the local government unit concerned
during the election in which the local official sought to be recalled was elected.
(1) A written petition for recall duly signed before the election
registrar or his representative, and in the presence of a representative
of the petitioner and a representative of the official sought to be
recalled and, and in a public place in the province, city, municipality,
or barangay, as the case may be, shall be filed with the COMELEC
through its office in the local government unit concerned. The
COMELEC or its duly authorized representative shall cause the
publication of the petition in a public and conspicuous place for a
period of not less than ten (10) days nor more than twenty (20) days,
for the purpose of verifying the authenticity and genuineness of the
petition and the required percentage of voters.
(2) Upon the lapse of the aforesaid period, the COMELEC or its duly
authorized representative shall announce the acceptance of
candidates to the position and thereafter prepare the list of
candidates which shall include the name of the official sought to be
recalled.
Section 71. Election on Recall. - Upon the filing of a valid resolution or petition for recall
with the appropriate local office of the COMELEC, the Commission or its duly authorized
representative shall set the date of the election on recall, which shall not be later than
thirty (30) days after the filing of the resolution or petition for recall in the case of the
barangay, city, or municipal officials. and forty-five (45) days in the case of provincial
officials. The official or officials sought to be recalled shall automatically be considered as
duly registered candidate or candidates to the pertinent positions and, like other
candidates, shall be entitled to be voted upon.
Section 72. Effectivity of Recall. - The recall of an elective local official shall be effective
only upon the election and proclamation of a successor in the person of the candidate
receiving the highest number of votes cast during the election on recall. Should the
official sought to be recalled receive the highest number of votes, confidence in him is
thereby affirmed, and he shall continue in office.
Section 73. Prohibition from Resignation. - The elective local official sought to be recalled
shall not be allowed to resign while the recall process is in progress.
Section 74. Limitations on Recall. -
(a) Any elective local official may be the subject of a recall election only once
during his term of office for loss of confidence.
(b) No recall shall take place within one (1) year from the date of the official's
assumption to office or one (1) year immediately preceding a regular local
election.
Section 75. Expenses Incident to Recall Elections. - All expenses incident to recall
elections shall be borne by the COMELEC. For this purpose, there shall be included in the
annual General Appropriations Act a contingency fund at the disposal of the COMELEC
for the conduct of recall elections.
2
[G.R. No. 126576. March 5, 1997]
MAYOR RICARDO M. ANGOBUNG, petitioner, vs. COMMISSSION ON ELECTIONS EN
BANC, and ATTY. AURORA S. DE ALBAN, respondents.
DECISION
HERMOSISIMA, JR., J.:
Before us on certiorari is a petition seeking to annul and set aside Resolution No.
96-2951[1] dated October 15, 1996 issued by public respondent Commission on Elections
(COMELEC) which (1) approved the Petition for Recall filed and signed by only one
registered voter - herein private respondent Ma. Aurora Siccuan de Alban, against
petitioner - incumbent Mayor Ricardo Angobung; (2) set the further signing of said
petition by the rest of the registered voters of Tumauini, Isabela on November 9, 1996;
and (3) in case the said petition is signed by at least 25% of the total number of
registered votes in Tumauni, Isabela, scheduled the recall election on December 2, 1996.
On October 25, 1996, this court issued a Temporary Restraining Order[2] enjoining
public respondent COMELEC from implementing and enforcing Resolution No. 96-2951.
The facts of this case are not disputed.
Petitioner won as the duly elected Mayor of the Municipality of Tumauini, Isabela
in the local elections of 1995. He garnered 55% of all the votes cast. Private respondent
de Alban was also a candidate in said elections.
Sometime in early September, 1996, private respondent filed with the Local
Election Registrar in Tumauni, Isabela, a Petition for Recall[3] against petitioner. On
September 12, 1996, petitioner received a copy of this petition. Subsequently said
petition was forwarded to the Regional Office in Tuguegarao, Cagayan and then to the
main office of COMELEC in Manila, for approval.
Acting on the petition, Deputy Executive Director for Operations Pio Jose Joson
submitted to the COMELEC En Banc, a Memorandum[4] dated October 8, 1996
recommending approval of the petition for recall filed by private respondent and its
signing by other qualified voters in order to garner at least 25% of the total number of
registered voters as required by Section 69(d) of the Local Government code of 1991.
In turn acting on the abovementioned Memorandum of Deputy Executive Director
Joson, the COMELEC en banc issued the herein assailed Resolution No. 96-2951.
Petitioner now attacks the aforementioned resolution as being unconstitutional
and therefore invalid, on two main grounds: (1) that the resolution approved the Petition
for Recall albeit same was signed by just one person in violation of the statutory 25%
minimum requirement as to the number of signatures supporting and petition for recall;
and (2) that the resolution scheduled the recall election within one (1) year from the
May 12, 1997 Barangay Elections.
In at least three (3) urgent motions, private respondent has sought the lifting of the
Temporary Retraining Order issued last October 25, 1996 on the twin grounds (1) that
the issue of the one-year bar on recall elections has been resolved in the case of Paras v.
COMELEC[5] promulgated on November 4, 1996; and (2) that the procedure prescribed
by Resolution No. 96-2951 involving petition signing upon initiation of even just one
person, is no different from that provided for in COMELEC Resolution No. 2272 which
was upheld as constitutional in the 1991 cases of Sanches, et al. v.
COMELEC[6] and Evardone v. COMELEC[7]
Private respondent is correct in saying that in the light of our pronouncement
in Paras v. COMELEC[8], the recall election scheduled on December 2, 1996 in the instant
case cannot be said to be barred by the May 12, 1997 Barangay Elections. In construing
the meaning of the term, regular local election in Section 74 of the Local Government
Code of 1991 which provides that no recall shall take place within one (1) year x x x
immediately preceding a regular local election, we ruled that for the time bar to apply,
the approaching regular local election must be one where the position of the official to be
recalled, is to be actually contested and filled by the electorate. Thus, in the instant case
where the time bar is being invoked by petitioner mayor in view of the approaching
Barangay Elections in May 1997, there can be no application of the one year bar, hence
no invalidity may be ascribed to Resolution No. 96-2951 on this ground.
We, however, find petitioners second ground to be impressed with merit.
Before the enactment of the 1991 Local Government Code, the recall of public
officials voted for in popular elections, was governed by Sections 54 to 59 of Batas
Pambansa Blg. 337, otherwise known as the Local Government Code of 1983. Pursuant to
Section 59 thereof, which states that the Commission on Elections shall conduct and
supervise the process of and election on recall x x x and, in pursuance thereof,
promulgate the necessary rules and regulations, the COMELEC promulgated Resolution
No. 2272 Sections 4 and 5 of which provide as follows:
Sec. 4. How instituted. - The recall of an elective provincial, city or municipal
official shall be commenced by the filing of a duly verified notice of recall
containing the address and precinct number of the voter filing the notice, and the
name of the official sought to be recalled, his position, and the ground(s) for the
recall. Each notice shall refer to only one official.lex
The notice shall be filed in triplicate with the local Election Registrar if the
recall involves a city or municipal official, or with the Provincial Election
Supervisor if it involves a provincial official, one copy of which shall be posted
upon receipt thereof on the bulletin board in the city/municipal hall.
If the recall involves a provincial official, two additional copies of the notice
shall also be furnished by the voter filing the notice to the Election Registrar of
each city and municipality in the province, one copy of which shall be posted upon
receipt thereof on the bulletin board in the city/municipal hall.
3
 In every case, the voter filing the notice of recall shall furnish a copy thereof
to the official sought to be recalled, the Commission on Elections in Manila and the
Election Records and Statistics Department of the Commission.
Section 5. Schedule and place of signing of the petition. - The Election Registrar shall
submit to the Commission on Elections, not later than ten days from filing of the notice of
recall, the schedule of the signing of the petition to recall for approval and funding x x
x.[9]
In the case of Sanchez v. COMELEC[10], petitioners therein contended that the
aforegoing Resolution No. 2272 is unconstitutional there being no legislative enactment
yet on [the] mechanism of recall as mandated under Sec. 3, Art. X of the Constitution [11] It
is true, as private respondent asseverates, that we upheld the constitutionality
of Resolution No. 2272, but not because we found nothing constitutionally infirm about
the procedure of allowing the initiatory recall petition to be filed by only one person. The
issue in Sanchez was not this questioned procedure but the legal basis for the exercise by
the COMELEC of its rule-making power in the alleged absence of a grant of such power
by an enabling statute on recall. Thus we ruled:
lexWhile it is true that Sec. 3, Art. X of the Constitution mandates the Congress to
enact a local government code providing among others for an effective mechanism
of recall, nothing in said provision could be inferred the repeal of BP 337, the local
government code existing prior to the adoption of the 1987 Constitution. Sec. 3,
Art. X of the Constitution merely provides that the local government code to be
enacted by Congress shall be more responsive than the one existing at
present. Until such time that a more responsive and effective local government
code is enacted, the present code shall remain in full force and effect. Thus, under
Sec. 3, Art. XVIII, (a)ll existing laws, decrees, executive orders, proclamations,
letters of instructions and other executive issuances not inconsistent with this
Constitution shall remain operative until amended, repealed, or revoked.
Considering that the present local government code (BP 337) is still in
effect, respondent COMELECs promulgation of Resolution No. 2272 is therefore
valid and constitutional, the same having been issued pursuant to Sec. 59 of BP
337. It reads:
Sec. 59. Supervision by the Commission on Elections. -
The Commission on Elections shall conduct and supervise the
process of and election on recall x x x and, in pursuance thereof,
promulgate the necessary rules and regulations.[12]
We reiterated the foregoing ruling in the case of Evardone v. COMELEC[13] in this
wise:
Article XVIII, Section 3 of the 1987 Constitution expressly provides that all
existing laws not inconsistent with the 1987 Constitution shall remain operative,
until amended, repealed or revoked.Republic Act No. 7160 providing for the Local
Government Code of 1991, approved by the President on 10 October 1991,
specifically repeals B.P. Blg. 337 as provided in Sec. 534, Title Four of said Act. But
the Local Government Code of 1991 will take effect only on 1 January 1992 and
therefore the old Local Government Code (B.P. Blg. 337) is still the law applicable
to the present case.
xxx
Chapter (Sections 54 to 59) of B.P. Blg. 337 provides for the mechanism for recall
of local elective officials. Section 59 expressly authorizes the respondent
COMELEC to conduct and supervise the process of and election on recall and in the
exercise of such powers, promulgate the necessary rules and regulations. x x x
Thus, pursuant to the rule-making power vested in respondent COMELEC, it
promulgated Resolution No. 2272 on 23 May 1990.
We therefore rule that Resolution No. 2272 promulgated by respondent COMELEC
is valid and constitutional. Consequently, the respondent COMELEC had the
authority to approve the petition for recall and set the date for the signing of said
petition.[14]
In Sanchez and Evardone, the COMELEC prescribed procedure of (1) allowing the
recall petition to be filed by at least one person or by less than 25% of the total number
of registered voters and then (2) inviting voters to sign said petition on a date set for that
purpose, was never put to issue. As this is the crux of the present constitutional
challenge, the proper time has come for this court to issue a definitive ruling on the
matter.
Apropos for starters is the following chronicle of the evolution of the mechanism of
recall as a mode of removing a public officer by direction action of the people, essayed in
the case of Garcia v. COMELEC:[15]
Recall is a mode of removal of a public officer by the people before the end
of his term of office. The peoples prerogative to remove a public officer is an
incident of their sovereign power and in the absence of constitutional restraint, the
power is implied in all governmental operations. Such power has been held to be
indispensable for the proper administration of public affairs. Not undeservedly, it
is frequently described as a fundamental right of the people in a representative
democracy.
Recall as a mode of removal of elective local officials made its maiden
appearance in section 2 of Article XI entitled Local Government, viz:
SEC. 2. The Batasang Pambansa shall enact a local
government code which may not thereafter be amended
except by a majority vote of all its Members, defining a more
responsive and accountable local government structure with
an effective system of recall x x x
4
 The Batasang Pambansa then enacted BP 337 entitled, The Local Government Code
of 1983 Section 54 of its Chapter 3 provided only one mode of initiating the recall
elections of local election officials, i.e., by petition of at least twenty-five percent
(25%) of the total number of registered voters in the local government unit
concerned x x x.
Our legal history does not reveal any instance when this power of recall as
provided by BP 337 was exercised by our people.
In February , 1986, however, our people more than exercised their right of
recall for they resorted to revolution and they booted out of office the highest
elective officials of the land. The successful use of people power to remove public
officials who have forfeited the trust of the electorate led to its firm
institutionalization of the 1987 Constitution. Its Articles XIII expressly recognized
the Role and Rights of Peoples Organizations x x x.
Section 3 of its Article X also reiterated the mandate for Congress to enact a
local government code which shall provide for a more responsive and accountable
local government structure instituted through a system of decentralization with
effective mechanisms of recall, initiative and referendum x x x. In response to this
constitutional call, Congress enacted R.A. 7160, otherwise known as the Local
Government Code of 1991, which took effect on January 1, 1992.[16]
Section 69(d) of the Local Government Code of 1991 expressly provides that recall
of any elective x x x municipal x x x official may also be validly initiated upon petition of
at least twenty-five percent (25%) of the total number of registered voters in the local
government unit concerned during the election in which the local official sought to be
recalled was elected. The law is plain and unequivocal as to what initiates recall
proceedings: only a petition of at least 25% of the total number of registered voters, may
validly initiate recall proceedings. We take careful note of the phrase, petition of at least
twenty-five percent (25%) and point out that the law does not state that the petition
must be signed by at least 25% of the registered voters; rather, the petition must be of or
by, at least 25% of the registered voters, i.e., the petition must be filed, not by one person
only, but by at least 25% of the total number of registered voters.This is understandable,
since the signing of the petition is statutorily required to be undertaken before the
election registrar or his representative, and in the presence of a represetantive of the
official sought to be recalled, and in public place in the x x x municipality x x x.[17] Hence,
while the initiatory recall petition may not yet contain the signatures of at least 25% of
the total number of registered voters, the petition must contain the names of at least
25% of the total number of registered voters in whose behalf only one person may sign
the petition in the meantime.
We cannot sanction the procedure of the filing of the recall petition by a number of
people less than the foregoing 25% statutory requirement, much less, the filing thereof
by just one person, as in the instant case, since this is indubitably violative of clear and
categorical provisions of subsisting law.
Our legislators did not peg the voter requirement at 25% out of caprice or in a
vacuum. They knew that this is the requirement under a majority of the constitution and
recall statutes in various American states to the same extent that they were aware of the
rationale therefor. While recall was intended to be an effective and speedy remedy to
remove an official who is not giving satisfaction to the electorate regardless of whether
or not he is discharging his full duty to the best of his ability and as his conscience
dictates,[18] it is a power granted to the people who, in concert, desire to change their
leaders for reasons only they, as a collective, can justify. In other words, recall must be
pursued by the people, not just by one disgruntled loser in the elections or a small
percentage of disenchanted electors. Otherwise, its purposes as a direct remedy of the
people shall be defeated by the ill motives of a few among them whose selfish resort to
recall would destabilize the community and seriously disrupt the running of government.
A scrutiny of the rationale underlying the time bar provisions and the percentage of
minimum voter requirement in American recall statutes, unmistakably reveals the
vigilance of lawmakers against the abuse of the power of recall. For instance, the
Supreme Court of Illinois held in the case of In Re Bower[19] that:
[t]the only logical reasons which we can ascribe for requiring the
electors to wait one year before petitioning for a recall election is to
prevent premature action on their parting voting to remove a newly elected
official before having had sufficient time to evaluate the soundness of his
political policies and decisions. We view the statutory provision requiring
the number of petition signers to equal at least 45% of the total votes case
in the last general election for mayor as a further attempt to insure that an
official will not have to defend his policies against frivolous attacks
launched by a small percentage of disenchanted electors.[20]
Along the same lines, the Supreme Court of Colorado held in the case of Bernzen v.
City of Boulder[21] that:
[t]he framers, by requiring that a recall petition contain the signatures of
at least 25% of all votes cast in the last election for all candidates for the position
which the person sought to be recalled occupies, assured that a recall election will
not be held in response to the wishes of a small and unrepresentative
minority. However, once at least 25% of the electorate have expressed their
dissatisfaction, the constitution reserves the recall power to the will of the
electorate.[22]
And in the case of Wallace v. Tripp[23], the Supreme Court of Michigan, echoed the
foregoing posturings in this wise:
Much of what has been said to justify a limit upon recall clearly not provided or
contemplated by the Constitution has revealed fears about an irresponsible electorate
xxx. A much cited Nebraska case pertaining to
a Nebraska recall statute provides some answers which are equally applicable to the
Michigan constitutional right of recall:
xxx Doubtless the provision requiring 30 per cent of the electors to sign the petition
before the council [is] compelled to act was designed to avoid such a contingency. The
legislature apparently assumed that nearly one-third of the electorate would not entail
5
upon the taxpayers the cost of an election unless the charges made approved themselves
to their understanding and they were seriously dissatisfied with the services of the
incumbent of the office.[24]

In the instant case, this Court is confronted with a procedure that is unabashedly
repugnant to the applicable law and no less such to the spirit underlying that law. Private
respondent who is a lawyer, knows that Section 69(d) of the Local Government Code
plainly provides that recall is validly initiated by a petition of 25% of the total number of
registered voters.Notwithstanding such awareness, private respondent proceeded to file
the petition for recall with only herself as the filer and initiator. She claims in her petition
that she has, together with many others in Tumauini, Isabela, lost confidence in the
leadership of petitioner. But the petition does not bear the names of all these other
citizens of Tumauini who have reportedly also become anxious to oust petitioner from
the post of mayor. There is no doubt that private respondent is truly earnest in her cause,
and the very fact that she affixed her name in the petition shows that she claims
responsibility for the seeming affront to petitioners continuance in office. But the same
cannot be said of all the other people whom private respondent claims to have
sentiments similar to hers. While the people are vested with the power to recall their
elected officials, the same power is accompanied by the concomitant responsibility to see
through all the consequences of the exercise of such power, including rising above
anonymity, confronting the official sought to be recalled, his family, his friends, and his
supporters, and seeing the recall election to its ultimate end. The procedure of allowing
just one person to file the initiatory recall petition and then setting a date for the signing
of the petition, which amounts to inviting and courting the public which may have not, in
the first place, even entertained any displeasure in the performance of the official sought
to be recalled, is not only violative of statutory law but also tainted with an attempt to go
around the law. We can not and must not, under any and all circumstances, countenance
a circumvention of the explicit 25% minimum voter requirement in the initiation of the
recall process.
WHEREFORE, premises considered, the PETITION FOR CERTIORARI is hereby
GRANTED. COMELEC Resolution No. 96-2951 is hereby DECLARED NULL and VOID and
accordingly SET ASIDE.
The RESTRAINING ORDER heretofore issued is hereby made permanent.
Costs against private respondent.
SO ORDERED.

6
CRIMINAL CONVICTION
G.R. No. 75025 September 14, 1993
VICENTE GARCIA, petitioner,
vs.
THE HONORABLE CHAIRMAN, COMMISSION ON AUDIT, THE HONORABLE
MINISTER, LAND TRANSPORTATION AND COMMUNICATIONS, THE REGIONAL
DIRECTOR, TELECOM REGIONAL OFFICE NO. IV, respondents.
Eulogio B. Alzaga for petitioner.
The Solicitor General for respondents.
BELLOSILLO, J.:
Petitioner comes to us on a petition for review on certiorari of the decision of 23 July
1985 of respondent Commission on Audit (COA) denying his claim for payment of back
wages, after he was reinstated to the service pursuant to an executive clemency. He
prays for the extraordinary remedy of mandamus against public respondents to enforce
his claim.
Petitioner was a Supervising Lineman in the Region IV Station of the Bureau of
Telecommunications in Lucena City. On 1 April 1975, petitioner was summarily
dismissed from the service on the ground of dishonesty in accordance with the decision
of the then Ministry of Public Works, Transportation and Communications in Adm. Case
No. 975 for the loss of several telegraph poles which were located at the Sariaya-Lucena
City and Mauban-Sampaloc, Quezon, telecom lines. Petitioner did not appeal from the
decision.
Based on the same facts obtaining in the administrative action, a criminal case for
qualified theft was filed against petitioner with the then Court of First Instance (now
Regional Trial Court) of Quezon. On 23 January 1980, the trial court rendered its decision
acquitting petitioner of the offense charged.
Consequently, petitioner sought reinstatement to his former position
in view of his acquittal in the criminal case. In an indorsement dated 7 April 1980,
petitioner's request to be reinstated was denied by the Bureau of Telecommunications.
Hence, petitioner pleaded to the President of the Philippines for executive clemency.
On 26 August 1981, acting on the favorable indorsements of the then Ministry of
Transportation and Communications and the Civil Service Commission, Deputy
Presidential Executive Assistant Joaquin T. Venus, Jr., by authority of the President, per
Resolution No. O.P. 1800, granted executive clemency to petitioner.
Petitioner thereafter filed with respondent COA a claim for payment of back salaries
effective 1 April 1975, the date of his dismissal from the service. This was denied by the
COA in its 5th Indorsement dated 12 October 1982 on the ground that the executive
clemency granted to him did not provide for the payment of back salaries and that he has
not been reinstated in the service.
It appears that petitioner was recalled to the service on 12 March 1984 but the records
do not show whether petitioner's reinstatement was to the same position of Supervising
Lineman.1
Petitioner again filed a claim to recover his back salaries for the period from 1 April
1975, the date of his dismissal, to 12 March 1984, when he was reinstated. In Decision
No. 362 embodied in its 3rd Indorsement dated 23 July 1985, respondent COA denied the
claim stating that the executive clemency was silent on the payment of back wages and
that he had not rendered service during the period of his claim.
Aggrieved, petitioner appealed the COA decision of 23 July 1985 to the Office of the
President. On 21 April 1986, Deputy Executive Secretary Fulgencio S. Factoran, Jr., by
authority of the President, denied the appeal "due to legal and constitutional
constraint,"2 holding that this Court is the proper forum to take cognizance of the appeal
on certiorari from the decision of the COA, citing Art. XII-(D), Sec. 2, par. 2, of the 1973
Constitution (now Art. IX-[A], Sec. 7, of the 1987 Constitution).
Hence, petitioner filed the instant petition on the issue of whether he is entitled to the
payment of back wages after having been reinstated pursuant to the grant of executive
clemency.
In his comment to the petition, the Solicitor General recommends that the petition be
given due course and the petitioner be awarded back wages to be determined in the light
of existing laws and jurisprudence. The Solicitor General submits that the award is
implicit in the grant of executive clemency, the ultimate objective of which is to accord
full justice to petitioner.
On the other hand, the COA asks this Court to deny the petition for the following reasons:
(a) petitioner's acquittal in the criminal case did not necessarily free him from
administrative liability; (b) petitioners unexplained failure to appeal the decision in the
administrative case was tantamount to a waiver or renunciation of his right to back
wages; (c) the executive clemency was granted to petitioner for the purpose of
reinstatement only since it was silent on the matter of back wages; (d) the award of back
wages is allowed only if the respondent is exonerated from the administrative charge
that his suspension or dismissal is declared illegal or unjustified by the court; and, (e)
petitioner did not render any service during the period before his reinstatement, hence,
he is not entitled to back wages based on the "no service, no pay" rule.
7
The petition is meritorious.
Every civilized country recognizes, and has therefore provided for, the pardoning power
to be exercised as an act of grace and humanity, in proper cases. Without such a power of
clemency, to be exercised by some department or functionary of a government, a country
would be most imperfect and deficient in its political morality and in that attribute of
Deity whose judgments are always tempered with money.3
Our Constitution reposes in the President the power and the exclusive prerogative to
extend executive clemency under the following circumstances:
Except in cases of impeachment or as otherwise provided in this
Constitution, the President may grant reprieves, commutations, and
pardons, and remit fines and forfeitures, after conviction by final
judgment.
He shall also have the power to grant amnesty with the concurrence
of a majority of all the Members of the Congress.4
From among the different acts of executive clemency spelled out above, the clemency
granted to petitioner in the instant case partakes of the nature of an executive pardon. A
reading of Resolution No. 1800 partly quoted hereunder is enlightening:
In a 3rd Indorsement dated September 5, 1980, the Director of
Telecommunications interposed no objection to the petition, while the
Minister of Transportation and Communications, in his 4th
Indorsement dated November 17, 1980, favorably recommended the
grant of executive clemency to petitioner for the reason that "while it
is a rule that an administrative case is separate and distinct from a
criminal case and an acquittal in the latter case dos not ipso
facto result in the exoneration in the former case, yet an exception
could arise if the basis for the acquittal was the innocence of the
accused as in the case of petitioner Garcia.
Asked for comment pursuant to Section 43 of Presidential Decree No.
807, the Civil service Commission recommends the grant of executive
clemency to petitioner in view of the findings of the court that —
instead of coming forward to the defense of the
accused who actually was authorized to uproot or
recover the poles in question and of commending
the latter for his high sense of responsibility in
preventing losses to the government, said high
officials had even the temerity to disown and deny
the authority they gave to the accused resulting in
his separation from the service and having him all
alone in defending himself against the accusation of
the very government he tried to protect.
After a careful study, this Office is inclined to grant executive
clemency to petitioner in the light of this decision of the court
acquitting him of the crime of qualified theft which was based on the
same acts obtaining in Administrative Case No. 975 against him,
coupled with the favorable recommendation of the Minister of
Transportation and Communications and the Civil Service
Commission.
In view of the foregoing, petitioner Vicente Garcia is hereby granted
executive clemency.5
Time and again this Court has unfolded the effects of a pardon upon the individual to
whom it is granted. In Monsanto v. Factoran,6 we have firmly established the general rule
that while a pardon has generally been regarded as blotting out the existence of guilt so
that in the eyes of the law the offender is as innocent as though he never committed the
offense, it does not operate for all purposes. The very essence of a pardon is forgiveness
or remission of guilt and not forgetfulness . It does not erase the fact of the commission
of the crime and the conviction thereof. Pardon frees the individual from all the penalties
and legal disabilities and restores to him all his civil rights. Unless expressly grounded on
the person's innocence, it cannot bring back lost reputation for honesty, integrity and fair
dealing. The pardoned offender regains his eligibility for appointment to public office
which was forfeited by reason of the conviction of the offense. But since pardon does not
generally result in automatic reinstatement because the offender has to apply for
reappointment, he is not entitled to back wages.
But, stated otherwise, if the pardon is based on the innocence of the individual, it affirms
this innocence and makes him a new man and as innocent; as if he had not been found
guilty of the offense charged.7 When a person is given pardon because he did not truly
commit the offense, the pardon relieves the party from all punitive consequences of his
criminal act, thereby restoring to him his clean name, good reputation and unstained
character prior to the finding of guilt.
In the case at bar, petitioner was found administratively liable for dishonesty and
consequently dismissed from the service. However, he was later acquitted by the trial
court of the charge of qualified theft based on the very same acts for which he was
dismissed. The acquittal of petitioner by the trial court was founded not on lack of proof
beyond reasonable doubt but on the fact that petitioner did not commit the offense
imputed to him. Aside from finding him innocent of the charge, the trial court
commended petitioner for his concern and dedication as a public servant. Verily,
petitioner's innocence is the primary reason behind the grant of executive clemency to
him, bolstered by the favorable recommendations for his reinstatement by the Ministry
of Transportation and Communications and the Civil Service Commission.
8
The bestowal of executive clemency on petitioner in effect completely obliterated the
adverse effects of the administrative decision which found him guilty of dishonesty and
ordered his separation from the service. This can be inferred from the executive
clemency itself exculpating petitioner from the administrative charge and thereby
directing his reinstatement, which is rendered automatic by the grant of the pardon. This
signifies that petitioner need no longer apply to be reinstated to his former employment;
he is restored to his office ipso facto upon the issuance of the clemency.
Petitioner's automatic reinstatement to the government service entitles him to back
wages.8 This is meant to afford relief to petitioner who is innocent from the start and to
make reparation for what he has suffered as a result of his unjust dismissal from the
service. To rule otherwise would defeat the very intention of the executive clemency, i.e.,
to give justice to petitioner. Moreover, the right to back wages is afforded to those with
have been illegally dismissed and were thus ordered reinstated or to those otherwise
acquitted of the charges against them.9 There is no doubt that petitioner's case falls
within the situations aforementioned to entitle him to back wages.
offense charged. Verily, law, equity and justice dictate that petitioner be afforded
compassion for the embarrassment, humiliation and, above all, injustice caused to him
and his family by his unfounded dismissal. This Court cannot help surmising the painful
stigma that must have caused petitioner, the incursion on his dignity and reputation, for
having been adjudged, albeit wrongfully, a dishonest man, and worse, a thief.
Consequently, this Court finds it fair and just to award petitioner full back wages from 1
April 1975 when he was illegally dismissed, to 12 March 1984 when he was reinstated.
The payment shall be without deduction or qualification.
WHEREFORE, the petition is GRANTED. The decision of respondent Commission on
Audit dated 23 July 1985 is REVERSED and SET ASIDE, and a new one entered ordering
public respondents, the Chairman of the Commission on Audit, the Minister (now
Secretary) of Land Transportation and Communications, the Regional Director of
Telecom Regional Office No. IV, or whoever may be sitting in office in their stead, to pay
the full amount of petitioner's back salaries from 1 April 1975 to 12 March 1984 based
on his latest salary scale.

Further, it is worthy to note that the dismissal of petitioner was not the result of any SO ORDERED.
criminal conviction that carried with it forfeiture of the right to hold public office, but is
the direct consequence of an administrative decision of a branch of the Executive
Department over which the President, as its head, has the power of control. The
President's control has been defined to mean "the power of an officer to alter or modify
or nullify or set aside what a subordinate officer had done in the performance of his
duties and to the judgment of the former for the latter." 10 In pardoning petitioner and
ordering his reinstatement, the Chief Executive exercised his power of control and set
aside the decision of the Ministry of Transportation and Communications. The clemency
nullified the dismissal of petitioner and relieved him from administrative liability. The
separation of the petitioner from the service being null and void, he is thus entitled to
back wages.

After having been declared innocent of the crime of qualified theft, which also served as
basis for the administrative charge, petitioner should not be considered to have left his
office for all legal purposes, so that he is entitled to all the rights and privileges that
accrued to him by virtue of the office held, including back wages. 11

Established jurisprudence fixes recovery of back wages to a period of five (5) years to be
paid an illegally dismissed government employee who has been ordered
reinstated. 12 The cases heretofore decided by this Court show that petitioners therein
were employees of local governments who were removed from office by their local
officials. The reasons given for their removal were abolition of office or position,
reduction of work force, or lack of funds on the part of the local governments concerned,
which reasons were found by this Court to be either devoid of factual basis or not
sufficiently proven, otherwise, their dismissal would have been valid and justified. In
contrast, the case before us is different, involving as it does circumstances that impel us
to deviate from the general rule previously laid down on the recovery of back wages for
five (15) years. Petitioner's reinstatement in the instant case which was ordered
pursuant to a grant of executive clemency was effected not because of lack of sufficient
proof of his commission of the offense but that, more importantly, he did not commit the

9
IMPEACHMENT ARTICLE 11 SEC 2-3 OF 1987 CONSTITUTION DISCIPLINARY ACTIONS ON PUBLIC OFFICERS (INCLUDING REMOVAL)
ACCOUNTABLITY OF PUBLIC OFFICERS
Sec. 2(3) Art. XI-B, 1987 CONSTITUTION

Section 2. The President, the Vice-President, the Members of the Supreme Court, the No officer or employee of the civil service shall be removed or suspended except for
Members of the Constitutional Commissions, and the Ombudsman may be removed from cause provided by law.
office on impeachment for, and conviction of, culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All Secs. 46(b), 50-52, Book V, EO 292
other public officers and employees may be removed from office as provided by law, but
not by impeachment.
SECTION 46. Discipline: General Provisions.—(a) No officer or employee in the Civil
Section 3. Service shall be suspended or dismissed except for cause as provided by law and after
due process.
1. The House of Representatives shall have the exclusive power to initiate all
cases of impeachment. (b) The following shall be grounds for disciplinary action:
2. A verified complaint for impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a resolution or endorsement
by any Member thereof, which shall be included in the Order of Business within (1) Dishonesty;
ten session days, and referred to the proper Committee within three session
days thereafter. The Committee, after hearing, and by a majority vote of all its (2) Oppression;
Members, shall submit its report to the House within sixty session days from
such referral, together with the corresponding resolution. The resolution shall (3) Neglect of duty;
be calendared for consideration by the House within ten session days from
receipt thereof.
3. A vote of at least one-third of all the Members of the House shall be necessary (4) Misconduct;
either to affirm a favorable resolution with the Articles of Impeachment of the
Committee, or override its contrary resolution. The vote of each Member shall (5) Disgraceful and immoral conduct;
be recorded.
4. In case the verified complaint or resolution of impeachment is filed by at least (6) Being notoriously undesirable;
one-third of all the Members of the House, the same shall constitute the Articles
of Impeachment, and trial by the Senate shall forthwith proceed.
5. No impeachment proceedings shall be initiated against the same official more (7) Discourtesy in the course of official duties;
than once within a period of one year.
6. The Senate shall have the sole power to try and decide all cases of (8) Inefficiency and incompetence in the performance of official duties;
impeachment. When sitting for that purpose, the Senators shall be on oath or
affirmation. When the President of the Philippines is on trial, the Chief Justice of (9) Receiving for personal use of a fee, gift or other valuable thing in the course of official
the Supreme Court shall preside, but shall not vote. No person shall be duties or in connection therewith when such fee, gift, or other valuable thing is given by
convicted without the concurrence of two-thirds of all the Members of the any person in the hope or expectation of receiving a favor or better treatment than that
Senate. accorded other persons, or committing acts punishable under the anti-graft laws;
7. Judgment in cases of impeachment shall not extend further than removal from
office and disqualification to hold any office under the Republic of the
Philippines, but the party convicted shall nevertheless be liable and subject to (10) Conviction of a crime involving moral turpitude;
prosecution, trial, and punishment, according to law.
8. The Congress shall promulgate its rules on impeachment to effectively carry (11) Improper or unauthorized solicitation of contributions from subordinate employees
out the purpose of this section. and by teachers or school officials from school children;

(12) Violation of existing Civil Service Law and rules or reasonable office regulations;

10
(13) Falsification of official document;
(14) Frequent unauthorized absences or tardiness in reporting for duty, loafing or
frequent unauthorized absences from duty during regular office hours;
(15) Habitual drunkenness;
(16) Gambling prohibited by law;
(17) Refusal to perform official duty or render overtime service;
(18) Disgraceful, immoral or dishonest conduct prior to entering the service;
(19) Physical or mental incapacity or disability due to immoral or vicious habits;
(20) Borrowing money by superior officers from subordinates or lending by
subordinates to superior officers;
(21) Lending money at usurious rates of interest;
(22) Willful failure to pay just debts or willful failure to pay taxes due to the government;
(23) Contracting loans of money or other property from persons with whom the office of
the employee concerned has business relations;
(24) Pursuit of private business, vocation or profession without the permission required
by Civil Service rules and regulations;
(25) Insubordination;
(26) Engaging directly or indirectly in partisan political activities by one holding a non-
political office;
(27) Conduct prejudicial to the best interest of the service;
(28) Lobbying for personal interest or gain in legislative halls or offices without
authority;
(29) Promoting the sale of tickets in behalf of private enterprises that are not intended
for charitable or public welfare purposes and even in the latter cases if there is no prior
authority;
(30) Nepotism as defined in Section 60 of this Title.
SECTION 50. Summary Proceedings.—No formal investigation is necessary and the
respondent may be immediately removed or dismissed if any of the following
circumstances is present:
(1) When the charge is serious and the evidence of guilt is strong;
(2) When the respondent is a recidivist or has been repeatedly charged and there is
reasonable ground to believe that he is guilty of the present charge; and
(3) When the respondent is notoriously undesirable.
Resort to summary proceedings by the disciplining authority shall be done with utmost
objectivity and impartiality to the end that no injustice is committed: Provided, That
removal or dismissal except those by the President, himself or upon his order, may be
appealed to the Commission.
SECTION 51. Preventive Suspension.—The proper disciplining authority may
preventively suspend any subordinate officer or employee under his authority pending
an investigation, if the charge against such officer or employee involves dishonesty,
oppression or grave misconduct, or neglect in the performance of duty, or if there are
reasons to believe that the respondent is guilty of charges which would warrant his
removal from the service.
SECTION 52. Lifting of Preventive Suspension Pending Administrative Investigation.—
When the administrative case against the officer or employee under preventive
suspension is not finally decided by the disciplining authority within the period of ninety
(90) days after the date of suspension of the respondent who is not a presidential
appointee, the respondent shall be automatically reinstated in the service: Provided,
That when the delay in the disposition of the case is due to the fault, negligence or
petition of the respondent, the period of delay shall not be counted in computing the
period of suspension herein provided.
11
[G.R. No. 131012. April 21, 1999]
HON. RICARDO T. GLORIA, in his capacity as Secretary of the Department of
Education, Culture, and Sports, petitioner, vs. COURT OF APPEALS,
AMPARO A. ABAD, VIRGILIA M. BANDIGAS, ELIZABETH A. SOMEBANG and
NICANOR MARGALLO, respondents.
DECISION
MENDOZA, J.:
This case arose out of the unfortunate strikes and walk-outs staged by public
school teachers on different dates in September and October 1990. The illegality of the
strikes was declared in our 1991 decision in Manila Public School Teachers Association v.
Laguio, Jr.,[1] but many incidents of those strikes are still to be resolved. At issue in this
case is the right to back salaries of teachers who were either dismissed or suspended
because they did not report for work but who were eventually ordered reinstated
because they had not been shown to have taken part in the strike, although reprimanded
for being absent without leave.
The facts are as follows:
Private respondents are public school teachers. On various dates in September and
October 1990, during the teachers strikes, they did not report for work. For this reason,
they were administratively charged with (1) grave misconduct, (2) gross neglect of duty,
(3) gross violation of Civil Service Law Rules and Regulations and reasonable office
regulations, (4) refusal to perform official duty, (5) gross insubordination, (6) conduct
prejudicial to the best interest of the service, and (7) absence without leave (AWOL), and
placed under preventive suspension. The investigation was concluded before the lapse of
their 90-day suspension and private respondents were found guilty as
charged. Respondent Nicanor Margallo was ordered dismissed from the service effective
October 29, 1990, while respondents Amparo Abad, Virgilia Bandigas, and Elizabeth
Somebang were ordered suspended for six months effective December 4, 1990.[2]
Respondent Margallo appealed to the Merit Systems and Protection Board (MSPB)
which found him guilty of conduct prejudicial to the best interest of the service and
imposed on him a six-month suspension.[3] The other respondents also appealed to the
MSPB, but their appeal was dismissed because of their failure to file their appeal
memorandum on time.[4]
On appeal, the Civil Service Commission (CSC) affirmed the decision of the MSPB
with respect to Margallo, but found the other three (Abad, Bandigas, and Somebang)
guilty only of violation of reasonable office rules and regulations by failing to file
applications for leave of absence and, therefore, reduced the penalty imposed on them to
reprimand and ordered them reinstated to their former positions.
Respondents filed a petition for certiorari under Rule 65 in this Court. Pursuant to
Revised Administrative Circular No. 1-95, the case was referred to the Court of Appeals
which, on September 3, 1996, rendered a decision (1) affirming the decision of the CSC
with respect to Amparo Abad, Virgilia Bandigas, and Elizabeth Somebang but (2)
reversing it insofar as the CSC ordered the suspension of Nicanor Margallo. The appellate
court found him guilty of violation of reasonable office rules and regulations only and
imposed on him the penalty of reprimand.[5]
Private respondents moved for a reconsideration, contending that they should be
exonerated of all charges against them and that they be paid salaries during their
suspension. In its resolution, dated July 15, 1997, the Court of Appeals, while maintaining
its finding that private respondents were guilty of violation of reasonable office rules and
regulations for which they should be reprimanded, ruled that private respondents were
entitled to the payment of salaries during their suspension beyond ninety (90) days.
Accordingly, the appellate court amended the dispositive portion of its decision to read
as follows:
WHEREFORE, IN VIEW OF THE FOREGOING, petition is hereby DENIED. CSC Resolution
Nos. 93-2302 dated June 24, 1993 and 93-3124 dated August 10, 1993 (In re: Amparo
Abad), CSC Resolution Nos. 93-2304 dated June 24, 1993 and 93-3227 dated August 17,
1993 (In re: Virgilia Bandigas) and CSC Resolution Nos. 93-2301 undated and 93-3125
dated August 10, 1993 (In re: Elizabeth Somebang) are hereby AFFIRMED while CSC
Resolution Nos. 93-2211 dated June 21, 1993 are hereby MODIFIED finding petitioner
Nicanor Margallo guilty of a lesser offense of violation of reasonable office rules and
regulations and meting upon him the penalty of reprimand. Respondent DECS is ordered
to pay petitioners Amparo Abad, Virgilia Bandigas, Elizabeth Somebang and Nicanor
Margallo their salaries, allowances and other benefits during the period of their
suspension/dismissal beyond the ninety (90) day preventive suspension. No
pronouncement as to costs.[6]
Petitioner Ricardo T. Gloria, then Secretary of Education, Culture, and Sports,
moved for a reconsideration insofar as the resolution of the Court of Appeals ordered the
payment of private respondents salaries during the period of their appeal. [7] His motion
was, however, denied by the appellate court in its resolution of October 6, 1997.[8] Hence,
this petition for review on certiorari.
Petitioner contends that the administrative investigation of respondents was
concluded within the 90-day period of preventive suspension, implying that the
continued suspension of private respondents is due to their appeal, hence, the
government should not be held answerable for payment of their salaries. Moreover,
petitioner lays so much store by the fact that, under the law, private respondents are
considered under preventive suspension during the period of their appeal and, for this
reason, are not entitled to the payment of their salaries during their suspension.[9]
Petitioners contentions have no merit.
I. Preventive Suspension and the Right to Compensation in Case of Exoneration
12
 The present Civil Service Law is found in Book V, Title I, Subtitle A of the
Administrative Code of 1987 (E.O. 292). So far as pertinent to the questions in this case,
the law provides:
SEC. 47. Disciplinary Jurisdiction. -
....
(2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and
municipalities shall have jurisdiction to investigate and decide matters involving
disciplinary action against officers and employees under their jurisdiction. Their
decisions shall be final in case the penalty imposed is suspension for not more than thirty
days or fine in an amount not exceeding thirty days salary. In case the decision rendered
by a bureau or office head is appealable to the Commission, the same may be initially
appealed to the department and finally to the Commission and pending appeal, the same
shall be executory except when the penalty is removal, in which case the same shall be
executory only after confirmation by the Secretary concerned.
....
(4) An appeal shall not stop the decision from being executory, and in case the penalty is
suspension or removal, the respondent shall be considered as having been under
preventive suspension during the pendency of the appeal in the event he wins an appeal.
SEC. 51. Preventive Suspension. - The proper disciplining authority may preventively
suspend any subordinate officer or employee under his authority pending an
investigation, if the charge against such officer or employee involves dishonesty,
oppression or grave misconduct, or neglect in the performance of duty, or if there are
reasons to believe that the respondent is guilty of charges which would warrant his
removal from the service.
SEC. 52. Lifting of Preventive Suspension. Pending Administrative Investigation. - When the
administrative case against the officer or employee under preventive suspension is not
finally decided by the disciplining authority within the period of ninety (90) days after
the date of suspension of the respondent who is not a presidential appointee, the
respondent shall be automatically reinstated in the service: Provided, That when the
delay in the disposition of the case is due to the fault, negligence or petition of the
respondent, the period of delay shall not be counted in computing the period of
suspension herein provided.
There are thus two kinds of preventive suspension of civil service employees who
are charged with offenses punishable by removal or suspension: (1) preventive
suspension pending investigation (51) and (2) preventive suspension pending appeal if
the penalty imposed by the disciplining authority is suspension or dismissal and, after
review, the respondent is exonerated (47(4)).
Preventive suspension pending investigation is not a penalty.[10] It is a measure
intended to enable the disciplining authority to investigate charges against respondent
by preventing the latter from intimidating or in any way influencing witnesses against
him. If the investigation is not finished and a decision is not rendered within that period,
the suspension will be lifted and the respondent will automatically be reinstated. If after
investigation respondent is found innocent of the charges and is exonerated, he should
be reinstated.
A. No Right to Compensation for Preventive Suspension Pending Investigation Even if Employee is Exonerated
Is he entitled to the payment of salaries during the period of suspension? As
already stated, the Court of Appeals ordered the DECS to pay private respondents their
salaries, allowances, and other benefits beyond the ninety (90) day preventive
suspension. In other words, no compensation was due for the period of the preventive
suspension pending investigation but only for the period of preventive
suspension pending appeal in the event the employee is exonerated.
The separate opinion of Justice Panganiban argues that the employee concerned
should be paid his salaries after his suspension.
The Civil Service Act of 1959 (R.A. No. 2260) provided for the payment of such
salaries in case of exoneration. Sec. 35 read:
Sec. 35. Lifting of Preventive Suspension Pending Administrative Investigation. - When the
administrative case against the officer or employee under preventive suspension is not
finally decided by the Commissioner of Civil Service within the period of sixty (60) days
after the date of suspension of the respondent, the respondent shall be reinstated in the
service. If the respondent officer or employee is exonerated, he shall be restored to his
position with full pay for the period of suspension.[11]
However, the law was revised in 1975 and the provision on the payment of salaries
during suspension was deleted. Sec. 42 of the Civil Service Decree (P.D. No. 807) read:
Sec. 42. Lifting of Preventive Suspension Pending Administrative Investigation. - When the
administrative case against the officer or employee under preventive suspension is not
finally decided by the disciplining authority within the period of ninety (90) days after
the date of suspension of the respondent who is not a presidential appointee, the
respondent shall be automatically reinstated in the service; Provided, That when the
delay in the disposition of the case is due to the fault, negligence or petition of the
respondent, the period of delay shall not be counted in computing the period of
suspension herein provided.
This provision was reproduced in 52 of the present Civil Service Law. It is noteworthy
that the Ombudsman Act of 1989 (R.A. No. 6770) categorically provides that preventive
suspension shall be without pay. Sec. 24 reads:
13
Sec. 24. Preventive Suspension. The Ombudsman or his Deputy may preventively suspend
any officer or employee under his authority pending an investigation, if in his judgment
the evidence of guilt is strong, and (a) the charge against such officer or employee
involves dishonesty, oppression or grave misconduct or neglect in the performance of
duty; (b) the charges would warrant removal from the service; or (c) the respondents
continued stay in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated by the Office of the
Ombudsman but not more than six months, without pay, except when the delay in the
disposition of the case by the Office of the Ombudsman is due to the fault, negligence or
petition of the respondent, in which case the period of such delay shall not be counted in
computing the period of suspension herein provided.
It is clear that the purpose of the amendment is to disallow the payment of salaries
for the period of suspension. This conclusion is in accord with the rule of statutory
construction that -
As a rule, the amendment by deletion of certain words or phrases in a statute indicates
that the legislature intended to change the meaning of the statute, for the presumption is
that the legislature would not have made the deletion had the intention been not in effect
a change in its meaning. The amended statute should accordingly be given a construction
different from that previous to its amendment.[12]
The separate opinion of Justice Panganiban pays no heed to the evident legislative
intent to deny payment of salaries for the preventive suspension pending investigation.
First, it says that to deny compensation for the period of preventive suspension
would be to reverse the course of decisions ordering the payment of salaries for such
period. However, the cases[13] cited are based either on the former rule which expressly
provided that if the respondent officer or employee is exonerated, he shall be restored to
his position with full pay for the period of suspension[14] or that upon subsequent
reinstatement of the suspended person or upon his exoneration, if death should render
reinstatement impossible, any salary so withheld shall be paid,[15] or on cases which do
not really support the proposition advanced.
Second, it is contended that the exoneration of employees who have been
preventively suspended is proof that there was no reason at all to suspend them and
thus makes their preventive suspension a penalty.
The principle governing entitlement to salary during suspension is cogently stated
in Floyd R. Mechems A Treatise on the Law of Public Offices and Officers as follows:
864. Officer not entitled to Salary during Suspension from Office. - An officer who
has been lawfully suspended from his office is not entitled to compensation for the
period during which he was so suspended, even though it be subsequently determined
that the cause for which he was suspended was insufficient. The reason given is that
salary and perquisites are the reward of express or implied services, and therefore
cannot belong to one who could not lawfully perform such services.[16]
Thus, it is not enough that an employee is exonerated of the charges against him. In
addition, his suspension must be unjustified. The case of Bangalisan v. Court of
Appeals itself similarly states that payment of salaries corresponding to the period [1]
when an employee is not allowed to work may be decreed if he is found innocent of the
charges which caused his suspension and [2] when the suspension is unjustified.[17]
The preventive suspension of civil service employees charged with dishonesty,
oppression or grave misconduct, or neglect of duty is authorized by the Civil Service
Law. It cannot, therefore, be considered unjustified, even if later the charges are
dismissed so as to justify the payment of salaries to the employee concerned. It is one of
those sacrifices which holding a public office requires for the public good. For this
reason, it is limited to ninety (90) days unless the delay in the conclusion of the
investigation is due to the employee concerned. After that period, even if the
investigation is not finished, the law provides that the employee shall be automatically
reinstated.
Third, it is argued in the separate opinion that to deny employees salaries on the
frivolous ground that the law does not provide for their payment would be to provide a
tool for the oppression of civil servants who, though innocent, may be falsely charged of
grave or less grave administrative offenses. Indeed, the possibility of abuse is not an
argument against the recognition of the existence of power. As Justice Story aptly put it,
It is always a doubtful course, to argue against the use or existence of a power, from the
possibility of its abuse. . . . [For] from the very nature of things, the absolute right of
decision, in the last resort, must rest somewhere - wherever it may be vested it is
susceptible of abuse.[18] It may be added that if and when such abuse occurs, that would
be the time for the courts to exercise their nay-saying function. Until then, however, the
public interest in an upright civil service must be upheld.
Finally, it is argued that even in the private sector, the law provides that employees
who are unjustly dismissed are entitled to reinstatement with full pay. But that is
because R.A. No. 6715 expressly provides for the payment to such employees of full
backwages, inclusive of allowances, and . . . other benefits or their monetary equivalent
computed from the time his compensation was withheld from him up to the time of his
actual reinstatement.[19] In the case of the public sector, as has been noted, the provision
for payment of salaries during the preventive suspension pending investigation has been
deleted.
B. Right to Compensation for Preventive Suspension Pending Appeal if Employee is Exonerated
But although we hold that employees who are preventively suspended pending
investigation are not entitled to the payment of their salaries even if they are exonerated,
we do not agree with the government that they are not entitled to compensation for the
period of their suspension pending appeal if eventually they are found innocent.
Preventive suspension pending investigation, as already discussed, is not a penalty
but only a means of enabling the disciplining authority to conduct an unhampered
investigation. On the other hand, preventive suspension pending appeal is actually
punitive although it is in effect subsequently considered illegal if respondent is
14
exonerated and the administrative decision finding him guilty is reversed. Hence, he
should be reinstated with full pay for the period of the suspension. Thus, 47(4) states
that respondent shall be considered as under preventive suspension during the
pendency of the appeal in the event he wins. On the other hand, if his conviction is
affirmed, i.e., if he is not exonerated, the period of his suspension becomes part of the
final penalty of suspension or dismissal.
It is precisely because respondent is penalized before his sentence is confirmed
that he should be paid his salaries in the event he is exonerated. It would be unjust to
deprive him of his pay as a result of the immediate execution of the decision against him
and continue to do so even after it is shown that he is innocent of the charges for which
he was suspended. Indeed, to sustain the governments theory would be to make the
administrative decision not only executory but final and executory. The fact is that 47(2)
and (4) are similar to the execution of judgment pending appeal under Rule 39, 2 of the
Rules of Court. Rule 39, 5 provides that in the event the executed judgment is reversed,
there shall be restitution or reparation of damages as equity and justice may require.
Sec. 47 of the present law providing that an administrative decision meting out the
penalty of suspension or dismissal shall be immediately executory and that if the
respondent appeals he shall be considered as being merely under preventive suspension
if eventually he prevails is taken from 37 of the Civil Service Decree of 1975 (P.D. No.
807). There was no similar provision in the Civil Service Act of 1959 (R.A. No. 2260),
although under it the Commissioner of Civil Service could order the immediate execution
of an administrative decision in the interest of the public service.[20] Nor was there
provision for immediate execution of administrative decisions ordering dismissal or
suspension in 695 of the Administrative Code of 1917, as amended by C.A. No. 598,
1.[21] Nonetheless, under R.A. No. 2260 the payment of salaries was ordered in cases in
which employees were found to be innocent of the charges[22] or their suspension was
held to be unjustified, because the penalty of suspension or dismissal was executed
without a finding by the Civil Service Commissioner that it was necessary in the interest
of the public service.[23] On the other hand, payment of back salaries was denied where it
was shown that the employee concerned was guilty as charged and the immediate
execution of the decision was ordered by the Civil Service Commissioner in the interest
of the public service.[24]
Nothing in what has thus far been said is inconsistent with the reason for denying
salaries for the period of preventive suspension. We have said that an employee who is
exonerated is not entitled to the payment of his salaries because his suspension, being
authorized by law, cannot be unjustified. To be entitled to such compensation, the
employee must not only be found innocent of the charges but his suspension must
likewise be unjustified. But though an employee is considered under preventive
suspension during the pendency of his appeal in the event he wins, his suspension is
unjustified because what the law authorizes is preventive suspension for a period not
exceeding 90 days. Beyond that period the suspension is illegal.Hence, the employee
concerned is entitled to reinstatement with full pay. Under existing jurisprudence, such
award should not exceed the equivalent of five years pay at the rate last received before
the suspension was imposed.[25]
II. Private Respondents Entitled to Back Salaries Although Found Guilty of Violation of Office Rules and Regulations and
Reprimanded
Private respondents were exonerated of all charges against them for acts
connected with the teachers strike of September and October 1990. Although they were
absent from work, it was not because of the strike. For being absent without leave, they
were held liable for violation of reasonable office rules and regulations for which the
penalty is a reprimand. Their case thus falls squarely within ruling in Bangalisan, which
likewise involved a teacher found guilty of having violated reasonable office rules and
regulations. Explaining the grant of salaries during their suspension despite the fact that
they were meted out reprimand, this Court stated:
With respect to petitioner Rodolfo Mariano, payment of his backwages is in order. A
reading of the resolution of the Civil Service Commission will show that he was
exonerated of the charges which formed the basis for his suspension. The Secretary of
the DECS charged him with and he was later found guilty of grave misconduct, gross
neglect of duty, gross violation of the Civil Service Law, rules and regulations and
reasonable office regulations, refusal to perform official duty, gross insubordination,
conduct prejudicial to the best interest of the service, and absence without official
leave, for his participation in the mass actions on September 18, 20 and 21, 1990. It was
his alleged participation in the mass actions that was the basis of his preventive
suspension and, later, his dismissal from the service.
However, the Civil Service Commission, in the questioned resolution, made a finding that
Mariano was not involved in the mass actions but was absent because he was in Ilocos
Sur to attend the wake and interment of his grandmother. Although the CSC imposed
upon him the penalty of reprimand, the same was for his violation of reasonable office
rules and regulations because he failed to inform the school of his intended absence and
neither did he file an application for leave covering such absences.
Under Section 23 of the Rules Implementing Book V of Executive Order No. 292 and
other pertinent civil service laws, in violations of reasonable office rules and regulations,
the first offense is punishable by reprimand. To deny petitioner Mariano his back wages
during his suspension would be tantamount to punishing him after his exoneration from
the charges which caused his dismissal from the service.[26]
In Jacinto v. Court of Appeals,[27] a public school teacher who was found guilty of
violation of reasonable office rules and regulations for having been absent without leave
and reprimanded was given back salaries after she was exonerated of the charge of
having taken part in the strikes.
Petitioner Secretary of Education contends, however, that respondents Abad,
Bandigas, and Somebang signed a letter in which they admitted having taken part in the
mass action. This question cannot be raised now. The Civil Service Commission gave no
weight to this letter in view of individual letters written by the three citing reasons for
their absences, to wit: Abad, because she decided to stay home to correct student papers;
Bandigas, because she had to accompany her brother to the Commission on Immigration,
15
and Somebang because of economic reasons. Petitioner did not appeal from this
ruling. Hence, he is bound by the factual findings of the CSC and the appellate court.
WHEREFORE, the decision, dated September 3, 1996, as amended by the
resolutions, dated July 15, 1997 and October 6, 1997, of the Court of Appeals, is hereby
AFFIRMED with the MODIFICATION that the award of salaries to private respondents
shall be computed from the time of their dismissal/suspension by the Department of
Education, Culture, and Sports until their actual reinstatement, for a period not
exceeding five years.
SO ORDERED.

16
 Service Commission Regional Office No. IV (CSCRO-IV) and ordered the reinstatement of
respondent Gregorio Magnaye, Jr. (Magnaye) with payment of backwages and other
CIVIL SERVICE G.R. NO. 183337
monetary benefits.
COMMISSION,
Petitioner, Present:

PUNO, CJ.,
CARPIO,
CORONA, THE FACTS
CARPIO MORALES,
VELASCO, JR.,
NACHURA, In March 2001, Mayor Roman H. Rosales of Lemery, Batangas, appointed
LEONARDO-DE CASTRO,
BRION, Magnaye as Utility Worker I at the Office of Economic Enterprise [Operation of Market]
- versus - PERALTA,
(OEE). After a few days, Mayor Rosales detailed him to the Municipal Planning and
BERSAMIN,
DEL CASTILLO, Development Office.
ABAD,
VILLARAMA, JR.,
PEREZ, and In the May elections of that year, Mayor Rosales was defeated by Raul L.
MENDOZA, JJ.
Bendaa, who assumed office on June 30, 2001. Thereafter, Magnaye was returned to his
GREGORIO MAGNAYE, JR., Promulgated:
original assignment at the OEE. On July 11, 2001, Bendaa also placed him on detail at the
Respondent.
April 23, 2010 Municipal Planning and Development Office to assist in the implementation of a Survey
on the Integrated Rural Accessibility Planning Project.

X ------------------------------------------------------------------------------------- X On August 13, 2001, the new mayor served him a notice of termination from
employment effective the following day for unsatisfactory conduct and want of capacity.

Magnaye questioned his termination before the CSC head office on the ground
that Mayor Bendaa was not in a position to effectively evaluate his performance because
it was made less than one and one-half months after his (Mayor Bendaas) assumption to
office. He added that his termination was without basis and was politically motivated.
DECISION

MENDOZA, J.:
The Civil Service Commission (CSC) assails in this petition for review on certiorari,[1] the
February 20, 2008 Decision[2] and the June 11, 2008 resolution of the Court of Appeals
(CA) in CA-G.R. SP No. 85508. The CA reversed the July 20, 2004 Decision of the Civil
The CSC head office dismissed, without prejudice, Magnayes complaint because
he failed to attach a certificate of non-forum shopping. Thereafter, Magnaye filed a
complaint with the regional office of the Civil Service (CSCRO-IV).
17
 Mayor Bendaa to determine his fitness or unfitness for the
The CSCRO-IV dismissed Magnayes complaint for lack of merit. It upheld his
position.[3] [Emphasis supplied]
dismissal from the service on the ground that Mayor Bendaas own assessment, together
with the evaluation made by his supervisors, constituted sufficient and reasonable
grounds for his termination.

Thus, the fallo of the CA Decision[4] reads:

Magnaye sought recourse through a petition for review with the Court of
Appeals, citing CSCRO-IVs alleged errors of fact and of law, non-observance of due
process, and grave abuse of discretion amounting to lack or excess of jurisdiction.
Adopting the stance of the Office of the Solicitor General, the CA ruled in Magnayes favor,
mainly on the ground that he was denied due process since he was not informed of what
constituted the alleged unsatisfactory conduct and want of capacity that led to his
termination. It summarized the positions of the OSG as follows:
WHEREFORE, the petition is Granted. The Civil Service
Commission Regional Office No. 4s Decision, dated July 20, 2004 is
hereby Set Aside. Accordingly, Petitioner is ORDERED REINSTATED
with full payment of backwages and other monetary benefits. This case
is hereby REMANDED to the Civil Service Commission for reception of
such evidence necessary for purposes of determining the amount of
backwages and other monetary benefits to which Petitioner is entitled.
SO ORDERED.

On January 18, 2005, the Office of the Solicitor General

(OSG) filed its manifestation and motion, in lieu of comment, praying
that the assailed decision be set aside.The OSG argued that
Petitioners termination was illegal. The notice of termination did
not cite the specific instances indicating Petitioners alleged THE ISSUES
unsatisfactory conduct or want of capacity. It was only on July 29,
2003, or almost two years after Petitioners dismissal on August 13,
2001 that his former Department Heads, Engr. Magsino and Engr. In this petition, the Civil Service Commission submits the following for our
Masongsong, submitted an assessment and evaluation report to
Mayor Bendaa, which the latter belatedly solicited when the consideration:
Petitioner appealed to the CSC Regional Office.Hence, the
circumstances behind Petitioners dismissal became questionable. I. The dropping of respondent from the rolls of the local
government unit of Lemery, Batangas was in accord with Civil Service
The OSG also found no evidence at the CSC Regional Office Law, rules and jurisprudence.
level that Petitioner was informed of his alleged poor
performance. There was no evidence that Petitioner was furnished II. The respondent resorted to a wrong mode of appeal and
copies of 1) Mayor Bendaas letter, dated July 29, 2003, addressed to violated the rule on exhaustion of administrative remedies and the
CSC Regional Office praying that Petitioners termination be corollary doctrine of primary jurisdiction.
sustained; and 2) the performance evaluation report, dated July 29,
2003, prepared by Engr. Magsino and Engr. Masongsong. The OSG
claimed that Petitioner was denied due process because his
The principal issue, therefore, is whether or not the termination of Magnaye
dismissal took effect a day after he received the notice of
termination. No hearing was conducted to give Petitioner the was in accordance with the pertinent laws and the rules.
opportunity to refute the alleged causes of his dismissal.The OSG
agreed with Petitioners claim that there was insufficient time for

18
 The eligibility of respondent Magnaye has not been put in issue.
THE COURTS RULING
The Court upholds the decision of the Court of Appeals.
The CSC, in arguing that Magnayes termination was in accord with the Civil
Service law, cited Section 4(a), Rule II of the 1998 CSC Omnibus Rules on Appointments
and Other Personnel Actions which provides that:
Sec. 4. Nature of appointment. The nature of appointment
shall be as follows:
a. Original refers to the initial entry into the career service of
persons who meet all the requirements of the position. xxx
It is understood that the first six months of the service
following an original appointment will be probationary in nature and
the appointee shall undergo a thorough character investigation. A
probationer may be dropped from the service for unsatisfactory
conduct or want of capacity anytime before the expiration of the
probationary period.Provided that such action is appealable to the
Commission.
However, if no notice of termination for unsatisfactory
conduct is given by the appointing authority to the employee before
the expiration of the six-month probationary period, the appointment
automatically becomes permanent.
Under Civil Service rules, the first six months of service following a permanent
appointment shall be probationary in nature, and the probationer may be dropped from
the service for unsatisfactory conduct or want of capacity anytime before the expiration
of the probationary period. [5]
The CSC is of the position that a civil service employee does not enjoy security
of tenure during his 6-month probationary period. It submits that an employees security
of tenure starts only after the probationary period. Specifically, it argued that an
appointee under an original appointment cannot lawfully invoke right to security of
tenure until after the expiration of such period and provided that the appointee has not
been notified of the termination of service or found unsatisfactory conduct before the
expiration of the same.[6]
The CSC position is contrary to the Constitution and the Civil Service Law
itself. Section 3 (2) Article 13 of the Constitution guarantees the rights of all workers not
just in terms of self-organization, collective bargaining, peaceful concerted activities, the
right to strike with qualifications, humane conditions of work and a living wage but also
to security of tenure, and Section 2(3), Article IX-B is emphatic in saying that, "no officer
or employee of the civil service shall be removed or suspended except for cause as
provided by law."
Consistently, Section 46 (a) of the Civil Service Law provides that no officer or
employee in the Civil Service shall be suspended or dismissed except for cause as
provided by law after due process.
19
 Thus, the services of respondent as a
Our Constitution, in using the expressions all workers and no officer or
probationary employee may only
employee, puts no distinction between a probationary and a permanent or regular be terminated for a just cause, that is,
unsatisfactory conduct or want of capacity.
employee which means that both probationary and permanent employees enjoy security [Emphasis supplied]
of tenure. Probationary employees enjoy security of tenure in the sense that during their
probationary employment, they cannot be dismissed except for cause or for failure to x x x.
qualify as regular employees. This was clearly stressed in the case of Land Bank of the
X x x the only difference between regular and probationary
Philippines v. Rowena Paden,[7] where it was written:
employees from the perspective of due process is that the latter's
termination can be based on the wider ground of failure to comply
To put the case in its proper perspective, we begin with a with standards made known to them when they became probationary
discussion on the respondent's right to security of tenure. Article IX employees.
(B), Section 2(3) of the 1987 Constitution expressly provides that

"[n]o officer or employee of the civil service shall be removed or
suspended except for cause provided by law." At the outset, we
emphasize that the aforementioned constitutional provision does not
distinguish between a regular employee and a probationary
employee. In the recent case of Daza v. Lugo[8] we ruled that:
The constitutional and statutory guarantee of security of tenure is extended to
both those in the career and non-career service positions, and the cause under which an
employee may be removed or suspended must naturally have some relation to the
character or fitness of the officer or employee, for the discharge of the functions of his

The Constitution provides that "[N]o officer office, or expiration of the project for which the employment was
or employee of the civil service shall be removed or extended. [9] Further, well-entrenched is the rule on security of tenure that such an
suspended except for cause provided by law." Sec.
26, par. 1, Chapter 5, Book V, Title I-A of the appointment is issued and the moment the appointee assumes a position in the civil
Revised Administrative Code of 1987 states:
service under a completed appointment, he acquires a legal, not merely equitable right
(to the position), which is protected not only by statute, but also by the Constitution
All such persons (appointees who meet all
the requirements of the position) must serve a [Article IX-B, Section 2, paragraph (3)] and cannot be taken away from him either by
probationary period of six months following their
revocation of the appointment, or by removal, except for cause, and with previous notice
original appointment and shall undergo a thorough
character investigation in order to acquire and hearing.[10]
permanent civil service status. A probationer may
be dropped from the service for unsatisfactory
conduct or want of capacity any time before the While the CSC contends that a probationary employee does not enjoy security
expiration of the probationary period; Provided,
That such action is appealable to the Commission. of tenure, its Omnibus Rules recognizes that such an employee cannot be terminated

20
except for cause. Note that in the Omnibus Rules it cited,[11] a decision or order dropping
a probationer from the service for unsatisfactory conduct or want of capacity anytime
before the expiration of the probationary period is appealable to the Commission. This
can only mean that a probationary employee cannot be fired at will.
Notably, jurisprudence has it that the right to security of tenure is unavailing in
certain instances. In Orcullo Jr. v. Civil Service Commission,[12] it was ruled that the right is
not available to those employees whose appointments are contractual and co-terminous
in nature. Such employment is characterized by a tenure which is limited to a period
specified by law, or that which is coterminous with the appointing authority or subject to
his pleasure, or which is limited to the duration of a particular project for which purpose
employment was made.[13] In Amores M.D. v. Civil Service Commission,[14] it was held that
a civil executive service appointee who meets all the requirements for the position,
except only the appropriate civil service eligibility, holds the office in a temporary
capacity and is, thus, not entitled to a security of tenure enjoyed by permanent
appointees.
Clearly, Magnayes appointment is entirely different from those situations. From
the records, his appointment was never classified as co-terminous or contractual.
Neither was his eligibility as a Utility Worker I challenged by anyone.
In support of its position that an appointee cannot lawfully invoke the right to a
security of tenure during the probationary period, petitioner CSC banked on the case
of Lucero v. Court of Appeals and Philippine National Bank.[15] This case is, however, not
applicable because it refers to a private entity where the rules of employment are not
exactly similar to those in the government service.
Mayor Bendaa dismissed Magnaye for lack of capacity and unsatisfactory
conduct. Section 26, paragraph 1, Chapter 5, Book V, Title I-A of the Revised
Administrative Code of 1987 states:
(1) Appointment through certification.An appointment
through certification to a position in the civil service, except as
herein otherwise provided, shall be issued to a person who has been
selected from a list of qualified persons certified by the Commission
from an appropriate register of eligibles, and who meets all the other
requirements of the position.
All such persons must serve a probationary period of six
months following their original appointment and shall undergo a
thorough character investigation in order to acquire permanent civil
service status. A probationer may be dropped from the service for
unsatisfactory conduct or want of capacity any time before the
expiration of the probationary period: Provided, That such action is
appealable to the Commission.
While unsatisfactory conduct and want of capacity are valid causes that may be
invoked for dismissal from the service,[16] the CA observed that the Memorandum issued
by Mayor Bendaa terminating Magnayes employment did not specify the acts
constituting his want of capacity and unsatisfactory conduct. It merely stated that the
character investigation conducted during his probationary period showed that his
employment need not be necessary to be permanent in status.[17] Specifically, the notice
of termination partly reads:
21

You are hereby notified that your service as Utility Worker I,
this municipality under six (6) month probationary period, is
considered terminated for unsatisfactory conduct or want of capacity,
effective August 14, 2001.
You are further notified that after a thorough character
investigation made during your such probationary period under my
administration, your appointment for employment need not be
necessary to be automatically permanent in status.[18]
This notice indisputably lacks the details of Magnayes unsatisfactory conduct or
want of capacity. Section VI, 2.2(b) of the Omnibus Guidelines on Appointments and
other Personnel Actions (CSC Memorandum Circular No. 38, Series of 1993, as amended
by CSC Memorandum Circular No. 12, Series of 1994), provides:
2.2. Unsatisfactory or Poor Performance
xxx
b. An official who, for one evaluation period, is rated poor in
performance, may be dropped from the rolls after due notice. Due
notice shall mean that the officer or employee is informed in writing
of the status of his performance not later than the fourth month of
that rating period with sufficient warning that failure to improve his
performance within the remaining period of the semester shall
warrant his separation from the service. Such notice shall also
contain sufficient information which shall enable the employee
to prepare an explanation. [Emphasis and underscoring supplied]
Magnaye asserts that no performance evaluation was made
between March 2001 when he was hired by Mayor Rosales
until August 14, 2001 when his services were terminated by Mayor
Bendaa.[19] It was only on July 29, 2003, at Mayor Bendaas behest,
that his two supervisors prepared and submitted the evaluation
report after the CSCRO-IV directed him to file an answer to Magnayes
appeal.[20]
This has not been rebutted. It being not disputed, it was an error on the part of
the CSCRO-IV to rely on such belated performance appraisal. Common sense dictates that
the evaluation report, submitted only in 2003, could not have been the basis for
Magnayes termination.
Besides, Mayor Bendaas own assessment of Magnayes performance could not
have served as a sufficient basis to dismiss him because said mayor was not his
immediate superior and did not have daily contacts with him. Additionally, Mayor
Bendaa terminated his employment less than one and one-half months after his
assumption to office. This is clearly a short period within which to assess his
performance. In the case of Miranda v. Carreon,[21] it was stated:
The 1987 Constitution provides that no officer or employee
of the civil service shall be removed or suspended except for cause
provided by law. Under the Revised Administrative Code of 1987, a
government officer or employee may be removed from the service
on two (2) grounds: (1) unsatisfactory conduct and (2) want of
capacity. While the Code does not define and delineate the concepts
of these two grounds, however, the Civil Service Law (Presidential
Decree No. 807, as amended) provides specific grounds for dismissing
a government officer or employee from the service. Among these
grounds are inefficiency and incompetence in the performance of
official duties. In the case at bar, respondents were dismissed on the
ground of poor performance. Poor performance falls within the
concept of inefficiency and incompetence in the performance of
official duties which, as earlier mentioned, are grounds for dismissing
a government official or employee from the service.
But inefficiency or incompetence can only be
determined after the passage of sufficient time, hence, the
probationary period of six (6) months for the respondents. Indeed, to
be able to gauge whether a subordinate is inefficient or
incompetent requires enough time on the part of his immediate
superior within which to observe his performance. This condition,
however, was not observed in this case. x x x. [Emphasis and
underscoring supplied]
22
 The CSC is the central personnel agency of the government exercising quasi-
judicial functions.[22] In cases filed before administrative or quasi-judicial bodies, a fact
may be deemed established if it is supported by substantial evidence, or that amount of
relevant evidence which a reasonable mind might accept as adequate to justify a
conclusion.[23] The standard of substantial evidence is satisfied when, on the basis of the
Service [27] provide for the remedy of an appeal from decisions of its regional offices to
evidence on record, there is reasonable ground to believe that the person terminated
the Commission proper, Magnayes petition to the CA comes under the exceptions to the
was evidently wanting in capacity and had unsatisfactory conduct. In this case, the
doctrine of exhaustion of administrative remedies. The CA correctly cited Republic v.
evidence against Magnaye was woefully inadequate.
Lacap,[28] where a violation of due process is listed to be among the noted exceptions to
the rule. As discussed above, Magnayes dismissal was tainted with irregularity because
Moreover, Magnaye was denied due process. We ruled in Tria v. Chairman
the notice given to him comes short of the notice contemplated by law and
Patricia Sto. Tomas[24] that the prohibition in Article IX (B) (2) (3) of the Constitution
jurisprudence. The CA correctly exercised jurisdiction over this case where standards of
against dismissal of a civil service officer or employee "except for cause provided by law"
due process had been patently breached.
is a guaranty of both procedural and substantive due process. Procedural due process
requires that the dismissal comes only after notice and hearing,[25] while substantive due
Having been illegally dismissed, Magnaye should be reinstated to his former
process requires that the dismissal be for cause.[26]
position without loss of seniority and paid backwages and other monetary benefits from
the time of his dismissal up to the time of his reinstatement. In our decision in Civil
Magnaye was denied procedural due process when he received his notice of
Service Commission v. Gentallan,[29] we ruled that for reasons of justice and fairness, an
termination only a day before he was dismissed from the service. Evidently, he was
illegally dismissed government employee who is later ordered reinstated is entitled to
effectively deprived of the opportunity to defend himself from the charge that he lacked
backwages and other monetary benefits from the time of his illegal dismissal until his
the capacity to do his work and that his conduct was unsatisfactory. As well, during his
reinstatement because he is considered as not having left his office.
appeal to the CSCRO-IV, he was not furnished with the submissions of Mayor Bendaa that
he could have opposed. He was also denied substantive due process because he was
dismissed from the service without a valid cause for lack of any factual or legal basis for
his want of capacity and unsatisfactory conduct.
WHEREFORE, the petition is DENIED. The February 20, 2008 Decision of the
Court of Appeals and its June 11, 2008 Resolution denying the motion for
Thus, we reject petitioners argument that the CA erred when it acted upon the
reconsideration in CA-G.R. No. SP No. 85508 are AFFIRMED.
erroneous remedy availed of by respondent when he filed a petition for review
SO ORDERED.
considering that the assailed decision is not in the nature of awards, judgments, final
orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its
quasi-judicial functions as prescribed under Rule 43 of the Rules of Court. While Sections
71 and 72 of Rule V (B) of the Uniform Rules on Administrative Cases in the Civil

23
A.M. No. P-12-3089 November 13, 2013
(Formerly OCA I.P.I. No. 11-3591-P)
HEIRS OF CELESTINO TEVES REPRESENTED BY PAUL JOHN TEVES ABAD ELSA C.
AQUINO and FELIMON E. FERNAN, Complainants,
vs.
AUGUSTO J. FELICIDARIO, SHERIFF IV, OFFICE OF THE CLERK OF COURT, REGIONAL
TRIAL COURT OF MANILA, Respondent.
DECISION
LEONARDO-DE CASTRO, J.:
Before the Court is the Complaint-Affidavit1 of complainants Heirs of Celestino Teves
represented by Paul John Teves Abad), Elsa C. Aquino, and Felimon E. Fernan, accusing
respondent Augusto Felicidario, Sheriff IV of the Office of the Clerk of Court OCC),
Regional Trial Court RTC), Manila, of Grave Misconduct, Dishonesty and Conduct
Unbecoming an Officer of the Court.
Complainants alleged that they are the successors-in-interest of the late Celestino Teves
to two parcels of land, initially identified as Lots 263 and 264 of the Sampaloc Townsite
in Tanay, Rizal, distributed under the Department o Agrarian Reform DAR) Resettlement
Project. Lots 263 and 264 measured 965 square meters and 648 square meters,
respectively, or 1,613 square meters combined. The late Celestino Teves and
complainants have been in possession of Lots 263 and 264 since 1960. Lots 263 and 264
are adjacent and contiguous to Lot 268, which has been occupied by respondent and
with an area of 838 square meters. In May 2003, upon the approval of a new subdivision
plan, Lots 263 and 264 were clustered into one lot, designated as Lot 190; while Lot 268
was designated as Lot 189.2 Under the same plan, the area of Lot 189 was erroneously
increased from 838 square meters to 941 square meters. Respondent knew of this error
but being dishonest, he concealed it from the DAR. Respondent was eventually issued
Original Certificate of Title (OCT) No. M-01182, pursuant to Certificate of Land
Ownership Award (CLOA) No. 00222161, for Lot 189, with a total area of 941 square
meters. On the basis of OCT No. M-01182 (CLOA No. 00222161), respondent started to
unlawfully and forcibly acquire 117 square meters of complainants’ Lot 190 (disputed
area) by (a) altering and installing concrete boundaries; (b) destroying the riprap and
cyclone wires which served as boundary between respondent’s Lot 189 and
complainants’ Lot 190; (c) destroying the comfort room, dirty kitchen, warehouse, and
trees in the disputed area; and (d) constructing a concrete fence with steel gate around
Lot 189 and the disputed area. Complainants were helpless in preventing respondent
from performing the aforementioned acts as respondent bragged that he is a Sheriff of
the RTC of Manila and threatened complainants with bodily harm.
Complainants had filed with the DAR Region IV-A a letter-complaint against respondent,
docketed as Case No. A-0400-0168-09. Complainants pointed out that Regional Director
Antonio G. Evangelista (Evangelista) of DAR Region IV-A issued an Order dated October
20, 2009, ruling in their favor. Pertinent portions of said Order read:
Per Memorandum dated May 19, 2009 of [Legal Officer (LO)] Cleufe S. Eder as noted by
Atty. Raul I. Bautista, the [DAR Provincial Office (DARPO)] Legal Division conducted an
investigation/inspection on the subject lots on May 18, 2009 and the following facts
were established to wit:
xxxx
6. That based on that new survey in 2003, [Certificate of Land Ownership
Award (CLOA)] with No. 00222161/OCT No. M-01182 with an area of 941
square meters was awarded to Augusto Felicidario on October 2, 2005. Augusto
Felicidario conducted his own survey to determine the boundaries based on the
issued CLOA. It appears that there was an area of 117 square meters from his
original area of 838 square meters, however, the excess area of 117 square
meters belong to Elsa Aquino, Felimon Fernan and Heirs of Celestino Teves.
Augusto Felicidario tainted with bad faith instead proceed[ed] to get the excess
area of 117 square meters and placed another mujon, other than the old mujon
previously placed during the 1965 survey of 838 square meters;
7. That CLOA/s for Elsa Aquino, Felimon Fernan and [Heirs] of Celestino Teves
have not yet been issued to them. They were not aware of the changes in their
respective area of possession until in March 2009 when Augusto Felicidario
destroyed the riprap and the old cyclone wires which serves as the boundary of
Elsa Aquino et al. with motive to forcibly get the 117 square meters covering
the portions of 54 square meters, 51 square meters, and 12 square meters from
Elsa Aquino et al.;
xxxx
In the same Memorandum, LO Cleufe S. Eder stated that the only basis of the claim of
Augusto Felicidario over the portions of the areas of Elsa Aquino and Felimon Fernan is
that said portions appeared to be included in his CLOA, where in truth and in fact, was
not included in his actual area of possession and occupation. Evidently, Lot 189
(formerly Lot 268) is bounded by old boundaries (muhon), riprap and cyclone wires
erected since 1960’s or more that forty-five (45) years by complainants which is only
adjacent/adjoining to Lot 189 (Lot [268]) of Augusto Felicidario who incidentally been in
the said premises for a long period of time and fully aware that he possessed only 838
square meters as evidenced by the Lot Description Survey conducted in December 1966.
Complainants and Augusto Felicidario have been good neighbors, until the latter on
March 29, 2009 received a copy of TCT-CLOA in October 2005 awarding him 941 square
meters per new subdivision survey in 2003. Thereafter, Augusto Felicidario threatened
to eject Elsa Aquino et al. purposely to acquire the portions of 51 square meters and 12
square meters without a lawful order.
[Provincial Agrarian Reform Officer (PARO)] Samuel S. Solomero concurred with the
recommendation of DARPO-Legal Division that the CLOA issued to Augusto Felicidario
be cancelled/corrected to only 838 square meters as his actual area of possession and
further recommended that individual CLOAs be generated/issued in favor of Elsa
24
Aquino, Felimon Fernan and Heirs of Celestino Teves in accordance with their actual
area of possession.
DAR Administrative Order No. 1 Series of 1992, specifically paragraph IV, regarding the
Modes of Disposition of Homelots, provides that:
"Homelots in barangay sites and residential, commercial and industrial lots in townsites
shall be disposed of by direct sale to actual occupants occupying said homelots".
WHEREFORE, premises considered, an Order is hereby issued:
1. DIRECTING the PARO to undertake the necessary steps to cause the
correction of [the] area inscribed in OCT No. M-01182 (CLOA No. 00222161)
issued in the name of Augusto Felicidario from 941 square meters to 838
square meters; and
2. DIRECTING the PARO and the [Municipal Agrarian Reform Officer (MARO)]
to make the necessary steps for the issuance of individual titles in the names of
Elsa Aquino, Felimon Fernan and Heirs of Celestino Teves based on their actual
area of possession.3
The DAR Region IV-A Order dated October 20, 2009 in Case No. A-0400-0168-09 became
final and executory as no motion for reconsideration and/or appeal was filed. 4
Respondent, in his Comment,5 denied complainants’ allegations. He prayed for the
outright dismissal of the instant complaint against him since the acts subject thereof are
not related to his official functions as Deputy Sheriff and are not grounds for
administrative action. In addition, respondent explained that as a result of the re-survey
conducted by the DAR Geodetic Engineer in May 2003, the area of complainants’ Lot 190
was decreased to 210 square meters, while that of respondent’s Lot 189 was increased
to 941 square meters. Based on the 2003 re-survey, respondent was issued OCT No. M-
01182 (CLOA No. 00222161) for Lot 189. Respondent has been in continuous actual and
physical possession of Lot 189 and religiously paying the real estate tax thereon as they
fall due. In 2009, respondent applied for and was granted a Fencing Permit by the Office
of the Building Official of Tanay. On the strength of the Fencing Permit and with the
assistance of barangay officials, respondent proceeded to place new fences or
mujon/markers along the perimeter of Lot 189. Although respondent acknowledged the
existence of the final and executory Order dated October 20, 2009 of the DAR Region IV-
A in Case No. A-0400-0168-09, adverse to his interest, respondent maintained that he
had been deprived of due process of law because he never received summons or notice
relative to said case, thus, he had already requested the Office of the President for a
reinvestigation of the same. Respondent also mentioned in his Comment that the PARO
had already instituted a Petition for Correction of LOA No. 00222161/OCT No. M-01182
before the DAR Adjudication Board (DARAB) Region IV-A, docketed as PARAD Case No.
R-0409-0009 to 0010-10.
Respondent argued that the acts imputed by complainants against him were not related
to the performance of his official duties and were not in any manner related to a case in
which complainants are parties or have legal interests. Besides, a cursory reading of the
allegations in the complaint will clearly show the absence of the requisites of corruption
or a clear intent to violate the law or a flagrant disregard of established rule; as well as
the lack of evidence that respondent’s conduct in the exercise of his rights as a private
individual debased the public’s confidence in the courts. Respondent reiterated that he
had no hand in the increase of his total lot area after the new survey. Lastly, respondent
averred that complainants, in filing the present complaint, was forum shopping with the
intention of purposely vexing, harassing, and intimidating respondent and thereby gain
upper ground. Complainants mean to escalate a private matter to the institution
respondent is serving.
Complainants filed a Reply6 but raised no new matters.
On July 26, 2012, the Office of the Court Administrator (OCA) submitted its report 7 with
the following recommendations:
In view of the foregoing, this Office respectfully submits for the consideration of the
Honorable Court the following recommendations:
1. the instant administrative complaint against Augusto J. Felicidario, Sheriff IV,
Office of the Clerk of Court, Regional Trial Court, Manila, be RE-DOCKETED as a
regular administrative matter; and
2. respondent be found GUILTY of Conduct Prejudicial to the Best Interest of
the Service and be SUSPENDED for three (3) months without pay.8
In a Resolution9 dated September 24, 2012, the Court re-docketed the administrative
complaint against respondent as a regular administrative matter and required the
parties to manifest within 10 days from notice if they were willing to submit the matter
for resolution based on the pleadings filed. Respondent10 and complainants11 submitted
their respective Manifestations informing the Court that they were already submitting
the case for decision based on the pleadings on record.
The Court partly diverges from the findings of the OCA. Respondent is guilty of simple
dishonesty and conduct prejudicial to the best interest of the service, but not of grave
misconduct.
In Villordon v. Avila,12 the Court defined dishonesty as "intentionally making a false
statement on any material fact[;]" and "a disposition to lie, cheat, deceive or defraud;
untrustworthiness; lack of integrity, lack of honesty, probity or integrity in principle; lack
of fairness and straightforwardness; disposition to defraud, deceive or betray."
It is true that respondent did not have a hand in the re-survey conducted by the DAR in
2003 which resulted in the increased land area of his Lot 189. Nonetheless, respondent’s
25
actuations thereafter displayed his lack of honesty, fairness, and straightforwardness,
not only with his neighbors, but also with the concerned government agencies/officials.
Complainants and respondent had been awarded and occupying their respective
properties under the DAR Resettlement Program since 1966, yet, respondent did not
express surprise and/or bafflement that the land area of his Lot 189 was significantly
increased from 838 square meters to 941 square meters after the 2003 re-survey.
Honesty, fairness, and straightforwardness, as well as good faith and prudence, would
have impelled respondent to bring the matter to the attention of complainants and the
DAR, and inquire and verify with the DAR his entitlement to the increased land area,
especially when he was well-aware that complainants had been in possession of the
disputed area, and had, in fact, introduced substantial improvements thereon, for almost
four decades. Instead, respondent, undeniably benefitting from the increased land area
of Lot 189, held his peace and already proceeded to secure a certificate of title in his
name for Lot 189, with a land area of 941 square meters. When respondent was finally
issued OCT No. M-01182 (CLOA No. 00222161), he invoked the same as justification for
occupying the 117-square meter disputed area, destroying complainants’ improvements
thereon, and enclosing Lot 189 (inclusive of the disputed area) within a concrete fence
and steel gate. Whether or not an error was indeed committed by the DAR officials
during the 2003 re-survey, resulting in the increased land area of Lot 189, respondent
evidently took advantage of complainants’ ignorance of the situation in order to acquire
OCT No. M-01182 (CLOA No. 00222161) with nary an opposition. It bears to stress that
the final and executory Order dated October 20, 2009 of the DAR Region IV-A in Case No.
A-0400-0168-09 declared erroneous the increase in land area of respondent’s Lot 189
after the 2003 re-survey and the PARO had already instituted proceedings before the
DARAB for the correction of respondent’s OCT No. M-01182 (CLOA No. 00222161).
While respondent is seeking to have the final and executory DAR Region IV-A Order set
aside by the Office of the President, as things stand at present, the basis for respondent’s
legal title to the disputed area is doubtful, at best. Considering that the increase in land
area of Lot 189 was due to the (erroneous) result of the 2003 re-survey of the Sampaloc
Townsite by the DAR; that respondent’s dishonesty was committed through his silence
and/or inaction, when the circumstances demanded otherwise, rather than his active
and/or express misrepresentation to the complainants and concerned public officials;
and that respondent committed the dishonesty in his private life and not in the course of
performance of his official functions, the Court holds him guilty of only simple
dishonesty.
Respondent’s deportment under the circumstances likewise constitute conduct
prejudicial to the best interest of the service. In addition to being dishonest, respondent
appears to have illegally forced his way into the disputed area. As a Sheriff, he is
expected to be familiar with court procedure and processes, especially those concerning
the execution of orders and decisions of the courts. It is difficult for the Court to believe
that respondent is completely unaware that even as the registered owner of the real
property and with the barangay officials’ assistance, he cannot simply enter and take
possession of the disputed area and destroy complainants’ improvements thereon. He
must first initiate an ejectment case against complainants before the appropriate court
and secure a court order and writ of possession.
The Civil Service law and rules do not give a concrete description of what specific acts
constitute conduct prejudicial to the best interest of the service, but the Court defined
such an offense in
Ito v. De Vera13 as acts or omissions that violate the norm of public accountability and
diminish or tend to diminish the faith of the people in the Judiciary, thereby prejudicing
the best interest of the administration of justice. In Government Service Insurance
System v. Mayordomo,14 the Court further declared that the administrative offense of
conduct prejudicial to the best interest of the service need not be related to or connected
with the public officer’s official functions. As long as the questioned conduct tarnishes
the image and integrity of his public office, the corresponding penalty may be meted on
the erring public officer or employee.
Respondent’s transgressions may not be related to his official duties and functions, but
certainly reflect badly upon the entire Judiciary. Respondent failed to live up to the high
ethical standards demanded by the office he occupies. As the Court explained in Marquez
v. Clores-Ramos15:
It can not be overemphasized that every employee of the judiciary should be an example
of integrity, uprightness and honesty. Like any public servant, he must exhibit the
highest sense of honesty and integrity not only in the performance of his official duties
but in his personal and private dealings with other people, to preserve the Court’s good
name and standing. This is because the image of a court of justice is necessarily mirrored
in the conduct, official or otherwise, of the men and women who work thereat, from the
judge to the least and lowest of its personnel. Thus, it becomes the imperative sacred
duty of each and every one in the court to maintain its good name and standing as a true
temple of justice. (Citations omitted.)
However, precisely because respondent was not acting in the performance of his official
duties, he cannot be administratively liable for misconduct, whether grave or simple. The
survey of cases presented in Largo v. Court of Appeals16 is particularly instructive:
[T]he administrative offense committed by petitioner is not "misconduct." To constitute
misconduct, the act or acts must have a direct relation to and be connected with the
performance of his official duties.1âwphi1 In Manuel v. Calimag, Jr., it was held that:
Misconduct in office has been authoritatively defined by Justice Tuazon in Lacson v.
Lopez in these words: "Misconduct in office has a definite and well- understood legal
meaning. By uniform legal definition, it is a misconduct such as affects his performance
of his duties as an officer and not such only as affects his character as a private
individual. In such cases, it has been said at all times, it is necessary to separate the
character of the man from the character of the officer x x x. It is settled that misconduct,
misfeasance, or malfeasance warranting removal from office of an officer must have
direct relation to and be connected with the performance of official duties amounting
either to maladministration or willful, intentional neglect and failure to discharge the
duties of the office x x x More specifically, in Buenaventura v. Benedicto, an
administrative proceeding against a judge of the court of first instance, the present Chief
26
Justice defines misconduct as referring ‘to a transgression of some established and
definite rule of action, more particularly, unlawful behavior or gross negligence by the
public officer."
xxxx
dishonesty as an aggravating circumstance; while respondent s 43 years in government
service, 32 of which had been in the judiciary, as mitigating circumstance. The Court
likewise takes into account, for humanitarian reasons, that respondent is almost of
retirement age at 64 years. Consequently, the penalty of suspension without pay for six
(6) months and one (1) day is appropriate under the circumstances.

In Salcedo v. Inting we also ruled – It is to be noted that the acts of the respondent judge WHEREFORE, the Court finds respondent Augusto Felicidario, Sheriff IV of the Office of
complained of have no direct relation with his official duties as City Judge. The the Clerk of Court, Regional Trial Court, Manila, GUILTY of simple dishonesty and
misfeasance or malfeasance of a judge, to warrant disciplinary action must have direct conduct grossly prejudicial to the best interest of the service and is suspended for a
relation to and be connected with the performance of official duties amounting either to period of six ( 6) months and one (1) day without pay, with a stem warning that a
maladministration or willful, intentional neglect and failure to discharge the duties of repetition of the same or similar act in the future shall be dealt with more severely.
said judge.
SO ORDERED.
In Milanes v. De Guzman, a mayor collared a person, shook him violently, and threatened
to kill him in the course of a political rally of the Nacionalista Party where said mayor
was acting as the toastmaster. The Court held that the acts of the mayor cannot come
under the class of the administrative offense of misconduct, considering that as the
toastmaster in a non-governmental rally, he acted in his private capacity, for said
function was not part of his duties as mayor. In Amosco v. Magro, the respondent Judge
was charged with grave misconduct for his alleged failure to pay the amount of ₱215.80
for the purchase of empty Burma sacks. In dismissing the case, the Court sustained,
among others, the argument of respondent Judge that the charge did not constitute
misconduct because it did not involve the discharge of his official duties. It was further
held that misconduct in office has a definite and well-understood legal meaning. By
uniform legal definition, it is a misconduct such as affects his performance of his duties
as an officer and not such only as affects his character as a private individual. So also, a
Judge’s abandonment of, and failure to give support to his family; and alleged sale of
carnapped motor vehicles, do not fall within the species of misconduct, not being related
to the discharge of official functions. (Citations omitted.)

Now the Court considers the appropriate penalty to be imposed upon respondent.

On November 18, 2011, the Civil Service Commission (CSC) promulgated the Revised
Rules on Administrative Cases in the Civil Service (RRACCS). Under Rule 10, Section
46(E) of RRACCS, simple dishonesty is a less grave offense punishable by suspension of
one (1) month and one (1) day to six (6) months for the first offense; six (6) months and
one (1) day to one (10 year for the second offense; and dismissal for the third offense.
Rule 10, Section 46(B)(8) classifies conduct prejudicial to the best interest of the service
as a grave offense penalized by suspension of six (6) months and one (1) day to one (1)
year for the first offense, and dismissal from the service for the second offense. Rule 10,
Section 50 additionally provides that if the civil servant is found guilty of two or more
charges or counts, the penalty to be imposed should be that corresponding to the most
serious charge and the rest shall be considered as aggravating circumstances.

Based on the foregoing rules, the Court shall apply the penalty for conduct prejudicial to
the best interest of the service, it being the more serious offense. The Court then
considers for purposes of determining the proper penalty, respondent s simple

27
G.R. No. 190524, February 17, 2014 opinion of the CSC-CAR. She claimed that the actions of respondent violated the civil
service laws and amounted to grave misconduct and immorality,
MICHAELINA RAMOS BALASBAS, Petitioner, v. PATRICIA B. MONAYAO, Respondent. thus:chanRoblesVirtualawlibrary
The question is this - is it only acts related to the duties and responsibilities of a
government officer that can be the subject of an administrative case? Stated otherwise,
DECISION would you have as a member of the Civil Service a person who has engaged in
misrepresentation, fraud, dishonesty and has contemptuously refused to implement
DEL CASTILLO, J.: an Order of the DENR dated 6 October 1998?

While the law and justice abhor all forms of abuse committed by public officers and I believe that nowhere in the Civil Service Law is there such a qualification. The acts
employees whose sworn duty is to discharge their duties with utmost responsibility, complained of also amount to grave misconduct and immorality - unless one only thinks
integrity, competence, accountability, and loyalty, the Court must protect them against of immoral as only referring to sex.
unsubstantiated charges that tend to adversely affect, rather than encourage, the
effective performance of their duties and functions. On the other hand - granting arguendo that there is such a limited interpretation, how
can having mistresses (which currently the government is relentlessly pursuing to rid of)
Assailed in this Petition for Review on Certiorari1 are the November 28, 2008 fall within the ambit of a government official’s duties and
Decision2 of the Court of Appeals (CA) in CA-G.R. SP No. 102407 and its November 27, responsibilities?11crallawlibrary
2009 Resolution3 denying reconsideration thereof. In an October 6, 2004 letter-opinion,12 the CSC’s Office for Legal Affairs (CSC-OLA)
denied petitioner’s appeal and affirmed the August 19, 2003 opinion of the CSC-CAR. The
Factual Antecedents CSC-OLA held that the CSC had no jurisdiction over petitioner’s complaint as it stemmed
from a private transaction between the protagonists; petitioner’s remedy was instead to
In a May 19, 2003 letter-complaint4 filed with the Department of Social Welfare and seek execution of the DENR’s Decision in H.A. NRD, 11-15-004 (E-11-16-004).
Development (DSWD), petitioner Atty. Michaelina Ramos Balasbas accused respondent
Patricia B. Monayao - then employed by the DSWD - of misrepresentation, fraud, Petitioner, in a November 11, 2004 letter,13 sought a reconsideration of the above
dishonesty and refusal to implement an October 6, 1998 Order 5 issued by the October 6, 2004 opinion. Petitioner argued that under Section 4 of the Revised Uniform
Department of Environment and Natural Resources (DENR) in a land dispute - docketed Rules on Administrative Cases in the Civil Service,14 the jurisdiction of the CSC over
with the DENR as H.A. NRD, 11-15-004 (E-11-16-004) - filed sometime in 1987 by public officers or employees is not limited to their acts or omissions that are work-
petitioner’s brother against respondent’s father. It appears that in said case, respondent related; disciplinary action may be taken for their acts of dishonesty, immorality,
appeared in lieu of her father, who she claimed passed away. Petitioner claimed further oppression, notorious undesirability, conviction of a crime involving moral turpitude,
that despite judgment rendered in the said dispute awarding one-half of the disputed habitual drunkenness, or gambling. Petitioner adds that even the lending of money at
land to her brother, and respondent’s subsequent notarized waiver of her rights to her usurious rates, conducting illicit relations, and willful failure to pay just debts are
half, the latter illegally sold the portion, over which she had waived her rights, to her grounds for disciplinary action.15 Petitioner concluded that respondent’s
children via a 1992 deed of sale purportedly executed by her father, which was misrepresentation, fraud, dishonesty and refusal to implement the DENR’s October 6,
simulated considering that as early as 1987, respondent’s father was already deceased. 1998 Order relative to the 1987 DENR land dispute constitute acts unbecoming a public
official and fall within the jurisdiction of the CSC. Petitioner thus prayed that the CSC
In a June 24, 2003 letter-reply,6 the DSWD informed petitioner that respondent was no reconsider its October 6, 2004 letter; declare respondent guilty of misrepresentation,
longer an employee thereof, but was devolved in 1992 to the local government of the fraud, dishonesty and refusal to implement the DENR’s October 6, 1998 Order; and
municipality of Alfonso Lista in Ifugao Province. Petitioner was thus advised to address impose upon her disciplinary action and penalties in accordance with civil service laws
her complaint to the Office of the Mayor of Alfonso Lista. and regulations.

Petitioner thus filed with the Mayor of Alfonso Lista a July 30, 2003 sworn letter-
complaint7 against respondent. In a September 18, 2003 reply8 to petitioner, however,
Alfonso Lista Mayor Glenn D. Prudenciano refused to take action on the complaint, citing
an August 19, 2003 opinion9 of Victor P. Sibal, Director II of the Cordillera Administrative
Region office of the Civil Service Commission (CSC-CAR), which stated that petitioner’s
complaint against respondent may not be acted upon as the acts complained of were not
in relation to the latter’s duties and responsibilities as Municipal Population Officer.
Petitioner wrote an October 16, 2003 letter10 to the CSC, appealing the August 19, 2003
On January 14, 2008, the CSC issued Resolution No. 080059,16 which decreed as
follows:chanRoblesVirtualawlibrary
WHEREFORE, foregoing premises considered, the instant appeal is hereby DISMISSED
for want of merit. Accordingly, the opinion of the Office for Legal Affairs dated October 6,
2004 is AFFIRMED.
In dismissing petitioner’s appeal, the CSC held firm to the view that Monayao’s purported
misrepresentation, fraud, dishonesty and refusal to implement the DENR Order in H.A.
NRD, 11-15-004 (E-11-16-004) had no bearing on her official duties as a local
government employee, and that petitioner’s relief was to move for the execution of the

28
unsatisfied DENR judgment and thus compel respondent to honor her notarized waiver
of her rights to one-half portion of the land in dispute, or proceed to court for judicial
intervention. It held, thus:chanRoblesVirtualawlibrary
After due consideration, the Commission is inclined to dismiss the present appeal.
It is unavailing for the private complainant to insist that there are disciplinary grounds
that are not work-related such that her complaint, rooted as it was on a private
transaction, should not have been perfunctorily dismissed. True it is that some of the
recognized grounds for administrative disciplinary actions against government officials
and employees contemplate of private deeds. Two such examples are disgraceful and
immoral conduct, and non-payment of just debt. However, it may be noted that these
personal actions give rise to administrative culpability because they indubitably reflect
on the moral fitness and integrity of the respondent public official or employee. This
means that the commission of any of the said acts betrays the moral unfitness of the
respondent public officer, which would make them amenable to disciplinary sanctions.
In the herein case, the complaint is based on Monayao’s supposed misrepresentation,
fraud, dishonesty and refusal to implement an order of the Department of Environment
and Natural Resources (DENR) relating to a land dispute. Yet, such actuation of Monayao
relates to her private dealings with the private complainant, and has no bearing at all on
the performance of her official duties as a local government employee. Instead of filing
an administrative complaint, it would have been more appropriate for the private
complainant to seek relief through the proper remedial action, which is, as noted in the
impugned opinion, to move for execution of the unsatisfied DENR order or to proceed to
court for possible judicial enforcement.
In CSC Resolution No. 96-5593, dated September 4, 1996, the Commission pertinently
ruled in this wise:chanRoblesVirtualawlibrary
“x x x True, the respondents are government employees, but there is no showing that the
non-remittance of said amount was committed while in the performance of their official
duties x x x Thus, said failure or omissions on the part of the respondents were done in
their personal or private capacity arising out of private transactions. It is therefore clear
that the acts complained of do not constitute an administrative offense or offenses within
the jurisdiction of the Commission. At any rate, the dispute between the herein
complainants and the officers of said association, subject of this complaint, should be
better resolved before a competent court.”
More importantly, the Commission observes that the complaint is fatally defective. It
contains mere conclusion of law, not concrete allegations of facts.17crallawlibrary
Ruling of the Court of Appeals
In a Petition for Review18 filed with the CA, petitioner questioned CSC Resolution No.
080059 and prayed that the CSC be ordered to assume jurisdiction over her complaint
against respondent.
On November 28, 2008, the CA issued the assailed Decision which contained the
following decretal portion:chanRoblesVirtualawlibrary
WHEREFORE, premises considered, the present petition is DISMISSED for lack of merit.
SO ORDERED.19crallawlibrary
The CA held that none of the circumstances mentioned in Section 46,20 Chapter 7, Book V,
of Executive Order No. 292 (EO 292), or the Administrative Code of 1987, is present in
petitioner’s case, and that her main complaint against respondent pertains to the latter’s
refusal to abide by the DENR judgment relative to the one-half portion of the property in
dispute, which is not connected with or related to her position or performance of her
functions as a public official. The appellate court added that while it is true that
disciplinary action may be imposed for acts or omissions not connected with a public
officer or employee’s official functions or responsibilities, such as dishonesty or
immorality, the act complained of - even if true - does not reflect on the moral fitness and
integrity of the respondent which may affect her right to continue in office. Finally, the
CA acknowledged that petitioner’s accusations against respondent were
unsubstantiated. On this point, however, the appellate court did not elaborate.
Petitioner filed a Motion for Reconsideration,21 but the CA denied the same via its
November 27, 2009 Resolution. Hence, petitioner instituted the present Petition.
Issue
Petitioner contends that the CA committed the following
error:chanRoblesVirtualawlibrary
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED WHEN IT SUSTAINED THE
DECISION OF THE CIVIL SERVICE COMMISSION IN FINDING THAT THE ACTS AND
OMISSIONS OF RESPONDENT, ARISING OUT OF HER PRIVATE TRANSACTIONS, DO NOT
CONSTITUTE ADMINISTRATIVE OFFENSES WHICH THE SAID COMMISSION COULD
TAKE COGNIZANCE OF AND DO NOT REFLECT ON HER MORAL FITNESS AND
INTEGRITY AS A PUBLIC SERVANT.22crallawlibrary
Petitioner’s Arguments
Praying that the assailed CA dispositions be set aside and that the CSC be directed to take
cognizance of her complaint against respondent, petitioner maintains in her Petition and
Reply23 that while respondent’s dishonest acts and misrepresentations were committed
in relation to a land dispute arising from her private dealings, they cast serious doubt as
to her fitness to continue in the public service. Specifically, petitioner insists that while
respondent claims that her father died in 1987, the latter was able to transfer - in 1992 -
the land in dispute to respondent’s children, which thus renders respondent guilty of
dishonesty and misrepresentation. Moreover, respondent’s defiance of the DENR
decision by orchestrating the 1992 simulated sale demonstrates her disregard for rules
and orders of duly constituted government authority, which is anathema to her position
as a public servant.
Petitioner adds that dishonesty is a serious offense, indeed so grave that it is punishable
by dismissal for the first offense under Section 23, Rule XIV of the Rules Implementing
Book V of EO 292. And, contrary to the pronouncements of the CSC and CA, dishonesty
which justifies dismissal from the service need not be committed in the course of the
performance of duty by the public officer or employee.24crallawlibrary
Petitioner further asserts that, contrary to the pronouncements of the CA, her charges
against respondent are fully substantiated and covered by sufficient attachments. She
cites her July 30, 2003 sworn letter-complaint filed with the office of the Mayor of
29
Alfonso Lista, which she claims was “complete with enclosures and attachments,
evidencing the allegations”25 against respondent.
Finally, petitioner points out that public office is a public trust; a person aspiring for
public office must observe honesty, “candor, and faithful compliance with the
law.”26 Dishonesty remains the same whether it is committed in relation to the public
official’s duties or in the course of his private dealings: it reflects on his “character and
exposes the moral decay which virtually destroys his honor, virtue and
integrity.”27crallawlibrary
Respondent’s Arguments
In seeking the denial of the instant Petition, respondent in her Comment 28 tersely
counters with a reiteration and citation of the CSC and CA pronouncements that her
complained actuations relate to her private dealings and have no bearing on her official
duties and functions; that petitioner’s remedy is to move for the execution of the
unsatisfied DENR decision or proceed to court for judicial enforcement; that the alleged
acts do not reflect on her moral fitness and integrity, nor do they affect her right to
continue in office; and finally, that petitioner’s accusations remain unsubstantiated.
Our Ruling
The Court denies the Petition.
Dishonesty is defined as the concealment or distortion of truth in a matter of fact
relevant to one’s office or connected with the performance of his duty. It implies a
disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity; lack of
honesty, probity, or integrity in principle; and lack of fairness and straightforwardness.
On the other hand, misconduct is a transgression of some established or definite rule of
action, is a forbidden act, is a dereliction of duty, is willful in character, and implies
wrongful intent and not mere error in judgment. More particularly, it is an unlawful
behavior by the public officer. x x x29crallawlibrary
Without a doubt, respondent’s supposed dishonest acts and misrepresentations
committed in relation to a land dispute arising from her private dealings cast doubt on
her fitness to discharge her responsibilities as a public official. If it is true that
respondent caused the execution of a forged or falsified deed of sale in 1992 in order to
transfer the disputed portion of the property to her children, then she committed a
dishonest act even as she is enjoined to adhere at all times to law, morality, and decency
in her private and professional life. “[D]ishonesty, in order to warrant dismissal, need not
be committed in the course of the performance of duty” by the public officer, for it
“inevitably reflects on the fitness of the officer or employee to continue in office and the
discipline and morale of the service.”30crallawlibrary
Indeed, at the very least, the acts complained of constitute conduct prejudicial to the best
interest of the service, an administrative offense which need not be related to
respondent’s official functions.
x x x As long as the questioned conduct tarnished the image and integrity of his/ her
public office, the corresponding penalty may be meted on the erring public officer or
employee. The Code of Conduct and Ethical Standards for Public Officials and Employees
(Republic Act No. 6713) enunciates, inter alia, the State policy of promoting a high
standard of ethics and utmost responsibility in the public service. Section 4(c) of the
Code commands that “[public officials and employees] shall at all times respect the rights
of others, and shall refrain from doing acts contrary to law, good morals, good customs,
public policy, public order, public safety and public interest. x x x”31crallawlibrary
However, petitioner’s accusations do not appear to hold water. From an examination of
all her letters, pleadings, and other submissions - from her letter-complaint with the
DSWD, to her sworn letter-complaint with the office of the Alfonso Lista Mayor, to her
appeal letter to the CSC, to her letter-Motion for Reconsideration with the CSC, and
finally her CA Petition for Review - it is evident that she offered nothing more than bare
imputations against the respondent. Though she claims that respondent falsified a 1992
deed of sale whereby the disputed portion was transferred to her children, the deed of
sale was never shown; a copy thereof was never attached to petitioner’s complaints and
other papers or pleadings. And if it is true that respondent’s children were able to secure
title to the disputed portion in their name through such falsified deed of sale, then
petitioner could have simply attached a copy of the new title issued in their name. But
she did not.
Petitioner is a lawyer; she should know that as the complainant in the administrative
case, upon her lies the burden of proof to establish her cause of action against the
respondent. All that is required is substantial evidence, yet she could produce none; the
allegations in her complaint are not duly supported by necessary documents that would
demonstrate the justness of her claims. While technicalities may be dispensed with in
administrative proceedings, “this does not mean that the rules on proving allegations are
entirely dispensed with. Bare allegations are not enough; these must be supported by
substantial evidence at the very least.”32crallawlibrary
Thus, in the eyes of the law, respondent committed as yet no visible wrong. The CSC and
the CA may not be faulted for deciding the way they did. From her numerous complaints
alone, it can be seen that she had no cause of action against the respondent, for her
accusations were not supported by the required documentary evidence that should have
been readily available to her, given that it consists of public documents which may be
inspected and reproduced by permission from the government offices having custody
thereof.
The Court therefore sees no reason to disturb the findings of the CSC and the CA. Their
findings of fact bind the Court unless there is a showing of grave abuse of discretion, or
that they were arrived at arbitrarily or in disregard of the evidence on record. Moreover,
their conclusion - to the effect that what remains to be done is to cause the execution of
the DENR Order in H.A. NRD, 11-15-004 (E-11-16-004) - is correct, and this may be
achieved in the same administrative case or by filing a proper case in court.
While the law and justice abhor all forms of abuse committed by public officers and
employees whose sworn duty is to discharge their duties with utmost responsibility,
integrity, competence, accountability, and loyalty, the Court must protect them against
unsubstantiated charges that tend to adversely affect, rather than encourage, the
effective performance of their duties and functions. While -
x x x We do not deny the citizen’s right to denounce recreant public officials if their
incompetence or lack of integrity or qualification may adversely affect the public service,
30
but We certainly frown upon the practice of some misguided citizens to subvert the
noble ends for which administrative discipline is designed which is to purge the public
service of undesirable officials.33crallawlibrary
WHEREFORE, the Petition is DENIED. The assailed November 28, 2008 Decision and the
November 27, 2009 Resolution of the Court of Appeals in CA-G.R. SP No. 102407
are AFFIRMED.

SO ORDERED.

31
 SO ORDERED.[5]
ROBERTO M. VILLANUEVA, G.R. No. 167726
Petitioner,
Present: The antecedents are as follows:
PANGANIBAN, C.J.,
PUNO,
- versus - QUISUMBING,
YNARES-SANTIAGO, On 24 November 1997, Villanueva, married man and the Legislative Assistant II of the
SANDOVAL-GUTIERREZ,
Cashiering and Administrative Records Division of the House of Representatives (the
CARPIO,
AUSTRIA-MARTINEZ, House), was charged with Grave Misconduct, Disgraceful and Immoral Conduct Prejudicial
CORONA,
COURT OF APPEALS and CARPIO-MORALES, to the Best Interest of the Service before the House Disciplinary Board. The charges were
HOUSE OF REPRESENTATIVES, CALLEJO, SR.,
Represented by ROBERTO P. AZCUNA, based on an entry in the Official Log Book as well as a Spot Inspection Report
NAZARENO, in his capacity TINGA, accomplished, respectively, by Frederick Maramba (Maramba) and Orencio Castillo
as Secretary General, CHICO-NAZARIO,
Respondents. GARCIA, and (Castillo), both security officers of the House who were on regular roving patrol duty on
VELASCO, JR., JJ.
the night of 16 October 1997. Their routine inspection tour included Room
Promulgated:
305, Northwing Building, Office of Representative Constantino H. Navarro, Jr., of the First
July 20, 2006 District of Surigao Del Norte.[6]

x-------------------------------------------------------------------------- x
Maramba and Castillo narrated that when they came upon said office at around 9:30 of
DECISION
that night, they saw Villanueva, a married man[7] and a female asleep on the couch, both
TINGA, J.:
naked, with the womans arm resting on Villanuevas body. The female was later

Assailed in this Rule 45 Petition for Review[1] is the Decision[2] dated 27 August 2003 of identified as Elizabeth Navarro-Arguelles (Navarro-Arguelles), Representative Navarros

the Court of Appeals in C.A.-G.R. SP No. 75002, and its Resolution[3] dated 29 March 2005 daughter and confidential assistant, herself a married woman.[8]

denying herein petitioner Roberto M. Villanuevas (Villanueva) Motion for

Reconsideration.[4] The dispositive portion of the challenged Decision reads as follows: Villanuevas immediate supervisor, Jose Ma. Antonio B. Tuano, Chief of the Cashiering and

Administrative Records Division, lodged the complaint against the former.[9]Incidentally,

WHEREFORE, the writ of certiorari is GRANTED. The questioned
resolutions of the Civil Service Commission is (sic) no charges were filed against Navarro-Arguelles as the House Disciplinary Board has no
hereby REVERSED and SET ASIDE, and the said jurisdiction over confidential assistants of Representatives.[10]
respondent ORDERED to CEASE AND DESIST from implementing the
same. The Decision of the House of Representatives Disciplinary
Board dated 07 June 2000 is hereby REINSTATED, and respondent
Villanueva is ORDERED DISMISSED from the service with forfeiture The House Disciplinary Board, after hearing, found Villanueva guilty as charged and
of all benefits.
suspended him for one (1) year without pay with a stern warning that any infraction in
No Costs. the future will be dealt with more severely.[11] However, acting on Villanuevas motion for

32
reconsideration, the House Disciplinary Board increased the penalty to dismissal with at this conclusion, the Court of Appeals emphasized the similarity of the factual

forfeiture of all benefits.[12] circumstances of the case at bar with Dicdican v. Fernan, Jr.,[20] wherein the Court

dismissed the court personnel found guilty of disgraceful and immoral conduct.[21] The

Speaker Manuel B. Villar, Jr. affirmed the latter Decision of the House Disciplinary Board appellate court stated that adherence to case law dictates the imposition of a similar

in a Resolution[13] dated 5 October 2000. Villanueva moved for a reconsideration of the penalty for the similar offense in the case at bar. Otherwise, the Court would be imposing

Decision but this was denied by Speaker Feliciano Belmonte, Jr., in a on judicial employees more stringent standards than employees of the Legislature or the

Resolution[14] dated 28 May 2001.[15] Executive.[22]

Villanueva then interposed an appeal before the Civil Service Commission (the

Commission) which, on 12 April 2002, modified the penalty to suspension. The The appellate court likewise pointed out that the Commission gravely erred in failing to

dispositive portion of the Commissions Resolution No. 020536[16] reads as follows: recognize the gravity of Villanuevas misconduct, stressing that Villanueva not only

WHEREFORE, the appeal of Robert[o] M. Villanueva is hereby disregarded his marriage vows but also exhibited total disrespect of the marital status of
partly GRANTED. The Commission holds that Villanueva is guilty of Elizabeth Navarro-Arguelles.[23]
Disgraceful and Immoral Conduct for which he is meted the penalty of
one (1) year suspension. In all other respects, the decisions appealed
from are affirmed.
Moreover, the Court of Appeals held that Villanuevas offense relates to his official

Considering that Villanueva has been out of the service for more than functions as it was made possible precisely by his official functions. By virtue of his
the imposed suspension, he should now be reinstated to his former
position, Villanueva had free rein inside the building even after office hours. Clearly,
position. It is understood that this reinstatement shall not carry with
it the payment of back salaries and other entitlements, for he is not therefore, Villanueva used his office to commit the misconduct for which he was
totally exonerated.[17]
charged,[24] it concluded.

In its motion for reconsideration, the House prayed for the re-imposition of the penalty

of dismissal on Villanueva. For his part, Villanueva moved for partial reconsideration, Finally, the appellate court disclosed its desire to improve the public regard of the

seeking that he be awarded his benefits for the period of January 1999 to February 2001. government sector by safeguarding morality in the ranks.[25]

The Commission denied both motions in Resolution No. 021492[18] dated 18 November

2002, a copy of which the House received on 21 November 2002.[19] The Court of Appeals likewise denied Villanuevas Motion for Reconsideration. [26] Thus,

In a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure filed on 20 Villanueva filed the instant petition.

January 2003 before the Court of Appeals, the House ascribed grave abuse of discretion In the instant petition, Villanueva insists that the appellate court did not have

to the Commission for reducing the penalty to a mere suspension. jurisdiction over the Houses petition for certiorari under Rule 65 of the 1997 Rules of
Civil Procedure as it was a substitute for lost appeal.[27] Villanueva also maintains that

In its challenged Decision, the Court of Appeals granted the petition for certiorari and the Commission acted well within the confines of its jurisdiction when it imposed the

sustained the Decision of the House Disciplinary Board dismissing Villanueva. In arriving penalty prescribed by law for disgraceful and immoral conduct.[28] Villanueva likewise
33

contends that the Dicdican adjudication finds no application in the instant case as it was
arrived at in the Courts exercise of its administrative jurisdiction over its
personnel.[29] Further, Villanueva points out that his misconduct is in no way connected
with his official functions and it cannot thus be equated with grave misconduct as
defined by law.[30]
Commission unless the Court issues a restraining order or an
injunction.
Moreover, Villanueva points out that the House could have easily availed of the
remedy of appeal under Rule 43 of the 1997 Rules of Civil Procedure. The House
received a copy of the assailed

In its Comment,[31] the House contends that an appeal from the decision of the
Commission would not constitute a speedy and adequate remedy thus necessitating the
resort to the remedy of certiorari under Rule 65. The House reasons that the decision of
the Commission was immediately executory and its execution would not have been
resolution of the Commission on 21 November 2002. According to the Rules, the House
had fifteen (15) days, or until 6 December 2002, to perfect an appeal which apparently, it
did not do. Instead, it filed a petition for certiorari under Rule 65 to make up for the lost
remedy of appeal.[38]

stayed by an ordinary appeal.[32] The House also maintains that the ruling of the The Court finds merit in the petition.
appellate court is in accordance with law and jurisprudence, particularly

the Dicdican case. The House argues that employees of the legislature, just like At the outset, we find that the Court of Appeals erred in giving due course to the Houses
employees of the judiciary, should be subject to the same exacting standards of morality petition for certiorari as it was filed in lieu of an appeal which is the prescribed remedy.
and decency in their professional and private conduct.[33] Section 5, Rule 43 of the 1997 Rules of Civil Procedure states that final orders or

resolutions of the Commission are appealable to the Court of Appeals through a petition
Lastly, the House posits that since Villanueva was found guilty of Grave Misconduct, for review. However, instead of availing of the remedy of appeal, the House resorted to
Disgraceful and Immoral Conduct and Conduct Prejudicial to the Best Interest of the the wrong remedy of certiorari.
Service, dismissal indeed is the appropriate penalty.[34]

Notably, the House received the assailed resolution of the Commission on 21 November
In his Reply,[35] Villanueva maintains, among other things, that even if an appeal before 2002, and thus it had until 6 December 2002 or fifteen (15) days after, to file an appeal.
the Court of Appeals does not stop the execution of the Commissions Decision the House Despite the sufficient time, the House allowed the period to elapse and instead filed a
could have applied for a restraining order or injunction to stay it,[36] noting that Section petition for certiorari under Rule 65 on 20 January 2003, close to two (2) months after
82, Rule VI of the Uniform Rules on Administrative Cases in the Civil Service[37] provides, its receipt of the resolution. Failing to undertake an appeal, the House interposed a
thus: special civil action of certiorari. Evidently, the House intended to make up for the lost

remedy of appeal and substituted it with a petition for certiorari under Rule 65.
Section 82. Effect of Pendency of Petition for
Review/Certiorari with the Court.The filing and pendency of a
petition for review with the Court of Appeals or certiorari with the
Supreme Court shall not stop the execution of the final decision of the Settled is the rule that a special civil action of certiorari is not a substitute for a lost or

lapsed remedy of appeal.[39] As the Court aptly held in David v. Cordova,[40] to wit:
34
 performance of official duties amounting either to maladministration
or willful, intentional neglect and failure to discharge the duties of the
x x x x Where appeal is available to the aggrieved party, the action for office.[44]
certiorari will not be entertained. The remedies of appeal (including
petitions for review) and certiorari are mutually exclusive, not
alternative or successive. Hence, certiorari is not and cannot be a
substitute for an appeal, especially if ones own negligence or error in
ones choice of remedy occasioned such loss or lapse. One of the Misconduct means intentional wrongdoing or deliberate violation of a rule of law or
requisites of certiorari is that there be no available appeal or any standard of behavior, especially by a government official. To constitute an administrative
plain, speedy and adequate remedy. Where an appeal is available,
certiorari will not prosper, even if the ground therefor[e] is grave offense, misconduct should relate to or be connected with the performance of the official
abuse of discretion.[41]
functions and duties of a public officer. In grave misconduct as distinguished from simple

That appeals to the Court of Appeals do not stop the execution of decisions of the misconduct, the elements of corruption, clear intent to violate the law or flagrant

Commission is not sufficient justification for resorting to the remedy of certiorari. As disregard of established rule, must be manifest. Corruption as an element of grave

correctly pointed out by Villanueva, the execution of the decision of the Commission may misconduct consists in the act of an official or fiduciary person who unlawfully and

be stayed if the House applies for and the appellate court so issues a restraining order or wrongfully uses his station or character to procure some benefit for himself or for

an injunction.[42] This thus enunciates the reality that, under the circumstances, an another person, contrary to duty and the rights of others. [45]

appeal from the decision of the Commission was an adequate and speedy remedy In the present case, Villanuevas offense was in no way connected with the performance

foreclosing the need for a Rule 65 petition for certiorari. of his functions and duties as a public officer. Sure, his office was used as a venue for the

commission of the offense and definitely, his offense speaks despicably of his character

as a man but it in no way evinced any failure on his part to discharge his duties as a

public officer. Yes, Villanuevas offense is gravely immoral and reprehensible but it falls

As the House failed to file a timely appeal, the Court of Appeals should have denied short of grave misconduct as defined by law.

outright its petition for certiorari. Moreover, even if such petition was not procedurally

flawed, still and all, it was bereft of merit and the appellate court erred in granting it. To determine whether a public officer committed misconduct, it is necessary to separate

the character of the man from the character of the officer.[46] Here, Villanuevas

First, the appellate court erred when it concurred with the Houses contention that transgression laid bare the values of his inner being but did not expose any of his

Villanuevas offense should be classified as grave misconduct. shortcoming as a public officer. Who Villanueva is and what he believes in are

inconsequential in concluding whether his misdemeanor amounts to misconduct. Rather,

Following a string of precedents, Amosco v. Magro[43] defines misconduct in this wise: what is material is whether Villanueva properly discharged his public functions which
Misconduct in office has a definite and well understood legal meaning.
we believe in no way was compromised or affected by the commission of his offense.
By uniform legal definition, it is a misconduct such as affects his
performance of his duties as an officer and not such only as affects his
character as a private individual. It is settled that misconduct,
misfeasance, or malfeasance warranting removal from office of an
officer, must have direct relation to and be connected with the

35
However, as correctly found by the Commission, we believe that Villanueva is guilty of In Dicdican, the Court sanctioned its errant personnel according to what it believed to be

Disgraceful and Immoral Conduct for having engaged in an illicit affair. In a catena of the commensurate punishment. We deemed it wise to impose more stringent standards

cases, the Court has ruled that government employees engaged in illicit relations are primarily to show that we are serious in policing our ranks. We imposed punishment

guilty of disgraceful and immoral conduct for which he/she may be held administratively in Dicdican as we deemed it proper, according to our own policies, but not without the

liable.[47] guidance of the rules in the civil service. In this case, however, we are not acting as a

personnel administrator but rather as the adjudicative appellate tribunal of last resort

According to Section 22 (o), Rule XVI of the Omnibus Rules Implementing Book V of the reviewing the decisions of lower courts. It is our responsibility to confirm whether the

Administrative Code of 1987 and Section 52 A (15) of the Uniform Rules on lower courts upheld the law. The law in this case clearly states that the proper penalty is

Administrative Cases in the Civil Service,[48] the first offense of Disgraceful and Immoral suspension and not dismissal as held by the appellate court, hence, suspension it must

Conduct is punishable by suspension of six (6) months and one (1) day to one (1) year. A be.

second offense is punishable by dismissal.

WHEREFORE, the petition is GRANTED. The Decision dated 27 August 2003 of the Court

As Villanueva is a first-time offender, the proper penalty is suspension. The Commission of Appeals in C.A.- G.R. SP No. 75002 and its Resolution dated 29 March 2005 denying

therefore correctly meted out said penalty. It clearly acted in accordance with law and no petitioners motion for reconsideration are REVERSED and SET ASIDE. Resolution No.

grave abuse of discretion can be ascribed to it contrary to the appellate courts finding.

Moreover, we do not agree with the appellate courts ruling that Dicdican should be the 020536 dated 12 April 2002 and Resolution No. 021492 dated 18 November 2002 of the
controlling precedent such that the penalty of dismissal should be imposed in the instant Civil Service Commission are AFFIRMED and REINSTATED.
case.

SO ORDERED.

As correctly pointed out by Villanueva, when the Supreme Court acts on complaints

against judges or any of the personnel under its supervision and control, it acts as

personnel administrator imposing discipline and not as a court judging justiciable

controversies.[49]

36
 G.R. No. 197307, February 26, 2014 and Fixture
Total
FLOR GUPILAN–AGUILAR AND HONORE R. HERNANDEZ, Petitioners, v. OFFICE OF P2,530,000.00 P2,820,000.00 P2,930,000.00 P3,515,000.00
Assets
THE OMBUDSMAN, REPRESENTED BY HON. SIMEON V. MARCELO; AND PNP–CIDG,
REPRESENTED BY DIR. EDUARDO MATILLANO, Respondents. Liabilities
GSIS – P450,000.00 P400,000.00 P300,000.00
DECISION Car Loan – – – P500,000.00
Total
VELASCO JR., J.: – P450,000.00 P400,000.00 P800,000.00
Liabilities
Net Worth P2,530,000.00 P2,370,000.00 P2,530,000.00 P2,715,000.00
The Case

This Petition for Review on Certiorari under Rule 45 seeks to reverse and set aside the Her SALNs for the years aforementioned do not reflect any income source other than her
July 22, 20091Decision of the Court of Appeals and its June 13, 2011 Resolution in CA– employment. The spaces for her spouse’s name and business interest were left in blank.
G.R. SP No.88954, affirming the decision of the Ombudsman in OMB–C–A–03–0327–I
that found petitioners guilty of grave misconduct and dishonesty and dismissed them Following weeks of surveillance and lifestyle probe, the PNP–CIDG investigating team,
from the service. headed by Atty. Virgilio Pablico, executed on July 28, 2003 a Joint–Affidavit, depicting
Aguilar, who, in her Personal Data Sheet, indicated “Blk 21 Lot 8 Percentage St. BIR Vill,
The Facts Fairview, QC” as her home address, as owning properties not declared or properly
identified in her SALNs, specifically the following:
In June 2003, the Philippine National Police Criminal Investigation and Detection Group
(PNP–CIDG) conducted an investigation on the lavish lifestyle and alleged nefarious Real Properties
activities of certain personnel of the Bureau of Customs, among them petitioners Flor
Gupilan–Aguilar (Aguilar), then Chief of the Miscellaneous Division, and Honore 1. Lot 6, Blk 21, BIR Village, Fairview, Quezon City worth
Hernandez (Hernandez), Customs Officer III. Aguilar was then receiving a basic annual approximately Php1,000,000.00;
salary of PhP 249,876. Her year–to–year assets, liabilities and net worth for CYs 1999 to 2. A 4–bedroom Unit 1007–A Antel Seaview Towers, 2626
2002, taken from her Statement of Assets, Liabilities and Net Worth (SALNs) for the Roxas Blvd., Pasay City worth Php12,000,000.00, with rights
corresponding years, are shown below: to 4 parking slots; and
3. Residential lot in Naga City worth Php148,200.00
Real
19993 20004 20015 20026
Properties2 Personal
House and Properties
Lot in P880,000.00 P980,000.00 P1,030,000.00 P1,030,000.00
Quezon City Make/Model Plate No. Registered Owner
Apartment Honda CRV BIM–888 Flor G. Aguilar
in Caloocan P500,000.00 P550,000.00 P550,000.00 P550,000.00 Isuzu Trooper HRH–659 Honore R. Hernandez
City
BMW (red) XCR–500 Asia Int’l Auctioneer, Inc.
Personal
BMW (silver) XFD–441 Southwing Heavy Industries, Inc.8
Properties7
Car P450,000.00 P450,000.00 P450,000.00 P900,000.00
It was also unearthed that, during a four–year stretch, from July 1999 to June 2003,
Jewelry P500,000.00 P600,000.00 P650,000.00 P750,000.00 Aguilar, per the Bureau of Immigration (BI) records, took 13 unofficial trips abroad, eight
Appliances P100,000.00 P120,000.00 P125,000.00 P135,000.00 to Los Angeles, California, accompanied most of the time by daughter Josephine. During
the same period, her two other daughters also collectively made nine travels abroad. Per
Furniture P100,000.00 P120,000.00 P125,000.00 P150,000.00

37
the PNP–CIDG’s estimate, Aguilar would have spent around PhP 3,400,000 for her and
her daughters’ foreign travels.
In view of what it deemed to be a wide variance between Aguilar’s acquired assets and
what she spent for her four–year overseas travels, on one hand, and her income, on the
other, the PNP–CIDG, through P/Director Eduardo Matillano––in a letter–complaint of
July 28, 2003, with enclosures, on a finding that she has violated Republic Act No. (RA)
13799 in relation to RA 301910 and 671311 –charged her with grave misconduct and
dishonesty. Hernandez was charged too with the same offenses. Upon evaluation of the
complaint and of the evidence presented, which included the aforementioned joint–
affidavit, the Ombudsman created an investigating panel which then conducted
administrative proceedings on the complaint, docketed as OMB–C–A–03–0327–I.
By Order of September 3, 2003, then Overall Deputy Ombudsman Margarito Gervacio, Jr.
placed Aguilar under preventive suspension for six (6) months without pay. Another
Order,12 however, was issued, effectively lifting the order of preventive suspension on
the stated ground that Aguilar’s untraversed controverting evidence “considerably
demonstrated the weakness of the evidence in support of the complaint.”
In the meantime, Aguilar filed her Counter–Affidavit,13 primarily addressing the
allegations in the aforementioned joint–affidavit. In it, she belied allegations about not
declaring Lot 6, Blk 21, BIR Village, Fairview. As explained, what she considers her
dwelling in that area consists of a duplex–type structure that sits on the Lot 8 she
originally owned and the contiguous Lot 6, which she subsequently acquired from one
Norma Jurado. Anent Unit 1007–A of Antel Seaview Towers, Aguilar pointed to her US–
based brother Carlo as owner of this condo unit, the latter having purchased it from Mina
Gabor on July 14, 2003. Carlo, as she averred, has allowed her to stay in the unit.
Appended to Aguilar’s counter–affidavit is a Deed of Sale14 purportedly executed in Los
Angeles in favor of Carlo.
Aguilar also denied owning the so–called third real property, the Panicuason, Naga City
lot, since she had already sold it in 1992.
As to allegations that she owns but failed to declare the four above–listed vehicles,
Aguilar admitted to owning only the subject Honda CRV van, but denied the charge of
failing to declare it in her SALN. She ascribed ownership of the Isuzu Trooper to
Hernandez. As for the red and silver BMW cars registered in the name of the entities
mentioned in the complaint, Aguilar alleged that they were merely lent to her by her
brother’s friend.
Not being the owner of the properties aforementioned, Aguilar wondered how she can
be expected to include them in her SALN.
Finally, she claimed having seven brothers and two sisters in the US who had sponsored
her US trips and who at times even sent airline tickets for her and her daughters’ use.
Hernandez, for his defense, alleged that the complaint adverted only to his being the
registered owner of an Isuzu Trooper. There is no specification, he added, as to his
acquisition of, and not declaring, unexplained wealth.15
Ruling of the Ombudsman
Based on the evidence on record and the parties’ position papers, the investigating panel
issued for approval a draft Decision16 dated June 3, 2004, which found Aguilar guilty of
the offenses charged. And while Hernandez was also charged and investigated,
the fallo and even the body of the proposed decision was silent as to him, save for the
following line:
x x x the fact that the motor vehicle, Isuzu Trooper with Plate No. HRH 659 is registered
in his [Hernandez’s] name, does not make him administratively liable.17
Evidently not totally satisfied with the panel’s recommended action, the Ombudsman
directed that a joint clarificatory hearing be conducted, and one was held on September
23, 2004. The proceedings resulted in the issuance of what the investigating panel styled
as Supplemental Decision18 dated January 6, 2005 further detailing the bases for the
earlier finding on Aguilar’s liability. Like the earlier draft, no reference was made in
the fallo of the Supplemental Decision to Hernandez’s guilt or innocence.
Following a review of the two issuances thus submitted, then Ombudsman Simeon
Marcelo issued on January 18, 2005 a decision denominated Supplement,19 approving,
with modification, the adverted Decision and Supplemental Decision. The modification
relates to the liability of Hernandez whom the Ombudsman found to be Aguilar’s dummy
and equally guilty of grave misconduct and dishonesty deserving too of the penalty of
dismissal from the service. Dispositively, the Supplement reads:
WHEREFORE, the Decision dated 03 June 2004 and Supplemental Decision dated 06
January 2005 are approved insofar as it finds respondent Flor Aguilar guilty of the
administrative offenses of Grave Misconduct and Dishonesty and is hereby meted the
penalty of DISMISSAL from the service, with the accessory penalty of cancellation of
eligibility, forfeiture of retirement benefits and perpetual disqualification for re–
employment in the government service.
Further, the undersigned hereby disapproves the ruling contained in the Decision dated
03 June 2004 with regard to Honore Hernandez, the latter being likewise found guilty of
the administrative offenses of Grave Misconduct and Dishonesty and is hereby meted the
penalty of Dismissal from the service, with the accessory penalty of cancellation of
eligibility, forfeiture of retirement benefits and perpetual disqualification for re–
employment in the government service.
SO ORDERED.
38
Aguilar and Hernandez moved for but were denied reconsideration 20 via an Order21 of
February 28, 2005. The two then went to the Court of Appeals (CA) on a petition for
review under Rule 43, docketed as CA–G.R. SP No. 88954. Even as they decried what they
tag as a case disposition in installments, petitioners asserted the absence of substantial
evidence to support the allegations in the complaint, and that the judgment of dismissal
is recommendatory and not immediately executory.
Ruling of the Court of Appeals
The CA, in its assailed Decision of July 22, 2009, affirmed that of the Ombudsman,
disposing as follows:
WHEREFORE, the instant petition is DENIED and the assailed Decision of the
Ombudsman finding petitioners guilty of Grave Misconduct and Dishonesty, and meted
them the penalty of DISMISSAL from the government service, with the accessory penalty
of cancellation of elibility, forfeiture of retirement benefits and perpetual disqualification
for reemployment in the government service in OMB–C–A–03–0327–I is AFFIRMED.
SO ORDERED.[22
Even as it junked petitioners’ contention on the sufficiency of the complainant’s
inculpating evidence and on the nature of the Ombudsman’s judgment, the CA declared
that petitioners’ remedy under the premises is an appeal to this Court by force of Section
14 in relation to Sec. 27 of RA 6770 or the Ombudsman Act of 1989. Sec. 14 provides
that “[n]o court shall hear any appeal or application for remedy against the
decisions or findings of the Ombudsman, except the Supreme Court on pure
questions of law,” while Sec. 27 states that “[f]indings of fact by the [OMB] when
supported by substantial evidence are conclusive.”
On June 13, 2011, the CA denied petitioners’ motion for reconsideration.
Hence, the present petition raising the following issues:
1. Whether or not a Rule 43 petition to assail the findings or decisions of the
Ombudsman in an administrative case is proper;
2. Whether or not the acts complained of constitute grave misconduct, dishonesty
or both;
3. Whether or not there is substantial evidence to support the assailed findings of
the Ombudsman and the CA; and
4. Whether or not the decision of the Ombudsman is but recommendatory or
immediately executory.
Petitioners also invite attention to the June 4, 2012 decision of the Regional Trial Court
(RTC) of Manila in Criminal Case No. 08–263022, acquitting Aguilar for falsification
allegedly involving the same disputed transactions in OMB–C–A–03–0327–I.
The Court’s Ruling
The petition, on its procedural and substantial aspects, is partly meritorious. The Court
shall first address procedural issues and concerns raised in this recourse.
Petitioners properly appealed to the CA
Petitioners first contend that the CA erred in its holding that, in line with Sec. 1423 and
Sec. 27 of RA 6770, they should have appealed the Ombudsman’s Decision to this Court
on questions of law instead of filing a Rule 43 petition before the CA.
Petitioners stand on solid ground on this issue.
The Ombudsman has defined prosecutorial powers and possesses adjudicative
competence over administrative disciplinary cases filed against public officers. What
presently concerns the Court relates to the grievance mechanism available to challenge
the OMB’s decisions in the exercise of that disciplinary jurisdiction.
The nature of the case before the Office of the Ombudsman (OMB) determines the proper
remedy available to the aggrieved party and with which court it should be filed. In
administrative disciplinary cases, an appeal from the OMB’s decision should be taken to
the CA under Rule 43, unless the decision is not appealable owing to the penalty
imposed.
In the case at bar, the Ombudsman, in the exercise of his administrative disciplinary
jurisdiction had, after due investigation, adjudged petitioners guilty of grave misconduct
and dishonesty and meted the corresponding penalty. Recourse to the CA via a Rule 43
petition is the proper mode of appeal. Rule 43 governs appeals to the CA from decisions
or final orders of quasi–judicial agencies.24
Reliance by the CA on Sec. 14 in relation to Sec. 27 of RA 6770 to support its position as
to which court a party may repair to to assail the OMB’s decision in disciplinary cases is
misinformed. As has been held, those portions of said Sec. 27 and any other provisions
implementing RA 6770, insofar as they expanded the appellate jurisdiction of this Court
without its concurrence, violate Article VI, Sec. 30 of the 1987 Constitution.25 We said so
in the landmark Fabian v. Desierto:26
WHEREFORE, Section 27 of [RA] 6770 (Ombudsman Act of 1989), together with Section
7, Rule III of [A.O.]. 07 (Rules of Procedure of the [OMB]), and any other provision of law
or issuance implementing the aforesaid Act and insofar as they provide for appeals in
administrative disciplinary cases from the Office of the Ombudsman to the
Supreme Court, are hereby declared INVALID and of no further force and
effect.(Emphasis added.)
As a consequence and in line with the regulatory philosophy adopted in appeals from
quasi–judicial agencies in the 1997 Revised Rules of Civil Procedure, appeals from
39
decisions of the Ombudsman in administrative disciplinary cases should be taken to the
CA under the provisions of Rule 43.27Barata v. Abalos, Jr.,28Coronel v. Desierto,29 and
recently Dimagiba v. Espartero30 have reiterated the pertinent holding in Fabian.
The Decision of the Ombudsman is mandatory and immediately executory
This brings us to the issue on the nature of the Ombudsman’s decisions in administrative
disciplinary suits, it being petitioners’ posture that such decisions, as here, are only
recommendatory and, at any event, not immediately executory for the reason that the
PNP–CIDG filed the basic complaint on August 20, 200331 when the ruling in Tapiador v.
Office of the Ombudsman32 had still controlling sway. To petitioners, Tapiador enunciated
the dictum that the Ombudsman’s disciplinary power is only to recommend, the power
to suspend and dismiss erring personnel being vested in the head of the office concerned.
As a corollary point, petitioners also advance the argument that the legal situation
changed only when Office of the Ombudsman v. Court of Appeals33 and Ombudsman v.
Samaniego34 were decided in June 2006 and September 2008, respectively.
We are not impressed.
Petitioners’ witting or unwitting invocation of Tapiador is specious. Administrative
disciplinary authority of the OMB does not end with a recommendation to punish. The
statement in Tapiador that the Ombudsman is without authority to directly dismiss an
erring public official as its mandate is only to recommend was mere obiter dictum, and
cannot, in the words of Ledesma v. Court of Appeals,35 “be cited as a doctrinal declaration
of the Supreme Court.” In fact, the pronouncement in Tapiador on the Ombudsman’s
disciplinary authority was only limited to two sentences, to wit:
x x x Besides, assuming arguendo, that petitioner were administratively liable, the
Ombudsman has no authority to directly dismiss the petitioner from the government
service x x x. Under Section 13, subparagraph (3), of Article XI of the 1987 Constitution,
the Ombudsman can only “recommend” the removal of the public official or employee
found to be at fault, to the public official concerned.36
The terse obiter in Tapiador should be compared with the holding in Ombudsman v. De
Leon37 which even chronicled the pertinent internal rules of procedure in the Office of
the Ombudsman (OMB) and illustrated that, as early as 2000, rules were already
enforced by the OMB that provide for the immediate execution of judgments pending
appeal. As pointed out in De Leon, Sec. 27 of the Ombudsman Act of 1989 prescribes the
rules on the effectivity and finality of the OMB’s decisions:
SEC. 27. Effectivity and Finality of Decisions. – (1) All provisionary orders at the Office of
the Ombudsman are immediately effective and executory.
xxxx
In all administrative disciplinary cases, orders, directives, or decisions of the
Office of the Ombudsman may be appealed to the Supreme Court by filing a
petition for certiorari within ten (10) days from receipt of the written notice of the
order, directive or decision or denial of the motion for reconsideration in
accordance with Rule 45 of the Rules of Court.
The above rules may be amended or modified by the Office of the Ombudsman x x
x. (Emphasis supplied.)
The then Sec. 7, Rule III of Administrative Order No. 07 (AO 07) or the Rules of
Procedure of the OMB, in turn, stated:
Sec. 7. Finality of decision. – Where the respondent is absolved of the charge, and in case
of conviction where the penalty imposed is public censure or reprimand, suspension of
not more than one month, or a fine equivalent to one month salary, the decision shall be
final and unappealable. In all other cases, the decision shall become final after the
expiration of ten (10) days from receipt thereof by the respondent, unless a motion for
reconsideration or petition for certiorari, shall have been filed by him as
prescribed in Section 27 of RA 6770. (Emphasis supplied.)
The Court, in Lapid v. Court of Appeals,38 has interpreted the above–quoted provision to
mean that the sanctions imposed by the Ombudsman other than public censure,
reprimand, suspension of not more than one month or a fine equivalent to one month
salary are not immediately executory and can be stayed by an appeal timely filed. The
pertinent ruling in Lapid has, however, been superseded.39 On August 17, 2000, AO 14–A
was issued amending Sec. 7, Rule III of the Rules of Procedure of the OMB. The rule, as
thus amended, pertinently reads:
Section 7. Finality and execution of decision. – Where x x x the penalty imposed is public
censure or reprimand, suspension of not more than one month, or a fine equivalent to
one month salary, the decision shall be final and unappealable. In all other cases, the
decision may be appealed x x x.
An appeal shall not stop the decision from being executory. In case the penalty is
suspension or removal and the respondent wins such appeal, he shall be considered as
having been under preventive suspension and shall be paid the salary and such other
emoluments that he did not receive by reason of the suspension or removal. (Emphasis
supplied.)
Then came AO 17 dated September 15, 2003 further amending Sec. 7 of Rule III. Thus,
the section now provides:
Section 7. Finality and execution of decision. – Where the respondent is absolved of the
charge, and in case of conviction where the penalty imposed is public censure or
reprimand, suspension of not more than one month, or a fine equivalent to one month
salary, the decision shall be final, executory, and unappealable. In all other cases, the
decision may be appealed to the Court of Appeals x x x.
40
An appeal shall not stop the decision from being executory. In case the penalty is
suspension or removal and the respondent wins such appeal, he shall be
considered as having been under preventive suspension and shall be paid the
salary and such other emoluments that he did not receive by reason of the
suspension or removal. (Emphasis supplied.)
Clearly then, as early as August 17, 2000, when AO 14–A was issued, the OMB–imposed
penalties in administrative disciplinary cases were already immediately executory
notwithstanding an appeal timely filed. In this case, it must be noted that the complaint
dated July 28, 2003 was filed on August 20, 2003 or after the AO 14–A has come into
effect. Thus, no error can be attributed to the CA when it ruled that the penalties imposed
by the Ombudsman against petitioners are immediately executory. Immediate execution
argues against the outlandish notion that the Ombudsman can only recommend
disciplinary sanctions.
The acts complained of constitute Dishonesty but not Grave Misconduct
a. Grave Misconduct
The charges against petitioners for grave misconduct and dishonesty basically stemmed
from their alleged act of amassing unexplained wealth or acquiring properties
disproportionate to their income, petitioner Aguilar’s alleged failure to declare them in
her SALNs, and for petitioner Hernandez’s alleged acquiescence to be her dummy. To our
the mind, however, we find that even if petitioners, for argument, failed to include
several properties in their SALNs, the omission, by itself, does not amount to grave
misconduct.
Largo v. Court of Appeals40 is instructional as to the nature of the offense. To constitute
misconduct, the complained act/s or omission must have a direct relation and be linked
to the performance of official duties. The Court wrote in Amosco v. Magro:
x x x By uniform legal definition, it is a misconduct such as affects his performance of
his duties as an officer and not such only as affects his character as a private
individual. In such cases, it has been said at all times, it is necessary to separate the
character of the man from the character of the officer x x x. It is settled that misconduct,
misfeasance, or malfeasance warranting removal from office of an officer must have
direct relation to and be connected with the performance of official duties amounting
either to maladministration or willful, intentional neglect and failure to discharge the
duties of the office x x x.41
Owning properties disproportionate to one’s salary and not declaring them in the
corresponding SALNs cannot, without more, be classified as grave misconduct. Even if
these allegations were true, we cannot see our way clear how the fact of non–
declarations would have a bearing on the performance of functions by petitioner Aguilar,
as Customs Chief of the Miscellaneous Division, and by petitioner Hernandez, as Customs
Operations Officer. It is non–sequitur to assume that the omission to declare has served,
in some way, to hinder the rendition of sound public service for there is no direct
relation or connection between the two. Without a nexus between the act complained of
and the discharge of duty, the charge of grave misconduct shall necessarily fail.
b. Dishonesty
Dishonesty, as juridically understood, implies the disposition to lie, cheat, deceive, or
defraud; untrustworthiness; lack of integrity; lack of honesty or probity in principle; lack
of fairness and straightforwardness; disposition to defraud, deceive or betray.42 It is a
malevolent act that puts serious doubt upon one’s ability to perform duties with the
integrity and uprightness demanded of a public officer or employee.43
The inculpatory allegations in the controversy, if proved, qualify as acts of dishonesty
that would merit dismissal from service. The requirement of filing a SALN is enshrined,
as it were, in the Constitution44 to promote transparency in the civil service and operates
as a deterrent against government officials bent on enriching themselves through
unlawful means. By mandate of law, it behooves every government official or employee
to make a complete disclosure of his or her assets, liabilities and net worth in order to
suppress any questionable accumulation of wealth because the latter usually results
from non–disclosure of such matters.45
The significance of requiring the filing of a complete, truthful, and sworn SALN as a
measure to curb corruption in the bureaucracy cannot be gainsaid. Secs. 7 and 8 of
the Anti–Graft and Corrupt Practices Act (RA 3019) are emphatic on this point:
Sec. 7. Statement of Assets and Liabilities. — Every public officer, within thirty days after
assuming office, and thereafter, on or before the fifteenth day of April following the close
of every calendar year, x x x shall prepare and file x x x a true, detailed and sworn
statement of the amounts and sources of his income, the amounts of his personal and
family expenses and the amount of income taxes paid for the next preceding calendar
year x x x.
Sec. 8. Prima Facie Evidence of and Dismissal Due to Unexplained Wealth. — If in
accordance with the provisions of [RA 1379], a public official has been found to have
acquired during his incumbency, whether in his name or in the name of other persons, an
amount of property and/or money manifestly out of proportion to his salary and to his
other lawful income, that fact shall be ground for dismissal or removal. Properties in the
name of the spouse and dependents of such public official may be taken into
consideration, when their acquisition through legitimate means cannot be satisfactorily
shown. x x x [M]anifestly excessive expenditures incurred by the public official, his
spouse or any of their dependents including x x x frequent travel abroad of a non–official
character by any public official when such activities entail expenses evidently out of
proportion to legitimate income, shall likewise be taken into consideration in the
enforcement of this Section x x x. The circumstances hereinabove mentioned shall
constitute valid ground for the administrative suspension of the public official concerned
for an indefinite period until the investigation of the unexplained wealth is completed.
41
The aforequoted Section 8 speaks of unlawful acquisition of wealth and excessive
expenditure, the evil sought to be suppressed and avoided, and Section 7, which directs
full disclosure of wealth in the SALN, is a means of preventing said evil and is aimed
particularly at minimizing if not altogether curtailing the opportunities for official
corruption and maintaining a standard of honesty in the public service. By the SALN, the
public is able to monitor movement in the fortune of a public official; it serves as a valid
check and balance mechanism to verify undisclosed properties and wealth.46
The failure to file a truthful SALN puts in doubts the integrity of the officer and would
normally amount to dishonesty. It should be emphasized, however, that mere
misdeclaration in the SALN does not automatically amount to such an offense.
Dishonesty requires malicious intent to conceal the truth or to make false statements;
otherwise, the government employee may only liable for negligence, not for
dishonesty.47 In addition, only when the accumulated wealth becomes manifestly
disproportionate to the income of the public officer/employee and income from other
sources, and the public officer/employee fails to properly account or explain these
sources of income and acquisitions, does he or she become susceptible to dishonesty.48
Substantial evidence
The core of the controversy in this case lies in whether or not the complainant’s pieces of
evidence extant in and deducible from the records meet the quantum of evidence
required to justify the dismissal action taken against petitioners. Petitioner Aguilar
argues that the initial evidentiary assessment by the OMB when it lifted the order of
preventive suspension was correct. To recall, the OMB declared at that time that the
evidence PNP–CIDG presented was not strong enough to support the basic complaint.
In essence, petitioners, Aguilar in particular, urge us to gauge whether or not the
complainant has hurdled the quantum of evidence requirement in administrative cases
so as to shift the burden of evidence on them. Respondents, on the other hand, are
correct in pointing out that a review of the evidence would necessarily entail a
corresponding evaluation of facts ascertained by the Ombudsman and the CA, and that as
a general rule, the Court should refrain from delving into factual questions. However, we
have already held in a catena of cases that the general rule admits of exceptions,
including when the judgment is based on misappreciation of facts or when the findings of
facts are conflicting.49 In light of the series of seemingly confusing orders and rulings
promulgated by the Ombudsman, it is beyond cavil that a review of the facts in this case
is warranted.
a. Evidence against petitioner Aguilar
i. Lot 6, Block 21, BIR Village, Fairview, Quezon City
Petitioner Aguilar admits owning this parcel of land, but insists at every turn that she
had consistently declared it in her SALNs. A perusal of her SALNs from 1999–2002 would
indeed show that she had declared ownership of the Fairview property, entering it
merely as “House & Lot, Q.C.” This is as opposed to the allegations of the PNP–CIDG that
what she has been declaring is Lot 8 of Block 21, and not Lot 6.
We sustain the findings of the Ombudsman contained in the Supplemental Decision as to
the validity of petitioner Aguilar’s account on this point. As observed by the Ombudsman,
the house and lot she declared as residence is actually a duplex–type structure, with a
party wall in the middle, erected on two lots, Lots 6 and 8. When petitioner Aguilar
purchased Lot 8 from one Norma Jurado, she dismantled the dividing wall to make a
solitary unit.
This explanation finds support from a perusal of her travel documents wherein she
interchanges her address between said Lot 6 and Lot 8.
ii. Antel Towers
Petitioner Aguilar argues next that the four–bedroom condominium apartment with two
parking slots along Pasay City is actually owned by her US–based brother Carlo who
allegedly purchased it from Mina Gabor, as evidenced by the Deed of Sale dated July 14,
2003.
The Court, as were the CA and the OMB, is unconvinced. A cursory reading of the deed
shows July 14, 2003, or a month after the PNP–CIDG initiated an investigation over
Aguilar’s lifestyle, as its date of execution. On the other hand, petitioner Aguilar admitted
during the clarificatory hearing conducted on September 23, 2004 that, as early as 2000,
she and her daughter have already been occupying the apartment, thus:
Q: You said in your direct clarificatory questioning that you don’t know when Carlo
Gupilan bought this property? A: Yes, sir.
Q: But when did you reside in that property for the first time? A: Mga 2000 pa yun.
Q: When for the first time did you know that Carlo Gupilan acquired that Antel Towers
property? A: Noon pong sinabi niya: “Ate, napakalayo sa opisina mo ang bahay mo. Gusto
mo gamitin mo yung bahay ko sa Pasay?”
Q: Mga kailan yun? A: Mga 2000.50
Evidently, a serious disparity exists between the document presented and the statements
petitioner Aguilar herself made. As the CA observed, citing the Ombudsman’s findings,
petitioner insists that the property is owned by her brother Carlo who invited her to stay
in his condo unit in 2000. However, per the document she presented, the alleged Deed of
Sale between him and Gabor, was only executed on July 14, 2003.
On what authority then she has been staying on the apartment unit before the alleged
Carlo–Gabor sales transaction was executed remained unexplained. This aberration
coupled by her beneficial ownership of the property, as demonstrated by her possession
42
and occupancy of the unit, casts serious doubts as to her brother’s alleged ownership of
the unit since 2000 and renders dubious the alleged deed of sale. To recall, graft
investigators will not only look into properties in a public servant’s name, but also those
claimed by their relatives or dummies. The SALN requirement will be a useless ritual if
public officers can easily evade the obligation to disclose if they register the asset under
someone else’s name.
iii. Naga City property
As petitioner Aguilar alleged, she purchased the property from her parents who, in June
1990, executed the corresponding deed of sale in her favor. This sale may be
documented, but her claim that she subsequently sold the Naga property to one Rosendo
Gonzales sometime in 1992 is not supported by evidence. She has not adduced any
document or deed proving that she no longer owns the property. On the other hand, the
PNP–CIDG was able to secure from the City Assessor’s office a copy of the tax declaration
of the property in 2002 which, on its face, clearly yields this fact: the property is still
registered under Aguilar’s name; the alleged sale between her and Rosendo Gonzales
was not annotated.
iv. Vehicles
There is no quibbling as to the ownership of the Honda CRV and the Isuzu Trooper. The
question pivots only as to the two (2) BMWs that petitioner Aguilar had acknowledged
using.
Per petitioner Aguilar’s account, a friend of another brother, Salvador, has allowed her
the use of the BMWs. As claimed, US–based Salvador is in the business of exporting used
cars from the US to the Philippines and has local contacts which include the two
corporations under whose names the BMWs are registered. The PNP–CIDG, on the other
hand, submitted pictures51 taken during its surveillance of Aguilar showing the red and
silver BMWs leaving the parking space of Antel Towers, if not parked at slots reserved
for the use of the unit Aguilar has been occupying.
We rule, as the CA and the Ombudsman earlier did, against petitioner Aguilar on this
point. As found by the Ombudsman and confirmed by the CA, petitioner Aguilar had
control and possession––both attributes of ownership––of the two BMW vehicles. While
she alleged having only borrowed them, her statement during the clarificatory hearings
that she does not know who the real owners are over stretches credulity. Her allegation
was that the vehicles were only lent her by her brother’s friend. But when pressed on
how she came into contact with the friend, who was unnamed, since her brother is in the
US, she was unable to give a direct answer.52
In another perspective, it bears to stress that petitioner Aguilar, a ranking customs
official, had veritably admitted to receiving benefits from the above named corporations
which had been facilitating her brother’s used car export business. As correctly observed
by the Ombudsman, Sec. 7 of RA 6713 or theCode of Ethical Standards53 prohibits public
officials and employees from directly or indirectly soliciting or accepting gifts, favor or
things of monetary value from anyone in connection with any operation being regulated
by, or any transaction which may be affected by the functions of their office. The Anti–
Graft and Corrupt Practices Act declares and penalizes similar acts.54
The act complained of as regards the BMW cars for sure is indicative of corruption,
tending to suggest that petitioner Aguilar had used her position in the customs bureau to
advance her brother’s business interests as well as that of the two corporations which
facilitate the vehicle exportation and importation business. Thus, even in the absence of
compelling evidence to prove that petitioner Aguilar is the actual owner of the subject
high–priced BMW vehicles, she can still be held amenable under the premises for
conduct prejudicial to the best interest of the service.
v. Foreign Travels
Petitioner Aguilar’s exculpating allegations, as earlier narrated, as to her foreign travels
during the period material fail to convince.
While indeed some of her siblings executed affidavits tending to prove they have
sufficient income to shoulder her travels, they stopped short of saying that they did in
fact contribute or entirely pay, as Aguilar urges the Court to believe, for her and her
daughters’ trip to Los Angeles. Nowhere in the documents was it mentioned that they
defrayed petitioner Aguilar’s expenses for her visits. The general affidavits merely
indicated their jobs and how much salary they receive monthly. As held in Office of the
Ombudsman v. Racho,55 an unexplained wealth case, the documents that Racho
presented, purportedly showing his brothers’ financial capability to send or contribute
large sum of money for their business, do not prove that they did, in fact, contribute or
remit money for their supposed joint business venture.
As a final note on the matter, petitioner Aguilar had submitted affidavits 56 wherein she
averred that all expenses for her and her daughter’s travel shall be borne or defrayed by
her alone.57 So what happens to her claim that her siblings shouldered most of her travel
expenses?
vi. Summary
Administrative proceedings are governed by the “substantial evidence rule,” meaning a
finding of guilt in an administrative case may and would issue if supported by substantial
evidence that the respondent has committed the acts stated in the complaint. Substantial
evidence is more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion, even if other minds equally
reasonable might conceivably opine otherwise.58 Its absence is not shown by stressing
that there is contrary evidence, direct or circumstantial, on record.59
In the case at bar, the required evidence sufficient to justify holding petitioner Aguilar
administratively liable has been, to us, as to the CA, satisfied. Not only did she fail to
declare in her SALN the residential lot located at Panicuason, Naga City, she likewise
failed to satisfactorily explain her beneficial ownership of the Antel Seaview Towers
43
four–bedroom condominium unit and her use of the two BMWs registered in the name of
different corporations, which, as the records show, are both based in Olongapo City.
Relevant to this determination is Sec. 2 of RA 1379,60 in relation to Sec. 8 of RA 3019,
which states that whenever any public officer or employee has acquired during his
incumbency an amount of property which is manifestly out of proportion to his salary as
such officer or employee and to his other lawful income and the income from
legitimately acquired property, said property shall be presumed prima facieto have been
unlawfully acquired. When the presumption holds, the burden of evidence then shifts to
the respondent, in this instance petitioner Aguilar, to show that the financial resources
used to acquire the undeclared assets and her expenditures came from lawful income. To
be sure, petitioner Aguilar has failed to discharge this burden, as the CA, and the OMB
before it, have determined. The explanation she offered when confronted with her
undeclared acquisitions and travel splurge is too flimsy compared to her own admissions
as to her beneficial ownership over the properties. Her SALNs during the years in
question clearly indicated she was a pure compensation income earner. With an annual
salary of PhP 249,876, it is incomprehensible how she could have acquired her
undeclared assets on top of paying for her annual travels and living expenses. The
discrepancy in the total valuation of her declared and undeclared assets is also too
glaring for petitioner Aguilar’s omission to be written off as mere negligence or
carelessness. As a result, no error can be attributed to the CA and the Ombudsman
adjudging her guilty of dishonesty.
Petitioner Aguilar’s acquittal in Crim. Case No. 08–263022 of the Manila RTC on the
ground of insufficiency of evidence would not carry the day for her. The dismissal of the
criminal aspect of the complaint filed against Aguilar has hardly any bearing on the
administrative case mainly because the quantum of evidence required to support a
finding of guilt in a criminal case is proof beyond reasonable doubt. Administrative cases
are, as a rule, separate and independent from criminal suits and are governed by
differing evidentiary criteria. The acquittal of an accused who is also a respondent in an
administrative case does not conclude the administrative proceedings, nor carry with it
relief from administrative liability. This is because unlike in criminal cases where the
threshold quantum of evidence required is proof beyond reasonable doubt, only
substantial evidence is necessary in administrative cases.61
b. Evidence against petitioner Hernandez
Unlike in the case of his co–petitioner, this Court is unable to make out a case of
dishonesty, let alone grave misconduct against petitioner Hernandez. To be sure, the
OMB investigating panel, in the Decision dated June 3, 2004, recommended petitioner
Hernandez’s exoneration. However, in a bizarre twist, the Ombudsman, in
its Supplement dated January 18, 2005, disapproved the panel’s own assessment of the
sufficiency of evidence as regards petitioner Hernandez and ruled that, while the Isuzu
Trooper with Plate No. HRH–659 was registered under his name, it is actually owned by
Aguilar. Accordingly, the Ombudsman decreed Hernandez’s dismissal for supposedly
consenting to act as Aguilar’s dummy. The Ombudsman, in net effect, used petitioner
Hernandez’s own admission of vehicle ownership against him and ruled that he could
not afford to acquire the car on his salary of PhP 14,098 a month.
In ruling for petitioner Hernandez, we do so taking stock of the pronouncement in the
first–issued Decision of the Ombudsman. There was indeed no specific allegation in the
complaint against him other than his owning an Isuzu Trooper vehicle, which he
declared in his SALN. But mere ownership is not an actionable administrative offense.
The PNP–CIDG also did not present any additional evidence as against petitioner
Hernandez. We are, thus, at a loss to understand how the Ombudsman, after saying in not
so many words that Hernandez was not guilty, would completely reverse itself in
the Supplement. Having already disposed of the issue as regards petitioner Hernandez in
the Decision, it was then quite improper for the Ombudsman to reverse its findings six
months after, albeit no evidence had been adduced in the interim to support the new
finding.
While the Ombudsman’s reasoning––as adopted by the CA, regarding petitioner
Hernandez’s purchasing capability, or lack of it––may be plausible at first blush, the
latter was able to justify his ownership of the Isuzu Trooper. Evidence on record would
show that aside from his employment, he and his wife have other sources of income. As
he alleged in his pleadings, his wife, Ruth, is a practicing physician who, besides
maintaining a clinic in both the Seamen’s Hospital in Manila and at the Medical Center
Muntinlupa, engages in OB–GYN consultancy. And as seen in his SALN for 2002, the
couple run Sarah Katrina’s Drugstore in Las Piñas City and even own shares of stocks in
Medical Center Muntinlupa. A car loan worth PhP 1,600,000 was also reported in his
2002 SALN.62 In fine, there is valid reason to conclude that the Hernandez couple, with
their combined income, could very well afford a medium–priced motor van.
Given these circumstances, the innocence claim of petitioner Hernandez becomes all the
more credible and the justifications offered sufficient to absolve him of administrative
liability. It should be understood that the laws on SALN aim to curtail the acquisition of
unexplained wealth. Where the source of the undisclosed wealth can be properly
accounted for, as in the case of petitioner Hernandez, then it is “explained wealth” which
the law does not penalize.63
Under OMB AO 17, if the respondent, meted by OMB the penalty of suspension or
removal, is exonerated on appeal, he shall be considered as having been under
preventive suspension and shall be paid the salary and such other emoluments that he
failed to receive by reason of that suspension or removal. So it must be in the case of
petitioner Hernandez.
WHEREFORE, the petition is PARTIALLY GRANTED. The appealed July 22, 2009
Decision and June 13, 2011 Resolution in CA–G.R. SP No.88954 are MODIFIED. The
charge for Grave Misconduct against Flor Gupilan–Aguilar is DISMISSED, while the
appellate court’s finding of her liability for Dishonesty and the corresponding penalty
imposed are AFFIRMED.
The CA Decision, however, insofar as it finds Honore Hernandez guilty of the offenses
charged against him, is hereby REVERSED and SET ASIDE. The complaint against him
for Grave Misconduct and Dishonesty is accordingly DISMISSED. He is accordingly
ordered REINSTATED immediately to his former or equivalent position in the Bureau of
Customs without loss or diminution in his salaries and benefits. In addition, he shall be
44
paid his salary and such other emoluments corresponding to the period he was out of the
service by reason of the judgment of dismissal decreed by the Office of the Ombudsman,
as affirmed by the Court of Appeals.

SO ORDERED.

45
G.R. No. 194645 March 6, 2012 Clave countered that she was not aware of Tornea’s loan because it was processed by
Estoque on 9 December 2003 and she was absent on that day. Clave further alleged that
CIVIL SERVICE COMMISSION, Petitioner, the authority given to her on loan applications was limited only to granting salary loan
vs. applications and cancelling voided checks or checks that were physically defective due to
AURORA M. CLAVE, Respondent. computer malfunction. Clave alleged that she was not authorized to use Function "D"
which was the deletion function used in cancelling the header of Tornea’s loan.
According to Clave, only the section and division chiefs of the loans administrative
x-----------------------x division and the Information Technology Services Group (ITSG) can access Function "D."
Finally, Clave alleged that, at that time, she had been with the GSIS for 28 years with
G.R. No. 194665 unblemished service and dedicated loyalty.

GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS), Petitioner, The Decision of the GSIS
vs.
AURORA M. CLAVE, Respondent. In its 23 May 2007 Decision,3 the GSIS found Clave guilty of simple neglect of duty. The
GSIS ruled that while Clave was not authorized to use transaction code "LSMH.D" to
DECISION delete loan headers, she was given authority to cancel loans that were previously
granted by using transaction code "LSLC," which was used in this case. The GSIS ruled
PER CURIAM: that each employee tasked to grant or cancel loans is assigned a corresponding user ID
and password known only to the specified user. The ID is the tracking device used to
establish the identity of the person responsible for any modification or alteration in the
The Cases MSLS database. All the transactions of a particular user are recorded and logged in the
MSLS database. In this case, it was shown that Clave was responsible for the cancellation
Before the Court are two petitions for certiorari assailing the 27 July 2010 Decision1 and of the header of Tornea’s loan.
24 November 2010 Resolution2 of the Court of Appeals in CA-G.R. SP No. 106229.
The dispositive portion of the GSIS Decision reads:
In G.R. No. 194645, petitioner Civil Service Commission (CSC) asks this Court to set aside
the decision of the Court of Appeals and to impose on respondent Aurora M. Clave WHEREFORE, Aurora M. Clave is found GUILTY of Simple Neglect of Duty. This being the
(Clave) the penalty of dismissal from service. second time she was found guilty of the same offense, she is hereby meted the penalty of
DISMISSAL FROM THE SERVICE, which shall carry with it cancellation of eligibility;
In G.R. No. 194665, petitioner Government Service Insurance System (GSIS) likewise forfeiture of retirement benefits, and the perpetual disqualification for reemployment in
prays this Court to set aside the Court of Appeals’ decision and to impose on Clave the the government service.
penalty of dismissal from service.
It is so ordered.4
The Antecedent Facts
Clave filed a motion for reconsideration. In its 7 July 2008 Resolution,5 the GSIS denied
These cases originated from Administrative Case No. 05-055 filed by GSIS against Clave. Clave’s motion for reconsideration for lack of merit.
GSIS alleged that Clave was a Senior Computer Operator I of the Social Insurance Group
(SIG) at the Manila District Office of the GSIS. On 9 December 2003, Diosdado V. Estoque Clave filed an appeal from the GSIS Decision to the Civil Service Commission (CSC).
(Estoque), through the Mainframe Salary Loan System (MSLS), granted Marie Ann F.
Tornea (Tornea) an enhanced salary loan with net proceeds of ₱73,123.87 for which
GSIS Check No. IC2123810 was issued. The check was later released and negotiated. The Decision of the Civil Service Commission

On 16 December 2003, Clave, without proper authority or valid reason and in gross
violation of pertinent rules and procedure, cancelled the header of Tornea’s loan as
appearing in the MSLS. Clave used her operator ID (AMCO) and the computer terminal
assigned to her (SI42). By cancelling the loan, Clave made it appear that the loan had not
been granted to Tornea.
In its Resolution No. 0819516 dated 13 October 2008, the CSC dismissed the appeal and
affirmed the GSIS Decision dismissing Clave from service. The CSC ruled that the GSIS did
not err in finding Clave guilty of simple neglect of duty. The CSC found that there was
substantial evidence that proved Clave’s guilt. The CSC noted that the data extracted by

46
the ITSG showed that the user ID used was AMCO in the transaction "LSLC" to cancel the
header of Tornea’s loan. It was established that AMCO was Clave’s user ID.
The dispositive portion of the CSC Resolution reads:
WHEREFORE, the appeal of Aurora M. Clave, Senior Computer Operator I, Social
Insurance Group, Government Service Insurance System (GSIS), is hereby DISMISSED.
Accordingly, the Decision dated May 23, 2007 of the same Office, dismissing her from the
service for having been found guilty for the second time, of the offense of Simple Neglect
of Duty, is AFFIRMED. She is likewise imposed the accessory penalties of perpetual
disqualification to hold public office, forfeiture of retirement benefits, cancellation of
Civil Service eligibility and bar from taking Civil Service examinations.7
Clave filed a petition for review before the Court of Appeals, assailing the CSC Resolution.
The Decision of the Court of Appeals
In its 27 July 2010 Decision, the Court of Appeals partly granted Clave’s petition. The
Court of Appeals affirmed the CSC insofar as it found Clave guilty of simple neglect of
duty. However, the Court of Appeals modified the CSC Resolution by reducing the penalty
imposed on Clave from dismissal from service to suspension from office without salary
and other benefits for one year, with a stern warning that a transgression of a similar
nature will warrant her dismissal from service.
The Court of Appeals ruled that there was nothing in the records that showed that Clave
acted in bad faith when she gave her operator ID and password to other persons. The
Court of Appeals ruled that Clave’s carelessness should not equate to dismissal since it
was not coupled with bad faith.
The Court of Appeals found that while Clave’s guilt was supported by substantial
evidence, the imposition of the penalty of dismissal from service was too harsh. The
dispositive portion of the Decision of the Court of Appeals reads:
WHEREFORE, IN VIEW of THE FOREGOING, the petition is partly GRANTED. The
Resolution of the Civil Service Commission dated 13 October 2008 is AFFIRMED insofar
as it found petitioner Aurora M. Clave guilty of Simple Neglect of Duty, but in lieu of
dismissal from the service, petitioner is hereby SUSPENDED from office without salary
and other benefits for one (1) year, with a STERN WARNING that another transgression
of a similar nature will merit dismissal from the service.
SO ORDERED.8
Both the CSC and the GSIS moved for the reconsideration of the Decision of the Court of
Appeals.
In its 24 November 2010 Resolution, the Court of Appeals denied the motions.
Hence, the petitions separately filed by the CSC and the GSIS before this Court.
The Issue
Petitioners CSC and GSIS raised a common issue in these cases, that is, whether the Court
of Appeals committed a reversible error in reducing the penalty imposed on Clave from
dismissal from service to suspension for one year.
The Ruling of this Court
The petitions are meritorious.
Simple neglect of duty is the failure to give attention to a task, or the disregard of a duty
due to carelessness or indifference.9 The Court of Appeals sustained the findings of the
GSIS and the CSC, and found that there was substantial evidence to hold Clave liable for
simple neglect of duty. We agree with the Court of Appeals on this issue.
In these cases, the Court of Appeals found that while Clave was not specifically
authorized to delete headers, she had authority to cancel granted loans through the
transaction code "LSLC." Further, Clave was one of the users of the computer terminal
SI42 that was used to cancel the header of Tornea’s loan. The Court of Appeals found that
the computer terminal SI42 that was used to cancel the header of Tornea’s loan was also
used by two persons, including Estoque who was previously found guilty of dishonesty
and grave misconduct for cancelling the loans and headers of some GSIS members. Thus,
it might be possible that Estoque used Clave’s operator ID and password in cancelling the
header of Tornea’s loan. However, granting that this might be true, Clave still failed to
explain why other persons knew her operator ID and password that were used in the
cancellation of the header. The Court of Appeals correctly ruled that Clave was neglectful
in safeguarding information that should have been known only to herself.
However, we do not agree with the penalty imposed by the Court of Appeals.
Simple neglect of duty is a less grave offense punishable by suspension of one month and
one day to six months for the first offense and dismissal for the second
offense.10 1âwphi1
In reducing the penalty imposed on Clave, the Court of Appeals considered Section 53 of
the Uniform Rules on Administrative Cases in the Civil Service, which states:
Sec. 53. Extenuating, Mitigating, Aggravating, or Alternative Circumstances. - In the
determination of the penalties to be imposed, mitigating, aggravating and alternative
circumstances attendant to the commission of the offense shall be considered:
The following circumstances shall be appreciated:
47
xxx

j. Length of service in the government.

xxx

The Court of Appeals ruled that length of service in the government can mitigate or
aggravate the penalty, depending on the circumstances of the case. The Court of Appeals
considered Clave’s 30 years of service in the government, as well as her lack of bad faith,
in reducing the penalty imposed by the GSIS and the CSC. While acknowledging that this
was not Clave’s first offense for simple neglect of duty, the Court of Appeals invoked the
court’s discretion to temper the harshness of its judgment with mercy and cited
humanitarian reasons for the modification of the decisions of the GSIS and the
CSC.1âwphi1

Again, we do not agree with the Court of Appeals.

Section 53 of the Uniform Rules on Administrative Cases in the Civil Service is clear that
length of service may be considered either as mitigating or aggravating depending on the
circumstances of the case. Here, it was shown that Clave was previously found guilty by
the GSIS of simple neglect of duty in Adm. Case No. 05-02711 in its Decision dated 12
February 2007 for unauthorized cancellation of the loan and header of one Basilio C.
Benitez. In that case, the GSIS suspended Clave for three months. Earlier, in another
Decision12 dated 10 November 2005, the GSIS found Clave guilty of conduct prejudicial to
the interest of the service for her participation in a mass action that resulted in the
disruption of GSIS operations, for which she was meted the penalty of suspension for six
months and one day. Hence, Clave’s length of service in the government could not
mitigate her liability considering that the present offense is not her first offense but her
third offense. Applying Section 52(B) of the Revised Rules on Administrative Cases in the
Civil Service, the penalty of dismissal imposed by the GSIS and affirmed by the CSC
should instead be imposed on Clave.

WHEREFORE, we SET ASIDE the 27 July 2010 Decision and 24 November 2010
Resolution of the Court of Appeals in CA-G.R. SP No. 106229 insofar as it modified the
penalty imposed on Aurora M. Clave and REINSTATEResolution No. 081951 dated 13
October 2008 of the Civil Service Commission dismissing Clave from service with
perpetual disqualification to hold public office, forfeiture of retirement benefits except
accrued leave credits, cancellation of Civil Service eligibility, and prohibition from taking
Civil Service examinations.

SO ORDERED.

48
 Construction, (2) Geovan Marketing, and (3) Interior Construction. After the submission
[G.R. No. 193983 : March 14, 2012] and evaluation of the bids, the Pre-Qualification Bids and Awards Committee (PBAC)
awarded the construction of the Four Projects to Jireh Construction, as the best qualified
VICTORY M. FERNANDEZ, PETITIONER, VS. OFFICE OF THE OMBUDSMAN, FORMER bidder with the bid most advantageous to the government. The details of the public
GOVERNOR OF THE PROVINCE OF AKLAN FLORENCIO T. MIRAFLORES, INCUMBENT bidding are as follows:
GOVERNOR CARLITO MARQUEZ, AND SECRETARY OF THE DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT RONALDO V. PUNO, RESPONDENTS. Name of Project Date of bidding Date of award Contract Cost (P)
Alibagon-Baybay Bridge 24 February 1995 24 February 1995 975,151.38
DECISION (Phase III)
Buruanga Fishing Port 28 February 1995 1 March 1995 965,420.49
CARPIO, J.:
Irrigation Canal Access 7 March 1995 8 March 1995 956,733.92
The Case Road, Buruanga
Navitas Barangay Health 15 March 1995 16 March 1995 294,469.45
Before the Court is a petition[1] for review on certiorari with application for the issuance Center
of a temporary restraining order and writ of preliminary injunction assailing the
Decision[2] dated 9 July 2010 and Resolution[3] dated 30 September 2010 of the Court of
Appeals (CA) in CA-G.R. SP No. 112515.cralaw After the 1995 local elections, respondent Governor Florencio T. Miraflores (Gov.
Miraflores) replaced Gov. Cabagnot. Gov. Miraflores issued Memorandum No.
The Facts 004[7] dated 5 July 1995 addressed to Fernandez:

On 25 November 1994, the Province of Aklan, represented by then provincial governor
Corazon L. Cabagnot (Gov. Cabagnot), entered into a contract with Jireh Construction and
Supply (Jireh Construction), represented by Delia Legaspi. The contract pertained to the
construction of the Alibagon-Baybay Bridge (Phase II) situated in Makato, Aklan for a
total contract price of P933,335.90 (AB Bridge Project). The contract also provided for
the completion of the AB Bridge Project within 90 calendar days or on 25 February 1995.
On 28 November 1994, Jireh Construction started the AB Bridge Project.
On 15 February 1995, petitioner Victory M. Fernandez (Fernandez), in his capacity as
Provincial Engineer of the Province of Aklan, endorsed [4] to Gov. Cabagnot for her
approval, a letter[5] dated 14 February 1995 from Jireh Construction. Jireh Construction
requested for a contract time extension of 30 calendar days to complete the AB Bridge
Project since the original contract period did not take into account the work stoppage
caused by tide variations of the river. Basically, work on the substructure of the bridge
stops temporarily when high tide comes and operations only resume after the water
recedes.
On 16 February 1995, Gov. Cabagnot approved[6] the requested 30-day extension and
directed Jireh Construction to exert utmost effort to complete the AB Bridge Project not
later than the revised expiry date.
Having just assumed office as chief executive of the Province, it is imperative that the
undersigned should take an inventory of the financial condition of the provincial
government. This includes, among others, being oriented and apprised of the status of all
infrastructure projects being implemented by the province through that department.
In view hereof, you are hereby directed to temporarily suspend the implementation of all
infrastructure projects under your department’s supervision and control, until such time
when their status shall have been appropriately assessed by the undersigned, and an
order to resume work to such projects shall have been issued by this office.
For strict compliance.
The implementation of the AB Bridge Project and the Four Projects awarded to Jireh
Construction was suspended as a result of the Memorandum issued by Gov. Miraflores.
On 8 and 10 November 1995, the Commission on Audit (COA) conducted an audit and
ocular inspection of Aklan’s pending government projects. The COA auditors found that
Jireh Construction had abandoned the construction of the AB Bridge Project and the Four
Projects. All five projects were incomplete and could not be used for their designated
purpose at their current state of completion. The details[8] are as follows:

Meanwhile, the provincial government of Aklan launched four government Name of Project Number of Date Expected Date Accomplish- Percentage of
infrastructure projects: (1) Alibagon-Baybay Bridge (Phase III); (2) Buruanga Fishing Days Started of Completion ment as of Completion
Port; (3) Irrigation Canal Access Road, Buruanga; and (4) Navitas Barangay Health to be
Center, collectively known as the Four Projects. Completed
Alibagon-Baybay 90 11/28/94 02/25/95 12/19/94 22.89
Public bidding for the Four Projects was conducted sometime in the months of February
Bridge (Phase II)
and March 1995. Three contractors participated in the public bidding: (1) Jireh

49
Alibagon-Baybay 90 05/12/95 06/13/95 11/08/95 0 No. 3019 or the Anti-Graft and Corrupt and Practices Act.[13]
Bridge (Phase
III) Aside from Timtiman, the Office of the Ombudsman impleaded in the criminal case[14] six
Buruanga 75 03/02/95 05/15/95 03/14/95 58.09 other persons working under the provincial government: (1) Liberato R. Ibadlit, PBAC
Fishing Port member and former Vice-Governor; (2) Aniceto A. Fernandez, PBAC member and
Irrigation Canal 90 03/10/95 06/07/95 04/25/95 81.70 former Sangguniang Panlalawigan member; (3) Victory M. Fernandez, Provincial
Access Road, Engineer; (4) Felicisimo Y. Tanumtanum, Jr., Engineer IV; (5) Reynaldo B. Dionisio,
Engineer II and Project Engineer handling the construction of the Buruanga Fishing Port
Buruanga
and Irrigation Canal Access Road; and (6) Jose Amboboyong, Project Engineer handling
Navitas 45 03/17/95 04/30/95 03/23/95 45.27
the construction of the Alibagon-Baybay Bridge (Phases II and III).
Barangay Health
Center
The PBAC members as well as the other government officers were impleaded as
respondents for (1) awarding the Four Projects to Jireh Construction despite their
knowledge that Jireh Construction poorly performed and had abandoned the AB Bridge
The Summary of Actual Accomplishment and Costing[9] as of 30 June 1995 submitted and Project, and (2) not taking any action against Jireh Construction and not compelling it to
certified by Fernandez showed that the AB Bridge Project was already almost halfway continue and complete the projects.
completed with an accomplishment rating of 48.57%. However, the COA auditors found
the AB Bridge Project to be only 22.89%[10] completed based on the Statement of Time The COA submitted the following documentary evidence: (1) certified true copy of SAO
Elapsed and Percentage Accomplishment dated 20 December 1994. The auditors stated Report No. 95-45 dated 23 June 1997, the complete report on the results of the audit of
that about nine months after the AB Bridge Project was supposed to have been the Province of Aklan; (2) copy of the Joint Affidavit of the COA Auditors who conducted
completed on 25 February 1995, the project: (1) had an unaccomplished portion of the audit attesting to the audit findings embodied in SAO Report No. 95-45; and (3)
77.11%, and (2) no further work was made after 19 December 1994. The auditors added certified true copies of disbursement vouchers for all five projects.
that despite the unsatisfactory performance of Jireh Construction on the AB Bridge
Project, the PBAC still recommended the awarding of the Four Projects to the same In a Decision dated 31 March 2006, the Office of the Ombudsman (Visayas) found
contractor. Fernandez and his co-respondents administratively liable. The Ombudsman stated that
the complaint was premised on the respondents’ act of awarding government projects to
Moreover, the COA auditors found that the provincial government did not take any an incompetent contractor, who at the time of the bidding had an unsatisfactory
action against Jireh Construction. The COA stated that the officers in charge of the AB performance on another project with the same local government and had abandoned
Bridge Project and the Four Projects failed to: (1) make an inventory of the project such project. This act amounted to manifest partiality or gross inexcusable negligence, or
accomplishments; (2) take over the construction and complete the unfinished portion to both.
preserve the accomplishments already made; (3) forfeit the performance bonds; and (4)
serve notices of rescission or termination of the contracts awarded to Jireh Construction. The Ombudsman also found that Fernandez was the one who presented documents to
the PBAC showing that Jireh Construction did not have any abandoned project at the
At the time of the COA audit, the Province of Aklan had already paid P1,624,255.61 [11] to time of the bidding for the Four Projects. Thus, the Ombudsman held Fernandez equally
Jireh Construction for the five projects. The COA auditors recommended the filing of a liable with the members of the PBAC for gross neglect of duty. Further, the Ombudsman
case for neglect of duty against: (1) the PBAC officers who awarded the Four Projects to stated that Fernandez and his fellow engineers did not bring to the attention of the
Jireh Construction despite their knowledge that Jireh Construction had already provincial governor that Jireh Construction had already abandoned the construction of
abandoned the construction of the AB Bridge Project; and (2) other responsible the five projects. The Ombudsman added that they were duty-bound not only to
government officers who were remiss in their duties to report the matter of implement the projects assigned to them but also to protect the interest of the
abandonment of all five projects and to take any action against Jireh Construction. government. The dispositive portion of the decision states:

On 10 November 2003, Gov. Miraflores, in his capacity as then provincial governor of WHEREFORE, premises considered, respondents ANICETO A. FERNANDEZ, LIBERATO R.
Aklan and relying on the findings of the COA auditors, filed with the Office of the IBADLIT and EVAN L. TIMTIMAN, PBAC members, VICTORY M. FERNANDEZ, Provincial
Ombusman (Visayas) an administrative complaint[12] for gross neglect of duty against
Engineer, and JOSE AMBOBOYONG, Project Engineer (Construction of Alibagon-Baybay
Evan L. Timtiman (Timtiman), as Provincial Treasurer and regular member of the PBAC.
Bridge Phases II & III), all of the Provincial Government, Province of Aklan, are hereby
In the Complaint, Gov. Miraflores stated that Timtiman’s acts: (1) of awarding the Four
found guilty of GROSS NEGLECT OF DUTY and meted the penalty of DISMISSAL FROM
Projects to a contractor who had abandoned the AB Bridge Project; and (2) of
SERVICE with all the accessory penalties attached thereto.
participating in the payment of government funds amounting to P1,624,255.61 to the
same contractor for the five projects, caused undue injury to the provincial government.
Respondents FELICISIMO Y. TANUMTANUM, Engineer IV and REYNALDO B. DIONISIO,
Gov. Miraflores stated that such acts are punishable under Section 3(e) of Republic Act
50
Project Engineer (Construction of Irrigation Canal Access Road and Construction of
Buruanga Fishing Port), of the same office, are found guilty of SIMPLE NEGLECT OF
DUTY and meted the penalty of ONE (1) MONTH SUSPENSION WITHOUT PAY.
Considering, however, that respondents LIBERATO R. IBADLIT, FELICISIMO Y.
TANUMTANUM and JOSE AMBOBOYONG (deceased), as records reveal, are no longer
connected with the government service, the penalty of Dismissal from Service shall be
considered as already implemented. Respondent Ibadlit’s term as Vice-Governor of the
Province of Aklan ended in the year 1995. Respondent Tanumtanum retired from the
government service on September 30, 1995. While the orders/notices addressed to
respondent Amboboyong were returned to this Office with a notation “Addressee
Deceased.” This notation was verified by Mr. Federico C. Peare, Jr., Postmaster, Kalibo,
Aklan.
Let a copy of this Decision form part of the service record of the said respondents.
SO DECIDED.[15]
Fernandez, Timtiman and Dionisio filed a Motion for Reconsideration[16] dated 4 October
2007 with the Office of the Ombudsman (Visayas). In an Order dated 11 August 2008, the
Office of the Ombudsman denied the motion.
Fernandez filed a petition[17] for review under Rule 43 with the Court of Appeals (CA).
In a Decision dated 9 July 2010, the CA found no reversible error by the Office of the
Ombudsman in finding Fernandez guilty of gross neglect of duty. The dispositive portion
states:
WHEREFORE, premises considered, the instant petition for review is hereby DENIED and
ordered DISMISSED.
SO ORDERED.[18]
Fernandez filed a motion for reconsideration which the CA denied in a Resolution dated
30 September 2010.
Fernandez then filed a petition for review with this Court. In a Resolution [19] dated 13
December 2010, we issued a temporary restraining order, effective immediately and
continuing until further orders from this Court, enjoining respondents, their
representatives or other persons acting on their behalf from proceeding with the
execution of the Decision dated 31 March 2006 and Order dated 11 August 2008 of the
Office of the Ombudsman (Visayas).
The Issue
The main issue is whether the CA committed a reversible error in affirming the decision
of the Office of the Ombudsman in finding petitioner guilty of gross neglect of duty and
dismissing him from service.
The Court’s Ruling
The petition lacks merit.
Petitioner Fernandez insists that he was administratively charged for stating in the
report he submitted to the PBAC that “Jireh Construction had no abandoned project” at
the time of the bidding for the Four Projects. Petitioner states that he cannot be faulted
for issuing such a statement since the bidding for the Four Projects occurred in the
months of February and March 1995. At the time, the construction of the AB Bridge
Project was still ongoing based on the request for extension by Jireh Construction and
later approved by the provincial governor. Petitioner asserts that he was not in a
position to say that Jireh Construction was not eligible to bid and to be awarded the Four
Projects. Further, petitioner maintains that the COA auditors failed to consider that the
provincial governor, in issuing Memorandum Order No. 004, ordered the temporary
suspension of all infrastructure projects handled by the provincial government. As a
result, the implementation of all projects including the AB Bridge Project and the Four
Projects had to stop.
In the present case, Jireh Construction started work on the AB Bridge Project on 28
November 1994. The contract provided that the bridge should be completed within 90
calendar days or specifically on 25 February 1995. However, due to some unforeseen
circumstances, Jireh Construction requested for an extension of 30 calendar days to
complete the project. The provincial governor promptly approved the 30-day extension.
At the time of the bidding for the Four Projects, held on 24 February, 28 February, 7
March and 15 March 1995, the completion period for the AB Bridge Project had not yet
expired due to the 30-day extension. The 30-day extension meant that the construction
of the bridge was supposed to have been completed on 27 March 1995, twelve days after
the completion of all the bidding for the Four Projects.
However, petitioner based his premise that the construction of AB Bridge Project was
ongoing during the bidding of the Four Projects on two grounds: (1) the request for 30-
day extension by Jireh Construction, and (2) the approval of the extension by the
governor. Petitioner did not submit any other evidence to show that the construction of
the AB Bridge Project took place continuously and without interruption. It must be
remembered that when the COA auditors inspected and audited the AB Bridge Project in
November 1995, they found that only 22.89% of the bridge had been constructed based
on the Statement of Time Elapsed and Percentage Accomplishment dated 20 December
1994. From 20 December 1994, the COA auditors found that no further work was
made. Thus, regardless of the 30-day extension to complete the AB Bridge Project, it is
clear that Jireh Construction abandoned the construction of the AB Bridge Project since
20 December 1994.
Petitioner, as the provincial engineer who oversees all the infrastructure projects of the
province, has direct knowledge of the status of each project’s progress. Clearly, he was in
a position to inform the PBAC that Jireh Construction not only had not met the required
deadline of the completion of the AB Bridge Project but also had abandoned the project,
with only 22.89% completion and not the 48.57% completion that petitioner had
certified. Petitioner gave a false report to the PBAC when he attested that Jireh
51
Construction had no abandoned project at the time of the bidding of the Four Projects. As
correctly observed by the CA in its 9 July 2010 decision: Gov. Miraflores issued Memorandum No. 004 on 5 July 1995 or more than 3 months after
the AB Bridge Project was supposed to have been completed on 27 March 1995, the
As provincial engineer, petitioner Fernandez could not have been unaware of the fact extended completion date. The report submitted by the COA indicated the following
that no further work had been conducted at the Alibagon-Baybay Bridge Project (Phase expected dates of completion for the five projects:
II) after December 19, 1994. That no further work was conducted thereon after that date
could only mean that the project was already deemed abandoned. Considering petitioner Project Expected Date of Completion
Fernandez’s claim that he had been regularly performing his assigned tasks by Alibagon-Baybay Bridge (Phase II) 25 February 1995
supervising the implementation of the project, he cannot feign ignorance about the fact
Alibagon-Baybay Bridge (Phase III) 13 June 1995
that Jireh Construction had an ongoing abandoned project at the time of the conduct of
Buruanga Fishing Port 15 May 1995
the bidding of the four projects.
Irrigation Canal Access Road, Buruanga 7 June 1995
Even with the approved extension, petitioner’s unusual silence in not informing the Navitas Barangay Health Center 30 April 1995
PBAC about the fact that only 22.89% of the ongoing project of Jireh Construction was
completed and that no further work was conducted therein after December 19, 1994
could amount to no other but gross negligence. With only 22.89% of the project The AB Bridge Project and the Four Projects were supposed to be completed before July
completed as of March 1995, petitioner Fernandez, as provincial engineer, could not 1995. Thus, even before the issuance of Memorandum Order No. 004, all five projects of
have been ignorant about the necessity of such information to the PBAC in evaluating the Jireh Construction were still unfinished and in various stages of completion to the
qualifications of Jireh Construction. Indeed, as found by respondent Office of the detriment of the Province of Aklan.cralaw
Ombudsman, petitioner Fernandez supplied documents to the PBAC which were relied
upon by its members in evaluating the qualifications of Jireh Construction. In giving Jireh In sum, the decision of the Office of the Ombudsman, as affirmed by the CA, finding
Construction a “clean bill,” so to speak, petitioner Fernandez committed a flagrant and petitioner equally responsible with the members of PBAC for gross neglect of duty, is
palpable omission which caused undue injury to the government.[20] correct. Pursuant to Section 23, Rule XIV of the Omnibus Rules Implementing Book V of
Executive Order No. 292 or the Administrative Code of 1987, gross negligence in the
It is sufficiently evident that petitioner was grossly negligent in failing to give a complete performance of duty is classified as a grave offense for which the penalty of dismissal is
and truthful report to the PBAC of Jireh Construction’s actual progress and abandonment imposed. Section 9 of the said Rule likewise provides that the penalty of dismissal shall
of the AB Bridge Project, which could have been a crucial element in awarding the Four carry with it the cancellation of eligibility, forfeiture of leave credits and retirement
Projects to a qualified and capable contractor. Also, petitioner had been remiss in his benefits and disqualification from re-employment in government service.24
duties to monitor slippages of Jireh Construction’s performance and to take the
necessary steps to ensure minimal loss to the provincial government. Given the short WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 9 July 2010 and
time frame of 45 to 90 days for the completion of the projects, petitioner should have Resolution dated 30 September 2010 of the Court of Appeals in CA-G.R. SP No. 112515.
immediately reported the poor performance of Jireh Construction to the governor. The temporary restraining order issued on 13 December 2010 is hereby lifted.
Moreover, petitioner could have recommended the take over of the construction of the
projects and the termination of the contracts to prevent further loss of funds to the SO ORDERED.
province.

In Brucal v. Desierto,[21] we held that gross negligence refers to negligence characterized

by the want of even slight care, acting or omitting to act in a situation where there is a
duty to act, not inadvertently but willfully and intentionally, with a conscious
indifference to consequences in so far as other persons may be affected. It is the
omission of that care which even inattentive and thoughtless men never fail to take on
their own property.[22] In cases involving public officials, there is gross negligence when
a breach of duty is flagrant and palpable.[23]

Petitioner further asserts that Memorandum No. 004 was the reason for the non-
completion of the projects and not because of the abandonment of the projects by Jireh
Construction.

Petitioner’s contention must fail.

52
A.M. No. P-13-3132 June 4, 2014
(Formerly A.M. No. 12-3-54-RTC)
OFFICE OF THE COURT ADMINISTRATOR, Complainant,
vs.
SARAH P. AMPONG, COURT INTERPRETER III, REGIONAL TRIAL COURT OF ALABEL,
SARAN GANI PROVINCE, BRANCH 38, Respondent.
RESOLUTION
PERLAS-BERNABE, J.:
This administrative case arose from the letter1 dated March 15, 2011 of Executive Judge
Jaime L. Infante (Judge Infante) of the Regional Trial Court of Alabel, Sarangani Province,
"Branch 38. (RTC), addressed to complainant the Office of the Court Administrator
(OCA),2 inquiring about the employment status of respondent Sarah P. Ampong
(Ampong), a Court Interpreter III of the said RTC since August 3, 1993. In the
aforementioned letter, Judge Infante informed the OCA that despite Ampong's dismissal
from service by the Civil Service Commission (CSC), which dismissal was affirmed by the
Court, the RTC never received any official information or directive from the OCA on the
matter. As such, Ampong remains employed in the RTC and has been continuously
receiving all her monthly salary, benefits, allowances, and the like.
The Facts
Sometime in August 1994, the CSC instituted an administrative case against Ampong for
Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service
for having impersonated or taken the November 1991 Civil Service Eligibility
Examination for Teachers on behalf of one Evelyn B. Junio-Decir (Decir). On March 21,
1996, after Ampong herself admitted to having committed the charges against her, the
CSC rendered a resolution3 dismissing her from service, imposing all accessory penalties
attendant to such dismissal, and revoking her Professional Board Examination for
Teachers (PBET) rating. Ampong moved for reconsideration on the ground that when the
said administrative case was filed, she was already appointed to the judiciary; as such,
she posited that the CSC no longer had any jurisdiction over her. Ampong’s motion was
later denied, thus, prompting her to file a petition for review before the Court of Appeals
(CA).4
On November 30, 2004, the CA denied Ampong’s petition and affirmed her dismissal
from service on the ground that she never raised the issue of jurisdiction until after the
CSC ruled against her and, thus, she is estopped from assailing the same. 5 Similarly, on
August 26, 2008, the Court En Banc denied her petition for review on certiorari and,
thus, affirmed her dismissal from service in G.R. No. 167916, entitled "Sarah P. Ampong
v. Civil Service Commission, CSC-Regional Office No. 11"6 (August 26, 2008 Decision).
Notwithstanding said Decision, the Financial Management Office (FMO) of the OCA,
which did not receive any official directive regarding Ampong’s dismissal, continued to
release her salaries and allowances. However, in view of Judge Infante’s letter notifying
the OCA of such situation, the FMO issued a Memorandum7 dated September 7, 2011
informing the OCA that starting June 2011, it had started to withhold Ampong’s salaries
and allowances.8
In her Comment9 dated September 25, 2012, Ampong prayed that the Court revisit its
ruling in G.R. No. 167916 despite its finality because it might lead to unwarranted
complications in its enforcement.10 Moreover, Ampong reiterated her argument that the
CSC did not have any jurisdiction over the case against her.11
The Action and Recommendation of the OCA
In a Memorandum12 dated March 27, 2013,the OCA recommended that Ampong be found
guilty of Dishonesty for impersonating and taking the November 1991 Civil Service
Eligibility Examination for Teachers in behalf of Decir and, thus, be dismissed from the
service on the ground that she no longer possesses the appropriate eligibility required
for her position, with forfeiture of retirement and other benefits except accrued leave
credits and with perpetual disqualification from re-employment in any government
agency or instrumentality, including any government-owned and controlled corporation
or government financial institution.13
The OCA found that Ampong’s act of impersonating and taking the November 1991 Civil
Service Eligibility Examination for Teachers for and on behalf of another person indeed
constitutes dishonesty, a grave offense which carries the corresponding penalty of
dismissal from service. It added that the fact that the offense was not connected with her
office or was committed prior to her appointment in the judiciary does not in any way
exonerate her from administrative liability as an employee of the court.14
Further, the OCA found that Ampong’s appointment as Court Interpreter III did not
divest the CSC of its inherent power to discipline employees from all branches and
agencies of the government in order to protect the integrity of the civil service.
Consequently, the CSC could validly impose the administrative penalty of dismissal
against her, which carries with it that of cancellation of civil service eligibility, forfeiture
of retirement benefits, and perpetual disqualification for re-employment in the
government service, unless otherwise provided. In this relation, the OCA emphasized
that the CSC ruling effectively stripped Ampong of her civil service eligibility and, hence,
could no longer hold the position of Court Interpreter III.15
The Issue Before the Court
The issue raised for the Court’s resolution is whether or not Ampong had been dismissed
from her employment as Court Interpreter III of the RTC.
The Court’s Ruling
The Court resolves the issue in the affirmative.
53
As the records show, in the August 26, 2008 Decision, the Court had already held
Ampong administratively liable for dishonesty in impersonating and taking the
November 1991 Civil Service Eligibility Examination for Teachers on behalf of Decir, viz.:
The CSC found [Ampong] guilty of dishonesty. It is categorized as "an act which includes
the procurement and/or use of fake/spurious civil service eligibility, the giving of
assistance to ensure the commission or procurement of the same, cheating, collusion,
impersonation, or any other anomalous act which amounts to any violation of the Civil
Service examination." [Ampong] impersonated Decir in the PBET exam, to ensure that
the latter would obtain a passing mark. By intentionally practicing a deception to secure
a passing mark, their acts undeniably involve dishonesty.
This Court has defined dishonesty as the "(d)isposition to lie, cheat, deceive, or defraud;
untrustworthiness; lack of integrity; lack of honesty, probity or integrity in principle;
lack of fairness and straightforwardness; disposition to defraud, deceive or betray."
[Ampong’s] dishonest act as a civil servant renders her unfit to be a judicial employee.
Indeed, We take note that [Ampong] should not have been appointed as a judicial
employee had this Court been made aware of the cheating that she committed in the civil
service examinations. Be that as it may, [Ampong’s] present status as a judicial employee
is not a hindrance to her getting the penalty she deserves.16 (Emphases and underscoring
supplied).
Notably, the Court also addressed Ampong’s misgivings on the issue of jurisdiction in the
same case, viz.:
It is true that the CSC has administrative jurisdiction over the civil service. As defined
under the Constitution and the Administrative Code, the civil service embraces every
branch, agency, subdivision, and instrumentality of the government, and government-
owned or controlled corporations. Pursuant to its administrative authority, the CSC is
granted the power to "control, supervise, and coordinate the Civil Service examinations."
This authority grants to the CSC the right to take cognizance of any irregularity or
anomaly connected with the examinations.
However, the Constitution provides that the Supreme Court is given exclusive
administrative supervision over all courts and judicial personnel. By virtue of this power,
it is only the Supreme Court that can oversee the judges’ and court personnel’s
compliance with all laws, rules and regulations. It may take the proper administrative
action against them if they commit any violation. No other branch of government may
intrude into this power, without running afoul of the doctrine of separation of powers.
Thus, this Court ruled that the Ombudsman cannot justify its investigation of a judge on
the powers granted to it by the Constitution. It violates the specific mandate of the
Constitution granting to the Supreme Court supervisory powers over all courts and their
personnel; it undermines the independence of the judiciary.
In Civil Service Commission v. Sta. Ana, this Court held that impersonating an examinee
of a civil service examination is an act of dishonesty. But because the offender involved a
judicial employee under the administrative supervision of the Supreme Court, the CSC
filed the necessary charges before the Office of the Court Administrator (OCA), a
procedure which this Court validated.
A similar fate befell judicial personnel in Bartolata v. Julaton, involving judicial
employees who also impersonated civil service examinees.1âwphi1 As in Sta. Ana, the
CSC likewise filed the necessary charges before the OCA because respondents were
judicial employees. Finding respondents guilty of dishonesty and meting the penalty of
dismissal, this Court held that "respondents’ machinations reflect their dishonesty and
lack of integrity, rendering them unfit to maintain their positions as public servants and
employees of the judiciary."
Compared to Sta. Anaand Bartolata, the present case involves a similar violation of the
Civil Service Law by a judicial employee. But this case is slightly different in that
petitioner committed the offense before her appointment to the judicial branch. At the
time of commission, petitioner was a public school teacher under the administrative
supervision of the DECS and, in taking the civil service examinations, under the CSC.
Petitioner surreptitiously took the CSC-supervised PBET exam in place of another
person. When she did that, she became a party to cheating or dishonesty in a civil
service-supervised examination.
That she committed the dishonest act before she joined the RTC does not take her case
out of the administrative reach of the Supreme Court.
The bottom line is administrative jurisdiction over a court employee belongs to the
Supreme Court, regardless of whether the offense was committed before or after
employment in the judiciary.17 (Emphases in the original; citations omitted)
Pursuant to the doctrine of immutability of judgment, which states that "a decision that
has acquired finality becomes immutable and unalterable, and may no longer be
modified in any respect, even if the modification is meant to correct erroneous
conclusions of fact and law,"18 Ampong could no longer seek the August 26, 2008
Decision’s modification and reversal. Consequently, the penalty of dismissal from service
on account of Ampong’s Dishonesty should be enforced in its full course. In line with
Section 58(a)19 of the Uniform Rules on Administrative Cases in the Civil Service
(URACCS), the penalty of dismissal carries with it the following administrative
disabilities: (a) cancellation of civil service eligibility; (b) forfeiture of retirement
benefits; and (c) perpetual disqualification from reemployment in any government
agency or instrumentality, including any government-owned and controlled corporation
or government financial institution. Ampong should be made to similarly suffer the same.
To clarify, however, despite Ampong’s dismissal on the ground of dishonesty, she should
nevertheless been titled to receive her accrued leave credits, if any, pursuant to the
aforementioned provision of the URACCS, which does not include the forfeiture of the
same. It is a standing rule that despite their dismissal from the service, government
employees are entitled to the leave credits that they have earned during the period of
their employment. As a matter of fairness and law, they may not be deprived of such
remuneration, which they have earned prior to their dismissal.20
54
It must be stressed that every employee of the Judiciary should be an example of
integrity, uprightness, and honesty. Like any public servant, she must exhibit the highest
sense of honesty and integrity not only in the performance of her official duties but also
in her personal and private dealings with other people, to preserve the court’s good
name and standing. The image of a court of justice is mirrored in the conduct, official and
otherwise, of the personnel who work thereat, from the judge to the lowest of its
personnel. Court personnel have been enjoined to adhere to the exacting standards of
morality and decency in their professional and private conduct in order to preserve the
good name and integrity of the courts of justice. Here, Ampong failed to meet these
stringent standards set for a judicial employee and does not, therefore, deserve to
remain with the Judiciary.21

WHEREFORE, the Court SUSTAINS the dismissal of respondent Sarah P. Ampong, Court
Interpreter III of the Regional Trial Court of Alabel, Sarangani Province, Branch 38, on
the ground of Dishonesty. Accordingly, her retirement and other benefits are forfeited
except accrued leave credits, and she is perpetually disqualified from re-employment in
any government agency or instrumentality, including any government-owned and
controlled corporation or government financial institution, effective immediately.

SO ORDERED.

55
G.R. No. L-8606 March 29, 1913
RAMON HONTIVEROS, petitioner-appellee,
vs.
JOSE ALTAVAS, respondent-appellant.
Monico Mercado and Jose Altavas, for appellant.
Bruce, Lawrence, Ross and Block, for appellee.
TRENT, J.:
At the general election held in the Province of Capiz on June 4, 1912, Jose Altavas,
according to the proclamation of the provincial board of canvassers, received 3,542
votes, and Ramon Hontiveros received 3,371 votes, for the office of provincial governor.
Hontiveros protested. The Court of First Instance, after trial, found that the protestant
received 3,317 legal votes and the protestee 2,842. Judgment was entered directing the
provincial board of canvassers to correct its canvass accordingly. The protestee
appealed.
The appellant now insists that the court erred: (1) In not declaring the appellee ineligible
to be elected to the office of provincial governor because his certificate of candidacy was
not in accordance with the law; (2) in not dismissing the protest upon the ground that
the same premature; (3) in not dismissing the protest because it was not presented
within the time required by law; (4) in not finding that the provincial board of
canvassers issued its proclamation on July 12, 1912; (5) in holding that the document
filed by the appellee on July 27 was sufficient to constitute a protest; (6) in not requiring
the appellee to make a prima facie showing of fraud or irregularity in the manner of
casting or counting the ballots before the ballot boxes were opened on the hearing; (7) in
denying his (appellant's) request to intervene and select one of the commissioners
appointed by the court to examine and recount the ballots; (8) in refusing to allow him or
his counsel to be present at the opening of the ballots boxes and the examination and
counting of the ballots by the commissioners; and (9) in not permitting him to examine
in court the ballots rejected by the commissioners and present additional testimony with
reference to the validity of such rejected ballots.
1. Questions relating to the eligibility of candidates to be elected to or hold office cannot
be drawn in question in these proceedings. (Topacio vs. Paredes, 23 Phil. Rep., 238.) But
if we were now called upon to determine the validity of the appellee's certificate, we
would hold it sufficient for all purposes.
2. The second, third, and fourth alleged errors may be considered together. The facts are
these: The ballots were deposited on June 4, and the counting of the same commenced on
the night of the 4th and continued until terminated. The first protest was filed on June
18. In this protest it was alleged that up to the time the provincial board of canvassers
had not determined who had been elected provincial governor. No proceedings pertinent
to the questions here involved were taken in the Court of Instance until August 10. The
provincial board of canvassers met on July 12 and proceeded with a canvass of the
returns from the various voting precincts. On that date they completed the canvass of the
returns in so far as the offices of delegates to the Assembly and the provincial governor
were concerned, and stated that owing to the lateness of the hour they would adjourn
until the following day, the 13th, without having canvassed the returns for third member.
On the 27th of that month the appellee presented what he called an "amended protest"
and asked permission of the court to substitute this "amended protest" for the one filed
on June 18. This permission was granted. The "amended protest" is complete in every
particular, and it is not necessary to take into consideration for any purpose the protest
filed on the 18th of June. In fact, this latter protest was never drawn in question
thereafter, or referred to for any material purpose during the trial of the cause in the
court below or in this court, except for the purpose of determining from what date the
two weeks within which the protest might be filed, as provided in section 27 of Act No.
1582 as amended, should begin to run. Copies of the "amended protest" were served
upon all the candidates voted for on June 4. The word "candidates" as here used is
restricted to those persons who had filed certificates of candidacy with the authorities
and who had not on June 4 withdrawn their candidacy.
Upon the foregoing facts, the question to be decided is (a) whether the time within which
the motion which introduces an election contest for a provincial governorship expires
two weeks after the day upon which the ballots are cast or two weeks after the day upon
which the provincial board of canvassers determines who has been elected; and (b) in
computing the time, should the first or the last day be excluded from the computation?
This is not the first time that this question has been under consideration by this court. It
was directly involved and after a thorough investigation and extended discussions, it was
answered in two cases. (Navarro vs. Veloso, 23 Phil. Rep., 625;
Manalo vs. Sevilla, ante, 609.) In these cases we held that the two weeks begin to
run from the date of the proclamation of the provincial board of canvassers and not from
the day the ballots were cast. This question is no longer an open one in this jurisdiction,
and if our attention had not been called to a number of adjudicated cases in the United
States which it is claimed hold differently, we would say no more upon the question. But
in view of these citations, we deem it advisable to somewhat further discuss the matter.
Our further remarks, however, will be confined to an attempt to distinguish between the
cases relied upon and the law and the conditions in our own jurisdiction.
It is believed that no one will disagree with the statement that the Legislature is
presumed to have used words in their natural and commonly accepted meaning unless
that meaning would contravene the manifest intent of the enactment. In State vs. McCoy
(2 Marv., 576; 43 Atl., 270, 273) it is said:
An election, under the Constitution, involves every element necessary to the
complete ascertainment of the expression of the popular will, embracing the
entire range, from the deposit of the ballot by the elector up to the final
ascertainment and certification of the result. An election by the people means
and includes the perfect ascertainment of such result.
In Norman vs. Thompson (73 S.W., 62-64; 96 Tex., 250) and in Ex parte Conley (Tex.) (75
S.W., 301, 302) it was held that the word "election," as used in Revised Statutes, section
56
3397, providing that, after the result of an election under the local option law has been
declared, the election may be tested, and that if it appear that it was illegal or
fraudulently conducted, or such a number of voters were denied the privilege of voting
as might have changed the result, or the true result of the election cannot be ascertained,
"another election shall be ordered," means the act of casting and receiving the ballots
from the voters, counting the ballots, and making the returns thereon. (State vs.Tucker,
54 Ala., 205, 210.) That is the meaning of the word "election" in the ordinary usage, and
it must be so construed, there being nothing in the law to suggest that the Legislature
intended to use it in a different sense. (3 Words and Phrase, p. 2334.)
The treatise on the subject of "Elections" in 15 Cyc., 279 et seq., defines the word as
follows:
An election is the embodiment of the popular will, the expression of the
sovereign power of the people. In common parlance an election is the act of
casting and receiving the ballots, counting them, and making the return.
If this be the only meaning of the word, there is little room for doubt as to the meaning of
the term "after the election" as used in section 27. But it is insisted that the word is used
in numerous places throughout the Act to designate only the day and the operation of
casting the ballots by the duly qualified voters. From this source is derived the chief if not
the sole reliance of the advocates of the contrary construction. In view of the
speciousness of this arguments and the tenacity with which it is maintained, we are not
disposed to set it aside upon the mere strength of the lexicographer's definition of the
word "election." We shall endeavor to show that it is also inappropriate to the manifest
intention of the Legislature.
Section 3 probably gives more color to the argument in question than any other. In it we
find (quoting from the original act) such expressions as the following:
An election to elect such delegates shall be held upon the thirtieth day of July,
1907.
Subsequent elections for such delegates shall be held on the first Tuesday after
the first Monday in November of 1909, and of each old-numbered year
thereafter.
An election for provincial governor and third member of the provincial
board shall be held on the first Tuesday after the first Monday in November of
1907, and upon the first Tuesday after the first Monday in November of each
odd-numbered year thereafter.
An election shall be held on the first Tuesday after the first Monday of
November of 1907, to elect municipal presidents and vice-presidents.
At first blush it would appear that the word "election" as used in these excerpts is
confined to the day upon which those enjoying the right of suffrage are called to the polls
to express their choice of candidates; or, in other words, that it is equivalent to the
expression "election day" as used in section 10. But although the statute requires that it
be concluded upon that day. Subsequent sections of the act show this most clearly.
Section 21 is the section which, as a matter of fact, provides for the actual operation of
depositing the votes. It is there provided that the duly qualified electors shall have access
to the polls "from seven o'clock in the morning until five in the afternoon." It also
provides the method by which the ballots shall be deposited. If this is the only meaning
of the word "election" as used throughout the act, what relation to an election must be
attributed to the operation described in a subsequent section (No. 25) entitled "counting
the votes; announcement of the results?" We started with a definition which contained
the statement:
An election is the embodiment of the popular will, the expression of the
sovereign power of the people.
In 3 Words and Phrases (p. 2329 et seq.), under the title Elect-Elected-Election, a large
number of definitions, pivoting upon the words "a choosing or selection of one from
among others" may also be found. It is difficult to conceive any of the essential
subdivisions of this act of choosing being excluded from the operation of the term which
concretely expresses this act of the people, i.e., "election." We apprehend that no one
would have the temerity to say that the counting of the votes is unnecessary to an
election. Yet that it is not indispensable to a valid election to conclude this operation
during the day upon which the election is "held" is evident by section 24 itself, wherein it
states that "if, by reason of the length of time required for the count ... it shall be
impracticable to return the same before midnight ... ." Again, who will say that the formal
announcement by the board of canvassers is not essential to an expression of the popular
will? If the count may be concluded upon a subsequent day, a fortiori may the
announcement of the result.
Section 25 provides that the provincial board shall sit as a board of canvassers to
tabulate the statements prepared by the municipalities in accordance with section 24.
Yet, that this canvass is indispensable to the election of a delegate to the Assembly or a
provincial officer cannot be denied. The counting of the votes and the announcement of
the results by the municipal officers, and the canvass by the provincial board are integral
parts of the election, and the word cannot, therefore, be confined to the day upon which
the ballots were cast. We think it too clear for argument that the Legislature in saying
that an election should be held on a specified date intended only to convey the idea that
the initial operation of selecting the candidate should start upon that day. The expression
is thus used so frequently and with this certain meaning in all election statutes as to
practically amount to an idiom of language, "the meaning of which as a whole cannot be
derived from the conjoined meanings of its elements."
Keeping in mind the meaning of the word "election" as above set forth, let us examine
some of the authorities called to our attention. At the outset it is well to quote the
following from Topacio vs. Paredes (23 Phil. Rep., 238):
57
 The utmost care must be exercised in the citation of authorities in support to
any particular contention in the interpretation of election laws. They are
universally statutory and seldom similar in the matter of election controversies.
A single statutory or constitutional provision may render worthless as an
authority the best considered case coming from some other jurisdiction on the
point under discussion.
The period within which a statutory contest by a defeated candidate may be instituted
differs in the various States, not only as to the length of time allowed, but also as to the
designated date that it shall start to run. The latter is the only point with which we are
herein concerned. It is submitted that a provision of law requiring that the period shall
commence to run "after the official counting of the votes" (Montgomery vs. Dormer, 181
Mo., 5; 79 S.W., 913), "after return day" (Carbis vs. Dale, 23 Utah, 463; 65 P., 204), and
other similar expressions which clearly designate a time included within the term
"election" and precede the final steps necessary to the election of a candidate are not
equivalent to the phrase "after the election" as used in our own statute; for, as we have
seen, the scope of the term "election" includes every step necessary to the choice of a
representative by the people, from the casting of the ballots to the certificate of election.
However correctly these phrases were construed in the cases, and there are a number of
them in the books, it is submitted that the tribunals which prepared them were not
considering the phrase "after the election." These cases are not, therefore, in point.
It is claimed that the case of Carlson vs. Burt (111 Cal., 129, 131) is in the conflict with
our holding. The law under discussion in that case reads as follows:
When an elector contests the right of any person declared elected to such office,
he must, within forty daysafter the return day of such election, file with the
county clerk a written statement, etc.
In the course of the decision it was expressly decided that "return day" was prior to the
determination by the board of canvassers of who was elected. It is therefore not
understood how the requirement that a protest be filed "after return day" can be
equivalent to the requirement that it be filed "after the election." If it can, then any
intermediate step necessary to a valid election, such as the casting of the ballots, the
counting of the ballots, or the official declaration by the local authorities of the number of
votes cast in a precinct may be deemed equivalent to the election of a person to office; in
other words, a part is equal to the whole. We conclude that this case is not in point.
The case of Belden vs. Sherburne (27 La. Ann., 305), also cited, is, however, exactly in
point. The phrase used in the law which the court construed in that case was totidem
verdis the one found in our own statute. The court in that case dismissed a protest filed
more than ten days subsequent to the day the ballots were deposited, but within ten
days of the announcement of the results. But it must be remembered that this was a
contest for a municipal office, and that the returns were doubtless known within a day or
two at the most after the ballots were cast. The positive injustice of not allowing the
candidate time to ascertain the result of the election before filing his contest was not,
therefore, before the court. It is also a fact that this case is some forty years old, and
further that the law in that State has now been changed to read "after the promulgation
of the result of the said election," thereby indicating that the legislature arrived at the
conclusion that it was not advisable to date the period from the day the ballots cast.
(Revised Laws of La., § 1419.) Nor does the case appear to have been thoroughly
considered by the court.
An investigation of the statutes of the various States shows that in most of them where a
statutory proceeding for contesting elections is provided, the time within which such a
proceeding may be instituted commences to run "after the result of the election has been
determined;" "after the person whose election is contested is declared elected;" within
thirty days after the official promulgation of the result of said selection;" "within twenty
days after the day the incumbent was declared elected," etc. In those few States where
the wording is "after the election" it is most probable that the question has seldom if ever
arisen under the conditions of the case at bar, i. e., where the official returns were not
public property within the time allowed. The facilities for communication in all parts of
the United States are such that the result of an election is known most often by daylight
of the day following the election day, and the candidate, therefore, has at least unofficial
knowledge as to whether he has been elected or not. Furthermore, the time allowed for
the filing of a protest is generally sufficient to extend far beyond the time the official
returns are made known. For these reasons, the proposition that a candidate may be
deprived of his right to institute a contest from lack of information, either official or
unofficial, of the result of the election, has probably never been actually presented to the
courts of the United States. Probably no better illustration of this fact can be found than
the following from the California case of Carlson vs. Burt (111 Cal., 129, 133), which we
have discussed above:
To the suggestion that the board may take more than forty days to canvass the
vote, it may be said that it may be possible, but it is quite improbable. If it
should take much more than forty days the vote would not be canvassed until
the term for which officers are to be elected will begin. Such a contingency was
not anticipated, and can rarely happen, except through a criminal intent. The
presumption is that in fixing the election at a certain period before the
commencement of the terms of office, and in limiting the period for the
commencement of a contest, the legislature has taken all these things into
consideration, and has concluded that the period fixed will always prove
sufficient, and I believe that in practice it always has.
In this jurisdiction the contingency which the California court terms as possible but quite
improbable is a reality.
It is well-known fact that all the returns from the various municipalities in some of the
provinces of this Archipelago could not reach the capital within two weeks time, with the
consequence that no one can know, either officially or unofficially, which candidate was
successful in those provinces within two weeks after the day upon which the ballots are
cast. Nor was it ever the expectation of the legislature that such a result could be
accomplished.
Even the authorities in the United States agree with our holding that there cannot be a
contest until it is known who has been elected. (Bowler vs. Eisnhood (S.D.), 12 L.R.A.,
58
705; Hill vs. Holdam. 120 Ky., 660.) If this be true, it is simply depriving a candidate of his
right to a hearing to hold that the two weeks commence to run immediately after the day
upon which the ballots are cast. Did the Legislature intend any such consequences? The
term "after the election," as we have shown, may be construed in a manner which will
best conform to the literal and common meaning of the words used and at the same time
really allow the candidate two weeks within which to file his protest. The construction
we have rejected not only assigns to the word "election" a significance not warranted by
any available definition of the term, but makes of the two weeks period within which a
protest may be filed a mere catch word; an illusion which disappears before the
candidate can use it, and which deprives him of a hearing. Which of the two
constructions should a court adopt? The one is practical, just, and adequate for the
purpose in view. The other has nothing to recommend it. We are of the opinion that the
phrase "after the election" can only mean after the last step necessary to a valid election,
which is the proclamation of certificate of the provincial board of canvassers.
The extract of the minutes of the provincial board appearing in the record gives a
tabulated statement of the votes cast for the offices of delegate to the Assembly for the
first, second, and third Assembly districts, respectively, and for the office of provincial
governor, and then concludes with a resolution to the effect that the candidates receiving
the highest number of votes for each office (naming the candidate and office in each
case) are declared elected. In other words, the board did not, on July 12, as provided by
law, (1) make a canvass of all the votes cast in the province, (2) make one statement of all
votes cast for each candidate for the Assembly in each Assembly district, (3) make one
statement of all the votes cast for provincial officer, and (4) upon the completion of this
work determine who was elected to each office. What the board actually did do on July 12
was (1) make a canvas of all the votes for members of the Assembly and for provincial
governor, (2) make one statement of all the votes cast for each candidate for the
Assembly in each Assembly district, (3) make a statement of all the votes cast
for provincial governor, and (4) upon the completion of this work determine who was
elected as delegate to the Assembly from each Assembly district, and who was elected
provincial governor. It had not terminated its duty as a board of canvassers. The task of
compiling the votes cast for the office of third member of the provincial board and
announcing the result was still to be undertaken. In announcing the returns for some of
the offices before the two statements required of it were made, the board departed from
the letter of section 25 that the two statements in question must be prepared prior to the
announcement of the results, it would seem unnecessary for this court to discuss the
intention of the legislature in requiring this particular procedure. All the information
necessary for a canvass of the votes for each of the offices being shown on the statements
furnished by the different municipalities, the most logical procedure would seem to be
that indicated by section 25, i. e., a tabulation at the one time of all the returns for each
office each municipality. However, it is evident that the provincial board of canvassers
had not completed its canvass on July 12. The extract from the minutes of the board
indicates that it was the intention of the board to take up the work of completing the
canvass the following day, July 13. Whether this was the day upon which the election
duties of the board were actually completed, the record does not show; but for the
purposes of this case we shall assume that it was. This date, then, July 13, was the date
upon which the election terminated. The law provides that a protest must be filed within
two weeks after the election. (Sec. 27.) The two weeks period in this case, therefore,
dates from July 13. The second protest that in the present case was filed on July 27. It is
insisted that in computing the two weeks the first day must be included and that the last
day excluded. Under this theory it is claimed that the protest came too late, having been
made on July 27 instead of July 26 as required by law. The word "after" as here used
must be understood to mean subsequent to the time of the announcement of the official
returns; that is, none of the two weeks period precedes or is coetaneous with the
announcement of the results.
In computing time from or after a certain day, or a given date, or the day on
which an act done, the general rule is to exclude the day of the date, unless a
different method of computation is clearly intended, ... . (38 Cyc., 318.)
Judicial proceedings generally. — It has been stated generally that when any
matter of practice or procedure is required by statute or order of court to be
done within a certain number of days, the first day is excluded. ... (Id., 321.)
In view of these quotations and the long array of authorities cited in their support, and
holding, as we do, that there are no facts in the present case to justify excluding it from
the operation of well-established maxim of law that there is no fraction of a day, we are
of the opinion that the second protest of the appellee was filed within the two weeks
allowed by law.
3. The fifth assignment of error raises question as to whether the motion of protest filed
on July 27 should date back to June 18, the date of the first motion, as being an
amendment of the latter. It is urged that it does, and that the original protest being
premature and conferring no jurisdiction on the court to consider the issues sought to be
thereby raised, neither does the one filed on July 27. The proposition that a pleading
performing the office of an amendment dates back to the date of the filing of the original
plea is concede. But that the name given to a pleading by counsel must govern its effect
upon the cause before the court has not been demonstrated and, we think, is not capable
of proof.
The name given to a pleading is not controlling, but its character is always to be
determined by its allegations. (31 Cyc., 46, and a long array of authorities.)
The facts, as we said, concerning the two motions in question are these: The election was
held on June 4. The first motion of protest was filed on June 18, nearby a month before
the announcement of the official returns by the provincial board of canvassers. It was
admitted in paragraph 3 of this motion that the results of the election were not known;
and in paragraph 4 it was stated that notwithstanding the lack of this information, if the
official returns showed that the protestant had secured a less number of votes than his
opponent Altavas, he desired to contest the election by means of his motion (of June 18).
On July 27, after the board of canvassers had announced the results of the election,
another motion was filed by the appellee which he termed an amendment to the motion
filed on June 18. This second motion was accompanied by a formal request that it be
admitted in substitution of the motion of June 18. An examination of the second motion
shows that it is as a matter of fact a complete motion in itself. It alleges all the necessary
jurisdictional facts for the institution of the contest in accordance with section 27; and, in
59
much greater detail than the former motion, indicates the irregularities the contestant
relies upon. It has not been contended that the pleading filed on July 27 is not complete
in itself. Now, what was the reason of the appellee for filing the two motions? Simply this:
He was uncertain whether the court would construe the requirement of section 27 that a
protest must be filed within two weeks after the election would be construed by the
court to mean two weeks after election day, or two weeks after the official weeks after
election day, or two weeks after the official announcement of the returns. As he did not
wish to incur the risk of being deprived of his right to protest the election by attempting
to determine which way the court would decide this question, he very wisely decided to
be prepared. To this end he filed two motions, one of which would be within the two
weeks period provided by law for the filling of a protest, no matter which way the court
decided the question. We have said that this Supreme Court has definitely settled
question in the cases of Navarro vs. Veloso (23 Phil. Rep., 625) and Manalo vs.
Sevilla (ante, 609). But neither of these cases had been decided when the case at bar
arose; and prior to Navarro vs. Veloso the question had not been raised in this court. The
dilemma in which the appellee found himself was, therefore, certainly not of his own
making. The lower court evidently reached the conclusion that the two weeks period
commenced to run from the day the ballots were cast, since it took cognizance filing of
the motion of July 27. The court was clearly in error in so doing. The court should have
considered the motion of June 18 as premature and as conferring no jurisdiction
whatever upon the court to try the issues sought to be raised. By so doing the appellee
would have been advised of the steps necessary to be taken if he desired to contest the
election, and would not have been led into the inadvertence of terming his motion of July
27 an "amendment" of his motion of June 18. Under these circumstances, and the motion
of protest filed on July 27 being complete in itself and wholly sufficient without reference
to the one filed on June 18, we are clearly of the opinion that it should be considered not
as an amendment to the one of June 18, but as an original protest.
4. In support of the sixth alleged error, it is insisted that the court committed a reversible
error by directing the commissioners to open the ballot boxes and examine and recount
the ballots without first requiring the protestant to make a prima facie showing of fraud
or gross irregularities. This contention is based upon the proposition that there exists a
presumption in favor of the legality of the election and the correctness of the returns.
The law provides that upon the institution of the contest the court "shall forthwith cause
the registry lists and all ballots used at such election to be brought before it and
examined ... ." (Sec. 27). The filing of the protest and the service of the same upon all
candidates voted for gives the court jurisdiction to proceed to a final determination of
the case, and having once acquired such jurisdiction the court is expressly empowered to
examine all the ballots. The ballots cannot be examined without opening the boxes. The
law does not required a prima facie showing other than the allegations in the protest of
fraud or irregularities in order to authorize the opening of the boxes. If the parties by
agreement accept the returns from any precinct or precincts, however, the necessity for
the opening of the boxes would cease to exist as to them. In view of the plain provisions
of section 27, it is not difficult to reach the conclusion that this alleged error is not well
founded.
5. The seventh, eight, and ninth alleged errors may also be considered together. The facts
here pertinent are as follows: The trial of the contest began in the court below on August
10, when the court appointed W.M. Gracey, Sinforoso Salgado, and Jose M. Albar to
examine and recount and ballots. These gentlemen were designated "commissioners."
Such designation, of course, added nothing to their powers, but there can be no serious
objection to calling them by his name. Some time after the commissioners were
appointed, the appellant asked the court to relieve Salgado and appoint one of his own
selection. This the court declined to do. On this same day, August 10, the ballot boxes of
Dumarao were brought into court and identified, but not opened. There appears to have
been no session of the court of the 11th. On the 12th, during the examination of
witnesses in reference to the identification of the ballot boxes from another town,
counsel for the appellant asked the court if the boxes from Dumarao had been opened
and the ballots examined and recounted. The court replied that he had ordered the ballot
boxes opened and their contents examined and counted. The same counsel requested the
court to permit him or an associate or the appellant and a representative from the
associate or the appellant and a representative from the other side to be present when
the boxes were opened and the ballots examined and recounted by the commissioners.
The court denied this request. Counsel insisted upon being granted this privilege and
stated his reasons therefor, but the court would not change its ruling. Again, on
September 7, the appellant asked the court that, in view of the fact that the appellee had
concluded the taking of his testimony, the case be held open for the purpose of allowing
him to introduce additional evidence in reference to the rejected ballots, claiming that
the court had granted him authority to examine such ballots. The court then stated that it
had not authorized the appellee to examine the ballots, saying that the authority to
examine the ballots was granted to the commissioners, but that the attorneys in
presenting their arguments might examine the ballots for the purpose of aiding them in
such arguments. If the parties or either of them ever at any time saw and examined the
rejected ballots or any other ballots, the record fails to disclose this fact. The
commissioners performed theirs duties behind close doors and permitted neither party
to be present when the boxes were opened and the ballots recounted.
The correctness of this procedure is vigorously attacked by the appellant.
Section 27 provides in part as follows:
Such court shall have exclusive and final jurisdiction, except as hereinafter
provided, and shall forthwith cause the registry lists and all ballots used at such
election to be brought before it and examined, and to appoint the necessary
officers therefor and to fix their compensation ... and to issue
its mandamus directed to the board of canvassers to correct its canvass in
accordance with the facts as found.
It seems that to refuse to permit the parties to witness the examination and recount of
the ballots is purely arbitrary. It is directly opposed to the fundamental principles which
govern the introduction of evidence in the courts, and denies pro tanto the right of the
parties to a hearing before judgment. However unimpeachable the integrity of the
commissioners in this case, we cannot sanction such a practice.
60
It also seem necessary to disapprove of the scope of the power delegated to the Arellano, C.J., Torres and Moreland, JJ., concur.
commissioners in this case. Section 27 plainly requires that the court "shall forthwith
cause the registration lists and all ballots used at such election to be brought before it
and examined." We apprehend that this must be done in open court in the presence of
the presiding judge and the interested parties. We do not conceive that there is any grant
of judicial discretion here to the officers appointed by the court to determine whether or
not a ballot is invalid because improperly executed or because it is marked. These
officers have none of the powers of a referee (sec. 138 of the Code of Civil Procedure) or
of commissioners in eminent domain proceedings. (Sec. 244, id.) As a matter of fact,
there is no reason for terming the persons charged with the duty of opening and
counting the ballots "commissioners." The word used in the law is "officers," and the
extent of their duties as set forth therein appears to be confined to the mechanical
operation of opening the ballots and tabulating the count under the direct supervision of
the court. In other words, their duties are merely clerical. If it be urged that an
examination and recount of the ballots in the presence of the court would unduly
prolong and hearing, especially in a contest over a provincial office where a large
number of votes must be counted, we answer that is an argument to be addressed to the
Legislature and not to the courts. It would seem, however, that this objection might
easily be overcome by an agreement between the parties to dispense with the
attendance of the presiding judge at the actual counting of the ballots. The count could
then proceed before the officers appointed by the court and all ballots the validity of
which was not disputed by either party could be properly tabulated and disposed of by
the officers of the court without the intervention of the court. This would reduce the
actual labor of the court to an examination of the relatively small number of the ballots
which were objected to by the parties.

The ruling made by the court denying the parties the right to witness the examination
and recount of the ballots and to present evidence with reference to the legality of the
questioned ballots continues reversible error. The record will therefore be returned for a
reexamination and recount of the ballots by the court in the presence of the interested
parties, or by an officer or officers appointed by the court, also in the presence of the
interested parties. If this latter method is pursued, all ballots questioned by either party
must be submitted to the court, who will determine the validity of such ballots after the
evidence has all been presented. In any case the questioned ballots should be segregated
from the valid ballots by precincts and marked exhibits of the respective parties
objecting thereto. The evidence presented on the rehearing will be strictly confined to
the subject of the legality or validity of the questioned ballots. On the termination of the
recount and the presentation of such evidence and the arguments of counsel, the court
will, after an examination of the whole record — the old as well as the new testimony —
render such judgment as in its opinion the law and the merits of the case warrant. Upon
this new hearing, however, the court will not take into consideration the election held in
the first precinct of the town of Libacao for the reason that part of the judgment appealed
from rejecting or annulling the election in this precinct is hereby affirmed upon the
reasons stated in said judgment.

Judgment will be entered forthwith and the record returned to the court below for the
purposes set forth in this decision. No costs will be allowed in this instance. So ordered.

61
G.R. No. L-46863 November 18, 1939
IRINEO MOYA, petitioner,
vs.
AGRIPINO GA. DEL FIERO, respondent.
Elpidio Quirino for petitioner.
Claro M. Recto for respondent.
LAUREL, J.:
This is a petition for review by certiorari of the judgment of the Court of Appeals in the
above entitled case declaring the respondent, Agripino Ga. del Fierro, the candidate-elect
for the office of mayor of the municipality of Paracale, Province of Camarines Norte, with
a majority of three votes over his rival, Irineo Moya. In the general elections held on
December 14, 1937, the parties herein were contending candidates for the aforesaid
office. After canvass of the returns the municipal council of Paracale, acting as board of
canvassers, proclaimed the petitioner as the elected mayor of said municipality with a
majority of 102 votes. On December 27, 1937, the respondent field a motion of protest in
the Court of First Instance of Camarines Norte, the Court of Appeals, on July 13, 1939
rendered the judgment hereinbefore mentioned which is sought by the petitioner to be
reviewed and reversed upon the errors alleged to have been committed by the Court of
Appeals:
1. In admitting and counting in favor of the respondent, 8 ballots either
inadvertently or contrary to the controlling decisions of this Honorable Court.
2. In admitting and counting in favor of the respondent, 3 ballots marked "R. del
Fierro."
3. In admitting and counting in favor of the respondent, 7 ballots marked
"Rufino del Firro."
4. In admitting and counting in favor of the respondent, 72 ballots marked "P.
del Fierro."
Taking up seriatim the alleged errors, we come to the first assignment involving the eight
(8) ballots now to be mentioned. (1) With reference to ballot Exhibit F-175 in precinct
No. 2, alleged to have been inadvertently admitted in favor of the respondent, such
inadvertence raises a question of fact which could have been corrected by the Court of
Appeals and which could we are not in a position to determine in this proceeding for
review by certiorari. Upon the other hand, if the error attributed to the Court of Appeals
consisted in having admitted ballot Exhibit F-175 in precinct No. 2 instead of the ballot
bearing the same number corresponding to precinct No. 1, and this latter ballot clearly
appears admissible for the respondent because the name written on the space for mayor
is "Primo del Fierro" or "Pimo de Fierro", the error is technical and deserves but scanty
consideration. (2) Ballot Exhibit F-26 in precinct No. 3 was erroneously admitted for the
respondent by the Court of Appeals, the name written on the space for mayor being "G.T.
Krandes." It is true that on the fourth line for the councilor "Alcalde Pinong del Fierro":
appears; but the intention of the elector is rendered vague and incapable of ascertaining
and the ballot was improperly counted for the respondent. As to this ballot, the
contention of the petitioner is sustained (3) Ballot Exhibit F-77 in precinct No. 2 should
also have been rejected by the Court of Appeals. The ballot bears the distinguishing mark
"O. K." placed after the name "M. Lopis" written on space for vice-mayor. The contention
of the petitioner in this respect is likewise sustained. (4) Ballot Exhibit F-9 in precinct No.
2 was properly admitted for respondent. On this ballot the elector wrote within the
space for mayor the name of Regino Guinto, a candidate for the provincial board and
wrote the respondent's name immediately below the line for mayor but immediately
above the name "M. Lopez" voted by him for vice-mayor. The intention of the elector to
vote for the respondent for the office of the mayor is clear under the circumstances. (5)
Ballot F-131 in precinct No. 1 was also properly counted for the respondent. On this
ballot the elector wrote the respondent's name on the space for vice-mayor, but,
apparently realizing his mistake, he placed an arrow connecting the name of the
respondent to the word "Mayor" (Alcalde) printed on the left side of the ballot. The
intention of the elector to vote for the respondent for the office of mayor is thus evident,
in the absence of proof showing that the ballot had been tampered with. (6) Ballot F-7 in
precinct No. 5 is admissible for the respondent and the Court of Appeals committed no
error in so adjudicating. Although the name of the respondent is written on the first
space for member of the provincial board, said name is followed in the next line by "Bice"
Culastico Palma, which latter name is followed in the next line by word "consehal" and
the name of a candidate for this position. The intention of the elector to vote for the
respondent for the office of mayor being manifest, the objection of the petitioner to the
admission of this ballot is overruled. (7) Ballot F-1 in precinct No. 2 is valid for the
respondent. On this ballot the Christian name of the respondent was written on the
second space for member of the provincial board, but his surname was written on the
proper space for mayor with no other accompanying name or names. The intention of
the elector being manifest, the same should be given effect in favor of the respondent. (8)
Ballot F-44 in precinct No. 2 wherein "Agripino F. Garcia" appears written on the proper
space, is valid for the respondent. In his certificate of candidacy the respondent gave his
name as "Agripino Ga. del Fierro." The conclusion of the trial court, upheld by the Court
of Appeals, that the letter "F" stands for "Fierro" and "Garcia" for the contraction "Ga." is
not without justification and, by liberal construction, the ballot in question was properly
admitted for the respondent.
The second error assigned by the petitioner refers to three ballots, namely, Exhibit F-119
in precinct No. 1 Exhibit F-24 in precinct No. 2, and Exhibit F-6 in precinct No. 4. These
three ballots appear to be among the 75 ballots found by the Court of Appeals as
acceptable for the respondent on the ground that the initial letter "P" stands for "Pino" in
"Pino del Fierro" which is a name mentioned in the certificate of candidacy of the
respondent. The petitioner contends that the initial "R" and not "P". Even if we could
reverse this finding, we do not feel justified in doing so after examining the photostatic
62
copies of these ballots attached to the herein petition for certiorari. The second one vote. In view whereof it becomes unnecessary to consider the counter-assignment of
assignment of error is accordingly overruled. errors of the respondent.

Upon the third assignment of error, the petitioner questions the correctness of the With the modification of the decision of the Court of Appeals, the petition for the writ
judgment of the Court of Appeals in adjudicating to the respondent the seven ballots of certiorari is hereby dismissed, without pronouncement regarding costs.
wherein "Rufino del Fierro" was voted for the office of mayor. We are of the opinion that
the position taken by the Court of Appeals is correct. There was no other candidate for Avanceña, C.J., Villa-Real, Imperial, Diaz, Concepcion and Moran, JJ., concur.
the office of mayor with the name of "Rufino" or similar name and, as the respondent
was districtly identified by his surname on these ballots, the intention of the voters in
preparing the same was undoubtedly to vote for the respondent of the office for which
he was a candidate.lawphi1.net

The fourth assignment of error deals with the 72 ballots wherein "P. del Fierro" was
voted for the office of mayor, and it is the contention of the petitioner that said ballots
should not have been counted by the Court of Appeals in favor of the respondent. For the
identical reason indicated under the discussion of petitioner's second assignment of
error, namely, that "P" stands for "Pino" in "Pino del Fierro" which is a name mentioned
in the certificate of candidacy of the respondent, we hold that there was no error in the
action of the Court of Appeals in awarding the said ballots to the respondent.

With the exception of ballot marked as Exhibit F-26 in precinct No. 3 and ballot marked
as Exhibit F-77 in precinct No. 2, we are inclined to accept the rest of the disputed ballots
for the respondent not only for the specific reasons already given but also and principally
for the more fundamental reason now to be stated. As long as popular government is an
end to be achieved and safeguarded, suffrage, whatever may be the modality and form
devised, must continue to be the manes by which the great reservoir of power must be
emptied into the receptacular agencies wrought by the people through their Constitution
in the interest of good government and the common weal. Republicanism, in so far as it
implies the adoption of a representative type of government, necessarily points to the
enfranchised citizen as a particle of popular sovereignty and as the ultimate source of the
established authority. He has a voice in his Government and whenever called upon to act
in justifiable cases, to give it efficacy and not to stifle it. This, fundamentally, is the reason
for the rule that ballots should be read and appreciated, if not with utmost, with
reasonable, liberality. Counsel for both parties have called our attention to the different
and divergent rules laid down by this Court on the appreciation of ballots. It will serve no
good and useful purpose for us to engage in the task of reconciliation or harmonization
of these rules, although this may perhaps be undertaken, as no two cases will be found to
be exactly the same in factual or legal environment. It is sufficient to observe, however, in
this connection that whatever might have been said in cases heretofore decided, no
technical rule or rules should be permitted to defeat the intention of the voter, if that
intention is discoverable from the ballot itself, not from evidence aliunde. This rule of
interpretation goes to the very root of the system. Rationally, also, this must be the
justification for the suggested liberalization of the rules on appreciation of ballots which
are now incorporated in section 144 of the Election Code (Commonwealth Act No. 357).

It results that, crediting the petitioner with the two ballots herein held to have been
erroneously admitted by the Court of Appeals for the respondent, the latter still wins by

63
LOIDA NICOLAS-LEWIS, GREGORIO B. MACABENTA, ALEJANDRO G.R. No. 162759
A. ESCLAMADO, ARMANDO B. HEREDIA, REUBEN S. SEGURITAN, Petitioners are successful applicants for recognition of Philippine citizenship under R.A.
ERIC LACHICA FURBEYRE, TERESITA A. CRUZ, JOSEFINA OPENA Present:
DISTERHOFT, MERCEDES V. OPENA, CORNELIO R. NATIVIDAD, 9225 which accords to such applicants the right of suffrage, among others. Long before
EVELYN D. NATIVIDAD, PANGANIBAN, C.J.,
the May 2004 national and local elections, petitioners sought registration and
Petitioners, PUNO,
QUISUMBING, certification as "overseas absentee voter" only to be advised by the Philippine Embassy
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ, in the United States that, per a COMELEC letter to the Department of Foreign Affairs
CARPIO,
AUSTRIA-MARTINEZ, dated September 23, 2003[2], they have yet no right to vote in such elections owing to
- versus - CORONA,
CARPIO-MORALES, their lack of the one-year residence requirement prescribed by the Constitution. The
CALLEJO, SR.,
AZCUNA, same letter, however, urged the different Philippine posts abroad not to discontinue
TINGA,
CHICO-NAZARIO, their campaign for voters registration, as the residence restriction adverted to would
COMMISSION ON ELECTIONS, GARCIA, and
contextually affect merely certain individuals who would likely be eligible to vote in
Respondent. VELASCO, JR., JJ.
future elections.
Promulgated:

Prodded for clarification by petitioner Loida Nicolas-Lewis in the light of the ruling
August 4, 2006
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x in Macalintal vs. COMELEC [3] on the residency requirement, the COMELEC wrote in

DECISION response:

Although R.A. 9225 enjoys the presumption of constitutionality , it is

GARCIA, J.: the Commission's position that those who have availed of the law
cannot exercise the right of suffrage given under the OAVL for the
reason that the OAVL was not enacted for them. Hence, as Filipinos
who have merely re-acquired their citizenship on 18 September
In this petition for certiorari and mandamus, petitioners, referring to themselves 2003 at the earliest, and as law and jurisprudence now stand, they are
considered regular voters who have to meet the requirements of
as "duals" or dual citizens, pray that they and others who retained or reacquired residency, among others under Section 1, Article 5 of the
Constitution. [4]
Philippine citizenship under Republic Act (R.A.) No. 9225, the Citizenship Retention and

Re-Acquisition Act of 2003, be allowed to avail themselves of the mechanism provided Faced with the prospect of not being able to vote in the May 2004 elections owing to
under the Overseas Absentee Voting Act of 2003[1] (R.A. 9189) and that the Commission the COMELEC's refusal to include them in the National Registry of Absentee Voters,
on Elections (COMELEC) accordingly be ordered to allow them to vote and register as petitioner Nicolas-Lewis et al., [5] filed on April 1, 2004 this petition for certiorari and
absentee voters under the aegis of R.A. 9189. mandamus.

The facts:

64

A little over a week before the May 10, 2004 elections, or on April 30, 2004, the
COMELEC filed a Comment,[6] therein praying for the denial of the petition. As may be
expected, petitioners were not able to register let alone vote in said elections.
On May 20, 2004, the Office of the Solicitor General (OSG) filed a Manifestation (in Lieu of
Comment), therein stating that all qualified overseas Filipinos, including dual citizens
who care to exercise the right of suffrage, may do so , observing, however, that the
conclusion of the 2004 elections had rendered the petition moot and academic. [7]
The holding of the 2004 elections had, as the OSG pointed out, indeed rendered the
petition moot and academic, but insofar only as petitioners participation in such political
exercise is concerned. The broader and transcendental issue tendered or subsumed in
the petition, i.e., the propriety of allowing duals to participate and vote as absentee voter
in future elections, however, remains unresolved.
Observing the petitioners and the COMELECs respective formulations of the issues, the
same may be reduced into the question of whether or not petitioners and others who
might have meanwhile retained and/or reacquired Philippine citizenship pursuant to
R.A. 9225 may vote as absentee voter under R.A. 9189.
The Court resolves the poser in the affirmative, and thereby accords merit to the petition.
In esse, this case is all about suffrage. A quick look at the governing provisions on the
right of suffrage is, therefore, indicated.
We start off with Sections 1 and 2 of Article V of the Constitution, respectively reading as
follows:
SECTION 1. Suffrage may be exercised by all citizens of
the Philippines not otherwise disqualified by law, who are at least
eighteen years of age, and who shall have resided in the Philippinesfor
at least one year and in the place wherein they propose to vote for at
least six months immediately preceding the election. xxx.
SEC 2. The Congress shall provide a system for absentee voting by
qualified Filipinos abroad.
In a nutshell, the aforequoted Section 1 prescribes residency requirement as a general
eligibility factor for the right to vote. On the other hand, Section 2 authorizes Congress to
devise a system wherein an absentee may vote, implying that a non-resident may, as an
exception to the residency prescription in the preceding section, be allowed to vote.
In response to its above mandate, Congress enacted R.A. 9189 - the OAVL[8] - identifying
in its Section 4 who can vote under it and in the following section who cannot, as follows:
Section 4. Coverage. All citizens of the Philippines abroad, who are not
otherwise disqualified by law, at least eighteen (18) years of age on
the day of elections, may vote for president, vice-president, senators
and party-list representatives.
Section 5. Disqualifications. The following shall be disqualified from
voting under this Act:
(a) Those who have lost their Filipino citizenship in accordance with
Philippine laws;
(b) Those who have expressly renounced their Philippine citizenship
and who have pledged allegiance to a foreign country;
(c) Those who have [been] convicted in a final judgment by a court or
tribunal of an offense punishable by imprisonment of not less than
one (1) year, including those who have been found guilty of Disloyalty
as defined under Article 137 of the Revised Penal Code, .;
(d) An immigrant or a permanent resident who is recognized as such
in the host country, unless he/she executes, upon registration, an
affidavit prepared for the purpose by the Commission declaring that
he/she shall resume actual physical permanent residence in the
Philippines not later than three (3) years from approval of his/her
registration under this Act. Such affidavit shall also state that he/she
has not applied for citizenship in another country. Failure to return
shall be the cause for the removal of the name of the immigrant or
permanent resident from the National Registry of Absentee Voters
and his/her permanent disqualification to vote in absentia.
(e) Any citizen of the Philippines abroad previously
declared insane or incompetent by competent authority . (Words in
bracket added.)
65

Notably, Section 5 lists those who cannot avail themselves of the absentee voting
mechanism. However, Section 5(d) of the enumeration respecting Filipino immigrants
and permanent residents in another country opens an exception and qualifies the
disqualification rule. Section 5(d) would, however, face a constitutional challenge on the
ground that, as narrated in Macalintal, it -
violates Section 1, Article V of the 1987 Constitution which requires
that the voter must be a resident in the Philippines for at least one
year and in the place where he proposes to vote for at least six months
immediately preceding an election. [The challenger] cites Caasi vs.
Court of Appeals [9] to support his claim [where] the Court held that a
green card holder immigrant to the [US] is deemed to have abandoned
his domicile and residence in the Philippines.
[The challenger] further argues that Section 1, Article V of the
Constitution does not allow provisional registration or a promise by a
voter to perform a condition to be qualified to vote in a political
exercise; that the legislature should not be allowed to circumvent the
requirement of the Constitution on the right of suffrage by providing a
condition thereon which in effect amends or alters the aforesaid
residence requirement to qualify a Filipino abroad to vote. He claims
that the right of suffrage should not be granted to anyone who, on the
date of the election, does not possess the qualifications provided for
by Section 1, Article V of the Constitution.[10] (Words in bracket
added.)
As may be recalled, the Court upheld the constitutionality of Section 5(d) of R.A. 9189
mainly on the strength of the following premises:
As finally approved into law, Section 5(d) of R.A. No. 9189 specifically
disqualifies an immigrant or permanent resident who is recognized as
such in the host country because immigration or permanent residence
in another country implies renunciation of one's residence in his
country of origin. However, same Section allows an immigrant and
permanent resident abroad to register as voter for as long as he/she
executes an affidavit to show that he/she has not abandoned his
domicile in pursuance of the constitutional intent expressed in
Sections 1 and 2 of Article V that allcitizens of the Philippines not
otherwise disqualified by law must be entitled to exercise the right of
suffrage and, that Congress must establish a system for absentee
voting; for otherwise, if actual, physical residence in the Philippines is
required, there is no sense for the framers of the Constitution to
mandate Congress to establish a system for absentee voting.
Contrary to the claim of [the challenger], the execution of the affidavit
itself is not the enabling or enfranchising act. The affidavit required in
Section 5(d) is not only proof of the intention of the immigrant or
permanent resident to go back and resume residency in the
Philippines, but more significantly, it serves as an explicit expression
that he had not in fact abandoned his domicile of origin. Thus, it is not
correct to say that the execution of the affidavit under Section 5(d)
violates the Constitution that proscribes provisional registration or a
promise by a voter to perform a condition to be qualified to vote in a
political exercise. [11]
Soon after Section 5(d) of R.A. 9189 passed the test of constitutionality, Congress
enacted R.A. 9225 the relevant portion of which reads:
SEC. 2. Declaration of Policy. It is hereby declared the policy of the
State that all Philippine citizens who become citizens of another
country shall be deemed not to have lost their Philippine citizenship
under the conditions of this Act.
SEC. 3. Retention of Philippine Citizenship. Any provision of law to the
contrary notwithstanding, natural-born citizens of the Philippines
who have lost their Philippine citizenship by reason of their
naturalization as citizens of a foreign country are hereby deemed to
have re-acquired Philippine citizenship upon taking the following oath
of allegiance to the Republic:
xxx xxx xxx
Natural-born citizens of the Philippines who, after the effectivity of
this Act, become citizens of a foreign country shall retain their
Philippine citizenship upon taking the aforesaid oath.
SEC. 4. Derivative Citizenship. The unmarried child, whether
legitimate, illegitimate or adopted, below eighteen (18) years of age,
of those who re-acquire Philippine citizenship upon effectivity of this
Act shall be deemed citizens of the Philippines.
SEC. 5. Civil and Political Rights and Liabilities. 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:
66
 (1) Those intending to exercise their right of suffrage must
meet the requirements under Section 1, Article V of the
Constitution, Republic Act No. 9189, otherwise known as
The Overseas Absentee Voting Act of 2003 and other existing
laws;
(2) Those seeking elective public office in the Philippines
shall meet the qualifications 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
citizenship ;
3) xxx xxx xxx.
(4) xxx xxx xxx;
(5) That right to vote or be elected or appointed to any
public office in the Philippines cannot be exercised by, or
extended to, those who:
(a) are candidates for or are occupying any public
office in the country of which they are naturalized
citizens; and/or
(b) are in active service as commissioned or non-
commissioned officers in the armed forces of the
country which they are naturalized citizens.
After what appears to be a successful application for recognition of Philippine citizenship
under R.A. 9189, petitioners now invoke their right to enjoy political rights, specifically
the right of suffrage, pursuant to Section 5 thereof.
Opposing the petitioners bid, however, respondent COMELEC invites attention to the
same Section 5 (1) providing that duals can enjoy their right to vote, as an adjunct to
political rights, only if they meet the requirements of Section 1, Article V of the
Constitution, R.A. 9189 and other existing laws. Capitalizing on what at first blush is the
clashing provisions of the aforecited provision of the Constitution, which, to repeat,
requires residency in the Philippines for a certain period, and R.A. 9189 which grants a
Filipino non-resident absentee voting rights,[12] COMELEC argues:
4. DUALS MUST FIRST ESTABLISH THEIR DOMICILE/ RESIDENCE IN
THE PHILIPPINES
4.01. The inclusion of such additional and specific
requirements in RA 9225 is logical. The duals, upon
renouncement of their Filipino citizenship and
acquisition of foreign citizenship, have practically
and legally abandoned their domicile and severed
their legal ties to the homeland as a
consequence. Having subsequently acquired a
second citizenship (i.e., Filipino) then, duals must,
for purposes of voting, first of all, decisively and
definitely establish their domicile through positive
acts; [13]
The Court disagrees.
As may be noted, there is no provision in the dual citizenship law - R.A. 9225 -
requiring "duals" to actually establish residence and physically stay in
the Philippines first before they can exercise their right to vote. On the contrary, R.A.
9225, in implicit acknowledgment that duals are most likely non-residents, grants under
its Section 5(1) the same right of suffrage as that granted an absentee voter under R.A.
9189. It cannot be overemphasized that R.A. 9189 aims, in essence, to enfranchise as
much as possible all overseas Filipinos who, save for the residency requirements exacted
of an ordinary voter under ordinary conditions, are qualified to vote. Thus, wrote the
Court in Macalintal:
It is clear from these discussions of the Constitutional Commission
that [it] intended to enfranchise as much as possible all Filipino
citizens abroad who have not abandoned their domicile of origin. The
Commission even intended to extend to young Filipinos who reach
voting age abroad whose parents domicile of origin is in
the Philippines, and consider them qualified as voters for the first
time.
It is in pursuance of that intention that the Commission provided for
Section 2 [Article V] immediately after the residency requirement of
Section 1. By the doctrine of necessary implication in statutory
construction, , the strategic location of Section 2 indicates that the
67
Constitutional Commission provided for an exception to the actual
residency requirement of Section 1 with respect to qualified Filipinos
abroad. The same Commission has in effect declared that qualified
Filipinos who are not in the Philippines may be allowed to vote even
though they do not satisfy the residency requirement in Section 1,
Article V of the Constitution.
That Section 2 of Article V of the Constitution is an exception to the
residency requirement found in Section 1 of the same Article was in
fact the subject of debate when Senate Bill No. 2104, which became
R.A. No. 9189, was deliberated upon on the Senate floor, thus:
Senator Arroyo. Mr. President, this bill should be
looked into in relation to the constitutional
provisions. I think the sponsor and I would agree
that the Constitution is supreme in any statute that
we may enact.
Let me read Section 1, Article V, of the Constitution
. do or say in granting our compatriots abroad
xxx xxx xxx
Now, Mr. President, the Constitution says, who
shall have resided in the Philippines. They are
permanent immigrants. They have changed
residence so they are barred under the
Constitution. This is why I asked whether this
committee amendment which in fact does not alter
the original text of the bill will have any effect on
this?
Senator Angara. Good question, Mr. President. And
this has been asked in various fora. This is in
compliance with the Constitution. One, the
interpretation here of residence is synonymous
with domicile.
As the gentleman and I know, Mr. President,
domicile is the intent to return to one's home. And
the fact that a Filipino may have been physically
absent from the Philippines and may be
physically a resident of the United States, for
example, but has a clear intent to return to the
Philippines, will make him qualified as a
resident of the Philippines under this law.
This is consistent, Mr. President, with the
constitutional mandate that we that Congress must
provide a franchise to overseas Filipinos.
If we read the Constitution and the suffrage
principle literally as demanding physical
presence, then there is no way we can provide for
offshore voting to our offshore kababayan, Mr.
President.
Senator Arroyo. Mr. President, when the
Constitution says, in Section 2 of Article V, it
reads: The Congress shall provide a system for
securing the secrecy and sanctity of the ballot as
well as a system for absentee voting by qualified
Filipinos abroad.
The key to this whole exercise, Mr. President, is
qualified. In other words, anything that we may
must be anchored on the proposition that they
are qualified. Absent the qualification, they
cannot vote. And residents (sic) is a qualification.
xxx xxx xxx
Look at what the Constitution says In the place
wherein they propose to vote for at least six
months immediately preceding the election.
Mr. President, all of us here have run (sic) for
office.
I live in Makati. My neighbor is Pateros . We are
separated only by a creek. But one who votes
in Makati cannot vote in Pateros unless he resides
in Pateros for six months. That is how restrictive
our Constitution is. .
As I have said, if a voter in Makati would want to
vote in Pateros, yes, he may do so. But he must do
so, make the transfer six months before the
election, otherwise, he is not qualified to vote.
xxx xxx xxx
Senator Angara. It is a good point to raise, Mr.
President. But it is a point already well-debated
even in the constitutional commission of 1986. And
68
 the reason Section 2 of Article V was placed
immediately after the six-month/one-year
residency requirement is to demonstrate
unmistakably that Section 2 which authorizes
absentee voting is an exception to the six-
month/one-year residency requirement. That is
the first principle, Mr. President, that one must
remember.
The second reason, Mr. President, is that under our
jurisprudence residency has been interpreted as
synonymous with domicile.
But the third more practical reason, is, if
we follow the interpretation of the gentleman, t
hen it is legally and constitutionally impossible
to give a franchise to vote to overseas Filipinos
who do not physically live in the country, which
is quite ridiculous
because that is exactly the whole point of this
exercise to enfranchise them and empower
them to vote. [14] (Emphasis and words in bracket
added; citations omitted)
Lest it be overlooked, no less than the COMELEC itself admits that the Citizenship
Retention and Re-Acquisition Act expanded the coverage of overseas absentee
voting.According to the poll body:
1.05 With the passage of RA 9225 the scope of overseas absentee
voting has been consequently expanded so as to include Filipinos who
are also citizens of other countries, subject, however, to the strict
prerequisites indicated in the pertinent provisions of RA 9225; [15]
Considering the unison intent of the Constitution and R.A. 9189 and the expansion of the
scope of that law with the passage of R.A. 9225, the irresistible conclusion is that "duals"
may now exercise the right of suffrage thru the absentee voting scheme and as overseas
absentee voters. R.A. 9189 defines the terms adverted to in the following wise:
Absentee Voting refers to the process by which qualified citizens of
the Philippines abroad exercise their right to vote;
Overseas Absentee Voter refers to a citizen of the Philippines who is
qualified to register and vote under this Act, not otherwise
disqualified by law, who is abroad on the day of elections;
While perhaps not determinative of the issue tendered herein, we note that the
expanded thrust of R.A. 9189 extends also to what might be tag as the next generation of
"duals". This may be deduced from the inclusion of the provision on derivative
citizenship in R.A. 9225 which reads:
SEC. 4. Derivative Citizenship. The unmarried child, whether
legitimate, illegitimate or adopted, below eighteen (18) years of age,
of those who re-acquire Philippine citizenship upon effectivity of this
Act shall be deemed citizens of the Philippines.
It is very likely that a considerable number of those unmarried children below eighteen (1
8) years of age had never set foot in the Philippines. Now then, if the next generation
of "duals" may nonetheless avail themselves the right to enjoy full civil and political
rights under Section 5 of the Act, then there is neither no rhyme nor reason why the
petitioners and other present day "duals," provided they meet the requirements under
Section 1, Article V of the Constitution in relation to R.A. 9189, be denied the right of
suffrage as an overseas absentee voter. Congress could not have plausibly intended such
absurd situation.
WHEREFORE, the instant petition is GRANTED. Accordingly, the Court rules and so
holds that those who retain or re-acquire Philippine citizenship under Republic Act No.
9225, the Citizenship Retention and Re-Acquisition Act of 2003, may exercise the right to
vote under the system of absentee voting in Republic Act No. 9189, the Overseas
Absentee Voting Act of 2003.
SO ORDERED.
69
G.R. No. 100113 September 3, 1991
RENATO CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT,
and HON. GUILLERMO CARAGUE, in his capacity as Secretary of Budget and
Management, respondents.
Renato L. Cayetano for and in his own behalf.
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.
PARAS, J.:
We are faced here with a controversy of far-reaching proportions. While ostensibly only
legal issues are involved, the Court's decision in this case would indubitably have a
profound effect on the political aspect of our national existence.
The 1987 Constitution provides in Section 1 (1), Article IX-C:
There shall be a Commission on Elections composed of a Chairman and six
Commissioners who shall be natural-born citizens of the Philippines and, at the
time of their appointment, at least thirty-five years of age, holders of a college
degree, and must not have been candidates for any elective position in the
immediately preceding -elections. However, a majority thereof, including the
Chairman, shall be members of the Philippine Bar who have been engaged in
the practice of law for at least ten years. (Emphasis supplied)
The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973
Constitution which similarly provides:
There shall be an independent Commission on Elections composed of a Chairman and
eight Commissioners who shall be natural-born citizens of the Philippines and, at the
time of their appointment, at least thirty-five years of age and holders of a college degree.
However, a majority thereof, including the Chairman, shall be members of the Philippine
Bar who have been engaged in the practice of law for at least ten years.' (Emphasis
supplied)
Regrettably, however, there seems to be no jurisprudence as to what constitutes practice
of law as a legal qualification to an appointive office.
Black defines "practice of law" as:
The rendition of services requiring the knowledge and the application of legal
principles and technique to serve the interest of another with his consent. It is
not limited to appearing in court, or advising and assisting in the conduct of
litigation, but embraces the preparation of pleadings, and other papers incident
to actions and special proceedings, conveyancing, the preparation of legal
instruments of all kinds, and the giving of all legal advice to clients. It embraces
all advice to clients and all actions taken for them in matters connected with the
law. An attorney engages in the practice of law by maintaining an office where
he is held out to be-an attorney, using a letterhead describing himself as an
attorney, counseling clients in legal matters, negotiating with opposing counsel
about pending litigation, and fixing and collecting fees for services rendered by
his associate. (Black's Law Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and
Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in
the practice of law when he:
... for valuable consideration engages in the business of advising person, firms,
associations or corporations as to their rights under the law, or appears in a
representative capacity as an advocate in proceedings pending or prospective,
before any court, commissioner, referee, board, body, committee, or
commission constituted by law or authorized to settle controversies and there,
in such representative capacity performs any act or acts for the purpose of
obtaining or defending the rights of their clients under the law. Otherwise
stated, one who, in a representative capacity, engages in the business of
advising clients as to their rights under the law, or while so engaged performs
any act or acts either in court or outside of court for that purpose, is engaged in
the practice of law. (State ex. rel. Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d
895, 340 Mo. 852)
This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177)
stated:
The practice of law is not limited to the conduct of cases or litigation in court; it
embraces the preparation of pleadings and other papers incident to actions and
special proceedings, the management of such actions and proceedings on behalf
of clients before judges and courts, and in addition, conveying. In general,
all advice to clients, and all action taken for them in matters connected with the
law incorporation services, assessment and condemnation services
contemplating an appearance before a judicial body, the foreclosure of a
mortgage, enforcement of a creditor's claim in bankruptcy and insolvency
proceedings, and conducting proceedings in attachment, and in matters of
estate and guardianship have been held to constitute law practice, as do the
preparation and drafting of legal instruments, where the work done involves the
determination by the trained legal mind of the legal effect of facts and conditions.
(5 Am. Jr. p. 262, 263). (Emphasis supplied)
70
 Practice of law under modem conditions consists in no small part of work
performed outside of any court and having no immediate relation to
proceedings in court. It embraces conveyancing, the giving of legal advice on a
large variety of subjects, and the preparation and execution of legal
instruments covering an extensive field of business and trust relations and
other affairs. Although these transactions may have no direct connection with
court proceedings, they are always subject to become involved in litigation. They
require in many aspects a high degree of legal skill, a wide experience with men
and affairs, and great capacity for adaptation to difficult and complex situations.
These customary functions of an attorney or counselor at law bear an intimate
relation to the administration of justice by the courts. No valid distinction, so
far as concerns the question set forth in the order, can be drawn between that
part of the work of the lawyer which involves appearance in court and that part
which involves advice and drafting of instruments in his office. It is of
importance to the welfare of the public that these manifold customary
functions be performed by persons possessed of adequate learning and skill, of
sound moral character, and acting at all times under the heavy trust obligations
to clients which rests upon all attorneys. (Moran, Comments on the Rules of
Court, Vol. 3 [1953 ed.] , p. 665-666, citing In re Opinion of the Justices [Mass.],
194 N.E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.]
179 A. 139,144). (Emphasis ours)
The University of the Philippines Law Center in conducting orientation briefing for new
lawyers (1974-1975) listed the dimensions of the practice of law in even broader terms
as advocacy, counselling and public service.
One may be a practicing attorney in following any line of employment in the
profession. If what he does exacts knowledge of the law and is of a kind usual
for attorneys engaging in the active practice of their profession, and he follows
some one or more lines of employment such as this he is a practicing attorney
at law within the meaning of the statute. (Barr v. Cardell, 155 NW 312)
Practice of law means any activity, in or out of court, which requires the application of
law, legal procedure, knowledge, training and experience. "To engage in the practice of
law is to perform those acts which are characteristics of the profession. Generally, to
practice law is to give notice or render any kind of service, which device or service
requires the use in any degree of legal knowledge or skill." (111 ALR 23)
The following records of the 1986 Constitutional Commission show that it has adopted a
liberal interpretation of the term "practice of law."
MR. FOZ. Before we suspend the session, may I make a manifestation which I
forgot to do during our review of the provisions on the Commission on Audit.
May I be allowed to make a very brief statement?
THE PRESIDING OFFICER (Mr. Jamir).
The Commissioner will please proceed.
MR. FOZ. This has to do with the qualifications of the members of the Commission
on Audit. Among others, the qualifications provided for by Section I is that "They
must be Members of the Philippine Bar" — I am quoting from the provision —
"who have been engaged in the practice of law for at least ten years".
To avoid any misunderstanding which would result in excluding members of the Bar
who are now employed in the COA or Commission on Audit, we would like to make the
clarification that this provision on qualifications regarding members of the Bar does not
necessarily refer or involve actual practice of law outside the COA We have to interpret this
to mean that as long as the lawyers who are employed in the COA are using their legal
knowledge or legal talent in their respective work within COA, then they are qualified to be
considered for appointment as members or commissioners, even chairman, of the
Commission on Audit.
This has been discussed by the Committee on Constitutional Commissions and Agencies
and we deem it important to take it up on the floor so that this interpretation may be
made available whenever this provision on the qualifications as regards members of the
Philippine Bar engaging in the practice of law for at least ten years is taken up.
MR. OPLE. Will Commissioner Foz yield to just one question.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent
to the requirement of a law practice that is set forth in the Article on the
Commission on Audit?
MR. FOZ. We must consider the fact that the work of COA, although it is auditing,
will necessarily involve legal work; it will involve legal work. And, therefore,
lawyers who are employed in COA now would have the necessary qualifications in
accordance with the Provision on qualifications under our provisions on the
Commission on Audit. And, therefore, the answer is yes.
MR. OPLE. Yes. So that the construction given to this is that this is equivalent to
the practice of law.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Thank you.
... ( Emphasis supplied)
71
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the
Chairman and two Commissioners of the Commission on Audit (COA) should either be
certified public accountants with not less than ten years of auditing practice, or members
of the Philippine Bar who have been engaged in the practice of law for at least ten years.
(emphasis supplied)
Corollary to this is the term "private practitioner" and which is in many ways
synonymous with the word "lawyer." Today, although many lawyers do not engage in
private practice, it is still a fact that the majority of lawyers are private practitioners.
(Gary Munneke, Opportunities in Law Careers [VGM Career Horizons: Illinois], [1986], p.
15).
At this point, it might be helpful to define private practice. The term, as commonly
understood, means "an individual or organization engaged in the business of delivering
legal services." (Ibid.). Lawyers who practice alone are often called "sole practitioners."
Groups of lawyers are called "firms." The firm is usually a partnership and members of
the firm are the partners. Some firms may be organized as professional corporations and
the members called shareholders. In either case, the members of the firm are the
experienced attorneys. In most firms, there are younger or more inexperienced salaried
attorneyscalled "associates." (Ibid.).
The test that defines law practice by looking to traditional areas of law practice is
essentially tautologous, unhelpful defining the practice of law as that which lawyers do.
(Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p.
593). The practice of law is defined as the performance of any acts . . . in or out of court,
commonly understood to be the practice of law. (State Bar Ass'n v. Connecticut Bank &
Trust Co., 145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v. Payne,
128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers perform almost every
function known in the commercial and governmental realm, such a definition would
obviously be too global to be workable.(Wolfram, op. cit.).
The appearance of a lawyer in litigation in behalf of a client is at once the most publicly
familiar role for lawyers as well as an uncommon role for the average lawyer. Most
lawyers spend little time in courtrooms, and a large percentage spend their entire
practice without litigating a case. (Ibid., p. 593). Nonetheless, many lawyers do continue
to litigate and the litigating lawyer's role colors much of both the public image and the
self perception of the legal profession. (Ibid.).
In this regard thus, the dominance of litigation in the public mind reflects history, not
reality. (Ibid.). Why is this so? Recall that the late Alexander SyCip, a corporate lawyer,
once articulated on the importance of a lawyer as a business counselor in this wise:
"Even today, there are still uninformed laymen whose concept of an attorney is one who
principally tries cases before the courts. The members of the bench and bar and the
informed laymen such as businessmen, know that in most developed societies today,
substantially more legal work is transacted in law offices than in the courtrooms. General
practitioners of law who do both litigation and non-litigation work also know that in
most cases they find themselves spending more time doing what [is] loosely desccribe[d]
as business counseling than in trying cases. The business lawyer has been described as
the planner, the diagnostician and the trial lawyer, the surgeon. I[t] need not [be]
stress[ed] that in law, as in medicine, surgery should be avoided where internal medicine
can be effective." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).
In the course of a working day the average general practitioner wig engage in a number
of legal tasks, each involving different legal doctrines, legal skills, legal processes, legal
institutions, clients, and other interested parties. Even the increasing numbers of lawyers
in specialized practice wig usually perform at least some legal services outside their
specialty. And even within a narrow specialty such as tax practice, a lawyer will shift
from one legal task or role such as advice-giving to an importantly different one such as
representing a client before an administrative agency. (Wolfram, supra, p. 687).
By no means will most of this work involve litigation, unless the lawyer is one of the
relatively rare types — a litigator who specializes in this work to the exclusion of much
else. Instead, the work will require the lawyer to have mastered the full range of
traditional lawyer skills of client counselling, advice-giving, document drafting, and
negotiation. And increasingly lawyers find that the new skills of evaluation and
mediation are both effective for many clients and a source of employment. (Ibid.).
Most lawyers will engage in non-litigation legal work or in litigation work that is
constrained in very important ways, at least theoretically, so as to remove from it some
of the salient features of adversarial litigation. Of these special roles, the most prominent
is that of prosecutor. In some lawyers' work the constraints are imposed both by the
nature of the client and by the way in which the lawyer is organized into a social unit to
perform that work. The most common of these roles are those of corporate practice and
government legal service. (Ibid.).
In several issues of the Business Star, a business daily, herein below quoted are emerging
trends in corporate law practice, a departure from the traditional concept of practice of
law.
We are experiencing today what truly may be called a revolutionary
transformation in corporate law practice. Lawyers and other professional
groups, in particular those members participating in various legal-policy
decisional contexts, are finding that understanding the major emerging trends
in corporation law is indispensable to intelligent decision-making.
Constructive adjustment to major corporate problems of today requires an
accurate understanding of the nature and implications of the corporate law
research function accompanied by an accelerating rate of information
accumulation. The recognition of the need for such improved corporate legal
policy formulation, particularly "model-making" and "contingency planning,"
has impressed upon us the inadequacy of traditional procedures in many
decisional contexts.
In a complex legal problem the mass of information to be processed, the sorting
and weighing of significant conditional factors, the appraisal of major trends,
72
the necessity of estimating the consequences of given courses of action, and the
need for fast decision and response in situations of acute danger have
prompted the use of sophisticated concepts of information flow theory,
operational analysis, automatic data processing, and electronic computing
equipment. Understandably, an improved decisional structure must stress the
predictive component of the policy-making process, wherein a "model", of the
decisional context or a segment thereof is developed to test projected
alternative courses of action in terms of futuristic effects flowing therefrom.
Although members of the legal profession are regularly engaged in predicting
and projecting the trends of the law, the subject of corporate finance law has
received relatively little organized and formalized attention in the philosophy
of advancing corporate legal education. Nonetheless, a cross-disciplinary
approach to legal research has become a vital necessity.
Certainly, the general orientation for productive contributions by those trained
primarily in the law can be improved through an early introduction to multi-
variable decisional context and the various approaches for handling such
problems. Lawyers, particularly with either a master's or doctorate degree in
business administration or management, functioning at the legal policy level of
decision-making now have some appreciation for the concepts and analytical
techniques of other professions which are currently engaged in similar types of
complex decision-making.
Truth to tell, many situations involving corporate finance problems would
require the services of an astute attorney because of the complex legal
implications that arise from each and every necessary step in securing and
maintaining the business issue raised. (Business Star, "Corporate Finance Law,"
Jan. 11, 1989, p. 4).
In our litigation-prone country, a corporate lawyer is assiduously referred to as
the "abogado de campanilla." He is the "big-time" lawyer, earning big money
and with a clientele composed of the tycoons and magnates of business and
industry.
Despite the growing number of corporate lawyers, many people could not
explain what it is that a corporate lawyer does. For one, the number of
attorneys employed by a single corporation will vary with the size and type of
the corporation. Many smaller and some large corporations farm out all their
legal problems to private law firms. Many others have in-house counsel only for
certain matters. Other corporation have a staff large enough to handle most
legal problems in-house.
A corporate lawyer, for all intents and purposes, is a lawyer who handles the
legal affairs of a corporation. His areas of concern or jurisdiction may
include, inter alia: corporate legal research, tax laws research, acting out as
corporate secretary (in board meetings), appearances in both courts and other
adjudicatory agencies (including the Securities and Exchange Commission), and
in other capacities which require an ability to deal with the law.
At any rate, a corporate lawyer may assume responsibilities other than the
legal affairs of the business of the corporation he is representing. These include
such matters as determining policy and becoming involved in management. (
Emphasis supplied.)
In a big company, for example, one may have a feeling of being isolated from
the action, or not understanding how one's work actually fits into the work of
the orgarnization. This can be frustrating to someone who needs to see the
results of his work first hand. In short, a corporate lawyer is sometimes offered
this fortune to be more closely involved in the running of the business.
Moreover, a corporate lawyer's services may sometimes be engaged by a
multinational corporation (MNC). Some large MNCs provide one of the few
opportunities available to corporate lawyers to enter the international law
field. After all, international law is practiced in a relatively small number of
companies and law firms. Because working in a foreign country is perceived by
many as glamorous, tills is an area coveted by corporate lawyers. In most cases,
however, the overseas jobs go to experienced attorneys while the younger
attorneys do their "international practice" in law libraries. (Business Star,
"Corporate Law Practice," May 25,1990, p. 4).
This brings us to the inevitable, i.e., the role of the lawyer in the realm of
finance. To borrow the lines of Harvard-educated lawyer Bruce Wassertein, to
wit: "A bad lawyer is one who fails to spot problems, a good lawyer is one who
perceives the difficulties, and the excellent lawyer is one who surmounts them."
(Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).
Today, the study of corporate law practice direly needs a "shot in the arm," so
to speak. No longer are we talking of the traditional law teaching method of
confining the subject study to the Corporation Code and the Securities Code but
an incursion as well into the intertwining modern management issues.
Such corporate legal management issues deal primarily with three (3) types of
learning: (1) acquisition of insights into current advances which are of
particular significance to the corporate counsel; (2) an introduction to usable
disciplinary skins applicable to a corporate counsel's management
responsibilities; and (3) a devotion to the organization and management of the
legal function itself.
These three subject areas may be thought of as intersecting circles, with a
shared area linking them. Otherwise known as "intersecting managerial
jurisprudence," it forms a unifying theme for the corporate counsel's total
learning.
73
Some current advances in behavior and policy sciences affect the counsel's role.
For that matter, the corporate lawyer reviews the globalization process,
including the resulting strategic repositioning that the firms he provides
counsel for are required to make, and the need to think about a corporation's;
strategy at multiple levels. The salience of the nation-state is being reduced as
firms deal both with global multinational entities and simultaneously with sub-
national governmental units. Firms increasingly collaborate not only with
public entities but with each other — often with those who are competitors in
other arenas.
Also, the nature of the lawyer's participation in decision-making within the
corporation is rapidly changing. The modem corporate lawyer has gained a new
role as a stakeholder — in some cases participating in the organization and
operations of governance through participation on boards and other decision-
making roles. Often these new patterns develop alongside existing legal
institutions and laws are perceived as barriers. These trends are complicated as
corporations organize for global operations. ( Emphasis supplied)
The practising lawyer of today is familiar as well with governmental policies
toward the promotion and management of technology. New collaborative
arrangements for promoting specific technologies or competitiveness more
generally require approaches from industry that differ from older, more
adversarial relationships and traditional forms of seeking to influence
governmental policies. And there are lessons to be learned from other countries.
In Europe, Esprit, Eureka and Race are examples of collaborative efforts
between governmental and business Japan's MITI is world famous. (Emphasis
supplied)
Following the concept of boundary spanning, the office of the Corporate
Counsel comprises a distinct group within the managerial structure of all kinds
of organizations. Effectiveness of both long-term and temporary groups within
organizations has been found to be related to indentifiable factors in the group-
context interaction such as the groups actively revising their knowledge of the
environment coordinating work with outsiders, promoting team achievements
within the organization. In general, such external activities are better
predictors of team performance than internal group processes.
In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-
a-vis the managerial mettle of corporations are challenged. Current research is
seeking ways both to anticipate effective managerial procedures and to
understand relationships of financial liability and insurance considerations.
(Emphasis supplied)
Regarding the skills to apply by the corporate counsel, three factors
are apropos:
First System Dynamics. The field of systems dynamics has been found an
effective tool for new managerial thinking regarding both planning and
pressing immediate problems. An understanding of the role of feedback loops,
inventory levels, and rates of flow, enable users to simulate all sorts of
systematic problems — physical, economic, managerial, social, and
psychological. New programming techniques now make the system dynamics
principles more accessible to managers — including corporate counsels.
(Emphasis supplied)
Second Decision Analysis. This enables users to make better decisions involving
complexity and uncertainty. In the context of a law department, it can be used to
appraise the settlement value of litigation, aid in negotiation settlement, and
minimize the cost and risk involved in managing a portfolio of cases. (Emphasis
supplied)
Third Modeling for Negotiation Management. Computer-based models can be
used directly by parties and mediators in all lands of negotiations. All
integrated set of such tools provide coherent and effective negotiation support,
including hands-on on instruction in these techniques. A simulation case of an
international joint venture may be used to illustrate the point.
[Be this as it may,] the organization and management of the legal function,
concern three pointed areas of consideration, thus:
Preventive Lawyering. Planning by lawyers requires special skills that comprise
a major part of the general counsel's responsibilities. They differ from those of
remedial law. Preventive lawyering is concerned with minimizing the risks of
legal trouble and maximizing legal rights for such legal entities at that time
when transactional or similar facts are being considered and made.
Managerial Jurisprudence. This is the framework within which are undertaken
those activities of the firm to which legal consequences attach. It needs to be
directly supportive of this nation's evolving economic and organizational fabric
as firms change to stay competitive in a global, interdependent environment.
The practice and theory of "law" is not adequate today to facilitate the
relationships needed in trying to make a global economy work.
Organization and Functioning of the Corporate Counsel's Office. The general
counsel has emerged in the last decade as one of the most vibrant subsets of the
legal profession. The corporate counsel hear responsibility for key aspects of
the firm's strategic issues, including structuring its global operations, managing
improved relationships with an increasingly diversified body of employees,
managing expanded liability exposure, creating new and varied interactions
with public decision-makers, coping internally with more complex make or by
decisions.
74
 This whole exercise drives home the thesis that knowing corporate law is not
enough to make one a good general corporate counsel nor to give him a full
sense of how the legal system shapes corporate activities. And even if the
corporate lawyer's aim is not the understand all of the law's effects on
corporate activities, he must, at the very least, also gain a working knowledge of
the management issues if only to be able to grasp not only the basic legal
"constitution' or makeup of the modem corporation. "Business Star", "The
Corporate Counsel," April 10, 1991, p. 4).
The challenge for lawyers (both of the bar and the bench) is to have more than
a passing knowledge of financial law affecting each aspect of their work. Yet,
many would admit to ignorance of vast tracts of the financial law territory.
What transpires next is a dilemma of professional security: Will the lawyer
admit ignorance and risk opprobrium?; or will he feign understanding and risk
exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989, p. 4).
Respondent Christian Monsod was nominated by President Corazon C. Aquino to the
position of Chairman of the COMELEC in a letter received by the Secretariat of the
Commission on Appointments on April 25, 1991. Petitioner opposed the nomination
because allegedly Monsod does not possess the required qualification of having been
engaged in the practice of law for at least ten years.
On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod
as Chairman of the COMELEC. On June 18, 1991, he took his oath of office. On the same
day, he assumed office as Chairman of the COMELEC.
Challenging the validity of the confirmation by the Commission on Appointments of
Monsod's nomination, petitioner as a citizen and taxpayer, filed the instant petition for
certiorari and Prohibition praying that said confirmation and the consequent
appointment of Monsod as Chairman of the Commission on Elections be declared null
and void.
Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar
examinations of 1960 with a grade of 86-55%. He has been a dues paying member of the
Integrated Bar of the Philippines since its inception in 1972-73. He has also been paying
his professional license fees as lawyer for more than ten years. (p. 124, Rollo)
After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod
worked in the law office of his father. During his stint in the World Bank Group (1963-
1970), Monsod worked as an operations officer for about two years in Costa Rica and
Panama, which involved getting acquainted with the laws of member-countries negotiating
loans and coordinating legal, economic, and project work of the Bank. Upon returning to
the Philippines in 1970, he worked with the Meralco Group, served as chief executive officer
of an investment bank and subsequently of a business conglomerate, and since 1986, has
rendered services to various companies as a legal and economic consultant or chief
executive officer. As former Secretary-General (1986) and National Chairman (1987) of
NAMFREL. Monsod's work involved being knowledgeable in election law. He appeared for
NAMFREL in its accreditation hearings before the Comelec. In the field of advocacy,
Monsod, in his personal capacity and as former Co-Chairman of the Bishops Businessmen's
Conference for Human Development, has worked with the under privileged sectors, such as
the farmer and urban poor groups, in initiating, lobbying for and engaging in affirmative
action for the agrarian reform law and lately the urban land reform bill. Monsod also made
use of his legal knowledge as a member of the Davide Commission, a quast judicial body,
which conducted numerous hearings (1990) and as a member of the Constitutional
Commission (1986-1987), and Chairman of its Committee on Accountability of Public
Officers, for which he was cited by the President of the Commission, Justice Cecilia Muñoz-
Palma for "innumerable amendments to reconcile government functions with individual
freedoms and public accountability and the party-list system for the House of
Representative. (pp. 128-129 Rollo) ( Emphasis supplied)
Just a word about the work of a negotiating team of which Atty. Monsod used to be a
member.
In a loan agreement, for instance, a negotiating panel acts as a team, and which
is adequately constituted to meet the various contingencies that arise during a
negotiation. Besides top officials of the Borrower concerned, there are the legal
officer (such as the legal counsel), the finance manager, and an operations
officer (such as an official involved in negotiating the contracts) who comprise
the members of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies
for Developing Country Borrowers," Staff Paper No. 2, Central Bank of the
Philippines, Manila, 1982, p. 11). (Emphasis supplied)
After a fashion, the loan agreement is like a country's Constitution; it lays down
the law as far as the loan transaction is concerned. Thus, the meat of any Loan
Agreement can be compartmentalized into five (5) fundamental parts: (1)
business terms; (2) borrower's representation; (3) conditions of closing; (4)
covenants; and (5) events of default. (Ibid., p. 13).
In the same vein, lawyers play an important role in any debt restructuring
program. For aside from performing the tasks of legislative drafting and legal
advising, they score national development policies as key factors in maintaining
their countries' sovereignty. (Condensed from the work paper, entitled
"Wanted: Development Lawyers for Developing Nations," submitted by L.
Michael Hager, regional legal adviser of the United States Agency for
International Development, during the Session on Law for the Development of
Nations at the Abidjan World Conference in Ivory Coast, sponsored by the
World Peace Through Law Center on August 26-31, 1973). ( Emphasis
supplied)
Loan concessions and compromises, perhaps even more so than purely
renegotiation policies, demand expertise in the law of contracts, in legislation and
agreement drafting and in renegotiation. Necessarily, a sovereign lawyer may
work with an international business specialist or an economist in the
formulation of a model loan agreement. Debt restructuring contract
agreements contain such a mixture of technical language that they should be
75
 carefully drafted and signed only with the advise of competent counsel in
conjunction with the guidance of adequate technical support personnel. (See
International Law Aspects of the Philippine External Debts, an unpublished
dissertation, U.S.T. Graduate School of Law, 1987, p. 321). ( Emphasis supplied)
A critical aspect of sovereign debt restructuring/contract construction is the set
of terms and conditions which determines the contractual remedies for a
failure to perform one or more elements of the contract. A good agreement
must not only define the responsibilities of both parties, but must also state the
recourse open to either party when the other fails to discharge an obligation.
For a compleat debt restructuring represents a devotion to that principle which
in the ultimate analysis is sine qua non for foreign loan agreements-an
adherence to the rule of law in domestic and international affairs of whose kind
U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. once said: "They carry no
banners, they beat no drums; but where they are, men learn that bustle and
bush are not the equal of quiet genius and serene mastery." (See Ricardo J.
Romulo, "The Role of Lawyers in Foreign Investments," Integrated Bar of the
Philippine Journal, Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p.
265).
Interpreted in the light of the various definitions of the term Practice of law". particularly
the modern concept of law practice, and taking into consideration the liberal construction
intended by the framers of the Constitution, Atty. Monsod's past work experiences as a
lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-
negotiator of contracts, and a lawyer-legislator of both the rich and the poor — verily more
than satisfy the constitutional requirement — that he has been engaged in the practice of
law for at least ten years.
Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court
said:
Appointment is an essentially discretionary power and must be performed by the
officer in which it is vested according to his best lights, the only condition being
that the appointee should possess the qualifications required by law. If he does,
then the appointment cannot be faulted on the ground that there are others
better qualified who should have been preferred. This is a political question
involving considerations of wisdom which only the appointing authority can
decide. (emphasis supplied)
No less emphatic was the Court in the case of (Central Bank v. Civil Service Commission,
171 SCRA 744) where it stated:
It is well-settled that when the appointee is qualified, as in this case, and all the
other legal requirements are satisfied, the Commission has no alternative but to
attest to the appointment in accordance with the Civil Service Law. The
Commission has no authority to revoke an appointment on the ground that
another person is more qualified for a particular position. It also has no
authority to direct the appointment of a substitute of its choice. To do so would
be an encroachment on the discretion vested upon the appointing authority. An
appointment is essentially within the discretionary power of whomsoever it is
vested, subject to the only condition that the appointee should possess the
qualifications required by law. ( Emphasis supplied)
The appointing process in a regular appointment as in the case at bar, consists of four (4)
stages: (1) nomination; (2) confirmation by the Commission on Appointments; (3)
issuance of a commission (in the Philippines, upon submission by the Commission on
Appointments of its certificate of confirmation, the President issues the permanent
appointment; and (4) acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v.
Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers, p. 200)
The power of the Commission on Appointments to give its consent to the nomination of
Monsod as Chairman of the Commission on Elections is mandated by Section 1(2) Sub-
Article C, Article IX of the Constitution which provides:
The Chairman and the Commisioners shall be appointed by the President with
the consent of the Commission on Appointments for a term of seven years
without reappointment. Of those first appointed, three Members shall hold
office for seven years, two Members for five years, and the last Members for
three years, without reappointment. Appointment to any vacancy shall be only
for the unexpired term of the predecessor. In no case shall any Member be
appointed or designated in a temporary or acting capacity.
Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his
definition of the practice of law is the traditional or stereotyped notion of law
practice, as distinguished from the modern concept of the practice of law, which
modern connotation is exactly what was intended by the eminent framers of the
1987 Constitution. Moreover, Justice Padilla's definition would require
generally a habitual law practice, perhaps practised two or three times a week
and would outlaw say, law practice once or twice a year for ten consecutive
years. Clearly, this is far from the constitutional intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my
written opinion, I made use of a definition of law practice which really means nothing
because the definition says that law practice " . . . is what people ordinarily mean by the
practice of law." True I cited the definition but only by way of sarcasm as evident from
my statement that the definition of law practice by "traditional areas of law practice is
essentially tautologous" or defining a phrase by means of the phrase itself that is being
defined.
Justice Cruz goes on to say in substance that since the law covers almost all situations,
most individuals, in making use of the law, or in advising others on what the law means,
are actually practicing law. In that sense, perhaps, but we should not lose sight of the fact
that Mr. Monsod is a lawyer, a member of the Philippine Bar, who has been practising law
76
for over ten years. This is different from the acts of persons practising law, without first No blood shall flow from his veins.
becoming lawyers.
When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron
Justice Cruz also says that the Supreme Court can even disqualify an elected President of rod burning white-hot two or three inches away from in front of Samson's eyes. This
the Philippines, say, on the ground that he lacks one or more qualifications. This matter, I blinded the man. Upon hearing of what had happened to her beloved, Delilah was beside
greatly doubt. For one thing, how can an action or petition be brought against the herself with anger, and fuming with righteous fury, accused the procurator of reneging
President? And even assuming that he is indeed disqualified, how can the action be on his word. The procurator calmly replied: "Did any blade touch his skin? Did any blood
entertained since he is the incumbent President? flow from his veins?" The procurator was clearly relying on the letter, not the spirit of
the agreement.
We now proceed:
In view of the foregoing, this petition is hereby DISMISSED.
The Commission on the basis of evidence submitted doling the public hearings on
Monsod's confirmation, implicitly determined that he possessed the necessary SO ORDERED.
qualifications as required by law. The judgment rendered by the Commission in the
exercise of such an acknowledged power is beyond judicial interference except only
upon a clear showing of a grave abuse of discretion amounting to lack or excess of
jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of
discretion is clearly shown shall the Court interfere with the Commission's judgment. In
the instant case, there is no occasion for the exercise of the Court's corrective power,
since no abuse, much less a grave abuse of discretion, that would amount to lack or
excess of jurisdiction and would warrant the issuance of the writs prayed, for has been
clearly shown.

Additionally, consider the following:

(1) If the Commission on Appointments rejects a nominee by the President, may

the Supreme Court reverse the Commission, and thus in effect confirm the
appointment? Clearly, the answer is in the negative.

(2) In the same vein, may the Court reject the nominee, whom the Commission
has confirmed? The answer is likewise clear.

(3) If the United States Senate (which is the confirming body in the U.S.
Congress) decides to confirm a Presidential nominee, it would be incredible
that the U.S. Supreme Court would still reverse the U.S. Senate.

Finally, one significant legal maxim is:

We must interpret not by the letter that killeth, but by the spirit that giveth life.

Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked
Delilah (who was Samson's beloved) for help in capturing Samson. Delilah agreed on
condition that —

No blade shall touch his skin;

77
 [G.R. No. 93867 : December 18, 1990.]
192 SCRA 358
SIXTO S. BRILLANTES, JR., Petitioner, vs. HAYDEE B. YORAC, in her capacity as
ACTING CHAIRPERSON of the COMMISSION ON ELECTIONS, Respondent.
DECISION
CRUZ, J.:
The petitioner is challenging the designation by the President of the Philippines of
Associate Commissioner Haydee B. Yorac as Acting Chairman of the Commission on
Elections, in place of Chairman Hilario B. Davide, who had been named chairman of the
fact-finding commission to investigate the December 1989 coup d' etat attempt.
The qualifications of the respondent are conceded by the petitioner and are not in issue
in this case. What is the power of the President of the Philippines to make the challenged
designation in view of the status of the Commission on Elections as an independent
constitutional body and the specific provision of Article IX-C, Section 1(2) of the
Constitution that "(I)n no case shall any Member (of the Commission on Elections) be
appointed or designated in a temporary or acting capacity."
The petitioner invokes the case of Nacionalista Party v. Bautista, 85 Phil. 101, where
President Elpidio Quirino designated the Solicitor General as acting member of the
Commission on Elections and the Court revoked the designation as contrary to the
Constitution. It is also alleged that the respondent is not even the senior member of the
Commission on Elections, being outranked by Associate Commissioner Alfredo E. Abueg,
Jr.:-cralaw
The petitioner contends that the choice of the Acting Chairman of the Commission on
Elections is an internal matter that should be resolved by the members themselves and
that the intrusion of the President of the Philippines violates their independence. He
cites the practice in this Court, where the senior Associate Justice serves as Acting Chief
Justice in the absence of the Chief Justice. No designation from the President of the
Philippines is necessary.
In his Comment, the Solicitor General argues that no such designation is necessary in the
case of the Supreme Court because the temporary succession cited is provided for in
Section 12 of the Judiciary Act of 1948. A similar rule is found in Section 5 of BP 129 for
the Court of Appeals. There is no such arrangement, however, in the case of the
Commission on Elections. The designation made by the President of the Philippines
should therefore be sustained for reasons of "administrative expediency," to prevent
disruption of the functions of the COMELEC.
Expediency is a dubious justification. It may also be an overstatement to suggest that the
operations of the Commission on Elections would have been disturbed or stalemated if
the President of the Philippines had not stepped in and designated an Acting Chairman.
There did not seem to be any such problem. In any event, even assuming that difficulty,
we do not agree that "only the President (could) act to fill the hiatus," as the Solicitor
General maintains.
Article IX-A, Section 1, of the Constitution expressly describes all the Constitutional
Commissions as "independent." Although essentially executive in nature, they are not
under the control of the President of the Philippines in the discharge of their respective
functions. Each of these Commissions conducts its own proceedings under the applicable
laws and its own rules and in the exercise of its own discretion. Its decisions, orders and
rulings are subject only to review on Certiorari by this Court as provided by the
Constitution in Article IX-A, Section 7.
The choice of a temporary chairman in the absence of the regular chairman comes under
that discretion. That discretion cannot be exercised for it, even with its consent, by the
President of the Philippines.
A designation as Acting Chairman is by its very terms essentially temporary and
therefore revocable at will. No cause need be established to justify its revocation.
Assuming its validity, the designation of the respondent as Acting Chairman of the
Commission on Elections may be withdrawn by the President of the Philippines at any
time and for whatever reason she sees fit. It is doubtful if the respondent, having
accepted such designation, will not be estopped from challenging its
withdrawal.chanrobles virtual law library
It is true, as the Solicitor General points out, that the respondent cannot be removed at
will from her permanent position as Associate Commissioner. It is no less true, however,
that she can be replaced as Acting Chairman, with or without cause, and thus deprived of
the powers and perquisites of that temporary position.
The lack of a statutory rule covering the situation at bar is no justification for the
President of the Philippines to fill the void by extending the temporary designation in
favor of the respondent. This is still a government of laws and not of men. The problem
allegedly sought to be corrected, if it existed at all, did not call for presidential action. The
situation could have been handled by the members of the Commission on Elections
themselves without the participation of the President, however well-meaning.
In the choice of the Acting Chairman, the members of the Commission on Elections would
most likely have been guided by the seniority rule as they themselves would have
appreciated it. In any event, that choice and the basis thereof were for them and not the
President to make.
The Court has not the slightest doubt that the President of the Philippines was moved
only by the best of motives when she issued the challenged designation. But while
conceding her goodwill, we cannot sustain her act because it conflicts with the
Constitution. Hence, even as this Court revoked the designation in the Bautista case, so
too must it annul the designation in the case at bar.
The Constitution provides for many safeguards to the independence of the Commission
on Elections, foremost among which is the security of tenure of its members. That
guaranty is not available to the respondent as Acting Chairman of the Commission on
Elections by designation of the President of the Philippines.
WHEREFORE, the designation by the President of the Philippines of respondent Haydee
B. Yorac as Acting Chairman of the Commission on Elections is declared
78
UNCONSTITUTIONAL, and the respondent is hereby ordered to desist from serving as
such. This is without prejudice to the incumbent Associate Commissioners of the
Commission on Elections restoring her to the same position if they so desire, or choosing
another member in her place, pending the appointment of a permanent Chairman by the
President of the Philippines with the consent of the Commission on Appointments.: rd
SO ORDERED.

79
G. R. No. 105628 August 6, 1992 NATIVIDAD, NUEVA ECIJA; THE ELECTION REGISTRAR and APOLONIO
PASCUAL, respondents.
RODULFO SARMIENTO, petitioner,
vs. G.R. No. 105797 August 6, 1992
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF VIRAC and
JOSE "CITO" ALBERTO II, respondents. FRANCISCO G. RABAT, petitioner,
vs.
G.R. No. 105725 August 6, 1992 COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF DAVAO
ORIENTAL and ROSALIND YBASCO LOPEZ, respondents.
EMMANUEL R. ALFELOR, petitioner,
vs. G-R. No. 105919 August 6, 1992
COMMISSION ON ELECTIONS, THE CITY BOARD OF CANVASSERS OF IRIGA CITY and
JOSE C. VILLANUEVA, respondents. DATU MOHAMMAD A. SINSUAT, petitioner,
vs.
G.R. No. 105727 August 6, 1992 COMMISSION ON ELECTIONS, DATU MICHAEL SINSUAT and ATTY. RUBEN
PLATON, respondents.
LEANDRO I. VERCELES, SR., petitioner,
vs. G.R. No. 105977 August 6, 1992
COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF
CATANDUANES and ROSALIE ALBERTO-ESTACIO, respondents. ROSARIO A. VELASCO, petitioner,
vs.
G.R. No. 105730 August 6, 1992 COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF TERNATE,
CAVITE, and CONDRADO LINDO, respondents.
JESUS TYPOCO, JR., petitioner,
vs. RESOLUTION
COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF CAMARINES
NORTE, and MUNICIPAL BOARD OF CANVASSERS OF JOSE PANGANIBAN,
CAMARINES NORTE, respondents.
DAVIDE, JR., J.:
G.R. No. 105771 August 6, 1992
The special civil actions for certiorari hereby jointly resolved, filed under Rule 65 of the
ALBERTO U. GENOVA, JR., petitioner, Rules of Court, seek to set aside the Resolutions of respondent Commission on Elections
vs. (COMELEC) in the following Special Cases (SPC):
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF CABUSAO,
NEBRIDO F. SANTIAGO, and EUGENIO AGUILAR, respondents.
1) G.R. No. 105628 — SPC No. 92-266 granting the appeal from the
ruling of the Municipal Board of Canvassers of Virac, Catanduanes
G.R. No. 105778 August 6, 1992 which ordered the exclusion from the canvass of one (1) election
return;
MARIO S. MANLICLIC, petitioner,
vs. 2) G.R. No. 105725 — SPC No. 92-323 reversing the ruling of the City
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF GEN. Board of Canvassers of Iriga City which ordered the exclusion from
NATIVIDAD, NUEVA ECIJA, BOARD OF ELECTION INSPECTORS OF PRECINCT NOS. the canvass of six (6) election returns and in UND No. 92-243 ordering
12-A AND 13, BARANGAY MATAAS NA KAHOY, GEN. NATIVIDAD, NUEVA ECIJA; the said Board of Canvassers to include in the canvass the election
BOARD OF ELECTION INSPECTORS OF PRECINCT NOS. 15-A, BARANGAY PICALEON, returns involved therein;
GEN. NATIVIDAD, NUEVA ECIJA; PRECINCT NO. 25-A OF SAPANG BATO, GEN.

80
 3) G.R. No. 105727 — SPC No. 92-288 dismissing the appeal of
petitioner from the ruling of the Provincial Board of Canvassers of
Catanduanes which ordered the inclusion in the canvass the
certificate of canvass for the municipality of Virac, excluding the
returns from 48 precincts;
4) G.R. No. 105730 — SPC No. 92-315 affirming the ruling of the
Municipal Board of Canvassers of Jose Panganiban, Camarines Norte
which dismissed petitioner's opposition to the composition of the said
Municipal Board of Canvassers;
5) G.R. No. 105771 — SPC No. 92-271 affirming the ruling of the
Municipal Board of Canvassers of Cabusao, Camarines Sur which,
among others, rejected petitioner's objection to certain election
returns;
6) G.R. No. 105778 — SPC No. 92-039 dismissing said case for non-
compliance with Section 20 of R.A. No. 7166;
7) G.R. No. 105797 — SPC No. 92-153 affirming the rulings of the
Provincial Board of Canvassers of Davao Oriental which rejected
petitioner's objections to the canvass of some certificates of canvass;
8) G.R. No. 105919 — SPC No. 92-293 dismissing petitioner's appeal
from the ruling of the Municipal Board of Canvassers of Upi Nuro,
Maguindanao;
9) G.R. No. 105977 — SPC No. 92-087 denying the amended pre-
proclamation petition, which is an appeal from the rulings of the
Municipal Board of Canvassers of Ternate, Cavite, and denying a
subsequent motion to resolve the issues raised in said amended
petition.
Comments had been filed only in G.R. No. 105727 and G.R. No. 105797. This Court
dispenses with the Comments in the other cases.
Petitioners impugn the challenged resolutions above specified as having been issued
with grave abuse of discretion in that, inter alia, the Commission, sitting en banc, took
cognizance of and decided the appeals without first referring them to any of its Divisions.
Section 3, subdivision C, Article IX of the 1987 Constitution expressly provides:
Sec. 3. The Commission on Elections may sit en banc or in two
divisions, and shall promulgate its rules of procedure in order to
expedite disposition of election cases, including pre-proclamation
controversies. All such election cases shall be heard and decided in
division, provided that motions for reconsideration of decisions shall be
decided by the Commission en banc. (Emphasis supplied).
The 1973 Constitution prescribed another rule. Its Section 3, subdivision C of Article XII
provided as follows:
Sec. 3. The Commission on Elections may sit en banc or in three
divisions. All election cases may be heard and decided by divisions,
except contests involving Members of the Batasang Pambansa, which
shall be heard and decided en banc. . . .
It is clear from the abovequoted provision of the 1987 Constitution that election cases
include pre-proclamation controversies, and all such cases must first be heard and
decided by a Division of the Commission. The Commission, sitting en banc, does not have
the authority to hear and decide the same at the first instance. In the COMELEC RULES
OF PROCEDURE, pre-proclamation cases are classified as Special Cases 1 and, in
compliance with the above provision of the Constitution, the two (2) Divisions of the
Commission are vested with the authority to hear and decide these Special Cases. 2 Rule
27 thereof governs Special Cases; specifically, Section 9 of the said Rule provides that
appeals from rulings of the Board of Canvassers are cognizable by any of the Divisions to
which they are assigned and not by the Commission en banc. Said Section reads:
Sec. 9. Appeals from rulings of Board of Canvassers. — (a) A party
aggrieved by an oral ruling of the board of canvassers who had stated
orally his intent to appeal said ruling shall, within five days following
receipt of a copy of the written ruling of the board of canvassers, file
with the Commission a verified appeal, furnishing a copy thereof to
the board of canvassers and the adverse party.
(b) The appeal filed with the Commission shall be docketed by the
Clerk of Court concerned.
(c) The answer/opposition shall be verified.
(d) The Division to which the case is assigned shall immediately set the
case for hearing. (Emphasis supplied)
xxx xxx xxx
A motion to reconsider the decision or resolution of the Division concerned may be filed
within five (5) days from its promulgation. 3 The Clerk of Court of the Division shall,
within twenty-four (24) hours from the filing thereof, notify the Presiding Commissioner
of such fact; in turn, the latter shall certify the case to the Commission en
banc. 4Thereafter, the Clerk of Court of the Commission shall calendar the motion for
reconsideration for the resolution of the Commission en banc within ten (10) days from
the certification. 5
81
Indisputably then, the COMELEC en banc acted without jurisdiction, or with grave abuse
of discretion, when it resolved the appeals of petitioners in the abovementioned Special
Cases without first referring them to any of its Divisions. Said resolutions are, therefore,
null and void and must be set aside. Consequently, the appeals are deemed pending
before the Commission for proper referral to a Division.

A resolution directing the COMELEC to assign said Special Cases to the Divisions
pursuant to Section 8, Rule 3 of its Rules on assignment of cases would, logically, be in
order. However, Section 16 of R.A. No. 7166 6 provides that all pre-proclamation cases
pending before it shall be deemed terminated at the beginning of the term of the office
involved. The said section provides as follows:

xxx xxx xxx

All pre-proclamation cases pending before the Commission shall be

deemed terminated at the beginning of the term of the office involved
and the rulings of the boards of canvassers concerned shall be
deemed affirmed, without prejudice to the filing of a regular election
protest by the aggrieved party. However, proceedings may continue
when on the basis of the evidence thus far presented, the Commission
determines that the petition appears meritorious and accordingly
issues an order for the proceeding to continue or when an appropriate
order has been issued by the Supreme Court in a petition
for certiorari.

The terms of the offices involved in the Special Cases subject of these petitions
commenced at noon of 30 June 1992. 7 These cases have thus been rendered moot and
such a resolution would only be an exercise in futility.

Accordingly, the instant petitions are DISMISSED without prejudice to the filing by
petitioners of regular election protests. If the winning candidates for the positions
involved in the Special Cases subject of these petitions have already been proclaimed, the
running of the period to file the protests shall be deemed suspended by the pendency of
such cases before the COMELEC and of these petitions before this Court.

The Temporary Restraining Orders issued in G.R. No. 105727, G.R. No. 105730 and G.R.
No. 105797 are hereby LIFTED.

SO ORDERED.

82
G.R. No. 192289 January 8, 2013
KAMARUDIN K. IBRAHIM, Petitioner,
vs.
COMMISSION ON ELECTIONS and ROLAN G. BUAGAS, Respondents.
DECISION
REYES, J.:
Before us is a Petition for Certiorari and Prohibition with Prayer for the Issuance of a
Writ of Preliminary Injunction and/or Temporary Restraining Order1 filed under Rule 64
of the Rules of Court assailing the following resolutions of the public respondent
Commission on Elections (COMELEC):
(a) Minute Resolution No. 09-09462 (December 22, 2009 Resolution), dated
December 22, 2009, disqualifying the petitioner herein, Kamarudin K. Ibrahim
(Ibrahim), from the 2010 Vice-Mayoralty race in Datu Unsay, Maguindanao for
supposedly not being a registered voter of the said municipality; and
(b) Resolution3 (May 6, 2010 Resolution) issued on May 6, 2010, relative to SPA
Case No. 10-002 (MP) LOCAL, denying Ibrahim’s opposition4 to Resolution No.
09-0946.
Antecedent Facts
On December 1, 2009, Ibrahim filed his certificate of candidacy to run as Vice-Mayor of
Datu-Unsay in the May 10, 2010 elections. Thereafter, respondent Rolan G. Buagas
(Buagas), then Acting Election Officer in the said municipality, forwarded to the
COMELEC’s Law Department (Law Department) the names of 20 candidates who were
not registered voters therein. The list5 included Ibrahim’s name, along with those of two
candidates for mayor, one for vice-mayor and 16 for councilor.
In a Memorandum6 dated December 10, 2009, the Law Department brought to the
attention of the COMELEC en banc the names of 56 candidates running for various posts
in Maguindanao and Davao del Sur who were not registered voters of the municipalities
where they sought to be elected. The Law Department recommended the retention of the
said names in the Certified List of Candidates, but for the COMELEC to motu propio
institute actions against them for disqualification and for violation of election laws.
Thereafter, the COMELEC en banc issued the herein assailed December 22, 2009
Resolution approving, but with modification, the Law
Department’s recommendation in the following wise:
1. to disqualify the foregoing candidates for not being registered voters of the
respective municipalities where they seek to be elected without prejudice to
their filing of an opposition within two (2) days from publication hereof; and
2. to file election offense cases against said candidates for violation of Sec. 74 in
relation to Sec. 262 of the Omnibus Election Code.7 (Italics ours)
On January 8, 2010, Ibrahim and 50 other candidates filed a Petition/Opposition 8 to
assail the Resolution dated December 22, 2009. In the Petition/Opposition, which was
docketed as SPA 10-002 (MP) LOCAL, it was stressed that some of those affected by the
Resolution dated December 22, 2009 had participated as candidates in the 2004 and
2007 elections. If indeed they were not registered voters, they should have been
disqualified then. Further, it was emphasized that the candidates who filed the
Petition/Opposition were permanent residents and were domiciled at the place where
they sought to be elected.
The COMELEC en banc denied the Petition/Opposition through the herein assailed
Resolution dated May 6, 2010. The COMELEC declared that the Resolution dated
December 22, 2009 was anchored on the certification, which was issued by Buagas and
Acting Provincial Election Supervisor of Maguindanao, Estelita B. Orbase, stating that
Ibrahim, among other candidates, were not registered voters of Datu Unsay,
Maguindanao. The certification was issued in the performance of official duty, hence, the
presumption of regularity attached to it in the absence of contrary evidence. Ibrahim and
company failed to adduce evidence proving their allegations of registration and
residence.
In the May 10, 2010 elections, during which time the Resolution dated May 6, 2010 had
not yet attained finality, Ibrahim obtained 446 votes, the highest number cast for the
Vice-Mayoralty race in Datu Unsay.9 However, the Municipal Board of Canvassers
(MBOC), which was then chaired by Buagas, suspended Ibrahim’s proclamation on the
basis of Section 5, Rule 2510 of the COMELEC Rules of Procedure.11
Issue
Whether or not the COMELEC en banc acted with grave abuse of discretion amounting to
lack or excess of jurisdiction when it issued the Resolutions dated December 22, 2009
and May 6, 2010.
Arguments in Support of the Instant Petition
Ibrahim posits that the MBOC is a ministerial body created merely "to take the returns as
made from the different voting precincts, add them up and declare the result." 12 As long
as the returns are on their face genuine and are signed by the proper officers, sans
indications of being spurious and forged, they cannot be rejected on the ground of
alleged questions on the qualifications of voters and the existence of electoral frauds and
irregularities. Further, since Ibrahim received the highest number of votes for Vice-
83
Mayor, all possible doubts should be resolved in favor of his eligibility, lest the will of the
electorate, which should be the paramount consideration, be defeated.13
In its Manifestation and Motion in Lieu of Comment,14 the Office of the Solicitor General
(OSG) proposes for the instant Petition to be granted. The OSG points out that in Cipriano
v. Commission on Elections,15 this court nullified, for lack of proper proceedings before
their issuance, the resolutions issued by the COMELEC relative to the cancellation of a
certificate of candidacy. The OSG emphasizes that similarly, Ibrahim was disqualified as a
candidate without prior notice and hearing and he was given the chance to file an
opposition only after the issuance of the Resolution dated December 22, 2009.
Further citing Bautista v. Comelec,16 the OSG argues that jurisdiction over petitions to
cancel a certificate of candidacy pertains to the COMELEC sitting in division and not to
the COMELEC en banc. The COMELEC en banc can only take cognizance of petitions to
cancel a certificate of candidacy when the required number of votes for a division to
reach a decision, ruling, order or resolution is not obtained, or when motions for
reconsideration are filed to assail the said issuances of a division.
The OSG likewise refers to Section 4(B)(3)17 of Resolution No. 869618 to stress that
generally, the COMELEC cannot motu propio file petitions for disqualification against
candidates. Section 519 of the same resolution, however, provides the only exception to
the foregoing, to wit, that certificates of candidacy of those running for the positions of
President, Vice-President, Senator and Party-List maybe denied due course and canceled
motu propio by the COMELEC based on grounds enumerated therein. While there was a
Petition for Disqualification20 filed by Bai Reshal S. Ampatuan against Ibrahim and
company, it was not the basis for the COMELEC en banc’s issuance of the Resolutions
dated December 22, 2009 and May 6, 2010. Instead, the certification issued by Buagas
was the basis for the subsequent actions of the Law Department and the COMELEC en
banc leading to the issuance of the herein assailed resolutions.
The OSG also invokes Section 1621 of COMELEC Resolution No. 867822 to assert that the
MBOC had no authority to order the suspension of Ibrahim’s proclamation. Upon motion,
the suspension of a winning candidate’s proclamation can be ordered during the
pendency of a disqualification case before the COMELEC. However, only the COMELEC, as
a tribunal, has the authority to issue orders relative to cases pending before it. The MBOC
cannot substitute its own judgment for that of the COMELEC’s. The MBOC can suspend a
winning candidate’s proclamation only when an actual issue within the Board’s
jurisdiction arises in the course of conducting a canvass. The aforementioned issues
include the commission of violent and terrorist acts or the occurrence of a calamity at the
canvassing site. Absent any determination of irregularity in the election returns, as well
as an order enjoining the canvassing and proclamation of the winner, it is a mandatory
and ministerial duty of the MBOC concerned to count the votes based on such returns
and declare the result.23
It is also the OSG’s position that Section 5, Rule 2524 of the COMELEC Rules of Procedure
was irregularly worded for using the word "shall" when Section 625 of Republic Act (R.A.)
No. 6646,26 which the rules seek to implement, merely employed the word "may". The
use of the word "may" indicates that the suspension of a proclamation is merely
directory and permissive in nature and operates to confer discretion.27
The COMELEC’s Contentions
In the Compliance28 filed with the court, the COMELEC assails as improper Ibrahim’s
immediate resort to the instant Petition for Certiorari under Rule 64 of the Rules of
Court. Despite the issuance of the herein assailed resolutions, Ibrahim’s name was not
stricken off from the certified list of candidates during the May 10, 2010 elections and
the votes cast for him were counted. Hence, no actual prejudice was caused upon him as
the COMELEC did not even direct the MBOC to suspend his proclamation. It was the
MBOC’s ruling which resulted to the suspension of his proclamation. Such being the case,
Ibrahim should have instead filed a pre-proclamation controversy before the COMELEC
anchored on the supposed illegality of the MBOC’s proceedings. Section 241 of Batas
Pambansa Blg. 881 (BP 881), otherwise known as the Omnibus Election Code (OEC),
defines pre-proclamation controversies as referring to any questions "pertaining to or
affecting the proceedings of the board of canvassers which may be raised by any
candidate or by any registered political party or coalition of political parties before the
board or directly with the Commission, or any matter raised xxx in relation to the
preparation, transmission, receipt, custody and appreciation of the election returns." Had
Ibrahim instituted instead a pre-proclamation controversy, the COMELEC could have
corrected the MBOC’s ruling, if indeed, it was erroneous.
The COMELEC further argues that Ibrahim was not denied due process as he and the
other candidates referred to in the Resolutions dated December 22, 2009 and May 6,
2010 were given the opportunity to file their opposition. Ibrahim did file his
Petition/Opposition and sought reliefs from the COMELEC en banc. Now, he should not
be allowed to repudiate the proceedings merely because the result was adverse to him.
Moreover, the OSG’s invocation of the doctrines enunciated in Bautista v. Comelec 29 is
misplaced because in the said case, there was a total absence of notice and hearing.
The COMELEC emphasizes that Ibrahim was undeniably not a registered voter in Datu
Unsay when he ran as Vice-Mayor in the May 10, 2010 elections. He cannot possess any
mandate to serve as an elected official as by his act and willful misrepresentations, he
had deceived the electorate.
Our Ruling
We grant the instant Petition.
Before resolving the merits of the petition, the court shall first dispose of the procedural
issue raised by the COMELEC.
Ibrahim properly resorted to the instant Petition filed under Rule 64 of the Rules of
Court to assail the Resolutions dated December 22, 2009 and May 6, 2010 of the
COMELEC en banc.
84
The COMELEC seeks the dismissal of the instant Petition on the basis of a technical
ground, to wit, that Ibrahim’s resort to a petition for certiorari filed under Rule 64 of the
Rules of Court to challenge the Resolutions dated December 22, 2009 and May 6, 2010 is
improper. Ibrahim should have instead filed before the COMELEC a pre-proclamation
controversy to allow the latter to correct the MBOC’s ruling if it was indeed erroneous.
The claim fails to persuade.
Section 7, Article IX of the 1987 Constitution in part substantially provides that any
decision, order or ruling of any of the Constitutional Commissions may be brought for
review to the Supreme Court on certiorari within 30 days from receipt of a copy thereof.
The orders, ruling and decisions rendered or issued by the COMELEC en banc must be
final and made in the exercise of its adjudicatory or quasi-judicial power.30 Further,
Section 1, Rule 64 of the Rules of Court states that it shall govern the review of final
judgments and orders or resolutions of the COMELEC and the Commission on Audit.
A pre-proclamation controversy is defined in Section 241 of the OEC as referring to "any
question pertaining to or affecting the proceedings of the board of canvassers which may
be raised by any candidate or by any registered political party or coalition of parties
before the board or directly with the Commission, or any matter raised under Sections
233,31 234,32 23533 and 23634 in relation to the preparation, transmission, receipt,
custody and appreciation of the election returns." Section 243 of the OEC restrictively
enumerates as follows the issues which can be raised in a pre-proclamation controversy:
(a) Illegal composition or proceedings of the board of canvassers;
(b) The canvassed election returns are incomplete, contain material defects,
appear to be tampered with or falsified, or contain discrepancies in the same
returns or in other authentic copies thereof as mentioned in Sections 233, 234,
235 and 236 of this Code;
(c) The election returns were prepared under duress, threats, coercion, or
intimidation, or they are obviously manufactured or not authentic; and
(d) When substitute or fraudulent returns in controverted polling places were
canvassed, the results of which materially affected the standing of the
aggrieved candidate or candidates.
The illegality of the proceedings of the board of canvassers is the first issue which may
be raised in a pre-proclamation controversy. To illustrate, the proceedings are to be
considered as illegal when the board is constituted not in accordance with law, or is
composed of members not enumerated therein, or when business is transacted sans a
quorum.
In the case at bar, the now assailed Resolutions dated December 22, 2009 and May 6,
2010 were issued with finality by the COMELEC en banc. Under the Constitution and the
Rules of Court, the said resolutions can be reviewed by way of filing before us a petition
for certiorari. Besides, the issues raised do not at all relate to alleged irregularities in the
preparation, transmission, receipt, custody and appreciation of the election returns or to
the composition and proceedings of the board of canvassers. What the instant Petition
challenges is the authority of the MBOC to suspend Ibrahim’s proclamation and of the
COMELEC en banc to issue the assailed resolutions. The crux of the instant Petition does
not qualify as one which can be raised as a pre-proclamation controversy.
The COMELEC en banc is devoid of authority to disqualify Ibrahim as a candidate for the
position of Vice-Mayor of Datu Unsay.
Section 3(C), Article IX of the 1987 Constitution explicitly provides:
Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to expedite disposition of election cases,
including pre-proclamation controversies. All such election cases shall be heard and
decided in division, provided that motions for reconsideration of decisions shall be
decided by the Commission en banc. (Italics ours)
Further, the circumstances obtaining in Bautista v. Comelec35 cited by the OSG in its
Manifestation are similar to those attendant to the instant Petition. In Bautista, the
election officer reported to the Law Department that Bautista was ineligible to run as a
candidate by reason of his being an unregistered voter. The Law Department
recommended to the COMELEC en banc to deny due course or cancel Bautista’s
certificate of candidacy. The COMELEC en banc adopted the recommendation and
consequently issued a resolution. In the said case, this Court discussed the COMELEC en
banc’s jurisdiction over petitions for disqualification, for denial of due course, or
cancellation of certificates of candidacy in the following wise:
In Garvida v. Sales, Jr., the Court held that it is the COMELEC sitting in division and not
the COMELEC en banc which has jurisdiction over petitions to cancel a certificate of
candidacy. The Court held:
The Omnibus Election Code, in Section 78, Article IX, governs the procedure to deny due
course to or cancel a certificate of candidacy, viz:
"Sec.78. Petition to deny due course to or cancel a certificate of candidacy.1âwphi1  A
verified petition seeking to deny due course or to cancel a certificate of candidacy may be
filed by any person exclusively on the ground that any material representation contained
therein as required under Section 74 hereof is false. The petition may be filed at any time
not later than twenty-five days from the time of filing of the certificate of candidacy and
shall be decided, after due notice and hearing, not later than fifteen days before election."
In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that a petition
to deny due course to or cancel a certificate of candidacy for an elective office may be
filed with the Law Department of the COMELEC on the ground that the candidate has
made a false material representation in his certificate. The petition may be heard and
85
evidence received by any official designated by the COMELEC after which the case shall
be decided by the COMELEC itself.
Under the same Rules of Procedure, jurisdiction over a petition to cancel a certificate of
candidacy lies with the COMELEC sitting in Division, not en banc. Cases before a Division
may only be entertained by the COMELEC en banc when the required number of votes to
reach a decision, resolution, order or ruling is not obtained in the Division. Moreover,
only motions to reconsider decisions, resolutions, orders or rulings of the COMELEC in
Division are resolved by the COMELEC en banc.
xxxx
Under Section 3, Rule 23 of the 1993 COMELEC Rules of Procedure, a petition for the
denial or cancellation of a certificate of candidacy must be heard summarily after due
notice. It is thus clear that cancellation proceedings involve the exercise of the quasi-
judicial functions of the COMELEC which the COMELEC in division should first decide.
More so in this case where the cancellation proceedings originated not from a petition
but from a report of the election officer regarding the lack of qualification of the
candidate in the barangay election. The COMELEC en banc cannot short cut the
proceedings by acting on the case without a prior action by a division because it denies
due process to the candidate.36 (Citation omitted and italics ours)
In the case at bar, the COMELEC en banc, through the herein assailed resolutions,
ordered Ibrahim’s disqualification even when no complaint or petition was filed against
him yet. Let it be stressed that if filed before the conduct of the elections, a petition to
deny due course or cancel a certificate of candidacy under Section 78 of the OEC is the
appropriate petition which should have been instituted against Ibrahim considering that
his allegedly being an unregistered voter of Datu Unsay disqualified him from running as
Vice-Mayor. His supposed misrepresentation as an eligible candidate was an act falling
within the purview of Section 78 of the OEC. Moreover, even if we were to assume that a
proper petition had been filed, the COMELEC en banc still acted with grave abuse of
discretion when it took cognizance of a matter, which by both constitutional prescription
and jurisprudential declaration, instead aptly pertains to one of its divisions.
Ibrahim is not estopped from challenging the COMELEC en banc’s jurisdiction to issue
the assailed resolutions.
In Republic v. Bantigue Point Development Corporation,37 we stated:
The rule is settled that lack of jurisdiction over the subject matter may be raised at any
stage of the proceedings. Jurisdiction over the subject matter is conferred only by the
Constitution or the law. It cannot be acquired through a waiver or enlarged by the
omission of the parties or conferred by the acquiescence of the court. Consequently,
questions of jurisdiction may be cognizable even if raised for the first time on appeal.
The ruling of the Court of Appeals that "a party may be estopped from raising such
jurisdictional question if he has actively taken part in the very proceeding which he
questions, belatedly objecting to the court’s jurisdiction in the event that the judgment or
order subsequently rendered is adverse to him" is based on the doctrine of estoppel by
laches. We are aware of that doctrine first enunciated by this Court in Tijam v.
Sibonghanoy. In Tijam, the party-litigant actively participated in the proceedings before
the lower court and filed pleadings therein. Only 15 years thereafter, and after receiving
an adverse Decision on the merits from the appellate court, did the party-litigant
question the lower court’s jurisdiction. Considering the unique facts in that case, we held
that estoppel by laches had already precluded the party-litigant from raising the
question of lack of jurisdiction on appeal. In Figueroa v. People, we cautioned that Tijam
must be construed as an exception to the general rule and applied only in the most
exceptional cases whose factual milieu is similar to that in the latter case. 38 (Citations
omitted and italics ours)
As enunciated above, estoppel by laches can only be invoked in exceptional cases with
factual circumstances similar to those in Tijam.39 In the case now before us, the assailed
resolutions were issued on December 22, 2009 and May 6, 2010. The instant Petition,
which now raises, among others, the issue of the COMELEC en banc’s jurisdiction, was
filed on June 3, 2010. With the prompt filing of the instant Petition, Ibrahim can hardly be
considered as guilty of laches.
Ibrahim was not denied due process.
Interminably, we have declared that deprivation of due process cannot be successfully
invoked where a party was given the chance to be heard on his motion for
reconsideration.40
In the case before us, Ibrahim was afforded the chance to file an opposition to the
assailed resolutions. Nonetheless, even if due process was substantially observed, the
assailed resolutions remain null and void for want of authority on the part of the
COMELEC en banc to take cognizance of a matter which should have instead been
referred to one of its divisions.
The MBOC has no authority to suspend Ibrahim’s proclamation especially since the
herein assailed resolutions, upon which the suspension was anchored, were issued by
the COMELEC en banc outside the ambit of its jurisdiction.
Mastura v. COMELEC41 is emphatic that:
(T)he board of canvassers is a ministerial body. It is enjoined by law to canvass all votes
on election returns submitted to it in due form. It has been said, and properly, that its
powers are limited generally to the mechanical or mathematical function of ascertaining
and declaring the apparent result of the election by adding or compiling the votes cast
for each candidate as shown on the face of the returns before them, and then declaring or
certifying the result so ascertained. x x x.42 (Italics ours)
86
The simple purpose and duty of the canvassing board is to ascertain and declare the
apparent result of the voting while all other questions are to be tried before the court or
other tribunal for contesting elections or in quo warranto proceedings.43

In the case at bar, the MBOC motu propio suspended Ibrahim’s proclamation when the
issue of the latter’s eligibility is a matter which the board has no authority to resolve.
Further, under Section 644 of R.A. 6646, the COMELEC and not the MBOC has the
authority to order the suspension of a winning candidates’s proclamation. Such
suspension can only be ordered upon the motion of a complainant or intervenor relative
to a case for disqualification, or a petition to deny due course or cancel a certificate of
candidacy pending before the COMELEC, and only when the evidence of the winning
candidate’s guilt is strong. Besides, the COMELEC en banc itself could not have properly
ordered Ibrahim’s disqualification because in taking cognizance of the matter, it had
already exceeded its jurisdiction.

WHEREFORE, IN VIEW OF THE FOREGOING, the instant petition is GRANTED. The

December 22, 2009 and May 6, 2010 Resolutions issued by the COMELEC en banc is
ANNULLED and SET ASIDE. Consequently, the suspension by the MBOC of Ibrahim’s
proclamation on the basis of the herein assailed resolutions is likewise ANNULLED and
SET ASIDE. In the absence of a judgment, order or resolution relative to another action or
petition finally disqualifying Ibrahim, denying due course or cancelling his certificate of
candidacy, the MBOC of Datu Unsay is directed to convene within ten (10) days from
receipt hereof and to proclaim Ibrahim as the duly-elected Vice-Mayor of the said
municipality.

SO ORDERED.

87
 [G.R. No. 139853. September 5, 2000]
FERDINAND THOMAS M. SOLLER, petitioner, vs. COMMISSION ON ELECTIONS,
REGIONAL TRIAL COURT OF PINAMALAYAN, ORIENTAL MINDORO
(Branch 42) and ANGEL M. SAULONG, respondents.
RESOLUTION
QUISUMBING, J.:
This special civil action for certiorari seeks to annul the resolution promulgated on
August 31, 1999, in COMELEC special relief case SPR No. 10-99. The resolution dismissed
petitioner's petition to set aside the orders of the Regional Trial Court of Pinamalayan,
Oriental Mindoro, dated October 1, 1998 and February 1, 1999, which denied
petitioner's motion to dismiss the election protest filed by private respondent against
petitioner and the motion for reconsideration, respectively.
Petitioner and private respondent were both candidates for mayor of the
municipality of Bansud, Oriental Mindoro in the May 11, 1998 elections. On May 14,
1998, the municipal board of canvassers proclaimed petitioner Ferdinand Thomas Soller
duly elected mayor.
On May 19, 1998, private respondent Angel Saulong filed with the COMELEC a
"petition for annulment of the proclamation/exclusion of election return". [1] On May 25,
1998, private respondent filed with the Regional Trial Court of Pinamalayan, Oriental
Mindoro, an election protest against petitioner docketed as EC-31-98.
On June 15, 1998, petitioner filed his answer with counter-protest. Petitioner also
moved to dismiss private respondent's protest on the ground of lack of jurisdiction,
forum-shopping, and failure to state cause of action.[2]
On July 3, 1998, COMELEC dismissed the pre-proclamation case filed by private
respondent.
On October 1, 1998, the trial court denied petitioner's motion to dismiss. Petitioner
moved for reconsideration but said motion was denied. Petitioner then filed with the
COMELEC a petition for certiorari contending that respondent RTC acted without or in
excess of jurisdiction or with grave abuse of discretion in not dismissing private
respondent's election protest.
On August 31, 1999, the COMELEC en banc dismissed petitioner's suit. The election
tribunal held that private respondent paid the required filing fee. It also declared that the
defect in the verification is a mere technical defect which should not bar the
determination of the merits of the case. The election tribunal stated that there was no
forum shopping to speak of.
Under the COMELEC Rules of Procedure, a motion for reconsideration of its en
banc ruling is prohibited except in a case involving an election offense. [3] Since the
present controversy involves no election offense, reconsideration is not possible and
petitioner has no appeal or any plain, speedy and adequate remedy in the ordinary
course of law. Accordingly, petitioner properly filed the instant petition
for certiorari with this Court.
On September 21, 1999, we required the parties to maintain the status quo
ante prevailing as of September 17, 1999, the date of filing of this petition.
Before us, petitioner asserts that the COMELEC committed grave abuse of
discretion amounting to lack or excess of jurisdiction:
[I]
... IN AFFIRMING RESPONDENT RTC'S REFUSAL TO DISMISS PRIVATE
RESPONDENT'S ELECTION PROTEST DESPITE HIS (sic) LACK OF JURISDICTION
OVER THE SAME BY REASON OF THE FAILURE OF THE PRIVATE RESPONDENT
TO PAY ALL THE REQUISITE FILING FEES.
[II]
... IN AFFIRMING RESPONDENT'S RTC'S REFUSAL TO DISMISS PRIVATE
RESPONDENT'S ELECTION PROTEST DESPITE THE INSUFFICIENCY OF HIS
PETITION IN FORM AND SUBSTANCE AND ITS FAILURE TO STATE A CAUSE OF
ACTION.
[III]
...IN AFFIRMING RESPONDENT RTC'S REFUSAL TO DISMISS THE ELECTION
PROTEST BELOW ON THE GROUNDS OF FORUM-SHOPPING AND FAILURE TO
COMPLY WITH THE SUPREME COURT CIRCULAR REQUIRING A TRUTHFUL
CERTIFICATION OF NON-FORUM SHOPPING DESPITE INCONTROVERTIBLE
EVIDENCE THEREOF.[4]
In our view, notwithstanding petitioner's formulation of issues, the principal
question presented for our resolution is whether or not public respondent COMELEC
gravely abused its discretion amounting to lack or excess of jurisdiction in not ordering
the dismissal of private respondent's election protest.
At the outset, even if not squarely raised as an issue, this Court needs to resolve the
question concerning COMELEC's jurisdiction. Unless properly resolved, we cannot
proceed further in this case.
Section 3, Subdivision C of Article IX of the Constitution reads:
"The Commission on Elections may sit en banc or in two divisions, and shall promulgate
its rules of procedure in order to expedite the disposition of election cases, including pre-
proclamation controversies.All such election cases shall be heard and decided in division,
provided that motions for reconsideration of decision shall be decided by the
Commission en banc."
88
 Thus, in Sarmiento vs. COMELEC[5] and in subsequent cases,[6] we ruled that the
COMELEC, sitting en banc, does not have the requisite authority to hear and decide
election cases including pre-proclamation controversies in the first instance. This power
pertains to the divisions of the Commission. Any decision by the Commission en banc as
regards election cases decided by it in the first instance is null and void.
As can be gleaned from the proceedings aforestated, petitioner's petition with the
COMELEC was not referred to a division of that Commission but was, instead, submitted
directly to the Commission en banc. The petition for certiorari assails the trial court's
order denying the motion to dismiss private respondent's election protest. The
questioned order of the trial court is interlocutory because it does not end the trial
court's task of adjudicating the parties' contentions and determining their rights and
liabilities as regards each other.[7] In our view, the authority to resolve petition
for certiorari involving incidental issues of election protest, like the questioned order of
the trial court, falls within the division of the COMELEC and not on the COMELEC en
banc. Note that the order denying the motion to dismiss is but an incident of the election
protest. If the principal case, once decided on the merits, is cognizable on appeal by a
division of the COMELEC, then, there is no reason why petitions for certiorari relating to
incidents of election protest should not be referred first to a division of the COMELEC for
resolution. Clearly, the COMELEC en banc acted without jurisdiction in taking cognizance
of petitioner's petition in the first instance.
Since public respondent COMELEC had acted without jurisdiction in this case, the
petition herein is without doubt meritorious and has to be granted. But in order to
write finis to the controversy at bar, we are constrained to also resolve the issues raised
by petitioner, seriatim.
Petitioner contends that private respondent's protest should have been dismissed
outright as the latter failed to pay the amount of P300.00 filing fee required under the
COMELEC rules.[8] Petitioner's contention is supported by Section 9, Rule 35 of the
COMELEC Rules of Procedure[9] and corresponding receipts[10] itemized as follows:
P368.00 - Filing fee in EC 31-98, O.R. 7023752;
P 32.00 - Filing fee in EC 31-98, O.R. 7022478;
P 46.00 - Summons fee in EC 31-98, O.R. 7023752;
P 4.00 - Summons fee in EC 31-98, O.R. 4167602;
P 10.00 -- Legal Research Fund fee, O.R. 2595144, and;
P 5.00 -- Victim Compensation Fund, O.R. 4167979
-----------
P465.00
Close scrutiny of the receipts will show that private respondent failed to pay the
filing fee of P300.00 for his protest as prescribed by the COMELEC rules. The amount of
P368.00 for which OR 7023752 was issued for the Judiciary Development Fund as shown
by the entries in the cash book of the clerk of court.[11] Thus, only P32.00 with OR
7022478 credited to the general fund could be considered as filing fee paid by private
respondent for his protest. A court acquires jurisdiction over any case only upon the
payment of the prescribed docket fee.[12]Patently, the trial court did not acquire
jurisdiction over private respondent's election protest. Therefore, COMELEC gravely
erred in not ordering the dismissal of private respondent's protest case.
We have in a string of cases[13] had the occasion to rule on this matter. In Loyola
vs. COMELEC, the clerk of court assessed private respondent therein the incorrect filing
fee of P32.00 at the time of filing of the election protest. Upon filing his counter-protest,
petitioner was assessed to pay the same amount. Subsequently, the trial court remedied
the situation by directing the parties to pay the balance of P268.00. On review, we held
that the lapse was not at all attributable to private respondent and there was substantial
compliance with the filing fee requirement. The error lies in the Clerk's misapplication
and confusion regarding application of Section 9 of Rule 35 of the COMELEC Rules of
Procedure and this Court's resolution dated September 4, 1990 amending Rule 141 of
the Rules of Court. An election protest falls within the exclusive original jurisdiction of
the Regional Trial Court, in which case the Rules of Court will apply, and that the
COMELEC Rules of Procedure is primarily intended to govern election cases before that
tribunal. But the Court declared that this decision must not provide relief to parties in
future cases involving inadequate payment of filing fees in election cases. Our decisions
in Pahilan and Gatchalian bar any claim of good faith, excusable negligence or mistake in
any failure to pay the full amount of filing fees in election cases.
In Miranda vs. Castillo, private respondents each paid per assessment the amount of
P465.00 as filing fees. Of this amount, P414.00 was allocated for the JDF, P 10.00 for legal
research fund, P5.00 for victim compensation fee, and only the amount of P32.00 was
regarded as filing fee. The Court considered the amount as partial payment of the
P300.00 filing fee under the COMELEC rules and required payment of the deficiency in
the amount of P268.00. But then again, the Court reiterated the caveat that in view
of Pahilan, Gatchalian, and Loyola cases we would no longer tolerate any mistake in the
payment of the full amount of filing fees for election cases filed after the promulgation of
the Loyola decision on March 27, 1997.
Clearly then, errors in the payment of filing fees in election cases is no longer
excusable. And the dismissal of the present case for that reason is, in our view, called for.
Besides, there is another reason to dismiss private respondent's election
protest. We note that the verification of aforesaid protest is defective. In the verification,
private respondent merely stated that he caused the preparation of his petition and he
has read and understood all the allegations therein.[14] Certainly, this is insufficient as
private respondent failed to state that the contents of his election protest are true and
correct of his persoral knowledge.[15] Since the petition lacks proper verification,
it should be treated as an unsigned pleading and must be dismissed.[16]
Further, we find that private respondent did not comply with the required
certification against forum shopping. Private respondent successively filed a "petition for
annulment of the proclamation/exclusion of election return" and an election protest. Yet,
89
he did not disclose in his election protest that he earlier filed a petition for annulment of
proclamation/exclusion of election returns.
It could be argued that private respondent's petition for annulment of
proclamation/exclusion of election returns was a pre-proclamation case. The issues
raised in that petition pertain to the preparation and appreciation of election returns and
the proceedings of the municipal board of canvassers. But note that such petition was
filed after the proclamation of petitioner as the winning candidate, thus, the petition was
no longer viable, for pre-proclamation controversies may no longer be entertained by the
COMELEC after the winning candidates have been proclaimed. It might even be claimed
with some reason that private respondent, by resorting to the wrong remedy, abandoned
his pre-proclamation case earlier filed.[17]
Nonetheless, private respondent's belief that he no longer had a pending case
before the COMELEC because he deemed it abandoned upon filing of his protest is not a
valid reason for non-disclosure of the pendency of said pre-proclamation case. Note that
the COMELEC dismissed private respondent's pre-proclamation case only on July 3,
1998. Before the dismissal, said case was legally still pending resolution. Similarly, the
fact that private respondent's protest was not based on the same cause of action as his
pre-proclamation case is not a valid excuse for not complying with the required
disclosure in the certification against forum shopping. The requirement to file a
certificate of non-forum shopping is mandatory. Failure to comply with this requirement
cannot be excused by the fact that a party is not guilty of forum shopping. The rule
applies to any complaint, petition, application or other initiatory pleading, regardless of
whether the party filing it has actually committed forum shopping. Every party filing any
initiatory pleading is required to swear under oath that he has not and will not commit
forum shopping. Otherwise we would have an absurd situation, as in this case, where the
parties themselves would be the judge of whether their actions constitute a violation of
the rule, and compliance therewith would depend on their belief that they might or
might not have violated the requirement. Such interpretation of the requirement would
defeat the very purpose of the rule.[18]
Taking into account all the foregoing circumstances in this case, we are persuaded
that respondent Regional Trial Court erred and committed grave abuse of discretion in
failing to dismiss private respondent's election protest against petitioner. And to
reiterate, respondent COMELEC en banc had no jurisdiction to affirm the refusal of
respondent trial court to dismiss private respondent's election protest.
WHEREFORE, the instant petition is GRANTED. The assailed RESOLUTION of
public respondent COMELEC is hereby ANNULLED AND SET ASIDE. The temporary
restraining order issued by this Court on September 21, 1999, is made permanent. The
Regional Trial Court of Pinamalayan, Oriental Mindoro, Branch 42, is hereby ordered to
DISMISS election protest EC No. 31-98. Costs against private respondent.
SO ORDERED.

90
 [G.R. No. 133486. January 28, 2000]
ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION ON
ELECTIONS, respondent.
DECISION
PANGANIBAN, J.:
The holding of exit polls and the dissemination of their results through mass media
constitute an essential part of the freedoms of speech and of the press. Hence, the
Comelec cannot ban them totally in the guise of promoting clean, honest, orderly and
credible elections. Quite the contrary, exit polls -- properly conducted and publicized --
can be vital tools in eliminating the evils of election-fixing and fraud. Narrowly tailored
countermeasures may be prescribed by the Comelec so as to minimize or suppress the
incidental problems in the conduct of exit polls, without transgressing in any manner the
fundamental rights of our people.
The Case and the Facts
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing
Commission on Elections (Comelec) en banc Resolution No. 98-1419[1] dated April 21,
1998. In the said Resolution, the poll body
"RESOLVED to approve the issuance of a restraining order to stop
ABS-CBN or any other groups, its agents or representatives from
conducting such exit survey and to authorize the Honorable Chairman
to issue the same."
The Resolution was issued by the Comelec allegedly upon "information from [a] reliable
source that ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct
radio-TV coverage of the elections x x x and to make [an] exit survey of the x x x vote
during the elections for national officials particularly for President and Vice President,
results of which shall be [broadcast] immediately."[2] The electoral body believed that
such project might conflict with the official Comelec count, as well as the unofficial quick
count of the National Movement for Free Elections (Namfrel). It also noted that it had not
authorized or deputized Petitioner ABS-CBN to undertake the exit survey.
On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by
petitioner. We directed the Comelec to cease and desist, until further orders, from
implementing the assailed Resolution or the restraining order issued pursuant thereto, if
any. In fact, the exit polls were actually conducted and reported by media without any
difficulty or problem.
The Issues
Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with
grave abuse of discretion amounting to a lack or excess of jurisdiction when it approved
the issuance of a restraining order enjoining the petitioner or any [other group], its
agents or representatives from conducting exit polls during the x x x May 11 elections."[3]
In his Memorandum,[4] the solicitor general, in seeking to dismiss the Petition, brings up
additional issues: (1) mootness and (2) prematurity, because of petitioner's failure to
seek a reconsideration of the assailed Comelec Resolution.
The Court's Ruling
The Petition[5] is meritorious.
Procedural Issues: Mootness and Prematurity
The solicitor general contends that the petition is moot and academic, because the May
11, 1998 election has already been held and done with. Allegedly, there is no longer any
actual controversy before us.
The issue is not totally moot. While the assailed Resolution referred specifically to the
May 11, 1998 election, its implications on the people's fundamental freedom of
expression transcend the past election. The holding of periodic elections is a basic
feature of our democratic government. By its very nature, exit polling is tied up with
elections. To set aside the resolution of the issue now will only postpone a task that could
well crop up again in future elections.[6]
In any event, in Salonga v. Cruz Pano, the Court had occasion to reiterate that it "also has
the duty to formulate guiding and controlling constitutional principles, precepts,
doctrines, or rules. It has the symbolic function of educating bench and bar on the extent
of protection given by constitutional guarantees."[7] Since the fundamental freedoms of
speech and of the press are being invoked here, we have resolved to settle, for the
guidance of posterity, whether they likewise protect the holding of exit polls and the
dissemination of data derived therefrom.
The solicitor general further contends that the Petition should be dismissed for
petitioner's failure to exhaust available remedies before the issuing forum, specifically
the filing of a motion for reconsideration.
This Court, however, has ruled in the past that this procedural requirement may be
glossed over to prevent a miscarriage of justice,[8] when the issue involves the principle
of social justice or the protection of labor,[9] when the decision or resolution sought to be
set aside is a nullity,[10] or when the need for relief is extremely urgent and certiorari is
the only adequate and speedy remedy available.[11]
The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998,
only twenty (20) days before the election itself. Besides, the petitioner got hold of a copy
91
thereof only on May 4, 1998. Under the circumstances, there was hardly enough
opportunity to move for a reconsideration and to obtain a swift resolution in time for the
May 11, 1998 elections. Moreover, not only is time of the essence; the Petition involves
transcendental constitutional issues. Direct resort to this Court through a special civil
action for certiorari is therefore justified.
Main Issue: Validity of Conducting Exit Polls
An exit poll is a species of electoral survey conducted by qualified individuals or groups
of individuals for the purpose of determining the probable result of an election by
confidentially asking randomly selected voters whom they have voted for, immediately
after they have officially cast their ballots. The results of the survey are announced to the
public, usually through the mass media, to give an advance overview of how, in the
opinion of the polling individuals or organizations, the electorate voted. In our electoral
history, exit polls had not been resorted to until the recent May 11, 1998 elections.
In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible
member of the mass media, committed to report balanced election-related data,
including "the exclusive results of Social Weather Station (SWS) surveys conducted in
fifteen administrative regions."
It argues that the holding of exit polls and the nationwide reporting of their results are
valid exercises of the freedoms of speech and of the press. It submits that, in precipitately
and unqualifiedly restraining the holding and the reporting of exit polls, the Comelec
gravely abused its discretion and grossly violated the petitioner's constitutional rights.
Public respondent, on the other hand, vehemently denies that, in issuing the assailed
Resolution, it gravely abused its discretion. It insists that the issuance thereof was
"pursuant to its constitutional and statutory powers to promote a clean, honest, orderly
and credible May 11, 1998 elections"; and "to protect, preserve and maintain the secrecy
and sanctity of the ballot." It contends that "the conduct of exit surveys might unduly
confuse and influence the voters," and that the surveys were designed "to condition the
minds of people and cause confusion as to who are the winners and the [losers] in the
election," which in turn may result in "violence and anarchy."
Public respondent further argues that "exit surveys indirectly violate the constitutional
principle to preserve the sanctity of the ballots," as the "voters are lured to reveal the
contents of ballots," in violation of Section 2, Article V of the Constitution; [12] and relevant
provisions of the Omnibus Election Code.[13] It submits that the constitutionally
protected freedoms invoked by petitioner "are not immune to regulation by the State in
the legitimate exercise of its police power," such as in the present case.
The solicitor general, in support of the public respondent, adds that the exit polls pose a
"clear and present danger of destroying the credibility and integrity of the electoral
process," considering that they are not supervised by any government agency and can in
general be manipulated easily. He insists that these polls would sow confusion among
the voters and would undermine the official tabulation of votes conducted by the
Commission, as well as the quick count undertaken by the Namfrel.
Admittedly, no law prohibits the holding and the reporting of exit polls. The question can
thus be more narrowly defined: May the Comelec, in the exercise of its powers, totally
ban exit polls? In answering this question, we need to review quickly our jurisprudence
on the freedoms of speech and of the press.
Nature and Scope of Freedoms of Speech and of the Press
The freedom of expression is a fundamental principle of our democratic government. It
"is a 'preferred' right and, therefore, stands on a higher level than substantive economic
or other liberties. x x x [T]his must be so because the lessons of history, both political and
legal, illustrate that freedom of thought and speech is the indispensable condition of
nearly every other form of freedom."[14]
Our Constitution clearly mandates that no law shall be passed abridging the freedom of
speech or of the press.[15] In the landmark case Gonzales v. Comelec,[16] this Court
enunciated that at the very least, free speech and a free press consist of the liberty to
discuss publicly and truthfully any matter of public interest without prior restraint.
The freedom of expression is a means of assuring individual self-fulfillment, of attaining
the truth, of securing participation by the people in social and political decision-making,
and of maintaining the balance between stability and change.[17] It represents a profound
commitment to the principle that debates on public issues should be uninhibited, robust,
and wide open.[18] It means more than the right to approve existing political beliefs or
economic arrangements, to lend support to official measures, or to take refuge in the
existing climate of opinion on any matter of public consequence. And paraphrasing the
eminent justice Oliver Wendell Holmes,[19] we stress that the freedom encompasses the
thought we hate, no less than the thought we agree with.
Limitations
The realities of life in a complex society, however, preclude an absolute exercise of the
freedoms of speech and of the press. Such freedoms could not remain unfettered and
unrestrained at all times and under all circumstances.[20] They are not immune to
regulation by the State in the exercise of its police power.[21] While the liberty to think is
absolute, the power to express such thought in words and deeds has limitations.
In Cabansag v. Fernandez[22] this Court had occasion to discuss two theoretical tests
in determining the validity of restrictions to such freedoms, as follows:
"These are the 'clear and present danger' rule and the 'dangerous
tendency' rule. The first, as interpreted in a number of cases, means
that the evil consequence of the comment or utterance must be
'extremely serious and the degree of imminence extremely high'
92
 before the utterance can be punished. The danger to be guarded
against is the 'substantive evil' sought to be prevented. x x x"[23]
"The 'dangerous tendency' rule, on the other hand, x x x may be
epitomized as follows: If the words uttered create a dangerous
tendency which the state has a right to prevent, then such words are
punishable. It is not necessary that some definite or immediate acts of
force, violence, or unlawfulness be advocated. It is sufficient that such
acts be advocated in general terms. Nor is it necessary that the
language used be reasonably calculated to incite persons to acts of
force, violence, or unlawfulness. It is sufficient if the natural tendency
and probable effect of the utterance be to bring about the substantive
evil which the legislative body seeks to prevent."[24]
Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly
did in its earlier decisions in Primicias v. Fugoso[25] and American Bible Society v. City of
Manila;[26] as well as in later ones, Vera v. Arca,[27] Navarro v. Villegas,[28] Imbong v.
Ferrer,[29] Blo Umpar Adiong v. Comelec[30] and, more recently, in Iglesia ni Cristo v.
MTRCB.[31] In setting the standard or test for the "clear and present danger" doctrine, the
Court echoed the words of justice Holmes: "The question in every case is whether the
words used are used in such circumstances and are of such a nature as to create a clear
and present danger that they will bring about the substantive evils that Congress has a
right to prevent. It is a question of proximity and degree."[32]
A limitation on the freedom of expression may be justified only by a danger of
such substantive character that the state has a right to prevent. Unlike in the "dangerous
tendency" doctrine, the danger must not only be clear but also present. "Present" refers
to the time element; the danger must not only be probable but very likely to be
inevitable.[33] The evil sought to be avoided must be so substantive as to justify a clamp
over one's mouth or a restraint of a writing instrument.[34]
Justification for a Restriction
Doctrinally, the Court has always ruled in favor of the freedom of expression, and any
restriction is treated an exemption. The power to exercise prior restraint is not to be
presumed; rather the presumption is against its validity.[35] And it is respondent's
burden to overthrow such presumption. Any act that restrains speech should be greeted
with furrowed brows,[36] so it has been said.
To justify a restriction, the promotion of a substantial government interest must be
clearly shown.[37] Thus:
"A government regulation is sufficiently justified if it is within the
constitutional power of the government, if it furthers an important or
substantial government interest; if the governmental interest is
unrelated to the suppression of free expression; and if the incidental
restriction on alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest."[38]
Hence, even though the government's purposes are legitimate and substantial, they
cannot be pursued by means that broadly, stifle fundamental personal liberties, when the
end can be more narrowly achieved.[39]
The freedoms of speech and of the press should all the more be upheld when what is
sought to be curtailed is the dissemination of information meant to add meaning to the
equally vital right of suffrage.[40]We cannot support any ruling or order "the effect of
which would be to nullify so vital a constitutional right as free speech."[41] When faced
with borderline situations in which the freedom of a candidate or a party to speak or the
freedom of the electorate to know is invoked against actions allegedly made to assure
clean and free elections, this Court shall lean in favor of freedom. For in the ultimate
analysis, the freedom of the citizen and the State's power to regulate should not be
antagonistic. There can be no free and honest elections if, in the efforts to maintain them,
the freedom to speak and the right to know are unduly curtailed.[42]
True, the government has a stake in protecting the fundamental right to vote by
providing voting places that are safe and accessible. It has the duty to secure the secrecy
of the ballot and to preserve the sanctity and the integrity of the electoral process.
However, in order to justify a restriction of the people's freedoms of speech and of the
press, the state's responsibility of ensuring orderly voting must far outweigh them.
These freedoms have additional importance, because exit polls generate important
research data which may be used to study influencing factors and trends in voting
behavior. An absolute prohibition would thus be unreasonably restrictive, because it
effectively prevents the use of exit poll data not only for election-day projections, but
also for long-term research.[43]
Comelec Ban on Exit Polling
In the case at bar, the Comelec justifies its assailed Resolution as having been issued
pursuant to its constitutional mandate to ensure a free, orderly, honest, credible and
peaceful election. While admitting that "the conduct of an exit poll and the broadcast of
the results thereof [are] x x x an exercise of press freedom," it argues that "[p]ress
freedom may be curtailed if the exercise thereof creates a clear and present danger to the
community or it has a dangerous tendency." It then contends that "an exit poll has the
tendency to sow confusion considering the randomness of selecting interviewees, which
further make[s] the exit poll highly unreliable. The probability that the results of such
exit poll may not be in harmony with the official count made by the Comelec x x x is ever
present. In other words, the exit poll has a clear and present danger of destroying the
credibility and integrity of the electoral process."
Such arguments are purely speculative and clearly untenable. First, by the very nature of
a survey, the interviewees or participants are selected at random, so that the results will
as much as possible be representative or reflective of the general sentiment or view of
93
the community or group polled. Second, the survey result is not meant to replace or be at
par with the official Comelec count. It consists merely of the opinion of the polling group
as to who the electorate in general has probably voted for, based on the limited data
gathered from polled individuals. Finally, not at stake here are the credibility and the
integrity of the elections, which are exercises that are separate and independent from the
exit polls. The holding and the reporting of the results of exit polls cannot undermine
those of the elections, since the former is only part of the latter. If at all, the outcome of
one can only be indicative of the other.
The Comelec's concern with the possible noncommunicative effect of exit polls --
disorder and confusion in the voting centers -- does not justify a total ban on them.
Undoubtedly, the assailed Comelec Resolution is too broad, since its application
is without qualification as to whether the polling is disruptive or not.[44] Concededly, the
Omnibus Election Code prohibits disruptive behavior around the voting
centers.[45] There is no showing, however, that exit polls or the means to interview voters
cause chaos in voting centers. Neither has any evidence been presented proving that the
presence of exit poll reporters near an election precinct tends to create disorder or
confuse the voters.
Moreover, the prohibition incidentally prevents the collection of exit poll data and their
use for any purpose. The valuable information and ideas that could be derived from
them, based on the voters' answers to the survey questions will forever remain unknown
and unexplored. Unless the ban is restrained, candidates, researchers, social scientists
and the electorate in general would be deprived of studies on the impact of current
events and of election-day and other factors on voters' choices.
In Daily Herald Co. v. Munro,[46] the US Supreme Court held that a statute, one of the
purposes of which was to prevent the broadcasting of early returns, was
unconstitutional because such purpose was impermissible, and the statute was neither
narrowly tailored to advance a state interest nor the least restrictive alternative.
Furthermore, the general interest of the State in insulating voters from outside
influences is insufficient to justify speech regulation. Just as curtailing election-day
broadcasts and newspaper editorials for the reason that they might indirectly affect the
voters' choices is impermissible, so is regulating speech via an exit poll restriction.[47]
The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not
leave open any alternative channel of communication to gather the type of information
obtained through exit polling. On the other hand, there are other valid and reasonable
ways and means to achieve the Comelec end of avoiding or minimizing disorder and
confusion that may be brought about by exit surveys.
For instance, a specific limited area for conducting exit polls may be designated. Only
professional survey groups may be allowed to conduct the same. Pollsters may be kept at
a reasonable distance from the voting center. They may be required to explain to voters
that the latter may refuse to be interviewed, and that the interview is not part of the
official balloting process. The pollsters may further be required to wear distinctive
clothing that would show they are not election officials.[48] Additionally, they may be
required to undertake an information campaign on the nature of the exercise and the
results to be obtained therefrom. These measures, together with a general prohibition of
disruptive behavior, could ensure a clean, safe and orderly election.
For its part, Petitioner ABS-CBN explains its survey methodology as follows: (1)
communities are randomly selected in each province; (2) residences to be polled in such
communities are also chosen at random; (3) only individuals who have already voted, as
shown by the indelible ink on their fingers, are interviewed; (4) the interviewers use no
cameras of any sort; (5) the poll results are released to the public only on the day after
the elections.[49] These precautions, together with the possible measures earlier stated,
may be undertaken to abate the Comelec's fear, without consequently and unjustifiably
stilling the people's voice.
With the foregoing premises, we conclude that the interest of the state in reducing
disruption is outweighed by the drastic abridgment of the constitutionally guaranteed
rights of the media and the electorate. Quite the contrary, instead of disrupting elections,
exit polls -- properly conducted and publicized -- can be vital tools for the holding of
honest, orderly, peaceful and credible elections; and for the elimination of election-fixing,
fraud and other electoral ills.
Violation of Ballot Secrecy
The contention of public respondent that exit polls indirectly transgress the sanctity and
the secrecy of the ballot is off-tangent to the real issue. Petitioner does not seek access to
the ballots cast by the voters. The ballot system of voting is not at issue here.
The reason behind the principle of ballot secrecy is to avoid vote buying through voter
identification. Thus, voters are prohibited from exhibiting the contents of their official
ballots to other persons, from making copies thereof, or from putting distinguishing
marks thereon so as to be identified. Also proscribed is finding out the contents of the
ballots cast by particular voters or disclosing those of disabled or illiterate voters who
have been assisted. Clearly, what is forbidden is the association of voters with their
respective votes, for the purpose of assuring that the votes have been cast in accordance
with the instructions of a third party. This result cannot, however, be achieved merely
through the voters' verbal and confidential disclosure to a pollster of whom they have
voted for.
In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the
revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may
also choose not to reveal their identities. Indeed, narrowly tailored countermeasures
may be prescribed by the Comelec, so as to minimize or suppress incidental problems in
the conduct of exit polls, without transgressing the fundamental rights of our people.
WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by
the Court on May 9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-1419
issued by the Comelec en banc on April 21, 1998 is
hereby NULLIFIED and SET ASIDE. No costs.
94
G.R. No. 203833 March 19, 2013
MAMERTO T. SEVILLA, JR. Petitioner,
vs.
COMMISSION ON ELECTIONS and RENATO R. SO, Respondents.
RESOLUTION
BRION, J.:
Before this Court is the petition for certiorari, with prayer for the issuance of a Writ of
Preliminary Injunction and/or Status Quo Ante Order,1 filed by petitioner Mamerto T.
Sevilla, Jr., to nullify the May 14, 2012 Resolution2 of the Commission on Elections
(Comelec) Second Division and the October 6, 2012 Resolution3 of the Comelec en bancin
SPR (BRGY-SK) No. 70-2011. These assailed Resolutions reversed and set aside the May
4, 2011 Order of the Muntinlupa City Metropolitan Trial Court, Branch 80
(MeTC), dismissing respondent Renato R. So’s election protest against Sevilla.
The Facts
Sevilla and So were candidates for the position of Punong Barangay of Barangay Sucat,
Muntinlupa City during the October 25, 2010 Barangay and Sangguniang Kabataan
Elections. On October 26, 2010, the Board of Election Tellers proclaimed Sevilla as the
winner with a total of 7,354 votes or a winning margin of 628 votes over So’s 6,726 total
votes. On November 4, 2010, So filed an election protest with the MeTC on the ground
that Sevilla committed electoral fraud, anomalies and irregularities in all the protested
precincts. So pinpointed twenty percent (20%) of the total number of the protested
precincts. He also prayed for a manual revision of the ballots.4
Following the recount of the ballots in the pilot protested precincts, the MeTC issued an
Order dated May 4, 2011 dismissing the election protest. On May 9, 2011, So filed a
motion for reconsideration from the dismissal order instead of a notice of appeal; he also
failed to pay the appeal fee within the reglementary period. On May 17, 2011, the MeTC
denied the motion for reconsideration on the ground that it was a prohibited pleading
pursuant to Section 1, Rule 6 of A.M. No. 07-04-15-SC.5
In response, So filed a petition for certiorari on May 31, 2011 with the Comelec, alleging
grave abuse of discretion on the part of the MeTC Judge. So faults the MeTC for its non-
observance of the rule that in the appreciation of ballots, there should be a clear and
distinct presentation of the specific details of how and why a certain group of ballots
should be considered as having been written by one or two persons.6
The Comelec Second Division Ruling
In its May 14, 2012 Resolution, the Comelec Second Division granted So’s petition. The
Comelec Second Division held that certiorari can be granted despite the availability of
appeals when the questioned order amounts to an oppressive exercise of judicial
authority, as in the case before it. It also ruled that the assailed Order was fraught with
infirmities and irregularities in the appreciation of the ballots, and was couched in
general terms: "these are not written by one person observing the different strokes,
slant, spacing, size and indentation of handwriting and the variance in writing."7
The Comelec En Banc Ruling
The Comelec en banc, by a vote of 3-3,8 affirmed the Comelec Second Division’s ruling in
its October 6, 2012 Resolution whose dispositive portion reads:
WHEREFORE, premises considered, the Motion for Reconsideration is hereby DENIED
for lack of merit. Respondent judge is directed to conduct another revision of the
contested ballots in Election Protest Case No. SP-6719 with dispatch.9
It ruled that where the dismissal was capricious, certiorari lies as the petition challenges
not the correctness but the validity of the order of dismissal. The Comelec en banc
emphasized that procedural technicalities should be disregarded for the immediate and
final resolution of election cases inasmuch as ballots should be read and appreciated
with utmost liberality so that the will of the electorate in the choice of public officials
may not be defeated by technical infirmities.
It found that the MeTC Judge committed grave abuse of discretion amounting to lack of
jurisdiction when she did not comply with the mandatory requirements of Section 2(d),
Rule 14 of A.M. No. 07-4-15-SC on the form of the decision in election protests involving
pairs or groups of ballots written by two persons. It noted that based on the general and
repetitive phraseology of the Order, the MeTC Judge’s findings were "copy-pasted" into
the decision and ran counter to the mandate of the aforementioned rule. Also, the MeTC
Judge failed to mention in her appreciation of the ballots that she examined the Minutes
of Voting and Counting to ascertain whether there were illiterate voters or assisted
voters in the protested precincts.10
Commissioner Lim’s Dissent 11
The dissent posited that So’s petition should be dismissed outright as it was mired in
procedural errors. First, So should have filed an appeal within five (5) days from receipt
of the MeTC’s Order; a motion for reconsideration was improper as the Order amounted
to the final disposition of the protest. Second, So should not have filed the motion for
reconsideration even if he believed that the Order was interlocutory since a motion for
reconsideration is a prohibited pleading. Also, he could have simply filed the petition for
certiorari without the necessity of filing the motion for reconsideration. Third, the
petition for certiorari cannot be a substitute for the lost appeal. The Comelec could not
even treat the certiorari as an appeal since the petition was filed 25 days after So
received the assailed Order; thus, the Order already attained finality. Finally, procedural
95
rules should not be lightly shunned in favor of liberality when, as in this case, So did not
give a valid excuse for his errors.
The Petition
The Comelec gravely abused its discretion when it gave due course to the petition for
certiorari
Sevilla argues that the Comelec gravely abused its discretion when it entertained So’s
petition despite its loss of jurisdiction to entertain the petition after the court a quo’s
dismissal order became final and executory due to So’s wrong choice of remedy. Instead
of filing an appeal within five (5) days from receipt of the Order and paying the required
appeal fee, So filed a motion for reconsideration – a prohibited pleading that did not stop
the running of the prescriptive period to file an appeal. Sevilla also emphasizes that So’s
petition for certiorari should not have been given due course since it is not a substitute
for an appeal and may only be allowed if there is no appeal, nor any plain, speedy and
adequate remedy in the ordinary course of law.12
The dismissal of the election protest was proper
Sevilla also contends that the dismissal was not tainted with grave abuse of discretion
since the MeTC Judge complied with the rules; she made clear, specific and detailed
explanations pertaining to the specific strokes, figures or letters showing that the ballots
had been written by one person. Granting that the decision was tainted with errors,
certiorari would still not lie because a mere error of judgment is not synonymous with
grave abuse of discretion. Lastly, a liberal application of the rules cannot be made to a
petition which offers no explanation for the non-observance of the rules.13
On November 13, 2012,14 the Court resolved to require the Comelec and the respondent
to comment on the petition and to observe the status quo prevailing before the issuance
of the assailed Comelec Second Division’s Resolution of May 14, 2012 and the Comelec en
banc’s Resolution of October 6, 2012.15
In his Comment, the respondent contends that the petition was filed prematurely. He
emphasizes that the October 6, 2012 Resolution of the Comelec en banc was not a
majority decision considering that three Commissioners voted for the denial of the
motion for reconsideration and the three others voted to grant the same. So notes that
the assailed October 6, 2012 Resolution was deliberated upon only by six (6)
Commissioners because the 7th
Commissioner had not yet been appointed by the President at that time. Considering that
the October 6, 2012 Resolution was not a majority decision by the Comelec en banc, So
prays for the dismissal of the petition so that it can be remanded to the Comelec for a
rehearing by a full and complete Commission.16
The Court’s Ruling
We resolve to DISMISS the petition for having been prematurely filed with this Court,
and remand the case to the COMELEC for its appropriate action.
The October 6, 2012 Comelec en banc’s Resolution lacks legal effect as it is not a majority
decision required by the Constitution and by the Comelec Rules of Procedure
Section 7, Article IX-A of the Constitution requires that "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."17 Pursuant to this
Constitutional mandate, the Comelec provided in Section 5(a), Rule 3 of the Comelec
Rules of Procedure the votes required for the pronouncement of a decision, resolution,
order or ruling when the Comelec sits en banc, viz.:
Section 5. Quorum; Votes Required. - (a) When sitting en banc, four (4) Members of the
Commission shall constitute a quorum for the purpose of transacting business. The
concurrence of a majority of the Members of the Commission shall be necessary for the
pronouncement of a decision, resolution, order or ruling. [italics supplied; emphasis
ours]
We have previously ruled that a majority vote requires a vote of four members of the
Comelec en banc. In Marcoleta v. Commission on Elections,18 we declared "that Section
5(a) of Rule 3 of the Comelec Rules of Procedure and Section 7 of Article IX-A of the
Constitution require that a majority vote of all the members of the Comelec en banc, and
not only those who participated and took part in the deliberations, is necessary for the
pronouncement of a decision, resolution, order or ruling."
In the present case, while the October 6, 2012 Resolution of the Comelec en banc appears
to have affirmed the Comelec Second Division’s Resolution and, in effect, denied Sevilla’s
motion for reconsideration, the equally divided voting between three Commissioners
concurring and three Commissioners dissenting is not the majority vote that the
Constitution and the Comelec Rules of Procedure require for a valid pronouncement of
the assailed October 6, 2012 Resolution of the Comelec en banc.
In essence, based on the 3-3 voting, the Comelec en banc did not sustain the Comelec
Second Division’s findings on the basis of the three concurring votes by Commissioners
Tagle, Velasco and Yusoph; conversely, it also did not overturn the Comelec Second
Division on the basis of the three dissenting votes by Chairman Brillantes, Commissioner
Sarmiento and Commissioner Lim, as either side was short of one (1) vote to obtain a
majority decision. Recall that under Section 7, Article IX-A of the Constitution, a majority
vote of all the members of the Commission en banc is necessary to arrive at a ruling. In
other words, the vote of four (4) members must always be attained in order to decide,
irrespective of the number of Commissioners in attendance. Thus, for all intents and
purposes, the assailed October 6, 2012 Resolution of the Comelec en banc had no legal
effect whatsoever except to convey that the Comelec failed to reach a decision and that
further action is required.
96
The October 6, 2012 Comelec en banc’s Resolution must be reheard pursuant to the
Comelec Rules of Procedure
To break the legal stalemate in case the opinion is equally divided among the members of
the Comelec en banc, Section 6, Rule 18 of the Comelec Rules of Procedure mandates a
rehearing where parties are given the opportunity anew to strengthen their respective
positions or arguments and convince the members of the Comelec en banc of the merit of
their case.19 Section 6, Rule 18 of the Comelec Rules of Procedure reads:
Section 6. Procedure if Opinion is Equally Divided. - When the Commission en banc is
equally divided in opinion, or the necessary majority cannot be had, the case shall be
reheard, and if on rehearing no decision is reached, the action or proceeding shall be
dismissed if originally commenced in the Commission; in appealed cases, the judgment
or order appealed from shall stand affirmed; and in all incidental matters, the petition or
motion shall be denied. [emphasis ours; italics supplied]
In Juliano v. Commission on Elections,20 only three members of the Comelec en banc
voted in favor of granting Estrelita Juliano’s motion for reconsideration (from the
Decision of the Comelec Second Division dismissing her petition for annulment of
proclamation of Muslimin Sema as the duly elected Mayor of Cotabato City), three
members dissented, and one member took no part. In ruling that the Comelec acted with
grave abuse of discretion when it failed to order a rehearing required by the Comelec
Rules of Procedure, the Court ruled:
Section 6, Rule 18 of the Comelec Rules of Procedure specifically states that if the opinion
of the Comelec En Banc is equally divided, the case shall be reheard. The Court notes,
however, that the Order of the Comelec En Banc dated February 10, 2005 clearly stated
that what was conducted was a mere "re-consultation."
A "re-consultation" is definitely not the same as a "rehearing."
A consultation is a "deliberation of persons on some subject;" hence, a re-consultation
means a second deliberation of persons on some subject.
Rehearing is defined as a "second consideration of cause for purpose of calling to court’s
or administrative board’s attention any error, omission, or oversight in first
consideration. A retrial of issues presumes notice to parties entitled thereto and
opportunity for them to be heard." (italics supplied). But as held in Samalio v. Court of
Appeals,
A formal or trial-type hearing is not at all times and in all instances
essential.1âwphi1 The requirements are satisfied where the parties are afforded fair and
reasonable opportunity to explain their side of the controversy at hand.
Thus, a rehearing clearly presupposes the participation of the opposing parties for the
purpose of presenting additional evidence, if any, and further clarifying and amplifying
their arguments; whereas, a re-consultation involves a re-evaluation of the issues and
arguments already on hand only by the members of the tribunal, without the
participation of the parties.
In Belac v. Comelec, when the voting of the Comelec En Banc on therein petitioner’s
motion for reconsideration was equally divided, the Comelec En Banc first issued an
order setting the case for hearing and allowed the parties to submit their respective
memoranda before voting anew on therein petitioner’s motion for reconsideration. This
should have been the proper way for the Comelec En Banc to act on herein petitioner’s
motion for reconsideration when the first voting was equally divided. Its own Rules of
Procedure calls for a rehearing where the parties would have the opportunity to
strengthen their respective positions or arguments and convince the members of the
Comelec En Banc of the merit of their case. Thus, when the Comelec En Banc failed to
give petitioner the rehearing required by the Comelec Rules of Procedure, said body
acted with grave abuse of discretion.21 (italics supplied; emphases ours)
To the same effect, in Marcoleta v. Commission on Elections,22 the Court ruled that the
Comelec en banc did not gravely abuse its discretion when it ordered a rehearing of its
November 6, 2007 Resolution for failing to muster the required majority voting. The
Court held:
The Comelec, despite the obvious inclination of three commissioners to affirm the
Resolution of the First Division, cannot do away with a rehearing since its Rules clearly
provide for such a proceeding for the body to have a solicitous review of the controversy
before it. A rehearing clearly presupposes the participation of the opposing parties for
the purpose of presenting additional evidence, if any, and further clarifying and
amplifying their arguments.
To reiterate, neither the assenters nor dissenters can claim a majority in the En Banc
Resolution of November 6, 2007. The Resolution served no more than a record of voters,
lacking in legal effect despite its pronouncement of reversal of the First Division
Resolution. According, the Comelec did not commit any grave abuse of discretion in
ordering a rehearing.23 (italics supplied; citation omitted)
In the present case, it appears from the records that the Comelec en banc did not issue an
Order for a rehearing of the case in view of the filing in the interim of the present petition
for certiorari by Sevilla. In both the cases of Juliano and Marcoleta, cited above, we
remanded the cases to the Comelec en banc for the conduct of the required rehearing
pursuant to the Comelec Rules of Procedure. Based on these considerations, we thus find
that a remand of this case is necessary for the Comelec en banc to comply with the
rehearing requirement of Section 6, Rule 18 of the Comelec Rules of Procedure.
WHEREFORE, we hereby DISMISS the petition and REMAND SPR (BR GY-SK) No. 70-
2011 to the Comelec en bane for the conduct of the required rehearing under the
Comelec Rules of Procedure. The Comelec en bane is hereby ORDERED to proceed with
the rehearing with utmost dispatch.
97
 G.R. No. 216572, April 19, 2016
FELICIANO LEGASPI, Petitioner, v. COMMISSION ON ELECTIONS, ALFREDO D.
GERMAR, AND ROGELIO P. SANTOS, JR., Respondent.
RESOLUTION
VELASCO JR., J.:
The opportunities for the Court to revisit its ruling in Mendoza vs.
COMELEC1 (Mendoza) are sparse. It is a rarity for us to be presented a case assailing the
COMELEC en banc's reversal of its division's ruling notwithstanding the former's failure
to muster the four (4) votes required under our Constitution to do so. In fact, the
September 1, 2015 Decision in the case at bench is only second to the seminal case
of Mendoza to have resolved such an issue. The Court must, therefore, take advantage of
this rare opportunity, on reconsideration, to modify the Mendoza doctrine before it
further takes root, deeply entrenched in our jurisprudence.
The facts of this case are simple and undisputed.
To recapitulate, petitioner Feliciano Legaspi (Legaspi) and private respondent Alfredo D.
Germar (Germar) both ran as mayoralty candidates in Norzagaray, Bulacan while private
respondent Rogelio Santos (Santos) was a candidate for councilor in the May 13, 2013
elections.2 On May 14, 2013 Legaspi filed a Petition for Disqualification against private
respondents, docketed as SPA No. 13-353 (DC). There, petitioner averred that from May
11, 2013 until election day, private respondents engaged in massive vote-buying, using
their political leaders as conduits. As per witness accounts, said political leaders, while
camped inside the North Hills Village Homeowners Association Office in Brgy. Bitungol,
Norzagaray, Bulacan, were distributing to voters envelopes containing Php 500.00 each
and a sample ballot bearing the names of private respondents. Through military efforts,
the vote-buying was foiled and the office, which served as the venue for distribution,
padlocked. The newly-minted Chief of Police, P/Supt. Dale Soliba, and his subordinates
then attempted to force open the office and retrieve from inside four (4) boxes
containing the remaining undistributed envelopes with an estimated aggregate amount
of Php800,000.00, but a group of concerned citizens were able to thwart their plan
in flagrante delicto and intercept the said evidence of vote-buying.3
In answer, private respondents denied the allegations and raised the alibi that from 3:00
o'clock to 11:00 o'clock in the evening of May 11, 2013, they attended the Liberal Party's
meeting de avance at the San Andres Parish church grounds, and that they did not go to
nor visit the office of the Homeowner's Association of North Hills Village at the time the
election offenses were allegedly committed.4
Giving due credence and consideration to the evidence adduced by petitioner,5 the
COMELEC Special First Division, by a 2-1 vote on October 3, 2013, disqualified private
respondents from the 2013 electoral race. The dispositive portion of the COMELEC
resolution6 reads:
WHEREFORE, premises considered, the Commission RESOLVED as it hereby RESOLVES
to:
(1) DISQUALIFY Respondents Alfredo M. Gesmar (sic) and Rogelio C. Santos, Jr. for the
positions of Mayor and Councilor of Norzagaray, Bulacan;
(2) REFER the criminal aspect of this case against Germar (sic), Roberto Esquivel,
Rogelio Santos, Jr., Dale Soliba, Dominador Rayo, Marivic Nunez, Adelaida Auza, Amelia
Cruz, and Leonardo Ignacio to the Law Department for preliminary investigation; and
(3) ORDER the Regional Election Director of COMELEC Region III to implement this
Resolution, following the rules on succession as provided in R.A. 7160.
SO ORDERED.
Thereafter, private respondents moved for reconsideration before the COMELEC en
banc but the latter, through its July 10, 2014 Resolution,7 resolved to deny private
respondents' motion thusly:
chanRoblesvirtualLawlibrary
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVESto DENY this Motion for Reconsideration for LACK OF MERIT.
Consequently, the October 3, 2013 Resolution of the Special First Division (1)
disqualifying respondents Alfredo M. Germar and Rogelio C. Santos, Jr. for the positions
of Mayor and Councilor of Norzagaray, Bulacan; (2) referring the criminal aspect of this
case against Alfredo M. Germar, Roberto Esquivel, Rogelio Santos, Jr., Dale Soliba,
Dominador Rayo, Marivic Nunez, Adelaida Auza, Amelia Cruz and Leonardo Ignacio to
the Law Department for preliminary investigation and (3) ordering the Regional Election
Director of COMELEC Region III to implement this Resolution, following the Rules on
Succession as provided under R.A. 7160 is hereby AFFIRMED.
SO ORDERED.
The adverted Resolution had a vote of 3-2-1-1, as follows: three (3) commissioners,
namely Chairman Sixto S. Brillantes, Jr. and commissioners Lucenito N. Tagle and Elias R.
Yusoph, voted for the denial of the motion, while two (2) commissioners, Christian
Robert S. Lim and Luie Tito F. Guia, dissented. Commissioner Al A. Parreno took no part
in the deliberations and Commissioner Maria Grace Cielo M. Padaca did not vote as
her ad interim appointment had already expired, vacating a seat in the electoral
tribunal.8
Since the Resolution was not concurred in by four (4) votes or a majority of all the
members of the COMELEC, a re-deliberation of the administrative aspect of the case was
conducted pursuant to Sec. 6, Rule 18 of the COMELEC Rules of Procedure. The re-
deliberation resulted in the issuance of the assailed Order9 dated January 28, 2015 with a
3-2-2 vote: the previously voting commissioners maintained their respective positions
while then newly-appointed commissioner Arthur D. Lim took no part in the
deliberations and abstained from voting.10 Citing the same procedural rule, the
COMELEC en bancdismissed the original Petition for Disqualification filed by Legaspi in
the following wise:
98
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVESto DISMISS the administrative aspect of this Petition for
Disqualification for FAILURE TO OBTAIN THE NECESSARY MAJORITY VOTES AFTER
RE-DELIBERATION/REHEARING by the members of the Commission en banc.
SO ORDERED.
Perplexed as to how he who prevailed before the COMELEC Special First Division can
face defeat before the COMELEC en banc when three (3) commissioners voted to deny
private respondents' motion for reconsideration and only two (2) commissioners voted
to reverse the judgment in his favor, Legaspi launched a Rule 64 petition assailing the
January 28, 2015 COMELEC en banc Order before this Court. Regrettably, the Court, on
September 1, 2015, voted to dismiss the petition.
From the September 1, 2015 Decision, petitioner Legaspi interposed the instant motion
for reconsideration. Hence, the Court is faced once again with the issue on how to treat
the rulings of the COMELEC en banc when less than four (4) votes were cast to either
grant or deny the motion for reconsideration pending before it.
The Court's Ruling
The Court GRANTS petitioner's motion for reconsideration. The September 1, 2015
Decision in the case at bar is hereby REVERSED and SET ASIDE, and the instant petition
is GRANTED.
Primarily, the Court is called to interpret Sec. 6, Rule 18 of the COMELEC Rules on
Procedure. The provision reads:
Section 6. Procedure if Opinion is Equally Divided. - When the Commission en banc is
equally divided in opinion, or the necessary majority cannot be had, the case shall be
reheard, and if on rehearing no decision is reached, the action or proceeding shall be
dismissed if originally commenced in the Commission; in appealed cases, the judgment
or order appealed from shall stand affirmed; and all incidental matters, the petition
or motion shall be denied." (emphasis added)
As framed in the September 1, 2015 Decision, the afore-cited provision outlines the
effects of the COMELEC en banc's failure to decide:
1. If the action or proceeding is originally commenced in the COMELEC, such
action or proceeding shall be dismissed;
2. In appealed cases, the judgment or order appealed from shall stand
affirmed; or
3. In incidental matters, the petition or motion shall be denied.
In dismissing Legaspi's petition on September 1, 2015, the Court first categorized SPA
No. 13-353 (DC) as an action "originally commenced with the Commission" warranting the
entire case's dismissal should the en banc fail to reach the required majority vote,
regardless of the COMELEC division's ruling. This, according to the ponencia, is the first
effect of Sec. 6, Rule 18 of the COMELEC Rules of Procedure, as previously applied
in Mendoza.
To summarize Mendoza, therein petitioner Joselito R. Mendoza (Mendoza) was
proclaimed winner of the 2007 gubernatorial election for the province of Bulacan,
besting respondent Roberto M. Pagdanganan (Pagdanganan). On June 1, 2007,
Pagdanganan filed an election protest that the COMELEC Second Division eventually
granted, thereby annulling Mendoza's proclamation. Aggrieved, Mendoza moved for
reconsideration with the en banc, but the COMELEC failed to reach a majority vote to
either grant or deny the motion. Pursuant to its rules, the COMELEC en banc reheard the
case but was, nevertheless, unsuccessful in obtaining the required majority vote to
render a valid ruling. Thus, in a 3-1 vote, with three votes denying the motion, the
COMELEC en banc sustained the ruling of its Second Division.11
On petition with the Court, Mendoza pointed out that because the necessary majority
vote of four (4) was not obtained by the COMELEC en banc, Pagdanganan's election
protest ought to be dismissed. Agreeing, the Court, on March 25, 2010, ruled for Mendoza
and explained that as an original action before the Commission, failure to muster the
required majority vote on reconsideration would lead to the election protest's dismissal,
not just of the motion for reconsideration.12
Aside from relying on the Mendoza ruling, the September 1, 2015 Decision discussed that
a motion for reconsideration lodged with the COMELEC en banc is not an "action or
proceeding" within the contemplation of the rules; that the phrase ought to be construed
as pertaining to Part V of the COMELEC Rules of Procedure, denominated as "Particular
Actions or Proceedings" and covering Rules 20-34. Thus, the Court applied the first effect
and ordered that Legaspi's Petition for Disqualification, the alleged "action or
proceeding" in this case, be dismissed in its entirety.
The interpretation of Sec. 6, Rule 18
of the COMELEC Rules of Procedure in Mendoza
and in the September 1, 2015 Decision
renders the rule unconstitutional
The Mendoza doctrine, as reiterated in the September 1, 2015 Decision, deviated from
the 1987 Constitution. Not only does it circumvent the four-vote requirement under Sec.
7, Art. IX-A of the Constitution, it likewise diminishes the adjudicatory powers of the
COMELEC Divisions under Sec. 3, Article IX-C.14
Under Sec. 3, Article IX-C of the 1987 Constitution,15 the COMELEC Divisions are granted
adjudicatory powers to decide election cases, provided that the COMELEC en banc shall
resolve motions for reconsideration of the division rulings. Further, under Sec. 7, Article
IX-A of the Constitution,16 four (4) votes are necessary for the COMELEC en banc to
decide a case. Naturally, the party moving for reconsideration, as the party seeking
affirmative relief, carries the burden of proving that the division committed reversible
error. The movant then shoulders the obligation of convincing four (4) Commissioners to
grant his or her plea.17
99
This voting threshold, however, is easily rendered illusory by the application of
the Mendozaruling, which virtually allows the grant of a motion for
reconsideration even though the movant fails to secure four votes in his or her
favor, in blatant violation of Sec. 7, Art. IX-A of the Constitution. In this case, in spite
of securing only two (2) votes to grant their motion for reconsideration, private
respondents were nevertheless declared the victors in the January 28, 2015 COMELEC en
banc Resolution.18
To exacerbate the situation, the circumvention of the four-vote requirement, in turn,
trivializes the proceedings before the COMELEC divisions and presents rather
paradoxical scenarios, to wit:19
i. The failure of the COMELEC en banc to muster the required majority vote only
means that it could not have validly decided the case. Yet curiously, it managed
to reverse the ruling of a body that has properly exercised its adjudicatory
powers; and
ii. A motion for reconsideration may be filed on the ground that the evidence is
insufficient to justify the decision, order or ruling; or that the said decision,
order or ruling is contrary to law. If the COMELEC en banc does not find that
either ground exists, there would be no cogent reason to disturb the ruling of
the COMELEC division. Otherwise stated, failure to muster four votes to sustain
the motion for reconsideration should be understood as tantamount to the
COMELEC en banc finding no reversible error attributable to its division's
ruling. Said decision, therefore, ought to be affirmed, not reversed nor vacated.
These resultant paradoxes have to be avoided. Under the prevailing interpretation of Sec.
6, Rule 18 of the COMELEC Rules of Procedure, a movant, in situations such as this, need
not even rely on the strength of his or her arguments and evidence to win a case, and
may, instead, choose to rest on inhibitions and abstentions of COMELEC members to
produce the same result. To demonstrate herein, it is as though the two (2) abstention
votes were counted in favor of the private respondents to reach the majority vote of four
(4). This impedes and undermines the adjudicatory powers of the COMELEC divisions by
allowing their rulings to be overruled by the en banc without the latter securing the
necessary number to decide the case.20
From the foregoing disquisitions, it is then difficult to see how the Mendoza doctrine
"complements our Constitution."21 Far from it, the prevailing interpretation of Sec. 6, Rule
18 of the COMELEC Rules of Procedure severely suffers from constitutional infirmities
and calls for the nullification of the rule itself.
The motion for reconsideration
before the COMELEC en banc
is an "incidental matter"
Proceeding to the core of the controversy, we now apply Sec. 6, Rule 18 in the case at bar.
As discussed in the September 1, 2015 ponencia:
xxx [T]he effects of the COMELEC en banc's failure to decide vary depending on the type
of case or matter that is before the commission. Thus, under the provision, the first
effect (i.e., the dismissal of the action or proceeding) only applies when the type of case
before the COMELEC is an action or proceeding "originally commenced in the
commission"; the second effect (i.e., the affirmance of a judgment or order) only applies
when the type of case before the COMELEC is an "appealed case"; and the third effect
(i.e., the denial of the petition or motion) only applies when the case or matter
before the COMELEC is an "incidental matter." (emphasis added)
Verily, classifying the pending case or matter before the COMELEC is a prerequisite
to identifying the applicable effect. Here, while the case originated from Legaspi's
filing of a Petition for Disqualification, said petition has already been passed upon and
decided by the COMELEC Special First Division on October 3, 2013. Instead, what was
under consideration when Sec. 6, Rule 18 was invoked was no longer Legaspi's petition
for disqualification itself but his motion for reconsideration before the COMELEC en
banc. The pending issue at the time was not directly private respondents' qualification or
disqualification to run for or hold office, but, more precisely, whether or not the
COMELEC division committed reversible error in its October 3, 2013 ruling.
For the first effect to apply, the pending case or matter must be an original action
or proceeding originally commenced before the COMELEC. This could take either of
two forms: those originally commenced with the COMELEC Division or those originally
commenced with the COMELEC en banc.
Under Article IX-C, Sec. 2(2) of the Constitution, actions originally commenced before the
COMELEC Division consist of all contests relating to the elections, returns, and
qualifications of all elective regional, provincial, and city officials.22 On the other hand,
the cases directly filed with the COMELEC en banc are those specifically provided in the
COMELEC Rules of Procedure, such as petitions for postponement of elections under Sec.
1, Rule 26, petitions for failure of election under Sec. 2, Rule 26, complaints or charges
for indirect contempt under Sec. 2, Rule 29, preliminary investigation of election offenses
under Sec. 1, Rule 34, and all other cases where the COMELEC division is not authorized
to act.23
In this case, while the motion for reconsideration was filed with the COMELEC en banc in
the first instance, it cannot strictly be considered as an "action or proceeding" originally
commenced with the commission as contemplated by the rules. As held in the September
1, 2015 Decision, the coverage of the phrase is limited to those itemized in Part V of the
COMELEC Rules of Procedure, viz:
100
A.M. No. RTJ-92-881 June 2, 1994
ANTONIO A. GALLARDO, ANTONIO AREVALO, CRESENCIO ECHAVEZ, EMMANUEL
ARANAS, PALERMO SIA, RONNIE RAMBUYON, PRIMO NAVARRO and NOEL
NAVARRO, petitioners,
vs.
JUDGE SINFOROSO V. TABAMO, JR. respondent.
Hermosisima, Sision & Inso for petitioners.
RESOLUTION
KAPUNAN, J.:
For this Court's consideration is a letter-complaint, dated May 5, 1992 of Governor
Antonio A. Gallardo of the Province of Camiguin and other officials of the said province,
charging Judge Sinforoso V. Tabamo, Jr. of the Regional Trial Court, Branch 28, at
Mambajao, Camiguin with manifest bias and partiality and highly irregular and
outrightly illegal acts in connection with two cases filed before his court, namely:
A. Special Civil Case No. 465 entitled "Pedro P. Romualdo vs. Governor
Antonio A. Gallardo, et al." for Injunction, Prohibition, and Mandamus
with Prayer for the Issuance of a Writ of Preliminary Injunction and
Restraining Order; and
B. Criminal Case No. 561 entitled "People vs. Ruel D. Dagondon, et al."
for Illegal Possession of Indian Hemp (marijuana).
In Special Civil Action No. 465, respondent judge issued an Order restraining the
continuance of various public works projects being undertaken by the provincial
government and the disbursement of funds therefor, allegedly in violation of a 45-day
ban on public works imposed by the Omnibus Election Code. Complainant alleged that
respondent Judge, in spite of the fact that it was the Commission on Elections, not the
Regional Trial Court, which had jurisdiction over the case, took cognizance of the same
and issued the temporary restraining order.
In Criminal Case No. 561, respondent Judge is accused to have imposed the wrong
sentence in violation of specific provisions of the Dangerous Drugs Law, the
Indeterminate Sentence Law and the Revised Penal Code in order to afford the accused
in said case the right to avail of provisions of the Probation Law.
Respondent Judge's actuations, according to complainant, were intended to favor the
political faction of Congressman Pedro P. Romualdo in the struggle with the group of
Governor Gallardo for political supremacy in the 1992 elections. This Court, in a
resolution dated March 18, 1993, referred the administrative matter to Justice Salome A.
Montoya of the Court of Appeals for investigation, report and recommendation.
Complying with said resolution, Justice Montoya, in her final report, found the evidence
as follows:
A. Re: SPECIAL CIVIL ACTION NO. 465:
It appears that Cong. Pedro P. Romualdo and Gov. Antonio R. Gallardo
were both candidates in the May 11, 1992 elections for the positions
of congressmen and governor, respectively, of Camiguin. They
belonged to opposing political factions and were in a bitter electoral
battle.
On April 10, 1992 or about a month before the elections,
Cong. Romualdo filed a petition docketed as Special Civil Action No.
465 before the Regional Trial Court of Camiguin (Br. 28) presided
over by respondent Judge Tabamo against Gov. Gallardo, the
Provincial Treasurer, the Provincial Auditor, the Provincial Engineer,
and the Provincial Budget Officer as respondents. In this petition
Cong. Romualdo sought to prohibit and restrain the respondents from
undertaking and/or pursuing certain public works projects and from
disbursing, releasing, and/or spending public funds for said projects,
allegedly because, among other reasons, said projects were
undertaken in violation of the 45-day ban on public works imposed by
the Omnibus Election Code (B.P. Blg. 881); that the public works
projects were commenced without the approved detailed engineering
plans and specification and corresponding program of works; that the
expenditures of the 20% development fund for projects other than for
maintenance violated the Local Government Code; that locally funded
projects had been pursued without the provincial budget having been
first approved, and reviewed by the Department of Budget and
Management; and that the illegal prosecution of the said public works
projects requiring massive outlay or public funds during the election
period was done maliciously and intentionally to corrupt voters and
induce them to support the candidacy of Gov. Gallardo and his ticket
in the May 11, 1992 elections.
In the afternoon of the same day that the petition was filed, Judge
Tabamo issued a temporary restraining order as prayed for by the
petitioner Cong. Romualdo, as follows:
It appearing from the verified petition in this case
that great and irreparable damage and/or injury
shall be caused to the petitioner as candidate and
taxpayer, such damage or injury taking the form
and shape occasioned by the alleged wanton,
excessive, abusive and flagrant waste of public
money, before the matter can be heard on notice,
101
 the respondents are hereby Temporarily
Restrained from pursuing or prosecuting the
project itemized in Annexes "A" and "A-1" of the
petition; from releasing, disbursing and/or
spending any public funds for such projects; from
issuing, using or availing of treasury warrants or
any device undertaking future delivery of money,
goods, or other things of value chargeable against
public funds in connection with the said projects.
In the same Order of April 10, 1993 the judge gave the respondents
ten (10) days from receipt of a copy of the petition to answer the
same, and set the prayer for the issuance of a preliminary injunction
for hearing on April 24, 1992 at 8:30 A.M.
Gov. Gallardo testified that when he received a copy of the restraining
order and reviewed the petition filed, being a lawyer, he at once saw
that the same was not within the jurisdiction of the Regional Trial
Court. He said that the elections were nearing and all their projects
were suspended, the laborers could not get their salaries, and the
judge had set the hearing of the injunction on April 24, 1992 or very
close to the elections of May 11, 1992. Believing that he could not get
justice from the respondent court, he decided to go to the Supreme
Court where he filed a petition for certiorari (docketed as G.R. No. L-
104848) questioning the issuance of the temporary restraining order
and the jurisdiction of the court over Special Civil Action No. 465.
xxx xxx xxx
On April 13, 1992 a rally or demonstration was held in front of the
premises of the Regional Trial Court of Camiguin. People, composed
mostly of the unpaid laborers, carried placards which protested the
restraining order and urged Judge Tabamo to order the release of
their salaries. Most of the placards expressed contempt and ridicule
for the judge and referred to him as the "tuta" of Cong. Romualdo and
to the RTC as the "Romualdo-Tabamo-Court" and "Romualdo Tabamo-
Corruption".
Respondent Judge Tabamo testified in this regard that the rallyists
were laborers affected by the restraining order. They were taken from
all over the island of Camiguin and loaded in several cargo trucks
chartered by the followers of Gov. Gallardo. Judge Tabamo saw some
of his relatives among the rallyists and when he asked them why they
were there, he was told that the laborers were gathered on the
representation that they would collect their salaries in Mambajao,
they were told that they could not receive their salaries because of the
restraining order issued by Judge Tabamo, and the laborers did not
feel good about it.
xxx xxx xxx
In the afternoon of April 23, 1992 Judge Tabamo received a telegram
from the Supreme Court in connection with G.R. No. L-104848, the
petition for certiorari filed by Gov. Gallardo reading as follows:
SUPREME COURT IN AN ORDER DATED APRIL 20
IN G.R. NUMBER 104848 ENTITLED ANTONIO
GALLARDO ET AL. VERSUS HONORABLE
SINFOROSO TABAMO JR. ET AL. REQUEST
RESPONDENTS TO COMMENT ON PETITION
WITHIN TEN DAYS FROM NOTICE AS WELL AS
ISSUED TEMPORARY RESTRAINING ORDER
EFFECTIVE IMMEDIATELY AND CONTINUING
UNTIL FURTHER ORDERS FROM COURT
ORDERING RESPONDENTS JUDGE TO CEASE AND
DESIST FROM IMPLEMENTING AND ENFORCING
YOUR QUESTIONED ORDER DATED APRIL 10,
1992 AND FROM CONTINUING WITH THE
PROCEEDINGS IN SPECIAL ACTION NUMBER 465
ENTITLED PEDRO ROMUALDO VERSUS
GOVERNOR ANTONIO GALLARDO ET AL. STOP
FORMAL ORDERS FOLLOWS END. SUPREME
COURT ASSISTANT CLERK LUZVIMINDA PUNO.
After receiving this telegram Judge Tabamo issued an Order on the
same day of April 23, 1992 canceling the hearing of the application for
a writ of preliminary injunction which had been previously set for
April 24, 1992. He also said that he decided not to go to court on April
24, 1992 in order to avoid being caught in the crossfire between the
two great political leaders in his province.
It appears that on April 24, 1992 people came to the premises of the
court for the hearing of the application for injunction in SP No. 465.
They were composed of followers of both Gov. Gallardo and Cong.
Romualdo. Gov. Gallardo said he went there to inform the judge about
the temporary restraining order issued by the Supreme Court,
thinking that the same had not been communicated to the judge. Cong.
Romualdo was then likewise present. The Clerk of Court of Judge
Tabamo announced that the case would not be heard any more as the
Supreme Court had issued an order for Judge Tabamo not to hear the
case. After this announcement, Cong. Romualdo announced to the
people that he had already ordered Gov. Gallardo to give the salaries
of the laborers and when the latter heard the announcement, he told
the people that it was not Cong. Romualdo responsible for the release
of the salaries.
102
Thereafter, there were passionate exchanges of words between the
two factions and a rumble occurred among the followers of Cong.
Romualdo and Gov. Gallardo, where many were hurt and during
which Gov. Gallardo claims his life was placed in danger.
Aristeo Marbella, Jr., who testified in this case for the complainants,
said that he was then with Gov. Gallardo and he was choked by Jayjay
Romualdo, the eldest son of the congressman; that another son of
Romualdo tried to hit him and still another son, Gogo Romualdo, also
choked him; that thereafter, Jayjay and Gogo attacked Rollie Gallardo,
brother of Gov. Gallardo, and when he (Marbella) turned around,
Cong. Romualdo himself choked him and wrestled with him; that he
pleaded with the congressman who was his godfather but the latter
continued to pull and wrestle with him and then the brother of the
congressman pulled his hair and George Romualdo, a son of the
congressman, hit him at the back, and he fell down. Marbella said that
Gov. Gallardo tried to help him and Rollie Gallardo but was held down
by his bodyguards.
Thereafter, Marbella went to the police and reported the matter, as
shown in the police blotter of the Mambajao Police Station. He said
that he decided not to file a case knowing that the same would fall in
the sala of Judge Tabamo and it would be useless as Judge Tabamo is
the "tuta" or tool of Cong. Romualdo.
Another witness for the complainants on rebuttal was Camilo Abanil,
who testified that on April 23, 1992 he was with Edmundo Damisa
and Ruben Cloma in a Ford Fiera going around the province of
Camiguin on request of Gov. Gallardo who asked them to announce to
the laborers that they could already collect their salaries from the
province; that when they reached the town of Sagay, they were
stopped by Mayor Talian and Vice Mayor Mabolo who was angry and
said that they were poisoning the minds of the people; that the
younger brother of Vice Mayor Mabolo pulled down Damisa from the
Ford Fiera where they were riding; that he (witness) went down to
pacify the person who pulled Damisa but he was the one mauled; and
that he pleaded to the men and to the Mayor, asking the latter to
forgive him as they had not committed any fault but only followed
Gov. Gallardo.
Abanil said that he too reported the matter to the police station where
the incident was placed in the blotter, and that he later had himself
examined by a doctor who gave him a medical certificate. Thereafter,
he filed a case for slight physical injuries against Tata Mabolo (Crim.
Case No. 3488).
Abanil also testified on the incident of April 24, 1992 when he went to
the court premises to witness the hearing because he was among
those not paid his salary. He said he saw Junar Marbella being mauled
by the group of Cong Romualdo and Rollie Gallardo being chased by
the same group; that he saw Gov. Gallardo trying to help his brother
and Jun Marbella and when he (witness) tried to go near Gov.
Gallardo, he was also chased by the group of Cong. Romualdo who
caught him at the steps of the Capitol Building where Cong. Romualdo
boxed him, and Dandan Romualdo kicked him, Gogo Romualdo boxed
him, and Dandan Romualdo wrestled with him; that he fell to the
ground and the group of Cong. Romualdo took turns kicking him; that
he has a medical certificate to show the injuries he sustained; and that
he at first thought of filing a case but decided not to, believing that the
case will fall in the sala of Judge Tabamo who is the ‘tuta' or tool of
Cong. Romualdo. He further claimed that the reputation of Judge
Tabamo in Camiguin is no longer good and that his court is termed
RTC or Romualdo-Tabamo-Court.
Edmundo Damisa, corroborated the testimony of Camilo Abanil on the
incident of April 23, 1992 when they went around the province to
announce that the laborers can get their salaries already, adding that
Mayor Talian told them to leave the municipality of Sagay, otherwise
they would be killed. He also testified that on April 24, 1992 he was
outside the Capitol Building when he noticed a big commotion in front
of the RTC which was about 30 to 40 meters away; that he saw Rollie
Gallardo being chased by the men of Cong. Romualdo and saw Junar
Marbella being chased and then choked and boxed by the group of the
congressman; that he also saw Gov. Gallardo being held tightly by his
security men as he wanted to free himself and help Marbella and
Rollie Gallardo; that he also saw the group run after and maul Camilo
Abanil; that he himself was chased by Cong. Romualdo who was
holding a small gun so he ran up the stairs of the Capitol; and that he
helped Gov. Gallardo get inside the Capitol because the commotion
was already very tense.
Damisan said he had known Judge Tabamo since childhood days; that
the judge is not popular and is nicknamed RTC or Romualdo-Tabamo-
Court even in the billiard halls and cockpit; and that Judge Tabamo is
often seen in the cockpit because he participates in derbies. He denied
that Judge Tabamo had told him to look for a lawyer instead of making
demands in the streets on April 24, 1992 and said that what Judge
Tabamo told him was that it was not easy for him to lift the
restraining order because he has children and it is Cong. Romualdo,
who is the godfather of one of his children, who can help them; and
that Judge Tabamo also said that he knew very well on whose side
Damisa was and the latter also knew on whose side he (Judge
Tabamo) was.
On January 29, 1993 the Supreme Court rendered its Decision in G.R.
No. L-104848, the petition for certiorari filed by Gov. Antonio
103
Gallardo, et al. against the respondent Judge Sinforoso V. Tabamo, Jr.
and Cong. Pedro P. Romualdo, granting the same. The Supreme Court
ruled that the respondent court had no jurisdiction over Special Civil
Action No. 465 and ordered its dismissal. The challenged temporary
restraining order of April 10, 1992 was set aside.
B. RE: CRIMINAL CASE NO. 561:
One Ruel Dagondon was charged of Illegal Possession of Indian Hemp
(Marijuana) in Criminal Case No. 561 filed before the Regional Trial
Court of Camiguin (Branch 28).
In a judgment dated July 18, 1991 the respondent Judge Sinforoso V.
Tabamo, Jr. found the accused guilty as charged and sentenced him to
an imprisonment for the indeterminate period of from 2 years, 4
months and 1 day of prision correccional in its medium period to 8
years and 1 day of prision mayor in its medium period, and to pay a
fine of P6,000.00.
After this judgment was promulgated on July 31, 1991, the accused
Dagondon filed a Notice of Appeal on the same day. On August 7,
1991, however, the accused withdrew his Notice of Appeal and
instead filed a Motion for Reconsideration of the Judgment on August
9, 1991, praying that the penalty imposed upon him be reconsidered
and that the following circumstances be considered as mitigating in
his favor: (1) that the accused did not intend to commit so grave a
wrong, (2) extreme poverty of the accused, (3) lack of proper
education, and (4) voluntary surrender. The respondent Judge asked
Public Prosecutor Julio A. Vivares to comment on the motion. The
latter filed a Comment dated August 19, 1991 stating that the bases
for the motion for reconsideration are matters that should have been
established during the trial for the appreciation of the court and that
even if these circumstances were directly or indirectly touched during
the presentation of the defense of the accused, their acceptability or
credibility is left to the sound discretion of the judge.
On August 26, 1991 respondent Judge issued an Order modifying the
Judgment dated July 18, 1991, by amending the penalty imposed on
the accused Dagondon to a minimum of 2 years, 4 months and 1 day
of prision correccional on its medium period to 6 years of prision
correccional in its maximum period, "in view of the mitigating
circumstances of extreme poverty and voluntary surrender."
This modified judgment was promulgated in open court on August 30,
1991 in the presence of the accused Dagondon and his counsel.
Subsequently, the accused Dagondon applied for probation, which the
respondent judge granted in an Order dated November 13, 1991.
Complainants charge that Judge Tabamo modified the penalty so that
Dagondon can apply for probation, upon orders of Cong. Pedro P.
Romualdo who was approached by a close relative of Dagondon.
In support of this allegation, the complainants presented only the bare
testimony of Ceferino E. Chan, Jr., a former process server in the court
of the respondent judge. Chan testified in this regard that he was
employed as process server in Branch 28 from January, 1978 to April
1992 when he took a leave of absence; that he is familiar with
Criminal Case No. 561 because sometime in August, 1991 he served a
copy of an Order modifying the judgment to the mother of Ruel
Dagondon as the latter was then not in the house; and that he told
Dagondon's mother that it was good that the decision was changed
and the latter answered that they had gone to Cong. Romualdo to ask
for help.
Chan further testified that he resigned from his position as process
server sometime in July, 1992 because the people in Camiguin no
longer respect the court and even make fun of it, like saying that the
RTC means Romualdo-Tabamo-Court; that people would also say that
it one wants to win a case in the sala of Judge Tabamo, he should first
kiss the hand of Cong. Romualdo; and that people used to ask where
else they could go since the court is already controlled by Cong.
Romualdo. He stated that Cong. Romualdo often goes to the chambers
of Judge Tabamo sometimes only in shorts and T-shirts.
The respondent judge presented Alfreda Daiz, OIC Clerk of Court of
Branch 28 of the RTC of Camiguin. She testified that although Chan did
not tell her the real reason for his resignation from the court, there
was a time that Chan told them that his mother wanted him to
administer their vast idle lands because even they, the owners, did not
know the location and boundaries of their lands; and that Chan also
had the plan to put up a business, particularly that of selling motor
parts, because he noticed the motorcycle drivers travel as far as
Cagayan de Oro just to buy parts for their motorcycles.
Judge Tabamo denied that he had sent Chan to serve a copy of the
modified decision to the residence of Dagondon. He stated that the
modified decision was promulgated in open court on August 30, 1991,
during which the accused was present with his counsel, hence there
was no need to serve a copy of the decision in his house. The judge
maintained that in all his 23 years in the judiciary it was never his
practice to serve copies of decisions in criminal cases to parties
because they are promulgated in open court and that his practice was
to furnish their counsels after the decision is read and that in the
104
 Dagondon case the lawyer was furnished a copy of the modified
judgment in open court. He added that if Chan had served a copy of
the decision before it was promulgated, then Chan had leaked it out
and should have been made to answer for the act had he known
earlier about it.
At any rate, Judge Tabamo points out that Chan has not presented any
proof to show that he served a copy of the decision to Dagondon's
mother and the records of the case indeed do not show that the
alleged service was made.
Judge Tabamo denied that Cong. Romualdo goes often to his chambers
in shorts and T-shirts, since the congressman stays most of the time in
Manila and goes home only for special occasions. He explained that
Cong. Romualdo used to go around the province to inspect his projects
and visit his leaders and constituents, in the same manner that Gov.
Gallardo, being a lawyer, makes it a point to visit the offices of the
Register of Deeds, the fiscals, the courts and other offices and engage
the officials in conferences regarding matters of vital concern, like the
construction of the Hall of Justice.
Judge Tabamo said that he had to maintain a healthy relationship with
the officials of the province. Incidentally, the Mayor of Mambajao is
the wife of Cong. Romualdo.
Judge Tabamo further testified that before Chan resigned on July 1,
1992, the latter went on leave to campaign for his father who ran for
mayor of Mambajao; that Chan's father lost in the elections but Chan
refused to go back to work; and that he had to send Alfreda Daiz to tell
Chan to go back to work or to resign. Judge Tabamo also said that
Chan was bitter because a sister of his lost a estafa case in the court
and a brother-in-law of Chan also lost his first case before the court.
The complainants point out in regard to Criminal Case No. 561 that
the court considered the mitigating circumstance of voluntary
surrender in favor of Dagondon when the records show that he was
arrested in a buy-bust operation; and that the court imposed a
maximum of six (6) years and one (1) day provided under B.P. Blg.
179 for the offense committed by Dagondon.
FINDINGS —
RE: SPECIAL CIVIL ACTION NO. 465:
It may be conceded that on the basis alone of the actuations of respondent Judge in
relation to Special Civil Case No. 465, there may be no clear and convincing evidence that
respondent Judge had acted with manifest bias and partiality for Cong. Romualdo.
The staging of the rally in front of the courthouse on April 13, 1992 cannot be imputed to
respondent Judge. Obviously, the rally was orchestrated by the group of Gov. Gallardo
who picked up the participants from the different parts of the province. Also, the chaos
that took place on April 24, 1992 after this Court set aside the temporary restraining
order issued by respondent Judge was occasioned by the attempt of Cong. Romualdo to
get the credit for the fact that the laborers would now be paid. This was resented by Gov.
Gallardo and his followers, resulting in the clash between the two contending groups.
The motive of Gov. Gallardo in initiating the rally is not hard to find. He had sponsored a
number of public works projects and hired hundreds of laborers, which fact boosted his
chances of political victory. When the projects were stopped and the laborers could not
get paid, he had to find a scapegoat, thus, the rally against respondent Judge.
However, respondent Judge can hardly justify his acts not only of entertaining Special
Civil Case No. 465 and issuing a temporary restraining order stopping the prosecution of
the public works projects on the ground that it violated the 45-day ban on public works
imposed by the Omnibus Election Code, but also, as will be discussed later, of imposing a
wrong penalty in Criminal Case No. 561 and, almost simultaneously, reducing the penalty
with the evident purpose of allowing the accused to avail of the benefits of the Probation
Law. Being an experienced judge, it is highly inconceivable that he was not aware
of Zaldivar vs. Estenzo (23 SCRA 533) where this Court categorically held that
considering that the COMELEC is vested by the Constitution with the exclusive charge of
the enforcement of all laws relative to the conduct of elections, the assumption of
jurisdiction by the trial court over a case involving the enforcement of the Election Code
"is at war with the plain constitutional command, the implementing statutory provisions,
and the hospitable scope afforded such grant of authority so clear and unmistakable in
recent decisions."
RE: CRIMINAL CASE NO. 561:
We agree with respondent Judge that the testimony of Ceferino E. Chan, Jr. hardly
deserves any credence. Respondent Judge emphasized without contradiction that he had
never served copies of his decisions in criminal cases to the parties; he promulgated his
decisions in open court and thereafter furnished copies thereof to counsels. If, indeed,
Chan served a copy of respondent Judge's order modifying his decision to the mother of
Ruel Dagondon, during which the mother allegedly blurted out her having gone to Cong.
Romualdo to ask for his help to reduce her son's penalty, proof of service of the order to
the accused's mother should have been presented in evidence. The bare testimony of
Chan lacks any corroboration.
Neither was Chan's declaration that Cong. Romualdo frequented respondent Judge's
chambers buttressed by any independent proof. Respondent Judge admitted though that
at times, Cong. Romualdo would make official visits to his court regarding matters like
the construction of the Hall of Justice, in the same way that he would also visit other
provincial offices.
Nonetheless, the facts as established in their totality, more particularly respondent
Judge's taking cognizance of Special Civil Case No. 465, despite his lack of jurisdiction, his
issuance of a temporary restraining order in said case, his imposition of the penalty in
105
Criminal Case No. 561 which was unconscionably unwarranted given the facts and the
law applicable, and his reduction of the penalty by the application of two non-existent
mitigating circumstances with the obvious result of enabling the accused to avail of the
Probation Law, demonstrate an unmistakable pattern of highly irregular acts
constitutive of gross ignorance of the law and grave arbitrariness. Respondent Judge has
a long experience as a judge, having been in the judiciary for over 20 years. It is,
therefore, difficult for this Court to sustain the contention that what he had done were
mere errors of judgment. In fact, no discretion was required in both instances: the
applicable legal provisions are crystal clear and need no interpretation.
In his July 18, 1991 judgment in Criminal Case No. 561 (People vs. Dagondon, et al.),
respondent judge found the accused guilty as charged of Illegal Possession of Indian
Hemp (marijuana) and sentenced him to imprisonment for an indeterminate period of
from two (2) years, four (4) months and one (1) day of prision correccional in its medium
period to eight (8) years and one (1) day of prision mayor in its medium period.
Additionally, the accused was ordered to pay a fine of Six Thousand Pesos (P6,000.00).
On the same day judgment was promulgated, the accused filed a notice of appeal which
he later withdrew in favor of a Motion for Reconsideration of Judgment praying that the
circumstances of voluntary surrender, extreme poverty and lack of proper education be
considered as mitigating in his favor. On August 26, 1991, respondent judge issued an
order amending the penalty imposed to a minimum of two (2) years, four (4) months
and one (1) day of prision correccional in its medium period to six (6) years of prision
correccional in its maximum period. In modifying the judgment, the alleged mitigating
circumstances of extreme poverty and voluntary surrender were taken into
consideration by the respondent judge. The reduction of the penalty enabled the
accused, Ruel Dagondon to apply for probation which was granted by respondent Judge
in an Order dated November 13, 1991.
It should be noted that the accused was charged with violation of B.P. Blg. 179
(Dangerous Drugs Act), a special law. Under the Indeterminate Sentence Law, when an
offense is punishable by a law other than the Revised Penal Code, the court should
sentence the accused to an indeterminate sentence, the maximum term of which shall
not exceed the maximum fixed by law and the minimum shall not be less than the
minimum term prescribed by the same. The accused Dagondon should have been
sentenced to imprisonment anywhere from six (6) years and one (1) day to twelve (12)
years as mandated by B.P. 179. In applying the Indeterminate Sentence Law after finding
no mitigating or aggravating circumstances, the minimum penalty originally imposed by
respondent Judge should not have been two (2) years, four (4) months and one (1) day
but six (6) years and one (1) day. The incorrect minimum penalty was obviously
mistakenly arrived at by applying the rule applicable only for crimes punishable under
the Revised Penal code, not a special law like B.P. 179. The basic error of respondent
Judge stemmed from his unwarranted assumption that the penalty of imprisonment
ranging from 6 years and 1 day to 12 years, provided for the offense involved by Sec. 8 of
the governing law, is the same as prision mayor despite the fact that the technical
terminology of penalties for felonies in the Revised Penal Code were not used in the
Dangerous Drugs Act at that time. He should likewise have readily noted that neither
were the terms prision correccional or reclusion temporalused therein and, for that
matter, life imprisonment and not reclusion perpetua was used in and imposed under
that law then in force. The inexorable conclusion, therefore, is that drug offenses were
then considered, not as felonies, but as crimes punished under a special law, hence the
provisions of Arts. 13, 64, 71 and 76 of the Revised Penal Code could not be given
suppletory effect. Consequently, the indeterminate sentence should have been within the
range for offenses punished by special laws as provided in Sec. 1 of the Indeterminate
Sentence Law.
To compound his error, respondent Judge considered in favor of the accused the
mitigating circumstances of extreme poverty and voluntary surrender. Justice Montoya
noted:
Extreme poverty is not among the mitigating circumstances
enumerated in Article 13 of the Revised Penal Code and it is doubtful
whether it may be considered as a circumstance of a similar nature or
analogous to those mentioned in said Article. On the other hand, there
appears to be no voluntary surrender on the part of the accused
because the decision itself states that the accused was arrested by the
authorities in a buy-bust operation and was brought to the police
station in Mambajao, and later to the PC-INP Headquarters at Camp
Gen. Bonifacio Aranas. In stating that there was voluntary surrender,
the respondent postulated in his Order modifying the judgment that
the accused, after committing the crime and having all the chances to
escape, voluntarily gave himself up to the authorities.
It might, perhaps, have been easy for this Court to act with extreme leniency if the only
mistake committed by respondent Judge was the application of Article 64 of the Revised
Penal Code to an offense punishable by a special law. However, the pattern of the
"errors" committed one after another, which eventually enabled the respondent Judge to
apply the provisions of the Probation Law in letting off the accused with a virtual slap in
the wrist was so gross as to be unconscionable.
Considering his experience in the bench and the ready availability of legal sources and
materials from which he could check and verify his findings and conclusions, respondent
Judge was clearly negligent in misapplying the law. He knew or ought to know that our
laws impose severe penalties on violations of our dangerous drugs laws; consequently,
he should have been alerted to the possibility of error when the penalty imposed was
finally reduced to a ridiculously lenient one. The inexplicably low penalty which
respondent Judge meted out on the accused in Criminal Case No. 561, was certainly out
of proportion to the crime for which the latter had been convicted of.
The policy of the law in imposing strict penalties for violations of the Dangerous Drugs
Act cannot be gainsaid. The intendment of the law is to eradicate a menace to our society
by a pernicious evil which day in and day out victimizes our youth. To lightly dismiss the
respondent judge's mistakes in Criminal Case No. 561 would be to send the wrong
signals.
106
The office of a judge exists for one solemn end — to promote justice by administering it
fairly and impartially. The judge is the visible representation of the law and justice. A
judge who, through gross ignorance of the law or serious misconduct frustrates the ends
of justice commits a rank disservice to the cause of justice which calls for the application
of appropriate disciplinary measures (Villa vs. Amonoy, 194 SCRA 48 [1991]).

Finally, respondent Judge failed to meet the standard mandated by Rules 3.01 and 3.02 of
Canon 3 of the Code of Judicial Conduct, to wit:

Rule 3.01 — A judge shall be faithful to the law and maintain

professional competence.

Rule 3.02 — In every case, a judge shall endeavor diligently to

ascertain the fact and the applicable law unswayed by partisan
interests, public opinion or fear of criticism.

ACCORDINGLY, the Court resolved to hold respondent Judge administratively liable for
gross ignorance of the law and with grave abuse of discretion, and to impose on him a
fine of TEN THOUSAND PESOS (P10,000.00) with a STERN WARNING that a repetition of
the same or similar act or acts in the future will be dealt with more severely.

SO ORDERED.

107
G.R. No. 193808 June 26, 2012
LUISK. LOKIN, JR. and TERESITA F. PLANAS, Petitioners,
vs.
COMMISSION ON ELECTIONS (COMELEC), CITIZENS’ BATTLE AGAINST
CORRUPTION PARTY LIST represented by VIRGINIA S. JOSE SHERWIN N. TUGNA,
and CINCHONA CRUZ-GONZALES, Respondents,
The present petition having been flied beyond the reglementary period, Rule 64 of the
Rules of Court compels a dismissal on this basis alone. Despite petitioner's inexplicable
disregard of basic concepts, this Court deems it appropriate to reiterate the specific
procedure for the review of judgments made by the Commission on Elections
(COMELEC) as laid down in Rule 64, and how it is differentiated from the more general
remedy afforded by Rule 65.
On 5 July 2010, the COMELEC First Division issued a Resolution1 expunging the
Certificate of Nomination which included herein petitioners as representatives of the
party-list group known as Citizens’ Battle Against Corruption (CIBAC). The COMELEC en
banc affirmed the said Resolution, prompting Luis Lokin, Jr. and Teresita F. Planas to file
the present Petition for Certiorari. Petitioners allege grave abuse of discretion on the
part of the COMELEC in issuing both Resolutions, praying that they be recognized as the
legitimate nominees of CIBAC party-list, and that petitioner Lokin, Jr. be proclaimed as
the CIBAC party-list representative to the House of Representatives.
Respondent CIBAC party-list is a multi-sectoral party registered2 under Republic Act No.
(R.A.) 7941, otherwise known as the Party- List System Act. As stated in its constitution
and bylaws, the platform of CIBAC is to fight graft and corruption and to promote ethical
conduct in the country’s public service.3 Under the leadership of the National Council, its
highest policymaking and governing body, the party participated in the 2001, 2004, and
2007 elections.4On 20 November 2009, two different entities, both purporting to
represent CIBAC, submitted to the COMELEC a "Manifestation of Intent to Participate in
the Party-List System of Representation in the May 10, 2010 Elections." The first
Manifestation5 was signed by a certain Pia B. Derla, who claimed to be the party’s acting
secretary-general. At 1:30 p.m. of the same day, another Manifestation 6 was submitted by
herein respondents Cinchona Cruz-Gonzales and Virginia Jose as the party’s vice-
president and secretary-general, respectively.
On 15 January 2010, the COMELEC issued Resolution No. 87447 giving due course to
CIBAC’s Manifestation, "WITHOUT PREJUDICE …TO the determination which of the two
factions of the registered party-list/coalitions/sectoral organizations which filed two (2)
manifestations of intent to participate is the official representative of said party-
list/coalitions/sectoral organizations xxx."8
On 19 January 2010, respondents, led by President and Chairperson Emmanuel Joel J.
Villanueva, submitted the Certificate of Nomination9 of CIBAC to the COMELEC Law
Department. The nomination was certified by Villanueva and Virginia S. Jose. On 26
March 2010, Pia Derla submitted a second Certificate of Nomination, 10 which included
petitioners Luis Lokin, Jr. and Teresita Planas as party-list nominees. Derla affixed to the
certification her signature as "acting secretary-general" of CIBAC.
Claiming that the nomination of petitioners Lokin, Jr. and Planas was unauthorized,
respondents filed with the COMELEC a "Petition to Expunge From The Records And/Or
For Disqualification," seeking to nullify the Certificate filed by Derla. Respondents
contended that Derla had misrepresented herself as "acting secretary-general," when she
was not even a member of CIBAC; that the Certificate of Nomination and other
documents she submitted were unauthorized by the party and therefore invalid; and that
it was Villanueva who was duly authorized to file the Certificate of Nomination on its
behalf.11
In the Resolution dated 5 July 2010, the COMELEC First Division granted the Petition,
ordered the Certificate filed by Derla to be expunged from the records, and declared
respondents’ faction as the true nominees of CIBAC.12Upon Motion for Reconsideration
separately filed by the adverse parties, the COMELEC en banc affirmed the Division’s
findings. In a per curiam Resolution dated 31 August 2010,13 the Commission reiterated
that Pia Derla was unable to prove her authority to file the said Certificate, whereas
respondents presented overwhelming evidence that Villanueva deputized CIBAC
Secretary General Virginia Jose to submit the Certificate of Nomination pursuant to
CIBAC’s Constitution and bylaws.
Petitioners now seek recourse with this Court in accordance with Rules 64 and 65 of the
Rules of Court, raising these issues: I) Whether the authority of Secretary General
Virginia Jose to file the party’s Certificate of Nomination is an intra-corporate matter,
exclusively cognizable by special commercial courts, and over which the COMELEC has
no jurisdiction; and II) Whether the COMELEC erred in granting the Petition for
Disqualification and recognizing respondents as the properly authorized nominees of
CIBAC party-list.
As earlier stated, this Court denies the petition for being filed outside the requisite
period. The review by this Court of judgments and final orders of the COMELEC is
governed specifically by Rule 64 of the Rules of Court, which states:
Sec. 1. Scope. This rule shall govern the review of judgments and final orders or
resolutions of the Commission on Elections and the Commission on Audit.
Sec. 2. Mode of review. A judgment or final order or resolution of the Commission on
Elections and the Commission on Audit may be brought by the aggrieved party to the
Supreme Court on certiorari under Rule 65, except as hereinafter provided.
The exception referred to in Section 2 of this Rule refers precisely to the immediately
succeeding provision, Section 3 thereof,14 which provides for the allowable period within
which to file petitions for certiorari from judgments of both the COMELEC and the
Commission on Audit. Thus, while Rule 64 refers to the same remedy of certiorari as the
general rule in Rule 65, they cannot be equated, as they provide for different
reglementary periods.15 Rule 65 provides for a period of 60 days from notice of judgment
108
sought to be assailed in the Supreme Court, while Section 3 expressly provides for only
30 days, viz:
SEC. 3. Time to file petition.—The petition shall be filed within thirty (30) days from
notice of the judgment or final order or resolution sought to be reviewed. The filing of a
motion for new trial or reconsideration of said judgment or final order or resolution, if
allowed under the procedural rules of the Commission concerned, shall interrupt the
period herein fixed. If the motion is denied, the aggrieved party may file the petition
within the remaining period, but which shall not be less than five (5) days in any event,
reckoned from notice of denial.
Petitioner received a copy of the first assailed Resolution on 12 July 2010. Upon the
Motion for Reconsideration filed by petitioners on 15 July 2010, the COMELEC en banc
issued the second assailed Resolution on 31 August 2010. This per curiam Resolution
was received by petitioners on 1 September 2010.16 Thus, pursuant to Section 3 above,
deducting the three days it took petitioners to file the Motion for Reconsideration, they
had a remaining period of 27 days or until 28 September 2010 within which to file the
Petition for Certiorari with this Court.
However, petitioners filed the present Petition only on 1 October 2010, clearly outside
the required period. In Pates v. Commission on Elections and Domingo v. Commission on
Elections,17 we have established that the fresh-period rule used in Rule 65 does not
similarly apply to the timeliness of petitions under Rule 64. In Pates, this Court dismissed
the
Petition for Certiorari on the sole ground that it was belatedly filed, reasoning thus:
x x x. While it is true that a litigation is not a game of technicalities, it is equally true that
every case must be prosecuted in accordance with the prescribed procedure to ensure an
orderly and speedy administration of justice. There have been some instances wherein
this Court allowed a relaxation in the application of the rules, but this flexibility was
"never intended to forge a bastion for erring litigants to violate the rules with impunity."
Under this unique nature of the exceptions, a party asking for the suspension of the Rules
of Court comes to us with the heavy burden of proving that he deserves to be accorded
exceptional treatment. Every plea for a liberal construction of the Rules must at least be
accompanied by an explanation of why the party-litigant failed to comply with the rules
and by a justification for the requested liberal construction.
x x x. Section 3, Article IX-C of the Constitution expressly requires that the COMELEC’s
rules of procedure should expedite the disposition of election cases. This Court labors
under the same command, as our proceedings are in fact the constitutional extension of
cases that start with the COMELEC.
Based on these considerations, we do not find convenience and uniformity to be reasons
sufficiently compelling to modify the required period for the filing of petitions for
certiorari under Rule 64. While the petitioner is correct in his historical data about the
Court’s treatment of the periods for the filing of the different modes of review, he misses
out on the reason why the period under Section 3, Rule 64 has been retained. The reason,
as made clear above, is constitutionally-based and is no less than the importance our
Constitution accords to the prompt determination of election results.18 x x x. (Emphasis
supplied, footnotes omitted.)
In this case, petitioners do not even attempt to explain why the Petition was filed out of
time. Clearly, they are aware of the applicable period for filing, as they themselves invoke
the remedy under Rule 64 in conjunction with Rule 65. Hence, there is no acceptable
reason for their failure to comply with the proper procedure. But even if this Court were
to apply liberality and take cognizance of the late Petition, the arguments therein are
flawed. The COMELEC has jurisdiction over cases pertaining to party leadership and
the nomination of party-list representatives.
Petitioners contend that the COMELEC never should have taken cognizance of
respondents’ Petition to Expunge and/or for Disqualification. They have reached this
conclusion by characterizing the present matter as an intra-corporate dispute and, thus,
cognizable only by special commercial courts, particularly the designated commercial
court in this case, the Regional Trial Court in Pasig City.19 Pia Derla purportedly filed the
Certificate of Nomination pursuant to the authority granted by the Board of Trustees of
the "CIBAC Foundation, Inc.," the non-stock entity that is registered with the Securities
and Exchange Commission (SEC).20
Thus, petitioners insist that the group that participated in the party-list system in the
2004 and 2007 elections was the SEC-registered entity, and not the National Council,
which had allegedly become defunct since 2003. That was the year when CIBAC
Foundation, Inc. was established and registered with the SEC.21 On the other hand,
respondents counter that the foundation was established solely for the purpose of acting
as CIBAC’s legal and financial arm, as provided by the party’s Constitution and bylaws. It
was never intended to substitute for, or oust CIBAC, the party-list itself.22
Even as petitioners insisted on the purely intra-corporate nature of the conflict between
"CIBAC Foundation" and the CIBAC Sectoral Party, they submitted their Certificate of
Nomination and Manifestation of Intent to participate in the party-list elections.
Precisely, petitioners were seeking the COMELEC’s approval of their eligibility to
participate in the upcoming party-list elections. In effect, they invoke its authority under
the Party-List System Act.23 Contrary to their stance that the present dispute stemmed
from an intra-corporate matter, their submissions even recognize the COMELEC’s
constitutional power to enforce and administer all laws relative to the conduct of an
election, plebiscite, initiative, referendum, and recall.24 More specifically, as one of its
constitutional functions, the COMELEC is also tasked to "register, after sufficient
publication, political parties, organizations, or coalitions which, in addition to other
requirements, must present their platform or program of government."25
In any case, the COMELEC’s jurisdiction to settle the struggle for leadership within the
party is well established. This singular power to rule upon questions of party identity
and leadership is exercised by the COMELEC as an incident to its enforcement powers. In
Laban ng Demokratikong Pilipino v. Commission on Elections,26 the Court held:
109
x x x. Corollary to the right of a political party "to identify the people who constitute the
association and to select a standard bearer who best represents the party’s ideologies
and preference" is the right to exclude persons in its association and to not lend its name
and prestige to those which it deems undeserving to represent its ideals. A certificate of
candidacy makes known to the COMELEC that the person therein mentioned has been
nominated by a duly authorized political group empowered to act and that it reflects
accurately the sentiment of the nominating body. A candidate’s political party affiliation
is also printed followed by his or her name in the certified list of candidates. A candidate
misrepresenting himself or herself to be a party’s candidate, therefore, not only
misappropriates the party’s name and prestige but foists a deception upon the
electorate, who may unwittingly cast its ballot for him or her on the mistaken belief that
he or she stands for the party’s principles. To prevent this occurrence, the COMELEC has
the power and the duty to step in and enforce the law not only to protect the party but,
more importantly, the electorate, in line with the Commission’s broad constitutional
mandate to ensure orderly elections.27 (Emphasis supplied.)
Similar to the present case, Laban delved into the issue of leadership for the purpose of
determining which officer or member was the duly authorized representative tasked
with filing the Certificate of Nomination, pursuant to its Constitution and bylaws, to wit:
The only issue in this case, as defined by the COMELEC itself, is who as between the Party
Chairman and the Secretary General has the authority to sign certificates of candidacy of
the official candidates of the party. Indeed, the petitioners’ Manifestation and Petition
before the
COMELEC merely asked the Commission to recognize only those certificates of candidacy
signed by petitioner Sen. Angara or his authorized representative, and no other. 28
In the 2010 case Atienza v. Commission on Elections,29 it was expressly settled that the
COMELEC possessed the authority to resolve intra-party disputes as a necessary
tributary of its constitutionally mandated power to enforce election laws and register
political parties. The Court therein cited Kalaw v. Commission on Elections and Palmares
v. Commission on Elections, which uniformly upheld the COMELEC’s jurisdiction over
intra-party disputes:
The COMELEC’s jurisdiction over intra-party leadership disputes has already been
settled by the Court. The Court ruled in Kalaw v. Commission on Elections that the
COMELEC’s powers and functions under Section 2, Article IX-C of the Constitution,
"include the ascertainment of the identity of the political party and its legitimate officers
responsible for its acts." The Court also declared in another case that the COMELEC’s
power to register political parties necessarily involved the determination of the persons
who must act on its behalf. Thus, the COMELEC may resolve an intra-party leadership
dispute, in a proper case brought before it, as an incident of its power to register political
parties.30
Furthermore, matters regarding the nomination of party-list representatives, as well as
their individual qualifications, are outlined in the Party-List System Law. Sections 8 and 9
thereof state: Sec. 8. Nomination of Party-List Representatives. Each registered party,
organization or coalition shall submit to the COMELEC not later than forty-five (45) days
before the election a list of names, not less than five (5), from which party-list
representatives shall be chosen in case it obtains the required number of votes.
A person may be nominated in one (1) list only. Only persons who have given their
consent in writing may be named in the list. The list shall not include any candidate for
any elective office or a person who has lost his bid for an elective office in the
immediately preceding election. No change of names or alteration of the order of
nominees shall be allowed after the same shall have been submitted to the COMELEC
except in cases where the nominee dies, or withdraws in writing his nomination,
becomes incapacitated in which case the name of the substitute nominee shall be placed
last in the list. Incumbent sectoral representatives in the House of Representatives who
are nominated in the party-list system shall not be considered resigned.
Sec. 9. Qualifications of Party-List Nominees. No person shall be nominated as party-list
representative unless he is a natural-born citizen of the Philippines, a registered voter, a
resident of the Philippines for a period of not less than one (1)year immediately
preceding the day of the election, able to read and write, a bona fide member of the party
or organization which he seeks to represent for at least ninety (90) days preceding the
day of the election, and is at least twenty-five (25) years of age on the day of the election.
By virtue of the aforesaid mandate of the Party-List Law vesting the COMELEC with
jurisdiction over the nomination of party-list representatives and prescribing the
qualifications of each nominee, the COMELEC promulgated its "Rules on Disqualification
Cases Against Nominees of Party-List Groups/ Organizations Participating in the 10 May
2010 Automated National and Local Elections."31 Adopting the same qualifications of
party-list nominees listed above, Section 6 of these Rules also required that:
The party-list group and the nominees must submit documentary evidence in
consonance with the Constitution, R.A. 7941 and other laws to duly prove that the
nominees truly belong to the marginalized and underrepresented sector/s, the sectoral
party, organization, political party or coalition they seek to represent, which may include
but not limited to the following:
a. Track record of the party-list group/organization showing active
participation of the nominee/s in the undertakings of the party-list
group/organization for the advancement of the marginalized and
underrepresented sector/s, the sectoral party, organization, political party or
coalition they seek to represent;
b. Proofs that the nominee/s truly adheres to the advocacies of the party-list
group/organizations (prior declarations, speeches, written articles, and such
other positive actions on the part of the nominee/s showing his/her adherence
to the advocacies of the party-list group/organizations);
110
 c. Certification that the nominee/s is/are a bona fide member of the party-list
group/ organization for at least ninety (90) days prior to the election; and
d. In case of a party-list group/organization seeking representation of the
marginalized and underrepresented sector/s, proof that the nominee/s is not
only an advocate of the party-list/organization but is/are also a bona fide
member/s of said marginalized and underrepresented sector.
The Law Department shall require party-list group and nominees to submit the
foregoing documentary evidence if not complied with prior to the effectivity of this
resolution not later than three (3) days from the last day of filing of the list of nominees.
Contrary to petitioners’ stance, no grave abuse of discretion is attributable to the
COMELEC First Division and the COMELEC en banc.1âwphi1 The tribunal correctly found
that Pia Derla’s alleged authority as "acting secretary-general" was an unsubstantiated
allegation devoid of any supporting evidence. Petitioners did not submit any
documentary evidence that Derla was a member of CIBAC, let alone the representative
authorized by the party to submit its Certificate of Nomination.32 The COMELEC ruled:
A careful perusal of the records readily shows that Pia B. Derla, who has signed and
submitted, as the purported Acting Secretary General of CIBAC, the Certificates of
Nomination of Respondents, has no authority to do so. Despite Respondents’ repeated
claim that Ms. Derla is a member and officer of CIBAC, they have not presented any proof
in support of the same. We are at a loss as to the manner by which Ms. Derla has assumed
the post, and We see nothing but Respondents’ claims and writings/certifications by Ms.
Derla herself that point to that alleged fact. Surely, We cannot rely on these submissions,
as they are the very definition of self-serving declarations.
On the other hand…We cannot help but be convinced that it was Emmanuel Joel J.
Villanueva, as the Party President and Chairman, who had been given the sole authority,
at least for the 10 May 2010 Elections, to submit the list of nominees for the Party. The
records would show that, in accordance with the Party’s Constitution and by-laws, its
National Council, the highest policymaking and governing body of the Party, met on 12
November 2009 and there being a quorum, then proceeded to elect its new set of
officers, which included Mr. Villanueva as both Party President and Party Chairman, and
Virginia S. Jose as Party Secretary General. During the same meeting, the Party’s New
Electoral Congress, which as per the CIBAC’s Constitution and By-Laws, was also
composed of the National Council Members and had the task of choosing the nominees
for the Party in the Party-List Elections, unanimously ruled to delegate to the Party
President such latter function. This set of facts, which had not been belied by concrete
contrary evidence, weighed heavily against Respondents and favorably for Petitioner.33
Pia Derla, who is not even a member of CIBAC, is thus a virtual stranger to the party-list,
and clearly not qualified to attest to petitioners as CIBAC nominees, or certify their
nomination to the COMELEC. Petitioners cannot use their registration with the SEC as a
substitute for the evidentiary requirement to show that the nominees, including Derla,
are bona fide members of the party. Petitioners Planas and Lokin, Jr. have not even
presented evidence proving the affiliation of the so-called Board of Trustees to the CIBAC
Sectoral Party that is registered with COMELEC.
Petitioners cannot draw authority from the Board of Trustees of the SEC-registered
entity, because the Constitution of CIBAC expressly mandates that it is the National
Council, as the governing body of CIBAC, that has the power to formulate the policies,
plans, and programs of the Party, and to issue decisions and resolutions binding on party
members and officers.34 Contrary to petitioners’ allegations, the National Council of
CIBAC has not become defunct, and has certainly not been replaced by the Board of
Trustees of the SEC-registered entity. The COMELEC carefully perused the documents of
the organization and outlined the process followed by the National Council before it
complied with its task of choosing the party’s nominees.This was based on the "Minutes
of Meeting of CIBAC Party-List National Council" held on 12 November 2009, which
respondents attached to their Memorandum.35
For its part, the COMELEC en banc also enumerated the documentary evidence that
further bolstered respondents’ claim that it is Chairman Villanueva and Secretary
General Virginia Jose who were duly authorized to submit the Certificate of Nomination
to the COMELEC.36 These include:
a. The Joint Affidavit of Resolutions of the CIBAC National Council and the
National Electoral Congress of CIBAC dated 12 November 2009;
b. Certificate of Deputization and Delegation of Authority issued to CIBAC
Secretary-General Virginia S. Jose by the CIBAC President;
c. Constitution and By-Laws of CIBAC as annexed to its Petition for Registration
as Sectoral Organization Under the Party-List System filed by CIBAC on 13
November 2000; and
d. Manifestation dated 8 January 2010 by CIBAC’s Secretary General Virginia S.
Jose providing the official list of officers of CIBAC.37
WHEREFORE , finding no grave abuse of discretion on the part of the COMELEC in
issuing the assailed Resolutions, the instant Petition is DISMISSED. This Court AFFIRMS
the judgment of the COMELEC expunging from its records the Certificate of Nomination
filed on 26 March 2010 by Pia B. Derla. The nominees, as listed in the Certificate of
Nomination filed on 19 January 2010 by Emmanuel Joel J. Villanueva, President and
Chairman of Citizens’ Battle Against Corruption (CIBAC) Party List, are recognized as the
legitimate nominees of the said party.
SO ORDERED.
111
 [G.R. No. 163193. June 15, 2004]
SIXTO S. BRILLANTES, JR. petitioner, vs. JOSE CONCEPCION, JR., JOSE DE VENECIA,
EDGARDO J. ANGARA, DR. JAIME Z. GALVEZ, TAN, FRANKLIN M. DRILON,
FRISCO SAN JUAN, NORBERTO M. GONZALES, HONESTO M. ISLETA, AND
JOSE A. BERNAS, petitioners-in-intervention, vs.
COMMISSION ON ELECTIONS, respondent.
DECISION
CALLEJO, SR., J.:
Before us is the petition for certiorari and prohibition under Rule 65 of the Rules of
Court filed by Atty. Sixto S. Brillantes, Jr., a voter and taxpayer, seeking to nullify, for
having been issued with grave abuse of discretion amounting to lack or excess of
jurisdiction, Resolution No. 6712 dated April 28, 2004 approved by the Commission on
Elections (COMELEC) En Banccaptioned GENERAL INSTRUCTIONS FOR THE
ELECTRONIC TRANSMISSION AND CONSOLIDATION OF ADVANCED RESULTS IN THE
MAY 10, 2004 ELECTIONS.[1] The petitioner, likewise, prays for the issuance of a
temporary restraining order and, after due proceedings, a writ of prohibition to
permanently enjoin the respondent COMELEC from enforcing and implementing the
questioned resolution.
After due deliberation, the Court resolved to require the respondent to comment
on the petition and to require the parties to observe the status quo prevailing before the
issuance by the COMELEC of the assailed resolution. The parties were heard on oral
arguments on May 8, 2004. The respondent COMELEC was allowed during the hearing to
make a presentation of the Electronic Transmission, Consolidation and Dissemination
(PHASE III) program of the COMELEC, through Mr. Renato V. Lim of the Philippine Multi-
Media System, Inc. (PMSI).
The Court, thereafter, resolved to maintain the status quo order issued on May 6,
2004 and expanded it to cover any and all other issuances related to the implementation
of the so-called election quick count project. In compliance with the resolution of the
Court, the respondent, the petitioner and the petitioners-in-intervention submitted the
documents required of them.
The Antecedents
On December 22, 1997, Congress enacted Republic Act No. 8436 [2] authorizing the
COMELEC to use an automated election system (AES) for the process of voting, counting
of votes and canvassing/consolidating the results of the national and local elections. It
also mandated the COMELEC to acquire automated counting machines (ACMs), computer
equipment, devices and materials; and to adopt new electoral forms and printing
materials.
The COMELEC initially intended to implement the automation during the May 11,
1998 presidential elections, particularly in the Autonomous Region in Muslim Mindanao
(ARMM). The failure of the machines to read correctly some automated ballots, however,
deferred its implementation.[3]
In the May 2001 elections, the counting and canvassing of votes for both national
and local positions were also done manually, as no additional ACMs had been acquired
for that electoral exercise because of time constraints.
On October 29, 2002, the COMELEC adopted, in its Resolution No. 02-0170, a
modernization program for the 2004 elections consisting of three (3) phases, to wit:
(1) PHASE I Computerized system of registration and voters validation or the so-
called biometrics system of registration;
(2) PHASE II Computerized voting and counting of votes; and
(3) PHASE III Electronic transmission of results.
It resolved to conduct biddings for the three phases.
On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Order
No. 172,[4] which allocated the sum of P2,500,000,000 to exclusively fund the AES in time
for the May 10, 2004 elections.
On January 28, 2003, the COMELEC issued an Invitation to Bid [5] for the
procurement of supplies, equipment, materials and services needed for the complete
implementation of all three phases of the AES with an approved budget
of P2,500,000,000.
On February 10, 2003, upon the request of the COMELEC, President Gloria
Macapagal-Arroyo issued Executive Order No. 175,[6] authorizing the release of a
supplemental P500 million budget for the AES project of the COMELEC. The said
issuance, likewise, instructed the Department of Budget and Management (DBM) to
ensure that the aforementioned additional amount be used exclusively for the AES
prescribed under Rep. Act No. 8436, particularly the process of voting, counting of votes
and canvassing/consolidation of results of the national and local elections.[7]
On April 15, 2003, the COMELEC promulgated Resolution No. 6074 awarding the
contract for Phase II of the AES to Mega Pacific Consortium and correspondingly entered
into a contract with the latter to implement the project. On the same day, the COMELEC
entered into a separate contract with Philippine Multi-Media System, Inc. (PMSI)
denominated ELECTRONIC TRANSMISSION, CONSOLIDATION & DISSEMINATION OF
ELECTION RESULTS PROJECT CONTRACT.[8] The contract, by its very terms, pertains to
Phase III of the respondent COMELECs AES modernization program. It was predicated on
a previous bid award of the contract, for the lease of 1,900 units of satellite-based Very
Small Aperture Terminals (VSAT) each unit consisting of an indoor and outdoor
equipment, to PMSI for possessing the legal, financial and technical expertise necessary
to meet the projects objectives. The COMELEC bound and obliged itself to pay PMSI the
sum of P298,375,808.90 as rentals for the leased equipment and for its services.
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 In the meantime, the Information Technology Foundation of the Philippines (ITFP),
filed a petition for certiorari and prohibition in this Court for the nullification of
Resolution No. 6074 approving the contract for Phase II of AES to Mega Pacific
Consortium, entitled and docketed as Information Technology Foundation of the
Philippines, et al. vs. COMELEC, et al., G.R. No. 159139. While the case was pending in this
Court, the COMELEC paid the contract fee to the PMSI in trenches.
On January 13, 2004, this Court promulgated its Decision nullifying COMELEC
Resolution No. 6074 awarding the contract for Phase II of the AES to Mega Pacific
Consortium. Also voided was the subsequent contract entered into by the respondent
COMELEC with Mega Pacific Consortium for the purchase of computerized
voting/counting machines for the purpose of implementing the second phase of the
modernization program. Phase II of the AES was, therefore, scrapped based on the said
Decision of the Court and the COMELEC had to maintain the old manual voting and
counting system for the May 10, 2004 elections.
On the other hand, the validation scheme under Phase I of the AES apparently
encountered problems in its implementation, as evinced by the COMELECs
pronouncements prior to the elections that it was reverting to the old listing of
voters. Despite the scrapping of Phase II of the AES, the COMELEC nevertheless ventured
to implement Phase III of the AES through an electronic transmission of advanced
unofficial results of the 2004 elections for national, provincial and municipal positions,
also dubbed as an unofficial quick count.
Senate President Franklin Drilon had misgivings and misapprehensions about the
constitutionality of the proposed electronic transmission of results for the positions of
President and Vice-President, and apprised COMELEC Chairman Benjamin Abalos of his
position during their meeting on January 28, 2004. He also wrote Chairman Abalos on
February 2, 2004. The letter reads:
Dear Chairman Abalos,
This is to confirm my opinion which I relayed to you during our meeting on January
28th that the Commission on Elections cannot and should not conduct a quick count on
the results of the elections for the positions of President and Vice-President.
Under Section 4 of Article VII of the Constitution, it is the Congress that has the sole and
exclusive authority to canvass the votes for President and Vice-President. Thus, any
quick count to be conducted by the Commission on said positions would in effect
constitute a canvass of the votes of the President and Vice-President, which not only
would be pre-emptive of the authority of the Congress, but also would be lacking of any
Constitutional authority. You conceded the validity of the position we have taken on this
point.
In view of the foregoing, we asked the COMELEC during that meeting to reconsider its
plan to include the votes for President and Vice-President in the quick count, to which
you graciously consented. Thank you very much.[9]
The COMELEC approved a Resolution on February 10, 2004 referring the letter of
the Senate President to the members of the COMELEC and its Law Department for study
and recommendation. Aside from the concerns of the Senate President, the COMELEC
had to contend with the primal problem of sourcing the money for the implementation of
the project since the money allocated by the Office of the President for the AES had
already been spent for the acquisition of the equipment. All these developments
notwithstanding, and despite the explicit specification in the project contract for Phase
III that the same was functionally intended to be an interface of Phases I and II of the AES
modernization program, the COMELEC was determined to carry out Phase III of the
AES. On April 6, 2004, the COMELEC, in coordination with the project contractor PMSI,
conducted a field test of the electronic transmission of election results.
On April 27, 2004, the COMELEC met en banc to update itself on and resolve
whether to proceed with its implementation of Phase III of the AES.[10] During the said
meeting, COMELEC Commissioner Florentino Tuason, Jr. requested his fellow
Commissioners that whatever is said here should be confined within the four walls of
this room and the minutes so that walang masyadong problema.[11] Commissioner
Tuason, Jr. stated that he had no objection as to the Phase III of the modernization
project itself, but had concerns about the budget. He opined that other funds of the
COMELEC may not be proper for realignment. Commissioners Resurreccion Z. Borra and
Virgilio Garcillano also expressed their concerns on the budget for the project.
Commissioner Manuel Barcelona, Jr. shared the sentiments of Commissioners Garcillano
and Tuason, Jr. regarding personnel and budgetary problems. Commissioner Sadain then
manifested that the consideration for the contract for Phase III had already been almost
fully paid even before the Courts nullification of the contract for Phase II of the AES, but
he was open to the possibility of the realignment of funds of the COMELEC for the
funding of the project. He added that if the implementation of Phase III would not be
allowed to continue just because Phase II was nullified, then it would be P300,000,000
down the drain, in addition to the already allocated disbursement on Phase II of the
AES.[12] Other concerns of the Commissioners were on the legality of the project
considering the scrapping of Phase II of the AES, as well as the operational constraints
related to its implementation.
Despite the dire and serious reservations of most of its members, the COMELEC,
the next day, April 28, 2004, barely two weeks before the national and local elections,
approved the assailed resolution declaring that it adopts the policy that the precinct
election results of each city and municipality shall be immediately transmitted
electronically in advance to the COMELEC, Manila.[13] For the purpose, respondent
COMELEC established a National Consolidation Center (NCC), Electronic Transmission
Centers (ETCs) for every city and municipality, and a special ETC at the COMELEC,
Manila, for the Overseas Absentee Voting.[14]
Briefly, the procedure for this electronic transmission of precinct results is outlined
as follows:
I. The NCC shall receive and consolidate all precinct results based on the data
transmitted to it by each ETC;[15]
II. Each city and municipality shall have an ETC where votes obtained by each
candidate for all positions shall be encoded, and shall consequently be
transmitted electronically to the NCC, through Very Small Aperture
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 Terminal (VSAT) facilities.[16] For this purpose, personal computers shall
be allocated for all cities and municipalities at the rate of one set for every
one hundred seventy-five (175) precincts;[17]
III. A Department of Education (DepEd) Supervisor shall be designated in the
area who will be assigned in each polling center for the purpose of
gathering from all Board of Election Inspectors (BEI) therein the
envelopes containing the Copy 3 of the Election Returns (ER) for national
positions and Copy 2 of the ER for local positions, both intended for the
COMELEC, which shall be used as basis for the encoding and transmission
of advanced precinct results.[18]
The assailed resolution further provides that written notices of the date, time and
place of the electronic transmission of advanced precinct results shall be given not later
than May 5, 2004 to candidates running for local positions, and not later than May 7,
2004 to candidates running for national positions, as well as to political parties fielding
candidates, and parties, organizations/coalitions participating under the party-list
system.[19]
In relation to this, Section 13 of the assailed resolution provides that the encoding
proceedings were ministerial and the tabulations were advanced unofficial results. The
entirety of Section 13, reads:
Sec. 13. Right to observe the ETC proceedings. Every registered political party or coalition
of parties, accredited political party, sectoral party/organization or coalition thereof
under the party-list, through its representative, and every candidate for national
positions has the right to observe/witness the encoding and electronic transmission of the
ERs within the authorized perimeter.
Provided, That candidates for the sangguniang panlalawigan, sangguniang
panglungsod or sangguniang bayan belonging to the same slate or ticket shall collectively
be entitled to only one common observer at the ETC.
The citizens arm of the Commission, and civic, religious, professional, business, service,
youth and other similar organizations collectively, with prior authority of the
Commission, shall each be entitled to one (1) observer. Such fact shall be recorded in the
Minutes.
The observer shall have the right to observe, take note of and make observations on the
proceedings of the team. Observations shall be in writing and, when submitted, shall be
attached to the Minutes.
The encoding proceedings being ministerial in nature, and the tabulations
being advanced unofficial results, no objections or protests shall be allowed or
entertained by the ETC.
In keeping with the unofficial character of the electronically transmitted precinct
results, the assailed resolution expressly provides that no print-outs shall be released at
the ETC and at the NCC.[20] Instead, consolidated and per-precinct results shall be made
available via the Internet, text messaging, and electronic billboards in designated
locations. Interested parties may print the result published in the COMELEC web site.[21]
When apprised of the said resolution, the National Citizens Movement for Free
Elections (NAMFREL), and the heads of the major political parties, namely, Senator
Edgardo J. Angara of the Laban ng Demokratikong Pilipino (LDP) and Chairman of
the Koalisyon ng mga Nagkakaisang Pilipino (KNP) Executive Committee, Dr. Jaime Z.
Galvez Tan of the Aksyon Demokratiko, Frisco San Juan of the Nationalist Peoples
Coalition (NPC), Gen. Honesto M. Isleta of Bangon Pilipinas, Senate President Franklin
Drilon of the Liberal Party, and Speaker Jose de Venecia of the Lakas-Christian Muslim
Democrats (CMD) and Norberto M. Gonzales of the Partido Demokratiko Sosyalista ng
Pilipinas, wrote the COMELEC, on May 3, 2004 detailing their concerns about the assailed
resolution:
This refers to COMELEC Resolution 6712 promulgated on 28 April 2004.
NAMFREL and political parties have the following concerns about Resolution 6712
which arose during consultation over the past week[:]
a) The Resolution disregards RA 8173, 8436, and 7166 which authorize only the citizens
arm to use an election return for an unofficial count; other unofficial counts may not be
based on an election return; Indeed, it may be fairly inferred from the law that except for
the copy of the citizens arm, election returns may only be used for canvassing or for
receiving dispute resolutions.
b) The Commissions copy, the second or third copy of the election return, as the case
may be, has always been intended to be an archived copy and its integrity preserved
until required by the Commission to resolve election disputes. Only the Board of Election
Inspectors is authorized to have been in contact with the return before the Commission
unseals it.
c) The instruction contained in Resolution 6712, to break the seal of the envelope
containing copies Nos. 2 and 3 will introduce a break in the chain of custody prior to its
opening by the Commission on Election[s]. In the process of prematurely breaking the
seal of the Board of Election Inspectors, the integrity of the Commissions copy is
breached, thereby rendering it void of any probative value.
To us, it does appear that the use of election returns as prescribed in Resolution 6712
departs from the letters and spirit of the law, as well as previous practice. More
importantly, questions of legalities aside, the conduct of an advanced count by the
COMELEC may affect the credibility of the elections because it will differ from the results
obtained from canvassing. Needless to say, it does not help either that Resolution 6712
was promulgated only recently, and perceivably, on the eve of the elections.
114
In view of the foregoing, we respectfully request the Commission to reconsider
Resolution 6712 which authorizes the use of election returns for the consolidation of the
election results for the May 10, 2004 elections.[22]
The Present Petition
On May 4, 2004, the petition at bar was filed in this Court.
Jose Concepcion, Jr., Jose De Venecia, Edgardo J. Angara, Dr. Jaime Z. Galvez-Tan,
Franklin M. Drilon, Frisco San Juan, Norberto M. Gonzales, Honesto M. Isleta and Jose A.
Bernas, filed with this Court their Motion to Admit Attached Petition-in-Intervention. In
their petition-in-intervention, movants-petitioners urge the Court to declare as null and
void the assailed resolution and permanently enjoin the respondent COMELEC from
implementing the same. The Court granted the motion of the petitioners-in-intervention
and admitted their petition.
In assailing the validity of the questioned resolution, the petitioner avers in his
petition that there is no provision under Rep. Act No. 8436 which authorizes the
COMELEC to engage in the biometrics/computerized system of validation of voters
(Phase I) and a system of electronic transmission of election results (Phase III). Even
assuming for the nonce that all the three (3) phases are duly authorized, they must
complement each other as they are not distinct and separate programs but mere stages
of one whole scheme. Consequently, considering the failed implementation of Phases I
and II, there is no basis at all for the respondent COMELEC to still push through and
pursue with Phase III. The petitioner essentially posits that the counting and
consolidation of votes contemplated under Section 6 of Rep. Act No. 8436 refers to
the official COMELEC count under the fully automated system and not any kind
of unofficial count via electronic transmission of advanced results as now provided
under the assailed resolution.
The petitioners-in-intervention point to several constitutional infractions
occasioned by the assailed resolution. They advance the view that the assailed resolution
effectively preempts the sole and exclusive authority of Congress under Article VII,
Section 4 of the Constitution to canvass the votes for President and Vice-
President. Further, as there has been no appropriation by Congress for the respondent
COMELEC to conduct an unofficial electronic transmission of results of the May 10, 2004
elections, any expenditure for the said purpose contravenes Article VI, Section 29 (par. 1)
of the Constitution.
On statutory grounds, the petitioner and petitioners-in-intervention contend that
the assailed resolution encroaches upon the authority of NAMFREL, as the citizens
accredited arm, to conduct the unofficial quick count as provided under pertinent
election laws. It is, likewise, impugned for violating Section 52(i) of the Omnibus Election
Code, relating to the requirement of notice to the political parties and candidates of the
adoption of technological and electronic devices during the elections.
For its part, the COMELEC preliminarily assails the jurisdiction of this Court to pass
upon the assailed resolutions validity claiming that it was promulgated in the exercise of
the respondent COMELECs executive or administrative power. It asserts that the present
controversy involves a political question; hence, beyond the ambit of judicial review. It,
likewise, impugns the standing of the petitioner to file the present petition, as he has not
alleged any injury which he would or may suffer as a result of the implementation of the
assailed resolution.
On the merits, the respondent COMELEC denies that the assailed resolution was
promulgated pursuant to Rep. Act No. 8436, and that it is the implementation of Phase III
of its modernization program. Rather, as its bases, the respondent COMELEC invokes the
general grant to it of the power to enforce and administer all laws relative to the conduct
of elections and to promulgate rules and regulations to ensure free, orderly and honest
elections by the Constitution, the Omnibus Election Code, and Rep. Acts Nos. 6646 and
7166. The COMELEC avers that granting arguendo that the assailed resolution is related
to or connected with Phase III of the modernization program, no specific law is violated
by its implementation. It posits that Phases I, II and III are mutually exclusive schemes
such that, even if the first two phases have been scrapped, the latter phase may still
proceed independently of and separately from the others. It further argues that there is
statutory basis for it to conduct an unofficial quick count. Among others, it invokes the
general grant to it of the power to ensure free, orderly, honest, peaceful and credible
elections. Finally, it claims that it had complied with Section 52(i) of the Omnibus
Election Code, as the political parties and all the candidates of the 2004 elections were
sufficiently notified of the electronic transmission of advanced election results.
The COMELEC trivializes as purely speculative these constitutional concerns raised
by the petitioners-in-intervention and the Senate President. It maintains that what is
contemplated in the assailed resolution is not a canvass of the votes but merely
consolidation and transmittal thereof. As such, it cannot be made the basis for the
proclamation of any winning candidate.Emphasizing that the project is unofficial in
nature, the COMELEC opines that it cannot, therefore, be considered as preempting or
usurping the exclusive power of Congress to canvass the votes for President and Vice-
President.
The Issues
At the said hearing on May 8, 2004, the Court set forth the issues for resolution as
follows:
1. Whether the petitioner and the petitioners-intervenors have standing
to sue;
2. Assuming that they have standing, whether the issues they raise are
political in nature over which the Court has no jurisdiction;
3. Assuming the issues are not political, whether Resolution No. 6712 is
void:
(a) for preempting the sole and exclusive authority of Congress
under Art. VII, Sec. 4 of the 1987 Constitution to
115
 canvass the votes for the election of President and
Vice-President;
(b) for violating Art. VI, Sec. 29 (par. 1) of the 1987 Constitution
that no money shall be paid out of the treasury except
in pursuance of an appropriation made by law;
(c) for disregarding Rep. Acts Nos. 8173, 8436 and 7166 which
authorize only the citizens arm to use an election
return for an unofficial count;
(d) for violation of Sec. 52(i) of the Omnibus Election Code,
requiring not less than thirty (30) days notice of the
use of new technological and electronic devices; and,
(e) for lack of constitutional or statutory basis; and,
4. Whether the implementation of Resolution No. 6712 would cause
trending, confusion and chaos.
The Ruling of the Court
The issues, as earlier defined, shall now be resolved in seriatim:
The Petitioners And Petitioners-In-
Intervention Possess The Locus
Standi To Maintain The Present
Action
The gist of the question of standing is whether a party has "alleged such a personal
stake in the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions.[23] Since the implementation of the
assailed resolution obviously involves the expenditure of funds, the petitioner and the
petitioners-in-intervention, as taxpayers, possess the requisite standing to question its
validity as they have sufficient interest in preventing the illegal expenditure of money
raised by taxation.[24] In essence, taxpayers are allowed to sue where there is a claim of
illegal disbursement of public funds, or that public money is being deflected to any
improper purpose, or where the petitioners seek to restrain the respondent from
wasting public funds through the enforcement of an invalid or unconstitutional law.[25]
Most of the petitioners-in-intervention are also representatives of major political
parties that have participated in the May 10, 2004 elections. On the other hand,
petitioners-in-intervention Concepcion and Bernas represent the National Citizens
Movement for Free Elections (NAMFREL), which is the citizens arm authorized to
conduct an unofficial quick count during the said elections. They have sufficient, direct
and personal interest in the manner by which the respondent COMELEC would conduct
the elections, including the counting and canvassing of the votes cast therein.
Moreover, the petitioners-in-intervention Drilon and De Venecia are, respectively,
President of the Senate and Speaker of the House of Representatives, the heads of
Congress which is exclusively authorized by the Constitution to canvass the votes for
President and Vice-President. They have the requisite standing to prevent the usurpation
of the constitutional prerogative of Congress.
The Issue Raised By The
Petition Is Justiciable
Article VIII, Section 1 of the 1987 Constitution expands the concept of judicial
review by providing that:
SEC. 1. The judicial power shall be vested in one Supreme Court and in such lower courts
as may be established by law.
Judicial 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 grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.
The Court does not agree with the posture of the respondent COMELEC that the
issue involved in the present petition is a political question beyond the jurisdiction of
this Court to review. As the leading case of Taada vs. Cuenco[26] put it, political questions
are concerned with issues dependent upon the wisdom, not legality of a particular
measure.
The issue raised in the present petition does not merely concern the wisdom of the
assailed resolution but focuses on its alleged disregard for applicable statutory and
constitutional provisions. In other words, that the petitioner and the petitioners-in-
intervention are questioning the legality of the respondent COMELECs administrative
issuance will not preclude this Court from exercising its power of judicial review to
determine whether or not there was grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the respondent COMELEC in issuing Resolution No.
6712. Indeed, administrative issuances must not override, supplant or modify the law,
but must remain consistent with the law they intend to carry out.[27] When the grant of
power is qualified, conditional or subject to limitations, the issue of whether the
prescribed qualifications or conditions have been met or the limitations respected, is
justiciable the problem being one of legality or validity, not its wisdom.[28] In the present
petition, the Court must pass upon the petitioners contention that Resolution No. 6712
does not have adequate statutory or constitutional basis.
Although not raised during the oral arguments, another procedural issue that has
to be addressed is whether the substantive issues had been rendered moot and
academic. Indeed, the May 10, 2004 elections have come and gone. Except for the
116
President and Vice-President, the newly- elected national and local officials have been
proclaimed. Nonetheless, the Court finds it necessary to resolve the merits of the
substantive issues for future guidance of both the bench and bar.[29] Further, it is settled
rule that courts will decide a question otherwise moot and academic if it is capable of
repetition, yet evading review.[30]
The Respondent COMELEC
Committed Grave Abuse Of
Discretion Amounting To Lack Or
Excess Of Jurisdiction In Issuing
Resolution No. 6712
The preliminary issues having been thus resolved, the Court shall proceed to
determine whether the respondent COMELEC committed grave abuse of discretion
amounting to lack or excess of jurisdiction in promulgating the assailed resolution.
The Court rules in the affirmative.
An administrative body or tribunal acts without jurisdiction if it does not have the
legal power to determine the matter before it; there is excess of jurisdiction where the
respondent, being clothed with the power to determine the matter, oversteps its
authority as determined by law.[31] There is grave abuse of discretion justifying the
issuance of the writ of certiorari when there is a capricious and whimsical exercise of his
judgment as is equivalent to lack of jurisdiction.[32]
First. The assailed resolution usurps, under the guise of an unofficial tabulation of
election results based on a copy of the election returns, the sole and exclusive authority
of Congress to canvass the votes for the election of President and Vice-President. Article
VII, Section 4 of the Constitution provides in part:
The returns of every election for President and Vice-President duly certified by the board
of canvassers of each province or city, shall be transmitted to the Congress, directed to
the President of the Senate.Upon receipt of the certificates of canvass, the President of
the Senate shall, not later than thirty days after the day of the election, open all the
certificates in the presence of the Senate and the House of Representatives in joint public
session, and the Congress, upon determination of the authenticity and due execution
thereof in the manner provided by law, canvass the votes.
As early as January 28, 2004, Senate President Franklin M. Drilon already conveyed
to Chairman Benjamin S. Abalos, Sr. his deep-seated concern that the respondent
COMELEC could not and should not conduct any quick count of the votes cast for the
positions of President and Vice-President. In his Letter dated February 2,
2004[33] addressed to Chairman Abalos, Senate President Drilon reiterated his position
emphasizing that any quick count to be conducted by the Commission on said positions
would in effect constitute a canvass of the votes of the President and Vice-President,
which not only would be pre-emptive of the authority of Congress, but would also be
lacking of any constitutional authority.[34]
Nonetheless, in disregard of the valid objection of the Senate President, the
COMELEC proceeded to promulgate the assailed resolution. Such resolution directly
infringes the authority of Congress, considering that Section 4 thereof allows the use of
the third copy of the Election Returns (ERs) for the positions of President, Vice-
President, Senators and Members of the House of Representatives, intended for the
COMELEC, as basis for the encoding and transmission of advanced precinct results, and
in the process, canvass the votes for the President and Vice-President, ahead of the
canvassing of the same votes by Congress.
Parenthetically, even the provision of Rep. Act No. 8436 confirms the constitutional
undertaking of Congress as the sole body tasked to canvass the votes for the President
and Vice-President. Section 24 thereof provides:
SEC. 24. Congress as the National Board of Canvassers for President and Vice-President. --
The Senate and the House of Representatives, in joint public session, shall compose the
national board of canvassers for president and vice-president. The returns of every
election for president and vice-president duly certified by the board of canvassers of
each province or city, shall be transmitted to the Congress, directed to the president of
the Senate. Upon receipt of the certificates of canvass, the president of the Senate shall,
not later than thirty (30) days after the day of the election, open all the certificates in the
presence of the Senate and the House of Representatives in joint public session, and the
Congress upon determination of the authenticity and the due execution thereof in the
manner provided by law, canvass all the results for president and vice-president by
consolidating the results contained in the data storage devices submitted by the district,
provincial and city boards of canvassers and thereafter, proclaim the winning candidates
for president and vice-president.
The contention of the COMELEC that its tabulation of votes is not prohibited by the
Constitution and Rep. Act No. 8436 as such tabulation is unofficial, is puerile and totally
unacceptable. If the COMELEC is proscribed from conducting an official canvass of the
votes cast for the President and Vice-President, the COMELEC is, with more reason,
prohibited from making an unofficial canvass of said votes.
The COMELEC realized its folly and the merits of the objection of the Senate
President on the constitutionality of the resolution that it decided not to conduct an
unofficial quick count of the results of the elections for President and Vice-President.
Commissioner Sadain so declared during the hearing:
JUSTICE PUNO:
The word you are saying that within 36 hours after election, more or
less, you will be able to tell the people on the basis of your quick count,
who won the election, is that it?
COMM. SADAIN:
Well, its not exactly like that, Your Honor. Because the fact of winning
the election would really depend on the canvassed results, but probably,
it would already give a certain degree of comfort to certain politicians to
people rather, as to who are leading in the elections, as far as Senator
down are concerned, but not to President and Vice-President.
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 JUSTICE PUNO:
So as far as the Senatorial candidates involved are concerned, but you
dont give this assurance with respect to the Presidential and Vice-
Presidential elections which are more important?
COMM. SADAIN:
In deference to the request of the Senate President and the House
Speaker, Your Honor. According to them, they will be the ones
canvassing and proclaiming the winner, so it is their view that we will
be pre-empting their canvassing work and the proclamation of the
winners and we gave in to their request.[35]
JUSTICE CALLEJO, [SR.]:
Perhaps what you are saying is that the system will minimize dagdag-
bawas but not totally eradicate dagdag-bawas?
COMM. SADAIN:
Yes, Your Honor.
JUSTICE CALLEJO, [SR.]:
Now, I heard either Atty. Bernas or Atty. Brillantes say (sic) that there
was a conference between the Speaker and the Senate President and the
Chairman during which the Senate President and the Speaker voice[d]
their objections to the electronic transmission results system, can you
share with us the objections of the two gentlemen?
COMM. SADAIN:
These was relayed to us Your Honor and their objection or request
rather was for us to refrain from consolidating and publishing the
results for presidential and vice-presidential candidates which we have
already granted Your Honors. So, there is going to be no consolidation
and no publication of the
COMM. SADAIN:
Reason behind being that it is actually Congress that canvass that the
official canvass for this and proclaims the winner.[36]
Second. The assailed COMELEC resolution contravenes the constitutional provision
that no money shall be paid out of the treasury except in pursuance of an appropriation
made by law.[37]
By its very terms, the electronic transmission and tabulation of the election results
projected under Resolution No. 6712 is unofficial in character, meaning not emanating
from or sanctioned or acknowledged by the government or government body. [38] Any
disbursement of public funds to implement this project is contrary to the provisions of
the Constitution and Rep. Act No. 9206, which is the 2003 General Appropriations
Act. The use of the COMELEC of its funds appropriated for the AES for the unofficial quick
count project may even be considered as a felony under Article 217 of the Revised Penal
Code, as amended.[39]
Irrefragably, the implementation of the assailed resolution would entail, in due
course, the hiring of additional manpower, technical services and acquisition of
equipment, including computers and software, among others. According to the
COMELEC, it needed P55,000,000 to operationalize the project, including the encoding
process.[40] Hence, it would necessarily involve the disbursement of public funds for
which there must be the corresponding appropriation.
The COMELEC posited during the hearing that the 2003 General Appropriations Act
has appropriated the amount needed for its unofficial tabulation. We quote the transcript
of stenographic notes taken during the hearing:
JUSTICE VITUG:
And you mentioned earlier something about 55 million not being paid
as yet?
COMM. SADAIN:
This is an extra amount that we will be needing to operationalize.
JUSTICE VITUG:
And this has not yet been done?
COMM. SADAIN:
It has not yet been done, Your Honor.
JUSTICE VITUG:
Would you consider the funds that were authorized by you under the
General Appropriations Act as capable of being used for this purpose?
COMM. SADAIN:
Yes, thats our position, Your Honor.[41]
But then the COMELEC, through Commissioner Sadain, admitted during the said
hearing that although it had already approved the assailed resolution, it was still looking
for the P55,000,000 needed to operationalize the project:
JUSTICE CARPIO:
Just a clarification. You stated that you signed already the main contract
for 300 million but you have not signed the 55 million supplemental
contract for the encoding?
COMM. SADAIN:
Yes, Your Honor.
JUSTICE CARPIO:
118
 Because you still dont have the money for that? JUSTICE CARPIO:
COMM. SADAIN: So, you have found the money already?
Well, yes, we are trying to determine where we can secure the money. COMM. SADAIN:
JUSTICE CARPIO: Yes, Your Honor.[43]
Now, the encoding is crucial; without the encoding, the entire project Earlier, during the April 27, 2004 meeting of the COMELEC En Banc, the
collapses? Commissioners expressed their serious concerns about the lack of funds for the project,
the propriety of using the funds for Phase III of its modernization, and the possibility of
COMM. SADAIN: realigning funds to finance the project:
Yes.[42] Comm. Tuason:
Inexplicably, Commissioner Sadain contradicted himself when he said that its May I just request all the parties who are in here na whatever is said
Financial Department had already found the money, but that proper documentation was here should be confined within the four walls of this room and the
forthcoming: minutes so that walang masyadong problema.
JUSTICE CARPIO: Comm. Borra:
Just a clarification. You stated that you signed already the main contract Sa akin lang, we respect each others opinion. I will not make any
for 300 million but you have not signed the 55 million supplemental observations. I will just submit my own memo to be incorporated in the
contract for the encoding? minutes.
COMM. SADAIN: Comm. Tuason:
Yes, Your Honor. Commissioner Borra will submit a comment to be attached to the
JUSTICE CARPIO: minutes but not on the resolution. Ako naman, I will just make it on
record my previous reservation. I do not have any objection as to the
Because you still dont have the money for that? Phase III modernization project itself. My main concern is the budget. I
would like to make it on record that the budget for Phase III should be
COMM. SADAIN: taken from the modernization program fund because Phase III is
Well, yes, we are trying to determine where we can secure the money. definitely part of the modernization project. Other funds, for instance
other funds to be used for national elections may not be proper for
JUSTICE CARPIO: realignment. That is why I am saying that the funds to be used for Phase
III should properly come from the modernization. The other reservation
Now, the encoding is crucial; without the encoding, the entire project is that the Election Officers are now plagued with so much work such as
collapses? the preparation of the list of voters and their concern in their respective
areas. They were saying to me, specially so in my own region, that to
COMM. SADAIN:
burden them with another training at this point in time will make them
Yes. loose (sic) focus on what they are really doing for the national elections
and what they are saying is that they should not be subjected to any
JUSTICE CARPIO: training anymore. And they also said that come canvassing time, their
priority would be to canvass first before they prepare the certificate of
So, you have two (2) days to look for the 55 million, you have signed the
votes to be fed to the encoders [to be fed to the encoders] for electronic
contract on the main contract and if you dont get that 55 million, that
transmission. I share the sentiments of our people in the field. That is
300 million main contract goes to waste, because you cannot encode?
also one of my reservations. Thank you.
COMM. SADAIN:
Comm. Garcillano:
Its just a matter of proper documentation, Your Honor, because I was
informed by our Finance Department that the money is there.

119
 I also have my observations regarding the financial restraint that we are
facing if the money that is going to be used for this is taken from the
Phase II, I dont think there is money left.
Comm. Borra:
There is no more money in Phase II because the budget for Phase II is
1.3 Billion. The award on the contract for Phase II project is 1.248
billion. So the remaining has been allocated for additional expenses for
the technical working group and staff for Phase II.
Comm. Garcillano:
I also have one problem. We have to have additional people to man this
which I think is already being taken cared of. Third is, I know that this
will disrupt the canvassing that is going to be handled by our EO and
Election Assistant. I do not know if it is given to somebody (inaudible)
Comm. Tuason:
might explore the possibility of realigning funds although that might
not (inaudible). Now with regards the legality, I think what
Commissioner Borra has derived his opinion but I would like to think
the legality issue must have been settled already as early as when we
approved the modernization program involving all three
phases although we also grant the benefit of the argument for
Commissioner Borra if he thinks that there is going to be a legal gap for
the loss of Phase II. With regards the concern with the Election Officers,
I also share the same concern. In fact, on this matter alone, we try to
make the GI as simple as possible so that whatever burden we will be
giving to the EOs and EAs will be minimized. As in fact, we will be
recommending that the EOs will no longer be bothered to attend the
training. They can probably just sit in for the first hour and then they
can go on with their normal routine and then leave the encoders as well
as the reception officers to attend the training because there (sic) are
the people who will really be doing the ministerial, almost mechanical,
work of encoding and transmitting the election results. Yun lang.[44]

Those are your reservations. We have reviewed Rep. Act No. 9206, the General Appropriations Act, which took
effect on April 23, 2003 and find no appropriation for the project of the COMELEC for
Comm. Barcelona: electronic transmission of unofficial election results. What is appropriated therein is the
amount of P225,000,000 of the capital outlay for the modernization of the electoral
As far as I am concerned, I also have my reservations because I have the B. PROJECTS Maintenance & Capital Outlays Total
same experience as Commissioner Tuason when I went to Region IX and Other Operating
Caraga. Our EOs and PES expressed apprehension over the additional Expenses
training period that they may have to undergo although, they say, that if I. Locally-Funded Projects
that is an order they will comply but it will be additional burden on a. For the Modernization of Electoral
them. I also share the concern of Commissioner Tuason with regard to System 225,000,000 225,000,000
the budget that should be taken from the modernization budget. b. FY 2003 Preparatory Activities for
National Elections 250,000,000 250,000,000
Comm. Borra:
c. Upgrading of Voters Database 125,000,000 125,000,000
For the minutes, my memo is already prepared. I will submit it in d. Conduct of Special Election to
detail. On three counts naman yan eh legal, second is fill the vacancy in the Third District
technical/operational and third is financial. of Cavite 6,500,000 6,500,000

Comm. Sadain:
e. Implementation of Absentee
Ako naman, for my part as the CIC for Phase III, we were left with no Voting Act of 2003 (RA 9189) 300,000,000 300,000,000
choice but to implement Phase III inasmuch as expenses has already ========== ========= ==========
been incurred in Phase III to the tune of almost 100% at the time when
the Phase II contract was nullified. So if we stop the implementation of Sub-Total, Locally-Funded Projects 681,500,000 225,000,000 300,000,000[45]
Phase III just because Phase II was nullified, which means that there system.
would be no consolidation and accounting consolidation for the
machines, then it would be again 300 million pesos down the
drain. Necessarily there would be additional expense but we see this as
a consequence of the loss of Phase II. I share the view of Comm. Tuason
that as much as possible this should be taken from the modernization Under paragraph 3 of the special provisions of Rep. Act No. 9206, the amount
fund as much as this is properly modernization concern. However, I of P225,000,000 shall be used primarily for the establishment of the AES prescribed
would like to open myself to the possibility na in case wala talaga, we under Rep. Act No. 8436, viz:

120
3. Modernization of Electoral System. The appropriations herein authorized for the
Modernization of the Electoral System in the amount of Two Hundred Twenty-Five
Million Pesos (P225,000,000.00) shall be used primarily for the establishment of the
automated election system, prescribed under Republic Act No. 8436, particularly for the
process of voting, counting of votes and canvassing/consolidation of results of the
national and local elections.[46]
Section 52 of Rep. Act No. 9206 proscribes any change or modification in the
expenditure items authorized thereunder. Thus:
Sec. 52. Modification of Expenditure Components. Unless specifically authorized in this
Act, no change or modification shall be made in the expenditure items in this Act and
other appropriations laws unless in cases of augmentation from savings in
appropriations as authorized under Section 25(5), Article VI of the 1987 Philippine
Constitution.
Neither can the money needed for the project be taken from the COMELECs
savings, if any, because it would be violative of Article VI, Section 25 (5)[47] of the 1987
Constitution.
The power to augment from savings lies dormant until authorized by law.[48] In this
case, no law has, thus, far been enacted authorizing the respondent COMELEC to transfer
savings from another item in its appropriation, if there are any, to fund the assailed
resolution. No less than the Secretary of the Senate certified that there is no law
appropriating any amount for an unofficial count and tabulation of the votes cast during
the May 10, 2004 elections:
CERTIFICATION
I hereby certify that per records of the Senate, Congress has not legislated any
appropriation intended to defray the cost of an unofficial count, tabulation or
consolidation of the votes cast during the May 10, 2004 elections.
May 11, 2004. Pasay City, Philippines.
What is worrisome is that despite the concerns of the Commissioners during its En
Banc meeting on April 27, 2004, the COMELEC nevertheless approved the assailed
resolution the very next day. The COMELEC had not executed any supplemental contract
for the implementation of the project with PMSI. Worse, even in the absence of a
certification of availability of funds for the project, it approved the assailed resolution.
Third. The assailed resolution disregards existing laws which authorize solely the
duly-accredited citizens arm to conduct the unofficial counting of votes. Under Section 27
of Rep. Act No. 7166, as amended by Rep. Act No. 8173,[49] and reiterated in Section 18 of
Rep. Act No. 8436,[50] the accredited citizens arm - in this case, NAMFREL - is exclusively
authorized to use a copy of the election returns in the conduct of an unofficial counting of
the votes, whether for the national or the local elections. No other entity, including the
respondent COMELEC itself, is authorized to use a copy of the election returns for
purposes of conducting an unofficial count. In addition, the second or third copy of the
election returns, while required to be delivered to the COMELEC under the
aforementioned laws, are not intended for undertaking an unofficial count. The aforesaid
COMELEC copies are archived and unsealed only when needed by the respondent
COMELEC to verify election results in connection with resolving election disputes that
may be imminent. However, in contravention of the law, the assailed Resolution
authorizes the so-called Reception Officers (RO), to open the second or third copy
intended for the respondent COMELEC as basis for the encoding and transmission of
advanced unofficial precinct results. This not only violates the exclusive prerogative of
NAMFREL to conduct an unofficial count, but also taints the integrity of the envelopes
containing the election returns, as well as the returns themselves, by creating a gap in its
chain of custody from the Board of Election Inspectors to the COMELEC.
Fourth. Section 52(i) of the Omnibus Election Code, which is cited by the COMELEC
as the statutory basis for the assailed resolution, does not cover the use of the latest
technological and election devices for unofficial tabulations of votes. Moreover, the
COMELEC failed to notify the authorized representatives of accredited political parties
and all candidates in areas affected by the use or adoption of technological and electronic
devices not less than thirty days prior to the effectivity of the use of such devices. Section
52(i) reads:
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 :
(i) Prescribe the use or adoption of the latest technological and electronic devices, taking
into account the situation prevailing in the area and the funds available for the
purpose: Provided, That the Commission shall notify the authorized representatives of
accredited political parties and candidates in areas affected by the use or adoption of
technological and electronic devices not less than thirty days prior to the effectivity of
the use of such devices.
From the clear terms of the above provision, before the COMELEC may resort to
and adopt the latest technological and electronic devices for electoral purposes, it must
act in accordance with the following conditions:
(a) Take into account the situation prevailing in the area and the funds available for
the purpose; and,
(b) Notify the authorized representatives of accredited political parties and
candidates in areas affected by the use or adoption of technological and electronic
devices not less than thirty days prior to the effectivity of the use of such devices.
It is quite obvious that the purpose of this provision is to accord to all political
parties and all candidates the opportunity to object to the effectiveness of the proposed
technology and devices, and, if they are so minded not to object, to allow them ample
time to field their own trusted personnel especially in far flung areas and to take other
necessary measures to ensure the reliability of the proposed electoral technology or
device.
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 As earlier pointed out, the assailed resolution was issued by the COMELEC despite COMM. SADAIN:
most of the Commissioners apprehensions regarding the legal, operational and financial
impediments thereto. More significantly, since Resolution No. 6712 was made effective Yes, Your Honor.
immediately a day after its issuance on April 28, 2004, the respondent COMELEC could JUSTICE CARPIO:
not have possibly complied with the thirty-day notice requirement provided under
Section 52(i) of the Omnibus Election Code. This indubitably violates the constitutional And you think that is substantial compliance, you would notify how
right to due process of the political parties and candidates. The Office of the Solicitor many political parties as against hundreds of thousands of candidates?
General (OSG) concedes this point, as it opines that the authorized representatives of
accredited political parties and candidates should have been notified of the adoption of COMM. SADAIN:
the electronic transmission of election returns nationwide at the latest on April 7, 2004, Yes, Your Honor, we notified the major political parties, Your Honor.
April 8 and 9 being Holy Thursday and Good Friday, pursuant to Section 52(i) of the
Omnibus Election Code.[51] Furthermore, during the hearing on May 18, 2004, JUSTICE CARPIO:
Commissioner Sadain, who appeared for the COMELEC, unabashedly admitted that it
failed to notify all the candidates for the 2004 elections, as mandated by law: Only the major political parties?

JUSTICE CARPIO: COMM. SADAIN:

You stated that you have notified in writing all the political parties and Including party list?
candidates as required in Section 52 (i)?
JUSTICE CARPIO:
COMM. SADAIN:
But not the candidates, individual candidates?
Yes, Your Honor.
COMM. SADAIN:
JUSTICE CARPIO:
We were not able to do that, Your Honor, I must admit.
Now, how many candidates are there nationwide now?
JUSTICE CARPIO:
COMM. SADAIN:
So, you did not notify hundreds of thousands of candidates?
I must admit you Honor we were not able to notify the candidates but
COMM. SADAIN:
we notified the politicians.
No, Your Honors.[52]
JUSTICE CARPIO:
The respondent COMELEC has, likewise, failed to submit any resolution or
Yes, but what does the law state? Read the law please.
document to prove that it had notified all political parties of the intended adoption of
COMM. SADAIN: Resolution No. 6712, in compliance with Section 52(i) of the Omnibus Election Code. This
notwithstanding the fact that even long before the issuance of the assailed resolution, it
Yes, Your Honor. I understand that it includes candidates. had admittedly entered into a contract on April 15, 2003[53] and acquired facilities
pertaining to the implementation of the electronic transmission and official tabulation of
JUSTICE CARPIO: election results. As correctly pointed out by the petitioners-in-intervention, the
And there are how many candidates nationwide running in this invitations dated January 15, 2004 regarding the January 20, 2004 COMELEC Conference
election? with the political parties on election security measures did not mention electronic
transmission of advanced results, much less the formal adoption of the purpose of the
COMM. SADAIN: conference. Such notices merely invited the addressee thereof or its/his authorized
representative to a conference where the COMELEC would show a sample of the official
Hundreds of thousands, Your Honor. ballot to be used in the elections, discuss various security measures that COMELEC had
JUSTICE CARPIO: put in place, and solicit suggestions to improve the administration of the
polls.[54] Further, the invitations purportedly sent out to the political parties regarding
Hundreds of thousands, so you mean you just notified the political the April 6, 2004 Field Test of the Electronic Transmission, Consolidation and
parties not the candidates? Dissemination System to be conducted by the COMELEC appear to have been sent out in
the late afternoon of April 5, 2004, after office hours.There is no showing that all the

122
political parties attended the Field Test, or received the invitations. More importantly,
the said invitations did not contain a formal notice of the adoption of a technology, as
required by Section 52(i) of the Omnibus Election Code.[55]
Fifth. The assailed resolution has no constitutional and statutory basis. That
respondent COMELEC is the sole body tasked to enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum and
recall[56] and to ensure free, orderly, honest, peaceful and credible elections [57] is beyond
cavil. That it possesses the power to promulgate rules and regulations in the
performance of its constitutional duties is, likewise, undisputed. However, the duties of
the COMELEC under the Constitution, Rep. Act No. 7166, and other election laws are
carried out, at all times, in its official capacity. There is no constitutional and statutory
basis for the respondent COMELEC to undertake a separate and an unofficial tabulation
of results, whether manually or electronically. Indeed, by conducting such unofficial
tabulation of the results of the election, the COMELEC descends to the level of a private
organization, spending public funds for the purpose. Besides, it is absurd for the COMELEC
to conduct two kinds of electoral counts a slow but official count, and an alleged quicker
but unofficial count, the results of each may substantially differ.
Clearly, the assailed resolution is an implementation of Phase III of the
modernization program of the COMELEC under Rep. Act No. 8436. Section 2 of the
assailed resolution expressly refers to the Phase III-Modernization Project of the
COMELEC. Since this Court has already scrapped the contract for Phase II of the AES, the
COMELEC cannot as yet implement the Phase III of the program. This is so provided in
Section 6 of Rep. Act No. 8436.
SEC. 6. Authority to Use an Automated Election System. -- To carry out the above-stated
policy, the Commission on Elections, herein referred to as the Commission, is hereby
authorized to use an automated election system, herein referred to as the System, for the
process of voting, counting of votes and canvassing/consolidation of results of the
national and local elections: Provided, however, That for the May 11, 1998 elections, the
System shall be applicable in all areas within the country only for the positions of
president, vice-president, senators and parties, organizations or coalitions participating
under the party-list system.
To achieve the purpose of this Act, the Commission is authorized to procure by purchase,
lease or otherwise, any supplies, equipment, materials and services needed for the
holding of the elections by an expedited process of public bidding of vendors, suppliers
or lessors: Provided, That the accredited political parties are duly notified of and allowed
to observe but not to participate in the bidding. If in spite of its diligent efforts to
implement this mandate in the exercise of this authority, it becomes evident by February
9, 1998 that the Commission cannot fully implement the automated election system for
national positions in the May 11, 1998 elections, the elections for both national and local
positions shall be done manually except in the Autonomous Region in Muslim Mindanao
(ARMM) where the automated election system shall be used for all positions.
The AES provided in Rep. Act No. 8436 constitutes the entire process of voting,
counting of votes and canvassing/consolidation of results of the national and local
elections corresponding to the Phase I, Phase II and Phase III of the AES of the
COMELEC. The three phases cannot be effected independently of each other. The
implementation of Phase II of the AES is a condition sine qua non to the implementation
of Phase III. The nullification by this Court of the contract for Phase II of the System
effectively put on hold, at least for the May 10, 2004 elections, the implementation of
Phase III of the AES.
Sixth. As correctly observed by the petitioner, there is a great possibility that the
unofficial results reflected in the electronic transmission under the supervision and
control of the COMELEC would significantly vary from the results reflected in the
COMELEC official count. The latter follows the procedure prescribed by the Omnibus
Election Code, which is markedly different from the procedure envisioned in the assailed
resolution.
Under the Omnibus Election Code, after the votes are cast and the polls closed, the
Board of Election Inspectors (BEI) for each precinct is enjoined to publicly count the
votes and record the same simultaneously on the tally boards and on two sets of
ERs. Each set of the ER is prepared in eight (8) copies. After the ERs are accomplished,
they are forwarded to the Municipal Board of Canvassers (MBC), which would canvass all
the ERs and proclaim the elected municipal officials. All the results in the ERs are
transposed to the statements of votes (SOVs) by precinct. These SOVs are then
transferred to the certificates of canvass (COCs) which are, in turn, brought to the
Provincial Board of Canvassers (PBC). Subsequently, the PBC would canvass all the COCs
from various municipalities and proclaim the elected provincial officials, including those
to the House of Representatives. The PBC would then prepare two sets of Provincial
Certificates of Canvass (PCOCs). One set is forwarded to Congress for its canvassing of
the results for the President and Vice-President. The other set is forwarded to the
COMELEC for its canvassing of the results for Senators.
As the results are transposed from one document to another, and as each document
undergoes the procedure of canvassing by various Boards of Canvassers, election returns
and certificates of canvass are objected to and at times excluded and/or deferred and not
tallied, long after the pre-proclamation controversies are resolved by the canvass boards
and the COMELEC.
On the other hand, under the assailed resolution, the precinct results of each city
and municipality received by the ETCs would be immediately electronically transmitted to
the NCC.Such data, which have not undergone the process of canvassing, would
expectedly be dissimilar to the data on which the official count would be based.
Resultantly, the official and unofficial canvass, both to be administered by the
respondent COMELEC, would most likely not tally. In the past elections, the unofficial
quick count conducted by the NAMFREL had never tallied with that of the official count
of the COMELEC, giving rise to allegations of trending and confusion. With a second
unofficial count to be conducted by the official election body, the respondent COMELEC,
in addition to its official count, allegations of trending, would most certainly be
aggravated. As a consequence, the electoral process would be undermined.
The only intimated utility claimed by the COMELEC for the unofficial electronic
transmission count is to avert the so-called dagdag-bawas. The purpose, however, as the
petitioner properly characterizes it, is a total sham. The Court cannot accept as tenable
the COMELECs profession that from the results of the unofficial count, it would be able to
123
validate the credibility of the official tabulation. To sanction this process would in effect
allow the COMELEC to preempt or prejudge an election question or dispute which has
not been formally brought before it for quasi-judicial cognizance and resolutions.
Moreover, the Court doubts that the problem of dagdag-bawas could be addressed
by the implementation of the assailed resolution. It is observed that such problem arises
because of the element of human intervention. In the prevailing set up, there is human
intervention because the results are manually tallied, appreciated, and canvassed. On the
other hand, the electronic transmission of results is not entirely devoid of human
intervention. The crucial stage of encoding the precinct results in the computers prior to
the transmission requires human intervention. Under the assailed resolution, encoding is
accomplished by employees of the PMSI. Thus, the problem of dagdag-bawas could still
occur at this particular stage of the process.
As it stands, the COMELEC unofficial quick count would be but a needless
duplication of the NAMFREL quick count, an illegal and unnecessary waste of
government funds and effort.

Conclusion

The Court is mindful of the salutary goals that the respondent COMELEC had
envisioned in promulgating the assailed resolution, to wit: [t]o renew the publics
confidence in the Philippine Electoral System by:
1. Facilitating transparency in the process;
2. Ensuring the integrity of the results;
3. Reducing election results manipulation;
4. Providing timely, fast and accurate information to provide the public re
election results;
5. Enabling the validation of its own official count and other counts;
6. Having an audit trail in its own account.[58]
Doubtless, these are laudable intentions. But the rule of law requires that even the
best intentions must be carried out within the parameters of the Constitution and the
law. Verily, laudable purposes must be carried out by legal methods.[59]
WHEREFORE, the petition is GRANTED. The assailed Resolution No. 6712 dated
April 28, 2004 issued by the Commission on Elections (COMELEC) En Banc is hereby
declared NULL AND VOID.
SO ORDERED.

124
[G.R. No. 147066. March 26, 2001]
AKBAYAN Youth, SCAP, UCSC, MASP, KOMPIL II Youth, ALYANSA, KALIPI, PATRICIA
O. PICAR, MYLA GAIL Z. TAMONDONG, EMMANUEL E.OMBAO, JOHNNY
ACOSTA, ARCHIE JOHN TALAUE, RYAN DAPITAN, CHRISTOPHER OARDE,
JOSE MARI MODESTO, RICHARD M. VALENCIA, EDBEN
TABUCOL, petitioners, vs. COMMISSION ON ELECTIONS, respondents.
[G.R. No. 147179. March 26, 2001]
MICHELLE D. BETITO, petitioner, vs. CHAIRMAN ALFREDO BENIPAYO,
COMMISSIONERS MEHOL SADAIN, RUFINO JAVIER, LUZVIMINDA
TANCANGCO, RALPH LANTION, FLORENTINO TUASON and RESURRECCION
BORRA, all of the Commission on Election (COMELEC), respondents.
DECISION
BUENA, J.:
At the helm of controversy in the instant consolidated petitions[1] before us is the
exercise of a right so indubitably cherished and accorded primacy, if not utmost
reverence, no less than by the fundamental law - the right of suffrage.
Invoking this right, herein petitioners - representing the youth sector - seek to
direct the Commission on Elections (COMELEC) to conduct a special registration before
the May 14, 2001 General Elections, of new voters ages 18 to 21. According to
petitioners, around four million youth failed to register on or before the December 27,
2000 deadline set by the respondent COMELEC under Republic Act No. 8189.[2]
Acting on the clamor of the students and civic leaders, Senator Raul Roco, Chairman
of the Committee on Electoral Reforms, Suffrage, and Peoples Participation, through a
Letter dated January 25, 2001, invited the COMELEC to a public hearing for the purpose
of discussing the extension of the registration of voters to accommodate those who were
not able to register before the COMELEC deadline.[3]
Commissioners Luzviminda G. Tancangco and Ralph C. Lantion, together with
Consultant Resurreccion Z. Borra (now Commissioner) attended the public hearing
called by the Senate Committee headed by Senator Roco, held at the Senate, New GSIS
Headquarters Bldg., Pasay City.
On January 29, 2001, Commissioners Tancangco and Lantion submitted
Memorandum No. 2001-027 on the Report on the Request for a Two-day Additional
Registration of New Voters Only, excerpts of which are hereto quoted:
Please be advised that the undersigned attended the public hearing called by the Senate
Committee on electoral Reforms, Suffrage and Peoples Participation presided over by the
Hon. Sen. Raul Roco, its Committee Chairman to date at the Senate, New GSIS
Headquarters Building, Pasay City. The main agenda item is the request by youth
organizations to hold additional two days of registration. Thus, participating students
and civic leaders along with Comelec Representatives were in agreement that is legally
feasible to have a two-day additional registration of voters to be conducted preferably on
February 17 and 18, 2001 nationwide. The deadline for the continuing voters
registration under R.A. 8189 is December 27, 2000.
To address the concern that this may open the flood parts for hakot system, certain
restrictive parameters were discussed. The following guidelines to serve as safeguards
against fraudulent applicants:
1. The applicants for the registration shall be 25 years of age or less and will
be registering for the first time on May 14, 2001;
2. The applicants shall register in their places of residences; and
3. The applicants shall present valid identification documents, like school
records.
Preparatory to the registration days, the following activities are likewise agreed:
1. Submission of the list of students and their addresses immediately prior to
the actual registration of the applicants;
2. The Comelec field officers will be given the opportunity to verify the voters
enumerators list or conduct ocular inspection;
3. Availability of funds for the purpose; and
4. Meetings with student groups to ensure orderly and honest conduct of the
registration and drum up interest to register among the new voters.
The rationale for the additional two-day registration is the renewed political awareness
and interest to participate in the political process generated by the recent political
events in the country among our youth. Considering that they failed to register on
December 27, 2000 deadline, they approved for special registration days.
In view of the foregoing, the Commission en banc has to discuss all aspects regarding
this request with directives to the Finance Services Department (FSD) to submit
certified available funds for the purpose, and for the Deputy Executive Director for
Operations (DEDO) for the estimated costs of additional two days of registration.
The presence of REDs on January 30 can be used partly for consultation on the practical
side and logistical requirements of such additional registration days. The meeting will be
set at 1:30 p.m. at the Office of ED.[4]
125
 Immediately, Commissioner Borra called a consultation meeting among regional
heads and representatives and a number of senior staff headed by Executive Director
Mamasapunod Aguam. It was the consensus of the group, with the exception of Director
Jose Tolentino, Jr. of the ASD, to disapprove the request for additional registration of
voters on the ground that Section 8 of R.A. 8189 explicitly provides that no registration
shall be conducted during the period starting one hundred twenty (120) days before a
regular election and that the Commission has no more time left to accomplish all pre-
election activities.[5]
On February 8, 2001, the COMELEC issued Resolution No. 3584, the decretal
portion of which reads:
Deliberating on the foregoing memoranda, the Commission RESOLVED, as it hereby
RESOLVES, to deny the request to conduct a two-day additional registration of new
voters on February 17 and 18, 2001.
Commissioners Rufino S. B. Javier and Mehol K. Sadain voted to deny the request
while Commissioners Luzviminda Tancangco and Ralph Lantion voted to accommodate
the students request. With this impasse, the Commission construed its Resolution as
having taken effect.
Aggrieved by the denial, petitioners AKBAYAN-Youth, SCAP, UCSC, MASP, KOMPIL
II (YOUTH) et al. filed before this Court the instant Petition for Certiorari and Mandamus,
docketed as G.R. No. 147066, which seeks to set aside and nullify respondent COMELECs
Resolution and/or to declare Section 8 of R. A. 8189 unconstitutional insofar as said
provision effectively causes the disenfranchisement of petitioners and others similarly
situated. Likewise, petitioners pray for the issuance of a writ of mandamus directing
respondent COMELEC to conduct a special registration of new voters and to admit for
registration petitioners and other similarly situated young Filipinos to qualify them to
vote in the May 14, 2001 General Elections.
On March 09, 2001, herein petitioner Michelle Betito, a student of the University of
the Philippines, likewise filed a Petition for Mandamus, docketed as G.R. No. 147179,
praying that this Court direct the COMELEC to provide for another special registration
day under the continuing registration provision under the Election Code.
On March 13, 2001, this Court resolved to consolidate the two petitions and further
required respondents to file their Comment thereon within a non-extendible period
expiring at 10:00 A.M. of March 16, 2001. Moreover, this Court resolved to set the
consolidated cases for oral arguments on March 16, 2001.[6]
On March 16, 2001, the Solicitor General, in its Manifestation and Motion in lieu of
Comment, recommended that an additional continuing registration of voters be
conducted at the soonest possible time in order to accommodate that disenfranchised
voters for purposes of the May 14, 2001 elections.
In effect, the Court in passing upon the merits of the present petitions, is tasked to
resolve a two-pronged issue focusing on respondent COMELECs issuance of the assailed
Resolution dated February 8, 2001, which Resolution, petitioners, by and large, argue to
have undermined their constitutional right to vote on the May 14, 2001 general elections
and caused the disenfranchisement of around four (4) million Filipinos of voting age who
failed to register before the registration deadline set by the COMELEC.
Thus, this Court shall determine:
a) Whether or not respondent COMELEC committed grave abuse of discretion
in issuing COMELEC Resolution dated February 8, 2001;
b) Whether or not this Court can compel respondent COMELEC, through the
extraordinary writ of mandamus, to conduct a special registration of new
voters during the period between the COMELECs imposed December 27,
2000 deadline and the May 14, 2001 general elections.
The petitions are bereft of merit.
In a representative democracy such as ours, the right of suffrage, although
accorded a prime niche in the hierarchy of rights embodied in the fundamental law,
ought to be exercised within the proper bounds and framework of the Constitution and
must properly yield to pertinent laws skillfully enacted by the Legislature, which statutes
for all intents and purposes, are crafted to effectively insulate such so cherished right
from ravishment and preserve the democratic institutions our people have, for so long,
guarded against the spoils of opportunism, debauchery and abuse.
To be sure, the right of suffrage ardently invoked by herein petitioners, is not at all
absolute. Needless to say, the exercise of the right of suffrage, as in the enjoyment of all
other rights, is subject to existing substantive and procedural requirements embodied in
our Constitution, statute books and other repositories of law. Thus, as to the substantive
aspect, Section 1, Article V of the Constitution provides:
SECTION 1. SUFFRAGE MAY BE EXERCISED BY ALL CITIZENS OF THE PHILIPPINES NOT
OTHERWISE DISQUALIFIED BY LAW, WHO ARE AT LEAST EIGHTEEN YEARS OF AGE,
AND WHO SHALL HAVE RESIDED IN THE PHILIPPINES FOR AT LEAST ONE YEAR AND
IN THE PLACE WHEREIN THEY PROPOSE TO VOTE FOR AT LEAST SIX MONTHS
IMMEDIATELY PRECEDING THE ELECTIONS. NO LITERACY, PROPERTY, OR OTHER
SUBSTANTIVE REQUIREMENT SHALL BE IMPOSED ON THE EXERCISE OF SUFFRAGE.
As to the procedural limitation, the right of a citizen to vote is necessarily
conditioned upon certain procedural requirements he must undergo: among others, the
process of registration. Specifically, a citizen in order to be qualified to exercise his right
to vote, in addition to the minimum requirements set by the fundamental charter, is
obliged by law to register, at present, under the provisions of Republic Act No. 8189,
otherwise known as the Voters Registration Act of 1996.
Stated differently, the act of registration is an indispensable precondition to the
right of suffrage. For registration is part and parcel of the right to vote and an
indispensable element in the election process.Thus, contrary to petitioners argument,
registration cannot and should not be denigrated to the lowly stature of a mere statutory
requirement. Proceeding from the significance of registration as a necessary requisite to
the right to vote, the State undoubtedly, in the exercise of its inherent police power, may
then enact laws to safeguard and regulate the act of voters registration for the ultimate
purpose of conducting honest, orderly and peaceful election, to the incidental yet
126
generally important end, that even pre-election activities could be performed by the duly
constituted authorities in a realistic and orderly manner one which is not indifferent and
so far removed from the pressing order of the day and the prevalent circumstances of the
times.
Viewed broadly, existing legal proscription and pragmatic operational
considerations bear great weight in the adjudication of the issues raised in the instant
petitions.
On the legal score, Section 8, of the R.A. 8189, which provides a system of
continuing registration, is explicit, to wit:
SEC. 8. System of Continuing Registration of Voters. The Personal filing of application of
registration of voters shall be conducted daily in the office of the Election Officer during
regular office hours. No registration shall, however, be conducted during the period
starting one hundred twenty (120) days before a regular election and ninety (90)
days before a special election. (Emphasis Ours)
Likewise, Section 35 of R.A. 8189, which among others, speaks of a prohibitive
period within which to file a sworn petition for the exclusion of voters from the
permanent voters list, provides:
SEC. 35. Petition for Exclusion of Voters from the List Any registered voter,
representative of a political party x x x may file x x x except one hundred (100) days
prior to a regular election xxx.
As aptly observed and succinctly worded by respondent COMELEC in its Comment:
x x x The petition for exclusion is a necessary component to registration since it is a
safety mechanism that gives a measure of protection against flying voters, non-qualified
registrants, and the like. The prohibitive period, on the other hand serves the purpose of
securing the voters substantive right to be included in the list of voters.
In real-world terms, this means that if a special voters registration is conducted, then the
prohibitive period for filing petitions for exclusion must likewise be adjusted to a later
date. If we do not, then no one can challenge the Voters list since we would already be
well into the 100-day prohibitive period. Aside from being a flagrant breach of the
principles of due process, this would open the registration process to abuse and
seriously compromise the integrity of the voters list, and consequently, that of the entire
election.
x x x It must be remembered that the period serve a vital role in protecting the integrity
of the registration process. Without the prohibitive periods, the COMELEC would be
deprived of any time to evaluate the evidence on the application. We would be obliged to
simply take them at face value. If we compromise on these safety nets, we may very well
end up with a voters list full of flying voters, overflowing with unqualified registrants,
populated with shadows and ghosts x x x.
x x x The short cuts that will have to be adopted in order to fit the entire process of
registration within the last 60 days will give rise to haphazard list of voters, some of
whom might not even be qualified to vote. x x x the very possibility that we shall be
conducting elections on the basis of an inaccurate list is enough to cast a cloud of doubt
over the results of the polls. If that happens, the unforgiving public will disown the
results of the elections, regardless of who wins, and regardless of how many courts
validate our own results. x x x
Perhaps undaunted by such scenario, petitioners invoke the so called standby
powers or residual powers of the COMELEC, as provided under the relevant provisions of
Section 29, Republic Act No. 6646[7] and adopted verbatim in Section 28 of Republic Act
No. 8436,[8] thus:
SEC. 28. Designation of other Dates for Certain Pre-election Acts - If it should no longer
be possible to observe the periods and dates prescribed by law for certain pre-election
acts, the Commission shall fix other periods and dates in order to ensure
accomplishments of the activities so voters shall not be deprived of their right to
suffrage.
On this matter, the act of registration is concededly, by its very nature, a pre-
election act. Under Section 3(a) of R.A. 8189, registration, as a process, has its own
specific definition, precise meaning and coverage, thus:
a) Registration refers to the act of accomplishing and filing of a sworn application for
registration by a qualified voter before the election officer of the city or municipality
wherein he resides and including the same in the book of registered voters upon
approval by the Election Registration Board;
At this point, it bears emphasis that the provisions of Section 29 of R.A. 8436
invoked by herein petitioners and Section 8 of R.A. 8189 volunteered by respondent
COMELEC, far from contradicting each other, actually share some common ground. True
enough, both provisions, although at first glance may seem to be at war in relation to the
other, are in a more circumspect perusal, necessarily capable of being harmonized and
reconciled.
Rudimentary is the principle in legal hermeneutics that changes made by the
legislature in the form of amendments to a statute should be given effect, together with
other parts of the amended act. It is not to be presumed that the legislature, in making
such changes, was indulging in mere semantic exercise. There must be some purpose in
making them, which should be ascertained and given effect.[9]
Similarly, every new statute should be construed in connection with those already
existing in relation to the same subject matter and all should be made to harmonize and
stand together, if they can be done by any fair and reasonable
interpretation.[10] Interpretare et concordare legibus est optimus interpretandi,
which means that the best method of interpretation is that which makes laws consistent
with other laws. Accordingly, courts of justice, when confronted with apparently
conflicting statutes, should endeavor to reconcile them instead of declaring outright the
127
invalidity of one against the other. Courts should harmonize them, if this is possible,
because they are equally the handiwork of the same legislature.[11]
In light of the foregoing doctrine, we hold that Section 8 of R.A. 8189 applies in the
present case, for the purpose of upholding the assailed COMELEC Resolution and
denying the instant petitions, considering that the aforesaid law explicitly provides that
no registration shall be conducted during the period starting one hundred twenty (120)
days before a regular election.
Corollarily, it is specious for herein petitioners to argue that respondent COMELEC
may validly and legally conduct a two-day special registration, through the expedient of
the letter of Section 28 of R.A. 8436. To this end, the provisions of Section 28, R.A. 8436
would come into play in cases where the pre-election acts are susceptible of
performance within the available period prior to election day. In more categorical
language, Section 28 of R.A. 8436 is, to our mind, anchored on the sound premise that
these certain pre-election acts are still capable of being reasonably performed vis-a-
vis the remaining period before the date of election and the conduct of other related pre-
election activities required under the law.
In its Comment, respondent COMELECwhich is the constitutional body tasked by
no less than the fundamental charter (Sec. 2, par. 3, Article IX-C of the Constitution) to
decide, except those involving the right to vote, all questions affecting elections,
including registration of voterspainstakingly and thoroughly emphasized the operational
impossibility[12] of conducting a special registration, which in its on language, can no
longer be accomplished within the time left to (us) the Commission.[13]
Hence:
xxx xxx xxx.
19) In any case, even without the legal obstacles, the last 60 days will not be a
walk in the park for the Comelec. Allow us to outline what the
Commission has yet to do, and the time to do it in:
20) First we have to complete the Project of Precincts by the 19th of March.
The Projects of Precincts Indicate the total number of established
precincts and the number of registered voters per precincts in a city or
municipality. Without the final Project of Precincts, we cannot even
determine the proper allocation of official ballots, election returns and
other election forms and paraphernalia. More succinctly said, without the
Project of Precincts, we wont know how many forms to print and so were
liable to come up short.
21) More Importantly, without a completed Project of Precincts, it will be
impossible to complete the rest of the tasks that must be accomplished
prior to the elections.
22) Second, the Board of Elections Inspectors must be constituted on or
before the 4th of March. In addition, the list of the members of the BEI
including the precinct where they are assigned and the barangay where
that precinct is located - must be furnished by the Election Officer to all
the candidates and political candidates not later than the 26th of March.
23) Third, the Book of Voters, which contains the approved Voter
Registration Records of registered voters in particular precinct, must be
inspected, verified, and sealed beginning March 30, until April 15.
24) Fourth, the Computerized Voters List must be finalized and printed out of
use on election day; and finally
25) Fifth, the preparation, bidding, printing, and distribution of the Voters
Information Sheet must be completed on or before April 15.
26) With this rigorous schedule of pre-election activities, the Comelec will
have roughly a month that will act as a buffer against any number of
unforeseen occurrences that might delay the elections. This is the logic
and the wisdom behind setting the 120-day prohibitive period. After all,
preparing for an election is no easy task.
27) To hold special registrations now would, aside from being Illegal, whittle
that approximately 30-day margin away to nothing.
28) When we say registration of voters, we do not - contrary to popular
opinion - refer only to the act of going to the Election Officer and writing
our names down. Registration is, In fact, a long process that takes about
three weeks to complete not even counting how long it would take to
prepare for the registration in the first place.
29) In order to concretize, the senior Staff of the Comelec, the other
Commissioners, prepared a time-table in order to see exactly how the
superimposition of special registration would affect the on-going
preparation for the May 14 elections.
30) We assumed for the sake of argument that we were to hold the special
registration on April 16 and 17. These are not arbitrary numbers, by the
way it takes in account the fact that we only have about 800,000 Voters
Registration Forms available, as against an estimated 4.5 million potential
registrants, and it would take about 14 days If we were to declare special
registrations today to print up the difference and to verify these
accountable forms. After printing and verification, the forms would have
to be packed and shipped - roughly taking up a further two and a half
weeks. Only then can we get on with registration.
31) The first step in registration is, of course, filling the application for
registration with the Election Officer. The application, according to
Section 17 of R.A. 8189, is then set for hearing, with notice of that hearing
being posted in the city or municipal bulletin board for at least one week
prior. Thus, if we held registrations on the 16th and the 17th the posting
requirement would be completed by the 24th. Considering that time must
be allowed for the filling of oppositions, the earliest that the Election
Registration Board can be convened for hearing would be the May 1st and
2nd.
128
 32) Assuming and this is a big assumption that there are nit challenges to the
applicants right to register, the Election registration Board can
immediately rule on the Applicants registration, and post notices of its
action by the 2nd until the 7th of May. By the 10th, copies of the notice of
the action taken by the Board will have already been furnished to the
applicants and the heads of registered political parties.
33) Only at this point can our Election Officers once again focus on the
business of getting ready for the elections. Once the results of the special
registration are finalized, they can be encoded and a new Computerized
Voters List generated - at the earliest, by May 11, after which the new CVL
would be posted. Incidentally, it we were to follow the letter of the law
strictly, a May 11 posting date for the new CVL would be improper since
the R.A. 8189 provides that the CVL be posted at least 90 days before the
election.
34) Assuming optimistically that we can then finish the inspection,
verification, and sealing of the Book if Voters by May 15, we will already
have overshot the May 14, election date, and still not have finished our
election preparations.
35) After this point, we could have to prepare the allocation of Official Ballots,
Election Returns, and other Non-Accountable Forms and Supplies to be
used for the new registrants. Once the allocation is ready, the contracts
would be awarded, the various forms printed, delivered, verified, and
finally shipped out to the different municipalities. All told, this process
would take approximately 26 days, from the 15th of May until June 10.
36) Only then can we truly say that we are ready to hold the elections.
xxx xxx xxx.[14]
It is an accepted doctrine in administrative law that the determination of
administrative agency as to the operation, implementation and application of a law
would be accorded great weight considering that these specialized government bodies
are, by their nature and functions, in the best position to know what they can possibly do
or not do, under prevailing circumstances.
Beyond this, it is likewise well-settled that the law does not require that the
impossible be done.[15] The law obliges no one to perform an impossibility, expressed in
the maxim, nemo tenetur ad impossible.[16] In other words, there is no obligation to do
an impossible thing. Impossibilium nulla obligato est. Hence, a statute may not be so
construed as to require compliance with what it prescribes cannot, at the time, be legally,
coincidentally[17], it must be presumed that the legislature did not at all intend an
interpretation or application of a law which is far removed from the realm of the
possible.Truly, in the interpretation of statutes, the interpretation to be given must be
such that it is in accordance with logic, common sense, reasonableness and
practicality. Thus, we are of the considered view that the stand-by power of the
respondent COMELEC under Section 28 of R.A. 8436, presupposes the possibility of its
being exercised or availed of, and not otherwise.
Further, petitioners bare allegation that they were disenfranchised when
respondent COMELEC pegged the registration deadline on December 27, 2000 instead of
January 13, 2001 the day before the period before the May 14, 2001 regular elections
commences is, to our mind, not sufficient. On this matter, there is no allegation in the two
consolidated petitions and the records are bereft of any showing that anyone of herein
petitioners has filed an application to be registered as a voter which was denied by the
COMELEC nor filed a complaint before the respondent COMELEC alleging that he or she
proceeded to the Office of the Election Officer to register between the period starting
from December 28, 2000 to January 13, 2001, and that he or she was disallowed or
barred by respondent COMELEC from filing his application for registration. While it may
be true that respondent COMELEC set the registration deadline on December 27, 2000,
this Court is of the Firm view that petitioners were not totally denied the opportunity to
avail of the continuing registration under R.A. 8189. Stated in a different manner, the
petitioners in the instant case are not without fault or blame. They admit in their
petition[18] that they failed to register, for whatever reason, within the period of
registration and came to this Court and invoked its protective mantle not realizing, so to
speak, the speck in their eyes. Impuris minibus nemo accedat curiam. Let no one come
to court with unclean hands.
In a similar vein, well-entrenched is the rule in our jurisdiction that the law aids the
vigilant and not those who slumber on their rights. Vigilantis sed non dormientibus
jura in re subveniunt.
Applying the foregoing, this court is of the firm view that respondent COMELEC did
not commit an abuse of discretion, much less be adjudged to have committed the same in
some patent, whimsical and arbitrary manner, in issuing Resolution No. 3584 which, in
respondents own terms, resolved to deny the request to conduct a two-day additional
registration of new voters on February 17 and 18, 2001.
On this particular matter, grave abuse of discretion implies a capricious and
whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, when the
power is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, and it must be so patent and gross as to amount to an evasion of positive duty
enjoined or to act at all in contemplation of laws.[19]
Under these circumstances, we rule that the COMELEC, in denying the request of
petitioners to hold a special registration, acted within the bounds and confines of the
applicable law on the matter --Section 8 of RA 8189. In issuing the assailed Resolution,
respondent COMELEC simply performed its constitutional task to enforce and administer
all laws and regulations relative to the conduct of an election,[20] inter alia, questions
relating to the registration of voters; evidently, respondent COMELEC merely exercised a
prerogative that chiefly pertains to it and one which squarely falls within the proper
sphere of its constitutionally-mandated powers. Hence, whatever action respondent
takes in the exercise of its wide latitude of discretion, specifically on matters involving
voters registration, pertains to the wisdom rather than the legality of the
act. Accordingly, in the absence of clear showing of grave abuse of power of discretion on
the part of respondent COMELEC, this Court may not validly conduct an incursion and
meddle with affairs exclusively within the province of respondent COMELEC a body
accorded by no less than the fundamental law with independence.
129
 As to petitioners prayer for the issuance of the writ of mandamus, we hold that this
Court cannot, in view of the very nature of such extraordinary writ, issue the same
without transgressing the time-honored principles in this jurisdiction.
As an extraordinary writ, the remedy of mandamus lies only to compel an officer to
perform a ministerial duty, not a discretionary one; mandamus will not issue to control
the exercise of discretion of a public officer where the law imposes upon him the duty to
exercise his judgment in reference to any manner in which he is required to act, because
it is his judgment that is to be exercised and not that of the court.[21]
Considering the circumstances where the writ of mandamus lies and the
peculiarities of the present case, we are of the firm belief that petitioners failed to
establish, to the satisfaction of this Court, that they are entitled to the issuance of this
extraordinary writ so as to effectively compel respondent COMELEC to conduct a special
registration of voters. For the determination of whether or not the conduct of a special
registration of voters is feasible, possible or practical within the remaining period before
the actual date of election, involves the exercise of discretion and thus, cannot be
controlled by mandamus.
In Bayan vs. Executive Secretary Zamora and related cases,[22] we enunciated
that the Courts function, as sanctioned by Article VIII, Section 1, is merely (to) check
whether or not the governmental branch or agency has gone beyond the constitutional
limits of its jurisdiction, not that it erred or has a different view. In the absence of a
showing...(of) grave abuse of discretion amounting to lack of jurisdiction, there is no
occasion for the Court to exercise its corrective power... It has no power to look into what
it thinks is apparent error.[23]
Finally, the Court likewise takes judicial notice of the fact that the President has
issued Proclamation No. 15 calling Congress to a Special Session on March 19, 2001, to
allow the conduct of Special Registration of new voters. House Bill No. 12930 has been
filed before the Lower House, which bill seeks to amend R.A. 8189 as to the 120-day
prohibitive period provided for under said law. Similarly, Senate Bill No. 2276[24] was
filed before the Senate, with the same intention to amend the aforesaid law and, in effect,
allow the conduct of special registration before the May 14, 2001 General Elections.This
Court views the foregoing factual circumstances as a clear intimation on the part of both
the executive and legislative departments that a legal obstacle indeed stands in the way
of the conduct by the Commission on Elections of a special registration before the May
14, 2001 General Elections.
WHEREFORE, premises considered, the instant petitions for certiorari and
mandamus are hereby DENIED.
SO ORDERED.

130
G.R. Nos. 207199-200 October 22, 2013
WIGBERTO R. TAÑADA, JR. Petitioner,
vs.
COMMISSION ON ELECTIONS ANGELINA D. TAN, AND ALVIN JOHN S.
TAÑADA, Respondents.
RESOLUTION
PERLAS-BERNABE, J.:
Assailed in this petition for certiorari1 under Rule 65 in relation to Rule 64 of the Rules of
Court is the Resolution2dated April 25, 2013 of the Commission on Elections (COMELEC)
En Banc declaring respondent Alvin John S. Tañada not a nuisance candidate.
The Facts
Petitioner Wigberto R. Tañada, Jr., (Wigberto) and respondents Angelina D. Tan
(Angelina) and Alvin John S. Tañada (Alvin John) were contenders for the position of
Member of the House of Representatives for the 4th District of Quezon Province in the
just concluded May 13, 2013 National Elections.3 Wigberto ran under the banner of the
Liberal Party; Alvin John was the official congressional candidate of Lapiang
Manggagawa; while Angelina was fielded by the National People’s Coalition.4
On October 10, 2012, Wigberto filed before the COMELEC two separate petitions: first, to
cancel Alvin John’s CoC;5and, second, to declare him as a nuisance candidate.6 The said
petitions were docketed as SPA Nos. 13-056 (DC) and 13-057 (DC), respectively.
In a Resolution7 dated January 29, 2013, the COMELEC First Division dismissed both
petitions for lack of merit. On Wigberto’s motion for reconsideration,8 the COMELEC En
Banc, in a Resolution9 dated April 25, 2013, upheld the COMELEC First Division’s ruling
in SPA No. 13-057 (DC) that Alvin John was not a nuisance candidate as defined under
Section 6910 of Batas Pambansa Bilang 881, as amended, otherwise known as the
"Omnibus Election Code of the Philippines" (OEC).11 However, in SPA No. 13-056 (DC), it
granted the motion for reconsideration and cancelled Alvin John’s CoC for having
committed false material representations concerning his residency in accordance with
Section 7812 of the OEC.13
On May 15, 2013, Wigberto filed a 2nd Motion for Partial Reconsideration14 of the
COMELEC En Banc ’s ruling in SPA No. 13-057 (DC) on the ground of newly discovered
evidence. He alleged that Alvin John’s candidacy was not bona fide because: (a) Alvin
John was merely forced by his father to file his CoC; (b) he had no election paraphernalia
posted in official COMELEC posting areas in several barangays of Gumaca, Quezon
Province; (c) he did not even vote during the May 13, 2013 National Elections; and (d)
his legal representation appeared to have been in collusion with the lawyers of
Angelina.15
On May 15 and 16, 2013, Wigberto filed with the COMELEC En Banc an Extremely Urgent
Motion to Admit Additional and Newly Discovered Evidence and to Urgently Resolve
Motion for Reconsideration16 and an Urgent Manifestation and Supplemental17 thereto.
These motions, however, remained un-acted upon until the filing of the present petition
before the Court on May 27, 2013. Thus, in order to avoid charges of forum-shopping,
said motions were withdrawn by Wigberto.
In a related development, despite the cancellation of Alvin John’s CoC due to his material
misrepresentations therein, his name was not deleted from – and thus, remained printed
on – the ballot, prompting Wigberto to file a motion18 with the Provincial Board of
Canvassers of Quezon Province (PBOC) asking that the votes cast in the name of Alvin
John be credited to him instead in accordance with the Court’s ruling in Dela Cruz v.
COMELEC19and COMELEC Resolution No. 9599.20 The PBOC, however, denied Wigberto’s
motion in a Resolution21 dated May 16, 2013, holding that the votes of Alvin John could
not be counted in favor of Wigberto because the cancellation of the former’s CoC was on
the basis of his material misrepresentations under Section 78 of the OEC and not on
being a nuisance candidate under Section 69 of the same law. Consequently, the PBOC
canvassed the votes of all three contenders separately, and thereafter, on May 16, 2013,
proclaimed Angelina as the winning candidate for the position of Member of the House of
Representatives for the 4th District of Quezon Province.22According to Wigberto, it was
for the foregoing reason that he impleaded Angelina as a party-respondent in the instant
petition for certiorari.23
It appears, however, that Wigberto had already filed with the COMELEC a Petition to
Annul the Proclamation of Angelina (Petition to Annul) under SPC No. 13-013, asserting
that had the PBOC followed pertinent rulings,24 the votes cast for Alvin John would have
been counted in his favor which could have resulted in his victory.25 While the Petition to
Annul was still pending resolution, Wigberto initiated the instant certiorari case against
the COMELEC En Banc Resolution dated April 25, 2013 declaring Alvin John not a
nuisance candidate.1âwphi1
On July 3, 2013, Wigberto filed a Manifestation26 informing the Court that he had caused
the filing of an Election Protest Ad Cautelam entitled " Wigberto R. Tañada, Jr. v. Angelina
‘Helen’ D. Tan, " before the House of Representatives Electoral Tribunal (HRET), which
was docketed as Electoral Protest Case No. 13-018.
The Office of the Solicitor General (OSG), on behalf of public respondent COMELEC,
affirmed in its Comment dated August 18, 2013,27 that an Election Protest Ad Cautelam
had, indeed, been filed by Wigberto against Angelina before the HRET, praying that he be
declared the winner in the 2013 congressional race in the 4th District of Quezon
Province. It also alleged that on June 28, 2013, the COMELEC Second Division issued a
Resolution annulling the proclamation of Angelina as Member of the House of
Representatives for the 4th District of Quezon Province. The propriety of this ruling is
now pending resolution before the COMELEC En Banc.28
The Issues Before the Court
131
Wigberto assails the COMELEC En Banc Resolution dated April 25, 2013 declaring that
Alvin John was not a nuisance candidate as defined under Section 69 of the OEC. In
consequence, he seeks that the votes cast in favor of Alvin John be credited to him and,
thereafter, to be declared the winning candidate for the congressional post.

The Court’s Ruling

The petition must fail.

Section 17, Article VI of the 1987 Philippine Constitution provides that the HRET is the
sole judge of all contests relating to the election, returns, and qualifications of its
respective members:

Sec. 17. The Senate and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests relating to the election, returns, and
qualifications of their respective Members. Each Electoral Tribunal, shall be composed of
nine Members, three of whom shall be Justices of the Supreme Court to be designated by
the Chief Justice, and the remaining six shall be Members of the Senate or the House of
Representatives, as the case may be, who shall be chosen on the basis of proportional
representation from the political parties and the parties or organizations registered
under the party-list system represented therein. The senior Justice in the Electoral
Tribunal shall be its Chairman. (Emphasis and underscoring supplied)

Case law states that the proclamation of a congressional candidate following the election
divests the COMELEC of jurisdiction over disputes relating to the election, returns, and
qualifications of the proclaimed representative in favor of the HRET.29 The phrase
"election, returns and qualifications" refers to all matters affecting the validity of the
contestee’s title.30 In particular, the term "election" refers to the conduct of the polls,
including the listing of voters, the holding of the electoral campaign, and the casting and
counting of the votes; "returns" refers to the canvass of the returns and the proclamation
of the winners, including questions concerning the composition of the board of
canvassers and the authenticity of the election returns; and "qualifications" refers to
matters that could be raised in a quo warranto proceeding against the proclaimed
winner, such as his disloyalty or ineligibility or the inadequacy of his CoC.31

In the foregoing light, considering that Angelina had already been proclaimed as Member
of the House of Representatives for the 4th District of Quezon Province on May 16, 2013,
as she has in fact taken her oath and assumed office past noon time of June 30,
2013,32 the Court is now without jurisdiction to resolve the case at bar. As they stand, the
issues concerning the conduct of the canvass and the resulting proclamation of Angelina
as herein discussed are matters which fall under the scope of the terms "election" and
"returns" as above-stated and hence, properly fall under the HRET’s sole jurisdiction.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

132
G.R. No. 207264 October 22, 2013
REGINA ONGSIAKO REYES, Petitioner,
vs.
COMMISSION ON ELECTIONS and JOSEPH SOCORRO B. TAN, Respondents.
RESOLUTION
PEREZ, J.:
This is a Motion for Reconsideration of the En Bane Resolution of 25 June 2013 which
stated that: IN VIEW OF THE FOREGOING, the instant petition is DISMISSED, finding no
grave abuse of discretion on the part of the Commission on Elections. The 14 May 2013
Resolution of the COMELEC En Banc affirming the 27 March 2013 Resolution of the
COMELEC First Division is upheld."
In her Motion for Reconsideration, petitioner summarizes her submission, thus:
"81. Stated differently, the Petitioner x x x is not asking the Honorable Court to make a
determination as regards her qualifications, she is merely asking the Honorable Court to
affirm the jurisdiction of the HRET to solely and exclusively pass upon such qualifications
and to set aside the COMELEC Resolutions for having denied Petitioner her right to due
process and for unconstitutionally adding a qualification not otherwise required by the
constitution."1(as originally underscored)
The first part of the summary refers to the issue raised in the petition, which is:
"31. Whether or not Respondent Comelec is without jurisdiction over Petitioner who is
duly proclaimed winner and who has already taken her oath of office for the position of
Member of the House of Representatives for the lone congressional district of
Marinduque."2
Tied up and neatened the propositions on the COMELEC-or-HRET jurisdiction go thus:
petitioner is a duly proclaimed winner and having taken her oath of office as member of
the House of Representatives, all questions regarding her qualifications are outside the
jurisdiction of the COMELEC and are within the HRET exclusive jurisdiction.
The averred proclamation is the critical pointer to the correctness of petitioner's
submission. The crucial question is whether or not petitioner could be proclaimed on 18
May 2013. Differently stated, was there basis for the proclamation of petitioner on 18
May 2013?
Dates and events indicate that there was no basis for the proclamation of petitioner on
18 May 2013. Without the proclamation, the petitioner's oath of office is likewise
baseless, and without a precedent oath of office, there can be no valid and effective
assumption of office.
We have clearly stated in our Resolution of 5 June 2013 that:
"More importantly, we cannot disregard a fact basic in this controversy – that before the
proclamation of petitioner on 18 May 2013, the COMELEC En Banc had already finally
disposed of the issue of petitioner's lack of Filipino citizenship and residency via its
Resolution dated 14 May 2013. After 14 May 2013, there was, before the COMELEC, no
longer any pending case on petitioner's qualifications to run for the position of Member
of the House of Representatives. x x x As the point has obviously been missed by the
petitioner who continues to argue on the basis of her due proclamation, the instant
motion gives us the opportunity to highlight the undeniable fact we here repeat that the
proclamation which petitioner secured on 18 May 2013 was WITHOUT ANY BASIS.
1. Four (4) days BEFORE the 18 May 2013 proclamation, or on 14 May 2013,
the COMELEC En Banc has already denied for lack o merit the petitioner's
motion to reconsider the decision o the COMELEC First Division that
CANCELLED petitioner's certificate of candidacy.
2. On 18 May 2013, there was already a standing and unquestioned cancellation
of petitioner's certificate o candidacy which cancellation is a definite bar to her
proclamation. On 18 May 2003, that bar has not been removed, there was not
even any attempt to remove it.
3. The COMELEC Rules indicate the manner by which the impediment to
proclamation may be removed. Rule 18, Section 13 (b) provides:
"(b) In Special Actions and Special Cases a decision or resolution of the
Commission En Bane shall become final and executory after five (5) days from
its promulgation unless restrained by the Supreme Court."
Within that five (5 days, petitioner had the opportunity to go to the Supreme
Court for a restraining order that will remove the immediate effect of the En
Banc cancellation of her certificate of candidacy. Within the five (5) days the
Supreme Court may remove the barrier to, and thus allow, the proclamation of
petitioner. That did not happen. Petitioner did not move to have it happen.
It is error to argue that the five days should pass before the petitioner is barred
from being proclaimed. Petitioner lost in the COMELEC as of respondent. Her
certificate of candidacy has been ordered cancelled. She could not be
proclaimed because there was a final finding against her by the COMELEC. 3 She
needed a restraining order from the Supreme Court to avoid the final finding.
After the five days when the decision adverse to her became executory, the
need for Supreme Court intervention became even more imperative. She would
have to base her recourse on the position that the COMELEC committed grave
abuse of discretion in cancelling her certificate of candidacy and that a
restraining order, which would allow her proclamation, will have to be based
on irreparable injury and demonstrated possibility of grave abuse of discretion
on the part of the COMELEC. In this case, before and after the 18 May 2013
133
 proclamation, there was not even an attempt at the legal remedy, clearly
available to her, to permit her proclamation. What petitioner did was to "take
the law into her hands" and secure a proclamation in complete disregard of the
COMELEC En Bane decision that was final on 14 May 2013 and final and
executory five days thereafter.
4. There is a reason why no mention about notice was made in Section 13(b) of
Rule 18 in the provision that the COMELEC En Bane or decision "SHALL become
FINAL AND EXECUTORY after five days from its promulgation unless restrained
by the Supreme Court." On its own the COMELEC En Bane decision,
unrestrained, moves from promulgation into becoming final and executory.
This is so because in Section 5 of Rule 18 it is stated:
Section 5. Promulgation. -The promulgation of a decision or resolutions of the
Commission or a division shall be made on a date previously fixed, of which notice shall
be served in advance upon the parties or their attorneys personally or by registered mail
or by telegram.
5. Apart from the presumed notice of the COMELEC En Bane decision on the
very date of its promulgation on 14 May 2013, petitioner admitted in her
petition before us that she in fact received a copy of the decision on 16 May 20
13.4 On that date, she had absolutely no reason why she would disregard the
available legal way to remove the restraint on her proclamation, and, more than
that, to in fact secure a proclamation two days thereafter. The utter disregard of
a final COMELEC En Bane decision and of the Rule stating that her proclamation
at that point MUST be on permission by the Supreme Court is even indicative of
bad faith on the part of the petitioner.
6. The indicant is magnified by the fact that petitioner would use her tainted
proclamation as the very reason to support her argument that she could no
longer be reached by the jurisdiction of the COMELEC; and that it is the HRET
that has exclusive jurisdiction over the issue of her qualifications for office.
7. The suggestions of bad faith aside, petitioner is in error in the conclusion at
which she directs, as well as in her objective quite obvious from such
conclusion. It is with her procured proclamation that petitioner nullifies the
COMELEC's decision, by Division and then En Banc and pre-empts any Supreme
Court action on the COMELEC decision. In other words, petitioner repudiates by
her proclamation all administrative and judicial actions thereon, past and
present. And by her proclamation, she claims as acquired the congressional seat
that she sought to be a candidate for. As already shown, the reasons that lead to
the impermissibility of the objective are clear. She cannot sit as Member of the
House of Representatives by virtue of a baseless proclamation knowingly taken,
with knowledge of the existing legal impediment.
8. Petitioner, therefore, is in error when she posits that at present it is the HRET
which has exclusive jurisdiction over her qualifications as a Member of the
House of Representatives. That the HRET is the sole judge of all contests
relating to the election, returns and qualifications of the Members of the House
of Representatives is a written constitutional provision. It is, however
unavailable to petitioner because she is NOT a Member of the House at present.
The COMELEC never ordered her proclamation as the rightful winner in the
election for such membership.5 Indeed, the action for cancellation of
petitioner's certificate of candidacy, the decision in which is the indispensable
determinant of the right of petitioner to proclamation, was correctly lodged in
the COMELEC, was completely and fully litigated in the COMELEC and was
finally decided by the COMELEC. On and after 14 May 2013, there was nothing
left for the COMELEC to do to decide the case. The decision sealed the
proceedings in the COMELEC regarding petitioner's ineligibility as a candidate
for Representative of Marinduque. The decision erected the bar to petitioner's
proclamation. The bar remained when no restraining order was obtained by
petitioner from the Supreme Court within five days from 14 May 2013.
9. When petitioner finally went to the Supreme Court on 10 June 2013
questioning the COMELEC First Division ruling and the 14 May 2013 COMELEC
En Bane decision, her baseless proclamation on 18 May 2013 did not by that
fact of promulgation alone become valid and legal. A decision favorable to her
by the Supreme Court regarding the decision of the COMELEC En Bane on her
certificate of candidacy was indispensably needed, not to legalize her
proclamation on 18 May 2013 but to authorize a proclamation with the
Supreme Court decision as basis.
10. The recourse taken on 25 June 2013 in the form of an original and special
civil action for a writ of Certiorari through Rule 64 of the Rules of Court is
circumscribed by set rules and principles.
a) The special action before the COMELEC which was a Petition to
Cancel Certificate of Candidacy was a SUMMARY PROCEEDING or one
heard summarily. The nature of the proceedings is best indicated by
the COMELEC Rule on Special Actions, Rule 23, Section 4 of which
states that the Commission may designate any of its officials who are
members of the Philippine Bar to hear the case and to receive
evidence. COMELEC Rule 17 further provides in Section 3 that when
the proceedings are authorized to be summary, in lieu of oral
testimonies, the parties may, after due notice, be required to submit
their position paper together with affidavits, counter-affidavits and
other documentary evidence; x x x and that this provision shall
likewise apply to cases where the hearing and reception of evidence
are delegated by the Commission or the Division to any of its officials
x x x.
b) The special and civil action of Certiorari is defined in the Rules of
Court thus:
134
When any tribunal, board or officer exercising judicial or quasi-judicial functions has
acted without or in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy,
and adequate remedy in the ordinary course of law, a person aggrieved thereby may file
a verified petition in the proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such tribunal, board or
officer, and granting such incidental reliefs as law and justice may require.
The accepted definition of grave abuse of discretion is: a capricious and whimsical
exercise of judgment so patent and gross as to amount to an evasion of a positive duty or
a virtual refusal to perform a duty enjoined by law, as where the power is exercised in an
arbitrary and despotic manner because of passion or hostility.6
It is the category of the special action below providing the procedural leeway in the
exercise of the COMELEC summary jurisdiction over the case, in conjunction with the
limits of the Supreme Court's authority over the FINAL COMELEC ruling that is brought
before it, that defines the way petitioner's submission before the Court should be
adjudicated. Thus further explained, the disposition of 25 June 2013 is here repeated for
affirmation:
Petitioner alleges that the COMELEC gravely abused its discretion when it took
cognizance of "newly-discovered evidence" without the same having been testified on
and offered and admitted in evidence. She assails the admission of the blog article of Eli
Obligacion as hearsay and the photocopy of the Certification from the Bureau of
Immigration. She likewise contends that there was a violation of her right to due process
of law because she was not given the opportunity to question and present controverting
evidence.
Her contentions are incorrect.
It must be emphasized that the COMELEC is not bound to strictly adhere to the technical
rules of procedure in the presentation of evidence. Under Section 2 of Rule I the
COMELEC Rules of Procedure shall be liberally construed in order x x x to achieve just,
expeditious and inexpensive determination and disposition of every action and
proceeding brought before the Commission. In view of the fact that the proceedings in a
petition to deny due course or to cancel certificate of candidacy are summary in nature,
then the newly discovered evidence was properly admitted by respondent COMELEC.
Furthermore, there was no denial of due process in the case at bar as petitioner was
given every opportunity to argue her case before the COMELEC. From 10 October 2012
when Tan's petition was filed up to 27 March 2013 when the First Division rendered its
resolution, petitioner had a period of five (5) months to adduce evidence. Unfortunately,
she did not avail herself of the opportunity given her.
Also, in administrative proceedings, procedural due process only requires that the party
be given the opportunity or right to be heard. As held in the case of Sahali v. COMELEC:
The petitioners should be reminded that due process does not necessarily mean or
require a hearing, but simply an opportunity or right to be heard. One may be heard, not
solely by verbal presentation but also, and perhaps many times more creditably and
predictable than oral argument, through pleadings. In administrative proceedings
moreover, technical rules of procedure and evidence are not strictly applied;
administrative process cannot be fully equated with due process in its strict judicial
sense. Indeed, deprivation of due process cannot be successfully invoked where a party
was given the chance to be he rd on his motion for reconsideration. (Emphasis supplied)
As to the ruling that petitioner s ineligible to run for office on the ground of citizenship,
the COMELEC First Division, discoursed as follows:
"x x x for respondent to reacquire her Filipino citizenship and become eligible for public
office the law requires that she must have accomplished the following acts: (1) take the
oath of allegiance to the Republic of the Philippines before the Consul-General of the
Philippine Consulate in the USA; and (2) make a personal and sworn renunciation of her
American citizenship before any public officer authorized to administer an oath.
In the case at bar, there s no showing that respondent complied with the aforesaid
requirements. Early on in the proceeding, respondent hammered on petitioner's lack of
proof regarding her American citizenship, contending that it is petitioner's burden to
present a case. She, however, specifically denied that she has become either a permanent
resident or naturalized citizen of the USA.
Due to petitioner's submission of newly-discovered evidence thru a Manifestation dated
February 7, 2013, however, establishing the fact that respondent is a holder of an
American passport which she continues to use until June 30 2012 petitioner was able to
substantiate his allegations. The burden now shifts to respondent to present substantial
evidence to prove otherwise. This, the respondent utterly failed to do, leading to the
conclusion inevitable that respondent falsely misrepresented in her COC that she is a
natural-born Filipino citizen. Unless and until she can establish that she had availed of
the privileges of RA 9225 by becoming a dual Filipino-American citizen, and thereafter,
made a valid sworn renunciation of her American citizenship, she remains to be an
American citizen and is, therefore, ineligible to run for and hold any elective public office
in the Philippines." (Emphasis in the original.)
Let us look into the events that led to this petition: In moving for the cancellation of
petitioner's COC, respondent submitted records of the Bureau of Immigration showing
that petitioner is a holder of a US passport, and that her status is that of a balikbayan. At
this point, the burden of proof shifted to petitioner, imposing upon her the duty to prove
that she is a natural-born Filipino citizen and has not lost the same, or that she has re-
acquired such status in accordance with the provisions of R.A. No. 9225. Aside from the
bare allegation that she is a natural-born citizen, however, petitioner submitted no proof
to support such contention. Neither did she submit any proof as to the inapplicability of
R.A. No. 9225 to her.
135
Notably, in her Motion for Reconsideration before the COMELEC En Bane, petitioner
admitted that she is a holder of a US passport, but she averred that she is only a dual
Filipino-American citizen, thus the requirements of R.A. No. 9225 do not apply to her.
Still, attached to the said motion is an Affidavit of Renunciation of Foreign Citizenship
dated 24 September 2012. Petitioner explains that she attached said Affidavit if only to
show her desire and zeal to serve the people and to comply with rules, even as a
superfluity. We cannot, however, subscribe to petitioner's explanation. If petitioner
executed said Affidavit if only to comply with the rules, then it is an admission that R.A.
No. 9225 applies to her. Petitioner cannot claim that she executed it to address the
observations by the COMELEC as the assailed Resolutions were promulgated only in
2013, while the Affidavit was executed in September 2012.1âwphi1
Moreover, in the present petition, petitioner added a footnote to her oath of office as
Provincial Administrator, to this effect: This does not mean that Petitioner did not, prior
to her taking her oath of office as Provincial Administrator, take her oath of allegiance for
purposes of re-acquisition of natural-born Filipino status, which she reserves to present
in the proper proceeding. The reference to the taking of oath of office is in order to make
reference to what is already part of the records and evidence in the present case and to
avoid injecting into the records evidence on matters of fact that was not previously
passed upon by Respondent COMELEC. This statement raises a lot of questions -Did
petitioner execute an oath of allegiance for re-acquisition of natural-born Filipino status?
If she did, why did she not present it at the earliest opportunity before the COMELEC?
And is this an admission that she has indeed lost her natural-born Filipino status?
To cover-up her apparent lack of an oath of allegiance as required by R.A. No. 9225,
petitioner contends that, since she took her oath of allegiance in connection with her
appointment as Provincial Administrator of Marinduque, she is deemed to have
reacquired her status as a natural-born Filipino citizen.
This contention is misplaced. For one, this issue is being presented for the first time
before this Court, as it was never raised before the COMELEC. For another, said oath of
allegiance cannot be considered compliance with Sec. 3 of R.A. No. 9225 as certain
requirements have to be met as prescribed by Memorandum Circular No. AFF-04-01,
otherwise known as the Rules Governing Philippine Citizenship under R.A. No. 9225 and
Memorandum Circular No. AFF-05-002 (Revised Rules) and Administrative Order No. 91,
Series of 2004 issued by the Bureau of Immigration. Thus, petitioner s oath of office as
Provincial Administrator cannot be considered as the oath of allegiance in compliance
with R.A. No. 9225.
These circumstances, taken together, show that a doubt was clearly cast on petitioner s
citizenship. Petitioner, however, failed to clear such doubt.7
11. It may need pointing out that there is no conflict between the COMELEC and
the HRET insofar as the petitioner s being a Representative of Marinduque is
concerned. The COMELEC covers the matter of petitioner s certificate of
candidacy, and its due course or its cancellation, which are the pivotal
conclusions that determines who can be legally proclaimed. The matter can go
to the Supreme Court but not as a continuation of the proceedings in the
COMELEC, which has in fact ended, but on an original action before the Court
grounded on more than mere error of judgment but on error of jurisdiction for
grave abuse of discretion. At and after the COMELEC En Bane decision, there is
no longer any certificate cancellation matter than can go to the HRET. In that
sense, the HRET s constitutional authority opens, over the qualification of its
MEMBER, who becomes so only upon a duly and legally based proclamation,
the first and unavoidable step towards such membership. The HRET
jurisdiction over the qualification of the Member of the House of
Representatives is original and exclusive, and as such, proceeds de novo
unhampered by the proceedings in the COMELEC which, as just stated has been
terminated. The HRET proceedings is a regular, not summary, proceeding. It
will determine who should be the Member of the House. It must be made clear
though, at the risk of repetitiveness, that no hiatus occurs in the representation
of Marinduque in the House because there is such a representative who shall sit
as the HRET proceedings are had till termination. Such representative is the
duly proclaimed winner resulting from the terminated case of cancellation of
certificate of candidacy of petitioner. The petitioner is not, cannot, be that
representative. And this, all in all, is the crux of the dispute between the parties:
who shall sit in the House in representation of Marinduque, while there is yet
no HRET decision on the qualifications of the Member.
12. As finale, and as explained in the discussion just done, no unwarranted
haste can be attributed, as the dissent does so, to the resolution of this petition
promulgated on 25 June 2013. It was not done to prevent the exercise by the
HRET of its constitutional duty. Quite the contrary, the speedy resolution of the
petition was done to pave the way for the unimpeded performance by the
HRET of its constitutional role. The petitioner can very well invoke the
authority of the HRET, but not as a sitting member of the House of
Representatives.8
The inhibition of this ponente was moved for. The reason for the denial of the motion
was contained in a letter to the members of the Court on the understanding that the
matter was internal to the Court. The ponente now seeks the Courts approval to have the
explanation published as it is now appended to this Resolution.
The motion to withdraw petition filed AFTER the Court has acted thereon, is noted. It
may well be in order to remind petitioner that jurisdiction, once acquired, is not lost
upon the instance of the parties, but continues until the case is terminated. 9 When
petitioner filed her Petition for Certiorari jurisdiction vested in the Court and, in fact, the
Court exercised such jurisdiction when it acted on the petition. Such jurisdiction cannot
be lost by the unilateral withdrawal of the petition by petitioner.
More importantly, the Resolution dated 25 June 2013, being a valid court issuance,
undoubtedly has legal consequences. Petitioner cannot, by the mere expediency of
withdrawing the petition, negative and nullify the Court's Resolution and its legal effects.
At this point, we counsel petitioner against trifling with court processes. Having sought
the jurisdiction of the Supreme Court, petitioner cannot withdraw her petition to erase
136
the ruling adverse to her interests. Obviously, she cannot, as she designed below, subject
to her predilections the supremacy of the law.

WHEREFORE, The Motion for Reconsideration is DENIED. The dismissal of the petition is
affirmed. Entry of Judgment is ordered.

SO ORDERED.

137
G.R. No. 201796 January 15, 2013
GOVERNOR SADIKUL A. SAHALI and VICE-GOVERNOR RUBY M. SAHALl, Petitioners,
vs.
COMMISSION ON ELECTIONS (FIRST DIVISION), RASHIDIN H. MA TBA and JILKASI J.
USMAN,Respondents.
RESOLUTION
REYES, J.:
This is a Petition for Certiorari under Rule 65 in relation to Rule 64 of the Rules of Court
filed by Sadikul A. Sahali (Sadikul) and Ruby M. Sahali (Ruby), assailing the Order1 dated
May 3, 2012 issued by the First Division of the Commission on Elections (COMELEC) in
EPC Nos. 2010-76 and 2010-77.
During the May 10, 2010 elections, Sadikul and private respondent Rashidin H. Matba
(Matba) were two of the four candidates who ran for the position of governor in the
Province of Tawi-Tawi while Ruby and private respondent Jilkasi J. Usman (Usman) ran
for the position of Vice-Governor.2
On May 14, 2010, the Provincial Board of Canvassers (PBOC) proclaimed petitioners
Sadikul and Ruby as the duly elected governor and vice-governor, respectively, of the
province of Tawi-Tawi. In the statement of votes issued by the PBOC, petitioner Sadikul
garnered a total of 59,417 as against private respondent Matba’s 56,013,3 while
petitioner Ruby prevailed over private respondent Usman, with votes of 61,005 and
45,127, respectively.4
Alleging that the said elections in the Province of Tawi-Tawi were attended by massive
and wide-scale irregularities, Matba filed an Election Protest Ad Cautelam5 with the
COMELEC. Matba contested the results in 39 out of 282 clustered precincts that
functioned in the province of Tawi-Tawi. The said election protest filed by Matba was
raffled to the First Division of the COMELEC and was docketed as EPC No. 2010-76.
Usman also filed an Election Protest Ad Cautelam6 with the COMELEC, contesting the
results in 39 out of the 282 clustered precincts in the Province of Tawi-Tawi. Usman’s
election protest was likewise raffled to the First Division of the COMELEC and was
docketed as EPC No. 2010-77. The respective election protests filed by private
respondents Matba and Usman prayed, inter alia, for the technical examination of the
ballots, Election Day Computerized Voters List (EDCVL), the Voters Registration Record
(VRR), and the Book of Voters in all the protested precincts of the province of Tawi-
Tawi.7
After Sadikul filed his Answer8 with counter-protest, a preliminary conference was
conducted by the COMELEC in EPC No. 2010-76. On November 24, 2011, the COMELEC
issued a Preliminary Conference Order9 in EPC No. 2010-76. Thereafter, the COMELEC
issued an Order10 dated November 23, 2011 which directed the retrieval and delivery of
the 39 ballot boxes containing the ballots in the 39 protested clustered precincts as well
as the election paraphernalia therein.
Meanwhile, in EPC No. 2010-77, the COMELEC, after Ruby’s filing of her Answer11 with
counter-protest, conducted a preliminary conference on January 4, 2012. On January 20,
2012, the COMELEC issued its Preliminary Conference Order12 in the said case.
On January 17, 2012, the COMELEC resolved to consolidate EPC No. 2010-76 and EPC No.
2010-77.
On February 9, 2012, the retrieval and delivery of the ballot boxes and other election
documents from the 39 protested precincts were completed. On February 20, 2012, the
COMELEC First Division ordered the recount of the contested ballots, directing the
creation of five recount committees for the said purpose.13
On February 24, 2012, Matba and Usman filed a Manifestation and Ex-Parte Motion (Re:
Order Dated 20 February 2012), requesting that they be allowed to secure photocopies
of the contested ballots. Further, they moved for a technical examination of the EDCVL,
the VRR and the Book of Voters for the contested precincts in the province of Tawi-Tawi
by comparing the signature and the thumbmarks appearing on the EDCVL as against
those appearing on the VRRs and the Book of Voters.14
Private respondents Matba and Usman averred that, instead of recounting the ballots in
the pilot precincts constituting 20% of the protested precincts, the COMELEC First
Division should order the technical examination of the said election paraphernalia from
the 38 clustered precincts that are the subject of both election protests filed by them.
On March 5, 2012, the COMELEC First Division issued an Order15 which granted the said
ex-parte motion filed by Matba and Usman. Thus, the COMELEC First Division directed
its Election Records and Statistics Department (ERSD) to conduct a technical
examination of the said election paraphernalia by comparing the signature and
thumbmarks appearing on the EDCVL as against those appearing on the VRRs and the
Book of Voters.
On March 9, 2012, Sadikul and Ruby jointly filed with the COMELEC First Division a
Strong Manifestation of Grave Concern and Motion for Reconsideration (Of the Order
Dated March 5, 2012)16. They asserted that the March 5, 2012 Order issued by the
COMELEC First Division, insofar as it directed the technical examination of the EDCVL,
the VRR and the Book of Voters, should be reversed on account of the following: first, the
said Order was issued without due process since the COMELEC First Division did not
allow them to oppose the said ex-parte motion; second, the COMELEC First Division
cannot just order a technical examination in the absence of published rules on the
matter; and third, the COMELEC First Division could not just examine the said election
paraphernalia without violating the Precautionary Protection Order issued by the
Presidential Electoral Tribunal in the protest case between Manuel Roxas and Jejomar
Binay.
138
On March 15, 2012, Matba and Usman filed with the COMELEC First Division their
counter-manifestation17 to the said manifestation and motion for reconsideration filed
by Sadikul and Ruby. They asserted therein that Sadikul and Ruby were not deprived of
due process when the COMELEC First Division issued its March 15, 2012 Order. They
averred that their respective election protests and the Preliminary Conference Orders
issued by the COMELEC First Division all indicated that they would move for the
technical examination of the said election paraphernalia. Nonetheless, they pointed out
that Sadikul and Ruby failed to express any objection to their intended motion for
technical examination of the said election paraphernalia.
Further, Matba and Usman claimed that said motion for technical examination is not a
contentious motion since the intended technical examination would not prejudice the
rights of Sadikul and Ruby considering that the same only included the EDCVL, the VRR
and the Book of Voters, and not the ballots.
On March 23, 2012, Sadikul and Ruby then filed with the COMELEC First Division their
Reply18 to the counter-manifestation filed by Matba and Usman. In turn, Matba and
Usman filed with the COMELEC First Division their Rejoinder19 on March 30, 2012. On
May 3, 2012, the COMELEC First Division issued the herein assailed Order20which denied
the said motion for reconsideration of the March 5, 2012 Order filed by Sadikul and
Ruby. The COMELEC First Division maintained that Sadikul and Ruby were not deprived
of due process. It pointed out that the intention of Matba and Usman to ask for the
technical examination of the said election documents had always been apparent from the
filing of their separate election protests, preliminary conference briefs and their
intention to offer as evidence all election documents and paraphernalia such as the
EDCVL, VRRs and Book of Voters on the protested precincts.
Further, the COMELEC First Division opined that the insinuation asserted by Sadikul and
Ruby that there are no published rules governing the technical examination of election
paraphernalia is untenable. It pointed out that the technical examination of election
paraphernalia is governed by Section 1, Rule 18 of COMELEC Resolution No. 8804. As to
the Precautionary Protection Order issued in the protest case between Manuel Roxas and
Jejomar Binay, the COMELEC First Division averred that it would request a clearance
from the Presidential Electoral Tribunal for the conduct of said technical examination.
Hence, petitioners Sadikul and Ruby filed the instant petition with this Court essentially
asserting that the COMELEC First Division committed grave abuse of discretion
amounting to lack or excess of jurisdiction when: first, it did not give them the
opportunity to oppose the motion for technical examination filed by Matba and Usman;
and second, it ordered the technical examination of the said election paraphernalia
despite the lack of sanction and published rules governing such examination.
The petition is denied.
The petitioners’ resort to the extraordinary remedy of certiorari to assail an
interlocutory order issued by the COMELEC First Division is amiss. "A party aggrieved by
an interlocutory order issued by a Division of the COMELEC in an election protest may
not directly assail the order in this Court through a special civil action for certiorari. The
remedy is to seek the review of the interlocutory order during the appeal of the decision
of the Division in due course."21
Under the Constitution, the power of this Court to review election cases falling within the
original exclusive jurisdiction of the COMELEC only extends to final decisions or
resolutions of the COMELEC en banc, not to interlocutory orders issued by a Division
thereof. Section 7, Article IX of the Constitution mandates:
Sec. 7. Each Commission shall decide by a majority vote of all its Members any case or
matter brought before it within sixty days from the date of its submission for decision or
resolution. A case or matter is deemed submitted for decision or resolution upon the
filing of the last pleading, brief, or memorandum required by the rules of the Commission
or by the Commission itself. Unless otherwise provided by this Constitution or by law,
any decision, order, or ruling of each Commission may be brought to the Supreme Court
on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.
(Emphasis ours)
In Ambil, Jr. v. COMELEC,22 this Court elucidated on the import of the said provision in
this wise:
We have interpreted this provision to mean final orders, rulings and decisions of the
COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers." This
decision must be a final decision or resolution of the Comelec en banc, not of a division,
certainly not an interlocutory order of a division. The Supreme Court has no power to
review via certiorari, an interlocutory order or even a final resolution of a Division of the
Commission on Elections.
The mode by which a decision, order or ruling of the Comelec en banc may be elevated to
the Supreme Court is by the special civil action of certiorari under Rule 65 of the 1964
Revised Rules of Court, now expressly provided in Rule 64, 1997 Rules of Civil
Procedure, as amended.
Rule 65, Section 1, 1997 Rules of Civil Procedure, as amended, requires that there be no
appeal, or any plain, speedy and adequate remedy in the ordinary course of law. A
motion for reconsideration is a plain and adequate remedy provided by law. Failure to
abide by this procedural requirement constitutes a ground for dismissal of the petition.
In like manner, a decision, order or resolution of a division of the Comelec must be
reviewed by the Comelec en banc via a motion for reconsideration before the final en
banc decision may be brought to the Supreme Court on certiorari. The pre-requisite
filing of a motion for reconsideration is mandatory. x x x.23 (Citations omitted and
emphasis supplied)
Here, the Orders dated March 5, 2012 and May 3, 2012 issued by the First Division of the
COMELEC were merely interlocutory orders since they only disposed of an incident in
the main case i.e. the propriety of the technical examination of the said election
139
paraphernalia. Thus, the proper recourse for the petitioners is to await the decision of
the COMELEC First Division in the election protests filed by Matba and Usman, and
should they be aggrieved thereby, to appeal the same to the COMELEC en banc by filing a
motion for reconsideration.24
The petitioners, citing the case of Kho v. COMELEC,25 nevertheless insist that this Court
may take cognizance of the instant Petition for Certiorari since the COMELEC en banc is
not the proper forum in which the said interlocutory orders issued by the COMELEC First
Division can be reviewed.
The petitioners’ reliance on Kho is misplaced. In Kho, the issue was whether a Division of
the COMELEC may admit an answer with counter-protest which was filed beyond the
reglementary period. This Court held that the COMELEC First Division gravely abused its
discretion when it admitted the answer with counter-protest that was belatedly filed.
On the propriety of a filing a Petition for Certiorari with this Court sans any motion for
reconsideration having been filed with the COMELEC en banc, it was held therein that, as
an exception, direct resort to this Court via certiorari assailing an interlocutory order
may be allowed when a Division of the COMELEC commits grave abuse of discretion
tantamount to lack of jurisdiction. Thus:
As to the issue of whether or not the case should be referred to the COMELEC en banc,
this Court finds the respondent COMELEC First Division correct when it held in its order
dated February 28, 1996 that no final decision, resolution or order has yet been made
which will necessitate the elevation of the case and its records to the Commission en
banc. No less than the Constitution requires that the election cases must be heard and
decided first in division and any motion for reconsideration of decisions shall be decided
by the commission en banc. Apparently, the orders dated July 26, 1995, November 15
1995 and February 28, 1996 and the other orders relating to the admission of the
answer with counter-protest are issuances of a Commission in division and are all
interlocutory orders because they merely rule upon an incidental issue regarding the
admission of Espinosa’s answer with counter-protest and do not terminate or finally
dispose of the case as they leave something to be done before it is finally decided on the
merits. In such a situation, the rule is clear that the authority to resolve incidental
matters of a case pending in a division, like the questioned interlocutory orders, falls on
the division itself, and not on the Commission en banc. x x x
xxxx
Furthermore, a look at Section 2, Rule 3 of the COMELEC Rules of Procedure confirms
that the subject case does not fall on any of the instances over which the Commission en
banc can take cognizance of. It reads as follows:
"Section 2. The Commission en banc. - The Commission shall sit en banc in cases
hereinafter specifically provided, or in pre-proclamation cases upon a vote of a majority
of the members of a Commission, or in all other cases where a division is not authorized
to act, or where, upon a unanimous vote of all the members of a Division, an
interlocutory matter or issue relative to an action or proceeding before it is decided to be
referred to the Commission en banc." In the instant case, it does not appear that the
subject controversy is one of the cases specifically provided under the COMELEC Rules of
Procedure in which the Commission may sit en banc. Neither is it shown that the present
controversy a case where a division is not authorized to act nor a situation wherein the
members of the First Division unanimously voted to refer the subject case to the
Commission en banc. Clearly, the Commission en banc, under the circumstances shown
above, can not be the proper forum which the matter concerning the assailed
interlocutory orders can be referred to.
In a situation such as this where the Commission in division committed grave abuse of
discretion or acted without or in excess of jurisdiction in issuing interlocutory orders
relative to an action pending before it and the controversy did not fall under any of the
instances mentioned in section 2, Rule 3 of the COMELEC Rules of Procedure, the remedy
of the aggrieved party is not to refer the controversy to the Commission en banc as this is
not permissible under its present rules but to elevate it to this Court via a petition for
certiorari under Rule 65 of the Rules of Court.26(Citations omitted and emphasis ours)
Thus, exceptionally, this Court may take cognizance of a certiorari action directed against
an interlocutory order issued by a Division of the COMELEC when the following
circumstances are present: first, the order was issued without jurisdiction or in excess of
jurisdiction or with grave abuse of discretion tantamount to lack or excess of
jurisdiction; and second, under the COMELEC Rules of Procedure, the subject of the
controversy is a matter which (1) the COMELEC en banc may not sit and consider or (2) a
Division is not authorized to act or (3) the members of the Division unanimously vote to
refer to the COMELEC en banc.27
The exception in Kho does not apply in the instant case since the COMELEC First Division
is authorized to act on the ex-parte motion for the technical examination of the said
election paraphernalia. The COMELEC First Division has already acquired jurisdiction
over the election protests filed by Matba and Usman. Concomitant with such acquisition
of jurisdiction is the authority of the COMELEC First Division to rule on the issues raised
by the parties and all incidents arising therefrom, including the authority to act on the
ex-parte motion for technical examination of said election paraphernalia.
In Kho, the COMELEC First Division did not acquire jurisdiction on the answer with
counter-protest since it was filed beyond the reglementary period and, consequently, did
not have any authority to act on the issues raised therein and all incidents arising
therefrom. Thus:
It is worthy to note that as early as in the case of Arrieta vs. Rodriguez, this Court had
firmly settled the rule that the counter-protest must be filed within the period provided
by law, otherwise, the forum loses its jurisdiction to entertain the belatedly filed counter-
protest. In the case at bar, there is no question that the answer with counter-protest of
Espinosa was filed outside the reglementary period provided for by law. As such, the
COMELEC First Division has no jurisdictional authority to entertain the belated answer
with counter-protest much less pass upon and decide the issues raised therein. It follows
therefore that the order of July 26, 1995 which pertains to the admission of the answer
140
with counter-protest of Espinosa as well as the other consequent orders implementing
the order of admission issued by the COMELEC First Division are void for having been
issued without jurisdiction. Even if petitioner Kho did not file a motion for
reconsideration of the order dated July 26, 1995 admitting the answer with counter-
protest, the jurisdictional infirmity, brought about by the late filing of the answer to the
protest, persist and can not be cured by the omission on the part of the protestee-
petitioner to seek a reconsideration of the order dated July 26, 1995.28 (Citation omitted
and emphasis ours)
Even if this Court is to disregard the procedural lapse committed by the petitioners and
rule on the issues raised, the instant petition would still be denied.
The petitioners claim that they were denied due process when the COMELEC granted the
motion for technical examination filed by Matba and Usman without giving them the
opportunity to oppose the said motion.
This Court does not agree.
It bears stressing that the COMELEC, in election disputes, is not duty-bound to notify and
direct a party therein to file an opposition to a motion filed by the other party. It is
incumbent upon the party concerned, if he/she deems it necessary, to file an opposition
to a motion within five days from receipt of a copy of the same without awaiting for the
COMELEC’s directive to do so. On this score, Section 3, Rule 9 of COMELEC Resolution No.
880429 clearly provides that:
Sec. 3. No hearings on motions. – Motions shall not be set for hearing unless the
Commission directs otherwise. Oral argument in support thereof shall be allowed only
upon the discretion of the Commission. The adverse party may file opposition five days
from receipt of the motion, upon the expiration of which such motion is deemed
submitted for resolution. The Commission shall resolve the motion within five days.
(Emphasis ours)
If the party concerned, despite receipt of a copy of the motion that was filed with the
COMELEC, did not file an opposition to the said motion, the motion would be deemed
submitted for resolution upon the expiration of the period to file an opposition thereto.
It should be stressed that one of the factors that should be considered in election
protests is expediency. Proceedings in election protests are special and expeditious and
the early resolution of such cases should not be hampered by any unnecessary
observance of procedural rules.30 "The proceedings should not be encumbered by delays.
All of these are because the term of elective office is likewise short. There is the personal
stake of the contestants which generates feuds and discords. Above all is the public
interest. Title to public elective office must not be left long under cloud. Efficiency of
public administration should not be impaired. It is thus understandable that pitfalls
which may retard the determination of election contests should be avoided."31
Here, the petitioners did not file an opposition to the said motion for technical
examination that was filed by Matba and Usman on February 24, 2012. It was only after
the COMELEC First Division issued its March 5, 2012 Order that the petitioners decided
to register their opposition to the intended technical examination, albeit in the form of a
motion for reconsideration of the said Order. Contrary to the petitioners’ claim, Section
3, Rule 9 of COMELEC Resolution No. 8804 gave them the opportunity to raise their
objections to the said motion for technical examination. However, for reasons known
only to them, petitioners did not file any opposition to the said motion. Accordingly, it is
the petitioners themselves and not the COMELEC First Division who should be faulted for
their predicament.
Further, this Court cannot see how due process was denied to the petitioners in the
issuance of the COMELEC First Division’s March 5, 2012 Order. The petitioners were able
to present their opposition to the said motion for technical examination in their
manifestation and motion for reconsideration which they filed with the COMELEC First
Division on March 9, 2012. Indeed, the petitioners’ objections to the technical
examination of the said election paraphernalia were exhaustively discussed by the
COMELEC First Division in its May 3, 2012 Resolution. Having filed a motion for
reconsideration of the COMELEC First Division’s March 5, 2012 Order, the petitioners’
claim of denial of due process is clearly unfounded.
The petitioners should be reminded that due process does not necessarily mean or
require a hearing, but simply an opportunity or right to be heard. One may be heard, not
solely by verbal presentation but also, and perhaps many times more creditably and
predictable than oral argument, through pleadings. In administrative proceedings
moreover, technical rules of procedure and evidence are not strictly applied;
administrative process cannot be fully equated with due process in its strict judicial
sense. Indeed, deprivation of due process cannot be successfully invoked where a party
was given the chance to be heard on his motion for reconsideration.32
Anent the issue on the technical examination of election paraphernalia, the petitioners
contend that the COMELEC First Division cannot order a technical examination of the
said election paraphernalia since there is as yet no published rule therefor. They assert
that Section 1, Rule 18 of COMELEC Resolution No. 8804, the rule relied upon by the
COMELEC First Division in ordering a technical examination, is vague as it failed to
provide the documents that should be subjected to technical examination in election
protest cases.
At the core of the petitioners’ assertion is the power of the COMELEC First Division to
order the technical examination of the said election paraphernalia. This Court agrees
with the petitioners that Section 1, Rule 18 of COMELEC Resolution No. 8804 does not
expressly authorize the conduct of technical examination of election paraphernalia as it
merely provides for the procedure to be followed in the presentation and reception of
evidence in election protest cases.
Section 1, Rule 18 of COMELEC Resolution No. 8804, in part, reads:
141
Sec. 1. Presentation and reception of evidence; order of hearing. - The reception of
evidence on all matters or issues raised in the protest and counter-protests shall be
presented and offered in a hearing upon completion of (a) the recount of ballots, or re-
tabulation of election documents, or (b) the technical examination, if warranted.
xxxx
While Section 1, Rule 18 of COMELEC Resolution No. 8804 does not explicitly provide for
the rule on the technical examination of election paraphernalia, it does not mean,
however, that the COMELEC First Division does not have the power to order the conduct
of such technical examination.
involved and the need of dispelling the uncertainty over the real choice of the electorate.
And the court has the corresponding duty to ascertain by all means within its command
who is the real candidate elected by the people.36 (Emphasis ours)
Here, the technical examination ordered by the COMELEC First Division, by comparing
the signature and the thumbmarks appearing on the EDCVL as against those appearing
on the VRRs and the Book of Voters, is a reasonable, efficient and expeditious means of
determining the truth or falsity of the allegations of fraud and irregularities in the
canvass of the votes in the province of Tawi-Tawi. Accordingly, the COMELEC First
Division did not commit any abuse of discretion when it allowed the technical
examination of the said election paraphernalia.

The absence of a rule which specifically mandates the technical examination of the said
election paraphernalia does not mean that the COMELEC First Division is barred from
issuing an order for the conduct thereof. The power of the COMELEC First Division to
order the technical examination election paraphernalia in election protest cases stems
from its "exclusive original jurisdiction over all contest relating to the elections, returns
and qualifications of all elective regional, provincial and city officials".33
WHEREFORE, in consideration of the foregoing disquisitions, the petition is DENIED. The
assailed Order dated May 3, 2012 issued by the First Division of the Commission on
Elections in EPC Nos. 2010-76 and 2010-77 is AFFIRMED.
SO ORDERED.

Otherwise stated, the express grant of power to the COMELEC to resolve election
protests carries with it the grant of all other powers necessary, proper, or incidental to
the effective and efficient exercise of the power expressly granted. Verily, the exclusive
original jurisdiction conferred by the constitution to the COMELEC to settle said election
protests includes the authority to order a technical examination of relevant election
paraphernalia, election returns and ballots in order to determine whether fraud and
irregularities attended the canvass of the votes.

There is no gainsaying that the COMELEC is mandated by law to resolve election cases
expeditiously and promptly. "For in this specie of controversies involving the
determination of the true will of the electorate, time indeed is of paramount importance
 second to none perhaps, except for the genuine will of the majority. To be sure, an
election controversy which by its very nature touches upon the ascertainment of the
people’s choice, as gleaned from the medium of the ballot, should be resolved with
utmost dispatch, precedence and regard to due process."34

Concomitant to the COMELEC’s duty to expeditiously resolve election cases is the

authority to resort to every reasonable and efficient means available to it to settle the
controversy. The COMELEC is thus enjoined, "not only to maintain its sense of urgency in
resolving these cases, but also to explore every reasonable and feasible means of
ascertaining which candidate was duly elected."35 Thus, this Court has declared:

An election contest, unlike an ordinary civil action, is clothed with a public interest. The
purpose of an election protest is to ascertain whether the candidate proclaimed by the
board of canvassers is the lawful choice of the people. What is sought is the correction of
the canvass of votes, which was the basis of proclamation of the winning candidate. An
election contest therefore involves not only the adjudication of private and pecuniary
interests of rival candidates but paramount to their claims is the deep public concern

142
G.R. No. L-31455 February 28, 1985 P78.00 Made of steel, channel type frames with steel
sheet sidings, top cover and table; painted, 51
FILIPINAS ENGINEERING AND kilos in weight. 3 MACHINE
SHOP,
vs.
HON. JAIME N. FERRER, LINO PATAJO and CESAR MIRAFLOR as Commissioners of the Commission on Elections; COMELEC BIDDING COMMITTEE CHAIRMAN EMILIO AGUILA and
PACIENCIO BALLON, ALEJANDRO MACARANAS, TOMAS MALLONGA and ERNESTO LOMBOS; HON. JUDGE JOSE LEUTERIO of the Court of First Instance of Manila, Branch 11 and AC
MANUFACTURING COMPANY, respondents. On October 7, 1969, the respondent COMELEC Bidding Committee Chairman and
Members submitted their Memorandum on the proceedings taken pursuant to the said
Invitation to Bid which stated that Acme's bid had to be rejected because the sample it
submitted was "made of black iron sheets, painted, and therefore not rust proof or rust
CUEVAS, J.: resistant," and that, "it is also heavy — 51 kilos in weight.4 The Committee instead
recommended that Filipinas be awarded the contract to manufacture and supply the
voting booths, but that an "ocular inspection be made by all members of the Commission
Appeal by certiorari from the Order dated November 15, 1969 issued by the respondent Judge of of the then
all the Court of
samples Firstthe
before Instance of Manila,
final award Branch
be made." 5 II, DISMISSING Civil Case No. 77972 entitled
Engineering and Machine Shop vs. COMELEC, et al.", and his Honor's subsequent Order of December 20, 1969 DENYING petitioner's motion for reconsideration.

On October 9, 1969, after an ocular inspection of all the samples submitted was
In preparation for the national elections of November 11, 1969, then respondent Commissionersconducted
of the Commission on Elections
by the COMELEC (COMELEC) issued
Commissioners, an INVITATION
and after TO BID CALL
the Commissioners notedNo. 127 on Sep
that
1969 calling for the submission of sealed proposals for the manufacture and delivery of 1 1,000 units of voting
Acme booths
submitted thewith the bid,
lowest following specifications
the COMELEC issuedand descriptions,
a Resolution to wit: the contract
awarding
(for voting booths) to Acme, subject to the condition, among others, that "(Acme)
11,000 Units VOTING BOOTHS, easy to install and store. Must be of light but strong
improves the and durable
sample materials,
submitted rust proof
in such or rust
manner as itresistant
would and construction
be rust proof ormust
rust be sturdy
shall consists of two (2) voting booths with overall measurements of 150 cms. long
resistant. ... ."x6 75 cms. wide x 185 cms. high. (Each voting booth or compartment measuring 75 cm
cms. wide x 185 cms. high). The top and all sides except the front side, shall be fully covered. The front side of the unit shall be without cover to serve as its opening (entr
voting compartment shall be provided with a writing table. On October 11, 1969, the COMELEC issued Purchase Order No. 682 for the manufacture
and supply of the 11,000 Units of voting booths in favor of Acme. Acme accepted the
Each unit shall be contained in individual wooden box. terms of the purchase.

Bidders are required to submit finished sample.1 On October 16, 1969, Filipinas filed an Injunction suit with the then Court of First
Instance of Manila, docketed as Civil Case No. 77972, against herein public respondents
COMELEC
Among the seventeen bidders who submitted proposals in response to the said INVITATION were Commissioners,
the herein petitioner,chairman
Filipinos and membersand
Engineering of the Comelec
Machine Bidding
Shop, Committee,
(Filipinas for short) and
respondent, Acme Steel Manufacturing Company, (Acme for short). and private respondent Acme.

Filipinas' sealed proposal was as follows: Filipinas also applied for a writ of preliminary injunction. After hearing petitioner's said
application, the respondent Judge in an order dated October 20, 1969 denied the writ
prayed for.7
Prices Per Unit Brief Description

P128.00 Sample 2 — same in construction as sample Thereafter or more specifically on October 29, 1969, the public respondents filed a
1, except that its siding and top cover is made motion to Dismiss on the grounds that the lower court has no jurisdiction over the
of plywood (or lawanit if available). 33.5 kilos nature of suit, and that the complaint states no cause of action.8
in weight. Packed in wooden box. 2
P123.00 Same as sample 2, except that it is packed in Acting on the motion (to dismiss), the respondent Judge issued the questioned Order
corrogated carton box. dismissing Civil Case No. 77972. Filipinas' motion for reconsideration was denied for
lack of merit.

Acme's bid was

Hence, the instant appeal.

Prices Per Unit Brief Description

143
In the meantime, since no restraining order had been issued against the holding of the
national elections scheduled on November 11, 1969, Acme complied with its contract
with the COMELEC.
On this score alone, this petition should be dismissed for being moot and academic.
Considering however the nature and importance of the legal questions raised, We have
opted to discuss and resolve the same with finality.
Two main issues are raised before Us, namely:
1. Whether or not the lower court has jurisdiction to take cognizance
of a suit involving an order of the COMELEC dealing with an award of
contract arising from its invitation to bid; and
2. Whether or not Filipinas, the losing bidder, has a cause of action
under the premises against the COMELEC and Acme, the winning
bidder, to enjoin them from complying with their contract.
We resolve the first issue in the affirmative.
By constitutional mandate-
The Commission on Elections shall have exclusive charge of the
enforcement and administration of all laws relative to the conduct of
elections and shall exercise all other functions which may be
conferred upon it by law. It shall decide, save those involving the right
to vote, all administrative questions affecting elections, including the
determination of the number of location of Polling places, and the
appointment of election inspectors and of other election officials. ...
The decisions, orders and rulings of the Commission shall be subject
to review by the Supreme Court. (Section 2, Article X, 1935 Philippine
Constitution, which was then in force)
Section 5 of the Revised Election Code (Republic Act No. 180, approved June 21, 1947,
the election law then enforced) provided that, "(a) any controversy submitted to the
Commission on Elections shall be tried, heard and decided by it within fifteen days
counted from the time the corresponding petition giving rise to said controversy is filed,"
and that, "any violation of any final and executory decision, order, or ruling of the
Commission shall" constitute contempt of court Likewise, the same section provided
that, "any decision, order or ruling of the Commission on Elections may be reviewed by
the Supreme Court by writ of certiorari in accordance with the Rules of Court or with
such rules as may be promulgated by the Supreme Court.
Similarly, Section 17(5) of the Judiciary Act of 1948 (Republic Act No. 296), as amended,
provides that, "final awards, judgments, decisions or orders of the Commission on
Elections ..." fall within the exclusive jurisdiction of the Supreme Court by way of
certiorari. Section 1, Rule 43 of the 1964 Revised Rules of Court prescribed the manner
of appeal by certiorari to the Supreme Court from a final ruling or decision of the
Commission on Elections, among other administrative bodies.
Hence it has been consistently held 9 that it is the Supreme Court, not the Court of First
Instance, which has exclusive jurisdiction to review on certiorari final decisions, orders
or rulings of the COMELEC relative to the conduct of elections and enforcement of
election laws.
We are however, far from convince that an order of the COMELEC awarding a contract to
a private party, as a result of its choice among various proposals submitted in response
to its invitation to bid comes within the purview of a "final order" which is exclusively
and directly appealable to this court on certiorari. What is contemplated by the term
"final orders, rulings and decisions" of the COMELEC reviewable by certiorari by the
Supreme Court as provided by law are those rendered in actions or proceedings before
the COMELEC and taken cognizance of by the said body in the exercise of its adjudicatory
or quasi-judicial powers.
It cannot be gainsaid that the powers vested by the Constitution and the law on the
Commission on Elections may either be classified as those pertaining to its adjudicatory
or quasi-judicial functions, or those which are inherently administrative and sometimes
ministerial in character.
Thus in the case of Masangcay vs. Commission on Elections, G.R. No. L-13827, September
28, 1962 (6 SCRA 27, 2829), We held that —
... (W)e had the occasion to stress in the case of Guevarra vs.
Commission on Elections (G.R. No. L-12596, July 31, 1958) that under
the law and the constitution, the Commission on Elections has not
only the duty to enforce and administer all laws relative to the
conduct of elections, but also the power to try, hear and decide any
controversy that may be submitted to it in connection with the
elections. In this sense, We said the Commission, although it cannot be
classified as a court of justice within the meaning of the Constitution
(Sec. 30, Article VIII), for it is merely an administrative body, may,
however, exercise quasi-judicial functions insofar as controversies
that by express provision of law come under its jurisdiction. The
difficulty lies in drawing the demarcation line between the duty which
inherently is administrative in character and a function which calls for
the exercise of the quasi-judicial function of the Commission. In the
same case, we also expressed the view that when the Commission
exercises a ministerial function it cannot exercise the power to punish
for contempt because such power is inherently judicial in nature. ... .
We agree with petitioner's contention that the order of the Commission granting the
award to a bidder is not an order rendered in a legal controversy before it wherein the
parties filed their respective pleadings and presented evidence after which the
144
questioned order was issued; and that this order of the commission was issued pursuant
to its authority to enter into contracts in relation to election purposes. In short, the
COMELEC resolution awarding the contract in favor of Acme was not issued pursuant to
its quasi-judicial functions but merely as an incident of its inherent administrative
functions over the conduct of elections, and hence, the said resolution may not be
deemed as a "final order" reviewable by certiorari by the Supreme Court. Being non-
judicial in character, no contempt may be imposed by the COMELEC from said order, and
no direct and exclusive appeal by certiorari to this Tribunal lie from such order. Any
question arising from said order may be well taken in an ordinary civil action before the
trial courts.
On the second issue, We rule that Filipinas, the losing bidder, has no cause of action
under the premises to enjoin the COMELEC from pursuing its contract with Acme, the
winning bidder.
While it may be true that the lower court has the jurisdiction over controversies dealing
with the COMELEC's award of contracts, the same being purely administrative and civil
in nature, nevertheless, herein petitioner has no cause of action on the basis of the
allegations of its complaint.
Indeed, while the law requires the exercise of sound discretion on the part of
procurement authorities,10 and that the reservation to reject any or all bids may not be
used as a shield to a fraudulent award, 11 petitioner has miserably failed to prove or
substantiate the existence of malice or fraud on the part of the public respondents in the
challenged award.
The COMELEC's Invitation to Bid No. 127, dated September 16, 1969, expressly
stipulates —
8. AWARD OF CONTRACT
Subject to the rights herein reserved, award shall be made by the
Commission by resolution to the lowest and responsible bidder whose
Offer will best serve the interest of the Commission on Elections. The
resolution of the Commission shag be communicated in writing to the
winning bidder. The winning bidder or awardees shall enter into
contract with the Commission on Elections for the supply of the voting
booths under the terms and conditions embodied in the Invitation to
Bid.
THE COMMISSION ON ELECTIONS RESERVES THE RIGHT TO REJECT
ANY OR ALL BIDS; TO WAIVE ANY INFORMATION THEREIN; OR TO
ACCEPT SUCH BID AS MAY IN ITS DISCRETION BE CONSIDERED MOST
REASONABLE AND ADVANTAGEOUS. The right is also reserved to
reject bids which are defective due to inadequate preparation,
omission or lacks sufficient data, guarantee and other information
required to be submitted, or bids without the accompanying bond.
The right is further reserved to reject the bid of a bidder who had
previously failed to perform properly or to deliver on nine materials
covered by contract of similar nature.
xxx xxx xxx
14. THIS CALL FORBIDS IS NO MORE THAN AN INVITATION TO MAKE
PROPOSALS AND THE COMMISSION ON ELECTIONS IS NOT BOUND TO
ACCEPT ANY BID, NOR SHALL THIS CALL FOR BIDS BY ITSELF CONFER
A RIGHT TO ANY BIDDER TO ACTION FOR DAMAGES OR UNREALIZED
OR EXPECTED PROFITS UNLESS THE BID IS DULY ACCEPTED BY
THERE SOLUTION OF THE COMMISSION ON ELECTIONS. 12 (Emphasis
supplied)
The "Bidders Tender Call No. 127", the form accomplished by the bidder pursuant to
Invitation to Bid No. 127, also categorically provide that the bidder submits his proposals
"subject to the conditions stated in the invitation."13
It is crystal clear from the aforequoted conditions, that subject to the rights of the
COMELEC duly reserved in the said Invitation, award shall be made to the lowest and
responsible bidder whose offer will best serve the interest of the COMELEC; that the
COMELEC had reserved the right, among others, to accept such bid, as may in its
discretion, be considered most reasonable and advantageous; and that the invitation was
merely a call for proposals. Consequently, the COMELEC was not under legal obligation
to accept any bid since "Advertisements for bidders are simply invitation to make
proposals and the advertiser is not bound to accept the highest or lowest bidder, unless
the contrary appears."14
Pursuant to COMELEC's Invitation to Bid No. 127, a bidder may have the right to demand
damages, or unrealized or expected profits, only when his bid was accepted by resolution
of the COMELEC. Filipinas' bid, although recommended for award of contract by the
bidding committee, was not the winning bid. No resolution to that effect appeared to
have been issued by the COMELEC. Decidedly then, Filipinas has no cause of action.
In Leoquinco vs. Postal Savings Bank, 47 Phil. 772, 774775, this Court held:
... (A)ppellant set forth and admitted in his pleadings in the regulation
adopted by the Board of Directors authorizing the sale at public
auction of the land, as well as the notice announcing the auction that
appellant had expressly reserved to themselves the right to reject any
and all bids. By taking part in the auction and offering his bid, the
appellant voluntarily submitted to the terms and conditions of the
auction sale announced in the notice, and clearly acknowledged the
right reserved to the appellees. The appellees, making use of that
right, rejected his offer. Clearly the appellant has no ground of action
to compel them to execute a deed of sale of the land in his favor, nor to
compel them to accept his bid or offer. ... .
145
In issuing the resolution awarding the contract for voting booths in Acme's favor, the
Commissioners of the COMELEC had taken into account that Acme's bid was the lowest;
that Acme was a responsible manufacturer; and that upon an ocular inspection of the
samples submitted by the bidders, Acme's sample was favorable chosen subject to
certain conditions cited in the resolution. In fine, the public respondents properly
exercised its sound discretion in making the award.

Once more, We reiterate the dictum earlier laid down in the case of Jalandoni vs. National
Resettlement and Rehabilitation Administration, et al., G.R. No. L-15198, May 30,1960
(108 Phil, 486, 491-492) that —

Neither can it be contended that the fact that appellant gave the
lowest quotation, which was favorably indorsed by the Committee on
Bids, created a vested right in favor of the said bidder. Admittedly, the
offers were rejected by the Board of Directors. It is clear therefore
that there having no meeting of the minds of the parties, there was no
perfected contract between them which could be the basis of action
against the defendants-appellees.

The presentation by a reliable and responsible bidder of the lowest

bid to officials whose duty it is to let the contract to the lowest reliable
and responsible bidder, but who have the right and have given notice
that they reserve the right to reject any and an bids, does not
constitute an agreement that they will make a contract with such a
bidder, nor vest in him such an absolute right to the contract as
against a higher bidder (Colorado Paving Co. vs, Murphy, (CCA 8th) 78
F. 28, 37 LRA 630).

The mere determination of a public official or board to accept the

proposal of a bidder does not constitute a contract (Smithmeyer vs.
United States, 147 U.S. 342, 37 L, ed. 196,13 S. Ct. 321); the decision
must be communicated to the bidder (Cedar Rapids Lumber Co. vs.
Fischer, 129 Iowa 332,105 N.W. 595,4 LRA (NS) 177).

No contractual relation can arise merely from a bid, unless by the

terms of the statute and the advertisement, a bid in pursuance thereof
is, as a matter of law, an acceptance of an offer, wholly apart from any
action on the part of the municipality or any of its officers (Molloy vs.
Rochelle, supra).

WHEREFORE, finding the instant petition to be without merit aside from being moot and
academic, the same is hereby DISMISSED.

No pronouncement as to costs.

SO ORDERED.

146
G.R. No. 192249 April 2, 2013
SALIC DUMARPA, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
DECISION
PEREZ, J.:
Challenged in this petition for prohibition and mandamus with prayer for issuance of
temporary restraining order and/or writ of preliminary injunction under Rule 64, in
relation to Rule 65, of the Rules of Court is Resolution No. 8965 1 issued by respondent
Commission on Elections (COMELEC) en bane and entitled Guidelines and Procedures in
the Conduct of Special Elections in Some Areas Where There are Failure of Elections
during the Conduct of the 10 May 2010 National Elections. Petitioner Salic Dumarpa
(Dumarpa) seeks to annul or declare illegal Sections 4 2 and 123 of COMELEC Resolution
No. 8965 for having been issued with grave abuse of discretion.
Dumarpa was a congressional candidate for the 1st District of Lanao del Sur at the 10
May 2010 elections. The COMELEC declared a total failure of elections in seven (7)
municipalities, including the three (3) Municipalities of Masiu, Lumba Bayabao and
Kapai, which are situated in the 1st Congressional District of Province of Lanao del Sur.
The conduct of special elections in the seven (7) Lanao del Sur municipalities was
originally scheduled for 29 May 2010.
On 25 May 2010, COMELEC issued Resolution No. 8946,4 resetting the special elections
to 3 June 2010 for the following reasons:
xxxx
1. Aside from the reported seven (7) municipalities where there are total
failure of elections, there are precincts in eight (8) other municipalities where
there were failure of elections, namely:
xxxx
2. The results of elections in the said municipalities will affect the elections not
only in the provincial level (Congressman, Vice-Governor and Sangguniang
Panlalawigan) but also in the municipal level.
3. There are missing ballots in the following precincts more particularly in:
a. Brgy. Picotaan, Lumbatan with 682 registered voters.
b. Brgy. Pagalamatan, Tugaya with 397 registered voters.
4. Based on reports some of the BEIs are not willing to serve or are disqualified
due to relationship;
5. The Precinct Count Optical Scan (PCOS) assigned in the said municipalities
were already pulled out by Smartmatic;
6. There is a need for the newly constituted BEIs to undergo training and
certification as required under R.A. 9369.
7. There is a need to review the manning of Comelec personnel in the municipal
level and assess their capabilities to discharge their duties and functions not
only as an Election Officer but also as Chairman of the Board of Canvassers.
xxxx
Considering the foregoing, the Commission RESOLVED, as it hereby RESOLVES as
follows:
1. to reset the special elections scheduled on 29 May 2010 pursuant to the
Commission En Banc Resolution promulgated May 21, 2010 in the following
areas:
xxxx
and to reschedule the same on June 3, 2010;
2. to prepare the logistical, manpower and security requirements in connection
with the conduct of said special elections;
3. to direct the Regional Election Director and the Provincial Election
Supervisor to notify the candidates/interested parties thereat; and
4. to hear the petitions/report/s on the failure of elections on the eight (8)
other municipalities in Lanao del Sur, to wit:
xxxx
Let the Executive Director implement this resolution and the Education and Information
Department publish this resolution in two (2) newspapers of general circulation.5
147
Subsequently, COMELEC issued the herein assailed resolution which provided, among
others, the constitution of Special Board of Election Inspectors (SBEI) in Section 4 and
Clustering of Precincts in Section 12.
On the same date COMELEC Resolution No. 8965 was issued, on 28 May 2010, Dumarpa
filed a Motion for Reconsideration concerning only Sections 4 and 12 thereof as it may
apply to the Municipality of Masiu, Lanao del Sur. The COMELEC did not act on
Dumarpa’s motion.
A day before the scheduled special elections, on 2 June 2010, Dumarpa filed the instant
petition alleging that "both provisions on Re-clustering of Precincts (Section 12) and
constitution of SBEIs [Special Board of Election Inspectors] (Section 4) affect the
Muncipality of Masiu, Lanao del Sur, and will definitely doom petitioner to certain defeat,
if its implementation is not restrained or prohibited by the Honorable Supreme Court."
Parenthetically, at the time of the filing of this petition, Dumarpa was leading by a slim
margin over his opponent Hussin Pangandaman in the canvassed votes for the areas
which are part of the 1st Congressional District of Lanao del Sur where there was no
failure of elections.6
We did not issue a temporary restraining order or a writ of preliminary injunction. Thus,
the special elections on 3 June 2010 proceeded as scheduled.
Petitioner is adamant that:
1. x x x SECTION 12 OF COMELEC RESOLUTION NO. 8965 x x x IS ILLEGAL OR
VOID, BEING CONTRARY TO LAW, AND ARE ISSUED OR EMBODIED IN SAID
RESOLUTION WITHOUT NOTICE TO CANDIDATES AND STAKEHOLDERS AND
WITHOUT HEARING;
2. x x x SECTION 4 OF COMELEC RESOLUTION NO. 8965 x x x IS ILLEGAL OR
VOID, BEING CONTRARY TO LAW, AND ARE ISSUED OR EMBODIED IN SAID
RESOLUTION WITHOUT NOTICE TO CANDIDATES AND STAKEHOLDERS AND
WITHOUT HEARING;
3. PUBLIC RESPONDENT, THE HONORABLE COMMISSION ON ELECTIONS,
ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION, IN INCORPORATING, PROVIDING, OR ISSUING
SECTION 12 AND SECTION 4 IN SAID RESOLUTION NO. 8965.7
The Office of the Solicitor General (OSG), however, in its sparse Comment counters that
the issues have been mooted by the holding of the special elections as scheduled on 3
June 2010. As a catch-all refutation, the OSG maintains that COMELEC Resolution No.
8965 is not tainted with grave abuse of discretion.
We dismiss the petition.
Indeed, the special elections held on 3 June 2010 mooted the issues posed by Dumarpa.
The opponent of Dumarpa, Hussin Pangandaman, was proclaimed winner in the 1st
Congressional District of Lanao del Sur. We see this as a supervening event which,
additionally, mooted the present petition as the issues raised herein are resolvable in the
election protest.8
A moot and academic case is one that ceases to present a justiciable controversy by
virtue of supervening events, so that a declaration thereon would be of no practical
value. As a rule, courts decline jurisdiction over such case, or dismiss it on ground of
mootness.9
In any event, the petition is unmeritorious.
COMELEC issued Resolution No. 8965, in the exercise of its plenary powers in the
conduct of elections enshrined in the Constitution10 and statute.11
Thus, it brooks no argument that the COMELEC’s broad power to "enforce and
administer all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum and recall,"12 carries with it all necessary and incidental powers
for it to achieve the objective of holding free, orderly, honest, peaceful and credible
elections.13
As stated in Sumulong v. COMELEC:
Politics is a practical matter, and political questions must be dealt with realistically - not
from the standpoint of pure theory. The Commission on Elections, because of its fact-
finding facilities, its contacts with political strategists, and its knowledge derived from
actual experience in dealing with political controversies, is in a peculiarly advantageous
position to decide complex political questions.
xxxx
There are no ready-made formulas for solving public problems. Time and experience are
necessary to evolve patterns that will serve the ends of good government. In the matter
of the administration of the laws relative to the conduct of elections x x x, we must not by
any excessive zeal take away from the Commission on Elections that initiative which by
constitutional and legal mandates properly belongs to it.14
Cauton v. COMELEC15 emphasized the COMELEC’s latitude of authority:
The purpose of the governing statutes on the conduct of elections is to protect the
integrity of elections to suppress all evils that may violate its purity and defeat the will of
the voters citation omitted. The purity of the elections is one of the most fundamental
requisites of popular government citation omitted. The Commission on Elections, by
constitutional mandate, must do everything in its power to secure a fair and honest
canvass of the votes cast in the elections. In the performance of its duties, the
148
Commission must be given a considerable latitude in adopting means and methods that
will insure the accomplishment of the great objective for which it was created - to
promote free, orderly, and honest elections. The choice of means taken by the
Commission on Elections, unless they are clearly illegal or constitute grave abuse of
discretion, should not be interfered with16 citation omitted. (Emphasis supplied).
Viewed against the foregoing spectrum of the COMELEC’s plenary powers and the raison
d’ etre for the statutes on the conduct of elections, we dismiss Dumarpa’s objections
about Sections 4 and 12 of COMELEC Resolution No. 8965.
Of course the case cannot preempt the decision in the election protest filed by Dumarpa
before the House of Representative Electoral Tribunal, or our action should the matter
reach us on petition for certiorari.20 Our ruling herein is confined to the issues raised by
Dumarpa relative to COMELEC Resolution No. 8965.
WHEREFORE, the petition 1s DISMISSED. Cost against petitioner Salic Dumarpa.
SO ORDERED.

Dumarpa objects to the re-clustering of precincts, only for the Municipality of Masiu,
because it was undertaken: (1) without notice and hearing to the candidates affected; (2)
in less than thirty days before the conduct of the special elections; and (3) the polling
place was reduced from 21 to only 3 voting centers which Dumarpa’s opponent,
Representative Hussin Pangandaman, controls. As regards the designation of SBEIs,
Dumarpa points out that "public school teachers who are members of the board of
election inspectors shall not be relieved nor disqualified from acting as such members,
except for cause and after due hearing."17

Dumarpa’s objections conveniently fail to take into account that COMELEC Resolution
No. 8965, containing the assailed provisions on re-clustering of the precincts and the
designation of special board of election inspectors, was issued precisely because of the
total failure of elections in seven (7) Municipalities18 in the Province of Lanao del Sur, a
total of fifteen (15) Municipalities where there was a failure of elections. Notably, the
COMELEC’s declaration of a failure of elections is not being questioned by Dumarpa. In
fact, he confines his objections on the re-clustering of precincts, and only as regards the
Municipality of Masiu.1âwphi1

Plainly, it is precisely to prevent another occurrence of a failure of elections in the fifteen

(15) municipalities in the province of Lanao del Sur that the COMELEC issued the
assailed Resolution No. 8965. The COMELEC, through its deputized officials in the field, is
in the best position to assess the actual condition prevailing in that area and to make
judgment calls based thereon. Too often, COMELEC has to make snap judgments to meet
unforeseen circumstances that threaten to subvert the will of our voters. In the process,
the actions of COMELEC may not be impeccable, indeed, may even be
debatable.1âwphi1 We cannot, however, engage in an academic criticism of these actions
often taken under very difficult circumstances.19

The COMELEC actually closely followed Section 6 of the Omnibus Election Code by
scheduling the special election not later than thirty (30) days after the cessation of the
cause of the failure to elect. Moreover, the COMELEC sought to foreclose the possibility
that the Board of Election

Inspectors may not report to the polling place, as what occurred in the Municipality of
Masiu, resulting in another failure of election.

149
G.R. No. 112093 October 4, 1994
ANTONIO V.A. TAN, petitioner,
vs.
COMMISSION ON ELECTIONS, RUSTICO T. ILAGAN, Regional Election Director,
Commission on Elections, Region XI, Davao City, and SENFORIANO B.
ALTERADO, respondents.
Leonido C. Delante for petitioner.
Eduardo C. de Vera for Atty. S.B. Alterado.
VITUG, J.:
On 10 May 1992, petitioner, as incumbent city Prosecutor of Davao City, was designated
by the Commission on Elections ("COMELEC") as
Vice-Chairman of the City Board of Canvassers of Davao City for the 11th May 1992
synchronized national and local elections conformably with the provisions of Section
20(a) of Republic Act No. 6646 and Section 221(b) of the Omnibus Election Code (B.P.
Blg. 881).
On the basis of the votes canvassed by the Board of Canvassers, Manuel Garcia was
proclaimed the winning candidate for a congressional seat to represent the Second
District of Davao City in the House of Representatives.
Private respondent Alterado, himself a candidate for the position, filed a number of cases
questioning the validity of the proclamation of Manuel Garcia and accusing the members
of the City Board of Canvassers of "unlawful, erroneous, incomplete and irregular
canvass." Meanwhile, the electoral protest of private respondent Alterado was dismissed
by the House of Representatives Electoral Tribunal ("HRET"). The criminal complaint for
"Falsification of Public Documents and Violation of the Anti-Graft and Corrupt Practices
Act" before the Office of the Ombudsman was likewise dismissed on the ground of lack of
criminal intent on the part of therein respondents. Still pending is an administrative
charge, the case now before us, instituted in the COMELEC against the City Board of
Canvassers, including herein petitioner, for "Misconduct, Neglect of Duty, Gross
Incompetence and Acts Inimical to the Service."
Petitioner moved to dismiss the administrative complaint against him for alleged lack of
jurisdiction of the COMELEC thereover, he being under the Executive Department of the
government. The COMELEC denied petitioner's motion to dismiss.
Hence, the instant petition.
Petitioner contends that the COMELEC has committed grave abuse of discretion and
acted without jurisdiction in continuing to take action on the administrative case. He
argues that —
1) Petitioner is the City Prosecutor of Davao City. His office belongs to
the executive branch of the government, more particularly to the
Department of Justice. As such, he is under the administrative
jurisdiction of the said department and not of respondent COMELEC.
2) The Civil Service Law provides that department heads "shall have
jurisdiction to investigate and decide matters involving disciplinary
action against officers under their jurisdiction" (Section 47[b], P.D.
807).
3) Section 2, Article IX of the 1987 Constitution which authorizes
respondent COMELEC to deputize public officers belonging to the
executive department is for the purpose of insuring free, orderly and
honest elections. It does not include and comprehend administrative
disciplinary jurisdiction over officials belonging to the executive
branch of government. That jurisdiction over deputized executive
officers cannot be deemed to include such powers as would allow
encroachment into the domain of the executive branch under guise of
administering laws relative to elections.
4) Section 38 of P.D. 807 cited by respondents COMELEC and Ilagan as
basis for their authority to investigate petitioner (Annex G) offers no
help to said respondents. The said provision merely lays down the
procedure for administrative cases against non-presidential
appointees. Petitioner here, the city prosecutor for Davao City is a
presidential appointee.1
We find ourselves being unable to sustain the petition.
The COMELEC's authority under Section 2(6-8), Article IX, of the Constitution is virtually
all-encompassing when it comes to election matters. In respect particularly to sanctions
against election offenses, we quote:
Sec. 2. The Commission on Elections shall exercise the following
powers and functions:
xxx xxx xxx
(6) File, upon a verified complaint, or on its own initiative, petitions in
court for inclusion or exclusion of voters; investigate and, where
appropriate, prosecute cases of violations of election laws, including
150
 acts or omission constituting election frauds, offenses, and
malpractices.
xxx xxx xxx
(8) Recommend to the President the removal of any officer or
employee it has deputized or the imposition of any other disciplinary
action, for violation or disregard of, or disobedience to its directive,
order, or decision.
Additionally, Section 52, Article VII, of the Omnibus Election Code, provides:
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 insuring free, orderly and honest
elections, and shall:
a. Exercise direct and immediate supervision and control over
national and local officials or employees, including members of any
national or local law enforcement agency and instrumentality of the
government required by law to perform duties relative to the conduct
of elections. In addition, it may authorize CMP Cadets eighteen years
of age and above to act as its deputies for the purpose of enforcing its
orders.
The Commission may relieve any officer or employee referred to in
the preceding paragraph from the performance of his duties relating
to electoral processes who violates the election law or fails to comply
with its instructions, orders, decisions or rulings, and appoint his
substitute. Upon recommendation of the Commission, the
corresponding proper authority shall suspend or remove from office
any or all of such officers or employees who may, after due process, be
found guilty of such violation or failure.
It should be stressed that the administrative case against petitioner, taken cognizance of
by, and still pending with, the COMELEC, is in relation to the performance of his duties as
an election canvasser and not as a city prosecutor. The COMELEC's mandate includes its
authority to exercise direct and immediate supervision and control over national and
local officials or employees, including members of any national or local law enforcement
agency and instrumentality of the government, required by law to perform duties
relative to the conduct of elections. In order to help ensure that such duly deputized
officials and employees of government carry out their respective assigned tasks, the law
has also provided than upon the COMELEC's recommendation, the corresponding proper
authority (the Secretary of the Department of Justice in the case at bar) shall take
appropriate action, either to suspend or remove from office the officer or employee who
may, after due process, be found guilty of violation of election laws or failure to comply
with instructions, orders, decision or rulings of the COMELEC.
Unavoidably, the COMELEC, prior to making its recommendation, must first satisfy itself
that there indeed has been an infraction of the law, or of its directives issued
conformably therewith, by the person administratively charged. It also stands to reason
that it is the COMELEC, being in the best position to assess how its deputized officials and
employees perform or have performed in their duties, that should conduct the
administrative inquiry. To say that the COMELEC is without jurisdiction to look into
charges of election offenses committed by officials and employees of government outside
the regular employ of the COMELEC would be to unduly deny to it the proper and sound
exercise of such recommendatory power and, perhaps more than that, even a possible
denial of due process to the official or employee concerned.
Observe, nevertheless, that the COMELEC merely may issue a recommendation for
disciplinary action but that it is the executive department to which the charged official or
employee belongs which has the ultimate authority to impose the disciplinary penalty.
The law then does not detract from, but is congruent with, the general administrative
authority of the department of government concerned over its own personnel.
Petitioner's assertion that private respondent Alterado has resorted to forum-shopping
is unacceptable. The investigation then being conducted by the Ombudsman on the
criminal case for falsification and violation of the Anti-Graft and Corrupt Practices Act, on
the one hand, and the inquiry into the administrative charges by the COMELEC, on the
other hand, are entirely independent proceedings. Neither would the results in one
conclude the other. Thus, an absolution from a criminal charge is not a bar to an
administrative prosecution (Office of the Court Administrator vs. Enriquez, 218
SCRA 1), or vice versa. So, also, the dismissal by the COMELEC of SPC Case No. 92-232 on
the ground that the case constituted an electoral protest within the jurisdiction of the
HRET and not of the COMELEC (affirmed by this Court in G.R. No. 106452) does not
necessarily foreclosure the matter of possible liability, if warranted, of those who might
have improperly acted in the canvass of votes.
There are other issues, mainly factual, that are raised and averred to show petitioner's
innocence from the administrative charges. Petitioner's allegations may well be true but
this petition at bench may not preempt the determination of those factual matters yet to
be passed upon in the pending administrative proceedings.
WHEREFORE, the instant petition is DISMISSED. No costs.
SO ORDERED.
151
G.R. No. 221697
MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,
vs.
COMELEC AND ESTRELLA C. ELAMPARO Respondents.
x-----------------------x
G.R. No. 221698-700
MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,
vs.
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND AMADO D.
VALDEZ Respondents.
DECISION
PEREZ, J.:
Before the Court are two consolidated petitions under Rule 64 in relation to Rule 65 of
the Rules of Court with extremely urgent application for an ex parte issuance of
temporary restraining order/status quo ante order and/or writ of preliminary injunction
assailing the following: (1) 1 December 2015 Resolution of the Commission on Elections
(COMELEC) Second Division; (2) 23 December 2015 Resolution of the COMELEC En
Banc, in SPA No. 15-001 (DC); (3) 11 December 2015 Resolution of the COMELEC First
Division; and ( 4) 23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-
002 (DC), SPA No. 15-007 (DC) and SPA No. 15-139 (DC) for having been issued without
jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.
The Facts
Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned as a
newborn infant in the Parish Church of Jaro, Iloilo by a certain Edgardo Militar (Edgardo)
on 3 September 1968. Parental care and custody over petitioner was passed on by
Edgardo to his relatives, Emiliano Militar (Emiliano) and his wife. Three days after, 6
September 1968, Emiliano reported and registered petitioner as a foundling with the
Office of the Civil Registrar of Iloilo City (OCR-Iloilo). In her Foundling Certificate and
Certificate of Live Birth, the petitioner was given the name "Mary Grace Natividad
Contreras Militar." 1
When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley Poe (a.k.a.
Fenando Poe, Jr.) and Jesusa Sonora Poe (a.k.a. Susan Roces) filed a petition for her
adoption with the Municipal Trial Court (MTC) of San Juan City. On 13 May 1974, the trial
court granted their petition and ordered that petitioner's name be changed from "Mary
Grace Natividad Contreras Militar" to "Mary Grace Natividad Sonora Poe." Although
necessary notations were made by OCR-Iloilo on petitioner's foundling certificate
reflecting the court decreed adoption,2 the petitioner's adoptive mother discovered only
sometime in the second half of 2005 that the lawyer who handled petitioner's adoption
failed to secure from the OCR-Iloilo a new Certificate of Live Birth indicating petitioner's
new name and the name of her adoptive parents. 3 Without delay, petitioner's mother
executed an affidavit attesting to the lawyer's omission which she submitted to the OCR-
Iloilo. On 4 May 2006, OCR-Iloilo issued a new Certificate of Live Birth in the name of
Mary Grace Natividad Sonora Poe.4
Having reached the age of eighteen (18) years in 1986, petitioner registered as a voter
with the local COMELEC Office in San Juan City. On 13 December 1986, she received her
COMELEC Voter's Identification Card for Precinct No. 196 in Greenhills, San Juan, Metro
Manila.5
On 4 April 1988, petitioner applied for and was issued Philippine Passport No.
F9272876 by the Department of Foreign Affairs (DFA). Subsequently, on 5 April 1993
and 19 May 1998, she renewed her Philippine passport and respectively secured
Philippine Passport Nos. L881511 and DD156616.7
Initially, the petitioner enrolled and pursued a degree in Development Studies at the
University of the Philippines8 but she opted to continue her studies abroad and left for
the United States of America (U.S.) in 1988. Petitioner graduated in 1991 from Boston
College in Chestnuts Hill, Massachusetts where she earned her Bachelor of Arts degree in
Political Studies.9
On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares
(Llamanzares), a citizen of both the Philippines and the U.S., at Sanctuario de San Jose
Parish in San Juan City. 10 Desirous of being with her husband who was then based in the
U.S., the couple flew back to the U.S. two days after the wedding ceremony or on 29 July
1991. 11
While in the U.S., the petitioner gave birth to her eldest child Brian Daniel (Brian) on 16
April 1992.12 Her two daughters Hanna MacKenzie (Hanna) and Jesusa Anika (Anika)
were both born in the Philippines on 10 July 1998 and 5 June 2004, respectively. 13
On 18 October 2001, petitioner became a naturalized American citizen. 14 She obtained
U.S. Passport No. 017037793 on 19 December 2001. 15
On 8 April 2004, the petitioner came back to the Philippines together with Hanna to
support her father's candidacy for President in the May 2004 elections. It was during this
time that she gave birth to her youngest daughter Anika. She returned to the U.S. with
her two daughters on 8 July 2004. 16
After a few months, specifically on 13 December 2004, petitioner rushed back to the
Philippines upon learning of her father's deteriorating medical condition. 17 Her father
slipped into a coma and eventually expired. The petitioner stayed in the country until 3
February 2005 to take care of her father's funeral arrangements as well as to assist in the
settlement of his estate.18
152
According to the petitioner, the untimely demise of her father was a severe blow to her
entire family. In her earnest desire to be with her grieving mother, the petitioner and her
husband decided to move and reside permanently in the Philippines sometime in the
first quarter of 2005.19 The couple began preparing for their resettlement including
notification of their children's schools that they will be transferring to Philippine schools
for the next semester;20coordination with property movers for the relocation of their
household goods, furniture and cars from the U.S. to the Philippines; 21 and inquiry with
Philippine authorities as to the proper procedure to be followed in bringing their pet dog
into the country.22 As early as 2004, the petitioner already quit her job in the U.S.23
Finally, petitioner came home to the Philippines on 24 May 2005 24 and without delay,
secured a Tax Identification Number from the Bureau of Internal Revenue. Her three (3)
children immediately followed25 while her husband was forced to stay in the U.S. to
complete pending projects as well as to arrange the sale of their family home there.26
The petitioner and her children briefly stayed at her mother's place until she and her
husband purchased a condominium unit with a parking slot at One Wilson Place
Condominium in San Juan City in the second half of 2005.27 The corresponding
Condominium Certificates of Title covering the unit and parking slot were issued by the
Register of Deeds of San Juan City to petitioner and her husband on 20 February
2006.28 Meanwhile, her children of school age began attending Philippine private
schools.
On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise the
disposal of some of the family's remaining household belongings.29 She travelled back to
the Philippines on 11 March 2006.30
In late March 2006, petitioner's husband officially informed the U.S. Postal Service of the
family's change and abandonment of their address in the U.S.31 The family home was
eventually sold on 27 April 2006.32 Petitioner's husband resigned from his job in the U.S.
in April 2006, arrived in the country on 4 May 2006 and started working for a major
Philippine company in July 2006.33
In early 2006, petitioner and her husband acquired a 509-square meter lot in Corinthian
Hills, Quezon City where they built their family home34 and to this day, is where the
couple and their children have been residing.35 A Transfer Certificate of Title covering
said property was issued in the couple's name by the Register of Deeds of Quezon City on
1June 2006.
On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the Philippines
pursuant to Republic Act (R.A.) No. 9225 or the Citizenship Retention and Re-acquisition
Act of 2003.36 Under the same Act, she filed with the Bureau of Immigration (BI) a sworn
petition to reacquire Philippine citizenship together with petitions for derivative
citizenship on behalf of her three minor children on 10 July 2006.37 As can be gathered
from its 18 July 2006 Order, the BI acted favorably on petitioner's petitions and declared
that she is deemed to have reacquired her Philippine citizenship while her children are
considered as citizens of the Philippines.38 Consequently, the BI issued Identification
Certificates (ICs) in petitioner's name and in the names of her three (3) children. 39
Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan City on 31
August 2006.40 She also secured from the DFA a new Philippine Passport bearing the No.
XX4731999.41 This passport was renewed on 18 March 2014 and she was issued
Philippine Passport No. EC0588861 by the DFA.42
On 6 October 2010, President Benigno S. Aquino III appointed petitioner as Chairperson
of the Movie and Television Review and Classification Board (MTRCB). 43 Before
assuming her post, petitioner executed an "Affidavit of Renunciation of Allegiance to the
United States of America and Renunciation of American Citizenship" before a notary
public in Pasig City on 20 October 2010,44 in satisfaction of the legal requisites stated in
Section 5 of R.A. No. 9225.45 The following day, 21 October 2010 petitioner submitted the
said affidavit to the BI46 and took her oath of office as Chairperson of the MTRCB.47 From
then on, petitioner stopped using her American passport.48
On 12 July 2011, the petitioner executed before the Vice Consul of the U.S. Embassy in
Manila an "Oath/Affirmation of Renunciation of Nationality of the United States."49 On
that day, she accomplished a sworn questionnaire before the U.S. Vice Consul wherein
she stated that she had taken her oath as MTRCB Chairperson on 21 October 2010 with
the intent, among others, of relinquishing her American citizenship.50 In the same
questionnaire, the petitioner stated that she had resided outside of the U.S., specifically
in the Philippines, from 3 September 1968 to 29 July 1991 and from May 2005 to
present.51
On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate of Loss of
Nationality of the United States" effective 21 October 2010.52
On 2 October 2012, the petitioner filed with the COMELEC her Certificate of Candidacy
(COC) for Senator for the 2013 Elections wherein she answered "6 years and 6 months"
to the question "Period of residence in the Philippines before May 13, 2013." 53 Petitioner
obtained the highest number of votes and was proclaimed Senator on 16 May 2013. 54
On 19 December 2013, petitioner obtained Philippine Diplomatic Passport No.
DE0004530. 55
On 15 October 2015, petitioner filed her COC for the Presidency for the May 2016
Elections. 56 In her COC, the petitioner declared that she is a natural-born citizen and that
her residence in the Philippines up to the day before 9 May 2016 would be ten (10) years
and eleven (11) months counted from 24 May 2005.57 The petitioner attached to her COC
an "Affidavit Affirming Renunciation of U.S.A. Citizenship" subscribed and sworn to
before a notary public in Quezon City on 14 October 2015. 58
Petitioner's filing of her COC for President in the upcoming elections triggered the filing
of several COMELEC cases against her which were the subject of these consolidated
cases.
153
Origin of Petition for Certiorari in G.R. No. 221697
A day after petitioner filed her COC for President, Estrella Elamparo (Elamparo) filed a
petition to deny due course or cancel said COC which was docketed as SPA No. 15-001
(DC) and raffled to the COMELEC Second Division.59She is convinced that the COMELEC
has jurisdiction over her petition.60 Essentially, Elamparo's contention is that petitioner
committed material misrepresentation when she stated in her COC that she is a natural-
born Filipino citizen and that she is a resident of the Philippines for at least ten (10)
years and eleven (11) months up to the day before the 9 May 2016 Elections. 61
On the issue of citizenship, Elamparo argued that petitioner cannot be considered as a
natural-born Filipino on account of the fact that she was a foundling.62 Elamparo claimed
that international law does not confer natural-born status and Filipino citizenship on
foundlings.63 Following this line of reasoning, petitioner is not qualified to apply for
reacquisition of Filipino citizenship under R.A. No. 9225 for she is not a natural-born
Filipino citizen to begin with.64Even assuming arguendo that petitioner was a natural-
born Filipino, she is deemed to have lost that status when she became a naturalized
American citizen.65 According to Elamparo, natural-born citizenship must be continuous
from birth.66
On the matter of petitioner's residency, Elamparo pointed out that petitioner was bound
by the sworn declaration she made in her 2012 COC for Senator wherein she indicated
that she had resided in the country for only six ( 6) years and six ( 6) months as of May
2013 Elections. Elamparo likewise insisted that assuming arguendo that petitioner is
qualified to regain her natural-born status under R.A. No. 9225, she still fell short of the
ten-year residency requirement of the Constitution as her residence could only be
counted at the earliest from July 2006, when she reacquired Philippine citizenship under
the said Act. Also on the assumption that petitioner is qualified to reacquire lost
Philippine Citizenship, Elamparo is of the belief that she failed to reestablish her domicile
in the Philippines.67
Petitioner seasonably filed her Answer wherein she countered that:
(1) the COMELEC did not have jurisdiction over Elamparo's petition as it was
actually a petition for quo warranto which could only be filed if Grace Poe wins
in the Presidential elections, and that the Department of Justice (DOJ) has
primary jurisdiction to revoke the BI's July 18, 2006 Order;
(2) the petition failed to state a cause of action because it did not contain
allegations which, if hypothetically admitted, would make false the statement in
her COC that she is a natural-born Filipino citizen nor was there any allegation
that there was a willful or deliberate intent to misrepresent on her part;
(3) she did not make any material misrepresentation in the COC regarding her
citizenship and residency qualifications for:
a. the 1934 Constitutional Convention deliberations show that
foundlings were considered citizens;
b. foundlings are presumed under international law to have been born
of citizens of the place where they are found;
c. she reacquired her natural-born Philippine citizenship under the
provisions of R.A. No. 9225;
d. she executed a sworn renunciation of her American citizenship
prior to the filing of her COC for President in the May 9, 2016
Elections and that the same is in full force and effect and has not been
withdrawn or recanted;
e. the burden was on Elamparo in proving that she did not possess
natural-born status;
f. residence is a matter of evidence and that she reestablished her
domicile in the Philippines as early as May 24, 2005;
g. she could reestablish residence even before she reacquired natural-
born citizenship under R.A. No. 9225;
h. statement regarding the period of residence in her 2012 COC for
Senator was an honest mistake, not binding and should give way to
evidence on her true date of reacquisition of domicile;
i. Elamparo's petition is merely an action to usurp the sovereign right
of the Filipino people to decide a purely political question, that is,
should she serve as the country's next leader.68
After the parties submitted their respective Memoranda, the petition was deemed
submitted for resolution.
On 1 December 2015, the COMELEC Second Division promulgated a Resolution finding
that petitioner's COC, filed for the purpose of running for the President of the Republic of
the Philippines in the 9 May 2016 National and Local Elections, contained material
representations which are false. The fallo of the aforesaid Resolution reads:
WHEREFORE, in view of all the foregoing considerations, the instant Petition to Deny
Due Course to or Cancel Certificate of Candidacy is hereby GRANTED. Accordingly, the
Certificate of Candidacy for President of the Republic of the Philippines in the May 9,
2016 National and Local Elections filed by respondent Mary Grace Natividad Sonora Poe
Llamanzares is hereby CANCELLED.69
154
Motion for Reconsideration of the 1 December 2015 Resolution was filed by petitioner
which the COMELEC En Banc resolved in its 23 December 2015 Resolution by denying
the same.70
Origin of Petition for Certiorari in G.R. Nos. 221698-700
This case stemmed from three (3) separate petitions filed by Francisco S. Tatad (Tatad),
Antonio P. Contreras (Contreras) and Amado D. Valdez (Valdez) against petitioner before
the COMELEC which were consolidated and raffled to its First Division.
In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules of
Procedure,71 docketed as SPA No. 15-002 (DC), Tatad alleged that petitioner lacks the
requisite residency and citizenship to qualify her for the Presidency.72
Tatad theorized that since the Philippines adheres to the principle of jus
sanguinis, persons of unknown parentage, particularly foundlings, cannot be considered
natural-born Filipino citizens since blood relationship is determinative of natural-born
status.73 Tatad invoked the rule of statutory construction that what is not included is
excluded. He averred that the fact that foundlings were not expressly included in the
categories of citizens in the 193 5 Constitution is indicative of the framers' intent to
exclude them.74 Therefore, the burden lies on petitioner to prove that she is a natural-
born citizen.75
Neither can petitioner seek refuge under international conventions or treaties to support
her claim that foundlings have a nationality.76 According to Tatad, international
conventions and treaties are not self-executory and that local legislations are necessary
in order to give effect to treaty obligations assumed by the Philippines.77 He also stressed
that there is no standard state practice that automatically confers natural-born status to
foundlings.78
Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of the option
to reacquire Philippine citizenship under R.A. No. 9225 because it only applies to former
natural-born citizens and petitioner was not as she was a foundling.79
Referring to petitioner's COC for Senator, Tatad concluded that she did not comply with
the ten (10) year residency requirement.80 Tatad opined that petitioner acquired her
domicile in Quezon City only from the time she renounced her American citizenship
which was sometime in 2010 or 2011.81 Additionally, Tatad questioned petitioner's lack
of intention to abandon her U.S. domicile as evinced by the fact that her husband stayed
thereat and her frequent trips to the U.S.82
In support of his petition to deny due course or cancel the COC of petitioner, docketed as
SPA No. 15-139 (DC), Valdez alleged that her repatriation under R.A. No. 9225 did not
bestow upon her the status of a natural-born citizen.83 He advanced the view that former
natural-born citizens who are repatriated under the said Act reacquires only their
Philippine citizenship and will not revert to their original status as natural-born
citizens.84
He further argued that petitioner's own admission in her COC for Senator that she had
only been a resident of the Philippines for at least six (6) years and six (6) months prior
to the 13 May 2013 Elections operates against her. Valdez rejected petitioner's claim that
she could have validly reestablished her domicile in the Philippines prior to her
reacquisition of Philippine citizenship. In effect, his position was that petitioner did not
meet the ten (10) year residency requirement for President.
Unlike the previous COMELEC cases filed against petitioner, Contreras'
petition,85 docketed as SPA No. 15-007 (DC), limited the attack to the residency issue. He
claimed that petitioner's 2015 COC for President should be cancelled on the ground that
she did not possess the ten-year period of residency required for said candidacy and that
she made false entry in her COC when she stated that she is a legal resident of the
Philippines for ten (10) years and eleven (11) months by 9 May 2016. 86 Contreras
contended that the reckoning period for computing petitioner's residency in the
Philippines should be from 18 July 2006, the date when her petition to reacquire
Philippine citizenship was approved by the BI.87 He asserted that petitioner's physical
presence in the country before 18 July 2006 could not be valid evidence of reacquisition
of her Philippine domicile since she was then living here as an American citizen and as
such, she was governed by the Philippine immigration laws.88
In her defense, petitioner raised the following arguments:
First, Tatad's petition should be dismissed outright for failure to state a cause of action.
His petition did not invoke grounds proper for a disqualification case as enumerated
under Sections 12 and 68 of the Omnibus Election Code.89 Instead, Tatad completely
relied on the alleged lack of residency and natural-born status of petitioner which are not
among the recognized grounds for the disqualification of a candidate to an elective
office.90
Second, the petitions filed against her are basically petitions for quo warranto as they
focus on establishing her ineligibility for the Presidency.91 A petition for quo
warranto falls within the exclusive jurisdiction of the Presidential Electoral Tribunal
(PET) and not the COMELEC.92
Third, the burden to prove that she is not a natural-born Filipino citizen is on the
respondents.93 Otherwise stated, she has a presumption in her favor that she is a natural-
born citizen of this country.
Fourth, customary international law dictates that foundlings are entitled to a nationality
and are presumed to be citizens of the country where they are found.94 Consequently, the
petitioner is considered as a natural-born citizen of the Philippines.95
Fifth, she claimed that as a natural-born citizen, she has every right to be repatriated
under R.A. No. 9225 or the right to reacquire her natural-born status.96 Moreover, the
official acts of the Philippine Government enjoy the presumption of regularity, to wit: the
issuance of the 18 July 2006 Order of the BI declaring her as natural-born citizen, her
appointment as MTRCB Chair and the issuance of the decree of adoption of San Juan
155
RTC.97 She believed that all these acts reinforced her position that she is a natural-born
citizen of the Philippines.98
Sixth, she maintained that as early as the first quarter of 2005, she started reestablishing
her domicile of choice in the Philippines as demonstrated by her children's resettlement
and schooling in the country, purchase of a condominium unit in San Juan City and the
construction of their family home in Corinthian Hills.99
Seventh, she insisted that she could legally reestablish her domicile of choice in the
Philippines even before she renounced her American citizenship as long as the three
determinants for a change of domicile are complied with.100She reasoned out that there
was no requirement that renunciation of foreign citizenship is a prerequisite for the
acquisition of a new domicile of choice.101
Eighth, she reiterated that the period appearing in the residency portion of her COC for
Senator was a mistake made in good faith.102
In a Resolution103 promulgated on 11 December 2015, the COMELEC First Division ruled
that petitioner is not a natural-born citizen, that she failed to complete the ten (10) year
residency requirement, and that she committed material misrepresentation in her COC
when she declared therein that she has been a resident of the Philippines for a period of
ten (10) years and eleven (11) months as of the day of the elections on 9 May 2016. The
COMELEC First Division concluded that she is not qualified for the elective position of
President of the Republic of the Philippines. The dispositive portion of said Resolution
reads:
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES, to GRANT the Petitions and cancel the Certificate of Candidacy
of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES for the elective position of
President of the Republic of the Philippines in connection with the 9 May 2016
Synchronized Local and National Elections.
Petitioner filed a motion for reconsideration seeking a reversal of the COMELEC First
Division's Resolution. On 23 December 2015, the COMELEC En Banc issued a Resolution
denying petitioner's motion for reconsideration.
Alarmed by the adverse rulings of the COMELEC, petitioner instituted the present
petitions for certiorari with urgent prayer for the issuance of an ex parte temporary
restraining order/status quo ante order and/or writ of preliminary injunction. On 28
December 2015, temporary restraining orders were issued by the Court enjoining the
COMELEC and its representatives from implementing the assailed COMELEC Resolutions
until further orders from the Court. The Court also ordered the consolidation of the two
petitions filed by petitioner in its Resolution of 12 January 2016. Thereafter, oral
arguments were held in these cases.
The Court GRANTS the petition of Mary Grace Natividad S. Poe-Llamanzares and to
ANNUL and SET ASIDE the:
1. Resolution dated 1 December 2015 rendered through its Second Division, in
SPA No. 15-001 (DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace
Natividad Sonora Poe-Llamanzares.
2. Resolution dated 11 December 2015, rendered through its First Division, in
the consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad,
petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; SPA
No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent; and SPA No. 15-139 (DC)
entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent.
3. Resolution dated 23 December 2015 of the Commission En Banc, upholding
the 1 December 2015 Resolution of the Second Division.
4. Resolution dated 23 December 2015 of the Commission En Banc, upholding
the 11 December 2015 Resolution of the First Division.
The procedure and the conclusions from which the questioned Resolutions emanated are
tainted with grave abuse of discretion amounting to lack of jurisdiction. The petitioner is
a QUALIFIED CANDIDATE for President in the 9 May 2016 National Elections.
The issue before the COMELEC is whether or not the COC of petitioner should be denied
due course or cancelled "on the exclusive ground" that she made in the certificate a false
material representation. The exclusivity of the ground should hedge in the discretion of
the COMELEC and restrain it from going into the issue of the qualifications of the
candidate for the position, if, as in this case, such issue is yet undecided or undetermined
by the proper authority. The COMELEC cannot itself, in the same cancellation case,
decide the qualification or lack thereof of the candidate.
We rely, first of all, on the Constitution of our Republic, particularly its provisions in
Article IX, C, Section 2:
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.
(2) Exercise exclusive original jurisdiction over all contests relating to
the elections, returns, and qualifications of all elective regional,
provincial, and city officials, and appellate jurisdiction over all
contests involving elective municipal officials decided by trial courts
of general jurisdiction, or involving elective barangay officials decided
by trial courts of limited jurisdiction.
156
Decisions, final orders, or rulings of the Commission on election
contests involving elective municipal and barangay offices shall be
final, executory, and not appealable.
(3) Decide, except those involving the right to vote, all questions
affecting elections, including determination of the number and
location of polling places, appointment of election officials and
inspectors, and registration of voters.
(4) Deputize, with the concurrence of the President, law enforcement
agencies and instrumentalities of the Government, including the
Armed Forces of the Philippines, for the exclusive purpose of ensuring
free, orderly, honest, peaceful, and credible elections.
(5) Register, after sufficient publication, political parties,
organizations, or coalitions which, in addition to other requirements,
must present their platform or program of government; and accredit
citizens' arms of the Commission on Elections. Religious
denominations and sects shall not be registered. Those which seek to
achieve their goals through violence or unlawful means, or refuse to
uphold and adhere to this Constitution, or which are supported by any
foreign government shall likewise be refused registration.
Financial contributions from foreign governments and their agencies
to political parties, organizations, coalitions, or candidates related to
elections constitute interference in national affairs, and, when
accepted, shall be an additional ground for the cancellation of their
registration with the Commission, in addition to other penalties that
may be prescribed by law.
(6) File, upon a verified complaint, or on its own initiative, petitions in
court for inclusion or exclusion of voters; investigate and, where
appropriate, prosecute cases of violations of election laws, including
acts or omissions constituting election frauds, offenses, and
malpractices.
(7) Recommend to the Congress effective measures to minimize
election spending, including limitation of places where propaganda
materials shall be posted, and to prevent and penalize all forms of
election frauds, offenses, malpractices, and nuisance candidacies.
(8) Recommend to the President the removal of any officer or
employee it has deputized, or the imposition of any other disciplinary
action, for violation or disregard of, or disobedience to its directive,
order, or decision.
(9) Submit to the President and the Congress a comprehensive report
on the conduct of each election, plebiscite, initiative, referendum, or
recall.
Not any one of the enumerated powers approximate the exactitude of the provisions of
Article VI, Section 17 of the same basic law stating that:
The Senate and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests relating to the election,
returns, and qualifications of their respective Members. Each Electoral Tribunal
shall be composed of nine Members, three of whom shall be Justices of the
Supreme Court to be designated by the Chief Justice, and the remaining six shall
be Members of the Senate or the House of Representatives, as the case may be,
who shall be chosen on the basis of proportional representation from the
political parties and the parties or organizations registered under the party-list
system represented therein. The senior Justice in the Electoral Tribunal shall be
its Chairman.
or of the last paragraph of Article VII, Section 4 which provides that:
The Supreme Court, sitting en banc, shall be the sole judge of all contests
relating to the election, returns, and qualifications of the President or Vice-
President, and may promulgate its rules for the purpose.
The tribunals which have jurisdiction over the question of the qualifications of the
President, the Vice-President, Senators and the Members of the House of Representatives
was made clear by the Constitution. There is no such provision for candidates for these
positions.
Can the COMELEC be such judge?
The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on
Elections,104 which was affirmatively cited in the En Banc decision in Fermin v.
COMELEC105 is our guide. The citation in Fermin reads:
Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of
candidates, the COMELEC amended its rules on February 15, 1993 so as to provide in
Rule 25 § 1, the following:
Grounds for disqualification. - Any candidate who does not possess all
the qualifications of a candidate as provided for by the Constitution or
by existing law or who commits any act declared by law to be grounds
for disqualification may be disqualified from continuing as a
candidate.
157
The lack of provision for declaring the ineligibility of candidates, however, cannot be
supplied by a mere rule. Such an act is equivalent to the creation of a cause of action
which is a substantive matter which the COMELEC, in the exercise of its rule-making
power under Art. IX, A, §6 of the Constitution, cannot do it. It is noteworthy that the
Constitution withholds from the COMELEC even the power to decide cases involving the
right to vote, which essentially involves an inquiry into qualifications based on age,
residence and citizenship of voters. [Art. IX, C, §2(3)]
The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into
grounds for disqualification is contrary to the evident intention of the law. For not only
in their grounds but also in their consequences are proceedings for "disqualification"
different from those for a declaration of "ineligibility." "Disqualification" proceedings, as
already stated, are based on grounds specified in § 12 and §68 of the Omnibus Election
Code and in §40 of the Local Government Code and are for the purpose of barring an
individual from becoming a candidate or from continuing as a candidate for public office.
In a word, their purpose is to eliminate a candidate from the race either from the start or
during its progress. "Ineligibility," on the other hand, refers to the lack of the
qualifications prescribed in the Constitution or the statutes for holding public office and
the purpose of the proceedings for declaration of ineligibility is to remove the incumbent
from office.
Consequently, that an individual possesses the qualifications for a public office does not
imply that he is not disqualified from becoming a candidate or continuing as a candidate
for a public office and vice versa. We have this sort of dichotomy in our Naturalization
Law. (C.A. No. 473) That an alien has the qualifications prescribed in §2 of the Law does
not imply that he does not suffer from any of [the] disqualifications provided in §4.
Before we get derailed by the distinction as to grounds and the consequences of the
respective proceedings, the importance of the opinion is in its statement that "the lack of
provision for declaring the ineligibility of candidates, however, cannot be supplied by a
mere rule". Justice Mendoza lectured in Romualdez-Marcos that:
Three reasons may be cited to explain the absence of an authorized proceeding for
determining before election the qualifications of a candidate.
First is the fact that unless a candidate wins and is proclaimed elected, there is no
necessity for determining his eligibility for the office. In contrast, whether an individual
should be disqualified as a candidate for acts constituting election offenses (e.g., vote
buying, over spending, commission of prohibited acts) is a prejudicial question which
should be determined lest he wins because of the very acts for which his disqualification
is being sought. That is why it is provided that if the grounds for disqualification are
established, a candidate will not be voted for; if he has been voted for, the votes in his
favor will not be counted; and if for some reason he has been voted for and he has won,
either he will not be proclaimed or his proclamation will be set aside.
Second is the fact that the determination of a candidates' eligibility, e.g., his citizenship
or, as in this case, his domicile, may take a long time to make, extending beyond the
beginning of the term of the office. This is amply demonstrated in the companion case
(G.R. No. 120265, Agapito A. Aquino v. COMELEC) where the determination of Aquino's
residence was still pending in the COMELEC even after the elections of May 8, 1995. This is
contrary to the summary character proceedings relating to certificates of candidacy. That
is why the law makes the receipt of certificates of candidacy a ministerial duty of the
COMELEC and its officers. The law is satisfied if candidates state in their certificates of
candidacy that they are eligible for the position which they seek to fill, leaving the
determination of their qualifications to be made after the election and only in the event
they are elected. Only in cases involving charges of false representations made in
certificates of candidacy is the COMELEC given jurisdiction.
Third is the policy underlying the prohibition against pre-proclamation cases in elections
for President, Vice President, Senators and members of the House of Representatives.
(R.A. No. 7166, § 15) The purpose is to preserve the prerogatives of the House of
Representatives Electoral Tribunal and the other Tribunals as "sole judges" under the
Constitution of the election, returns and qualifications of members of Congress of the
President and Vice President, as the case may be.106
To be sure, the authoritativeness of the Romualdez pronouncements as reiterated
in Fermin, led to the amendment through COMELEC Resolution No. 9523, on 25
September 2012 of its Rule 25. This, the 15 February1993 version of Rule 25, which
states that:
Grounds for disqualification. -Any candidate who does not possess all the qualifications of
a candidate as provided for by the Constitution or by existing law or who commits any
act declared by law to be grounds for disqualification may be disqualified from
continuing as a candidate.107
was in the 2012 rendition, drastically changed to:
Grounds. - Any candidate who, in action or protest in which he is a party, is declared by
final decision of a competent court, guilty of, or found by the Commission to be suffering
from any disqualification provided by law or the Constitution.
A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or Cancel
a Certificate of Candidacy or Petition to Declare a Candidate as a Nuisance Candidate, or a
combination thereof, shall be summarily dismissed.
Clearly, the amendment done in 2012 is an acceptance of the reality of absence of an
authorized proceeding for determining before election the qualifications of candidate.
Such that, as presently required, to disqualify a candidate there must be a declaration by
a final judgment of a competent court that the candidate sought to be disqualified "is
guilty of or found by the Commission to be suffering from any disqualification provided
by law or the Constitution."
Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 are flipsides
of one to the other. Both do not allow, are not authorizations, are not vestment of
158
jurisdiction, for the COMELEC to determine the qualification of a candidate. The facts of
qualification must beforehand be established in a prior proceeding before an authority
properly vested with jurisdiction. The prior determination of qualification may be by
statute, by executive order or by a judgment of a competent court or tribunal.
If a candidate cannot be disqualified without a prior finding that he or she is suffering
from a disqualification "provided by law or the Constitution," neither can the certificate
of candidacy be cancelled or denied due course on grounds of false representations
regarding his or her qualifications, without a prior authoritative finding that he or she is
not qualified, such prior authority being the necessary measure by which the falsity of
the representation can be found. The only exception that can be conceded are self-
evident facts of unquestioned or unquestionable veracity and judicial confessions. Such
are, anyway, bases equivalent to prior decisions against which the falsity of
representation can be determined.
The need for a predicate finding or final pronouncement in a proceeding under Rule 23
that deals with, as in this case, alleged false representations regarding the candidate's
citizenship and residence, forced the COMELEC to rule essentially that since
foundlings108 are not mentioned in the enumeration of citizens under the 1935
Constitution,109 they then cannot be citizens. As the COMELEC stated in oral arguments,
when petitioner admitted that she is a foundling, she said it all. This borders on bigotry.
Oddly, in an effort at tolerance, the COMELEC, after saying that it cannot rule that herein
petitioner possesses blood relationship with a Filipino citizen when "it is certain that
such relationship is indemonstrable," proceeded to say that "she now has the burden to
present evidence to prove her natural filiation with a Filipino parent."
The fact is that petitioner's blood relationship with a Filipino citizen is DEMONSTRABLE.
At the outset, it must be noted that presumptions regarding paternity is neither
unknown nor unaccepted in Philippine Law. The Family Code of the Philippines has a
whole chapter on Paternity and Filiation.110 That said, there is more than sufficient
evider1ce that petitioner has Filipino parents and is therefore a natural-born Filipino.
Parenthetically, the burden of proof was on private respondents to show that petitioner
is not a Filipino citizen. The private respondents should have shown that both of
petitioner's parents were aliens. Her admission that she is a foundling did not shift the
burden to her because such status did not exclude the possibility that her parents were
Filipinos, especially as in this case where there is a high probability, if not certainty, that
her parents are Filipinos.
The factual issue is not who the parents of petitioner are, as their identities are unknown,
but whether such parents are Filipinos. Under Section 4, Rule 128:
Sect. 4. Relevancy, collateral matters - Evidence must have such a relation to the fact in
issue as to induce belief in its existence or no-existence. Evidence on collateral matters
shall not be allowed, except when it tends in any reasonable degree to establish the
probability of improbability of the fact in issue.
The Solicitor General offered official statistics from the Philippine Statistics Authority
(PSA)111 that from 1965 to 1975, the total number of foreigners born in the Philippines
was 15,986 while the total number of Filipinos born in the country was 10,558,278. The
statistical probability that any child born in the Philippines in that decade is natural-born
Filipino was 99.83%. For her part, petitioner presented census statistics for Iloilo
Province for 1960 and 1970, also from the PSA. In 1960, there were 962,532 Filipinos
and 4,734 foreigners in the province; 99.62% of the population were Filipinos. In 1970,
the figures were 1,162,669 Filipinos and 5,304 foreigners, or 99.55%. Also presented
were figures for the child producing ages (15-49). In 1960, there were 230,528 female
Filipinos as against 730 female foreigners or 99.68%. In the same year, there were
210,349 Filipino males and 886 male aliens, or 99.58%. In 1970, there were 270,299
Filipino females versus 1, 190 female aliens, or 99.56%. That same year, there were
245,740 Filipino males as against only 1,165 male aliens or 99.53%. COMELEC did not
dispute these figures. Notably, Commissioner Arthur Lim admitted, during the oral
arguments, that at the time petitioner was found in 1968, the majority of the population
in Iloilo was Filipino.112
Other circumstantial evidence of the nationality of petitioner's parents are the fact that
she was abandoned as an infant in a Roman Catholic Church in Iloilo City.1âwphi1 She
also has typical Filipino features: height, flat nasal bridge, straight black hair, almond
shaped eyes and an oval face.
There is a disputable presumption that things have happened according to the ordinary
course of nature and the ordinary habits of life.113 All of the foregoing evidence, that a
person with typical Filipino features is abandoned in Catholic Church in a municipality
where the population of the Philippines is overwhelmingly Filipinos such that there
would be more than a 99% chance that a child born in the province would be a Filipino,
would indicate more than ample probability if not statistical certainty, that petitioner's
parents are Filipinos. That probability and the evidence on which it is based are
admissible under Rule 128, Section 4 of the Revised Rules on Evidence.
To assume otherwise is to accept the absurd, if not the virtually impossible, as the norm.
In the words of the Solicitor General:
Second. It is contrary to common sense because foreigners do not come to the
Philippines so they can get pregnant and leave their newborn babies behind. We do not
face a situation where the probability is such that every foundling would have a 50%
chance of being a Filipino and a 50% chance of being a foreigner. We need to frame our
questions properly. What are the chances that the parents of anyone born in the
Philippines would be foreigners? Almost zero. What are the chances that the parents of
anyone born in the Philippines would be Filipinos? 99.9%.
According to the Philippine Statistics Authority, from 2010 to 2014, on a yearly average,
there were 1,766,046 children born in the Philippines to Filipino parents, as opposed to
1,301 children in the Philippines of foreign parents. Thus, for that sample period, the
ratio of non-Filipino children to natural born Filipino children is 1:1357. This means that
the statistical probability that any child born in the Philippines would be a natural born
Filipino is 99.93%.
159
From 1965 to 1975, the total number of foreigners born in the Philippines is 15,986 xxxx
while the total number of Filipinos born in the Philippines is 15,558,278. For this period,
the ratio of non-Filipino children is 1:661. This means that the statistical probability that President:
any child born in the Philippines on that decade would be a natural born Filipino is [We] would like to request a clarification from the proponent of the amendment. The
99.83%. gentleman refers to natural children or to any kind of illegitimate children?

We can invite statisticians and social anthropologists to crunch the numbers for us, but I Sr. Rafols:
am confident that the statistical probability that a child born in the Philippines would be To all kinds of illegitimate children. It also includes natural children of unknown
a natural born Filipino will not be affected by whether or not the parents are known. If at parentage, natural or illegitimate children of unknown parents.
all, the likelihood that a foundling would have a Filipino parent might even be higher
than 99.9%. Filipinos abandon their children out of poverty or perhaps, shame. We do
not imagine foreigners abandoning their children here in the Philippines thinking those Sr. Montinola:
infants would have better economic opportunities or believing that this country is a For clarification. The gentleman said "of unknown parents." Current codes consider them
tropical paradise suitable for raising abandoned children. I certainly doubt whether a Filipino, that is, I refer to the Spanish Code wherein all children of unknown parentage
foreign couple has ever considered their child excess baggage that is best left behind. born in Spanish territory are considered Spaniards, because the presumption is that a
child of unknown parentage is the son of a Spaniard. This may be applied in the
Philippines in that a child of unknown parentage born in the Philippines is deemed to be
To deny full Filipino citizenship to all foundlings and render them stateless just because Filipino, and there is no need ...
there may be a theoretical chance that one among the thousands of these foundlings
might be the child of not just one, but two, foreigners is downright discriminatory,
irrational, and unjust. It just doesn't make any sense. Given the statistical certainty - Sr. Rafols:
99.9% - that any child born in the Philippines would be a natural born citizen, a decision There is a need, because we are relating the conditions that are [required] to be Filipino.
denying foundlings such status is effectively a denial of their birthright. There is no
reason why this Honorable Court should use an improbable hypothetical to sacrifice the Sr. Montinola:
fundamental political rights of an entire class of human beings. Your Honor, But that is the interpretation of the law, therefore, there is no [more] need for
constitutional interpretation and the use of common sense are not separate disciplines. amendment.

As a matter of law, foundlings are as a class, natural-born citizens. While the 1935 Sr. Rafols:
Constitution's enumeration is silent as to foundlings, there is no restrictive language The amendment should read thus:
which would definitely exclude foundlings either. Because of silence and ambiguity in the "Natural or illegitimate of a foreign father and a Filipino mother recognized by one, or
enumeration with respect to foundlings, there is a need to examine the intent of the the children of unknown parentage."
framers. In Nitafan v. Commissioner of Internal Revenue,114 this Court held that:
Sr. Briones:
The ascertainment of that intent is but in keeping with the fundamental The amendment [should] mean children born in the Philippines of unknown parentage.
principle of constitutional construction that the intent of the framers of the
organic law and of the people adopting it should be given effect. The primary Sr. Rafols:
task in constitutional construction is to ascertain and thereafter assure the The son of a Filipina to a Foreigner, although this [person] does not recognize the child,
realization of the purpose of the framers and of the people in the adoption of is not unknown.
the Constitution. It may also be safely assumed that the people in ratifying the
Constitution were guided mainly by the explanation offered by the framers. 115
President:
Does the gentleman accept the amendment or not?
As pointed out by petitioner as well as the Solicitor General, the deliberations of the 1934
Constitutional Convention show that the framers intended foundlings to be covered by
the enumeration. The following exchange is recorded: Sr. Rafols:
I do not accept the amendment because the amendment would exclude the children of a
Filipina with a foreigner who does not recognize the child. Their parentage is not
Sr. Rafols: For an amendment. I propose that after subsection 2, the following is inserted: unknown and I think those of overseas Filipino mother and father [whom the latter] does
"The natural children of a foreign father and a Filipino mother not recognized by the not recognize, should also be considered as Filipinos.
father.

160
President:
The question in order is the amendment to the amendment from the Gentleman from
Cebu, Mr. Briones.
Sr. Busion:
Mr. President, don't you think it would be better to leave this matter in the hands of the
Legislature?
Sr. Roxas:
Mr. President, my humble opinion is that these cases are few and far in between, that the
constitution need [not] refer to them. By international law the principle that children or
people born in a country of unknown parents are citizens in this nation is recognized, and it
is not necessary to include a provision on the subject exhaustively.116
Though the Rafols amendment was not carried out, it was not because there was any
objection to the notion that persons of "unknown parentage" are not citizens but only
because their number was not enough to merit specific mention. Such was the
account,117 cited by petitioner, of delegate and constitution law author Jose Aruego who
said:
During the debates on this provision, Delegate Rafols presented an amendment
to include as Filipino citizens the illegitimate children with a foreign father of a
mother who was a citizen of the Philippines, and also foundlings; but this
amendment was defeated primarily because the Convention believed that the
cases, being too few to warrant the inclusion of a provision in the Constitution
to apply to them, should be governed by statutory legislation. Moreover, it was
believed that the rules of international law were already clear to the effect that
illegitimate children followed the citizenship of the mother, and that foundlings
followed the nationality of the place where they were found, thereby making
unnecessary the inclusion in the Constitution of the proposed amendment.
This explanation was likewise the position of the Solicitor General during the 16
February 2016 Oral Arguments:
We all know that the Rafols proposal was rejected. But note that what was declined was
the proposal for a textual and explicit recognition of foundlings as Filipinos. And so, the
way to explain the constitutional silence is by saying that it was the view of Montinola
and Roxas which prevailed that there is no more need to expressly declare foundlings as
Filipinos.
Obviously, it doesn't matter whether Montinola's or Roxas' views were legally correct.
Framers of a constitution can constitutionalize rules based on assumptions that are
imperfect or even wrong. They can even overturn existing rules. This is basic. What
matters here is that Montinola and Roxas were able to convince their colleagues in the
convention that there is no more need to expressly declare foundlings as Filipinos
because they are already impliedly so recognized.
In other words, the constitutional silence is fully explained in terms of linguistic
efficiency and the avoidance of redundancy. The policy is clear: it is to recognize
foundlings, as a class, as Filipinos under Art. IV, Section 1 (3) of the 1935 Constitution.
This inclusive policy is carried over into the 1973 and 1987 Constitution. It is
appropriate to invoke a famous scholar as he was paraphrased by Chief Justice
Fernando: the constitution is not silently silent, it is silently vocal. 118
The Solicitor General makes the further point that the framers "worked to create a just
and humane society," that "they were reasonable patriots and that it would be unfair to
impute upon them a discriminatory intent against foundlings." He exhorts that, given the
grave implications of the argument that foundlings are not natural-born Filipinos, the
Court must search the records of the 1935, 1973 and 1987 Constitutions "for an express
intention to deny foundlings the status of Filipinos. The burden is on those who wish to
use the constitution to discriminate against foundlings to show that the constitution
really intended to take this path to the dark side and inflict this across the board
marginalization."
We find no such intent or language permitting discrimination against foundlings. On the
contrary, all three Constitutions guarantee the basic right to equal protection of the laws.
All exhort the State to render social justice. Of special consideration are several
provisions in the present charter: Article II, Section 11 which provides that the "State
values the dignity of every human person and guarantees full respect for human rights,"
Article XIII, Section 1 which mandates Congress to "give highest priority to the
enactment of measures that protect and enhance the right of all the people to human
dignity, reduce social, economic, and political inequalities x x x" and Article XV, Section 3
which requires the State to defend the "right of children to assistance, including proper
care and nutrition, and special protection from all forms of neglect, abuse, cruelty,
exploitation, and other conditions prejudicial to their development." Certainly, these
provisions contradict an intent to discriminate against foundlings on account of their
unfortunate status.
Domestic laws on adoption also support the principle that foundlings are Filipinos. These
laws do not provide that adoption confers citizenship upon the adoptee. Rather, the
adoptee must be a Filipino in the first place to be adopted. The most basic of such laws is
Article 15 of the Civil Code which provides that "[l]aws relating to family rights, duties,
status, conditions, legal capacity of persons are binding on citizens of the Philippines
even though living abroad." Adoption deals with status, and a Philippine adoption court
will have jurisdiction only if the adoptee is a Filipino. In Ellis and Ellis v. Republic,119 a
child left by an unidentified mother was sought to be adopted by aliens. This Court said:
In this connection, it should be noted that this is a proceedings in rem, which no court
may entertain unless it has jurisdiction, not only over the subject matter of the case and
over the parties, but also over the res, which is the personal status of Baby Rose as well as
that of petitioners herein. Our Civil Code (Art. 15) adheres to the theory that jurisdiction
over the status of a natural person is determined by the latter's nationality. Pursuant to
this theory, we have jurisdiction over the status of Baby Rose, she being a citizen of the
Philippines, but not over the status of the petitioners, who are foreigners.120 (Underlining
supplied)
161
Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing the Rules to
Govern the Inter-Country Adoption of Filipino Children and For Other Purposes"
(otherwise known as the "Inter-Country Adoption Act of 1995"), R.A. No. 8552, entitled
"An Act Establishing the Rules and Policies on the Adoption of Filipino Children and For
Other Purposes" (otherwise known as the Domestic Adoption Act of 1998) and this
Court's A.M. No. 02-6-02-SC or the "Rule on Adoption," all expressly refer to "Filipino
children" and include foundlings as among Filipino children who may be adopted.
It has been argued that the process to determine that the child is a foundling leading to
the issuance of a foundling certificate under these laws and the issuance of said
certificate are acts to acquire or perfect Philippine citizenship which make the foundling
a naturalized Filipino at best. This is erroneous. Under Article IV, Section 2 "Natural-born
citizens are those who are citizens of the Philippines from birth without having to
perform any act to acquire or perfect their Philippine citizenship." In the first place,
"having to perform an act" means that the act must be personally done by the citizen. In
this instance, the determination of foundling status is done not by the child but by the
authorities.121 Secondly, the object of the process is the determination of the
whereabouts of the parents, not the citizenship of the child. Lastly, the process is
certainly not analogous to naturalization proceedings to acquire Philippine citizenship,
or the election of such citizenship by one born of an alien father and a Filipino mother
under the 1935 Constitution, which is an act to perfect it.
In this instance, such issue is moot because there is no dispute that petitioner is a
foundling, as evidenced by a Foundling Certificate issued in her favor. 122 The Decree of
Adoption issued on 13 May 1974, which approved petitioner's adoption by Jesusa Sonora
Poe and Ronald Allan Kelley Poe, expressly refers to Emiliano and his wife, Rosario
Militar, as her "foundling parents," hence effectively affirming petitioner's status as a
foundling.123
Foundlings are likewise citizens under international law. Under the 1987 Constitution,
an international law can become part of the sphere of domestic law either by
transformation or incorporation. The transformation method requires that an
international law be transformed into a domestic law through a constitutional
mechanism such as local legislation.124 On the other hand, generally accepted principles
of international law, by virtue of the incorporation clause of the Constitution, form part
of the laws of the land even if they do not derive from treaty obligations. Generally
accepted principles of international law include international custom as evidence of a
general practice accepted as law, and general principles of law recognized by civilized
nations.125 International customary rules are accepted as binding as a result from the
combination of two elements: the established, widespread, and consistent practice on
the part of States; and a psychological element known as the opinionjuris sive
necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that
the practice in question is rendered obligatory by the existence of a rule of law requiring
it.126 "General principles of law recognized by civilized nations" are principles
"established by a process of reasoning" or judicial logic, based on principles which are
"basic to legal systems generally,"127 such as "general principles of equity, i.e., the general
principles of fairness and justice," and the "general principle against discrimination"
which is embodied in the "Universal Declaration of Human Rights, the International
Covenant on Economic, Social and Cultural Rights, the International Convention on the
Elimination of All Forms of Racial Discrimination, the Convention Against Discrimination
in Education, the Convention (No. 111) Concerning Discrimination in Respect of
Employment and Occupation."128 These are the same core principles which underlie the
Philippine Constitution itself, as embodied in the due process and equal protection
clauses of the Bill of Rights.129
Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court as
part of the generally accepted principles of international law and binding on the
State.130 Article 15 thereof states:
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to
change his nationality.
The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC).
Article 7 of the UNCRC imposes the following obligations on our country:
Article 7
1. The child shall be registered immediately after birth and shall have the right from
birth to a name, the right to acquire a nationality and as far as possible, the right to know
and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their
national law and their obligations under the relevant international instruments in this
field, in particular where the child would otherwise be stateless.
In 1986, the country also ratified the 1966 International Covenant on Civil and Political
Rights (ICCPR). Article 24 thereof provide for the right of every child "to acquire a
nationality:"
Article 24
1. Every child shall have, without any discrimination as to race, colour, sex, language,
religion, national or social origin, property or birth, the right, to such measures of
protection as are required by his status as a minor, on the part of his family, society and
the State.
2. Every child shall be registered immediately after birth and shall have a name.
3. Every child has the right to acquire a nationality.
162
The common thread of the UDHR, UNCRC and ICCPR is to obligate the Philippines to
grant nationality from birth and ensure that no child is stateless. This grant of nationality
must be at the time of birth, and it cannot be accomplished by the application of our
present naturalization laws, Commonwealth Act No. 473, as amended, and R.A. No. 9139,
both of which require the applicant to be at least eighteen (18) years old.
The principles found in two conventions, while yet unratified by the Philippines, are
generally accepted principles of international law. The first is Article 14 of the 1930
Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws
under which a foundling is presumed to have the "nationality of the country of birth," to
wit:
Article 14
A child whose parents are both unknown shall have the nationality of the country of
birth. If the child's parentage is established, its nationality shall be determined by the
rules applicable in cases where the parentage is known.
A foundling is, until the contrary is proved, presumed to have been born on the territory
of the State in which it was found. (Underlining supplied)
The second is the principle that a foundling is presumed born of citizens of the country
where he is found, contained in Article 2 of the 1961 United Nations Convention on the
Reduction of Statelessness:
Article 2
A foundling found in the territory of a Contracting State shall, in the absence of proof to
the contrary, be considered to have been born within the territory of parents possessing
the nationality of that State.
That the Philippines is not a party to the 1930 Hague Convention nor to the 1961
Convention on the Reduction of Statelessness does not mean that their principles are not
binding. While the Philippines is not a party to the 1930 Hague Convention, it is a
signatory to the Universal Declaration on Human Rights, Article 15(1)
ofwhich131effectively affirms Article 14 of the 1930 Hague Convention. Article 2 of the
1961 "United Nations Convention on the Reduction of Statelessness" merely "gives
effect" to Article 15(1) of the UDHR.132 In Razon v. Tagitis, 133 this Court noted that the
Philippines had not signed or ratified the "International Convention for the Protection of
All Persons from Enforced Disappearance." Yet, we ruled that the proscription against
enforced disappearances in the said convention was nonetheless binding as a "generally
accepted principle of international law." Razon v. Tagitis is likewise notable for declaring
the ban as a generally accepted principle of international law although the convention
had been ratified by only sixteen states and had not even come into force and which
needed the ratification of a minimum of twenty states. Additionally, as petitioner points
out, the Court was content with the practice of international and regional state organs,
regional state practice in Latin America, and State Practice in the United States.
Another case where the number of ratifying countries was not determinative is Mijares v.
Ranada, 134 where only four countries had "either ratified or acceded to"135 the 1966
"Convention on the Recognition and Enforcement of Foreign Judgments in Civil and
Commercial Matters" when the case was decided in 2005. The Court also pointed out
that that nine member countries of the European Common Market had acceded to the
Judgments Convention. The Court also cited U.S. laws and jurisprudence on recognition
of foreign judgments. In all, only the practices of fourteen countries were considered and
yet, there was pronouncement that recognition of foreign judgments was widespread
practice.
Our approach in Razon and Mijares effectively takes into account the fact that "generally
accepted principles of international law" are based not only on international custom, but
also on "general principles of law recognized by civilized nations," as the phrase is
understood in Article 38.1 paragraph (c) of the ICJ Statute. Justice, fairness, equity and
the policy against discrimination, which are fundamental principles underlying the Bill of
Rights and which are "basic to legal systems generally,"136 support the notion that the
right against enforced disappearances and the recognition of foreign judgments, were
correctly considered as "generally accepted principles of international law" under the
incorporation clause.
Petitioner's evidence137 shows that at least sixty countries in Asia, North and South
America, and Europe have passed legislation recognizing foundlings as its citizen. Forty-
two (42) of those countries follow the jus sanguinis regime. Of the sixty, only thirty-three
(33) are parties to the 1961 Convention on Statelessness; twenty-six (26) are not
signatories to the Convention. Also, the Chief Justice, at the 2 February 2016 Oral
Arguments pointed out that in 166 out of 189 countries surveyed (or 87.83%),
foundlings are recognized as citizens. These circumstances, including the practice of jus
sanguinis countries, show that it is a generally accepted principle of international law to
presume foundlings as having been born of nationals of the country in which the
foundling is found.
Current legislation reveals the adherence of the Philippines to this generally accepted
principle of international law. In particular, R.A. No. 8552, R.A. No. 8042 and this Court's
Rules on Adoption, expressly refer to "Filipino children." In all of them, foundlings are
among the Filipino children who could be adopted. Likewise, it has been pointed that the
DFA issues passports to foundlings. Passports are by law, issued only to citizens. This
shows that even the executive department, acting through the DFA, considers foundlings
as Philippine citizens.
Adopting these legal principles from the 1930 Hague Convention and the 1961
Convention on Statelessness is rational and reasonable and consistent with the jus
sanguinis regime in our Constitution. The presumption of natural-born citizenship of
foundlings stems from the presumption that their parents are nationals of the
Philippines. As the empirical data provided by the PSA show, that presumption is at more
than 99% and is a virtual certainty.
In sum, all of the international law conventions and instruments on the matter of
nationality of foundlings were designed to address the plight of a defenseless class which
163
suffers from a misfortune not of their own making. We cannot be restrictive as to their
application if we are a country which calls itself civilized and a member of the
community of nations. The Solicitor General's warning in his opening statement is
relevant:
.... the total effect of those documents is to signify to this Honorable Court that those
treaties and conventions were drafted because the world community is concerned that
the situation of foundlings renders them legally invisible. It would be tragically ironic if
this Honorable Court ended up using the international instruments which seek to protect
and uplift foundlings a tool to deny them political status or to accord them second-class
citizenship.138
The COMELEC also ruled139 that petitioner's repatriation in July 2006 under the
provisions of R.A. No. 9225 did not result in the reacquisition of natural-born citizenship.
The COMELEC reasoned that since the applicant must perform an act, what is reacquired
is not "natural-born" citizenship but only plain "Philippine citizenship."
The COMELEC's rule arrogantly disregards consistent jurisprudence on the matter of
repatriation statutes in general and of R.A. No. 9225 in particular.
In the seminal case of Bengson Ill v. HRET, 140 repatriation was explained as follows:
Moreover, repatriation results in the recovery of the original nationality. This means that
a naturalized Filipino who lost his citizenship will be restored to his prior status as a
naturalized Filipino citizen. On the other hand, if he was originally a natural-born citizen
before he lost his Philippine citizenship, he will be restored to his former status as a
natural-born Filipino.
R.A. No. 9225 is a repatriation statute and has been described as such in several cases.
They include Sobejana-Condon v. COMELEC141 where we described it as an
"abbreviated repatriation process that restores one's Filipino citizenship x x x." Also
included is Parreno v. Commission on Audit,142 which cited Tabasa v. Court of
Appeals,143where we said that "[t]he repatriation of the former Filipino will allow him to
recover his natural-born citizenship. Parreno v. Commission on Audit144 is categorical that
"if petitioner reacquires his Filipino citizenship (under R.A. No. 9225), he will ... recover
his natural-born citizenship."
The COMELEC construed the phrase "from birth" in the definition of natural citizens as
implying "that natural-born citizenship must begin at birth and remain uninterrupted
and continuous from birth." R.A. No. 9225 was obviously passed in line with Congress'
sole prerogative to determine how citizenship may be lost or reacquired. Congress saw it
fit to decree that natural-born citizenship may be reacquired even if it had been once
lost. It is not for the COMELEC to disagree with the Congress' determination.
More importantly, COMELEC's position that natural-born status must be continuous was
already rejected in Bengson III v. HRET145 where the phrase "from birth" was clarified to
mean at the time of birth: "A person who at the time of his birth, is a citizen of a
particular country, is a natural-born citizen thereof." Neither is "repatriation" an act to
"acquire or perfect" one's citizenship. In Bengson III v. HRET, this Court pointed out that
there are only two types of citizens under the 1987 Constitution: natural-born citizen
and naturalized, and that there is no third category for repatriated citizens:
It is apparent from the enumeration of who are citizens under the present Constitution
that there are only two classes of citizens: (1) those who are natural-born and (2) those
who are naturalized in accordance with law. A citizen who is not a naturalized Filipino,
ie., did not have to undergo the process of naturalization to obtain Philippine citizenship,
necessarily is a natural-born Filipino. Noteworthy is the absence in said enumeration of a
separate category for persons who, after losing Philippine citizenship, subsequently
reacquire it. The reason therefor is clear: as to such persons, they would either be
natural-born or naturalized depending on the reasons for the loss of their citizenship and
the mode prescribed by the applicable law for the reacquisition thereof. As respondent
Cruz was not required by law to go through naturalization proceedings in order to
reacquire his citizenship, he is perforce a natural-born Filipino. As such, he possessed all
the necessary qualifications to be elected as member of the House of Representatives.146
The COMELEC cannot reverse a judicial precedent. That is reserved to this Court. And
while we may always revisit a doctrine, a new rule reversing standing doctrine cannot be
retroactively applied. In Morales v. Court of Appeals and Jejomar Erwin S. Binay,
Jr.,147 where we decreed reversed the condonation doctrine, we cautioned that it "should
be prospective in application for the reason that judicial decisions applying or
interpreting the laws of the Constitution, until reversed, shall form part of the legal
system of the Philippines." This Court also said that "while the future may ultimately
uncover a doctrine's error, it should be, as a general rule, recognized as good law prior to
its abandonment. Consequently, the people's reliance thereupon should be respected."148
Lastly, it was repeatedly pointed out during the oral arguments that petitioner
committed a falsehood when she put in the spaces for "born to" in her application for
repatriation under R.A. No. 9225 the names of her adoptive parents, and this misled the
BI to presume that she was a natural-born Filipino. It has been contended that the data
required were the names of her biological parents which are precisely unknown.
This position disregards one important fact - petitioner was legally adopted. One of the
effects of adoption is "to sever all legal ties between the biological parents and the
adoptee, except when the biological parent is the spouse of the adoptee."149 Under R.A.
No. 8552, petitioner was also entitled to an amended birth certificate "attesting to the
fact that the adoptee is the child of the adopter(s)" and which certificate "shall not bear
any notation that it is an amended issue."150 That law also requires that "[a]ll records,
books, and papers relating to the adoption cases in the files of the court, the Department
[of Social Welfare and Development], or any other agency or institution participating in
the adoption proceedings shall be kept strictly confidential."151 The law therefore allows
petitioner to state that her adoptive parents were her birth parents as that was what
would be stated in her birth certificate anyway. And given the policy of strict
confidentiality of adoption records, petitioner was not obligated to disclose that she was
an adoptee.
164
Clearly, to avoid a direct ruling on the qualifications of petitioner, which it cannot make
in the same case for cancellation of COC, it resorted to opinionatedness which is,
moreover, erroneous. The whole process undertaken by COMELEC is wrapped in grave
abuse of discretion.
On Residence
The tainted process was repeated in disposing of the issue of whether or not petitioner
committed false material representation when she stated in her COC that she has before
and until 9 May 2016 been a resident of the Philippines for ten (10) years and eleven
(11) months.
Petitioner's claim that she will have been a resident for ten (10) years and eleven (11)
months on the day before the 2016 elections, is true.
The Constitution requires presidential candidates to have ten (10) years' residence in
the Philippines before the day of the elections. Since the forthcoming elections will be
held on 9 May 2016, petitioner must have been a resident of the Philippines prior to 9
May 2016 for ten (10) years. In answer to the requested information of "Period of
Residence in the Philippines up to the day before May 09, 2016," she put in "10 years 11
months" which according to her pleadings in these cases corresponds to a beginning date
of 25 May 2005 when she returned for good from the U.S.
When petitioner immigrated to the U.S. in 1991, she lost her original domicile, which is
the Philippines. There are three requisites to acquire a new domicile: 1. Residence or
bodily presence in a new locality; 2. an intention to remain there; and 3. an intention to
abandon the old domicile.152 To successfully effect a change of domicile, one must
demonstrate an actual removal or an actual change of domicile; a bona fide intention of
abandoning the former place of residence and establishing a new one and definite acts
which correspond with the purpose. In other words, there must basically be animus
manendi coupled with animus non revertendi. The purpose to remain in or at the domicile
of choice must be for an indefinite period of time; the change of residence must be
voluntary; and the residence at the place chosen for the new domicile must be actual.153
Petitioner presented voluminous evidence showing that she and her family abandoned
their U.S. domicile and relocated to the Philippines for good. These evidence include
petitioner's former U.S. passport showing her arrival on 24 May 2005 and her return to
the Philippines every time she travelled abroad; e-mail correspondences starting in
March 2005 to September 2006 with a freight company to arrange for the shipment of
their household items weighing about 28,000 pounds to the Philippines; e-mail with the
Philippine Bureau of Animal Industry inquiring how to ship their dog to the Philippines;
school records of her children showing enrollment in Philippine schools starting June
2005 and for succeeding years; tax identification card for petitioner issued on July 2005;
titles for condominium and parking slot issued in February 2006 and their
corresponding tax declarations issued in April 2006; receipts dated 23 February 2005
from the Salvation Army in the U.S. acknowledging donation of items from petitioner's
family; March 2006 e-mail to the U.S. Postal Service confirming request for change of
address; final statement from the First American Title Insurance Company showing sale
of their U.S. home on 27 April 2006; 12 July 2011 filled-up questionnaire submitted to
the U.S. Embassy where petitioner indicated that she had been a Philippine resident
since May 2005; affidavit from Jesusa Sonora Poe (attesting to the return of petitioner on
24 May 2005 and that she and her family stayed with affiant until the condominium was
purchased); and Affidavit from petitioner's husband (confirming that the spouses jointly
decided to relocate to the Philippines in 2005 and that he stayed behind in the U.S. only
to finish some work and to sell the family home).
The foregoing evidence were undisputed and the facts were even listed by the COMELEC,
particularly in its Resolution in the Tatad, Contreras and Valdez cases.
However, the COMELEC refused to consider that petitioner's domicile had been timely
changed as of 24 May 2005. At the oral arguments, COMELEC Commissioner Arthur Lim
conceded the presence of the first two requisites, namely, physical presence and animus
manendi, but maintained there was no animus non-revertendi.154 The COMELEC
disregarded the import of all the evidence presented by petitioner on the basis of the
position that the earliest date that petitioner could have started residence in the
Philippines was in July 2006 when her application under R.A. No. 9225 was approved by
the BI. In this regard, COMELEC relied on Coquilla v. COMELEC,155 Japzon v.
COMELEC156 and Caballero v. COMELEC. 157 During the oral arguments, the private
respondents also added Reyes v. COMELEC.158 Respondents contend that these cases
decree that the stay of an alien former Filipino cannot be counted until he/she obtains a
permanent resident visa or reacquires Philippine citizenship, a visa-free entry under
a balikbayan stamp being insufficient. Since petitioner was still an American (without
any resident visa) until her reacquisition of citizenship under R.A. No. 9225, her stay
from 24 May 2005 to 7 July 2006 cannot be counted.
But as the petitioner pointed out, the facts in these four cases are very different from her
situation. In Coquilla v. COMELEC,159 the only evidence presented was a community tax
certificate secured by the candidate and his declaration that he would be running in the
elections. Japzon v. COMELEC160 did not involve a candidate who wanted to count
residence prior to his reacquisition of Philippine citizenship. With the Court decreeing
that residence is distinct from citizenship, the issue there was whether the candidate's
acts after reacquisition sufficed to establish residence. In Caballero v. COMELEC, 161 the
candidate admitted that his place of work was abroad and that he only visited during his
frequent vacations. In Reyes v. COMELEC,162 the candidate was found to be an American
citizen who had not even reacquired Philippine citizenship under R.A. No. 9225 or had
renounced her U.S. citizenship. She was disqualified on the citizenship issue. On
residence, the only proof she offered was a seven-month stint as provincial officer. The
COMELEC, quoted with approval by this Court, said that "such fact alone is not sufficient
to prove her one-year residency."
It is obvious that because of the sparse evidence on residence in the four cases cited by
the respondents, the Court had no choice but to hold that residence could be counted
only from acquisition of a permanent resident visa or from reacquisition of Philippine
citizenship. In contrast, the evidence of petitioner is overwhelming and taken together
leads to no other conclusion that she decided to permanently abandon her U.S. residence
165
(selling the house, taking the children from U.S. schools, getting quotes from the freight
company, notifying the U.S. Post Office of the abandonment of their address in the U.S.,
donating excess items to the Salvation Army, her husband resigning from U.S.
employment right after selling the U.S. house) and permanently relocate to the
Philippines and actually re-established her residence here on 24 May 2005 (securing
T.I.N, enrolling her children in Philippine schools, buying property here, constructing a
residence here, returning to the Philippines after all trips abroad, her husband getting
employed here). Indeed, coupled with her eventual application to reacquire Philippine
citizenship and her family's actual continuous stay in the Philippines over the years, it is
clear that when petitioner returned on 24 May 2005 it was for good.
In this connection, the COMELEC also took it against petitioner that she had entered the
Philippines visa-free as a balikbayan. A closer look at R.A. No. 6768 as amended,
otherwise known as the "An Act Instituting a Balikbayan Program," shows that there is
no overriding intent to treat balikbayans as temporary visitors who must leave after one
year. Included in the law is a former Filipino who has been naturalized abroad and
"comes or returns to the Philippines." 163 The law institutes a balikbayan program
"providing the opportunity to avail of the necessary training to enable the balikbayan to
become economically self-reliant members of society upon their return to the
country"164in line with the government's "reintegration
program."165 Obviously, balikbayans are not ordinary transients.
Given the law's express policy to facilitate the return of a balikbayan and help him
reintegrate into society, it would be an unduly harsh conclusion to say in absolute terms
that the balikbayan must leave after one year. That visa-free period is obviously granted
him to allow him to re-establish his life and reintegrate himself into the community
before he attends to the necessary formal and legal requirements of repatriation. And
that is exactly what petitioner did - she reestablished life here by enrolling her children
and buying property while awaiting the return of her husband and then applying for
repatriation shortly thereafter.
No case similar to petitioner's, where the former Filipino's evidence of change in
domicile is extensive and overwhelming, has as yet been decided by the Court.
Petitioner's evidence of residence is unprecedented. There is no judicial precedent that
comes close to the facts of residence of petitioner. There is no indication in Coquilla v.
COMELEC,166 and the other cases cited by the respondents that the Court intended to
have its rulings there apply to a situation where the facts are different. Surely, the issue
of residence has been decided particularly on the facts-of-the case basis.
To avoid the logical conclusion pointed out by the evidence of residence of petitioner, the
COMELEC ruled that petitioner's claim of residence of ten (10) years and eleven (11)
months by 9 May 2016 in her 2015 COC was false because she put six ( 6) years and six (
6) months as "period of residence before May 13, 2013" in her 2012 COC for Senator.
Thus, according to the COMELEC, she started being a Philippine resident only in
November 2006. In doing so, the COMELEC automatically assumed as true the statement
in the 2012 COC and the 2015 COC as false.
As explained by petitioner in her verified pleadings, she misunderstood the date
required in the 2013 COC as the period of residence as of the day she submitted that COC
in 2012. She said that she reckoned residency from April-May 2006 which was the
period when the U.S. house was sold and her husband returned to the Philippines. In that
regard, she was advised by her lawyers in 2015 that residence could be counted from 25
May 2005.
Petitioner's explanation that she misunderstood the query in 2012 (period of residence
before 13 May 2013) as inquiring about residence as of the time she submitted the COC,
is bolstered by the change which the COMELEC itself introduced in the 2015 COC which
is now "period of residence in the Philippines up to the day before May 09, 2016." The
COMELEC would not have revised the query if it did not acknowledge that the first
version was vague.
That petitioner could have reckoned residence from a date earlier than the sale of her
U.S. house and the return of her husband is plausible given the evidence that she had
returned a year before. Such evidence, to repeat, would include her passport and the
school records of her children.
It was grave abuse of discretion for the COMELEC to treat the 2012 COC as a binding and
conclusive admission against petitioner. It could be given in evidence against her, yes,
but it was by no means conclusive. There is precedent after all where a candidate's
mistake as to period of residence made in a COC was overcome by
evidence. In Romualdez-Marcos v. COMELEC,167 the candidate mistakenly put seven (7)
months as her period of residence where the required period was a minimum of one
year. We said that "[i]t is the fact of residence, not a statement in a certificate of candidacy
which ought to be decisive in determining whether or not an individual has satisfied the
constitutions residency qualification requirement." The COMELEC ought to have looked at
the evidence presented and see if petitioner was telling the truth that she was in the
Philippines from 24 May 2005. Had the COMELEC done its duty, it would have seen that
the 2012 COC and the 2015 COC both correctly stated the pertinent period of residency.
The COMELEC, by its own admission, disregarded the evidence that petitioner actually
and physically returned here on 24 May 2005 not because it was false, but only because
COMELEC took the position that domicile could be established only from petitioner's
repatriation under R.A. No. 9225 in July 2006. However, it does not take away the fact
that in reality, petitioner had returned from the U.S. and was here to stay permanently,
on 24 May 2005. When she claimed to have been a resident for ten (10) years and eleven
(11) months, she could do so in good faith.
For another, it could not be said that petitioner was attempting to hide anything. As
already stated, a petition for quo warranto had been filed against her with the SET as
early as August 2015. The event from which the COMELEC pegged the commencement of
residence, petitioner's repatriation in July 2006 under R.A. No. 9225, was an established
fact to repeat, for purposes of her senatorial candidacy.
166
Notably, on the statement of residence of six (6) years and six (6) months in the 2012
COC, petitioner recounted that this was first brought up in the media on 2 June 2015 by
Rep. Tobias Tiangco of the United Nationalist Alliance. Petitioner appears to have
answered the issue immediately, also in the press. Respondents have not disputed
petitioner's evidence on this point. From that time therefore when Rep. Tiangco
discussed it in the media, the stated period of residence in the 2012 COC and the
circumstances that surrounded the statement were already matters of public record and
were not hidden.
Petitioner likewise proved that the 2012 COC was also brought up in the SET petition
for quo warranto. Her Verified Answer, which was filed on 1 September 2015, admitted
that she made a mistake in the 2012 COC when she put in six ( 6) years and six ( 6)
months as she misunderstood the question and could have truthfully indicated a longer
period. Her answer in the SET case was a matter of public record. Therefore, when
petitioner accomplished her COC for President on 15 October 2015, she could not be said to
have been attempting to hide her erroneous statement in her 2012 COC for Senator which
was expressly mentioned in her Verified Answer.
The facts now, if not stretched to distortion, do not show or even hint at an intention to
hide the 2012 statement and have it covered by the 2015 representation. Petitioner,
moreover, has on her side this Court's pronouncement that:
Concededly, a candidate's disqualification to run for public office does not necessarily
constitute material misrepresentation which is the sole ground for denying due course
to, and for the cancellation of, a COC. Further, as already discussed, the candidate's
misrepresentation in his COC must not only refer to a material fact (eligibility and
qualifications for elective office), but should evince a deliberate intent to mislead,
misinform or hide a fact which would otherwise render a candidate ineligible. It must be
made with an intention to deceive the electorate as to one's qualifications to run for
public office.168
In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a good
number of evidenced dates all of which can evince animus manendi to the Philippines
and animus non revertedi to the United States of America. The veracity of the events of
coming and staying home was as much as dismissed as inconsequential, the focus having
been fixed at the petitioner's "sworn declaration in her COC for Senator" which the
COMELEC said "amounts to a declaration and therefore an admission that her residence
in the Philippines only commence sometime in November 2006"; such that "based on
this declaration, [petitioner] fails to meet the residency requirement for President." This
conclusion, as already shown, ignores the standing jurisprudence that it is the fact of
residence, not the statement of the person that determines residence for purposes of
compliance with the constitutional requirement of residency for election as President. It
ignores the easily researched matter that cases on questions of residency have been
decided favorably for the candidate on the basis of facts of residence far less in number,
weight and substance than that presented by petitioner.169 It ignores, above all else, what
we consider as a primary reason why petitioner cannot be bound by her declaration in
her COC for Senator which declaration was not even considered by the SET as an issue
against her eligibility for Senator. When petitioner made the declaration in her COC for
Senator that she has been a resident for a period of six (6) years and six (6) months
counted up to the 13 May 2013 Elections, she naturally had as reference the residency
requirements for election as Senator which was satisfied by her declared years of
residence. It was uncontested during the oral arguments before us that at the time the
declaration for Senator was made, petitioner did not have as yet any intention to vie for
the Presidency in 2016 and that the general public was never made aware by petitioner,
by word or action, that she would run for President in 2016. Presidential candidacy has a
length-of-residence different from that of a senatorial candidacy. There are facts of
residence other than that which was mentioned in the COC for Senator. Such other facts
of residence have never been proven to be false, and these, to repeat include:
[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] husband however
stayed in the USA to finish pending projects and arrange the sale of their family home.
Meanwhile [petitioner] and her children lived with her mother in San Juan City.
[Petitioner] enrolled Brian in Beacon School in Taguig City in 2005 and Hanna in
Assumption College in Makati City in 2005. Anika was enrolled in Learning Connection in
San Juan in 2007, when she was already old enough to go to school.
In the second half of 2005, [petitioner] and her husband acquired Unit 7F of One Wilson
Place Condominium in San Juan. [Petitioner] and her family lived in Unit 7F until the
construction of their family home in Corinthian Hills was completed.
Sometime in the second half of 2005, [petitioner's] mother discovered that her former
lawyer who handled [petitioner's] adoption in 1974 failed to secure from the Office of
the Civil Registrar of Iloilo a new Certificate of Live Birth indicating [petitioner's] new
name and stating that her parents are "Ronald Allan K. Poe" and "Jesusa L. Sonora."
In February 2006, [petitioner] travelled briefly to the US in order to supervise the
disposal of some of the family's remaining household belongings.1a\^/phi1 [Petitioner]
returned to the Philippines on 11 March 2006.
In late March 2006, [petitioner's] husband informed the United States Postal Service of
the family's abandonment of their address in the US.
The family home in the US was sole on 27 April 2006.
In April 2006, [petitioner's] husband resigned from his work in the US. He returned to
the Philippines on 4 May 2006 and began working for a Philippine company in July 2006.
In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian Hills,
where they eventually built their family home.170
In light of all these, it was arbitrary for the COMELEC to satisfy its intention to let the
case fall under the exclusive ground of false representation, to consider no other date
than that mentioned by petitioner in her COC for Senator.
167
All put together, in the matter of the citizenship and residence of petitioner for her
candidacy as President of the Republic, the questioned Resolutions of the COMELEC in
Division and En Banc are, one and all, deadly diseased with grave abuse of discretion
from root to fruits.

WHEREFORE, the petition is GRANTED. The Resolutions, to wit:

1. dated 1 December 2015 rendered through the COMELEC Second Division, in SPA No.
15-001 (DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora
Poe-Llamanzares, respondent, stating that:

[T]he Certificate of Candidacy for President of the Republic of the Philippines in the May
9, 2016 National and Local Elections filed by respondent Mary Grace Natividad Sonora
Poe-Llamanzares is hereby GRANTED.

2. dated 11 December 2015, rendered through the COMELEC First Division, in the
consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary
Grace Natividad Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC)
entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez, petitioner,
v. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; stating that:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES,

to GRANT the petitions and cancel the Certificate of Candidacy of MARY GRACE
NATIVIDAD SONORA POE-LLAMANZARES for the elective position of President of the
Republic of the Philippines in connection with the 9 May 2016 Synchronized Local and
National Elections.

3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1 December 2015
Resolution of the Second Division stating that:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES,

to DENY the Verified Motion for Reconsideration of SENATOR MARY GRACE NATIVIDAD
SONORA POE-LLAMANZARES. The Resolution dated 11 December 2015 of the
Commission First Division is AFFIRMED.

4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11 December 2015
Resolution of the First Division.

are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE NATIVIDAD SONORA
POE-LLAMANZARES is DECLARED QUALIFIED to be a candidate for President in the
National and Local Elections of 9 May 2016.

SO ORDERED.

168