EN BANC violation of mandatory provisions of law relating to or governing
elections ...." in that more than 200 voters were registered per precinct
G.R. No. L-29333 February 27, 1969
MARIANO LL. BADELLES, protestant-appellant,
vs.
CAMILO P. CABILI, protegee-appellee.
--------------------------
G.R. No. L-29334 February 27, 1969
BONIFACIO P. LEGASPI and CECILlO T. BARAZON protestants-
appellants,
vs.
FELIX Z. ACTUB, PROVIDENCIO P. ABRAGAN, MANUEL F.
CELDRAN, CASIMERO P. CABIGON and BENITO ONG, protestees-
appellees.
Bonifacio P. Legaspi for and in his own behalf.
Camilo P. Cabili. Gerardo B. Padilla and Ignacio Español and Voltaire
I. Roviro for protestees-appellees.
FERNANDO, J.:
Two election protests against the duly proclaimed Mayor and
Councilors of Iligan City, after the Nov. 14, 1967 elections, based on
the allegations of flagrant violations of certain mandatory provisions of
the Election Code, to be more specifically set forth hereafter, were
dismissed in a single order by the Court of First Instance of Lanao del
Norte, the Honorable Teodulo C. Tandayag presiding. The cases are
now before us on appeal.
In one of them, 1 the election of Honorable Camilo P. Cabili to the
Office of City Mayor of Iligan City, was contested by protestant, now
appellant, Mariano Badelles. In the other, 2 the protestants are the now
appellants, Bonifacio P. Legaspi and Cecilia T. Barazon who along
with the five protestees 3 were among those who were registered
candidates voted for in such election for councilors in the City of Iligan,
with the protestees being credited with the five highest number of
votes, with protestants Legaspi and Barazon obtaining sixth and
seventh places, respectively.
In such order of dismissal, it was admitted that while irregularities as
well as misconduct on the part of election officers were alleged in the
election protests filed, there was however an absence of an allegation
that they would change the result of the election in favor of the
protestants and against the protestees, that such irregularities would
destroy the secrecy and integrity of the ballots cast, or that the
protestees knew of or participated in the commission thereof. For the
lower court then, the lack of a cause of action was rather evident.
Hence the order of dismissal of March 23, 1968, which was sought to
be fortified by the invocation of the doctrines that voters should not be
deprived of their right to vote occasioned by the failure of the election
officials to comply with the formal prerequisites to the exercise of the
right of suffrage and that the rules and regulations for the conduct of
elections while mandatory before the voting should be considered
directory thereafter. The validity of such order of dismissal is now to be
inquired into by us in this appeal.
In the petition of protestant Badelles, dated December 8, 1967, and
marked as received the next day by the Clerk of Court of the Court of
First Instance of Lanao del Norte, 15th Judicial District, it was stated
that both he and protestee Camilo P. Cabili were the duly registered
candidates for the Office of City Mayor of Iligan City, both having filed
their respective certificates of candidacy in accordance with law and as
such candidates voted for in the November 14, 1967 election. It was
then alleged that the Board of Canvassers, on November 25, 1967,
proclaimed as elected protestee for having obtained 11,310 votes
while protestant was credited with 8,966 votes. Protestant would
impugn the election of Cabili on the ground that there were "flagrant
contrary to the provision limiting such number of 200 only and that no
publication of the list of voters for each precinct was made up to the
election day itself, enabling persons who under the law could not vote
being allowed to do so. As a result of such alleged "flagrant violations
of the laws relation to or governing elections" around 8,300 individuals
were allowed to vote illegally.
It was likewise asserted that not less than 8,000 qualified voters were
unable to exercise their right of suffrage in view of their failure, without
any fault on their part, to have the proper identification cards or the
non-listing of their names in the list of voters. It was stated further that
even in the case of those individuals provided with identification cards
with their names included in the list of voters, they could not avail
themselves of their right of suffrage as their applications for registration
could not be found. Mention was also made of the fact that the final
lists of voters and the applications for registration were delivered to
their respective precincts late on election day itself thus preventing
them from voting. Moreover, confusion, so it was alleged, was caused
by the excessive number of voters being listed and many having been
assigned to precincts other than the correct ones.
What was thus objected to is the fact that illegal votes were cast by
those not qualified to do so, numbering 8,300 or more and that an
approximately equal number, who were duly registered with the
Commission on Elections, Iligan City, were unable to vote due to the
above circumstances. The proclamation then could not have reflected
the true will of the electorate as to who was the mayor elected, as the
majority of protestee Cabili over the protestant consisted of only 2,344
votes.
The prayer was among others for the proclamation of protestee as well
as other candidates for elective positions in the City of Iligan being set
aside and declared null and void, protestant pleading further that he be
granted other such relief as may be warranted in law and equity.
The protest of the candidates for councilor Legaspi and Barazon in the
other case against protestees 4 was in substance similarly worded. The
prayer was for the setting aside and declaring null and void the
proclamation of protestees with protestants seeking such other relief
which should be theirs according to law and to equity.
In the first case, protestee Cabili moved to dismiss the petition on the
following grounds: "1. That the protest was filed beyond the
reglementary period allowed by the Revised Election Code; 2. That
[the lower court] has no jurisdiction over the subject matter of the
present case, the Commission on Elections being the proper body to
hear the same; 3. That the complaint states no cause of action." 5 This
very same grounds were relied upon in a motion to dismiss by
protestees Actub and Cabigon, filed in the other suit.
As above noted, in a single order of March 23, 1968, the two above
election protests were dismissed, the lower court being of the opinion
that neither petition alleged a cause of action "to justify [it] to try the
same." The first ground of the motion to dismiss to the effect that the
protests in both cases were filed beyond the reglementary period was
rejected. The claim as to lack of jurisdiction was likewise held to be
without merit. The single order of dismissal in both cases as indicated
was based on the lack of a cause of action.
The reasoning followed by the lower court in reaching the above
conclusion that there was no cause of action, proceeded along these
lines: "Mere irregularities or misconduct on the part of election officers
which do not tend to affect the result of the elections are not of
themselves either ground for contest or for proper matters of inquiry...
There is no allegation in the protest that the alleged irregularities
committed by the election officers would tend to change the result of
the election in favor of the protestants and against the protestees.
There is no allegation in the petition that the 8,000 voters who failed to
vote were all voters of protestants and the 8,300 illegal voters who
voted were for the protestees. There is, therefore, no legal and
practical justification for the court to inquire into the irregularities
committed by the election officials, as alleged in the petition, for it
would not give any benefit in favor of the protestants to the end that
they will be declared the duly elected mayor and councilors,
respectively, of this City." 6
It was further stated in such order of dismissal: "There is no allegation
in the petition that the irregularities committed by the election officials
have destroyed the secrecy and integrity of the ballots cast. There is
no allegation in the petition that the non-compliance of the election
officials of the provisions of the election laws regarding the registration
of voters were intentional on their part for the purpose of committing
frauds for the benefit of the protestees. There is no allegation in the
petition that because of the alleged irregularities committed by the
election officials in not following the provisions of the election laws
regarding the registration of voters and the distribution of the precincts,
that all the votes cast during said elections are illegal, nor is there an
allegation in the protests that the irregularities committed by the
election officials would affect the election in favor of the protestees." 7
A greater regard for the cause of accuracy ought to have admonished
the lower court from asserting in an uncompromising tone the absence
of an allegation that the protestants in both cases failed to allege that if
the facts pleaded by them were proved the result would not have been
different. It is true the complaints could have been more explicitly
worded, but as they stood, the absence of such a claim could not be so
confidently asserted.
To repeat, both protests were dismissed. We do not discount a certain
degree of plausibility attaching to the line of reasoning thus pursued by
the lower court. We are not unaware of the undeniable fact that both
petitions were not distinguished by skill in their drafting or precision in
their terminology. Nonetheless the seriousness and gravity of the
imputed failure to have the elections conducted freely and honestly,
with such irregularities alleged, give rise to doubts, rational and honest,
as to who were the duly elected officials. Such allegations, it is to be
stressed, would have to be accepted at their face value for the purpose
of determining whether there is a cause of action, a motion to dismiss
amounting to a hypothetical admission of facts thus pleaded. We
cannot in law and in conscience then sustain the order of dismissal.
Without the lower court having so intended, the dismissal would
amount to judicial abnegation of a sworn duty to inquire into and pass
upon in an appropriate proceeding allegations of misconduct and
misdeeds of such character. Accordingly, we reverse.
Abes v. Commission on Elections 8 points the way, but the lower court
was apparently impervious to its teaching. It may not be controlling, but
it furnishes more than a hint. It would seem, though, that for the court
below, its message did not ring out loud and clear.
The opinion in the Abes case, penned by Justice Sanchez, starts thus:
"Petitioner's cry for relief, so their petition avers, is planted upon the
constitutional mandate of free, orderly, and honest elections.
Specifically, they list a number of repressible acts." Among those
mentioned were that blank official registration forms were taken from
the office of the Quezon City Comelec Register several weeks before
election day, November 14, 1967; that active campaigning within the
polling places by Nacionalista leaders or sympathizers of Nacionalista
candidates were allowed; that voters were permitted to vote on mere
mimeographed notices of certain Nacionalista candidates; that voters
were compelled to fill their official ballots on open tables, desks and in
many precincts outside the polling places; that thousands of voters
sympathetic to the Nacionalista candidates were allowed to vote
beyond the hours for voting allowed by law; that identification cards
were delivered by partisan leaders of respondents Nacionalista
candidates, and those who did not signify their preference for
Nacionalista candidates were not given such cards; that the precinct
books of voters were not sealed within the deadline fixed by law; and
that the resulting effect of irregularities was to prevent full fifty-one per
cent of the registered voters from voting.
One of the issues raised on the above facts is whether or not the
Commission on Elections could annul the aforesaid election in Quezon
City on the above allegations of fraud, terrorism and other illegal
practices committed before and during the election. The petition did not
prosper; it was dismissed. The remedy, we held, lay not with the
Commission on Elections but with the courts of justice in an election
protest.
In the language of Justice Sanchez: "The boundaries of the forbidden
area into which Comelec may not tread are also marked by
jurisprudence. That Comelec is not the proper forum to seek
annulment of an election based on terrorism, frauds and other illegal
practices, is a principle emphasized in decisions of this Court." For as
announced in Nacionalista Party v. Commission on
Elections, 9 assuming that there be a failure to conduct an election in a
free, orderly and honest manner, "the duty to cure or remedy the
resulting evil" did not rest with the Commission on Elections but in
"some other agencies of the Government." More specifically, with
reference to provincial and municipal officials, election contests "are
entrusted to the courts." Then came this express affirmation: "The
power to decide election contests necessarily includes the power to
determine the validity or nullity of the votes questioned by either of the
contestants." .
As so emphatically observed in the Abes opinion, "there has been
neither deviation nor retreat from the foregoing pronouncement." After
which came the following: "The ratiocination advanced that there was
failure of election due to rampancy of terrorism, frauds, and other
irregularities, before and during elections, such that allegedly about
51% of the registered voters were not able to vote, will not carry the
day for petitioners. For, in the first place, this is grounded upon bare
assertions. Respondents contest the correctness thereof. And in the
answer of respondents Amoranto, Mathay and others, they aver that
out of 162,457 registered voters in Quezon City, 100,382 voters
actually cast their votes — about 62% of the registered voters. But
above all, as pointed out in City Board of Canvassers vs. Moscoso,
[the] nullity of an election for municipal officials should be determined
in a petition contesting the election of municipal officers-elect to be
filed before the Court of First Instance."
Why an election protest is more fitly and appropriately the procedure
for determining whether irregularities or serious violations of the
electoral law vitiated the conduct of elections was clearly and
succinctly explained in the Moscoso decision above cited, the opinion
coming from Justice Makalintal. 10 Thus: "The question of whether or
not there had been terrorism, vote-buying and other irregularities in the
1959 elections in Tacloban City should be ventilated in a regular
election protest, pursuant to section 174 of the Election Code, and not
in a petition to enjoin the city board of canvassers from canvassing the
election returns and proclaiming the winning candidates for municipal
offices."
It would follow then that if the grievance relied upon is the widespread
irregularities and the flagrant violations of the election law, the proper
remedy is the one availed of here, the protest.
That such should be the case should occasion no surprise. Time and
time again, 11 we have stressed the importance of preserving inviolate
the right of suffrage. If that right be disregarded or frittered away, then
popular sovereignty becomes a myth.
As Justice Laurel correctly pointed out: "As long as popular
government is an end to be achieved and safeguarded, suffrage,
whatever may be the modality and form devised, must continue to be
the means by which the great reservoir of power must be emptied into
the receptacular agencies wrought by the people through their
Constitution in the interest of good government and the common weal.
Republicanism, in so far as it implies the adoption of a representative
type of government, necessarily points to the enfranchised citizen as a
particle of popular sovereignty and as the ultimate source of the
established authority." 12
A republic then to be true to its name requires that the government
rests on the consent of the people, consent freely given, intelligently
arrived at, honestly recorded, and thereafter counted. Only thus can
they be really looked upon as the ultimate sources of established
authority. It is their undeniable right to have officials of their unfettered
choice. The election law has no justification except as a means for
assuring a free, honest and orderly expression of their views. It is of
the essence that corruption and irregularities should not be permitted
to taint the electoral process.

It may not always be thus unfortunately. That should be the ideal

however. If there be a failure to observe the mandates of the Election
Code, the aggrieved parties should not be left remediless. Under the
law as it stands, it is precisely an election protest that fitly serves that
purpose.lawphi1.nêt

It was sought to be thus utilized in these two cases, perhaps in a rather

awkward and far from entirely satisfactory manner. Than itself is no
reason for the courts to slam the door against any opportunity for
redress. Yet, that is what would happen if the order of dismissal
complained of were not set aside.

Hence the inevitability of its reversal. The scope of our decision must
not be misinterpreted however. All that it directs is that the protetees in
both cases be required to answer. Thereafter, if, as is not unlikely,
there be a denial of the serious imputations made as to the alleged
irregularities, the lower court could properly inquire into what actually
transpired. After the facts are thus ascertained in accordance with the
accepted procedural rules, then the appropriate law could be applied.

It must be clearly emphasized that we do not at this stage intimate any

view as to the merit, or lack of it, of either protest. That would be
premature to say the least. All we do is to set aside the order of
dismissal.

WHEREFORE, the order of dismissal of March 23, 1968, is reversed

and the two cases remanded to the lower court for proceeding and trial
in accordance with this opinion and the law. Without costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez,

Castro, Capistrano and Teehankee, JJ., concur.
 EN BANC
twelve (12) Senators shall serve for a term of six (6) years and the
[ G.R. No. 148334, January 21, 2004 ]
thirteenth (13th) Senator shall serve the unexpired term of three (3)
ARTURO M. TOLENTINO AND ARTURO C. MOJICA, PETITIONERS,
VS. COMMISSION ON ELECTIONS, SENATOR RALPH G. RECTO years of Senator Teofisto T. Guingona, Jr. who was appointed Vice-
AND SENATOR GREGORIO B. HONASAN, RESPONDENTS.
President.”[3] Respondents Ralph Recto (“Recto”) and Gregorio
DECISION
Honasan (“Honasan”) ranked 12th and 13th, respectively, in Resolution
CARPIO, J.:
No. 01-005.
The Case

On 20 June 2001, petitioners Arturo Tolentino and Arturo Mojica

This is a petition for prohibition to set aside Resolution No. NBC 01-
(“petitioners”), as voters and taxpayers, filed the instant petition for
005 dated 5 June 2001 (“Resolution No. 01-005”) and Resolution No.
prohibition, impleading only COMELEC as respondent. Petitioners
NBC 01-006 dated 20 July 2001 (“Resolution No. 01-006”) of
sought to enjoin COMELEC from proclaiming with finality the candidate
respondent Commission on Elections (“COMELEC”). Resolution No.
for Senator receiving the 13th highest number of votes as the winner in
01-005 proclaimed the 13 candidates elected as Senators in the 14
the special election for a single three-year term seat. Accordingly,
May 2001 elections while Resolution No. 01-006 declared “official and
petitioners prayed for the nullification of Resolution No. 01-005 in so far
final” the ranking of the 13 Senators proclaimed in Resolution No. 01-
as it makes a proclamation to such effect.
005.

Petitioners contend that COMELEC issued Resolution No. 01-005

The Facts
without jurisdiction because: (1) it failed to notify the electorate of the

position to be filled in the special election as required under Section 2

Shortly after her succession to the Presidency in January 2001,
of Republic Act No. 6645 (“R.A. No. 6645”);[4] (2) it failed to require
President Gloria Macapagal-Arroyo nominated then Senator Teofisto
senatorial candidates to indicate in their certificates of candidacy
T. Guingona, Jr. (“Senator Guingona”) as Vice-President. Congress
whether they seek election under the special or regular elections as
confirmed the nomination of Senator Guingona who took his oath as
allegedly required under Section 73 of Batas Pambansa Blg.
Vice-President on 9 February 2001.
881;[5] and, consequently, (3) it failed to specify in the Voters

Information Sheet the candidates seeking election under the special

Following Senator Guingona’s confirmation, the Senate on 8 February
or regular senatorial elections as purportedly required under Section 4,
2001 passed Resolution No. 84 (“Resolution No. 84”) certifying to the
paragraph 4 of Republic Act No. 6646 (“R.A. No. 6646”).[6] Petitioners
existence of a vacancy in the Senate. Resolution No. 84 called on
add that because of these omissions, COMELEC canvassed all the
COMELEC to fill the vacancy through a special election to be held
votes cast for the senatorial candidates in the 14 May 2001 elections
simultaneously with the regular elections on 14 May 2001. Twelve
without distinction such that “there were no two separate Senate
Senators, with a 6-year term each, were due to be elected in that
elections held simultaneously but just a single election for thirteen
election.[1] Resolution No. 84 further provided that the “Senatorial
seats, irrespective of term.”[7]
candidate garnering the 13th highest number of votes shall serve only

for the unexpired term of former Senator Teofisto T. Guingona, Jr.,”

Stated otherwise, petitioners claim that if held simultaneously, a
which ends on 30 June 2004.[2]
special and a regular election must be distinguished in the

documentation as well as in the canvassing of their results. To support

On 5 June 2001, after COMELEC had canvassed the election results
their claim, petitioners cite the special elections simultaneously held
from all the provinces but one (Lanao del Norte), COMELEC issued
with the regular elections of 13 November 1951 and 8 November 1955
Resolution No. 01-005 provisionally proclaiming 13 candidates as the
to fill the seats vacated by Senators Fernando Lopez and Carlos P.
elected Senators. Resolution No. 01-005 also provided that “the first
Garcia, respectively, who became Vice-Presidents during their tenures
in the Senate.[8] Petitioners point out that in those elections, COMELEC

separately canvassed the votes cast for the senatorial candidates (1) Procedurally –

running under the regular elections from the votes cast for the (a) whether the petition is in fact a petition for quo warranto over which

candidates running under the special elections. COMELEC also the Senate Electoral Tribunal is the sole judge;

separately proclaimed the winners in each of those elections. [9]

(b) whether the petition is moot; and

Petitioners sought the issuance of a temporary restraining order during

the pendency of their petition. (c) whether petitioners have standing to litigate.

(2) On the merits, whether a special election to fill a vacant three-year

Without issuing any restraining order, we required COMELEC to term Senate seat was validly held on 14 May 2001.

Comment on the petition.

The Ruling of the Court

On 20 July 2001, after COMELEC had canvassed the results from all

the provinces, it issued Resolution No. 01-006 declaring “official and The petition has no merit.

final” the ranking of the 13 Senators proclaimed in Resolution No. 01-

On the Preliminary Matters
005. The 13 Senators took their oaths of office on 23 July 2001.

The Nature of the Petition and the Court’s Jurisdiction

In view of the issuance of Resolution No. 01-006, the Court required

petitioners to file an amended petition impleading Recto and Honasan

A quo warranto proceeding is, among others, one to determine the
as additional respondents. Petitioners accordingly filed an amended
right of a public officer in the exercise of his office and to oust him from
petition in which they reiterated the contentions raised in their original
its enjoyment if his claim is not well-founded.[10] Under Section 17,
petition and, in addition, sought the nullification of Resolution No. 01-
Article VI of the Constitution, the Senate Electoral Tribunal is the sole
006.
judge of all contests relating to the qualifications of the members of the

Senate.
In their Comments, COMELEC, Honasan, and Recto all claim that a

special election to fill the seat vacated by Senator Guingona was

A perusal of the allegations contained in the instant petition shows,
validly held on 14 May 2001. COMELEC and Honasan further raise
however, that what petitioners are questioning is the validity of the
preliminary issues on the mootness of the petition and on petitioners’
special election on 14 May 2001 in which Honasan was elected.
standing to litigate. Honasan also claims that the petition, which seeks
Petitioners’ various prayers are, namely: (1) a “declaration” that no
the nullity of his proclamation as Senator, is actually a quo
special election was held simultaneously with the general elections on
warranto petition and the Court should dismiss the same for lack of
14 May 2001; (2) to enjoin COMELEC from declaring anyone as
jurisdiction. For his part, Recto, as the 12th ranking Senator, contends
having won in the special election; and (3) to annul Resolution Nos.
he is not a proper party to this case because the petition only involves
01-005 and 01-006 in so far as these Resolutions proclaim Honasan
the validity of the proclamation of the 13th placer in the 14 May 2001
as the winner in the special election. Petitioners anchor their prayers
senatorial elections.
on COMELEC’s alleged failure to comply with certain requirements

The Issues pertaining to the conduct of that special election. Clearly then, the

petition does not seek to determine Honasan’s right in the exercise of

The following are the issues presented for resolution: his office as Senator. Petitioners’ prayer for the annulment of

Honasan’s proclamation and, ultimately, election is merely incidental to

petitioners’ cause of action. Consequently, the Court can properly interest in a case such that the party has sustained or will sustain

exercise jurisdiction over the instant petition. direct injury because of the challenged governmental act.[15] The

requirement of standing, which necessarily “sharpens the presentation

On the Mootness of the Petition of issues,”[16] relates to the constitutional mandate that this Court settle

only actual cases or controversies.[17] Thus, generally, a party will be

COMELEC contends that its proclamation on 5 June 2001 of the 13 allowed to litigate only when (1) he can show that he has personally

Senators and its subsequent confirmation on 20 July 2001 of the suffered some actual or threatened injury because of the allegedly

ranking of the 13 Senators render the instant petition to set aside illegal conduct of the government; (2) the injury is fairly traceable to the

Resolutions Nos. 01-005 and 01-006 moot and academic. challenged action; and (3) the injury is likely to be redressed by a

favorable action.[18]

Admittedly, the office of the writ of prohibition is to command a tribunal

or board to desist from committing an act threatened to be done Applied strictly, the doctrine of standing to litigate will indeed bar the

without jurisdiction or with grave abuse of discretion amounting to lack instant petition. In questioning, in their capacity as voters, the validity of
[11]
or excess of jurisdiction. Consequently, the writ will not lie to enjoin the special election on 14 May 2001, petitioners assert a harm

acts already done.[12] However, as an exception to the rule on classified as a “generalized grievance.” This generalized grievance is

mootness, courts will decide a question otherwise moot if it is capable shared in substantially equal measure by a large class of voters, if not

of repetition yet evading review.[13]Thus, in Alunan III v. Mirasol,[14] we all the voters, who voted in that election.[19] Neither have petitioners

took cognizance of a petition to set aside an order canceling the alleged, in their capacity as taxpayers, that the Court should give due

general elections for the Sangguniang Kabataan (“SK”) on 4 December course to the petition because in the special election held on 14 May

1992 despite that at the time the petition was filed, the SK election had 2001 “tax money [was] ‘x x x extracted and spent in violation of specific

already taken place. We noted in Alunan that since the question of the constitutional protections against abuses of legislative power’ or that

validity of the order sought to be annulled “is likely to arise in every SK there [was] misapplication of such funds by COMELEC or that public

elections and yet the question may not be decided before the date of money [was] deflected to any improper purpose.”[20]

such elections,” the mootness of the petition is no bar to its resolution.

This observation squarely applies to the instant case. The question of On the other hand, we have relaxed the requirement on standing and

the validity of a special election to fill a vacancy in the Senate in exercised our discretion to give due course to voters’ suits involving

relation to COMELEC’s failure to comply with requirements on the the right of suffrage.[21] Also, in the recent case of Integrated Bar of

conduct of such special election is likely to arise in every such the Philippines v. Zamora,[22] we gave the same liberal treatment to a

election. Such question, however, may not be decided before the date petition filed by the Integrated Bar of the Philippines (“IBP”). The IBP

of the election. questioned the validity of a Presidential directive deploying elements of

the Philippine National Police and the Philippine Marines in Metro

On Petitioners’ Standing Manila to conduct patrols even though the IBP presented “too general

an interest.” We held:

Honasan questions petitioners’ standing to bring the instant petition as [T]he IBP primarily anchors its standing on its alleged responsibility to

taxpayers and voters because petitioners do not claim that COMELEC uphold the rule of law and the Constitution. Apart from this declaration,

illegally disbursed public funds. Neither do petitioners claim that they however, the IBP asserts no other basis in support of its locus standi.

sustained personal injury because of the issuance of Resolution Nos. The mere invocation by the IBP of its duty to preserve the rule of law

01-005 and 01-006. and nothing more, while undoubtedly true, is not sufficient to clothe it

with standing in this case. This is too general an interest which is

“Legal standing” or locus standi refers to a personal and substantial shared by other groups and the whole citizenry x x x.
 the House of Representatives, as the case may be, certifying to the

Having stated the foregoing, this Court has the discretion to take existence of such vacancy and calling for a special election, shall hold

cognizance of a suit which does not satisfy the requirement of legal a special election to fill such vacancy. If Congress is in recess, an

standing when paramount interest is involved. In not a few cases, the official communication on the existence of the vacancy and call for a

court has adopted a liberal attitude on the locus standi of a petitioner special election by the President of the Senate or by the Speaker of

where the petitioner is able to craft an issue of transcendental the House of Representatives, as the case may be, shall be sufficient

significance to the people. Thus, when the issues raised are of for such purpose. The Senator or Member of the House of

paramount importance to the public, the Court may brush aside Representatives thus elected shall serve only for the unexpired term.

technicalities of procedure. In this case, a reading of the petition

shows that the IBP has advanced constitutional issues which deserve SECTION 2. The Commission on Elections shall fix the date of the

the attention of this Court in view of their seriousness, novelty and special election, which shall not be earlier than forty-five (45) days nor

weight as precedents. Moreover, because peace and order are under later than ninety (90) days from the date of such resolution or

constant threat and lawless violence occurs in increasing tempo, communication, stating among other things the office or offices to be

undoubtedly aggravated by the Mindanao insurgency problem, the voted for: Provided, however, That if within the said period a general

legal controversy raised in the petition almost certainly will not go election is scheduled to be held, the special election shall be held

away. It will stare us in the face again. It, therefore, behooves the simultaneously with such general election. (Emphasis supplied)

Court to relax the rules on standing and to resolve the issue now, Section 4 of Republic Act No. 7166 subsequently amended Section 2
[23]
rather than later. (Emphasis supplied) of R.A. No. 6645, as follows:

We accord the same treatment to petitioners in the instant case in their Postponement, Failure of Election and Special Elections. – x x x In

capacity as voters since they raise important issues involving their right case a permanent vacancy shall occur in the Senate or House of

of suffrage, considering that the issue raised in this petition is likely to Representatives at least one (1) year before the expiration of the term,

arise again. the Commission shall call and hold a special election to fill the vacancy

not earlier than sixty (60) days nor longer than ninety (90) days after

Whether a Special Election for a Single, Three-Year Term the occurrence of the vacancy. However, in case of such vacancy in

Senatorial Seat was Validly Held on 14 May 2001 the Senate, the special election shall be held simultaneously with the

next succeeding regular election. (Emphasis supplied)

Under Section 9, Article VI of the Constitution, a special election may Thus, in case a vacancy arises in Congress at least one year before

be called to fill any vacancy in the Senate and the House of the expiration of the term, Section 2 of R.A. No. 6645, as amended,

Representatives “in the manner prescribed by law,” thus: requires COMELEC: (1) to call a special election by fixing the date of

In case of vacancy in the Senate or in the House of Representatives, a the special election, which shall not be earlier than sixty (60) days nor

special election may be called to fill such vacancy in the manner later than ninety (90) after the occurrence of the vacancy but in case of

prescribed by law, but the Senator or Member of the House of a vacancy in the Senate, the special election shall be held

Representatives thus elected shall serve only for the unexpired term. simultaneously with the next succeeding regular election; and (2) to

(Emphasis supplied) give notice to the voters of, among other things, the office or offices to

To implement this provision of the Constitution, Congress passed R.A. be voted for.

No. 6645, which provides in pertinent parts:

SECTION 1. In case a vacancy arises in the Senate at least eighteen Did COMELEC, in conducting the special senatorial election

(18) months or in the House of Representatives at least one (1) year simultaneously with the 14 May 2001 regular elections, comply with the

before the next regular election for Members of Congress, the requirements in Section 2 of R.A. No. 6645?

Commission on Elections, upon receipt of a resolution of the Senate or

A survey of COMELEC’s resolutions relating to the conduct of the 14 emanate from the statute and not from any call for the election by

May 2001 elections reveals that they contain nothing which would some authority[29] and the law thus charges voters with knowledge of

amount to a compliance, either strict or substantial, with the the time and place of the election.[30]

requirements in Section 2 of R.A. No. 6645, as amended. Thus,

nowhere in its resolutions[24] or even in its press releases[25] did Conversely, where the law does not fix the time and place for holding a

COMELEC state that it would hold a special election for a single three- special election but empowers some authority to fix the time and place

year term Senate seat simultaneously with the regular elections on 14 after the happening of a condition precedent, the statutory provision on

May 2001. Nor did COMELEC give formal notice that it would proclaim the giving of notice is considered mandatory, and failure to do so will

as winner the senatorial candidate receiving the 13th highest number render the election a nullity.[31]

of votes in the special election.

In the instant case, Section 2 of R.A. No. 6645 itself provides that in

The controversy thus turns on whether COMELEC’s failure, assuming case of vacancy in the Senate, the special election to fill such vacancy

it did fail, to comply with the requirements in Section 2 of R.A. No. shall be held simultaneously with the next succeeding regular election.

6645, as amended, invalidated the conduct of the special senatorial Accordingly, the special election to fill the vacancy in the Senate

election on 14 May 2001 and accordingly rendered Honasan’s arising from Senator Guingona’s appointment as Vice-President in

proclamation as the winner in that special election void. More February 2001 could not be held at any other time but must be held

precisely, the question is whether the special election is invalid for lack simultaneously with the next succeeding regular elections on 14 May

of a “call” for such election and for lack of notice as to the office to be 2001. The law charges the voters with knowledge of this statutory

filled and the manner by which the winner in the special election is to notice and COMELEC’s failure to give the additional notice did not

be determined. For reasons stated below, the Court answers in the negate the calling of such special election, much less invalidate it.

negative.

Our conclusion might be different had the present case involved a

COMELEC’s Failure to Give Notice special election to fill a vacancy in the House of Representatives. In

of the Time of the Special Election Did Not such a case, the holding of the special election is subject to a condition

Negate the Calling of such Election precedent, that is, the vacancy should take place at least one year

before the expiration of the term. The time of the election is left to the

The calling of an election, that is, the giving notice of the time and discretion of COMELEC subject only to the limitation that it holds the

place of its occurrence, whether made by the legislature directly or by special election within the range of time provided in Section 2 of R.A.

the body with the duty to give such call, is indispensable to the No. 6645, as amended. This makes mandatory the requirement in

election’s validity. [26]

In a general election, where the law fixes the date Section 2 of R.A. No. 6645, as amended, for COMELEC to “call x x x a

of the election, the election is valid without any call by the body special election x x x not earlier than 60 days nor longer than 90 days

charged to administer the election. [27]

after the occurrence of the vacancy” and give notice of the office to be

filled. The COMELEC’s failure to so call and give notice will nullify any

In a special election to fill a vacancy, the rule is that a statute that attempt to hold a special election to fill the vacancy. Indeed, it will be

expressly provides that an election to fill a vacancy shall be held at the well-nigh impossible for the voters in the congressional district involved

next general elections fixes the date at which the special election is to to know the time and place of the special election and the office to be

be held and operates as the call for that election. Consequently, an filled unless the COMELEC so notifies them.

election held at the time thus prescribed is not invalidated by the fact

that the body charged by law with the duty of calling the election failed No Proof that COMELEC’s
[28]
to do so. This is because the right and duty to hold the election Failure to Give Notice of the Office
to be Filled and the Manner of proof that COMELEC’s omission prejudiced voters in the exercise of

Determining the Winner in the Special their right of suffrage so as to negate the holding of the special

Election Misled Voters election. Indeed, this Court is loathe to annul elections and will only do

so when it is “impossible to distinguish what votes are lawful and what

The test in determining the validity of a special election in relation to are unlawful, or to arrive at any certain result whatever, or that the

the failure to give notice of the special election is whether the want of great body of the voters have been prevented by violence, intimidation,

notice has resulted in misleading a sufficient number of voters as and threats from exercising their franchise.”[34]

would change the result of the special election. If the lack of official

notice misled a substantial number of voters who wrongly believed that Otherwise, the consistent rule has been to respect the electorate’s will

there was no special election to fill a vacancy, a choice by a small and let the results of the election stand, despite irregularities that may

percentage of voters would be void.[32] have attended the conduct of the elections.[35] This is but to

acknowledge the purpose and role of elections in a democratic

The required notice to the voters in the 14 May 2001 special senatorial society such as ours, which is:

election covers two matters. First, that COMELEC will hold a special to give the voters a direct participation in the affairs of their

election to fill a vacant single three-year term Senate seat government, either in determining who shall be their public officials or

simultaneously with the regular elections scheduled on the same date. in deciding some question of public interest; and for that purpose all of

Second, that COMELEC will proclaim as winner the senatorial the legal voters should be permitted, unhampered and unmolested, to
th
candidate receiving the 13 highest number of votes in the special cast their ballot. When that is done and no frauds have been

election. Petitioners have neither claimed nor proved that COMELEC’s committed, the ballots should be counted and the election should not

failure to give this required notice misled a sufficient number of voters be declared null. Innocent voters should not be deprived of their

as would change the result of the special senatorial election or led participation in the affairs of their government for mere irregularities on

them to believe that there was no such special election. the part of the election officers, for which they are in no way

responsible. A different rule would make the manner and method of

Instead, what petitioners did is conclude that since COMELEC failed to performing a public duty of greater importance than

give such notice, no special election took place. This bare assertion the duty itself.[36] (Emphasis in the original)

carries no value. Section 2 of R.A. No. 6645, as amended, charged Separate Documentation and Canvassing

those who voted in the elections of 14 May 2001 with the knowledge not Required under Section 2 of R.A. No. 6645,

that the vacancy in the Senate arising from Senator Guingona’s

appointment as Vice-President in February 2001 was to be filled in the Neither is there basis in petitioners’ claim that the manner by which

next succeeding regular election of 14 May 2001. Similarly, the COMELEC conducted the special senatorial election on 14 May 2001

absence of formal notice from COMELEC does not preclude the is a nullity because COMELEC failed to document separately the

possibility that the voters had actual notice of the special election, the candidates and to canvass separately the votes cast for the special

office to be voted in that election, and the manner by which COMELEC election. No such requirements exist in our election laws. What is

would determine the winner. Such actual notice could come from mandatory under Section 2 of R.A. No. 6645 is that COMELEC “fix the

many sources, such as media reports of the enactment of R.A. No. date of the election,” if necessary, and “state, among others, the office

6645 and election propaganda during the campaign. [33]

or offices to be voted for.” Similarly, petitioners’ reliance on Section 73

of B.P. Blg. 881 on the filing of certificates of candidacy, and on

More than 10 million voters cast their votes in favor of Honasan, the Section 4(4) of R.A. No. 6646 on the printing of election returns and

party who stands most prejudiced by the instant petition. We simply tally sheets, to support their claim is misplaced. These provisions

cannot disenfranchise those who voted for Honasan, in the absence of govern elections in general and in no way require separate
documentation of candidates or separate canvass of votes in a jointly the Philippines;

held regular and special elections.

WHEREAS, the nomination of Senator Guingona has been confirmed

Significantly, the method adopted by COMELEC in conducting the by a majority vote of all the members of both House of Congress,

special election on 14 May 2001 merely implemented the procedure voting separately;

specified by the Senate in Resolution No. 84. Initially, the original draft

of Resolution No. 84 as introduced by Senator Francisco Tatad WHEREAS, Senator Guingona will take his Oath of Office as Vice-

(“Senator Tatad”) made no mention of the manner by which the seat President of the Philippines on February 9, 2001;

vacated by former Senator Guingona would be filled. However, upon

the suggestion of Senator Raul Roco (“Senator Roco”), the Senate WHEREAS, Republic Act No. 7166 provides that the election for

agreed to amend Resolution No. 84 by providing, as it now appears, twelve (12) Senators, all elective Members of the House of

that “the senatorial candidate garnering the thirteenth (13 ) highest

th
Representatives, and all elective provincial city and municipal officials

number of votes shall serve only for the unexpired term of former shall be held on the second Monday and every three years thereafter;

Senator Teofisto T. Guingona, Jr.” Senator Roco introduced the Now, therefore, be it

amendment to spare COMELEC and the candidates needless

expenditures and the voters further inconvenience, thus: RESOLVED by the Senate, as it is hereby resolved, to certify, as it

S[ENATOR] T[ATAD]. Mr. President, I move that we now consider hereby certifies, the existence of a vacancy in the Senate and calling

Proposed Senate Resolution No. 934 [later converted to Resolution the Commission on Elections (COMELEC) to fill up such vacancy

No. 84]. through election to be held simultaneously with the regular election on

May 14, 2001 and the Senator thus elected to serve only for the

T[HE] P[RESIDENT]. Is there any objection? [Silence] There being unexpired term.

none, the motion is approved.

Adopted,

Consideration of Proposed Senate Resolution No. 934 is now in order.

(Sgd.) FRANCISCO S. TATAD
With the permission of the Body, the Secretary will read only the title
Senator
and text of the resolution.

S[ENATOR] T[ATAD]. Mr. President, I move for the adoption of this

T[HE] S[ECRETARY]. Proposed Senate Resolution No. 934 entitled
resolution.
RESOLUTION CERTIFYING TO THE EXISTENCE OF A VACANCY

IN THE SENATE AND CALLING ON THE COMMISSION ON

S[ENATOR] O[SMEÑA] (J). Mr. President.
ELECTIONS (COMELEC) TO FILL UP SUCH VACANCY THROUGH

ELECTION TO BE HELD SIMULTANEOUSLY WITH THE REGULAR

T[HE] P[RESIDENT]. Sen. John H. Osmeña is recognized.
ELECTION ON MAY 14, 2001 AND THE SENATOR THUS ELECTED

TO SERVE ONLY FOR THE UNEXPIRED TERM

S[ENATOR] O[SMEÑA] (J). Thank you, Mr. President. Will the
WHEREAS, the Honorable Teofisto T. Guingona, Jr. was elected
distinguished Majority Leader, Chairman of the Committee on Rules,
Senator of the Philippines in 1998 for a term which will expire on June
author of this resolution, yield for a few questions?
30, 2004;

S[ENATOR] T[ATAD]. With trepidation, Mr. President. [Laughter]

WHEREAS, on February 6, 2001, Her Excellency President Gloria

Macapagal Arroyo nominated Senator Guingona as Vice-President of

S[ENATOR] O[SMEÑA] (J). What a way of flattery. [Laughter] vacancy created, in this particular case, by the appointment of our

colleague, Senator Guingona, as Vice President.

Mr. President, I think I recall that sometime in 1951 or 1953, there was

a special election for a vacant seat in the Senate. As a matter of fact, It can be managed in the Commission on Elections so that a slot for

the one who was elected in that special election was then the particular candidate to fill up would be that reserved for Mr.

Congressman, later Senator Feli[s]berto Verano. Guingona’s unexpired term. In other words, it can be arranged in

such a manner.

In that election, Mr. President, the candidates contested the seat. In

other words, the electorate had to cast a vote for a ninth senator – xxxx

because at that time there were only eight – to elect a member or

rather, a candidate to that particular seat. S[ENATOR] R[OCO]. Mr. President.

Then I remember, Mr. President, that when we ran after the EDSA T[HE] P[RESIDENT]. Sen. Raul S. Roco is recognized.

revolution, twice there were 24 candidates and the first 12 were

elected to a six-year term and the next 12 were elected to a three-year S[ENATOR] R[OCO]. May we suggest, subject to a one-minute

term. caucus, wordings to the effect that in the simultaneous elections, the

13th placer be therefore deemed to be the special election for this

My question therefore is, how is this going to be done in this election? purpose. So we just nominate 13 and it is good for our colleagues. It

Is the candidate with the 13th largest number of votes going to be the is better for the candidates. It is also less expensive because the

one to take a three-year term? Or is there going to be an election for a ballot will be printed and there will be less disfranchisement.

position of senator for the unexpired term of Sen. Teofisto Guingona?

T[HE] P[RESIDENT]. That is right.

S[ENATOR] T[ATAD]. Mr. President, in this resolution, we are leaving

the mechanics to the Commission on Elections. But personally, I S[ENATOR] R[OCO]. If we can just deem it therefore under this

would like to suggest that probably, the candidate obtaining the resolution to be such a special election, maybe, we satisfy the
th
13 largest number of votes be declared as elected to fill up the requirement of the law.

unexpired term of Senator Guingona.

T[HE] P[RESIDENT]. Yes. In other words, this shall be a guidance for

S[ENATOR] O[SMEÑA] (J). Is there a law that would allow the the Comelec.

Comelec to conduct such an election? Is it not the case that the

vacancy is for a specific office? I am really at a loss. I am rising here S[ENATOR] R[OCO]. Yes.

because I think it is something that we should consider. I do not know

if we can… No, this is not a Concurrent Resolution. T[HE] P[RESIDENT]. – to implement.

S[ENATOR] T[ATAD]. May we solicit the legal wisdom of the Senate S[ENATOR] R[OCO]. Yes. The Comelec will not have the flexibility.

President.

T[HE] P[RESIDENT]. That is right.

T[HE] P[RESIDENT]. May I share this information that under Republic

Act No. 6645, what is needed is a resolution of this Chamber calling S[ENATOR] R[OCO]. We will already consider the 13th placer of the

attention to the need for the holding of a special election to fill up the forthcoming elections that will be held simultaneously as a special
election under this law as we understand it. there any objection? [Silence] There being none, the motion is

approved.[37]

T[HE] P[RESIDENT]. Yes. That will be a good compromise, Senator Evidently, COMELEC, in the exercise of its discretion to use means

Roco. and methods to conduct the special election within the confines of

R.A. No. 6645, merely chose to adopt the Senate’s proposal, as

S[ENATOR] R[OCO]. Yes. So if the sponsor can introduce that later, embodied in Resolution No. 84. This Court has consistently

maybe it will be better, Mr. President. acknowledged and affirmed COMELEC’s wide latitude of discretion in

adopting means to carry out its mandate of ensuring free, orderly, and

T[HE] P[RESIDENT]. What does the sponsor say? honest elections subject only to the limitation that the means so

adopted are not illegal or do not constitute grave abuse of

S[ENATOR] T[ATAD]. Mr. President, that is a most satisfactory discretion.[38] COMELEC’s decision to abandon the means it employed

proposal because I do not believe that there will be anyone running in the 13 November 1951 and 8 November 1955 special elections and

specifically – adopt the method embodied in Resolution No. 84 is but a legitimate

exercise of its discretion. Conversely, this Court will not interfere

T[HE] P[RESIDENT]. Correct. should COMELEC, in subsequent special senatorial elections, choose

to revert to the means it followed in the 13 November 1951 and 8

S[ENATOR] T[ATAD]. – to fill up this position for three years and November 1955 elections. That COMELEC adopts means that are

campaigning nationwide. novel or even disagreeable is no reason to adjudge it liable for grave

abuse of discretion. As we have earlier noted:

T[HE] P[RESIDENT]. Actually, I think what is going to happen is the The Commission on Elections is a constitutional body. It is intended to

13th candidate will be running with specific groups. play a distinct and important part in our scheme of government. In the

discharge of its functions, it should not be hampered with restrictions

S[ENATOR] T[ATAD]. Yes. Whoever gets No. 13. that would be fully warranted in the case of a less responsible

organization. The Commission may err, so may this Court also. It

T[HE] P[RESIDENT]. I think we can specifically define that as the should be allowed considerable latitude in devising means and

intent of this resolution. methods that will insure the accomplishment of the great objective for

which it was created — free, orderly and honest elections. We may

S[ENATOR] T[ATAD]. Subject to style, we accept that amendment not agree fully with its choice of means, but unless these are clearly

and if there will be no other amendment, I move for the adoption of this illegal or constitute gross abuse of discretion, this court should not

resolution. interfere.[39]

A Word to COMELEC

xxxx

The calling of a special election, if necessary, and the giving of notice

ADOPTION OF S. RES. NO. 934 to the electorate of necessary information regarding a special election,

are central to an informed exercise of the right of suffrage. While the

If there are no other proposed amendments, I move that we adopt this circumstances attendant to the present case have led us to conclude

resolution. that COMELEC’s failure to so call and give notice did not invalidate

the special senatorial election held on 14 May 2001, COMELEC

T[HE] P[RESIDENT]. There is a motion to adopt this resolution. Is should not take chances in future elections. We remind COMELEC to

comply strictly with all the requirements under applicable laws relative
to the conduct of regular elections in general and special elections in candidates as the duly elected Senators of the Philippines in the May

particular. 14, 2001 elections. Based on the Certificates of Canvass finally

tabulated, the first twelve (12) Senators shall serve for a term of

WHEREFORE, we DISMISS the petition for lack of merit. six (6) years and the thirteenth (13th) Senator shall serve the

unexpired term of three (3) years of Senator Teofisto T. Guingona,

SO ORDERED. Jr., who was appointed Vice-President of the Philippines pursuant

to Section 9, Article VII of the Constitution, in relation to Section 9,

DISSENTING OPINION
Article VI thereof, as implemented under Republic Act No. 6645.
PUNO, J.:
(emphasis supplied)
On June 21, 2001, petitioners filed with the Court their petition for
The case at bar transcends the political fortunes of respondent Senator
prohibition to stop respondent COMELEC from proclaiming any
Gregorio B. Honasan. At issue is the right of the people to elect their
senatorial candidate in the May 14, 2001 election as having been
representatives on the basis and only on the basis of an informed
elected for the lone senate seat for a three-year term. Copies of the
judgment. The issue strikes at the heart of democracy and
petition were served on respondent COMELEC twice, first on June 20,
representative government for without this right, the sovereignty of the
2001 by registered mail, and second on June 21, 2001, by personal
people is a mere chimera and the rule of the majority will be no more
delivery of petitioner Mojica. On June 26, 2001 the Court issued a
than mobocracy. To clarify and sharpen the issue, 1 shall first unfurl
Resolution requiring respondent COMELEC to comment within ten
the facts.
days from notice. Even before filing its comment, respondent
COMELEC issued Resolution No. NBC-01-006 on July 20, 2001, the
dispositive portion of which reads, viz:
I. Facts
NOW, THEREFORE, by virtue of the powers vested in it under the
The facts are undisputed. In February 2001, a Senate seat for a term
expiring on June 30, 2004 was vacated with the appointment of then Constitution, Omnibus Election Code and other election laws, the
Senator Teofisto Guingona, Jr. as Vice-President of the Philippines.
The Senate adopted Resolution No. 84 certifying “the existence of a Commission on Elections sitting as the National Board of Canvassers
vacancy in the Senate and calling the Commission on Elections
(COMELEC) to fill up such vacancy through election to be held hereby DECLARES official and final the above ranking of the
simultaneously with the regular election on May 14, 2001, and the
senatorial candidate garnering the thirteenth (13th) highest number of proclaimed 13 Senators of the Philippines in relation to NBC
votes shall serve only for the unexpired term of former Senator
Teofisto T. Guingona, Jr.” In the deliberations of the Senate on the Resolution No. 01-005 promulgated June 5, 2001.
resolution, the body agreed that the procedure it adopted for Resolution No. NBC-01-006 indicates the following ranking of the 13
determining the winner in the special election was for the “guidance” Senators with the corresponding votes they garnered as of June 20,
and “implementation” of the COMELEC. The COMELEC had no 2001:
discretion to alter the procedure.
1. De Castro, - 16,237,386
Nobody filed a certificate of candidacy to fill the position of senator to Noli L.
serve the unexpired three-year term in the special election. All the
senatorial candidates filed the certificates of candidacy for the twelve 2. Flavier, Juan - 11,735,897
regular Senate seats to be vacated on June 30, 2001 with a six-year M.
term expiring on June 30, 2007. COMELEC distributed nationwide 3. Osmeña, - 11,593,389
official documents such as the Voter Information Sheet, List of Sergio II R.
Candidates and Sample Ballot. TheList of Candidates did
not indicate a separate list of candidates for the special election. 4. Drilon, Franklin - 11,301,700
The Sample Ballot and the official ballots did not provide two M.
different categories of Senate seats to be voted, namely the twelve 5. Arroyo, Joker - 11,262,402
regular six-year term seats and the single three-year term seat. Nor P.
did the ballots provide a separate space for the candidate to be voted
6. Magsaysay, - 11,250,677
in the special election and instead provided thirteen spaces for thirteen
Ramon Jr. B.
senatorial seats.
7. Villar, Manuel - 11,187,375
Without any COMELEC resolution or notice on the time, place and Jr. B.
manner of conduct of the special election, the special election for 8. Pangilinan, - 10,971,896
senator was held on the scheduled May 14, 2001 regular elections. Francis N.
A single canvass of votes for a single list of senatorial candidates was
done. On June 5, 2001, respondent COMELEC promulgated 9. Angara, - 10,805,177
COMELEC Resolution No. NBC01-005, the dispositive portion of which Edgardo J.
reads, viz: 10. Lacson, - 10,535,559
Panfilo M.
NOW, THEREFORE, by virtue of the powers vested in it under the 11. Ejercito- - 10,524,130
Estrada, Luisa P.
Constitution, Omnibus Election Code and other election laws, the 12. Recto, Ralph - 10,498,940
Commission on Elections sitting En Banc as the National Board of
13. Honasan, - 10,454,527
Canvassers hereby proclaims the above-named thirteen (13) Gregorio
On the day of its promulgation, respondent COMELEC forwarded
Resolution No. NBC-01-006 to the President of the Senate. On July
23, 2001, the thirteen senators, inclusive of respondents Honasan and
Recto, took their oaths of office before the Senate President.
With the turn of events after the filing of the petition on June 20, 2001,
the Court ordered petitioners on March 5, 2002 and September 17,
2002 to amend their petition. In their amended petition, petitioners
assailed the manner by which the special election was conducted
citing as precedents the 1951 and 1955 special senatorial elections
for a two-year term which were held simultaneously with the regular
general elections for senators with six year terms, viz:
(a) A vacancy in the Senate was created by the election of Senator
Fernando Lopez as Vice-President in the 1949 elections. A special
election was held in November 1951 to elect his successor to the
vacated Senate position for a term to expire on 30 December 1953.
Said special election was held simultaneously with the regular election
of 1951. A separate space in the official ballot was provided for
Senatorial candidates for the two year term; moreover, the
candidates for the single Senate term for two years filed
certificates of candidacy separate and distinct from those
certificates of candidacy filed by the group of Senatorial
candidates for the six yearterm.
(...the votes for the twenty (20) candidates who filed certificates of
candidacy for the eight Senate seats with six year terms were
tallied and canvassed separately from the votes for the five
candidates who filed certificates of candidacy for the single
Senate seat with a two year term...)
xxx xxx xxx
(b) Again, a vacancy was created in the Senate by the election of then
Senator Carlos P. Garcia to the Vice Presidency in the 1953
presidential elections. A special election was held in November 1955 to
elect his successor to the vacated Senatorial position for a two year
term expiring on 30 December 1957.
Said special election for one senator to fill the vacancy left by the
Honorable Carlos Garcia was held in November 1955 simultaneously
with the regular election for eight Senate seats with a six year term.
Here, separate spaces were provided for in the official ballot for
the single Senate seat for the two year term as differentiated from
the eight Senate seats with six year terms. The results as
recorded by Senate official files show that votes for the
candidates for the Senate seat with a two-year term were
separately tallied from the votes for the candidates for the eight
Senate seats with six-year term...[1] (emphases supplied)
Petitioners thus pray that the Court declare the following:
(a) that no special election was conducted by respondent COMELEC
for the single Senate seat with a three year term in the 14 May
2001 election.
(b) null and void respondent COMELEC’s Resolutions No. NBC01-005
dated 5 June 2001 and NBC01-006 dated 20 July 2001 for having
been promulgated without any legal authority at all insofar as said
resolutions proclaim the Senatorial candidate who obtained the
thirteenth highest number of votes canvassed during the 14 May
2001 election as a duly elected Senator.[2]
Respondents filed their respective comments averring the following
procedural flaws: (1) the Court has no jurisdiction over the petition
for quo warranto; (2) the petition is moot; and (3) the petitioners have
no standing to litigate. On the merits, they all defend the validity of the
special election on the ground that the COMELEC had discretion to
determine the manner by which the special election should be
conducted and that the electorate was aware of the method the
COMELEC had adopted. Moreover, they dismiss the deviations from
the election laws with respect to the filing of certificates of candidacy
for the special elections and the failure to provide in the official ballot a
space for the special election vote separate from the twelve spaces for
the regular senatorial election votes as inconsequential. They claim
that these laws are merely directory after the election.
II. Issues
The issues for resolution are procedural and substantive. I shall limit
my humble opinion to the substantive issue of whether a special
election for the single Senate seat with a three-year term was validly
held simultaneous with the general elections on May 14, 2001.
III. Laws on the Calling of Special Elections
Section 9, Article VI of the 1987 Constitution provides for the filling of a
vacancy in the Senate and House of Representatives, viz:
Sec. 9. In case of vacancy in the Senate or in the House of
Representatives, a special election may be called to fill such vacancy
in the manner prescribed by law, but the Senator or Member of the
House of Representatives thus elected shall serve only for the
unexpired term.
Congress passed R.A. No. 6645, “An Act Prescribing the Manner of
Filling a Vacancy in the Congress of the Philippines,” to implement this
constitutional provision. The law provides, viz:
SECTION 1. In case a vacancy arises in the Senate at least eighteen
(18) months or in the House of Representatives at least one (1) year
before the next regular election for Members of Congress, the
Commission on Elections, upon receipt of a resolution of the Senate or
the House of Representatives, as the case may be, certifying to the
existence of such vacancy and calling for a special election, shall hold
a special election to fill such vacancy. If the Congress is in recess, an

official communication on the existence of the vacancy and call for a
special election by the President of the Senate or by the Speaker of
the House of Representatives, as the case may be, shall be sufficient
for such purpose. The Senator or Member of the House of
Representatives thus elected shall serve only for the unexpired term.
SECTION 2. The Commission on Elections shall fix the date of the
special election, which shall not be earlier than forty-five (45) days nor
later than ninety (90) days from the date of such resolution or
communication, stating among other things, the office or offices to be
voted for: Provided, however, That if within the said period a general
election is scheduled to be held, the special election shall be held
simultaneously with such general election.
SECTION 3. The Commission on Elections shall send copies of
the resolution, in number sufficient for due distribution and
publication, to the Provincial or City Treasurer of each province
or city concerned, who in turn shall publish it in their respective
localities by posting at least three copies thereof in as many
conspicuous places in each of their election precincts, and a
copy in each of the polling places and public markets, and in the
municipal buildings. (emphasis supplied)
R.A. No. 6645 was amended in 1991 by R.A. No. 7166 which provides
in Section 4, viz:
SECTION 4. Postponement, Failure of Election and Special Election. -
The postponement, declaration of failure of election and the calling of
special elections as provided in Sections 5, 6, and 7 of the Omnibus
Election Code shall be decided by the Commission sitting en
banc by a majority vote of its members...
In case a permanent vacancy shall occur in the Senate or House of
Representatives at least one (1) year before the expiration of the
term, the Commission shall call and hold a special election to fill
the vacancy not earlier than sixty (60) days nor longer than ninety (90)
days after the occurrence of the vacancy. However, in case of
suchvacancy in the Senate, the special election shall be held
simultaneously with the next succeeding regular election.
(emphases supplied)
IV. Democracy and Republicanism
The shortest distance between two points is a straight line. In this case
of first impression, however, the distance between existing
jurisprudence and the resolution of the issue presented to the Court
cannot be negotiated through a straight and direct line of reasoning.
Rather, it is necessary to journey through a meandering path and
unearth the root principles of democracy, republicanism, elections,
suffrage, and freedom of information and discourse in an open society.
As a first step in this indispensable journey, we should traverse the
democratic and republican landscape to appreciate the importance
of informed judgment in elections.
A. Evolution of Democracy from Plato to Locke
to Jefferson and Contemporary United States of America
In the ancient days, democracy was dismissed by thoughtful
thinkers. Plato deprecated democracy as rule by the masses. He
warned that if all the people were allowed to rule, those of low quality
would dominate the state by mere numerical superiority. He feared that
the more numerous masses would govern with meanness and bring
about a “tyranny of the majority.” Plato predicted that democracies
would be short-lived as the mob would inevitably surrender its power to
a single tyrant, and put an end to popular government. Less jaundiced
than Plato was Aristotle’s view towards democracy. Aristotle agreed
that under certain conditions, the will of the many could be equal to or
even wiser than the judgment of the few. When the many governed for
the good of all, Aristotle admitted that democracy is a good form of
government. But still and all, Aristotle preferred a rule of the upper
class as against the rule of the lower class. He believed that the upper
class could best govern for they represent people of the greatest
refinement and quality.
In the Middle Ages, Europe plunged when the Roman Empire
perished. Europe re-emerged from this catastrophe largely through
reliance on the scientific method which ultimately ushered the
Industrial Revolution. Material success became the engine which drove
the people to search for solutions to their social, political and economic
problems. Using the scythe of science and reason, the thinkers of the
time entertained an exaggerated notion of individualism. They
bannered the idea that all people were equal; no one had a greater
right to rule than another. Dynastical monarchy was taboo. As all were
essentially equal, no one enjoyed the moral right to govern
another without the consent of the governed. The people therefore
were the source of legitimate legal and political authority. This theory
of popular sovereignty revived an interest in democracy in the
seventeenth century. The refinements of the grant of power by the
people to the government led to the social contract theory:that is, the
social contract is the act of people exercising their sovereignty
and creating a government to which they consent.[3]
Among the great political philosophers who spurred the evolution of
democratic thought was John Locke (1632-1704). In 1688, the
English revolted against the “Catholic tyranny” of James II, causing him
to flee to France. ThisGlorious Revolution, called such because it
was almost bloodless, put to rest the long struggle between King and
Parliament in England. The revolution reshaped the English
government and ultimately brought about democracy in England.
John Locke provided the philosophical phalanx to the Glorious
Revolution. For this purpose, he wrote his Second Treatise of
Government, his work with the most political impact. In his
monumental treatise, Locke asserted that the basis of political society
is a contract whereby individuals consent to be bound by the laws of a
common authority known as civil government. The objective of this
social contract is the protection of the individual’s natural rights to life,
liberty and property which are inviolable and enjoyed by them in the
state of nature before the formation of all social and political
arrangements.[4] Locke thus argues that legitimate political power
amounts to a form of trust, a contract among members of
society anchored on their own consent, and seeks to preserve their
lives, liberty and property. This trust or social contract makes
government legitimate and clearly defines the functions of government
as concerned, above all, with the preservation of the rights of the
governed.
Even then, Locke believed that the people should be governed by a
parliament elected by citizens who owned property. Although he
argued that the people were sovereign, he submitted that they should
not rule directly. Members of parliament represent their constituents
and should vote as their constituents wanted. The government’s sole
reason for being was to serve the individual by protecting his rights
and liberties. Although Locke’s ideas were liberal, they fell short of
the ideals of democracy. He spoke of a “middle-class revolution” at a
time when the British government was controlled by the aristocracy.
While he claimed that all people were equally possessed of natural
rights, he advocated that political power be devolved only to
embrace the middle class by giving Parliament, which was controlled
through the House of Commons, the right to limit the monarchical
power. He denied political power to the poor; they were bereft of
the right to elect members of Parliament.
Locke influenced Thomas Jefferson, the eminent statesman and
philosopher of the (American) revolution and of the first constitutional
order which free men were permitted to establish.”[5] But although
Jefferson espoused Locke’s version of the social contract and natural
law, he had respect for the common people and participatory
government. Jefferson believed that the people, including the
ordinary folk, were the only competent guardians of their own
liberties, and should thus control their government. Discussing the role
of the people in a republic, Jefferson wrote to Madison from France in
1787 that “they are the only sure reliance for the preservation of our
liberties.”[6]
The wave of liberalism from Europe notwithstanding, a much more
conservative, less democratic, and more paternalistic system of
government was originally adopted in the United States. The nation’s
founders created a government in which power was much more
centralized than it had been under the Articles of Confederation and
they severely restricted popular control over the
government.[7] Many of the delegates to the Constitutional Convention
of 1787 adhered to Alexander Hamilton’s view that democracy was
little more than legitimized mob rule, a constant threat to personal
security, liberty and property. Thus, the framers sought to establish a
constitutional republic, in which public policy would be made by elected
representatives but individual rights were protected from the tyranny of
transient majorities. With its several elitist elements and many
limitations on majority rule, the framers’ Constitution had undemocratic
strands.
The next two centuries, however, saw the further democratization
of the federal Constitution.[8] The Bill of Rights was added to the
American Constitution and since its passage, America had gone
through a series of liberalizing eras that slowly relaxed the restraints
imposed on the people by the new political order. The changing social
and economic milieu mothered by industrialization required political
democratization.[9] In 1787, property qualifications for voting existed
and suffrage was granted only to white males. At the onset of
Jacksonion democracy in the 1830s, property requirements quickly
diminished and virtually became a thing of the past by the time of the
Civil War. In 1870, the Fifteenth Amendment theoretically extended the
franchise to African-Americans, although it took another century of
struggle for the Amendment to become a reality. In 1920, the
Nineteenth Amendment removed sex as a qualification for voting. The
Progressive Era also saw the Seventeenth Amendment of the
Constitution to provide for direct election of United States
senators[10] and established procedures for initiative, referendum and
recall (otherwise known as direct democracy) in many states. [11] Poll
taxes were abolished as prerequisites for voting in federal elections
through the Twenty-Fourth Amendment in 1964. Finally, the voting
age was lowered to eighteen with the ratification of the Twenty-Sixth
Amendment in 1971.[12]
B. Constitutional History of Democracy
and Republicanism in the Philippines
The Malolos Constitution was promulgated on January 21, 1899 by
the short-lived Revolutionary Government headed by Emilio Aguinaldo
after the Declaration of Independence from Spain on June 12, 1898.
Article 4 of the Constitution declared the Philippines a Republic, viz:
Art. 4. The government of the Republic is popular,representative,
alternative, and responsible and is exercised by three distinct powers,
which are denominated legislative, executive and judicial...
Shortly after the promulgation of the Malolos Constitution, the
Philippines fell under American rule. The Americans adopted the
policy of gradually increasing the autonomy of the Filipinos before
granting their independence.[13] In 1934, the U.S. Congress passed the
Tydings-McDuffie Law “xxx the last of the constitutional landmarks
studding the period of constitutional development of the Filipino people
under the American regime before the final grant of Philippine
independence.”[14] Under this law, the American government
authorized the Filipino people to draft a constitution in 1934 with
the requirement that the “constitution formulated and drafted shall
be republican in form.” In conformity with this requirement,[15] Article
II, Section 1 of the 1935 Philippine Constitution was adopted, viz:
Sec. 1. The Philippines is a republican state. Sovereignty resides in
the people and all government authority emanates from them.
The delegates to the Constitutional Convention understood this form of
government to be that defined by James Madison, viz:
We may define a republic to be a government which derives all its
power directly or indirectly from the great body of the people; and
is administered by persons holding offices during pleasure, for a limited
period, or during good behavior. It is essential to such a government
that it be derived from the great body of the society, not from an
inconsiderable proportion, or a favored class of it. It is sufficient for
such government that the person administering it be appointed
either directly or indirectly, by the people; and that they hold their
appointments by either of the tenures just specified.[16] (emphases
supplied)
The 1973 Constitution adopted verbatim Article II, Section 1 of the
1935 Constitution. So did the 1987 Constitution. The delegates to the
1986 Constitutional Commission well understood the meaning of a
republican government. They adopted the explanation by Jose P.
Laurel in his book, Bread and Freedom, The Essentials of Popular
Government, viz:
When we refer to popular government or republican government or
representative government, we refer to some system of popular
representation where the powers of government are entrusted to
those representatives chosen directly or indirectly by the people
in their sovereign capacity.[17] (emphasis supplied)
An outstanding feature of the 1987 Constitution is the expansion
of the democratic space giving the people greater power to
exercise their sovereignty. Thus, under the 1987 Constitution, the
people can directly exercise their sovereign authority through the
following modes, namely: (1) elections; (2) plebiscite; (3) initiative; (4)
recall; and (5) referendum. Through elections, the people choose the
representatives to whom they will entrust the exercise of powers of
government.[18] In a plebiscite, the people ratify any amendment to or
revision of the Constitution and may introduce amendments to the
constitution.[19] Indeed, the Constitution mandates Congress to “provide
for a system of initiative and referendum, and the exceptions
therefrom, whereby the people can directly propose and enact laws or
approve or reject any law or part thereof passed by the Congress or
local legislative body. . .” It also directs Congress to “enact a local In other portions of the Records, Commissioner Nolledo explains the
government code which shall provide for effective mechanisms of significance of the word “democratic”, viz:
recall, initiative, and referendum.”[20] Pursuant to this mandate,
Congress enacted the Local Government Code of 1991 which defines
local initiative as the “legal process whereby the registered voters of a MR. NOLLEDO. I am putting the word “democratic” because of the
local government unit may directly propose, enact, or amend any
ordinance through an election called for the purpose.” Recall is a provisions that we are now adopting which are covering consultations
method of removing a local official from office before the expiration of
his term because of loss of confidence.[21]In a referendum, the people with the people. For example, we have provisions on recall, initiative,
can approve or reject a law or an issue of national
importance.[22] Section 126 of the Local Government Code of 1991 the right of the people even to participate in lawmaking and other
defines a local referendum as “the legal process whereby the
registered voters of the local government units may approve, amend or instances that recognize the validity of interference by the people
reject any ordinance enacted by the sanggunian.”
through people’s organizations . . .[25]
These Constitutional provisions on recall, initiative, and referendum
institutionalized the people’s might made palpable in the 1986 People
Power Revolution.[23] To capture the spirit of People Power and to
make it a principle upon which Philippine society may be founded, the xxx xxx xxx
Constitutional Commission enunciated as a first principle in the
Declaration of Principles and State Policies under Section 1, Article II
of the 1987 Constitution that the Philippines is not only a republican but
also a democratic state. MR. OPLE. The Committee added the word “democratic” to

“republican,” and, therefore, the first sentence states: “The Philippines

The following excerpts from the Records of the Constitutional
Commission show the intent of the Commissioners in emphasizing
is a republican and democratic state.”
“democratic” in Section 1, Article II, in light of the provisions of the
Constitution on initiative, recall, referendum and people’s
organizations:
May I know from the committee the reason for adding the word
MR. SUAREZ. . . . May I call attention to Section 1. I wonder who “democratic” to “republican”? The constitutional framers of the 1935
among the members of the committee would like to clarify this question and 1973 Constitutions were content with “republican.” Was this done
regarding the use of the word “democratic” in addition to the word merely lor the sake of emphasis?
“republican.” Can the honorable members of the committee give us the

reason or reasons for introducing this additional expression? Would MR. NOLLEDO. Madam President, that question has been asked
the committee not be satisfied with the use of the word “republican”? several times, but being the proponent of this amendment, I would like
What prompted it to include the word “democratic”? the Commissioner to know that “democratic” was added because of

the need to emphasize people power and the many provisions in the
xxx xxx xxx Constitution that we have approved related to recall, people’s

organizations, initiative and the like, which recognize the participation

MR. NOLLEDO. Madam President, I think as a lawyer, the of the people in policy-making in certain circumstances.”
Commissioner knows that one of the manifestations of republicanism is

the existence of the Bill of Rights and periodic elections, which already MR. OPLE. I thank the Commissioner. That is a very clear answer and
indicates that we are a democratic state. Therefore, the addition of I think it does meet a need. . .
“democratic” is what we call “pardonable redundancy” the purpose

being to emphasize that our country is republican and democratic at xxx xxx xxx
the same time. . . In the 1935 and 1973 Constitutions, “democratic”

does not appear. I hope the Commissioner has no objection to that MR. NOLLEDO. According to Commissioner Rosario Braid,
word. “democracy” here is understood as participatory

democracy.[26] (emphasis supplied)

The following exchange between Commissioners Sarmiento and
MR. SUAREZ. No, I would not die for that. If it is redundant in Azcuna is of the same import:
character but it is for emphasis of the people’s rights, I would have
MR. SARMIENTO. When we speak of republican democratic state, are
no objection. I am only trying to clarify the matter. [24] (emphasis
we referring to representative democracy?
supplied)

MR. AZCUNA. That is right.
MR. SARMIENTO. So, why do we not retain the old formulation under
the 1973 and 1935 Constitutions which used the words “republican
state” because “republican state” would refer to a democratic state
where people choose their representatives?
MR. AZCUNA. We wanted to emphasize the participation of the
people in government.
MR. SARMIENTO. But even in the concept “republican state,” we are
stressing the participation of the people. . . So the word “republican”
will suffice to cover popular representation.
MR. AZCUNA. Yes, the Commissioner is right. However, the
committee felt that in view of the introduction of the aspects of direct
democracy such as initiative, referendum or recall, it was necessary to
emphasize the democratic portion of republicanism, of representative
democracy as well. So, we want to add the word “democratic” to
emphasize that in this new Constitution there are instances where the
people would act directly, and not through their
representatives.[27] (emphasis supplied)
V. Elections and the Right to Vote
A. Theory
The electoral process is one of the linchpins of a democratic and
republican framework because it is through the act of voting that
government by consent is secured.[28] Through the ballot, people
express their will on the defining issues of the day and they are able to
choose their leaders[29] in accordance with the fundamental principle of
representative democracy that the people should elect whom they
please to govern them.[30] Voting has an important instrumental value
in preserving the viability of constitutional democracy.[31] It has
traditionally been taken as a prime indicator of democratic
participation.[32]
The right to vote or of suffrage is “an important political right
appertaining to citizenship. Each individual qualified to vote is a particle
of popular sovereignty.”[33] In People v. Corral,[34] we held that “(t)he
modern conception of suffrage is that voting is a function of
government. The right to vote is not a natural right but it is a right
created by law. Suffrage is a privilege granted by the State to such
persons as are most likely to exercise it for the public good.” The
existence of the right of suffrage is a threshold for the
preservation and enjoyment of all other rights that it ought to be
considered as one of the most sacred parts of the
constitution.[35] In Geronimo v. Ramos, et al.,[36] we held that the right
is among the most important and sacred of the freedoms inherent in a
democratic society and one which must be most vigilantly guarded if a
people desires to maintain through self-government for themselves
and their posterity a genuinely functioning democracy in which the
individual may, in accordance with law, have a voice in the form of his
government and in the choice of the people who will run that
government for him.[37] The U.S. Supreme Court recognized in Yick
Wo v. Hopkins[38] that voting is a “fundamental political right, because
[it is] preservative of all rights.” In Wesberry v. Sanders,[39] the U.S.
Supreme Court held that “no right is more precious in a free country
than that of having a voice in the election of those who make the laws,
under which, as good citizens, we must live. Other rights, even the
most basic, are illusory if the right to vote is undermined.” Voting
makes government more responsive to community and individual
needs and desires. Especially for those who feel disempowered and
marginalized or that government is not responsive to them, meaningful
access to the ballot box can be one of the few counterbalances in their
arsenal.[40]
Thus, elections are substantially regulated for them to be fair and
honest, for order rather than chaos to accompany the democratic
processes.[41] This Court has consistently ruled from as early as the oft-
cited 1914 case of Gardiner v. Romulo[42] that the purpose of election
laws is to safeguard the will of the people, the purity of elections being
one of the most important and fundamental requisites of popular
government. We have consistently made it clear that we frown upon
any interpretation of the law or the rules that would hinder in any way
not only the free and intelligent casting of the votes in an
election but also the correct ascertainment of the results.[43] To
preserve the purity of elections, comprehensive and sometimes
complex election codes are enacted, each provision of which - whether
it governs the registration and qualifications of voters, the selection and
eligibility of candidates, or the voting process itself - inevitably affects
the individual’s right to vote.[44] As the right to vote in a free and
unimpaired manner is preservative of other basic civil and political
rights, Chief Justice Warren, speaking for the U.S. Supreme Court
in Reynolds v. Sims[45] cautioned that any alleged infringement of
the right of citizens to vote must be carefully and meticulously
scrutinized. It was to promote free, orderly and honest elections and
to preserve the sanctity of the right to vote that the Commission on
Elections was created.[46] The 1987 Constitution mandates the
COMELEC to ensure “free, orderly, honest, peaceful, and credible
elections.”[47]
B. History of Suffrage in the Philippines
In primitive times, the choice of who will govern the people was not
based on democratic principles. Even then, birth or strength was not
the only basis for choosing the chief of the tribe. When an old chief has
failed his office or committed wrong or has aged and can no longer
function, the members of the tribe could replace him and choose
another leader.[48] Among the Muslims, a council or ruma
bechara chooses the sultan. An old sultan may appoint his successor,
but his decision is not absolute. Among the criteria for choosing a
sultan were age, blood, wealth, fidelity to Islamic faith and exemplary
character or personality.[49] In times of crises, the community may
choose its leader voluntarily, irrespective of social status. By
consensus of the community, a serf or slave may be voted the chief on
account of his ability.
As far back as the Spanish regime, the Filipinos did not have a general
right of suffrage.[50] It was only in the Malolos Constitution of 1899 that
the right of suffrage was recognized;[51] it was a by-product of the
Filipinos’ struggle against the Spanish colonial government and an
offshoot of Western liberal ideas on civil government and individual
rights.[52] The life of the Malolos Constitution was, however, cut short
by the onset of the American regime in the Philippines. But the right of
suffrage was reiterated in the Philippine Bill of 1902.[53] The first
general elections were held in 1907[54] under the first Philippine
Election Law, Aci No. 1582, which took effect on January 15, 1907.
This law was elitist and discriminatory against women. The right of
suffrage was carried into the Jones Law of 1916.[55] Whereas
previously, the right was granted only by the Philippine Legislature and
thus subject to its control, the 1935 Constitution elevated suffrage to a
constitutional right.[56] It also provided for a plebiscite on the issue of
whether the right of suffrage should be extended to women. On April
30, 1937, the plebiscite was held and the people voted affirmatively. In
the 1973 Constitution,[57] suffrage was recognized not only as a right,
but was imposed as a duty to broaden the electoral base and make
democracy a reality through increased popular participation in
government. The voting age was lowered, the literacy requirement
abolished, and absentee voting was legalized. [58] The 1987
Constitution likewise enshrines the right of suffrage in Article V, but
unlike the 1973 Constitution, it is now no longer imposed as a
duty.[59] The 1948 Universal Declaration of Human Rights[60] and the
1976 Covenant on Civil and Political Rights[61] also protect the right of
suffrage.
VI. Voter Information:
Prerequisite to a Meaningful Vole in a Genuinely Free,
Orderly and Honest Elections in a Working Democracy
A. Democracy, information and discourse on public matters
1. U.S. jurisdiction
For the right of suffrage to have a value, the electorate must be
informed about public matters so that when they speak through the
ballot, the knowledgeable voice and not the ignorant noise of the
majority would prevail.Jefferson admonished Americans to be
informed rather than enslaved by ignorance, saying that “(i)f a nation
expects to be ignorant and free in a state of civilization, it expects
what never was and never will be.”[62]Jefferson emphasized the
importance of discourse in a democracy, viz:
In every country where man is free to think and to speak, differences of
opinion arise from difference of perception, and the imperfection of
reason; but these differences when permitted, as in this happy country,
to purify themselves by discussion, are but as passing clouds
overspreading our land transiently and leaving our horizon more bright
and serene.[63]
Other noted political philosophers like John Stuart Mill conceived of
the “marketplace of ideas” as a necessary means of testing the validity
of ideas, viz:
(N)o one’s opinions deserve the name of knowledge, except so far as
he has either had forced upon him by others, or gone through of
himself, the same mental process which could have been required of
him in carrying on an active controversy with opponents.[64]
In the same vein, political philosopher Alexander Meiklejohn, in his
article “Free Speech Is An Absolute,” stressed that, “(s)elf-government
can exist only insofar as the voters acquire the intelligence, integrity,
sensitivity, and generous devotion to the general welfare that, in
theory, casting a ballot is assumed to express.”[65] To vote intelligently,
citizens need information about their government.[66] Even during the
diaper days of U.S. democracy, the Framers of the U.S. Constitution
postulated that self-governing people should be well-informed about
the workings of government to make intelligent political choices. In
discussing the First Amendment, James Madisonsaid: “The right of
freely examining public characters and measures, and of free
communication thereon, is the only effectual guardian of every other
right....”[67] Thus, the United States, a representative democracy, has
generally subscribed to the notion that public information and
participation are requirements for a representative democracy where
the electorate make informed choices. The First Amendment to the
U.S. Constitution, which establishes freedom of the press and speech
supports this proposition. The First Amendment’s jealous protection of
free expression is largely based on the ideas that free and open
debate will generate truth and that only an informed electorate
can create an effective democracy.[68]
The First Amendment reflects the Framers’ belief that public
participation in government is inherently positive. An informed
citizenry is a prerequisite to meaningful participation in
government. Thus, the U.S. Congress embraced this principle more
concretely with the passage of the Freedom of Information Act of 1966
(FO1A).[69]The law enhanced public access to and understanding of
the operation of federal agencies with respect to both the information
held by them and the formulation of public policy.[70] In the leading case
on the FOIA,Environmental Protection Agency v. Mink,[71] Justice
Douglas, in his dissent, emphasized that the philosophy of the statute
is the citizens’ right to be informed about “what their government is
up to.”[72] In Department of Air Force v. Rose,[73] the U.S. Supreme
Court acknowledged that the basic purpose of the FOIA is “to open
agency action to the light of public scrutiny. These rulings were
reiterated in the 1994 case of Department of Defense, et al. v.
Federal Labor Relations Authority, et al.[74] Be that as it may, the
U.S. Supreme Court characterized this freedom of information as a
statutory and not a constitutional right in Houchins v. KQED, Inc., et
al.,[75] viz: “there is no constitutional right to have access to particular
government information, or to require openness from the bureaucracy.
. . The Constitution itself is neither a Freedom of Information Act nor an
Official Secrets Act.”[76]Neither the courts nor Congress has recognized
an affirmative constitutional obligation to disclose information
concerning governmental affairs; the U.S. Constitution itself contains
no language from which the duty could be readily
inferred.[77] Nevertheless, the U.S. federal government, the fifty states
and the District of Columbia have shown their commitment to public
access to government-held information. All have statutes that allow
varying degrees of access to government records.[78]
While the right of access to government information or the “right to
know” is characterized as a statutory right, theright to receive
information[79] was first identified by the U.S. Supreme Court as a
constitutional right in the 1936 case of Grosjean v. American Press
Company. [80] The Court also stated that the First Amendment protects
the natural right of members of an organized society, united for their
common good, to impart and acquire information about their common
interests. Citing Judge Cooley, the Court held that free and general
discussion of public matters is essential to prepare the people for
an intelligent exercise of their rights as citizens.[81] The Court also
noted that an informed public opinion is the most potent of all restraints
upon misgovernment. Many considerVirginia State Board of
Pharmacy v. Virginia Citizens Consumer Council[82] the seminal
“right to receive” case.[83] In this 1976 decision, the Court struck down a
Virginia statute forbidding pharmacists from advertising the prices of
prescription drugs. Writing for the majority, Justice Blackmun held that
the free flow of information about commercial matters was necessary
to ensure informed public decision-making. He reasoned that the
protection of the First Amendment extends not only to the speaker, but
to the recipient of the communication. Although the case dealt with
commercial speech, the majority opinion made it clear that the
constitutional protection for receipt of information would apply
with even more force when more directly related to self-
government and public policy.[84]
In 1982, the U.S. Supreme Court highlighted the connection between
self-government and the right to receive information in Board of
Education v. Pico.[85] This case involved a school board-ordered
removal of books from secondary school libraries after the board
classified the book as “anti-American, anti-Christian, anti-Semitic, and
just plain filthy”.[86] Justice Brennan, writing for a three-justice plurality,
emphasized the First Amendment’s role in assuring widespread
dissemination of ideas and information. Citing Griswold v.
Connecticut,[87] the Court held that “(t)he State may not, consistently
with the spirit of the First Amendment, contract the spectrum of
available knowledge.” The Court noted that “the right to receive
ideas is a necessary predicate to the recipient’smeaningful
exercise of his own rights of speech, press, and political
freedom.” It then cited Madison’s admonition that, “(a) popular
Government, without popular information, or the means of
acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps
both. Knowledge will forever govern ignorance: And a people who
mean to be their own Governors, must arm themselves with the
power which knowledge gives.”[88]
The U.S. Supreme Court has reiterated, in various contexts, the idea
that “the Constitution protects the right to receive information and
ideas.”[89] Kleindienst v. Mandel[90] acknowledged a First Amendment
right to receive information but deferring to Congress’ plenary power to
exclude aliens. Lamont v. Postmaster General[91]invalidated a
statutory requirement that foreign mailings of “communist political
propaganda” be delivered only upon request by the addressee. Martin
v. City of Struthers[92] invalidated a municipal ordinance forbidding
door-to-door distribution of handbills as violative if the First
Amendment rights of both the recipients and the distributors. [93]
Whether the “right to know” is based on a statutory right provided by
the FOIA or a constitutional right covered by the First Amendment, the
underlying premise is that an informed people is necessary for a
sensible exercise of the freedom of speech, which in turn, is
necessary to a meaningful exercise of the right to vote in a
working democracy. In 1927, Justice Louis Brandeis gave the
principle behind the First Amendment its classic formulation, viz:
Those who won our independence believed that the final end of the
state was to make men free to develop their faculties, and that in its
government the deliberative forces should prevail over the
arbitrary. They valued liberty both as an end and as a means. They
believed liberty to be the secret of happiness and courage to be the
secret of liberty. They believed that freedom to think as you will and
to speak as you think are means indispensable to the discovery
and spread of political truth; that without free speech and assembly
discussion would be futile; that with them, discussion affords ordinarily
adequate protection against the dissemination of noxious doctrine; that
the greatest menace to freedom is an inert people; that public
discussion is a political duty; and that this should be a
fundamental principle of the American government. They
recognized the risks to which all human institutions are subject. But
they knew that order cannot be secured merely through fear of
punishment for its infraction; that it is hazardous to discourage thought,
hope and imagination; that fear breeds repression; that repression
breeds hate; that hate menaces stable government; that the path of
safety lies in the opportunity to discuss freely supposed
grievances and proposed remedies; and that the fitting remedy
for evil counsels is good ones. Believing in the power of reason
as applied through public discussion, they eschewed silence
coerced by law-the argument of force in its worst form. Recognizing
the occasional tyrannies of governing majorities, they amended the
Constitution so that free speech and assembly should be
guaranteed.[94]
The U.S. Supreme Court also held in Stromberg v. California[95] that
the First Amendment provides “the opportunity for free political
discussion to the end that government may be responsive to the will of
the people and that changes may be obtained by lawful
means...”[96] The Amendment is “the repository of...self-governing
powers”[97] as it provides a peaceful means for political and social
change through public discussion. In Mills v. State of Alabama,[98] it
ruled that there may be differences about interpretations of the First
Amendment, but there is practically universal agreement that a major
purpose of the Amendment was to protect the free discussion of
governmental affairs. This of course includes discussions of
candidates, structures and forms of government, the manner in
which government is operated or should be operated, all such
matters relating to political processes.[99] Justice William J. Brennan
summarized the principle succinctly in his opinion for the Court in
Garrison v. Louisiana, viz: “...speech concerning public affairs is more
than self-expression; it is the essence of self-government. (emphasis
supplied)”[100]
2. Philippine jurisdiction
The electorate’s right to information on public matters occupies a
higher legal tier in the Philippines compared to the United
States. While the right to information in U.S. jurisdiction is merely a
statutory right, it enjoys constitutional status in Philippine jurisdiction.
The 1987 Constitution not only enlarged the democratic space with
provisions on the electorate’s direct exercise of sovereignty, but also
highlighted the right of the people to information on matters of
public interest as a predicate to good governance and a working
democracy. The Bill of Rights sanctifies the right of the people to
information under Section 7, Article III of the 1987 Constitution, viz:
Sec. 7. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law. (emphasis supplied)
This provision on the right to information sans the phrase “as well as to
government research data” made its maiden appearance in the Bill of
Rights of the 1973 Constitution. The original draft of the provision
presented to the 1971 Constitutional Convention merely said that
access to official records and the right to information “shall be afforded
the citizens as may be provided by law.” Delegate De la Serna pointed
out, however, that the provision did not grant a self-executory right to
citizens. He thus proposed the rewording of the provision to grant the
right but subject to statutory limitations.[101] The 1973 Constitution thus
provided in Section 6, Article IV, viz:
Sec. 6. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions, or
decisions, shall be afforded the citizen subject to such limitations as
may be provided by law.
The change in phraseology was important as in the pre-1973 case
of Subido v. Ozaeta,[102] this Court held that freedom of information or
freedom to obtain information for publication is not guaranteed by the
constitution. In that case, the issue before the Court was whether the
press and the public had a constitutional right to demand the
examination of the public land records. The Court ruled in the negative
but held that the press had a statutory right to examine the records of
the Register of Deeds because the interest of the press was real and
adequate.
As worded in the 1973 and 1987 Constitution, the right to information is
self-executory. It is a public right where the real parties in interest are
the people. Thus, every citizen has “standing” to challenge any
violation of the right and may seek its enforcement.[103] The right to
information, free speech and press and of assembly and petition and
association which are all enshrined in the Bill of Rights are cognate
rights for they all commonly rest on the premise that ultimately it is an
informed and critical public opinion which alone can protect and
uphold the values of democratic government.[104]
In “splendid symmetry” [105]
with the right to information in the Bill of
Rights are other provisions of the 1987 Constitution highlighting the
principle of transparency in government. Included among the State
Policies under Article II of the 1987 Constitution is the following
provision, viz:
Sec. 28. Subject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full public disclosure of all its
transactions involving public interest. (emphasis supplied)
Related to the above provision is Section 21 of Article XI, National
Economy and Patrimony, which provides, viz:
Sec. 21. Foreign loans may be incurred in accordance with law and the
regulation of the monetary authority.Information on foreign laws
obtained or guaranteed by the Government shall be made
available to the public. (emphasis supplied)
The indispensability of access to information involving public interest
and government transparency in Philippine democracy is clearly
recognized in the deliberations of the 1987 Constitutional
Commission, viz:
MR. OPLE. Mr. Presiding Officer, this amendment is proposed jointly
by Commissioners Ople, Rama, Trenas, Romulo, Regalado and
Rosario Braid. It reads as follows: “SECTION 24. THE STATE SHALL
ADOPT AND IMPLEMENT A POLICY OF FULL
DISCLOSURE OF ALL ITS TRANSACTIONS SUBJECT
REASONABLE SAFEGUARDS ON NATIONAL INTEREST AS MAY
BE PROVIDED BY LAW.”
xxx xxx xxx
In the United States, President Aquino has made much of the point
that the government should be open and accessible to the public. This
amendment is by way of providing an umbrella statement in the
Declaration of Principles for all these safeguards for an open and
honest government distributed all over the draft Constitution.
establishes a concrete, ethical principle for the conduct of public
affairs in a genuinely open democracy, with the people’s right to
know as the centerpiece.[106] (emphasis supplied)
Commissioners Bernas and Rama made the following observations on
the principle of government transparency and the public’s right to
information:
FR. BERNAS. Just one observation, Mr. Presiding Officer. I want to
comment that Section 6 (referring to Section 7, Article III on the right to
information) talks about the right of the people to information, and
corresponding to every right is a duty. In this
case, corresponding to this right of the people is precisely the
duty of the State to make available whatever information there
may be needed that is of public concern. Section 6 is very broadly
stated so that it covers anything that is of public concern. It would
seem also that the advantage of Section 6 is that it challenges citizens
to be active in seeking information rather than being dependent on
whatever the State may release to them.
xxx xxx xxx
MR. RAMA. There is a difference between the provisions under the
Declaration of Principles and the provision under the Bill of Rights. The
basic difference is that the Bill of Rights contemplates coalition (sic)
(collision?) between the rights of the citizens and the State. Therefore,
it is the right of the citizen to demand information. While under the
Declaration of Principles, the State must have a policy, even without
being demanded, by the citizens, without being sued by the
citizen, to disclose information and transactions. So there is a
basic difference here because of the very nature of the Bill of Rights
PUBLIC
and the nature of the Declaration of Principles.[107](emphases supplied)
TO The importance of information in a democratic framework is also
recognized in Section 24, Article II, viz:
Sec. 24. The State recognizes the vital role of communication
and information in nation-building. (emphasis supplied).
Section 10 of Article XVI, General Provisions is a related provision. It
states, viz:
Sec. 10. The State shall provide the policy environment for the full
development of Filipino capability and theemergence of
communication structures suitable to the needs and aspirations
of the nation and the balanced flow of information into, out of, and
across the country, in accordance with a policy that respects the
It
freedom of speech and of the press. (emphasis supplied)
The sponsorship speech of Commissioner Braid expounds on the
rationale of these provisions on information and communication, viz:
MS. ROSARIO BRAID. We cannot talk of the functions of
communication unless we have a philosophy of communication, unless
we have a vision of society. Here we have a preferred vision where
opportunities are provided for participation by as many people, where
there is unity even in cultural diversity, for there is freedom to have
options in a pluralistic society. Communication and information
particular provide the leverage for power. They enable the people to act, to
make decisions, to share consciousness in the mobilization of the
[108]
nation. (emphasis supplied)
In Valmonte v. Belmonte,[109] the Court had occasion to rule on the
right to information of a lawyer, members of the media and plain
citizens who sought from the Government Service Insurance System a
“list of the names of the Batasang Pambansa members belonging to
the UNIDO and PDP-Laban who were able to secure clean loans
immediately before the February 7 election thru the
intercession/marginal note of the then First Lady Imelda Marcos.”[110] In
upholding the petitioners’ right, the Court explained the rationale of the
right to information in a democracy, viz:
This is not the first time that the Court is confronted wth a controversy
directly involving the constitutional right to information. In Tañada v.
Tuvera, G.R. No. 63915, April 2 , 1985, 136 SCRA 27 (involving the
need for adequate notice to the public of the various laws which
are to regulate the actions and conduct of citizens) and in the
recent case of Legaspi v. Civil Service Commission, G.R. No.
72119, May 29, 1987, 150 SCRA 530 (involving the concern of
citizens to ensure that government positions requiring civil
service eligibility are occupied only by persons who are eligibles),
the Court upheld the people’s constitutional right to be informed
of matters of public interest and ordered the government agencies
concerned to act as prayed for by the petitioners.
xxx xxx xxx
An informed citizenry with access to the diverse currents in
political, moral and artistic thought and data relative to them, and
the free exchange of ideas and discussion of issues thereon is
vital to the democratic government envisioned under our
Constitution. The cornerstone of this republican system of
government is delegation of power by the people to the State. In this
system, governmental agencies and institutions operate within the
limits of the authority conferred by the people. Denied access to
information on the inner workings of government, the citizenry can
become prey to the whims and caprices of those to whom the power
had been delegated...
xxx xxx xxx
...The right of access to information ensures that these freedoms are
not rendered nugatory by the government’s monopolizing pertinent
information. For an essential element of these freedoms is to keep
open in continuing dialogue or process of communication between the
government, and the people. It is in the interest of the State that the
channels for free political discussion be maintained to the end that the
government may perceive and be responsive to the people’s will. Yet,
this open dialogue can be effective only to the extent that the
citizenry is informed and thus able to formulate its will
intelligently. Only when the participants in a discussion are aware
of the issues and have access to information relating thereto can
such bear fruit.
The right to information is an essential premise of a meaningful right to
speech and expression. But this is not to say that the right to
information is merely an adjunct of and therefore restricted in
application by the exercise of the freedoms of speech and of the press.
Far from it. The right to information goes hand-in-hand with the
constitutional policies of full public disclosure (footnote omitted)
and honesty in the public service (footnote omitted). It is meant to
enhance the widening role of the citizenry in governmental
decision-making as well as in checking abuse in
[111]
government. (emphases supplied)
The Court made a similar ruling in Gonzales v. Narvasa[112] which
involved the petitioner’s request addressed to respondent Executive
Secretary Ronaldo B. Zamora for the “names of the executive officials
holding multiple positions in government, copies of their appointments,
and a list of the recipients of luxury vehicles seized by the Bureau of
Customs and turned over to Malacañang.”[113] The respondent was
ordered to furnish the petitioner the information requested. The Court
held, viz:
Under both the 1973 (footnote omitted) and 1987 Constitution, this (the
right to information) is a self-executory provision which can be invoked
by any citizen before the courts...
Elaborating on the significance of the right to information, the Court
said in Baldoza v. Dimaano (71 SCRA 14 [1976]...) that “[t]he
incorporation of this right in the Constitution is a recognition of the
fundamental role of free exchange of information in a democracy.
There can be no realistic perception by the public of the nation’s
problems, nor a meaningful democratic decision-making if they
are denied access to information of general interest. Information
is needed to enable the members of society to cope with the
exigencies of the times.”[114] (emphases supplied)
The importance of an informed citizenry in a working democracy was
again emphasized in Chavez v. Public Estates Authority and Amari
Coastal Bay Development Corporation[115] where we held, viz:
 September 11, 1944 election, there was no provision made for the
The State policy of full transparency in all transactions involving public selection of a County Treasurer to fill the vacancy for the unexpired
term. The name of the office did not appear on the ballot. Petitioner
interest reinforces the people’s right to information on matters of public Duquette, however, claims that he was elected County Treasurer in the
special election because in the City of Biddeford, the largest city in
concern. York County, 1,309 voters either wrote in the title of the office and his
name thereunder, or used a “sticker” of the same import and voted for
him. At the September 11, 1944 biennial election, there were
approximately 22,000 ballots cast, but none included the name of the
xxx xxx xxx petitioner except for the 1,309 in Biddeford. In holding that the special
election was void, the Maine Supreme Judicial Court made the
following pronouncements, the first paragraph of which was cited by
These twin provisions (on right to information under Section 7, Article the ponencia in the case at bar,viz:

III and the policy of full public disclosure under Section 28, Article II) of
Although there is not unanimity of judicial opinion as to the requirement
the Constitution seek to promote transparency in policy-making and in
of official notice, if the vacancy is to be filled at the time of a general
the operations of the government, as well as provide the people
election, yet it appears to be almost universally held that if the
sufficient information to exercise effectively other constitutional rights.
great body of the electors are misled by the want of such notice
These twin provisions are essential to the exercise of freedom of
and are instead led to believe that no such election is in fact to be
expression. If the government does not disclose its official acts,
held, an attempted choice by a small percentage of the voters is
transactions and decisions to citizens, whatever citizens may say,
void. Wilson v. Brown, 109 Ky 229, 139 Ky 397, 58 SW 595; Wooton
even if expressed without any restraint, will be speculative and
v. Wheeler, 149 Ky 62, 147 SW 914; Secord v. Foutch, 44 Mich 89, 6
amount to nothing. These twin provisions are also essential to hold
NW 110; Bolton v. Good, 41 NJL 296 (other citations omitted).
public officials “at all times x x x accountable to the people,” (footnote

omitted) for unless citizens have the proper information, they cannot
Notice to the electors that a vacancy exists and that an election is
hold public officials accountable for anything. Armed with the right
to be held to fill it for the unexpired term, is essential to give
information, citizens can participate in public discussions leading
validity to the meeting of an electoral body to discharge that
to the formulation of government policies and their effective
particular duty, and is also an essential and characteristic
implementation. An informed citizenry is essential to the
element of a popular election. Public policy requires that it should be
existence and proper functioning of any democracy.[116] (emphases
given in such form as to reach the body of the electorate. Here there
supplied)
had been no nominations to fill the vacancy, either by the holding
B. Elections and the voters’ right to information on the elections
of a special primary election, or by nomination by county political

conventions or party committees. The designation of the office to

1. U.S. Jurisdiction
be filled was not upon the official ballot. As before noted, except for
An informed citizenry’s opinions and preferences have the most impact
and are most clearly expressed in elections which lie at the foundation the vacancy, it would have no place there, as the term of office of the
of a representative democracy. The electorate’s true will, however,
can only be intelligently expressed if they are well informed about the incumbent, if living, would not expire until January 1,
time, place, manner of conduct of the elections and the candidates
therein. Without this information, democracy will be a mere shibboleth 1947.[119] (emphases supplied)
for voters will not be able to express their true will through the ballot. As early as the 1897 case of People ex rel. Dix v.
Kerwin,[120] the requirement of notice in an election has been
In Duquette v. Merrill,[117] which the ponencia cites by reference to 26 recognized, viz:
American Jurisprudence 2d §292,[118] a vacancy in the office of Country
Treasurer in York County occurred on July 24, 1944 upon the death of
the incumbent Maynard A. Hobbs. The vacancy was filled in ... We are not prepared to hold that this statute (requiring the giving of
accordance with the law providing that the governor may appoint a
resident of the county who shall be treasurer until the 1st day of notice) is, under all circumstances and at all times, so far mandatory
January following the next biennial election, at which said election a
treasurer shall be chosen for the remainder of the term, if any. The that a failure to observe its requirements will defeat an election
next biennial election was held on September 11, 1944. In the June
1944 primary election (prior to the death of Hobbs) where nominations otherwise regularly holden. There are many cases which hold that
of candidates for the upcoming biennial elections were made, there
was no nomination for the office of County Treasurer as Hobbes’ term elections regularly held and persons regularly voted for on nominations
was yet to expire on January 1947. Neither was a special primary
election ordered by proclamation of the Governor after Hobbes’ death. made where there has been failure to observe some specific statutory
Nor were other legal modes of nominating candidates such as through
requirement will not thereby be necessarily defeated and the direction
nomination of a political party, convention of delegates or appropriate
caucus resorted to. Consequently, in the official ballot of the
may, because of the excusing circumstances, be held directory rather
than mandatory. We do not believe the circumstances of the present
case, as they are now exhibited, bring it all within this rule. The theory
of elections is that there shall be due notice given to the voters,
and that they must be advised either by a direct notice published
by the clerk, as provided by statute, or by proceedings taken by
the voters and the people generally in such a way as that it may
be fairly inferred that it was generally and thoroughly well
understood that a particular office was to be filled at the election,
so that the voters should act understandingly and intelligently in
casting their ballots.
xxx xxx xxx
Since there was no notice published according to the statute, we may
not assume that the nomination was regularly made, or that the voters
were duly notified that the office was to be filled at that general
election, nine days afterwards. It has been generally held that some
notice, regular in its form, and pursuant to the requirements of
law, must be given as a safeguard to popular elections, that the
people may be informed for what officers they are to vote. Of
course, it might easily be true, as has already been suggested,
that, if nominations had been made for an office, certificates
regularly filed, and tickets regularly printed, even though the clerk
had failed to publish his notice, there would be no presumption
that the body of the voters were uninformed as to their rights and
as to the positions which were to be filled. People v. Porter, 6 Cal.
26; Secord v. Foutch, 44 Mich 89, 6 N.W. 110; Adsit v. Osmun, 84
Mich. 420, 48 N.W. 31; Allen v. Glynn, 17 Colo. 338, 29 Pac. 670;
Stephens v. People, 89 111. 337.[121] (emphases supplied)
Similarly, in Griffith v. Mercer County Court, et al.,[122] it was
held, viz:
There is a clear distinction between the case of a vacancy which is to
be filled at a special election to be held at a time and place to be
appointed by some officer or tribunal, authorized by statute to call it,
and a case where the statute itself provides for filling a vacancy at
the next general election after it occurs. In such case nearly all
the authorities hold that if the body of electors do in fact know the
vacancy exists, and candidates are regularly nominated by the
various political parties to fill it, and the candidates receive most
of the votes cast, such election is valid, even though no notice
thereof was published in a manner provided by the statute. It
would be hypertechnical and unreasonable to hold that a failure to
comply literally with the statute in such case would avoid the
election.[123] (emphasis supplied)
In Duquette, Kerwin and Griffith, as in a great majority of cases on
the state level, the mere fact that the election to fill a vacancy
occasioned by death, resignation, removal, or the like is held at the
time of a general election in accordance with a constitutional or
statutory provision, is not regarded as sufficient in itself to validate
the election if no notice of the election was given; it has been held
that in such a case, it must be shown that a sufficient part of the
electors have actual notice that the vacancy is to be filled. The
fact that a great percentage of voters cast their votes despite the
failure of giving proper notice of the elections appears to be the
most decisive single factor to hold that sufficient actual notice
was given.[124] These doctrines were reiterated in Lisle, et al. v. C.L.
Schooler[125] where it was held that mere allegation that “many” voters
were informed that a special election to fill a vacancy was being held
was unsatisfactory proof of sufficient notice.
2. Philippine jurisdiction
In our jurisdiction, it is also the rule that the exercise of the right of
suffrage should be an enlightened one, hence, based on relevant facts,
data and information. It is for this reason that the choice of
representatives in a democracy cannot be based on lottery or any form
of chance. The choice must be based on enlightened judgment for
democracy cannot endure the rule and reign of ignorance. This
principle was stressed by the Court in Tolentino v. Commission on
Elections.[126] The issue before the Court was whether the
Constitutional Convention of 1971 had the power to call for a plebiscite
for the ratification by the people of a partial constitutional amendment.
The amendment was the proposal to lower the voting age to 18 but
with the caveat that “(t)his partial amendment, which refers only to age
qualification for the exercise of suffrage shall be without prejudice to
other amendments that will be proposed in the future by the 1971
Constitutional Convention on other portions of the amended Section or
on other portions of the entire Constitution.” The Court ruled in the
negative, emphasizing the necessity for the voter to be afforded
sufficient time and information to appraise the amendment, viz:
. . .No one knows what changes in the fundamental principles of the
constitution the Convention will be minded to approve. To be more
specific, we do not have any means of foreseeing whether the right to
vote would be of any significant value at all. Who can say whether or
not later on the Convention may decide to provide for varying types of
voters for each level of the political units it may divide the country into.
The root of the difficulty in other words, lies in that the Convention is
precisely on the verge of introducing substantial changes, if not radical
ones, in almost every part and aspect of the existing social and political
order enshrined in the present Constitution. How can a voter in the
proposed plebiscite intelligently determine the effect of the
reduction of the voting age upon the different institutions which
the Convention may establish and of which presently he is not
given any idea?

We are certain no one can deny that in order that a plebiscite for
the ratification of an amendment to the Constitution may be
validly held, it must provide the voter not only sufficient time but
ample basis for an intelligent appraisal of the nature of the
amendment per se as well as its relation to the other parts of the
Constitution with which it has to form a harmonious whole. In the
present state of things, where the Convention has hardly started
considering the merits of hundreds, if not thousands, of proposals to
amend the existing Constitution, to present to the people any single
proposal or a few of them cannot comply with
requirement.[127] (emphasis supplied)
The need for the voter to be informed about matters which have a
bearing on his vote was again emphasized by the Court in UNIDO v.
Commission on Elections.[128] This case involved the amendments to
the 1973 Constitution proposed by the Batasang Pambansa in 1981.
The Court reiterated that the more people are adequately informed
about the proposed amendments, their exact meaning,
implications and nuances, the better. We held, viz:
To begin with, we cannot agree with the restrictive literal interpretation
the Solicitor General would want to give to the “free, orderly and
honest elections” clause of Section 5, Article X1I-C above-quoted.
Government Counsel posits that the said clause refers exclusively to
the manner in which the elections are conducted, that is to say, with
the manner in which the voters are supposed to be allowed to vote.
Perhaps, such a theory may hold insofar as ordinary elections of
officials are concerned. But the Court views the provision as applicable
also to plebiscites, particularly one relative to constitutional
amendments. Be it borne in mind that it has been one of the most
steadfast rulings of this Court in connection with such plebiscites
that it is indispensable that they be properly characterized to be
fair submission - by which is meant that the voters must of
necessity have had adequate opportunity, in the light of
conventional wisdom, to cast their votes with sufficient
understanding of what they are voting on. We are of the firm
conviction that the charter’s reference to honest elections connotes fair
submission in a plebiscite. (emphasis supplied)
Similarly, the Court ruled in Sanidad v. COMELEC[129] that plebiscite
issues are matters of public concern and importance. The people’s
right to be informed and to be able to freely and intelligently make a
decision would be better served by access to an unabridged
discussion of the issues, including the forum.
It cannot be overemphasized that an informed electorate is
necessary for a truly free, fair and intelligent election. The voting
age was lowered from 21 years to 18 years because the youth of 18 to
21 years did not differ in political maturity,[130] implying that political
maturity or the capacity to discern political information is necessary for
the exercise of suffrage. It is for this obvious reason that minors and
the insane are not allowed to vote. Likewise, the literacy test for the
right to vote was abolished because as explained by the Committee on
Suffrage and Electoral Reforms of the 1971 Constitutional Convention,
“the requirement to read and write was written into our constitution at a
time when the only medium of information was the printed word and
even the public meetings were not as large and successful because of
the absence of amplifying equipment. It is a fact that today the vast
majority of the population learn about national matters much more from
the audio-visual media, namely, radio and television, and public
meetings have become much more effective since the advent of
amplifying equipment.” Again, the necessity of information relevant to
an election is highlighted. Similarly, in the 1986 Constitutional
Commission, Commissioner Bernas, in justifying enfranchisement of
the illiterates, spoke of their access to information relevant to
elections, viz:
If we look at...the communication situation in the Philippines now, the
means of communication that has the farthest reach is AM radio.
this
People get their information not from reading newspapers but from AM
radio - farmers while plowing, and vendors while selling things listen to
the radio. Without knowing how to read and write, they are adequately
informed about many things happening in the country.[131]
Several election cases, albeit not involving an issue similar to the case
at bar, affirm the necessity of an informed electorate in holding
free, intelligent and clean elections. In Blo Umpar Adiong v.
Commission on Elections[132]where this Court nullified a portion of a
COMELEC Resolution prohibiting the posting of candidates’ decals
and stickers on “mobile” places and limiting their location to authorized
posting areas, we held, viz:
We have adopted the principle that debate on public issues should be
uninhibited, robust, and wide open and that it may well include
vehement, caustic and sometimes unpleasantly sharp attacks on
government and public officials. (New York Times Co. v. Sullivan, 376
U.S. 254, 11 L.Ed. 686 [1964]...) Too many restrictions will deny to
people the robust, uninhibited, and wide open debate, the
generating of interest essential if our elections will truly be free,
clean and honest.
We have also ruled that the preferred freedom of expression calls all
the more for the utmost respect when what may be curtailed is
the dissemination of information to make more meaningful the
equally vital right of suffrage. (Mutuc v. Commission on Elections,
36 SCRA 228 [1970]).
xxx xxx xxx
When faced with border line situations where freedom to speak by a
candidate or party and freedom to know on the part of the electorate
are invoked against actions intended for maintaining clean and free
elections, the police, local officials and COMELEC should lean in favor
 of Congressmen should be by district or province also evince a clear
of freedom. For in the ultimate analysis, the freedom of the citizen and concern for intelligent voting, viz:

the State’s power to regulate are not antagonistic. There can be no

SR. TAN. Mr. Presiding Officer, I think one of the drawbacks of our
free and honest elections if in the efforts to maintain them, the
political system, especially in the campaign, is that many of us vote by
freedom to speak and the right to know are unduly curtailed.
personality rather than by issue. So I am inclined to believe that in the

xxx xxx xxx elections by district, that would be lessened because we get to know

the persons running more intimately. So we know their motivation, their

...we have to consider the fact that in the posting of decals and stickers excesses, their weaknesses and there would be less chance for the

on cars and other moving vehicles, the candidate needs the consent of people to vote by personality. I was wondering whether the

the owner of the vehicle. In such a case, the prohibition would not only Commission shares the same observation.

deprive the owner who consents to such posting of the decals and

stickers the use of his property but more important, in the process, it MR. DAVIDE. Mr. Presiding Officer, if it would be by province, the vote

would deprive the citizen of his right to free speech and information: would no longer be personalities but more on issues, because the

Freedom to distribute information to every citizen wherever he relationship is not really very personal. Whereas, if it would be by

desires to receive it is so clearly vital to the preservation of a free district, the vote on personality would be most impressive and

society that, putting aside reasonable police and health regulations of dominant.

time and manner of distribution, it must be fully preserved. (Martin v.

City of Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943]). [133] SR. TAN. I cannot quite believe that. It would be like a superstar
To facilitate the people’s right to information on election matters, this
Court, in Telecommunications and Broadcast Attorneys of the running around.
Philippines, Inc., et al. v. COMELEC[134] upheld the validity of
COMELEC’s procurement of print space and airtime for allocation to
candidates, viz:
MR. DAVIDE. For instance, we have a district consisting of two

With the prohibition on media advertising by candidates themselves, municipalities. The vote would be more on personalities. It is a

the COMELEC Time and COMELEC Space are about the only means question of attachment; you are the godson or the sponsor of a

through which candidates can advertise their qualifications and baptism, like that. But if you will be voted by province, it’s your merit

programs of government. More than merely depriving candidates of that will be counted by all others outside your own area. In short, the

time for their ads, the failure of broadcast stations to provide more capable you are, the more chance you have of winning

airtime unless paid by the government would clearly deprive the provincewide.[136]
Several provisions of our election laws also manifest a clear
people of their right to know. Art. III, § 7 of the Constitution intent to facilitate the voters’ acquisition of information pertaining
to elections to the end that their vote would truly reflect their
provides that ‘the right of the people to information on matters of will. Section 52(j) of Article VII of B.P. Blg. 881 or the Omnibus
Election Code gives the COMELEC the following power and duty:
public concern shall be recognized...’[135] (emphasis supplied)
The importance of the people’s acquisition of information can be
gleaned from several provisions of the Constitution under Article (j) Carry out a continuing and systematic campaign through
IX (C), The Commission on Elections. Section 4 provides that the
COMELEC is given the power to “supervise or regulate the enjoyment newspapers of general circulation, radios and other media forms
or utilization of all franchises or permits for the operation of
transportation and other public utilities, media of communication or to educate the public and fully inform the electorate about
information, all grants, special privileges or concession granted by the
election laws, procedures, decisions, and other matters relative to
Government... Such supervision or regulation shall aim to ensure equal
opportunity, time, and space and the right to reply, including
the work and duties of the Commission and the necessity of clean,
reasonable, equal rates therefor, for public information campaigns and
forums among candidates in connection with the objective of holding
free, orderly and honest electoral processes. (Sec. 185(k), 1978 EC)
free, orderly, honest, peaceful and credible elections. Section 6
provides that, “(a) free and open party system shall be allowed to
evolve according to the free choice of the people”. Section 2(5) of the
same article requires political parties, organizations and coalitions to (k) Enlist non-partisan groups or organizations of citizens from the
present their platform or program of government before these can be
registered. In the robust and wide open debate of the electorate, these civic, youth, professional, educational, business or labor sectors known
programs of government are important matters for discussion.
for their probity, impartiality and integrity...Such groups or
The deliberations of the Constitutional Commission on whether voting
organizations...shall perform the following specific functions and duties: employment of press, radio and television facilities insofar as the

A. Before Election Day: placement of political advertisements is concerned to ensure that

1. Undertake an information campaign on salient features of this candidates are given equal opportunities under equal circumstances to

Code and help in the dissemination of the orders, decisions make known their qualifications and their stand on public

and resolutions of the Commission relative to the forthcoming issueswithin the limits set forth in the Omnibus Election Code and

election. (emphasis supplied) Republic Act No. 7166 on election spending. (emphasis supplied)
Section 87 of Article X of B.P. Blg. 881 also provides, viz: The Omnibus Election Code also provides for procedures and
requirements that make the election process clear and orderly to avoid
voter confusion. Article IX of the Code provides, viz:
Section 87. xxx

Section 73. Certificate of candidacy.- No person shall be eligible for

Public Forum. - The Commission shall encourage non-political, non- any elective public office unless he files a sworn certificate of

partisan private or civic organizations to initiate and hold in every city candidacy within the period fixed herein.

and municipality, public for at which all registered candidates for the

same office may simultaneously and personally participate to xxx xxx xxx

present, explain, and/or debate on their campaign platforms and

programs and other like issues... (emphasis supplied) No person shall be eligible for more than one office to be filled in
Section 93 of the same Article provides, viz:
the same election, and if he files his certificate of candidacy for more

Section 93. Comelec information bulletin. - The Commission shall than one office, he shall not be eligible for any of them...

cause the printing, and supervise the dissemination of bulletins to be

known as “Comelec Bulletin” which shall be of such size as to xxx xxx xxx

adequatelycontain the picture, bio-data and program of

government of every candidate. Said bulletin shall be Certificates of Candidacy; Certified List of Candidates. -...

disseminated to the voters or displayed in such places as to give

due prominence thereto. (emphasis supplied)
Of the same import is Section 25 of R.A. No. 8436, “An Act Authorizing
the Commission on Elections to Use an Automated Election System in
the May 11, 1998 Elections and Subsequent Electoral Exercises”
which provides,viz:
...the Commission shall cause to be printed certified lists of
candidates containing the names of all registered candidates for
each office to be voted for in each province, city or municipality

immediately followed by the nickname or stage name of each

Section 25. Voters’ Education. - The Commission together with and in
candidate duly registered in his certificate of candidacy and his political
support of accredited citizens’ arms shall cany out a continuing and
affiliation, if any. Said list shall be posted inside each voting booth
systematic campaign though newspapers of general circulation, radio
during the voting period.
and other media forms, as well as through seminars, symposia, fora

and other nontraditional means to educate the public and fully

xxx xxx xxx
inform the electorate about the automated election system and

inculcate values on honest, peaceful and orderly elections. (emphasis

The names of all registered candidates immediately followed by the
supplied)
Similarly, R.A. No. 9006, “An Act to Enhance the Holding of Free, nickname or stage name shall also beprinted in the election returns
Orderly, Honest, Peaceful and Credible Elections through Fair Election
Practices,” approved a few months before the May 2001 elections or and tally sheets (R.A. No. 6646, Sec. 4)
on February 12, 2001 provides in Section 6.4, viz:

Sec. 6.4. xxx xxx xxx Section. 74. Contents of certificate of candidacy. The certificate of

candidacy shall state that the person filing it is announcing his

In all instances, the COMELEC shall supervise the use and


candidacy for the office stated therein and that he is eligible for said
office;...
Article XVI, Section 181, also provides, viz:
Section 181. Official ballots.
xxx xxx
(b) The official ballot shall also contain the names of all the officers to
be voted for in the election, allowingopposite the name of each
office, sufficient space or spaces with horizontal lines where the
voter may write the name or names of individual candidates voted
for by him.
In the case of special elections, the need for notice and
information is unmistakable under Section 7 of the Omnibus Election
Code of the Philippines, as amended by R.A. No. 7166, which
provides, viz:
Sec. 7. Call for special election. - In case a permanent vacancy shall
occur in the Senate or House of Representatives at least one (1) year
before the expiration of the term, the Commission shall call and hold a
special election to fill the vacancy not earlier than sixty (60) days nor
longer than ninety (90) after the occurrence of the vacancy. However,
in case of such vacancy in the Senate, the special election shall be
held simultaneously with the succeeding regular election. (R.A. No.
7166, Sec.
The postponement, declaration of failure of election and the calling of
special elections as provided in Sections 5, 6, and 7 of the Omnibus
Election Code shall be decided by the Commission sitting en banc by a
majority vote of its members. The causes for the declaration of a failure
of election may occur before or after the casting of votes or on the day
of the election. (R.A. No. 7166, Sec.
The Commission shall send sufficient copies of its resolution for
the holding of the election to its provincial election supervisors
and election registrars for dissemination, who shall post copies
thereof in at least three conspicuous places preferably where
public meetings are held in each city or municipality
affected. (1978 EC, Sec. 8) (emphasis supplied)
In Hassan v. COMELEC, et al.,[137] we ruled that constituents could
not be charged with notice of a second special elections held only two
days after the failure of the special election. This case involved the
May 8, 1995 regular local elections in Madalum, Lanao del Sur. Due to
the threats of violence and terrorism in the area, there was a failure of
election in six out of twenty-four precincts in Madalum. A special
elections was set on May 27, 1995 but the Board of Election Inspectors
failed to report for duty due to the threats of violence. The Monitoring
Supervising Team of the COMELEC reset the special elections to May
29, 1995 in a school 15 kilometers away from the designated polling
places. In ruling that the May 29 special elections was invalid, the
Court ruled, viz:
-
We cannot agree with the COMELEC that petitioner, his followers or
the constituents must be charged with notice of the special elections to
xxx
be held because of the failure of the two (2) previous elections. To
require the voters to come to the polls on such short notice was highly
impracticable. In a place marred by violence, it was necessary for the
voters to be given sufficient time to be notified of the changes and
prepare themselves for the eventuality.
It is essential to the validity of the election that the voters have
notice in some form, either actual or constructive of the time,
place and purpose thereof. (Furste v. Gray, 240 Ky 604, 42 SW 2d
889; State ex. rel. Stipp v. Colliver (MO) 243 SW 2d 344.) The time for
holding it must be authoritatively designated in advance. The
requirement of notice even becomes stricter in cases of special
elections where it was called by some authority after the happening of
a condition precedent, or at least there must be a substantial
compliance therewith so that it may fairly and reasonably be said that
the purpose of the statute has been carried into effect. (State ex. rel.
4) Stipp v. Colliver, supra). The sufficiency of notice is determined on
whether the voters generally have knowledge of the time, place
and purpose of the elections so as to give them full opportunity to
attend the polls and express their will or on the other hand,
whether the omission resulted in depriving a sufficient number of
the qualified electors of the opportunity of exercising their
franchise so as to change the result of the election. (Housing
4) Authority of County of Kings v. Peden, 212 Cal App 2d 276, 28 Cal
Rptr, other citations omitted)
xxx xxx xxx
...even in highly urbanized areas, the dissemination of notices poses to
be a problem. In the absence of proof that actual notice of the
special elections has reached a great number of voters, we are
constrained to consider the May 29 elections as
invalid...(emphases supplied)
Although this case did not involve a special election held
simultaneously with a general election by mandate of law as in the
case bar, the doctrine that can be derived from this case is that the
electorate must be informed of the special election as proved by official
or actual notice.
VII. Application of the Principles of Democracy, Republicanism
Freedom of Information and Discourse to the Case at Bar
The 1987 Constitution, with its declaration that the Philippines is not
only a republican but also a democratic state, and its various
provisions broadening the space for direct democracy unmistakably
show the framers’ intent to give the Filipino people a greater say in
government. The heart of democracy lies in the majoritarian rule but
the majoritarian rule is not a mere game of dominant numbers. The
majority can rule and rule effectively only if its judgment is an informed
one. With an informed electorate, a healthy collision of ideas is
assured that will generate sparks to fan the flames of democracy. Rule
by the ignorant majority is a sham democracy - a mobocracy -for
in the words of Jefferson, a nation cannot be both free and
ignorant. If there is anything that democracy cannot survive, it is the
virus of ignorance.
Elections serve as a crevice in the democratic field where voters, for
themselves and the public good, plant the seeds of their ideals and
freedoms. Yick Wo is emphatic that voting is a fundamental right that
preserves and cultivates all other rights. In a republic undergirded by
a social contract, the threshold consent of equal people to form a
government that will rule them is renewed in every election where
people exercise their fundamental right to vote to the end that
their chosen representatives will protect their natural rights to
life, liberty and property. It is this sacred contract which makes
legitimate the government’s exercise of its powers and the
chosen representatives’ performance of their duties and
functions. The electoral exercise should be nothing less than a pure
moment of informed judgment where the electorate speaks its mind on
the issues of the day and choose the men and women of the hour who
are seeking their mandate.
The importance of information and discourse cannot be
overemphasized in a democratic and republican setting. Our
constitutional provisions and cases highlighting the people’s right to
information and the duty of the State to provide information
unmistakably recognize the indispensable need of properly informing
the citizenry so they can genuinely participate in and contribute to a
functioning democracy. As elections lie at the foundation of
representative democracy, there should be no quarrel over the
proposition that electoral information should also be disseminated to
the electorate as a predicate to an informed judgment.
The ponencia concedes that a survey of COMELEC’s resolutions
relating to the conduct of the May 14, 2001 elections would reveal that
they “contain nothing which would amount to a compliance, either strict
or substantial, with the requirements in Section 2 of R.A. No. 6645, as
amended.” Nowhere in its resolutions or even its press releases did
COMELEC state that it would hold a special election for a single
Senate seat with a three-year term simultaneously with the regular
elections on May 14, 2001. Nor did COMELEC give official notice of
the manner by which the special election would be conducted, i.e., that
the senatorial candidate receiving the 13th highest number of votes in
the election would be declared winner in the special election. Still,
the ponencia upheld the holding of the May 14, 2001 special election
despite “the lack of ‘call’ for such election and ... lack of notice as to the
office to be filled and the manner by which the winner in the special
election is to be determined.”
With all due respect, I cannot subscribe to
the ponencia’s position for it leaves the purity of elections and
the ascertainment of the will of the electorate to chance,
conjecture and speculation. Considering that elections lie at the
heart of the democratic process because it is through the act of voting
that consent to government is secured, I choose to take a position that
would ensure, to the greatest extent possible, an electorate that is
informed, a vote that is not devalued by ignorance and an election
where the consent of the governed is clear and unequivocal.
The ponencia justifies its position on the lack of call or notice of the
time and place of the special election by holding that the law charges
voters with knowledge of R.A. No. 7166 which provides that in case of
a vacancy in the Senate, the special election to fill such vacancy shall
be held simultaneously with the next succeeding election, that is, the
May 14, 2001 election. The ponencia’s argument is that the provisions
of R.A. No. 7166 stating that the special election would be held
simultaneously with the regular election operated as a call for the
election so that the absence of a call by the COMELEC did not taint
the validity of the special election. With due respect, this is not the
intention of R.A. No. 7166 for despite its paragraph 1, Section 7 that “in
case of such vacancy in the Senate, the special election shall be held
simultaneously with the succeeding regular election”, the law
nevertheless required in paragraph 3 of the same section that “(t)he
Commission shall send sufficient copies of its resolution for the
holding of the election to its provincial election supervisors and
election registrars for dissemination, who shall post copies
thereof in at least three conspicuous places preferably where
public meetings are held in each city or municipality affected.”
The Duquette case cited by the ponencia does not lend support to its
thesis that statutory notice suffices. InDuquette, it was held that in the
absence of an official notice of the special election mandated by
law to be held simultaneously with the general election, there
should be actual notice of the electorate. Actual notice may be
proved by the voting of a significant percentage of the electorate for
the position in the special election or by other acts which manifest
awareness of the holding of a special election such as nomination of
candidates. In the case at bar, however, the number of votes cast
for the special election cannot be determined as the ballot did not
indicate separately the votes for the special election. In fact,
whether or not the electorate had notice of the special election, a
candidate would just the same fall as the 13th placer because more
than twelve candidates ran for the regular senatorial elections. Nobody
was nominated to vie specifically for the senatorial seat in the special
election nor was there a certificate of candidacy filed for that position.
In the absence of official notice of the time, place and manner of
conduct of the special election, actual notice is a matter of proof.
Respondents and the ponencia cannot point to any proof of actual
notice.
With respect to the lack of notice of the manner by which the special
election would be conducted, i.e., that the 13th placer would be
declared winner in the special election, there can be no debate that
statutory notice will not operate as notice to the electorate as there
is no law providing that a special election held simultaneously with a
general election could be conducted in the manner adopted by the
Senate and the COMELEC. Instead, theponencia buttresses its
holding by stating that the petitioner has not claimed nor proved that
the failure of notice misled a sufficient number of voters as would
change the result of the special senatorial election. It relies on “actual
notice from many sources, such as media reports of the enactment of
R.A. No. 6645 and election propaganda during the campaign” but
without even identifying these media reports and election propaganda.
Suffice to state that before the ponencia can require proof that a
sufficient number of voters was misled during the May 14, 2001
elections, it must first be shown that in the absence of official notice of
the procedure for the special election, there was nevertheless actual
notice of the electorate so that the special election could be presumed
to be valid. Only then will the duty arise to show proof that a sufficient
number of voters was misled to rebut the presumption of validity.
I respectfully submit that the electorate should have been informed of
the time, place and manner of conduct of the May 14, 2001 special
election for the single senatorial seat for the unexpired term of former
Senator Teofisto Guingona, Jr. Tolentino, UNIDO, Blo Umpar
Adiong and Hassan all deepened the doctrine that a meaningful
exercise of the right of suffrage in a genuinely free, orderly and honest
election is predicated upon an electorate informed on the issues of the
day, the programs of government laid out before them, the candidates
running in the election and the time, place and manner of conduct of
the election. It is for this reason that the Omnibus Election Code is
studded with processes, procedures and requirements that ensure
voter information.
Bince and Benito further teach us that free and intelligent vote is not
enough; correct ascertainment of the will of the people is equally
necessary. The procedure adopted in the case at bar for holding the
May 14, 2001 special senatorial election utterly failed to ascertain the T[HE] P[RESIDENT]. May I share this information that under Republic
people’s choice in the special election. Section 2 of R.A. No. 7166
provides that the “special election shall be held simultaneously with Act No. 6645, what is needed is a resolution of this Chamber calling
such general election.” It does not contemplate, however, the
integration of the special senatorial election into the regular attention to the need for the holding of a special election to fill up the
senatorial election whereby candidates who filed certificates of
candidacy for the regular elections also automatically stand as vacancy created, in this particular case, by the appointment of our
candidates in the special election. The Omnibus Election Code is
crystal clear that a candidate can run for only one position in an colleague, Senator Guingona, as Vice President.
election. Consequently, there were no candidates in the special
election to vote for. Separate sets of candidates for the special election
and the regular elections are decisive of the election results. Each
independent-minded voter could have a variety of reasons for choosing It can be managed in the Commission on Elections so that a slot for
a candidate to serve for only the unexpired term of three years instead
of the regular term of six years or not choosing a candidate at all. A the particular candidate to fill up would be that reserved for Mr.
voter might choose a neophyte to serve the three-year term as a
shorter trial period. Another might be minded to choose an old timer to Guingona’s unexpired term. In other words, it can be arranged in such
compel him to hasten the completion of his projects in a shorter period
of three years. Still another might want to afford a second termer who a manner.
has not performed too satisfactorily a second chance to prove himself
but not for too long a period of six years. In not allowing the voter to
separately indicate the candidate he voted for the three-year
xxx xxx xxx
senatorial term, the voter was deprived of his right to make an
informed judgment based on his own reasons and
valuations. Consequently, his true will in the special election was not
ascertained. As a particle of sovereignty, it is the thinking voter who S[ENATOR] R[OCO]. Mr. President.
must determine who should win in the special election and not the
unthinking machine that will mechanically ascertain the 13th placer in
the general election by mathematical computations.
T[HE] P[RESIDENT]. Sen Raul S. Roco is recognized.
The models to follow in the conduct of special elections mandated by
law to be held simultaneously with a general elections are the special
elections of November 13, 1951 and November 8, 1955 to fill the seats
vacated by then Senators Fernando Lopez and Carlos P. Garcia, S[ENATOR] R[OCO]. May we suggest, subject to a one-minute
respectively. In these special senatorial elections, election
activities prior (i.e., filing of certificate of candidacies), during (i.e., the caucus, wordings to the effect that in the simultaneous elections, the
act of voting for a special election candidate distinct from the
candidates for the regular election) and after the election (i.e., tallying 13th placer be therefore deemed to be the special election for this
and canvassing of results) were conducted simultaneously with,
but distinctly from the regular senatorial elections. This procedure purpose. So we just nominate 13 and it is good for our colleagues. It is
minimized voter confusion and allowed the voter to freely and
accurately speak his mind and have his will truly ascertained. better for the candidates. It is also less expensive because the ballot
Regrettably, this objective appears to have been lost in the calling of
the May 14, 2001 special election as can be gleaned from the Senate will be printed and there will be less disenfranchisement.
deliberations on the resolution calling for that election, viz:

S[ENATOR] T[ATAD]. Mr. President, in this resolution, we are leaving T[HE] P[PRESIDENT]. That is right.

the mechanics to the Commission on Elections. But personally, I would

like to suggest that probably, the candidate obtaining the 13th largest S[ENATOR] R[OCO]. If we can just deem it therefore under this

number of votes be declared as elected to fill up the unexpired term of resolution to be such a special election, maybe, we satisfy the

Senator Guingona. requirement of the law.

S[ENATOR] O[SMEÑA]. (J). Is there a law that would allow the T[HE] P[RESIDENT]. Yes. In other words, this shall be a guidance

Comelec to conduct such an election? Is it not the case that the for the Comelec.

vacancy is for a specific office? I am really at a loss. I am rising here

because I think it is something that we should consider. I do not know if S[ENATOR] R[OCO]. Yes.

we can...No, this is not a Concurrent Resolution.

T[HE] P[RESIDENT]. - to implement.

S[ENATOR] T[ATAD]. May we solicit the legal wisdom of the Senate

President. S[ENATOR] R[OCO]. Yes. The Comelec will not have the

flexibility.
T[HE] P[RESIDENT]. That is right. T[HE] P[RESIDENT]. There is a motion to adopt this resolution. Is

there any objection? [Silence] There being none, the motion is

S[ENATOR] R[OCO]. We will already consider the 13th placer of the approved.[138] (emphases supplied)
The Senate’s observation that the procedure for the special election
forthcoming elections that will be held simultaneously a? a special that it adopted would be less costly for the government as the ballots
need not be printed again to separately indicate the candidate voted
election under this law as we understand it.
for the special election does not also lend justification for the manner of
conduct of the May 14, 2001 special election. We cannot bargain the
electorate’s fundamental right to vote intelligently with the coin of
T[HE] P[RESIDENT]. Yes. That will be a good compromise, Senator convenience. Even with the Senate stance, the regular ballot had to be
modified to include a thirteenth space in the list of senatorial seats to
Roco. be voted for. At any rate, reliance on R.A. No. 6645 is erroneous. This
law provides that when a vacancy arises in the Senate, the Senate, by
resolution, certifies to the existence of the vacancy and calls for a
S[ENATOR] R[OCO]. Yes. So if the sponsor can introduce that later, special election. Upon receipt of the resolution, the COMELEC
holds the special election. R.A. No. 6645 was amended in 1991 by
maybe it will be better, Mr. President. R.A. No. 7166. The latter law provides that when a permanent vacancy
occurs in the Senate at least one year before the expiration of the
term, “the Commission (on Elections) shall call and hold a special
T[HE P[RESIDENT]. What does the sponsor say? election to fill the vacancy...” Since under R.A. No. 7166, it is the power
and duty of the COMELEC, and not the Senate, to call and hold the
election, the Senate cannot, by mere resolution, impose upon the
COMELEC the procedure for the special election that it intended such
S[ENATOR] [T]ATAD. Mr. President, that is a most satisfactory
that “Comelec will not have the flexibility” to deviate therefrom. As a
proposal because I do not believe that there will be anyone constitutional body created to ensure “free, orderly, honest, peaceful,
and credible elections”, it was the duty of the COMELEC to give to the
running specifically - electorate notice of the time, place and manner of conduct of the
special elections and to adopt only those mechanisms and procedures
that would ascertain the true will of the people.
T[HE] P[RESIDENT]. Correct.
In sum, I submit that the ruling of the ponencia would result not just to
a step back in an age of information, but would constitute a fall in the
nation’s rise to democracy begun as early as the Malolos Constitution
S[ENATOR] T[ATAD]. - to fill up this position for three years and and begun anew in the 1987 Constitution after the 1986 People Power
Revolution. Informing the electorate on the issues and conduct of an
campaigning nationwide.
election is a prerequisite to a “free, orderly, honest, peaceful, and
credible elections.” Free elections does not only mean that the
voter is not physically restrained from going to the polling booth,
T[HE] P[RESIDENT]. Actually, I think what is going to happen is but also that the voter is unrestrained by the bondage of
ignorance. We should be resolute in affirming the right of the
the 13th candidate will be running with specific groups.
electorate to proper information. The Court should not forfeit its
role as gatekeeper of our democratic government run by an
informed majority. Let us not open the door to ignorance.
S[ENATOR] T[ATAD]. Yes. Whoever gets No. 13.
I vote to grant the petition.

T[HE] P[RESIDENT]. I think we can specifically define that as the

intent of this resolution.

S[ENATOR] T[ATAD]. Subject to style, we accept that amendment and

if there will be no other amendment, I move for the adoption of this

resolution.

ADOPTION OF S. RES. NO. 934

If there are not other proposed amendments, I move that we adopt this

resolution.
 EN BANC
G.R. No. L-25467 April 27, 1967
LUCAS V. CAUTON, petitioner,
vs.
COMMISSION ON ELECTIONS and PABLO SANIDAD, respondents.
Antonio Barredo for petitioner.
Ramon Barrios for respondent Commission on Elections.
Pablo C. Sanidad and F. D. Villanueva and Associates for respondent
Sanidad.
ZALDIVAR, J.:
In the national elections held on November 9, 1965, petitioner Lucas V.
Cauton and respondent Pablo Sanidad, along with Godofredo S.
Reyes, were candidates for the office of Representative in the second
congressional district of Ilocos Sur.
During the canvass by the Provincial Board of Canvassers of Ilocos
Sur of the votes cast for the candidates for Representative in the
second congressional district of Ilocos Sur, and particularly after the
Board had opened the envelopes containing the copies of the election
returns from each of the election precincts in the municipalities of
Candon, Santiago and Sta. Cruz that were presented by the Provincial
Treasurer of Ilocos Sur to the Board, respondent Sanidad brought to
the attention of the Board the fact that the entries of votes for the
candidates for Representative in those copies of the election returns
that came from the envelopes presented by the provincial treasurer
differed from the entries appearing in the copies of the returns from the
same election precincts that were in the possession of the Liberal
Party.1äwphï1.ñët
Respondent Sanidad filed a petition with the Commission on Elections
praying for the opening of the ballot boxes in all the precincts of
Candon, Santiago and Sta. Cruz, in order to retrieve the election
returns deposited therein so that those election returns might be used
in the canvass of the votes for the candidates for Representative in the
second district of Ilocos Sur, and that in the meantime the Provincial
Board of Canvassers of Ilocos Sur be ordered to refrain from
proclaiming the winning candidate for the office of Representative in
said district. The Commission on Elections issued the restraining order
prayed for by respondent Sanidad and set his petition for hearing.
After hearing, the Commission on Elections found "that it had been
clearly established that the copies of the election returns for the
Municipal Treasurer, for the Commission on Elections and for the
Provincial Treasurer for the municipality of Santa Cruz have uniform
alterations in the entries of the votes cast for representative showing
different number of votes compared with the Liberal Party copies, while
the copies of the election returns for the Commission on Elections and
the Provincial Treasurer for the municipalities of Candon and Santiago
have likewise uniform alterations and showing different numbers
compared with the Liberal Party copies ...."1The copies of the election
returns that were furnished the municipal treasurers of Candon and
Santiago were never verified because the municipal treasurers of
those two municipalities did not comply with the subpoena duces
tecum issued by the Commission on Elections directing them to bring
to the Commission the copies of the election returns of the precincts in
their respective municipalities that were in their possession.
On December 22, 1965, respondent Commission on Elections issued
an order providing, among others, that
... to enable the aggrieved party to establish discrepancy
between copies of the election returns provided by law in the
aforementioned precincts for the purpose of obtaining
judicial remedy under the provisions of Section 163 of the
Revised Election Code, the Commission Resolved ... to
direct immediately the opening of the ballot boxes of the
municipalities of Candon, Sta. Cruz and Santiago which are
now impounded and under the custody of the Zone
Commander of the 1st PC Zone in Camp Olivas, San
Fernando, Pampanga solely for the purpose of retrieving
therefrom the corresponding election returns, copies for the
ballot box, in all the precincts of said municipalities.
Pursuant to the instructions of respondent Commission, contained in
the resolution of December 22, 1965, the ballot boxes from all the
precincts in the municipalities of Candon, Sta. Cruz and Santiago were
opened by the Chief of the Law Enforcement Division of the
Commission, Atty. Fernando Gorospe, Jr., in the presence of
witnesses, and the envelopes containing the election returns found
inside the ballot boxes were taken and brought to Manila on December
23, 1965.
On the same date, December 23, 1965, herein petitioner, Lucas V.
Cauton, filed before this Court a petition for certiorari and prohibition
with preliminary injunction, praying that the resolution of the
respondent Commission on Elections dated December 22, 1965
ordering the opening of the ballot boxes used in all the precincts of
Candon, Sta. Cruz and Santiago in the elections of November 9, 1965
be annulled and set aside. The petition further prays that the
Commission on Elections be restrained from opening, the envelopes
containing the election returns found in the afore-mentioned ballot
boxes and be ordered to return the said envelopes to the
corresponding ballot boxes. In his petition, petitioner alleges that the
respondent Commission on Elections acted without or in excess of its
jurisdiction in issuing the resolution of December 22, 1965. This Court
gave due course to the petition, but did not issue the writ of preliminary
injunction prayed for. This petition is now the case before Us.
Upon instructions by respondent Commission on Elections, on
December 28, 1966, the envelopes that were taken from the ballot
boxes were opened and the election returns were taken out and their
contents examined and recorded by a committee appointed by the
Commission. This was done in a formal hearing with notice to the
parties concerned.
Respondent Pablo C. Sanidad filed his answer to instant petition on
January 5, 1966, admitting some of the allegations and denying others,
and maintaining that the Commission on Elections had acted well
within the bounds of its authority in issuing the order of December 22,
1965. Respondent Commission on Elections also filed its answer on
January 5, 1966, maintaining that it has authority under the law to
order the opening of the ballot boxes as stated in its resolution of
December 22, 1965.
In the meantime, on the basis of the discrepancies in the entries of the
votes for the candidates for Representative, between the election
returns taken out of the ballot boxes that were opened by order of the
Commission of Elections and the election returns submitted by the
Provincial Treasurer of Ilocos Sur to the Provincial Board of
Canvassers of Ilocos Sur, respondent Pablo C. Sanidad filed a petition
with the Court of First Instance of Ilocos Sur, docketed as Election
Case No. 16-N, for a recount of the votes in all the precincts of
Candon, Sta. Cruz and Santiago, pursuant to the provisions of Section
163 of the Revised Election Code.
On February 14, 1966, petitioner filed before this Court in urgent
motion, in this case, praying for the issuance of an order enjoining the
Court of First Instance of Ilocos Sur (Branch II-Narvacan) from further
proceeding with Election Case No. 16-N, abovementioned, pending
final decision of the instance case, upon the ground that the recount of
the ballots in that case in the court below would render the instant case
moot and academic. This motion was denied by this Court in a
resolution dated February 17, 1966.
The principal issue in the present case revolves on the of the
resolution of the respondent Commission of Elections, dated
December 22, 1965, which orders the opening of the ballot boxes used
in all the precincts in the municipalities of Candon, Sta. Cruz and
Santiago, Ilocos Sur, during the elections of November 9, 1965 for the
purpose of retrieving therefrom the corresponding election returns,
copies for the ballot box, "to enable the aggrieved party to establish
discrepancy between copies of the election returns provided by law in
the aforementioned precincts for the purpose of obtaining judicial
remedy under the provisions of Section 163 of the Revised Election
Code."
It is the stand of the petitioner that respondent Commission on
Elections is without jurisdiction to issue, or has acted in excess of
jurisdiction in issuing, the resolution in question, so that said resolution
is null and void and should not be given legal force and effect. The
petitioner contends that under Section 157 of the Revised Election
Code the Commission on Elections has authority to order the opening
of the ballot boxes "only in connection with an investigation conducted
for the purpose of helping the prosecution of any violation of the
election laws or for the purely administrative purpose but not when the
sole purpose is, as in this case, to assist a party in trying to win the
election ...." The petitioner further, contends that "the mere fact that the
copies of the returns in the precincts in question in the possession of
the Liberal Party do not tally with the returns involving the same
precincts in the possession of the Provincial Treasurer, the
Commission of Elections and the Nacionalista Party as well does not
legally support the validity of the resolution of the respondent
Commission in question ...."2
We cannot sustain the stand of the petitioner. We believe that in
issuing the resolution in question the Commission on Elections simply
performed a function as authorized by the Constitution, that is, to "have
exclusive charge of the enforcement and administration of all laws
relative to the conduct of elections and ... exercise all other functions
which may be conferred upon it by law." The Commission has the
power to decide all administrative questions affecting elections, except
the question involving the right to vote.3
This Court in a line of decisions has ruled that the Commission on
Election has the power to investigate and act on the propriety or
legality of the canvass of election returns made by the board of
canvassers. In the case of Albano vs. Arranz, L-19260, January 31,
1962, this Court, through Mr. Justice J.B.L. Reyes, held as follows:
The suspension of the proclamation of the winning candidate
pending an inquiry into irregularities brought to the attention
of the Commission on Elections was well within its
administrative jurisdiction, in view of the exclusive authority
conferred upon it by the Constitution (Art. X ) for the
administration and enforcement of all laws relative to
elections. The Commission certainly had the right to inquire
whether or not discrepancies existed between the various
copies of election returns for the precincts in question, and
suspend the canvass all the meantime so the parties could
ask for a recount in case of variance ....'
What the respondent Commission on Elections did in the case now
before Us is just what is contemplated in the abovequoted ruling of this
Court. The power of the Commission on Elections in this respect is
simply administrative and supervisory — intended to secure the
proclamation of the winning candidate based on the true count of the
votes cast. When the Commission on Elections exercises this power
the purpose is not for the Commission to help a candidate win the
election but to bring about the canvass of the true results of the
elections as certified by the boards of election inspectors in every
precinct. The object of the canvass is to determine the result of the
elections based on the official election returns. In order that the result
of the canvass would reflect the true expression of the people's will in
the choice of their elective officials, the canvass must be based on
true, genuine, correct, nay untampered, election returns. It is in this
proceedings that the Commission on Elections exercises its
supervisory and administrative power in the enforcement of laws
relative to the conduct of elections, by seeing to it that the canvass is
based on the election returns as actually certified by the members of
the board of inspectors. Once the Commission on Elections is
convinced that the elections returns in the hands of the board of
canvassers do not constitute the proper basis in ascertaining the true
result of the elections, it should be its concern, nay its duty, to order
the taking of such steps as may be necessary in order that the proper
basis for the canvass is obtained or made available.
The election law requires the board of inspectors to prepare four
copies of the election return in each precinct — one to be deposited in
the ballot box, one to be delivered to the municipal treasurer, one to be
sent to the provincial treasurer, and one to be sent to the Commission
on Elections. In the case of the canvass of the election returns for
candidates for provincial or national offices, the election returns
received by the provincial treasurer from the boards of inspectors are
used. It is the duty of the provincial treasurer to turn over to the
provincial board of canvassers the election returns received by him
from the boards of inspectors. If the Commission on Elections is duly
informed and it so finds, in appropriate proceedings, that the election
returns in the hands of the provincial treasurer are tampered, then the
Commission should afford the candidate adversely affected by the
tampering an opportunity to show that there exist authentic copies of
the same election returns which are not tampered. A recourse may be
had to the copies received by the Commission on Elections and to the
copies received by the municipal treasurer. If it is shown, that the
copies in the hands of the Commission on Elections and of the
municipal treasurer are similarly tampered as the copies in the hands
of the provincial treasurer, then it becomes evident that all the three
copies of the election returns outside the ballot box do not constitute a
reliable basis for a canvass. The only copies left to be checked,
whether they are also tampered or not, are the ones inside the ballot
boxes. Certainly, the Commission on Elections, in the exercise of its
power to administer and enforce the laws relative to the conduct of
elections, may order the opening of the ballot boxes to ascertain
whether the copy inside each ballot box is also tampered like the three
copies outside the ballot box, corresponding to each precinct. The
Commission on Elections may do this on its own initiative, or upon
petition by the proper party. Once it is found that the copy of the
election return inside the ballot box is untampered, the Commission on
Elections would then have accomplished two things, namely: (1)
secured a basis for the prosecution for the violation of the laws relative
to elections, and (2) afforded the party aggrieved by the alteration of
the election returns outside the ballot box a basis for a judicial recount
of the votes as provided for in Section 163 of the Revised Election
Code. Thus, the Commission on Elections has thereby made available
the proper and reliable basis for the canvass of the votes that will lead
to the proclamation by the board of canvassers of the true winner in
the elections. In so doing the Commission on Elections, as we have
said, had performed its constitutional duty of administering and
enforcing the laws relative to the conduct of elections with a view to
promoting clean and honest elections — the very purpose for which
the Commission on Elections was created by constitutional mandate.
In the case now before Us, the Commission on Elections issued the
questioned resolution "after hearing the arguments of the petitioner
and the opposition thereto and considering that it has been clearly
established that the copies of the election returns for the Municipal
Treasurer, for the Commission on Elections and for the Provincial
Treasurer for the municipality of Sta. Cruz have uniform alteration in
the entries of the votes cast for representative showing different
number of votes compared with the Liberal Party copies, while the
copies of the election returns for the Commission of Elections and the
Provincial Treasurer for the municipalities of Candon and Santiago
have likewise uniform alterations and showing different numbers
compared with the Liberal Party copies ..."5Indeed, in the face of this
finding by the Commission on Elections, which indicates a clear
violation of the election law, and which indicates an attempt to procure
the proclamation of the winner in the elections for Representative in
the second congressional district of Ilocos Sur by the use of tampered
election returns, can the Commission on Elections be remiss in the
performance of its duties as a constitutional body committed with the
exclusive charge of the enforcement and administration of all laws
relative to the conduct of elections? The Revised Election Code gives
to the Commission on Elections the direct and immediate supervision
over provincial, municipal and city officials designated by law to
perform duties relative to the conduct of elections — and included
among these officials are members of the provincial board of
canvassers.6The provincial board of canvassers is enjoined by law to
canvass all the votes cast for Representatives on the basis of the
election returns produced by the provincial treasurer.7The Commission
on Elections has a duty to enforce this law and it has the duty to see to
it that the election returns to be used for canvassing must be genuine
and authentic, not falsified or tampered with. Where the election
returns produced by the provincial treasurer have been shown to have
been tampered, and all the other copies outside the ballot boxes have
also been shown to have been tampered or falsified, it is certainly by a competent court or other competent authority.13The "competent
within the power of the Commission on Elections to issue such order authority" must include the Commission on Elections which is charged
as would ascertain the existence of the genuine, authentic and with the administration and enforcement of the laws relative to the
untampered election returns, and thus open the way for the summary conduct of elections. In the instant case the Commission on Elections
recount of the votes, in accordance with law, for the purposes only of found that it has been clearly established that the election returns
the canvass of the votes and the proclamation of the candidate found outside the ballot boxes, in all the precincts in the municipalities of
to have obtained the highest number of votes. In the case now before Candon, Santiago and Sta. Cruz, have been tampered with. It is within
Us, it is found by the Commission on Elections that no other copies the power of the Commission to order the investigation of that apparent
can be had except those deposited in the ballot boxes. Hence, the anomaly that has connection with the conduct of elections. The
necessity for the Commission to order the retrieving of the copies of investigation may be in connection with the prosecution for the
the election returns from the ballot boxes. An order to this effect does violations of the election laws and at the same time to ascertain the
not affect the right to vote or the validity of any vote cast, so that it is condition of the election returns inside the ballot boxes as compared
perfectly within the power of the Commission on Elections to issue with the election returns outside the ballot boxes, for the same
such an order in the exercise of its exclusive power to administer and precincts. The opening of the ballot boxes may, therefore, be prayed
enforce the laws relative to the conduct of elections. It would indeed be for by a candidate who is prejudiced by the apparent falsification of the
absurd to say that the Commission on Elections has a legal duty to election returns outside the ballot boxes, and in ordering the opening of
perform and at the same time it is denied the necessary means to the ballot boxes the purpose of the Commission is not to help a
perform said duty. particular candidate win an election but to properly administer and
enforce the laws relative to the conduct of elections.
The purpose of the Revised Election Code is to protect the integrity of
elections and to suppress all evils that may violate its purity and defeat From what has been said We hold that the order of December 22,
the will of the voters.8The purity of the elections is one of the most 1965, being questioned by the petitioner in the present case, was
fundamental requisites of popular government.9The Commission on perfectly within the power of the Commission on Elections to issue.
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
Wherefore, the petition for certiorari and prohibition in the present case
the performance of its duties, the Commission must be given a
is dismissed, with costs against the petitioner. It is so ordered.
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
with.10Technicalities, which are not conducive to free, orderly and
honest elections, but on the contrary may defeat the will of the
sovereign people as expressed in their votes, should not be allowed to
hamper the Commission on Elections in the performance of its duties.
To sustain the petitioner in the present case is to deny the Commission
on Elections the power to retrieve the copies of the election returns
from the ballot boxes in order that the true number of votes cast for a
candidate may be known and thus permit a canvass on the basis of
election returns that are patently falsified. We cannot, and We must
not, sanction the stand of petitioner.

As We have adverted to, the Commission on Elections has the power

to inquire whether there exist discrepancies among the various copies
of the election returns.11Of all the copies prepared by the board of
inspectors the copy least susceptible to being tampered with is the one
deposited in the ballot box. Where the three copies outside the ballot
boxes appear to have been uniformly altered, there is no plausible
reason why the copy deposited in the ballot box may not be used to
determine whether discrepancies exist in the various copies. Inasmuch
as the Commission on Elections has the right to determine whether
said discrepancies exist, it must also have the right to consult said
returns, which cannot be done unless the ballot boxes are opened. It is
noteworthy that the Revised Election Code does not provide that it is
the courts that have the power to order the opening of the ballot box in
a situation like this.

Section 157 of the Revised Election Code, on which petitioner herein

relies in support of his stand in the present case, authorizes the
opening of the ballot box whenever it is the subject of an official
investigation. It provides:

The municipal treasurer shall keep the boxes unopened in

his possession in a secure place and under his responsibility
for three months, unless they are the subject of an official
investigation, or a component court or tribunal shall demand
them sooner, or the competent authority shall order their
preservation for a longer time in connection with any pending
contest or investigation.

Under this section the ballot boxes may be opened in case there is an
election contest. They may also be opened even if there is no election
contest when their contents have to be used as evidence in the
prosecution of election frauds.12Moreover, they may be opened when
they are the subject of any official investigation which may be ordered
 EN BANC
G.R. No. L-22335 December 31, 1965
AMANTE P. PURISIMA, petitioner,
vs.
HON. ANGELINO C. SALANGA, Judge of the Court of First
Instance of Ilocos Sur. THE PROVINCIAL BOARD OF
CANVASSERS, THE COMMISSION ON ELECTIONS and
GREGORIO CORDERO, respondents.
Jose W. Diokno for petitioner.
Provincial Fiscal Juvenal K. Guerrero for respondent Provincial Board
of Canvassers
Antonio Barredo for respondents Judge Salanga and Gregorio Cordero
Ramon Barrios for respondent Commission on Elections.
BENGZON, J.P., J.:
In the election of November 12, 1963, Amante Purisima and Gregorio
Cordero were among the candidates for any of the three offices of
Provincial Board Member of Ilocos Sur. After the election or on
November 25, 1963 the provincial board of canvassers met and started
canvassing the returns for said office.
Purisima noted during the canvass that the returns from some
precincts, forty-one (41) in all, showed on their face that the words and
figures for Cordero's votes had been "obviously and manifestly erased"
and superimposed with other words and figures. For purposes of
comparison, the Nacionalista Party copies of the returns for the
aforesaid precincts were submitted to the board. A discrepancy of
5,042 votes in favor of Cordero was thereby found, thus:
Provincial Treasurer's copy: 7,277 votes for Cordero
Nacionalista Party's copy 2,235 votes for Cordero
A request for suspension of the canvass was thereupon made by
Purisima. The board of canvassers denied said request upon the
ground that it was not yet ascertainable if the discrepancies would
materially affect the result. Canvass proceeded.
After the returns had all been read, the result for the office of third (and
last) member of the Provincial Board was the following:
Cordero 41,229 votes
Purisima 39,372 votes.
Difference 1,857 votes
Purisima again called attention to the erasures and discrepancies and
asked for suspension of canvass — for him to have recourse to judicial
remedy. Denying said request, the board of canvassers finished the
canvass and proclaimed Cordero the winner, on November 28.
On November 29, Purisima filed a petition in the Commission on
Elections to annul the canvass and proclamation above-mentioned.
The Commission on Elections issued a resolution on November 30,
annulling the canvass and proclamation, as regards Cordero and
Purisima.
Purisima, on December 10, filed in the Court of First Instance a petition
for recount under Section 163 of the Revised Election Code.
Subsequently, motions to dismiss the same were filed by the board of
canvassers and by Cordero. In his motion to dismiss, Cordero admitted
the erasures and discrepancies on the face of the returns from 41
precincts, but denied that said erasures were due to tampering or
falsification.
After a preliminary hearing on the motions to dismiss, the Court of First
Instance, on December 27, dismissed the petition for recount. And on
December 28, Cordero filed in the Commission on Elections a motion
for resumption of the canvass.
Purisima, on January 2, 1964, moved for reconsideration of the Court
of First Instance's order of dismissal. In the same case, he also filed,
on January 8, a petition for preliminary injunction to restrain the holding
of another canvass. Annexed to said petition were certified photostatic
copies of the Comelec's copies of the returns from the 41 precincts in
question. Furthermore, Purisima filed with the Commission on
Elections, on January 11, an opposition to the resumption of the
canvass.
Alleging that the Commission on Elections was about to order the
canvass resumed, Purisima came to this Court, on January 17, 1964,
by petition for certiorari with preliminary injunction. Petitioner asked
that the lower court's order dismissing his petition for recount be set
aside and that the Commission on Elections be enjoined from ordering
resumption of the canvass until after the judicial recount.
On January 22, 1964 we ordered respondents to answer, and allowed
preliminary injunction to be issued as prayed for upon the posting of a
bond of P500.00. After respondents filed their answer the case was
heard and submitted for decision.
The requisites for judicial recount are set forth in Section 163 of the
Revised Election Code:
When statements of precinct are contradictory. — In case it
appears to the provincial board of canvassers that another
copy or other authentic copies of the statement from an
election precinct submitted to the board give to a candidate a
different number of votes and the difference affects the result
of the election, the Court of First Instance of the province,
upon motion of the board or of any candidate affected, may
proceed to recount the votes cast in the precinct for the sole
purpose of determining which is the true statement or which
is the true result of the count of the votes cast in said
precinct for the office in question. Notice of such proceeding
shall be given to all candidates affected.
In dismissing the petition for recount, respondent Judge stated that
some of the requisites were not present, namely: first, that it appears to
the provincial board of canvassers that a discrepancy exists; second,
that said discrepancy is between the copy submitted to the board and
another authentic copy thereof; third, that said authentic copy must
also be submitted to the board.
First of all, it is not disputed that a candidate affected can file the
petition for recount, even if he does so alone, without the concurrence
of the provincial board of canvassers (Cawa v. Del Rosario, L-16837-
40, May 30,1960). From the fact, therefore, that the provincial board of
canvassers has not petitioned for a recount it cannot be inferred that
they were not convinced a discrepancy existed.
In fact, when Purisima first called attention to the discrepancy between
the Nacionalista Party copies and the Provincial Treasurer's copies,
the board of canvassers admitted the discrepancy but stated that it
was not yet ascertainable whether the discrepancy would amount to
enough votes as to affect the result. There is no more question now
that the number of votes involved in said discrepancy is more than
enough to alter the result.
Finally, in the motion to dismiss filed by the board of canvassers, the
existence of the discrepancy is not disputed, and the board merely
raises the defense that the recount is up to the court and not to said
board (Annex D, Petition).
Passing on to the next point, the basis of the petition for recount was
not merely a discrepancy between the Nacionalista Party copies and
the Provincial Treasurer's copies of the returns. Paragraph 8 of said
petition shows that, in addition, the Commission on Elections' copies
were relied upon:

That as a result of the aforesaid erasures, tampering and

apparent falsifications, there exist discrepancies between the
Provincial Treasurer's copies (the basis of the canvass) of
the election returns in the precincts in question, on one
hand, and the copies pertaining to the Nacionalista Party
and those pertaining to the Commission on Elections, on the
other, and that said discrepancies materially affect the result
of the election as between herein petitioner and respondent
Gregorio Cordero;

Accordingly, even assuming for the nonce — a point we do not here

decide — that the Nacionalista Party copies are not copies that may be
the basis of a petition for recount, the fact remains that the
Commission on Elections' copies were said to reflect the same
discrepancy with the Provincial Treasurer's copies. It is settled that the
Commission on Elections' copies are authentic copies within the
meaning of Section 163 of the Revised Election Code (Laws in v.
Escalona, L-22540, July 31, 1964; Matanog v. Alejandro, L-22502-08,
June 30, 1964.)

The trial court. however, ruled that the Commission on Elections'

copies had no application to the petition for recount because they were
not submitted to the board of canvassers. The record definitely shows
that the reason why Purisima was not able to submit to the board said
Commission on Elections' copies was because the board declined to
suspend the canvass and proclamation.

It is the duty of the board of canvassers to suspend the canvass in

case of patent irregularity in the election returns. In the present case,
there were patent erasures and superimpositions, in words and figures
on the face of the election returns submitted to the board of
canvassers. It was therefore imperative for the board to stop the
canvass so as to allow time for verification of authentic copies and
recourse to the courts (Javier v. Commission on Elections, L-22248,
January 30, 1965). A canvass or proclamation made notwithstanding
such patent defects, without awaiting proper remedies, is null and void
(Ibid.). In fact, as stated, the Commission on Elections declared the
canvass and proclamation, made by respondent provincial board of
canvassers, null and void.

Since the board of canvassers prevented Purisima from securing the

Commission on Elections' copies of the returns to establish a
discrepancy between them and the Provincial Treasurer's copies, the
failure to submit the Commission on Elections' copies to said board
should not prejudice Purisima's right to petition for recount before the
court. It was therefore grave abuse of discretion for respondent court to
refuse to consider the Commission on Elections' copies, regardless of
the patent and admitted irregularities on the face of the Provincial
Treasurer's copies and the alleged discrepancy amounting to
thousands of votes sufficient to affect the results.

Interpretation of election laws should give effect to the expressed will

of the electorate. Patent erasures and superimpositions in words and
figures of the votes stated in the election returns strike at the reliability
of said returns as basis for canvass and proclamation. A comparison
with the other copies, and, in case of discrepancy, a recount, is the
only way to remove grave doubts as to the correctness of said returns
as well as of ascertaining that they reflect the will of the people.

WHEREFORE, the dismissal of the petition for recount is set aside,

respondent Judge is ordered to proceed with the petition for recount,
and respondents Commission on Elections and Provincial Board of
Canvassers are enjoined, until after the termination of proceedings in
the petition for recount, from ordering or holding another canvass and
proclamation as between petitioner Purisima and respondent Cordero.
 EN BANC
[G.R. NO. 188456 : September 10, 2009]
H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROMEL R.
BAGARES, ALLAN JONES F. LARDIZABAL, GILBERT T. ANDRES,
IMMACULADA D. GARCIA, ERLINDA T. MERCADO, FRANCISCO
A. ALCUAZ, MA. AZUCENA P. MACEDA, and ALVIN A.
PETERS, Petitioners, v. COMMISSION ON ELECTIONS,
Represented by HON. CHAIRMAN JOSE MELO, COMELEC
SPECIAL BIDS and AWARDS COMMITTEE, represented by its
CHAIRMAN HON. FERDINAND RAFANAN, DEPARTMENT OF
BUDGET and MANAGEMENT, represented by HON. ROLANDO
ANDAYA, TOTAL INFORMATION MANAGEMENT CORPORATION
and SMARTMATIC INTERNATIONAL
CORPORATION, Respondents.
PETE QUIRINO-QUADRA, Petitioner-in-Intervention.
SENATE OF THE PHILIPPINES, represented by its President,
JUAN PONCE ENRILE, Movant-Intervenor.
DECISION
VELASCO, JR., J.:
In a democratic system of government, the people's voice is sovereign.
Corollarily, choosing through the ballots the men and women who are
to govern the country is perhaps the highest exercise of democracy. It
is thus the interest of the state to insure honest, credible and peaceful
elections, where the sanctity of the votes and the secrecy of the ballots
are safeguarded, where the will of the electorate is not frustrated or
undermined. For when the popular will itself is subverted by election
irregularities, then the insidious seeds of doubt are sown and the ideal
of a peaceful and smooth transition of power is placed in jeopardy. To
automate, thus breaking away from a manual system of election, has
been viewed as a significant step towards clean and credible elections,
unfettered by the travails of the long wait and cheating that have
marked many of our electoral exercises.
The Commission on Elections (Comelec), private respondents, the
National Computer Center and other computer wizards are confident
that nationwide automated elections can be successfully implemented.
Petitioners and some skeptics in the information technology (IT)
industry have, however, their reservations, which is quite
understandable. To them, the automated election system and the
untested technology Comelec has chosen and set in motion are
pregnant with risks and could lead to a disastrous failure of elections.
Comelec, they allege, would not be up to the challenge. Cheating on a
massive scale, but this time facilitated by a machine, is perceived to be
a real possibility.
In this Petition for Certiorari, prohibition and mandamus with prayer for
a restraining order and/or preliminary injunction, petitioners H. Harry L.
Roque, Jr., et al., suing as taxpayers and concerned citizens, seek to
nullify respondent Comelec's award of the 2010 Elections Automation
Project (automation project) to the joint venture of Total Information
Management Corporation (TIM) and Smartmatic International
Corporation (Smartmatic)1 and to permanently prohibit the Comelec,
TIM and Smartmatic from signing and/or implementing the
corresponding contract-award.
By Resolution2 of July 14, 2009, the Court directed the respondents as
well as the University of the Philippines (UP) Computer Center,
National Computer Center (NCC) and Information Technology
Foundation of the Philippines (Infotech, hereinafter) to submit their
collective or separate comments to the petition on or before July 24,
2009. Before any of the comments could actually be filed, Atty. Pete
Quirino-Quadra sought leave to intervene. In another resolution, the
Court allowed the intervention and admitted the corresponding petition-
in-intervention.3
On July 29, 2009, the Court heard the principal parties in oral
arguments which was followed by the submission of their and the
resource persons' instructive, albeit clashing, memoranda. The Senate,
through the Senate President, would later join the fray via a Motion for
Leave to Intervene. In a Resolution of August 25, 2009, the Court
admitted the Senate's comment-in-intervention.
From the petition, the separate comments thereon, with their
respective annexes, and other pleadings, as well as from admissions
during the oral arguments, the Court gathers the following facts:
On December 22, 1997, Congress enacted Republic Act No. (RA)
8436 authorizing the adoption of an automated election system (AES)
in the May 11, 1998 national and local elections and onwards. The
1998, 2001, and 2004 national and local polls, however, came and
went but purely manual elections were still the order of the day. On
January 23, 2007, the amendatory RA 93694 was passed authorizing
anew the Comelec to use an AES. Of particular relevance are Sections
6 and 10 of RA 9369 originally Secs. 5 and 8, respectively of RA 8436,
as amended each defining Comelec's specific mandates insofar as
automated elections are concerned. The AES was not utilized in the
May 10, 2000 elections, as funds were not appropriated for that
purpose by Congress and due to time constraints.
RA 9369 calls for the creation of the Comelec Advisory
Council5 (CAC). CAC is to recommend, among other functions, the
most appropriate, applicable and cost-effective technology to be
applied to the AES.6 To be created by Comelec too is the Technical
Evaluation Committee (TEC)7 which is tasked to certify, through an
established international certification committee, not later than three
months before the elections, by categorically stating that the AES,
inclusive of its hardware and software components, is operating
properly and accurately based on defined and documented standards.8
In August 2008, Comelec managed to automate the regional polls in
the Autonomous Region of Muslim Mindanao9 (ARMM), using direct
recording electronics (DRE) technology10 in the province of
Maguindanao; and the optical mark reader/recording (OMR) system,
particularly the Central Count Optical Scan (CCOS),11 in the rest of
ARMM.12 What scores hailed as successful automated ARMM 2008
elections paved the way for Comelec, with some prodding from
senators,13 to prepare for a nationwide computerized run for the 2010
national/local polls, with the many lessons learned from the ARMM
experience influencing, according to the NCC, the technology selection
for the 2010 automated elections.14
Accordingly, in early March 2009, the Comelec released the Request
for Proposal (RFP), also known as Terms of Reference (TOR), for the
nationwide automation of the voting, counting, transmission,
consolidation and canvassing of votes for the May 10, 2010
Synchronized National and Local Elections. What is referred to also in
the RFP and other contract documents as the 2010 Elections
Automation Project (Automation Project) consists of three elaborate
components, as follows:
Component 1: Paper-Based AES.15 1-A. Election Management
System (EMS); 1-B Precinct-Count Optic Scan (PCOS) 16 System and
1-C. Consolidation/Canvassing System (CCS);
Component 2: Provision for Electronic Transmission of Election
Results using Public Telecommunications Network; andcralawlibrary
Component 3: Overall Project Management
And obviously to address the possibility of systems failure, the RFP
required interested bidders to submit, among other things: a continuity
plan17 and a back-up plan.18
Under the two-envelope system designed under the RFP,19 each
participating bidder shall submit, as part of its bid, an Eligibility
Envelope20 that should inter alia establish the bidder's eligibility to bid.
On the other hand, the second envelope, or the Bid Envelope itself,
shall contain two envelopes that, in turn, shall contain the technical
proposal and the financial proposal, respectively. 21
Subsequently, the Comelec Special Bids and Awards Committee
(SBAC), earlier constituted purposely for the aforesaid project, caused
the publication in different newspapers of the Invitation to Apply for
Eligibility and to Bid22 for the procurement of goods and services to be
used in the automation project.23 Meanwhile, Congress enacted RA
9525 appropriating some PhP 11.3 billion as supplemental budget for
the May 10, 2010 automated national and local elections.
Of the ten (10) invitation-responding consortia which obtained the bid
documents, only seven (7) submitted sealed applications for eligibility
and bids24 which, per Bid Bulletin No. 24, were to be opened on a pre-
set date, following the convening of the pre-bid conference. Under the
RFP, among those eligible to participate in the bidding are
manufacturers, suppliers and/or distributors forming themselves into a
joint venture. A joint venture is defined as a group of two or more
manufacturers, suppliers and/or distributors that intend to be jointly and
severally responsible or liable for a particular contract.25
Among the submitted bids was that of the joint venture (JV) of TIM and
Smartmatic, the former incorporated under the Corporation Code of the
Philippines. Smartmatic, on the other hand, was organized under the
laws of Barbados.26 For a stated amount, said JV proposed to
undertake the whole automation project, inclusive of the delivery of
82,200 PCOS machines. After the conclusion of the eligibility
evaluation process, only three consortia27 were found and thus
declared as eligible. Further on, following the opening of the passing
bidders' Bid Envelope and evaluating the technical and financial
proposals therein contained, the SBAC, per its Res. No. 09-001, s.-
2009, declared the above-stated bid of the JV of TIM-Smartmatic as
the single complying calculated bid.28 As required by the RFP, the bid
envelope contained an outline of the joint venture's back-up and
continuity or contingency plans,29 in case of a systems breakdown or
any such eventuality which shall result in the delay, obstruction or
nonperformance of the electoral process.
After declaring TIM-Smartmatic as the best complying bidder, the
SBAC then directed the joint venture to undertake post-qualification
screening, and its PCOS prototype machinesthe Smarmatic Auditable
Electronic System (SAES) 1800 to undergo end-to-end30 testing to
determine compliance with the pre-set criteria.
In its Memorandum of June 01, 2009, on the Subject: Systems
Evaluation Consolidated Report and Status Report on the Post-
Qualification Evaluation Procedures, the SBAC Technical Working
Group (TWG) stated that it was undertaking a 4-day (May 27 to May
30, 2009) test evaluation of TIM and Smartmatic's proposed PCOS
project machines. Its conclusion: "The demo systems presented
PASSED all tests as required in the 26-item criteria specified in the
[RFP]" with 100% accuracy rating.31 The TWG also validated the
eligibility, and technical and financial qualifications of the TIM-
Smartmatic joint venture.
On June 9, 2009, Comelec, upon the recommendation of its SBAC, the
CAC and other stakeholders, issued Resolution No. (Res.)
860832 authorizing the SBAC to issue, subject to well-defined
conditions, the notice of award and notice to proceed in favor of the
winning joint venture.
Soon after, TIM wrote Comelec expressing its desire to quit the JV
partnership. In time, however, the parties were able to patch up what
TIM earlier described as irreconcilable differences between partners.
What followed was that TIM and Smartmatic, pursuant to the Joint
Venture Agreement (JVA),33 caused the incorporation of a joint venture
corporation (JVC) that would enter into a contract with the Comelec.
On July 8, 2009, the Securities and Exchange Commission issued a
certificate of incorporation in favor of Smartmatic TIM Corporation. Two
days after, or on July 10, 2009, Comelec and Smartmatic TIM
Corporation, as provider, executed a contract34 for the lease of goods
and services under the contract for the contract amount of PhP
7,191,484,739.48, payable as the "Goods and Services are delivered
and/or progress is made in accordance [with pre-set] Schedule of
Payments."35 On the same date, a Notice to Proceed36 was sent to,
and received by, Smartmatic TIM Corporation.
Meanwhile, or on July 9, 2009, petitioners interposed the instant
recourse which, for all intents and purposes, impugns the validity and
seeks to nullify the July 10, 2009 Comelec-Smartmatic-TIM
Corporation automation contract adverted to. Among others,
petitioners pray that respondents be permanently enjoined from
implementing the automation project on the submission that:
PUBLIC RESPONDENTS COMELEC AND COMELEC-SBAC
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION IN AWARDING THE 2010
ELECTIONS AUTOMATION PROJECT TO PRIVATE
RESPONDENTS TIM AND SMARTMATIC FOR THE FOLLOWING
REASONS:
x x x COMELEC DID NOT CONDUCT ANY PILOT TESTING OF THE
x x x PCOS MACHINES OFFERED BY PRIVATE RESPONDENTS
SMARTMATIC AND TIM, IN VIOLATION OF [RA] 8436 (AS
AMENDED BY [RA] 9369)
THE [PCOS] MACHINES [THUS] OFFERED BY PRIVATE
RESPONDENTS x x x DO NOT SATISFY THE MINIMUM SYSTEM
CAPABILITIES SET BY [RA] NO. 8436 (AS AMENDED BY [RA]
9369).
PRIVATE RESPONDENTS x x x DID NOT SUBMIT THE REQUIRED
DOCUMENTS DURING THE BIDDING PROCESS THAT SHOULD
ESTABLISH THE DUE EXISTENCE, COMPOSITION, AND SCOPE
OF THEIR JOINT VENTURE, IN VIOLATION OF THE SUPREME
COURT'S HOLDING IN INFORMATION TECHNOLOGY
FOUNDATION OF THE PHILIPPINES, v. COMELEC (G.R. No.
159139, Jan. 13, 2004).
THERE WAS NO VALID JOINT VENTURE AGREEMENT [JVA]
BETWEEN PRIVATE RESPONDENTS SMARTMATIC AND
TIM DURING THE BIDDING, IN VIOLATION OF THE SUPREME
COURT'S HOLDING IN INFORMATION TECHNOLOGY
FOUNDATION OF THE PHILIPPINES v. COMELEC x x x WHICH
REQUIRES A JOINT VENTURE TO INCLUDE A COPY OF ITS [JVA]
DURING THE BIDDING.
THE ALLEGED JOINT VENTURE COMPOSED OF PRIVATE
RESPONDENTS SMARTMATIC AND TIM, DOES NOT SATISFY THE
SUPREME COURT'S DEFINITION OF A "JOINT VENTURE"
ININFORMATION TECHNOLOGY FOUNDATION OF THE
PHILIPPINES v. COMELEC x x x WHICH "REQUIRES A
COMMUNITY OF INTEREST IN THE PERFORMANCE OF THE
SUBJECT MATTER."
Filed as it was before contract signing, the petition understandably did
not implead Smartmatic TIM Corporation, doubtless an indispensable
party to these proceedings, an incident that did not escape Comelec's
notice.37
As a preliminary counterpoint, either or both public and private
respondents question the legal standing or locus standi of petitioners,
noting in this regard that the petition did not even raise an issue of
transcendental importance, let alone a constitutional question.
As an additional point, respondents also urge the dismissal of the
petition on the ground of prematurity, petitioners having failed to avail
themselves of the otherwise mandatory built-in grievance mechanism
under Sec. 55 in relation to Sec. 58 of RA 9184, also known as
the Government Procurement Reform Act, as shall be discussed
shortly.
PROCEDURAL GROUNDS
The Court is not disposed to dismiss the petition on procedural
grounds advanced by respondents.
Locus Standi and Prematurity
It is true, as postulated, that to have standing, one must, as a rule,
establish having suffered some actual or threatened injury as a result
of the alleged illegal government conduct; that the injury is fairly
traceable to the challenged action; and that the injury is likely to be
redressed by a favorable action.38 The prescription on standing,
however, is a matter of procedure. Hence, it may be relaxed, as the
Court has often relaxed the rule for non-traditional plaintiffs, like
ordinary citizens and taxpayers, when the public interest so requires,
such as when the matter is of transcendental importance, of
overarching significance to society, or of paramount public
interest.39 As we wrote in Chavez v. PCGG,40 where issues of public
importance are presented, there is no necessity to show that the suitor
has experienced or is in actual danger of suffering direct and personal
injury as the requisite injury is assumed.
Petitioners' counsel, when queried, hedged on what specific
constitutional proscriptions or concepts had been infringed by the
award of the subject automation project to Smartmatic TIM
Corporation, although he was heard to say that "our objection to the
system is anchored on the Constitution itself a violation [sic] of secrecy
of voting and the sanctity of the ballot."41Petitioners also depicted the
covering automation contract as constituting an abdication by the
Comelec of its election-related mandate under the Constitution, which
is to enforce and administer all laws relative to the conduct of
elections. Worse still, according to the petitioners, the abdication, with
its anti-dummy dimension, is in favor of a foreign corporation that will
be providing the hardware and software requirements.42 And when
pressed further, petitioners came out with the observation that, owing
in part to the sheer length of the ballot, the PCOS would not comply
with Art. V, Sec. 2 of the Constitution43 prescribing secrecy of voting
and sanctity of the ballot.44
There is no doubt in our mind, however, about the compelling
significance and the transcending public importance of the one issue
underpinning this petition: the successand the far-reaching grim
implications of the failure of the nationwide automation project that will
be implemented via the challenged automation contract.
The doctrinal formulation may vary, but the bottom line is that the Court
may except a particular case from the operations of its rules when the
demands of justice so require.45 Put a bit differently, rules of procedure
are merely tools designed to facilitate the attainment of
justice.46 Accordingly, technicalities and procedural barriers should not
be allowed to stand in the way, if the ends of justice would not be
subserved by a rigid adherence to the rules of procedure.47 This
postulate on procedural technicalities applies to matters of locus
standi and the presently invoked principle of hierarchy of courts, which
discourages direct resort to the Court if the desired redress is within
the competence of lower courts to grant. The policy on the hierarchy of
courts, which petitioners indeed failed to observe, is not an iron-clad
rule. For indeed the Court has full discretionary power to take
cognizance and assume jurisdiction of special civil actions
for certiorari andmandamus filed directly with it for exceptionally
compelling reasons48 or if warranted by the nature of the issues clearly
and specifically raised in the petition.49
The exceptions that justify a deviation from the policy on hierarchy
appear to obtain under the premises. The Court will for the nonce thus
turn a blind eye to the judicial structure intended, first and foremost, to
provide an orderly dispensation of justice.
Hierarchy of Courts
At this stage, we shall dispose of another peripheral issue before
plunging into the core substantive issues tendered in this petition.
Respondents contend that petitioners should have availed themselves
of the otherwise mandatory protest mechanism set forth in Sections 55
and 58 of the procurement law (RA 9184) and the counterpart
provisions found in its Implementing Rules and Regulations (IRR)-A
before seeking judicial remedy. Insofar as relevant, Sec. 55 of RA
9184 provides that decisions of the bids and awards committee (BAC)
in all stages of procurement may be protested, via a "verified position
paper," to the head of the procuring agency. On the other hand, the
succeeding Sec. 58 states that court action may be resorted to only
after the protest contemplated in Sec. 55 shall have been completed.
Petitioners except. As argued, the requirement to comply with the
protest mechanism, contrary to what may have been suggested in
Infotech, is imposed on the bidders.50
Petitioners' position is correct. As a matter of common sense, only a
bidder is entitled to receive a notice of the protested BAC action. Only
a losing bidder would be aggrieved by, and ergo would have the
personality to challenge, such action. This conclusion finds adequate
support from the ensuing provisions of the aforesaid IRR-A:
55.2. The verified position paper shall contain the following documents:
a) The name of bidder;
b) The office address of the bidder x x x.
SUBSTANTIVE ISSUES
We now turn to the central issues tendered in the petition which, in
terms of subject matter, revolved around two concerns, viz: (1) the
Joint Venture Agreement (JVA) of Smartmatic and TIM; and (2) the
PCOS machines to be used. Petitioners veritably introduced another
issue during the oral arguments, as amplified in their memorandum,
i.e. the constitutionality and statutory flaw of the automation contract
itself. The petition-in-intervention confined itself to certain features of
the PCOS machines.
The Joint Venture Agreement: Its Existence and Submission
The issue respecting the existence and submission of the TIM-
Smartmatic JVA does not require an extended disquisition, as repairing
to the records would readily provide a satisfactory answer. We note in
fact that the petitioners do not appear to be earnestly pressing the said
issue anymore, as demonstrated by their counsel's practically cavalier
discussion thereof during the oral argument. When reminded, for
instance, of private respondents' insistence on having in fact submitted
their JVA dated April 23, 2009, petitioners' counsel responded as
follows: "We knew your honor that there was, in fact, a joint venture
agreement filed. However, because of the belated discovery that
[there] were irreconcilable differences, we then made a view that this
joint venture agreement was a sham, at best pro forma because it did
not contain all the required stipulations in order to evidence unity of
interest x x x."51
Indeed, the records belie petitioners' initial posture that TIM and
Smartmatic, as joint venture partners, did not include in their submitted
eligibility envelope a copy of their JVA. The SBAC's Post Qualification
Evaluation Report (Eligibility) on TIM-Smartmatic, on page 10, shows
the following entry: "Valid Joint Venture Agreement, stating among
things, that the members are jointly and severally liable for the whole
obligation, in case of joint venture - Documents verified compliance."52
Contrary to what the petitioners posit, the duly notarized JVA, as
couched, explained the nature and the limited purpose53 of the joint
venture and expressly defined, among other things, the composition,
scope, and the 60-40 capital structure of the aggroupment.54 The JVA
also contains provisions on the management55 and division of
profits.56 Article 357 of the JVA delineates the respective participations
and responsibilities of the joint venture partners in the automation
project.
Given the foregoing perspective, the Court is at a loss to understand
how petitioners can assert that the Smartmatic-TIM consortium has
failed to prove its joint venture existence and/or to submit evidence as
would enable the Comelec to know such items as who it is dealing
with, which between the partners has control over the decision-making
process, the amount of investment to be contributed by each partner,
the parties' shares in the profits and like details. Had petitioners only
bothered to undertake the usual due diligence that comes with good
judgment and examined the eligibility envelope of the Smartmatic-TIM
joint venture, they would have discovered that their challenge to and
arguments against the joint venture and its JVA have really no factual
basis.
It may be, as petitioners observed, that the TIM-Smartmatic joint
venture remained an unincorporated aggroupment during the bid-
opening and evaluation stages. It ought to be stressed, however, that
the fact of non-incorporation was without a vitiating effect on the
validity of the tender offers. For the bidding ground rules, as spelled
out primarily in the RFP and the clarificatory bid bulletins, does not
require, for bidding purposes, that there be an incorporation of the
bidding joint ventures or consortiums. In fact, Bid Bulletin Nos. 19 and
20 recognize the existence and the acceptability of proposals of
unincorporated joint ventures. In response to a poser, for example,
regarding the 60% Filipino ownership requirement in a joint venture
arrangement, the SBAC, in its Bid Bulletin No. 22, stated: "In
an unincorporated joint venture, determination of the required
Filipino participation may be made by examining the terms and
conditions of the [JVA] and other supporting financial documents
submitted by the joint venture." (Emphasis ours.) Petitioners, to be
sure, have not shown that incorporation is part of the pass/fail criteria
used in determining eligibility.
Petitioners have made much of the Court's ruling in Information
Technology Foundation of the Philippines [Infotech] v.
Comelec,58 arguing in relation thereto that the partnership of
Smartmatic and TIM does not meet the Court's definition of a joint
venture which requires "community of interest in the performance of
the subject matter."
Petitioners' invocation of Infotech is utterly misplaced. Albeit Infotech
and this case are both about modernizing the election process and
bidding joint ventures, the relevant parallelism ends there. Cast as they
are against dissimilar factual milieu, one cannot plausibly
set Infotech side with and contextually apply to this case the ratio of
Infotech. Suffice it to delve on the most glaring of differences. In
Infotech, the winning bid pertained to the consortium of Mega Pacific, a
purported joint venture. Extant records, however, do not show the
formation of such joint venture, let alone its composition. To borrow
from the ponencia of then Justice, later Chief Justice, Artemio
Panganiban, "there is no sign whatsoever of any [JVA], consortium
agreement [or] memorandum agreement x x x executed among the
members of the purported consortium."59 There was in fine no
evidence to show that the alleged joint venture partners agreed to
constitute themselves into a single entity solidarily responsible for the
entirety of the automation contract. Unlike the purported Mega Pacific
consortium inInfotech, the existence in this case of the bidding joint
venture of Smarmatic and TIM is properly documented and spread all
over the bid documents. And to stress, TIM and Smartmatic, in their
JVA, unequivocally agreed between themselves to perform their
respective undertakings. And over and beyond their commitments to
each other, they undertook to incorporate, if called for by the bidding
results, a JVC that shall be solidarily liable with them for any actionable
breach of the automation contract.
In Infotech, the Court chastised the Comelec for dealing with an entity,
the full identity of which the poll body knew nothing about. Taking a
cue from this holding, petitioners tag the TIM-Smartmatic JVA as
flawed and as one that would leave the Comelec "hanging" for the non-
inclusion, as members of the joint venture, of three IT providers. The
three referred to are Jarltech International, Inc. (Jarltech), a subsidiary
of Smartmatic that manufactures the Smartmatic voting machines;
Dominion Voting Systems (Domino), the inventor of said PCOS
machines; and 2GO Transportation System Corporation (2GO), the
subcontractor responsible for the distribution of the PCOS machines
throughout the country.
Petitioners' beef against the TIM-Smartmatic JVA is untenable. First
off, the Comelec knows the very entities whom they are dealing with,
which it can hold solidary liable under the automation contract, should
there be contract violation. Secondly, there is no requirement under
either RA 8436, as amended, or the RFP, that all the suppliers,
manufacturers or distributors involved in the transaction should be part
of the joint venture. On the contrary, the Instruction to Biddersas
petitioners themselves admit60 allows the bidder to subcontract
portions of the goods or services under the automation project.61
To digress a bit, petitioners have insisted on the non-existence of a
bona fide JVA between TIM and Smarmatic. Failing to gain traction for
their indefensible posture, they would thrust on the Court the notion of
an invalid joint venture due to the non-inclusion of more companies in
the existing TIM-Smartmatic joint venture. The irony is not lost on the
Court.
This brings us to the twin technical issues tendered herein bearing on
the PCOS machines of Smartmatic.
At its most basic, the petition ascribes grave abuse of discretion to the
Comelec for, among other things, awarding the automation project in
violation of RA 8436, as amended. Following their line, no pilot test of
the PCOS technology Smartmatic-TIM offered has been undertaken;
hence, the Comelec cannot conduct a nationwide automation of the
2010 polls using the machines thus offered. Hence, the contract award
to Smartmatic-TIM with their untested PCOS machines violated RA
8436, as amended by RA 9369, which mandates that with respect to
the May 2010 elections and onwards, the system procured must have
been piloted in at least 12 areas referred to in Sec. 6 of RA 8436, as
amended. What is more, petitioners assert, private respondents' PCOS
machines do not satisfy the minimum system capabilities set by the
same law envisaged to ensure transparent and credible voting,
counting and canvassing of votes. And as earlier narrated, petitioners
would subsequently add the abdication angle in their bid to nullify the
automation contract.
Pilot Testing Not Necessary
Disagreeing, as to be expected, private respondents maintain that
there is nothing in the applicable law requiring, as a pre-requisite for
the 2010 election automation project award, that the prevailing bidder's
automation system, the PCOS in this case, be subjected to pilot
testing. Comelec echoes its co-respondents' stance on pilot testing,
with the added observation that nowhere in the statutory provision
relied upon are the words "pilot testing" used.62 The Senate's position
and its supporting arguments match those of private respondents.
The respondents' thesis on pilot testing and the logic holding it together
are well taken. There can be no argument about the phrase "pilot test"
not being found in the law. But does it necessarily follow that a pilot
test is absolutely not contemplated in the law? We repair to the
statutory provision petitioners cited as requiring a pilot run, referring to
Sec. 6 of RA 8436, as amended by RA 9369, reading as follows:
Sec. 5. Authority to use an Automated Election System. - To carry out
the above stated-policy, the [Comelec], x x x is hereby authorized to
use an automated election system or systems in the same election in
different provinces, whether paper-based or a direct recording
electronic election system as it may deem appropriate and practical for
the process of voting, counting of votes and canvassing/consolidation
and transmittal of results of electoral exercises: Provided, that for the
regular national and local elections, which shall be held immediately
after the effectivity of this Act,the AES shall be used in at least two
highly urbanized cities and two provinces each in Luzon, Visayas, and
Mindanao to be chosen by the [Comelec]: Provided, further, That local
government units whose officials have been the subject of
administrative charges within sixteen (16) month prior to the May 14,
2007 elections shall not be chosen. Provided, finally, That no area
shall be chosen without the consent of the Sanggunian of the local
government unit concerned. The term local government unit as used in
this provision shall refer to a highly urbanized city or province. In
succeeding regular national or local elections, the AES shall be
implemented. (Emphasis and underscoring added.)
RA 9369, which envisages an AES, be it paper-based or direct-
recording electronic, took effect in the second week of February 2007
or thereabout.63 The "regular national and local elections" referred to
after the "effectivity of this Act" can be no other than the May 2007
regular elections, during which time the AES shall, as the law is
worded, be used in at least two highly urbanized cities and provinces in
Luzon, Visayas and Mindanao. The Court takes judicial notice that the
May 2007 elections did not deploy AES, evidently due to the mix of
time and funding constraints.
To the petitioners, the underscored portion of the aforequoted Sec. 6 of
RA 8436 is the pilot-testing provision that Comelec failed to observe.
We are not persuaded.
From the practical viewpoint, the pilot testing of the technology in
question in an actual, scheduled electoral exercise under harsh
conditions would have been the ideal norm in computerized system
implementation. The underscored proviso of Sec. 6 of RA 8436 is not,
however, an authority for the proposition that the pilot testing of the
PCOS in the 2007 national elections in the areas thus specified is an
absolute must for the machines' use in the 2010 national/local
elections. The Court can concede that said proviso, with respect to the
May 2007 elections, commands the Comelec to automate in at least 12
defined areas of the country. But the bottom line is that the required
2007 automation, be it viewed in the concept of a pilot test or not, is
not a mandatory requirement for the choice of system in, or a
prerequisite for, the full automation of the May 2010 elections.
As may be noted, Sec. 6 of RA 8436 may be broken into three
essential parts, the first partaking of the nature of a general policy
declaration: that Comelec is authorized to automate the entire
elections. The second part states that for the regular national and local
elections that shall be held in May 2007, Comelec shall use the AES,
with an option, however, to undertake automation, regardless of the
technology to be selected, in a limited area or, to be more precise, in at
least two highly urbanized cities and two provinces each in Luzon,
Visayas, and Mindanao to be chosen by the Comelec. On the other
hand, the last part, phrased sans reference to the May 2007 elections,
commands thus: "[I]n succeeding regular national or local elections,
the [automated election system] shall be implemented." Taken in its
proper context, the last part is indicative of the legislative intent for the
May 2010 electoral exercise to be fully automated, regardless of
whether or not pilot testing was run in the 2007 polls.
To argue that pilot testing is a condition precedent to a full automation
in 2010 would doubtless undermine the purpose of RA 9369. For, as
aptly observed during the oral arguments, if there was no political
exercise in May 2007, the country would theoretically be barred forever
from having full automation.
Sec. 6 of the amended RA 8436, as couched, therefore, unmistakably
conveys the idea of unconditional full automation in the 2010 elections.
A construal making pilot testing of the AES a prerequisite or condition
sine qua non to putting the system in operation in the 2010 elections is
tantamount to reading into said section something beyond the clear
intention of Congress, as expressed in the provision itself. We
reproduce with approval the following excerpts from the comment of
the Senate itself:
The plain wordings of RA 9369 (that amended RA 8436) commands
that the 2010 elections shall be fully automated, and such full
automation is not conditioned on "pilot testing" in the May 2007
elections. Congress merely gave COMELEC the flexibility to partially
use the AES in some parts of the country for the May 2007 elections. 64
Lest it be overlooked, an AES is not synonymous to and ought not to
be confused with the PCOS. Sec. 2(a) of RA 8436, as amended,
defines an AES as "a system using appropriate technology which has
been demonstrated in the voting, counting, consolidating, canvassing
and transmission of election results, and other electoral processes."
On the other hand, PCOS refers to a technology wherein an optical
ballot scanner, into which optical scan paper ballots marked by hand
by the voter are inserted to be counted.65 What may reasonably be
deduced from these definitions is that PCOS is merely one of several
automated voting, counting or canvassing technologies coming within
the term AES, implying in turn that the automated election system or
technology that the Comelec shall adopt in future elections need not,
as a matter of mandatory arrangement, be piloted in the adverted two
highly urbanized cities and provinces.
In perspective, what may be taken as mandatory prerequisite for the
full automation of the 2010 regular national/ local elections is that the
system to be procured for that exercise be a technology tested either
here or abroad. The ensuing Section 8 of RA 8436, as amended, says
so.
SEC 12. Procurement of Equipment and Materials. - To achieve the
purpose of this Act, the Commission is authorized to procure, xxx, by
purchase, lease, rent or other forms of acquisition, supplies,
equipment, materials, software, facilities, and other services, from local
or foreign sources xxx. With respect to the May 10, 2010 elections and
succeeding electoral exercises, the system procured must have
demonstrated capability and been successfully used in prior electoral
exercise here or abroad. Participation in the 2007 pilot exercise shall
not be conclusive of the system's fitness. (Emphasis supplied).
While the underscored portion makes reference to a "2007 pilot
exercise," what it really exacts is that, for the automation of the May
2010 and subsequent elections, the PCOS or any AES to be procured
must have demonstrated its capability and success in either a local or
a foreign electoral exercise. And as expressly declared by the
provision, participation in the 2007 electoral exercise is not a
guarantee nor is it conclusive of the system's fitness. In this regard, the
Court is inclined to agree with private respondents' interpretation of the
underscored portion in question: "The provision clearly conveys that
the [AES] to be used in the 2010 elections need not have been used in
the 2007 elections, and that the demonstration of its capability need
not be in a previous Philippine election. Demonstration of the success
and capability of the PCOS may be in an electoral exercise in a foreign
jurisdiction."66 As determined by the Comelec, the PCOS system had
been successfully deployed in previous electoral exercises in foreign
countries, such as Ontario, Canada; and New York, USA,67 albeit
Smartmatic was not necessarily the system provider. But then, RA
9369 does not call for the winning bidder of the 2010 automation
project and the deploying entity/provider in the foreign electoral
exercise to be one and the same entity. Neither does the law
incidentally require that the system be first used in an archipelagic
country or with a topography or a voting population similar to or
approximating that of the Philippines.
At any event, any lingering doubt on the issue of whether or not full
automation of the 2010 regular elections can validly proceed without a
pilot run of the AES should be put to rest with the enactment in March
2009 of RA 9525,68 in which Congress appropriated PhP 11.301 billion
to automate the 2010 elections, subject to compliance with the
transparency and accuracy requirements in selecting the relevant
technology of the machines, thus:
Sec. 2. Use of Funds. - x x x Provided, however, That disbursement of
the amounts herein appropriated or any part thereof shall be
authorized only in strict compliance with the Constitution, the
provisions of [RA] No. 9369and other election laws incorporated in
said Act as to ensure the conduct of a free, orderly, clean, honest and
credible election and shall adopt such measures that will guaranty
transparency and accuracy in the selection of the relevant technology
of the machines to be used on May 10, 2010 automated national and
local elections. (Emphasis added.)
It may safely be assumed that Congress approved the bill that
eventually became RA 9525, fully aware that the system using the
PCOS machines were not piloted in the 2007 electoral exercise. The
enactment of RA 9525 is to us a compelling indication that it was never
Congress' intent to make the pilot testing of a particular automated
election system in the 2007 elections a condition precedent to its use
or award of the 2010 Automation Project. The comment-in-intervention
of the Senate says as much.
Further, the highly charged issue of whether or not the 2008 ARMM (e) Provision for voter verified paper audit trail;
electionscovering, as NCC observed, three conflict-ridden island
provincesmay be treated as substantial compliance with the "pilot test"
(f) System auditability which provides supporting documentation for
requirement must be answered in the affirmative. No less than Senator
verifying the correctness of reported election results;
Richard J. Gordon himself, the author of the law, said that "the system
has been tried and tested in the ARMM elections last year, so we have
to proceed with the total implementation of the law."69 (g) An election management system for preparing ballots and
programs for use in the casting and counting of votes and to
consolidate, report and display election result in the shortest time
We note, though, the conflicting views of the NCC70 and ITFP71 on the
possible;
matter. Suffice it to state at this juncture that the system used in the
2008 ARMM election exercise bears, as petitioners to an extent
grudgingly admit, 72 a similarity with the PCOS. The following, lifted (h) Accessibility to illiterates and disabled voters;
from the Comelec's comment, is to us a fair description of how the two
systems (PCOS and CCOS) work and where the difference lies:
(i) Vote tabulating program for election, referendum or plebiscite;

xxx the elections in the [ARMM] utilized the Counting Center Optical
(j) Accurate ballot counters;
Scan (CCOS), a system which uses the Optical Mark Reader (OMR),
the same technology as the PCOS.
(k) Data retention provision;
Under the CCOS, the voters cast their votes by shading or marking the
circles in the paper ballots which corresponded to the names of their (l) Provide for the safekeeping, storing and archiving of physical or
chosen candidates [like in PCOS]. Thereafter, the ballot boxes were paper resource used in the election process;
brought to the counting centers where they were scanned, counted
and canvassed.
(m) Utilize or generate official ballots as herein defined;

xxx Under the PCOS, the counting, consolidation and canvassing of

the votes are done at the precinct level. The election results at the (a) Provide the voter a system of verification to find out whether or not
precincts are then electronically transmitted to the next level, and so the machine has registered his choice; and
on. xxx PCOS dispenses with the physical transportation of ballot
boxes from the precincts to the counting centers. 73 (o) Configure access control for sensitive system data and function.

Moreover, it has been proposed that a partial automation be
implemented for the May 2010 elections in accordance with Section 5
of RA 8436, as amended by RA 9369 instead of full automation. The
Court cannot agree as such proposition has no basis in law. Section 5,
as worded, does not allow for partial automation. In fact, Section 5
clearly states that "the AES shall be implemented nationwide."74 It
behooves this Court to follow the letter and intent of the law for full
automation in the May 2010 elections.
PCOS Meets Minimum Capabilities Standards
As another ground for the nullification of the automation contract,
petitioners posit the view that the PCOS machines do not satisfy the
minimum system capabilities prescribed by RA 8436, as amended. To
a specific point, they suggest that the PCOS system offered and
accepted lacks the features that would assure accuracy in the
recording and reading of votes, as well as in the tabulation,
consolidation/canvassing, electronic transmission, storage results and
accurate ballot counting.75 In this particular regard, petitioners allege
that, based on Smartmatic's website, the PCOS has a margin of error
of from 2% to 10%, way beyond that of the required 99.99% accuracy
in the counting of votes.76
In the procurement of this system, the Commission shall develop and
adopt an evaluation system to ascertain that the above minimum
system capabilities are met. The evaluation system shall be developed
with the assistance of an advisory council.
From the records before us, the Court is fairly satisfied that the
Comelec has adopted a rigid technical evaluation mechanism, a set of
26-item/check list criteria, as will be enumerated shortly, to ensure
compliance with the above minimum systems capabilities.
The SBAC Memorandum77 of June 03, 2009, as approved by Comelec
Res. 8608,78 categorically stated that the SBAC-TWG submitted its
report that TIM/Smartmatic's proposed systems and machines
PASSED all the end-to-end demo tests using the aforementioned 26-
item criteria, inclusive of the accuracy rating test of at least 99.955%.
As appearing in the SBAC-TWG report, the corresponding
answers/remarks to each of the 26 individual items are as herein
indicated:79
ITEM REQUIREMENT REMARK/DESCRIPTION

The minimum system capabilities provision cited is Sec. 7 of RA 8436, 1 Does the system allow Yes. The proposed PCOS
as amended, and the missing features referred to by petitioners are manual feeding of a ballot machine accepted the test
pars. (b) and (j). In full, Sec. 7 of RA 8436, as amended, reads: into the PCOS machine? ballots which were manually
fed one at a time.
SEC. 6. Minimum System Capabilities. - The automated election
system must at least have the following functional capabilities:
2 Does the system scan a Yes. A 30-inch ballot was
ballot sheet at the speed used in this test. Scanning
(a) Adequate security against unauthorized access; of at least 2.75 inches per the 30-inch ballot took 2.7
second? seconds, which translated to
(b) Accuracy in recording and reading of votes as well as in the 11.11inches per second.
tabulation, consolidation/canvassing, electronic transmission, and
storage of results;
3 Is the system able to Yes the system captured the
capture and store in an images of the 1,000 ballots
(c) Error recovery in case of non-catastrophic failure of device; encrypted format the in encrypted format. Each of
digital images of the ballot the 1,000 images files
(d) System integrity which ensures physical stability and functioning of for at least 2,000 ballot contained the images of the
the vote recording and counting process;
 sides (1,000 ballots, with front and back sides of the
back to back printing)? ballot, totaling to 2,000 ballot
side.
To verify the captured ballot
images, decrypted copies of
the encrypted files were also
provided. The same were
found to be digitized
representations of the
ballots cast.
4 Is the system a fully Yes. The proposed PCOS is
integrated single device a fully integrated single
as described in item no. 4 device, with built-in printer
of Component 1-B? and built-in data
communications ports
(Ethernet and USB).
5 Does the system have a Yes. A portion of a filled up
scanning resolution of at marked oval was blown up
least 200 dpi? using image editor software
to reveal the number of dots
per inch. The sample image
showed 200 dpi.
File properties of the
decrypted image file also
revealed 200 dpi.
6 Does the system scan in Yes. 30 shades of gray were
grayscale? scanned in the test PCOS
machine, 20 of which were
required, exceeding the
required 4-bit/16 levels of
gray as specified in the Bid
Bulletin No. 19.
7 Does the system require Yes. The system required
authorization and the use of a security key
authentication of all with different sets of
operators, such as, but passwords/PINs for
not limited to, usernames Administrator and Operator
and passwords, with users.
multiple user access
levels?
8 Does the system have an Yes. The PCOS machine
electronic display? makes use of an LCD
display to show information:
 if a ballot may be
inserted into the
machine;
 if a ballot is being
processed; if a
ballot is being
rejected;
 on other
instructions and
information to the
voter/operator.
9 Does the system employ Yes. The PCOS showed
error handling procedures, error messages on its
including, but not limited screen whenever a ballot is
to, the use of error
prompts and other related
instructions?
10 Does the system count
the voter's vote as marked
on the ballot with an
accuracy rating of at least
99.995%?
11 Does the system detect
and reject fake or
spurious, and previously
scanned ballots?
12 Does the system scan
both sides of a ballot and
in any orientation in one
pass?
13 Does the system have
necessary safeguards to
determine the authenticity
of a ballot, such as, but
not limited to, the use of
bar codes, holograms,
color shifting ink, micro
printing, to be provided on
the ballot, which can be
recognized by the
system?
rejected by the machine and
gives instructions to the
voter on what to do next, or
when there was a ballot jam
error.
Yes. The two rounds of tests
were conducted for this test
using only valid
marks/shades on the ballots.
20,000 marks were required
to complete this test, with
only one (1) allowable
reading error.
625 ballots with 32 marks
each were used for this test.
During the comparison of
the PCOS-generated results
with the manually
prepared/predetermined
results, it was found out that
there were seven (7) marks
which were inadvertently
missed out during ballot
preparation by the TWG.
Although the PCOS-
generated results turned out
to be 100% accurate, the
20,000-mark was not met
thereby requiring the test to
be repeated.
To prepare for other
possible missed out
marks,650 ballots with
(20,800 marks) were used
for the next round of test,
which also yielded 100%
accuracy.
Yes. This test made use of
one (1) photocopied ballot
and one (1) "re-created"
ballot. Both were rejected by
the PCOS.
Yes. Four (4) ballots with
valid marks were fed into the
PCOS machine in the four
(4) portrait orientations
specified in Bid Bulletin No.
4 (either back or front,
upside down or right side
up), and all were accurately
captured.
Yes. The system was able to
recognize if the security
features on the ballot are
"missing".
Aside from the test on the
fake or spurious ballots
(Item No. 11), three (3) test
ballots with tampered bar
codes and timing marks
were used and were all
rejected by the PCOS
 machine.
The photocopied ballot in
the test for Item No. 11 was
not able to replicate the UV
ink pattern on top portion of
the ballot causing the
rejection of the ballot.
14 Are the names of the Yes. The Two sample test
candidates pre-printed on ballots of different lengths
the ballot? were provided: one (1) was
14 inches long while the
other was 30 inches long.
Both were 8.5 inches wide.
The first showed 108 pre-
printed candidate names for
the fourteen (14)
contests/positions, including
two (2) survey questions on
gender and age group, and
a plebiscite question.
The other showed 609 pre-
printed candidate names,
also for fourteen (14)
positions including three (3)
survey questions.
15 Does each side of the Yes. The 30-inch ballot,
ballot sheet accommodate which was used to test Item
at least 300 names of No. 2, contained 309 names
candidates with a for the national positions and
minimum font size of 10, 300 names for local
in addition to other positions. The total pre-
mandatory information printed names on the ballot
required by law? totaled 609.
This type of test ballot was
also used for test voting by
the public, including
members of the media.
Arial Narrow, font size 10,
was used in the printing of
the candidate names.
16 Does the system Yes. The ballots used for the
recognize full shade accuracy test (Item No. 10),
marks on the appropriate which made use of full
space on the ballot shade marks, were also
opposite the name of the used in this test and were
candidate to be voted for? accurately recognized by the
PCOS machine.
17 Does the system Yes. Four (4) test ballots
recognize partial shade were used with one (1) mark
marks on the appropriate each per ballot showing the
space on the ballot following pencil marks:
opposite the name of the
candidate to be voted for?
 top half shade;
 bottom half shade;
 left half shade;
and
 right half shade
These partial shade marks
were all recognized by the
PCOS machine
18 Does the system Yes. One (1) test ballot with
recognize check (ü)marks one check (ü) mark, using a
on the appropriate space pencil, was used for this
on the ballot opposite the test.
name of the candidate to
be voted for?
The mark was recognized
successfully.
19 Does the system Yes. One (1) test ballot with
recognize x marks on the one x mark, using a pencil,
appropriate space on the was used for this test.
ballot opposite the name
of the candidate to be
The mark was recognized
voted for?
successfully.
20 Does the system Yes. The 1000 ballots used
recognize both pencil and in the accuracy test (Item
ink marks on the ballot? No. 10) were marked using
the proposed marking pen
by the bidder.
A separate ballot with one
(1) pencil mark was also
tested. This mark was also
recognized by the PCOS
machine. Moreover, the
tests for Items No. 17, 18
and 19 were made using
pencil marks on the ballots.
21 In a simulation of a Yes. Five (5) ballots were
system shut down, does used in this test. The power
the system have error cord was pulled from the
recovery features? PCOS while the 3rd ballot
was in the middle of the
scanning procedure, such
that it was left "hanging" in
the ballot reader.
After resumption of regular
power supply, the PCOS
machine was able to restart
successfully with notification
to the operator that there
were two (2) ballots already
cast in the machine. The
"hanging" 3rd ballot was
returned to the operator and
was able to be re-fed into
the PCOS machine. The
marks on all five (5) were all
accurately recognized.
22 Does the system have Yes. The PCOS was able to
transmission and transmit to the CCS during
consolidation/canvassing the end-to-end
capabilities? demonstration using GLOBE
prepaid Internet kit.
23 Does the system generate Yes. The PCOS saves a
a backup copy of the backup copy of the ERs,
generated reports, in a ballot images, statistical
removable data storage report and audit log into a
device? Compact Flash (CF) Card.
24 Does the system have
alternative power sources,
which will enable it to fully
operate for at least 12
hours?
25 Is the system capable of
generating and printing
reports?
26 Did the bidder
successfully demonstrate
EMS, voting counting,
consolidation/canvassing
and transmission?
Yes. A 12 bolt 18AH battery
lead acid was used in this
test. The initial test had to be
repeated due to a short
circuit, after seven (7) hours
from start-up without ballot
scanning. This was
explained by TIM-
Smartmatic to be caused by
non-compatible wiring of the
battery to the PCOS. A
smaller wire than what is
required was inadvertently
used, likening the situation
to incorrect wiring of a car
battery. Two (2) COMELEC
electricians were called to
confirm TIM-Smartmatic's
explanation. The PCOS
machine was connected to
regular power and started
successfully. The following
day, the "re-test" was
completed in 12 hours and
40 minutes xxx 984 ballots
were fed into the machine.
The ER, as generated by the
PCOS was compared with
predetermined result,
showed 100% accuracy.
Yes. The PCOS prints
reports via its built-in printer
which includes:
1. Initialization Report; 2.
Election Returns (ER); 3.
PCOS Statistical Report; 4.
Audit Log.
Yes. An end-to-end
demonstration of all
proposed systems was
presented covering:
importing of election data
into the EMS; creation of
election configuration data
for the PCOS and the CCS
using EMS; creation of ballot
faces using EMS;
configuring the PCOS and
the CCS using the EMS-
generated election
configuration file;
initialization, operation,
generation of reports and
backup using the PCOS;
electronic transmission of
results to the: [1] from the
PCOS to city/municipal CCS
and the central server. [2]
from the city/municipal CCS
to the provincial CCS. [3]
from the provincial CCS to
the national CCS; receipt
and canvass of transmitted
results: [1] by the
city/municipal CCS from the
PCOS. [2] by the provincial
CCS from the city/municipal
CCS. [3] by the national
CCS from the provincial
CCS; receipt of the
transmittal results by the
central server from the
PCOS.
Given the foregoing and absent empirical evidence to the contrary, the
Court, presuming regularity in the performance of regular duties, takes
the demo-testing thus conducted by SBAC-TWG as a reflection of the
capability of the PCOS machines, although the tests, as Comelec
admits,80 were done literally in the Palacio del Governador building,
where a room therein simulated a town, the adjoining room a city, etc.
Perusing the RFP, however, the real worth of the PCOS system and
the machines will of course come after they shall have been subjected
to the gamut of acceptance tests expressly specified in the RFP,
namely, the lab test, field test, mock election test, transmission test
and, lastly, the final test and sealing procedure of all PCOS and CCS
units using the actual Election Day machine
configuration.81 ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Apropos the counting-accuracy feature of the PCOS machines,
petitioners no less impliedly admit that the web page they appended to
their petition, showing a 2% to 10% failing rate, is no longer
current.82 And if they bothered to examine the current website of
Smartmatic specifically dealing with its SAES 1800, the PCOS system
it offered, they would have readily seen that the advertised accuracy
rating is over "99.99999%."83 Moreover, a careful scrutiny of the old
webpage of Smarmatic reveals that the 2% to 10% failure rate applied
to "optical scanners" and not to SAES. Yet the same page discloses
that the SAES has "100%" accuracy. Clearly, the alleged 2% to 10%
failing rate is now irrelevant and the Court need not belabor this and
the equally irrelevant estoppel principle petitioners impose on us.
Intervenor Cuadra's concern relates to the auditability of the election
results. In this regard, it may suffice to point out that PCOS, being a
paper-based technology, affords audit since the voter would be able, if
need be, to verify if the machine had scanned, recorded and counted
his vote properly. Moreover, it should also be noted that the PCOS
machine contains an LCD screen, one that can be programmed or
configured to display to the voter his votes as read by the machine. 84
No Abdication of Comelec's Mandate and Responsibilty
As a final main point, petitioners would have the Comelec-Smartmatic-
TIM Corporation automation contract nullified since, in violation of the
Constitution, it constitutes a wholesale abdication of the poll body's
constitutional mandate for election law enforcement. On top of this
perceived aberration, the mechanism of the PCOS machines would
infringe the constitutional right of the people to the secrecy of the ballot
which, according to the petitioners, is provided in Sec. 2, Art. V of the
Constitution.85
The above contention is not well taken.
The first function of the Comelec under the Constitution86 and the
Omnibus Election Code for that matter relates to the enforcement and
administration of all laws and regulations relating to the conduct of
elections to public office to ensure a free, orderly and honest electoral
exercise. And how did petitioners come to their conclusion about their
abdication theory? By acceding to Art. 3.3 of the automation contract,
Comelec relinquished, so petitioners claim, supervision and control of
the system to be used for the automated elections. To a more specific
point, the loss of control, as may be deduced from the ensuing
exchanges, arose from the fact that Comelec would not be holding
possession of what in IT jargon are the public and private keys pair.
CHIEF JUSTICE: Well, more specifically are you saying that the main
course of this lost of control is the fact that SMARTMATIC holds the
public and private keys to the sanctity of this system?cralawred
ATTY. ROQUE: Yes, Your Honor, as well as the fact that they control
the program embedded in the key cost that will read their votes by
which the electorate may verify that their votes were counted.
CHIEF JUSTICE: You are saying that SMARTMATIC and not its different fields to bring about the success of the 2010 automated
partner TIM who hold these public and private keys?cralawred elections.

ATTY. ROQUE: Yes, Your Honor. Public respondent COMELEC will partner with Smartmatic TIM
Corporation for the training and hiring of the IT personnel as well as for
the massive voter-education campaign. There is in fact a budget
The Court is not convinced. There is to us nothing in Art 3.3 of the
allocation x x x for these undertakings. x x x
automation contract, even if read separately from other stipulations
and the provisions of the bid documents and the Constitution itself, to
support the simplistic conclusion of abdication of control pressed on As regards the requirement of RA 9369 that IT-capable personnel shall
the Court. Insofar as pertinent, Art 3.3 reads: be deputized as a member of the BEI and that another IT-capable
person shall assist the BOC, public respondent COMELEC shall
partner with DOST and other agencies and instrumentalities of the
3.3 The PROVIDER shall be liable for all its obligations under this
government.
Project and the performance of portions thereof by other persons or
entities not parties to this Contract shall not relieve the PROVIDER of
said obligations and concomitant liabilities. In not so many words during the oral arguments and in their respective
Memoranda, public and private respondents categorically rejected
outright allegations of abdication by the Comelec of its constitutional
SMARTMATIC, as the joint venture partner with the greater track
duty. The petitioners, to stress, are strangers to the automation
record in automated elections, shall be in charge of the technical
contract. Not one participated in the bidding conference or the bidding
aspects of the counting and canvassing software and hardware,
proper or even perhaps examined the bidding documents and,
including transmission configuration and system integration.
therefore, none really knows the real intention of the parties. As case
SMARTMATIC shall also be primarily responsible for preventing and
law tells us, the court has to ferret out the real intent of the parties.
troubleshooting technical problems that may arise during the elections.
What is fairly clear in this case, however, is that petitioners who are not
(Emphasis added.)
even privy to the bidding process foist upon the Court their own view
on the stipulations of the automation contract and present to the Court
The proviso designating Smartmatic as the joint venture partner in what they think are the parties' true intention. It is a study of outsiders
charge of the technical aspect of the counting and canvassing wares appearing to know more than the parties do, but actually speculating
does not to us translate, without more, to ceding control of the electoral what the parties intended. The following is self-explanatory:
process to Smartmatic. It bears to stress that the aforesaid designation
of Smartmatic was not plucked from thin air, as it was in fact an
CHIEF JUSTICE: Why did you say that it did not, did you talk with the
eligibility requirement imposed, should the bidder be a joint venture.
Chairman and Commissioners of COMELEC that they failed to perform
Part 5, par. 5.4 (e) of the Instruction to Bidders on the subject Eligible
this duty, they did not exercise this power of control?cralawred
Bidders, whence the second paragraph of aforequoted Art. 3.3 came
from, reads:
ATTY. ROQUE : Your Honor, I based it on the fact that it was the
COMELEC in fact that entered into this contract '.
5.4 A JV of two or more firms as partners shall comply with the
following requirements.
CHIEF JUSTICE : Yes, but my question is - did you confront the
COMELEC officials that they forfeited their power of control in over our
xxx
election process?cralawred

(e) The JV member with a greater track record in automated elections,

ATTY. ROQUE : We did not confront, your Honor. We impugned their
shall be in-charge of the technical aspects of the counting and
acts, Your Honor.92
canvassing software and hardware, including transmission
configuration and system integration
Just as they do on the issue of control over the electoral process,
petitioners also anchor on speculative reasoning their claim that
And lest it be overlooked, the RFP, which forms an integral part of the
Smartmatic has possession and control over the public and private
automation contract,87 has put all prospective bidders on notice of
keys pair that will operate the PCOS machines. Consider: Petitioners'
Comelec's intent to automate and to accept bids that would meet
counsel was at the start cocksure about Smartmatic's control of these
several needs, among which is "a complete solutions provider' which
keys and, with its control, of the electoral process. 93
can provide' effective overall nationwide project management service'
under COMELEC supervision and control, to ensure effective and
successful implementation of the [automation] Several questions later, his answers had a qualifying tone:
Project."88 Complementing this RFP advisory as to control of the
election process is Art. 6.7 of the automation contract, providing:
JUSTICE NACHURA: And can COMELEC under the contract not
demand that it have access, that it be given access to and in fact
6.7 Subject to the provisions of the General Instructions to be issued generate its own keys independently with SMARTMATIC so that it
by the Commission En Banc, the entire processes of voting, counting, would be COMELEC and not SMARTMATIC that would have full
transmission, consolidation and canvassing of votes shall be control of the technology insofar as the keys are concerned
conducted by COMELEC's personnel and officials, and their xxx?cralawred
performance, completion and final results according to specifications
and within the specified periods shall be the shared responsibility of
ATTY. ROQUE: I do not know if COMELEC will be in a position to
COMELEC and the PROVIDER. (Emphasis added.)
generate these keys, xxx.94

But not one to let an opportunity to score points pass by, petitioners
And subsequently, the speculative nature of petitioners' position as to
rhetorically ask: "Where does Public Respondent Comelec intend to
who would have possession and control of the keys became apparent.
get this large number of professionals, many of whom are already
gainfully employed abroad?"89 The Comelec, citing Sec. 390 and Sec. 5
of RA 8436,91as amended, aptly answered this poser in the following CHIEF JUSTICE: Yes, but did you check with the COMELEC who will
wise: be holding these two keys x x x did you check with COMELEC whether
this system is correct?cralawred
x x x [P]ublic respondent COMELEC, in the implementation of the
automated project, will forge partnerships with various entities in ATTY.ROQUE: We have not had occasion to do so, x x x Your Honor.
 xxx
CHIEF JUSTICE: Why do you make that poor conclusion against the
COMELEC x x x May not the COMELEC hire the services of experts in
order for the institution to be able to discharge its constitutional
functions?cralawred
ATTY. ROQUE: That is true, but x x x there is too much reliance on
individuals who do not have the same kind of accountability as public
officers x x x
CHIEF JUSTICE: Are you saying that the COMELEC did not consult
with available I.T. experts in the country before it made the bidding
rules before it conducted the bidding and make the other policy
judgments?cralawred
ATTY. ROQUE: Your Honor, what I am sure is that they did not confer
with the I.T. Foundation x x x.
CHIEF JUSTICE: But is that foundation the only expert, does it have a
monopoly of knowledge?95
The Court, to be sure, recognizes the importance of the vote-security
issue revolving around the issuance of the public and private keys pair
to the Board of Election Inspectors, including the digital signatures.
The NCC comment on the matter deserves mention, appearing to hew
as it does to what appear on the records. The NCC wrote:
The RFP/TOR used in the recent bidding for the AES to be used in the
2010 elections specifically mandated the use of public key
cryptography. However, it was left to the discretion of the bidder to
propose an acceptable manner of utilization for approval/acceptance of
the Comelec. Nowhere in the RFP/TOR was it indicated that
COMELEC would delegate to the winning bidder the full discretion,
supervision and control over the manner of PKI [Public Key
Infrastructure] utilization.
With the view we take of the automation contract, the role of
Smartmatic TIM Corporation is basically to supply the goods necessary
for the automation project, such as but not limited to the PCOS
machines, PCs, electronic transmission devices and related
equipment, both hardware and software, and the technical services
pertaining to their operation. As lessees of the goods and the back-up
equipment, the corporation and its operators would provide assistance
with respect to the machines to be used by the Comelec which, at the
end of the day, will be conducting the election thru its personnel and
whoever it deputizes.
And if only to emphasize a point, Comelec's contract is with
Smartmatic TIM Corporation of which Smartmatic is a 40% minority
owner, per the JVA of TIM and Smartmatic and the Articles of
Incorporation of Smartmatic TIM Corporation. Accordingly, any
decision on the part or on behalf of Smartmatic will not be binding on
Comelec. As a necessary corollary, the board room voting
arrangement that Smartmatic and TIM may have agreed upon as joint
venture partners, inclusive of the veto vote that one may have power
over the other, should really be the least concern of the Comelec.
Parenthetically, the contention that the PCOS would infringe on the
secrecy and sanctity of the ballot because, as petitioners would put it,
the voter would be confronted with a "three feet" long ballot, 96 does not
commend itself for concurrence. Surely, the Comelec can put up such
infrastructure as to insure that the voter can write his preference in
relative privacy. And as demonstrated during the oral arguments, the
voter himself will personally feed the ballot into the machine. A voter, if
so minded to preserve the secrecy of his ballot, will always devise a
way to do so. By the same token, one with least regard for secrecy will
likewise have a way to make his vote known.
During the oral arguments, the notion of a possible violation of the Anti-
Dummy Law cropped up, given the RFP requirement of a joint venture
bidder to be at least be 60% Filipino. On the other hand, the winning
bidder, TIM-Smartmatic joint venture, has Smartmatic, a foreign
corporation, owning 40% of the equity in, first, the joint venture
partnership, and then in Smartmatic TIM Corporation.
The Anti-Dummy Law97 pertinently states:
Section 1. Penalty. In all cases in which any constitutional or legal
provision requires Philippine or any other specific citizenship as a
requisite for the exercise or enjoyment of a right, franchise or privilege,
any citizen of the Philippines or of any other specific country who
allows his name or citizenship to be used for the purpose of evading
such provision, and any alien or foreigner profiting thereby, shall be
punished by imprisonment xxx and by a fine xxx. crvll
SECTION 2. Simulation of minimum capital stock - In all cases in
which a constitutional or legal provision requires that a corporation or
association may exercise or enjoy a right, franchise or privilege, not
less than a certain per centum of its capital must be owned by citizens
of the Philippines or any other specific country, it shall be unlawful to
falsely simulate the existence of such minimum stock or capital as
owned by such citizen for the purpose of evading such provision. xxx
SECTION 2-A. Unlawful use, Exploitation or Enjoyment. Any person,
corporation, or association which, having in its name or under its
control, a right, franchise, privilege, property or business, the exercise
or enjoyment of which is expressly reserved by the Constitution or the
laws to citizens of the Philippines or of any other specific country, or to
corporations or associations at least sixty per centum of the capital of
which is owned by such citizens, permits or allows the use, exploitation
or enjoyment thereof by a person, corporation, or association not
possessing the requisites prescribed by the Constitution or the laws of
the Philippines; or leases, or in any other way, transfers or conveys
said right, franchise, privilege, property or business to a person,
corporation or association not otherwise qualified under the
Constitution xxx shall be punished by imprisonment xxx (Emphasis
added.)
The Anti-Dummy Law has been enacted to limit the enjoyment of
certain economic activities to Filipino citizens or corporations. For
liability for violation of the law to attach, it must be established that
there is a law limiting or reserving the enjoyment or exercise of a right,
franchise, privilege, or business to citizens of the Philippines or to
corporations or associations at least 60 per centum of the capital of
which is owned by such citizens. In the case at bench, the Court is not
aware of any constitutional or statutory provision classifying as a
nationalized activity the lease or provision of goods and technical
services for the automation of an election. In fact, Sec. 8 of RA 8436,
as amended, vests the Comelec with specific authority to acquire AES
from foreign sources, thus:
SEC 12. Procurement of Equipment and Materials. - To achieve the
purpose of this Act, the Commission is authorized to procure, xxx, by
purchase, lease, rent or other forms of acquisition, supplies,
equipment, materials, software, facilities, and other services, from local
or foreign sources xxx. (Emphasis added.)
Petitioners cite Executive Order No. (EO) 584,98 Series of 2006,
purportedly limiting "contracts for the supply of materials, goods and
commodities to government-owned or controlled corporation,
company, agency or municipal corporation" to corporations that are
60% Filipino. We do not quite see the governing relevance of EO 584.
For let alone the fact that RA 9369 is, in relation to EO 584, a
subsequent enactment and, therefore, enjoys primacy over the
executive issuance, the Comelec does fall under the category of a
government-owned and controlled corporation, an agency or a
municipal corporation contemplated in the executive order.
A view has been advanced regarding the susceptibility of the AES to
hacking, just like the voting machines used in certain precincts in
Florida, USA in the Gore-Bush presidential contests. However, an
analysis of post-election reports on the voting system thus used in the
US during the period material and the AES to be utilized in the 2010
automation project seems to suggest stark differences between the
two systems. The first relates to the Source Code, defined in RA 9369
as "human readable instructions that define what the computer
equipment will do."99 The Source Code for the 2010 AES shall be
available and opened for review by political parties, candidates and the
citizens' arms or their representatives;100 whereas in the US precincts
aforementioned, the Source Code was alleged to have been kept
secret by the machine manufacture company, thus keeping the
American public in the dark as to how exactly the machines counted
their votes. And secondly, in the AES, the PCOS machines found in
the precincts will also be the same device that would tabulate and
canvass the votes; whereas in the US, the machines in the precincts
did not count the votes. Instead the votes cast appeared to have been
stored in a memory card that was brought to a counting center at the
end of the day. As a result, the hacking and cheating may have
possibly occurred at the counting center.
Additionally, with the AES, the possibility of system hacking is very
slim. The PCOS machines are only online when they transmit the
results, which would only take around one to two minutes. In order to
hack the system during this tiny span of vulnerability, a super computer
would be required. Noteworthy also is the fact that the memory card to
be used during the elections is encrypted and read-only meaning no
illicit program can be executed or introduced into the memory card.
Therefore, even though the AES has its flaws, Comelec and
Smartmatic have seen to it that the system is well-protected with
sufficient security measures in order to ensure honest elections.
And as indicated earlier, the joint venture provider has formulated and
put in place a continuity and back-up plans that would address the
understandable apprehension of a failure of elections in case the
machines falter during the actual election. This over-all fall-back
strategy includes the provisions for 2,000 spare PCOS machines on
top of the 80,000 units assigned to an equal number precincts
throughout the country. The continuity and back-up plans seek to
address the following eventualities:(1) The PCOS fails to scan
ballots; (2) The PCOS scans the ballots, but fails to print election
returns (ERs); and/or (3) The PCOS prints but fails to transmit the ERs.
In the event item #1 occurs, a spare PCOS, if available, will be brought
in or, if not available, the PCOS of another precinct (PCOS 2 for
clarity), after observing certain defined requirements,101 shall be used.
Should all the PCOS machines in the entire municipality/city fail,
manual counting of the paper ballots and the manual accomplishment
of ERs shall be resorted to in accordance with Comelec promulgated
rules on appreciation of automated ballots.102 In the event item #2
occurs where the PCOS machines fail to print ERs, the use of spare
PCOS and the transfer of PCOS-2 shall be effected. Manual counting
of ERs shall be resorted to also if all PCOS fails in the entire
municipality. And should eventuality #3 transpire, the following back-up
options, among others, may be availed of: bringing PCOS-1 to the
nearest precinct or polling center which has a functioning transmission
facility; inserting transmission cable of functioning transmission line to
PCOS-1 and transmitting stored data from PCOS-1 using functioning
transmission facility.
The disruption of the election process due to machine breakdown or
malfunction may be limited to a precinct only or could affect an entire
municipal/city. The worst case scenario of course would be the
wholesale breakdown of the 82,000 PCOS machines. Nonetheless,
even in this most extreme case, failure of all the machines would not
necessarily translate into failure of elections. Manual count tabulation
and transmission, as earlier stated, can be done, PCOS being a paper-
ballot technology. If the machine fails for whatever reason, the paper
ballots would still be there for the hand counting of the votes, manual
tabulation and transmission of the ERs. Failure of elections
consequent to voting machines failure would, in fine, be a very remote
possibility.
A final consideration.
The first step is always difficult. Hardly anything works, let alone ends
up perfectly the first time around. As has often been said, if one looks
hard enough, he will in all likelihood find a glitch in any new system. It
is no wonder some IT specialists and practitioners have considered the
PCOS as unsafe, not the most appropriate technology for Philippine
elections, and "easily hackable," even. And the worst fear expressed is
that disaster is just waiting to happen, that PCOS would not work on
election day.
Congress has chosen the May 2010 elections to be the maiden run for
full automation. And judging from what the Court has heard and read in
the course of these proceedings, the choice of PCOS by Comelec was
not a spur-of-moment affair, but the product of honest-to-goodness
studies, consultations with CAC, and lessons learned from the ARMM
2008 automated elections. With the backing of Congress by way of
budgetary support, the poll body has taken this historic, if not
ambitious, first step. It started with the preparation of the RFP/TOR,
with a list of voluminous annexes embodying in specific detail the
bidding rules and expectations from the bidders. And after a hotly
contested and, by most accounts, a highly transparent public bidding
exercise, the joint venture of a Filipino and foreign corporation won
and, after its machine hurdled the end-to-end demonstration test, was
eventually awarded the contract to undertake the automation project.
Not one of the losing or disqualified bidders questioned, at least not
before the courts, the bona fides of the bidding procedures and the
outcome of the bidding itself.
Assayed against the provisions of the Constitution, the enabling
automation law, RA 8436, as amended by RA 9369, the RFP and even
the Anti-Dummy Law, which petitioners invoked as an afterthought, the
Court finds the project award to have complied with legal prescriptions,
and the terms and conditions of the corresponding automation contract
in question to be valid. No grave abuse of discretion, therefore, can be
laid on the doorsteps of respondent Comelec. And surely, the winning
joint venture should not be faulted for having a foreign company as
partner.
The Comelec is an independent constitutional body with a distinct and
pivotal role in our scheme of government. In the discharge of its
awesome functions as overseer of fair elections, administrator and
lead implementor of laws relative to the conduct of elections, it should
not be stymied with restrictions that would perhaps be justified in the
case of an organization of lesser responsibility.103 It should be afforded
ample elbow room and enough wherewithal in devising means and
initiatives that would enable it to accomplish the great objective for
which it was created to promote free, orderly, honest and peaceful
elections. This is as it should be for, too often, Comelec has to make
decisions under difficult conditions to address unforeseen events to
preserve the integrity of the election and in the process the voice of the
people. Thus, in the past, the Court has steered away from interfering
with the Comelec's exercise of its power which, by law and by the
nature of its office properly pertain to it. Absent, therefore, a clear
showing of grave abuse of discretion on Comelec's part, as here, the
Court should refrain from utilizing the corrective hand of certiorari to
review, let alone nullify, the acts of that body. This gem, while not on all
fours with, is lifted from, the Court's holding in an old but oft-cited case:
x x x We may not agree fully with [the Comelec's] choice of means, but
unless these are clearly illegal or constitute gross abuse of discretion,
this court should not interfere. Politics is a practical matter, and political
questions must be dealt with realistically not from the standpoint of
pure theory [or speculation]. x x x
xxx
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 [Comelec] the initiative which by
constitutional and legal mandates properly belongs to it. Due regard to
the independent character of the Commission x x x requires that the
power of this court to review the acts of that body should, as a general
proposition, be used sparingly, but firmly in appropriate cases. 104 x x x
The Court, however, will not indulge in the presumption that nothing
would go wrong, that a successful automation election unmarred by
fraud, violence, and like irregularities would be the order of the moment
on May 10, 2010. Neither will it guarantee, as it cannot guarantee, the
effectiveness of the voting machines and the integrity of the counting
and consolidation software embedded in them. That task belongs at
the first instance to Comelec, as part of its mandate to ensure clean
and peaceful elections. This independent constitutional commission, it
is true, possesses extraordinary powers and enjoys a considerable
latitude in the discharge of its functions. The road, however, towards
successful 2010 automation elections would certainly be rough and
bumpy. The Comelec is laboring under very tight timelines. It would
accordingly need the help of all advocates of orderly and honest
elections, of all men and women of goodwill, to smoothen the way and
assist Comelec personnel address the fears expressed about the
integrity of the system. Like anyone else, the Court would like and wish
automated elections to succeed, credibly.
WHEREFORE, the instant petition is hereby DENIED.
SO ORDERED.
SEPARATE CONCURRING OPINION
PUNO, C.J.:
Prefatory Statement
The broad power to determine whether there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the government1 is exercised with full
appreciation by the judiciary of the proper limits of its role in our
tripartite form of government. We should take care that this expanded
power is not used as a license for courts to intervene in cases involving
matters of policy woven with constitutional and legal questions. Since
time immemorial, courts have deferred to the wisdom or logic of
legislative choices and technical determinations. It is as it should be.
By this paradigm, we do not abdicate our fundamental responsibility in
annulling an act of grave abuse of discretion in the guise of judicial
restraint, but neither do we permit the overarching use of judicial power
as to amount to judicial tyranny.
A. The Case
The petitioners brought this case for Certiorari, Prohibition and
Mandamus to declare that public respondents Commission on
Elections (COMELEC), and the COMELEC-Special Bids and Awards
Committee (COMELEC-SBAC), committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it awarded the 2010
Automated Elections Project to private respondents Total Information
Management, Inc. (TIM) and Smartmatic International, Inc.
(Smartmatic). Petitioners ask the Court to strike down as null and void
the July 10, 2009 contract between public respondent COMELEC and
private respondents for being contrary to the Constitution, statutes, and
established jurisprudence.
On June 7, 1995, Congress passed Republic Act No. 8046 adopting an
Automated Election System (AES) in the Philippines. RA 8046
authorized COMELEC to conduct a nationwide demonstration of a
computerized election system and allowed the poll body to pilot-test
the system in the March 1996 elections in the Autonomous Region in
Muslim Mindanao (ARMM).
On December 22, 1997, Congress enacted Republic Act No.
84362 (RA 8436), otherwise known as the "Election Modernization Act"
authorizing COMELEC to use an AES for the process of voting,
counting votes and canvassing or consolidating the results of the
national and local elections. It also mandated the poll body to acquire
automated counting machines (ACMs), computer equipment, devices
and materials, and adopt new electoral forms and printing materials.
The COMELEC, however, was not able to implement the AES for the
positions of President, Vice President, senators and parties,
organizations or coalitions participating under the party-list system
throughout the entire country, as provided in RA 8436. The automation
was limited to the provinces of Lanao del Sur, Maguindanao, Sulu, and
Tawi-tawi due to lack of material time and funding.
The COMELEC was not also able to implement an AES in the May
2001 elections due to time constraints. But on October 29, 2002, the
COMELEC adopted Resolution 02-0170, which resolved to conduct
biddings for the three phases of the AES: Phase I, voter registration
and validation system; Phase II, automated counting and canvassing
system; and Phase III, electronic transmission. The COMELEC
awarded Phase II for the provision of the ACMs to the Mega Pacific
Consortium (MP Consortium). The Information Technology Foundation
of the Philippines (ITFP), among others, petitioned this Court to
declare null and void the award of the contract to the MP Consortium.
In Information Technology Foundation of the Philippines v.
COMELEC,3 this Court held that the contract was void for failure to
establish the identity, existence and eligibility of the alleged consortium
as a bidder; the ACM's failure to pass the tests of the Department of
Science and Technology (DOST); and the ACM's failure to meet the
required accuracy rating as well as safeguards for the prevention of
double counting of precinct results.
On January 23, 2007, Congress passed Republic Act No. 9369 (RA
9369), amending RA 8436. It specified the modes of implementing the
AES, i.e., either paper-based or a direct recording electronic (DRE)
system, for the process of voting, counting of votes and
canvassing/consolidation and transmittal of results of electoral
exercises. It also provided that for the next election, the AES shall be
used in at least two highly urbanized cities and two provinces each in
Luzon, Visayas and Mindanao.4 In addition, it provided that with
respect to the May 10, 2010 elections and succeeding electoral
exercises, the system procured must have demonstrated capability
and been successfully used in a prior electoral exercise here or
abroad. However, participation in the 2007 pilot exercise shall not be
conclusive of the system's fitness.5
Again, the AES was not implemented in the May 2007 elections due to
lack of funds and time constraints. But the AES was used in the August
11, 2008 ARMM elections, where both DRE and the paper-based
Central Count Optical Scan (CCOS) machines were used.
On March 5, 2009, Republic Act No. 9525 (RA 9525)6 was passed by
the House of Representatives and the Senate, appropriating the sum
of Eleven Billion Three Hundred One Million Seven Hundred Ninety
Thousand Pesos (P11,301,790,000.00) for an AES to be used in the
May 10, 2010 automated national and local elections.
From March 13 to 16, 2009, the COMELEC published and posted an
invitation for vendors to apply for eligibility and to bid for the
procurement of counting machines, including the supply of ballot
paper; electronic transmission services using public
telecommunications networks; training; technical support;
warehousing; deployment; installation; pull-out; systems integration;
and overall project management to be used in the automation of the
counting, transmission and canvassing of the votes for the May 10,
2010 synchronized national and local elections.
On March 18, 2009, the COMELEC issued the Terms of
Reference/Request for Proposal for Solutions, Terms & Conditions for
the Automation of the May 10, 2010 Synchronized National and Local
Elections (TOR/RFP), as promulgated in COMELEC Resolution 8591,
dated March 11, 2009, with the following components:
A. Component 1: Paper-Based Automated Election System
1-A. Election Management System (EMS)
1-B. Precinct-Count Optical Scan (PCOS) System
1-C. Consolidated/Canvassing System (CCS)
b. Component 2: Provision for Electronic Transmission of Electronic
Results using Public Telecommunications Networks
c. Component 3: Overall Project Management
On March 19, 2009, eleven prospective bidders obtained bid
documents from the COMELEC for the automation of the 2010
elections.
On March 23, 2009, RA 9525 was signed by President Gloria
Macapagal-Arroyo appropriatingP11,301,790,000.00 as supplemental
appropriation for an automated elections system and other purposes.
On March 27, 2009, the COMELEC conducted a Pre-Bid Conference
for the automation of the counting, transmission and canvassing of
votes for the May 10, 2010 elections.
On April 23, 2009, TIM and Smartmatic entered into a Joint Venture
Agreement (JVA) to form the joint venture known as Smartmatic TIM
Corporation.
On May 4, 2009, seven suppliers submitted their formal bids. The
COMELEC-SBAC declared all the seven bidders ineligible for failure to
comply with the pass/fail criteria of the COMELEC. Upon motion for
reconsideration of the suppliers, three consortiums were reconsidered
by the COMELEC-SBAC, namely Indra Consortium, Smartmatic-TIM,
AMA-ESS and the Gilat Consortium. After evaluation of their technical
proposals, the COMELEC-SBAC declared Indra Consortium and
Smartmatic-TIM to have passed.
The COMELEC-SBAC then proceeded with the opening of the
financial proposals. The Technical Working Group (TWG) evaluated
and reviewed the financial proposals of Indra Consortium and
Smartmatic-TIM. On June 3, 2009, the COMELEC-SBAC
recommended to the COMELEC en banc the award of the Contract for
the Provision of an Automated Election System for the May 10, 2010
Synchronized National and Local Elections (Automation Contract) to
the joint venture of Smartmatic-TIM. Smartmatic-TIM was found to
have the lowest calculated responsive bid (LCRB); and to have passed
all the eligibility, technical, and financial requirements. The COMELEC-
SBAC noted that Smartmatic-TIM's machines passed all the tests and
systems evaluation with an accuracy rating of 100%. This finding was
verified and validated in the post-qualification proceedings. The total
bid of Smartmatic-TIM amounting to Seven Billion One Hundred
Ninety-one Million Four Hundred Eighty-four Thousand Seven Hundred
Thirty-nine and 48/100 Philippine pesos (P7,191,484,739.48) was
found by the COMELEC to be within the approved budget for the
contract of Eleven Billion Two Hundred Twenty-three Million Six
Hundred Eighteen Thousand Four Hundred and 0/100 Philippine
pesos (P11,223,618,400.00).7
8
On June 8, 2009, the COMELEC Advisory Council submitted its
observations on the procurement proceedings of the SBAC, with the
conclusion that these were transparent and in conformity with the law
and the TOR/RFP. It noted that Smartmatic-TIM had a 100% accuracy
rating. The Advisory Council has the mandate to participate as non-
voting members of the COMELEC-SBAC in the conduct of the bidding
process for the AES.
On the same date, June 8, 2009, the Office of the Ombudsman, which
had previously created Task Force "Poll Automation",9 submitted its
"Process Audit Observation Report." The Ombudsman Task Force
also found the above proceedings and systems to be consonant with
the Constitution, procurement laws, and RA 9369.
The Parish Pastoral Council for Responsible Voting (PPCRV)
representative likewise submitted a report, which concurred with the
final report of the COMELEC-SBAC.
On June 9, 2009, the COMELEC en banc promulgated Resolution No.
8608, confirming Smartmatic-TIM as the bidder with the LCRB and
awarding the contract for the automation of the elections on May 10,
2010 to the joint venture.
On June 10, 2009, the COMELEC awarded the contract to
Smartmatic-TIM to supply 82,000 Precinct Count Optical Scan (PCOS)
machines to be used in the 2010 elections. Subsequently, Jose Mari
Antuñez, the President of TIM, informed COMELEC Chairperson Jose
Melo that TIM was withdrawing from the partnership with Smartmatic,
due to irreconcilable differences and loss of confidence. The scheduled
signing on June 30, 2009 of the Automation Contract between
COMELEC, Smartmatic and TIM did not take place. Following a series
of discussions, Smartmatic and TIM were able to settle their internal
dispute.
Smartmatic and TIM then caused the incorporation of their joint
venture, pursuant to the JVA. On July 8, 2009, the Securities and
Exchange Commission (SEC) issued a Certificate of Incorporation to
Smartmatic TIM Corporation.
On July 10, 2009, the Smartmatic TIM Corporation entered into the
Automation Contract with the COMELEC. The contract price
was P7,191,484,739.48.
The petition at bar raises the following - -
B. Issues
1. Whether RA 8436, as amended by RA 9369, requires the conduct of
a pilot exercise as a condition precedent to the full nationwide
automation of the election.
2. Whether RA 9525 has impliedly repealed the pilot testing
requirement.
3. Whether Smartmatic and TIM entered into a valid joint venture
agreement.
4. Whether any nationality requirement is applicable.
5. Whether the AES chosen by the COMELEC complies with the "prior
successful use" qualification set forth in Section 12 of RA 8436, as
amended.
6. Whether the PCOS machines offered by the Smartmatic-TIM
Consortium satisfy the minimum system capabilities mandated by
Section 6 of RA 8436, as amended.
C. Discussion
A touchstone of our Constitution is that critical public policy judgments
belong to the legislative branch, and the Court must not unduly intrude
into this exclusive domain.
In enacting RA 8436 (Election Modernization Act) on December 22,
1997, the legislature has clearly chosen the policy that an AES shall be
used by the COMELEC for the process of voting, counting of votes and
canvassing/consolidation of results of the national and local
elections.10 It decided to put an end to the manual conduct of our
elections that has frustrated the honest casting of votes by our
sovereign people.
In the pursuit of its objective, the legislature defined what it considered
an AES and provided the standards for its implementation. It further
determined the minimum functional capabilities of the system and
delegated to the COMELEC the development and adoption of a
system of evaluation to ascertain that the minimum system capabilities
would be met.
The policy decision of Congress to adopt an AES is not under
question. It is the manner the COMELEC is implementing the AES that
is assailed by the petitioners. The first issue is whether the conduct of
an AES in at least two highly urbanized cities and two provinces each
in Luzon, Visayas and Mindanao is a condition precedent to the
nationwide implementation of the AES.
c.1 The conduct of the pilot exercise of the AES is a condition
precedent to its nationwide implementation
Whether the conduct of the pilot exercise of the AES is a condition
precedent to its nationwide implementation involves the correct
interpretation of Section 5 of RA 8436. The interpretation of Section 5,
RA 8436, as amended, is nothing less than a brain twister. It appears
like a Rorschach inkblot test, in which petitioners and respondents
assign meaning to certain words as though they were deciphering
images formed by inkblots. Using the same word of the law, they arrive
at different conclusions.
Thus, the petitioners interpret the word shall in the first proviso of
Section 5, RA 8436, as amended, to support their thesis that the pilot
exercise of the AES is a condition precedent prior to its full
implementation. The proviso states that "the [automated election
system] shall be used in at least two highly urbanized cities and two
provinces each in Luzon, Visayas and Mindanao."11
Similarly, the respondents interpret the word shall in the last sentence
of the provision, which states that "in succeeding regular national or
local elections, the [automated election system] shall be implemented
nationwide,"12 and submit that the pilot exercise of the AES is not a
condition precedent. Further, they contend that the use of the AES in
at least two provinces and two highly urbanized cities each in Luzon,
Visayas and Mindanao refers only to the national and local elections
immediately following the passage of RA 9369, i.e., the May 2007
national and local elections. They argue that this was just an
acknowledgment by Congress that there was not enough time or funds
to conduct a full nationwide automation of the May 2007 election.
The respondents' reading of Section 5 disregards the tenor of the
entire provision. A rational reading of the entire provision will show that
the different parts isolated and then interpreted by the respondents are
connected by the conjunctions provided, that and provided, further that
and provided, finally that. These conjunctions signify that the clauses
that follow the conjunction are a pre-requisite or a condition to the
fulfillment of the previous clause. The words provided, that mean the
same as "as long as," "in order that," and "if only." Thus, the provision
should be read and understood as follows:
Part 1: 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 or systems in the same election
in different provinces, whether paper-based or a direct recording
electronic election system as it may deem appropriate and practical for
the process of voting, counting of votes and canvassing/consolidation
and transmittal of results of electoral exercises: 13
Provided, That
Part 2: for the regular national and local elections, which shall be held
immediately after the effectivity of this Act, the AES shall be used in at
least two highly urbanized cities and two provinces each in Luzon,
Visayas and Mindanao, to be chosen by the Commission:
Provided, further,
Part 3: That local government units whose officials have been the
subject of administrative charges within sixteen (16) months prior to
the May 14, 2007 elections shall not be chosen:
Provided finally,
Part 4: That no area shall be chosen without the consent of the
Sanggunian of the local government unit concerned. The term local
government unit as used in this provision shall refer to a highly
urbanized city or province.
Part 5: In succeeding regular national or local elections, the AES shall
be implemented nationwide.14
In this light, Section 5 should be interpreted to mean that the
COMELEC is authorized to use an AES as long as the following
requisites are complied with: (1) for the regular national and local
elections, which shall be held immediately after the effectivity of the
Act, the AES shall be used in at least two highly urbanized cities and
two provinces each in Luzon, Visayas and Mindanao; (2) that local
government units whose officials have been the subject of
administrative charges within sixteen months prior to the May 14, 2007
elections shall not be chosen; and (3) that no area shall be chosen
without the consent of the Sanggunian of the local government unit
concerned. And, when the above conditions are complied with, the
AES shall be implemented nationwide in succeeding regular national
and local elections.
The last sentence of the provision which provides that "[i]n succeeding
regular national or local elections, the AES shall be implemented
nationwide" may appear as not connected to the enumeration of
requirements for the use of an AES. But this does not mean that it can
be read in isolation and independently from the rest of the provision.
Section 5 expressly declares that the COMELEC's authority to use the
AES on a nationwide scale is contingent on the prior conduct of partial
automation in two provinces and two highly urbanized cities each in
Luzon, Visayas and Mindanao.
Likewise, the word "pilot testing" may not have been used in the
provision, but the intent to test the use of an AES is evident in its text.
The mandatory nature of the initial conduct of an automated election in
two provinces and two highly urbanized cities each in Luzon, Visayas
and Mindanao is highlighted by the use of the word shall. That this is a
condition precedent before a full nationwide automated election can be
used in the succeeding elections is buttressed by the use of the words
provided, that. Thus, the COMELEC is authorized to use an AES,
provided that the AES is first used in two provinces and two highly
urbanized cities each in Luzon, Visayas and Mindanao, after which, in
the following regular national and local elections, the AES shall be
implemented nationwide.
Pushing to the limit their argument that pilot testing is not a condition
precedent to the conduct of an AES, the respondents rely on Section
12 of RA 8436, as amended, which provides thus:
SEC. 12. Procurement of Equipment and Materials. - To achieve the
purpose of this Act, the Commission is authorized to procure, in
accordance with existing laws, by purchase, lease, rent or other forms
of acquisition, supplies, equipment, materials, software, facilities and
other services, from local or foreign sources free from taxes and import
duties, subject to accounting and auditing rules and regulations. With
respect to the May 10, 2010 elections and succeeding electoral
exercises, the system procured must have demonstrated capability
and been successfully used in a prior electoral exercise here or
abroad. Participation in the 2007 pilot exercise shall not be conclusive
of the system's fitness. (Emphasis supplied)cralawlibrary
The respondents press the point that Section 12, supra, indicates that
pilot testing in the May 2007 elections is not a mandatory requirement
for the choice of an AES to be used in the May 2010 elections, nor is it
a prerequisite for the full automation of the May 2010 elections, since
the system's capability may have been used in an electoral exercise
abroad. Respondents also contend that since participation in the 2007
pilot exercise is expressly declared as inconclusive of the system's
fitness, then the non-use of the PCOS machines in the 2007 electoral
exercise is not a bar to the implementation of a full nationwide
automation in the 2010 elections.
With due respect, the respondents have a murky understanding of the
last sentence of Section 12. It merely states that "[p]articipation in the
2007 pilot exercise shall not be conclusive of the system's fitness." It Richard J. Gordon (Senator Gordon) and Senator Manuel A. Roxas II
does not say that participation of the procured system in the 2007 pilot (Senator Roxas) over an amendment to Section 5 of RA 8436,
exercise is not a condition precedent to the full nationwide proposed by the latter. Senator Roxas proposed to add the words "on
implementation of the AES. The section says in unadorned language a test basis" to refer to the use of an AES. The amendment is as
that as long as the system procured 'presumably for the May 2007 follows:
elections - has been shown to have demonstrated capability and has
been successfully used in a prior electoral exercise here in the
Section 5. Authority to Use an Automated Election System. - To carry
Philippines or abroad, the system may also be used in the May 2010
out the above-stated policy, the Commission on Elections, herein
and succeeding elections. In fine, the subject of the section is the
referred to as the COMELEC is hereby authorized to use ON A TEST
fitness of the system procured for the May 2007 automated pilot
BASIS AN automated election system x x x.18 (capitalization in the
exercise; it has no relation to the issue of whether the pilot exercise is
original.)
a condition precedent to the implementation of full nationwide
automated elections.
Senator Roxas wanted to use the word "test," so that after a "test" of
the AES in the 2007 elections, Congress would know whether the
The deliberations of the Joint Congressional Oversight Committee on
implementation of the 2007 national and local AES was successful.
[the] Automated Election System (Joint Committee on AES)15 should
Thereafter, Congress would decide whether the AES - as a mode of
further enlighten us on the purpose of the last sentence in Section 12
conducting elections - should still be used for the successive elections.
of RA 8436, as amended: that "[p]articipation in the 2007 pilot exercise
This is clear from the following exchange of remarks between Senator
shall not be conclusive of the system's fitness." They reveal that the
Roxas and Senator Gordon:
purpose is simply to avoid a situation in which the choices of machines
and the kind of AES to be used in the 2010 elections would be limited
to those that were piloted in the 2007 elections. SENATOR ROXAS. In any event, Mr. President, I would like now to go
to line 18 and read into the Record the proposed amendment. Again,
as I said earlier, so as not to confuse those who are following the
Thus, Senator Richard Gordon explained that the purpose behind the
language, I will deliberately not read the word "test" subject to
statement that participation in the 2007 pilot exercises was not
whatever happens to that word in subsequent debate and dialogue.
conclusive of the system's fitness was to ensure that newly developed
technology may still be considered for the 2010 elections, even though
it was not tested in the 2007 pilot exercise. Representative Teodoro The proposed amendment reads:
Locsin concurred in the same view. Thus:
THE FURTHER IMPLEMENTATION OF AN AES OR AES
THE CHAIRMAN (SEN. GORDON). Precisely that was placed there so TECHNOLOGY SHALL BE DECIDED UPON BY CONGRESS,
that you can get newly discovered machines or newly invented THROUGH A JOINT RESOLOUTION, UPON RECOMMENDATION
machines that can be utilized so that in the 2010 elections it would OF THE OVERSIGHT COMMITTEE. FOR THIS PURPOSE, THE
have been tried in an example here in our country. OVERSIGHT COMMITTEE SHALL CONDUCT COMPREHENSIVE
EVALUATION PERFORMANCE OF SAID AES OR AES
TECHNOLOGY DURING INITIAL IMPLEMENTATION OF RESULTS
THE CHAIRMAN (REP. LOCSIN). I think the purpose of this was any
WITH MANUAL TABULATION. IT SHALL THEN MAKE
bidder who can prove and who has already carried out an electoral
APPROPRIATE RECOMMENDATIONS TO CONGRESS ON
exercise - sure, of course, he has a leg up of all other but that's not
WHETHER ANY FURTHER IMPLEMENTATION SHALL BE
conclusive which assumes that others who have not the same
CONDUCTED OR OTHERWISE. IN CASE OF FURTHER
experience will be allowed to also bid. (Emphasis supplied.)16
IMPLEMENTATION AND THE INCREMENTAL COVERAGE BY ALL
AES SHALL NOT BE MORE THAN TEN PERCENT (10%) OF THE
Representative Locsin elucidated that participation in the pilot-exercise TOTAL COVERAGE IN TERMS OF NUMBER OF DISTRICTS.
was not conclusive of the system's fitness, because pilots were easier
to do than national exercises. This was also to emphasize that those
That is the proposed amendment, Mr. President. The proposed
who participated in the pilot exercise were not to be preferred over
amendment, first, from a comprehensive perspective seeks to revert
those who were not able to participate in the pilot exercise. Thus:
back to Congress the judgment whether the implementation of the AES
in 2007 national and local elections was successful or not.
THE CHAIRMAN (REP. LOCSIN). Although this is a detail, if I may 'no,
I think you are just doing your best that you just read what it says. It
As envisaged in the bill, Mr. President, we are leaving to the Comelec
simply says that, I think, everyone is entitled to put their bid. Your (sic)
the decision to choose the appropriate technology that will be
have the discretion to decide whether or not they have the capability. A
implemented. There will be a series of advisory or a number of
company may have had many exercises in Latin America but for this
advisory and TAHEC bodies that will hopefully inform that decision.
particular exercise they may not be prepared to deploy the best then
we just forget it. But when it says "participation in 2007 pilot exercise
shall not be conclusive," that does not mean to exclude anyone who x x x
did not participate in 2007. It was only meant to say our fear is that
somebody may be so good in the pilot but then he ll say, "Hey, I won
SENATOR GORDON. I thank the distinguished gentleman from Capiz,
the pilot therefore you have to give me the national election." That's all
it meant because pilots are always easier to do than national Mr. President. I know he tried to amend this with sincerity, but I also
exercises. (Emphasis supplied.)17 would like to maintain that this is not a test, first and foremost, because
he speaks of a test, and I know he has already stated what word to
use. As I pointed out, the words to be used should be: The Automated
The respondents also have an erroneous reading of the use of the Election System will be implemented in the province he has already
word "pilot exercise" instead of "pilot testing." They claim that the use spoken about.
of the word "pilot exercise" instead of "pilot testing" is indicative of the
intention to only initially use or employ the AES in the 2007 elections
rather than make it a condition precedent. Again, this submission is not But, upon the other hand, I am concerned about "shall be decided
upon by Congress through a joint resolution," referring to line 18, - -
sustained by the deliberations of the Senate. "Pilot-exercise" was used
in the law instead of "pilot-test" to avoid the notion that a test must first before the implementation of an AES. I am removing the word "test", - -
be passed in the 2007 elections in order to continue with the use of the "before the implementation of AES technology shall be decided upon
by Congress."
AES as a mode of conducting the succeeding elections. The
lawmakers wanted to avoid the use of the word "test," so that in case
the AES to be used in the 2007 elections did not well perform as Mr. President, that line speaks volumes. The mother bill that we are
planned, still, the automation of the elections in the next elections amending which is enacted in 1987 decided a policy that we are going
would proceed. This intent is reflected in the debate between Senator to go on an automated election. In other words, if we follow the logic
here, we are practically saying: "Well, we may be changing our mind.
Maybe we are not in automation mode again." This very line suggests
and clearly states that: "Hey, it is going to go back to Congress." And,
in fact, through a joint resolution, which I think cannot even be done
because Congress amends even without this suggestion. It can amend
even without these lines. It can amend the law if it chooses to do so.
Which means that after the Automated Election System, if we feel that
we no longer want to have an automated election system, Congress
cannot at anytime say: "No, we are no longer in that mode."
What our bill provides is that we are already on this heuristic notion, if I
may use a word I learned in school a long time ago, which is a
trajectory that is headed towards a particular direction aimed at
modernizing the election by way of AES. And we have put in the
safeguards the minimum requirements and by so doing, after the
election has been conducted, the Comelec which is the agency,
whether we like it or not, that has been mandated by the Constitution
to run our elections simply goes on and says: "All right, we will expand
upon the recommendation of the AES, along with the oversight
committee."
Now, if that is the case, Mr. President, there is no need to go back to
Congress. But if Congress sees it fit, as I pointed out, we are not
obviating that possibility. If Congress sees it fit, they can amend it.
But as far as I am concerned, I think the rule should be that we are on
an automated rule should be that we are on an automated election
mode and we should not say continue on with it.
But as far as I am concerned, I think the rule should be that we are on
an automated election mode and we are on an automated election
more and we should continue on with it. But we should not say after
the exercise, parang lumalabas na test, we will now go back and
decide whether we are still on an automated election mode and say we
might be going back to manual. x x x We have debated on the
automated, we passed this on the past period of debate and we have
already decided that we are continuing with the trajectory of automated
election. I would not want to go back again to a situation where
Congress will say, "We are changing his (sic) mind." Although, it is
within its prerogative anyway at any time. (Emphasis supplied;
capitalization in the original.) 19
Senator Roxas' amendment which contained the word "test," was
rejected. The reason is not because the partial use of the AES in the
2007 election was not considered as a condition precedent to its full
implementation in the 2010 elections. Rather, it was because the use
of the word "test" would have implied that Congress would still have to
decide whether the conduct of the AES had passed its requirements;
whether an AES should still be continued in the succeeding elections;
or whether, based on the "test," the conduct of the elections should
revert to manual.
Senator Gordon further made it clear that the reason why the AES
should first be implemented in certain parts of the country - and not
immediately throughout the entire country - was that "a big bite must
not be taken right away."20 The implementation of the system must be
done in phases: first, it must be piloted in parts of the Philippines, and
only then can it be implemented nationwide. This is reflected in the
following statement of Senator Gordon:
SENATOR GORDON. x x x x
Mr. President, this is precisely why we are starting the automation in
two provinces and two cities so that we do not take a big bite right
away. And I accepted the amendment of the Minority Leader precisely
because we want to make sure that the bite is sufficiently enough for
us to be able to run the automation. x x x We trust the Comelec but we
verify the system because we are hamstrung by the constitutional
provision that the Comelec is the one that is principally in charge of
running the elections, but at the same time, we have an Advisory
Council, composed of our experts, to guide them. (Emphasis
supplied) 21
x x x
Now, the sample is only two provinces and two cities, Mr. President, so
that we would be able to get a gauge. x x x (Emphasis supplied)22
x x x So, it is really an automated system that we advocate and,
obviously, the two provinces and two cities for Luzon, Visayas and
Mindanao will be the initial approach towards this effort. So that when
we go and expand in the next elections in 2010, based on the
Oversight Committee and based on the Congress itself, if we want to
amend it again, we can do so. (Emphasis supplied)23
In sum, both from the words of RA 8436, as amended by RA 9369, and
its legislative intent, it is clear that an AES shall be conducted; and that
the COMELEC is authorized to implement the AES, provided that it is
initially piloted in two highly urbanized cities and two provinces each in
Luzon, Visayas and Mindanao.
c.2 Be that as it may, the enactment of RA 9525 has impliedly repealed
the Pilot Exercise Requirement
In a shift in stance, it is argued by the respondents that RA 8436,
which requires that a piloting of the AES be used in at least two
provinces and two highly urbanized cities each in Luzon, Visayas and
Mindanao before a full nationwide automation of the elections can be
conducted, has been impliedly repealed by the enactment of a later
law, RA 9525. They proffer the view that RA
9525,24 appropriating P11,301,790,000.00 for the conduct of an AES in
the May 10, 2010, is for the full implementation of automated elections
in 2010. They argue that when RA 9525 was enacted on March 5,
2009, Congress was aware that there was no pilot exercise conducted
in two highly urbanized cities and two provinces each in Luzon,
Visayas and Mindanao; and despite this failure, Congress still
appropriated the entire amount of P11,301,790,000.00 for the full
nationwide implementation of the AES in the May 2010 elections. By
the enactment of the P11,301,790,000.00 supplemental appropriation,
the respondents claim that Congress conveyed the intention to
proceed with full nationwide automation and do away with the
requirement of conducting a pilot exercise. The respondents also rely
on the deliberations of the Senate and the House of Representatives to
support their thesis.
On the other hand, the petitioners counter that there was no implied
repeal of the requirement of pilot testing of the AES in two provinces
and two highly urbanized cities each in Luzon, Visayas and Mindanao.
They cite Section 2 of RA 9525, viz.:
Section 2. Use of Funds. - The amounts herein appropriated shall be
used for the purposes indicated and subject to: (i) the relevant special
and general provisions of Republic Act No. 9498, or the FY 2008
General Appropriations Act, as reenacted, and subsequent General
Appropriations Acts, and (ii) the applicable provisions of Republic Act
No. 8436, entitled: "An Act Authorizing the Commission on Elections to
Use an Automated Election System in the May 11, 1998 National or
Local Elections and in subsequent National and Local Electoral
Exercises, Providing Funds Therefor and for Other Purposes", as
amended by Republic Act No. 9369: Provided,however, That
disbursement of the amounts herein appropriated or any part thereof
shall be authorized only in strict compliance with the Constitution, the
provisions of Republic Act No. 9369 and other election laws
incorporated in said Act so as to ensure the conduct of a free, orderly,
clean, honest and credible election and shall adopt such measures that
will guaranty transparency and accuracy in the selection of the relevant
technology of the machines to be used on May 10, 2010 automated
national and local election. (Emphasis supplied.)
The petitioners stress that Section 2 provides that the amount
appropriated shall be used for the implementation of the May 2010
automated elections, subject to the applicable provisions of RA 8436,
as amended. They further emphasize that Section 2 states that the
disbursement of the amount appropriated or any part thereof shall be
done only in strict compliance with the Constitution, and the provisions
of RA 9369 and other election laws. Thus, the petitioners conclude that
the mandatory requirement of pilot testing was not repealed but
reiterated by Congress in said section.
The petitioners further argue that implied repeals are not favored, and
two laws must be absolutely incompatible before an inference of
implied repeal may be drawn. They contend that RA 9525 is not totally
inconsistent with the requirement of pilot testing in Section 5 of RA
8436, as amended, such that the provisions of RA 9525 must be
interpreted and brought into accord with the old law.
To resolve this issue of implied repeal, the Court must first determine
whether it was the intent of Congress to push through with full
nationwide automation of the elections in May 2010. RA 9525 is
unclear whether Congress appropriated P11,301,790,000.00 for the
conduct of full or partial automated elections, or whether it intended the
automated elections to be conducted nationwide or only in the pilot
areas. To clear this uncertainty, the Court should resort to the
deliberations of the Senate and the House of Representatives, as well
as the hearings of the Joint Committee on AES.
Let us first look at the deliberations of the House of Representatives
when it considered House Bill 5715 (HB 5715), entitled "An Act
Appropriating the Sum of Eleven Billion, Three Hundred One Million,
Seven Hundred Ninety Thousand Pesos as Supplemental
Appropriations for an Automated Election System and for Other
Purposes. From the deliberations, the assumption of the members of
the House of Representatives who engaged in the debate was that the
appropriation was for a full nationwide implementation of the AES in
the May 2010 elections.
Thus, in the sponsorship speech of Representative Junie Cua of the
Lone District of Quirino, he stated that the appropriation was for the full
nationwide automation of the May 2010 elections, viz.:
REP. CUA. x x x x
For your consideration, my dear esteemed colleagues, I have the
privilege of submitting the budget of the Commission on Elections for
the automation of the 2010 national and local elections.
Out of the budget proposal of P11.3B, the COMELEC is proposing to
spend about P8.2B for the lease of election automation equipment.
This will cover the cost of 80,000 Precinct Count Optical Scanners or
PCOS that will be deployed throughout the country. These devices will
count hand-marked ballots that will be printed on ballot paper costing a
total of P1B. We will be spending about P78B on ballot boxes. Once
the ballots are so counted, the results will then be electronically
transmitted to the public quicker than any quick count in our election
history and for this, we need P400M.
And finally P1.7B, more or less, will then be spent to ensure that
everything goes smoothly through the strong project management and
associated services that the COMELEC will put in place. (Emphasis
supplied.)25
x x x
As AKBAYAN Party-list Representative Risa Hontiveros-Baraquel
(Representative Hontiveros-Baraquel) was asking clarificatory
questions to Representative Junie Cua, she also stated that the
appropriation was for the conduct of the automated elections of the
entire country and not merely a region therein, viz.:
REP. HONTIVEROS-BARAQUEL. x x x x
In the budget breakdown presented by the COMELEC in our
committee hearing, the amount for operating expenses was P50
million, which is only equal to the operating expenses for the ARMM
elections. And, since this would be a national elections, not just in one
region of our country, I asked then, "Shouldn't the amount be more in
the vicinity of one or one-and-a-half billion pesos?" There is - part of
the response was in the remarks column of the COMELEC, where they
noted that some of the operating expenses, the transmission costs,
would be carried by public TELCOS. (Emphasis supplied.) x x x
x x x
REP. CUA. Yes, Mr. Speaker, after consulting with the technical
people of the commission, I understand that the Lady is correct that
what was originally allocated for operating cost or transmission cost
was 50 million. But after reevaluating the cost breakdown, they have
increased this to 200 million, Mr. Speaker, Your Honor. Yes, 200
million, Mr. Speaker.26 (Emphasis supplied)cralawlibrary
HB 5715 was approved on the third reading, with 193 members of the
House of Representatives voting in the affirmative, one voting in the
negative, and one abstention.
We have also examined the deliberations of the Senate which
constituted itself into a Committee of the Whole to consider HB 5715.
The debates confirmed that the senators were also of the
understanding that the appropriation of P11.3 billion was for the full
nationwide automation of the May 2010 elections.
In the same vein, the members of the Joint Committee on AES took it
as a given that the May 2010 elections would be implemented
throughout the entire country. The September 1, 2008 hearing of the
Joint Committee on AES took up the COMELEC evaluation report on
the automated elections held in the ARMM. Senator Loren Legarda
asked the Chairperson of the COMELEC Advisory Council, Mr. Ray
Anthony Roxas-Chua III, regarding the cleansing of the list of voters; in
the process of doing so, she assumed that the 2010 elections were to
be full automated. Thus:
SEN. LEGARDA. x x x x
So therefore, if I understand correctly, the cleansing of the voters list
through the enactment of a new law and the funding from Congress is
essential because it is a partner towards the automation, complete
automation, by 2010. Is that correct? (Emphasis supplied.)27
Representative Edcel Lagman held the same assumption, as he asked
the following question:
REP. LAGMAN. Mr. Chairman, how many machines and allied
equipment do you need for the nationwide implementation of the
automation by 2010? (Emphasis supplied.)28
During the September 9, 2008 hearing of the Joint Committee on AES,
Senator Edgardo Angara had an exchange with Chairman Melo. It was
unmistakable from the exchange that not only did the Congress
contemplate a full nationwide automation of the May 2010 elections,
but also that the approval of a budget ofP11.3 billion was meant for the
conduct of a full nationwide automation of the 2010 elections, and not
a partial or a pilot of the AES in selected areas.
SEN. ANGARA. Mr. Chairman, yesterday the Finance Committee of
the Senate started the budget hearing. So, in the Senate we are
already beginning to do that.
Now let me just ask before I say something more. Has the budget of
the Comelec been heard in the House?cralawred
MR. MELO. Not yet.
SEN. ANGARA. Good! Good, good, because that is your window of
opportunity. You ve got to catch the House hearing on the budget
because it's better that your proposed budget for the elections of 2010
are incorporated in the House itself. Of course, we can supplement it in
the Senate but, as you know, the Senate cannot tap the President's
Budget. So it's better that we negotiate it in the House.
The presentation yesterday by the Budget Secretary is you will have
about 3.8B for 2010. And the 3.8B, billion (sic), also includes
registration, etcetera, etcetera so it does not exclusively And when we
asked, "Is this enough for full automation?" Secretary Andaya was
frank enough. "No, no. This is the figure that they submitted to us four
years ago and we are really expecting a submission of a revised cost
of computerization."
This is why I think you must seize the opportunity. And I would suggest
very strongly that the advisory committee sit down with potential
bidders and really go over every single figure in that costing because
it's going to be unfortunate that this will not push through. Automation
will not push through simply because it's so expensive that there ll be
such a huge public outcry against it. Whereas, you and I know that this
may be one good way to have clean elections and speedier results
announced in our country. That's why I think it's very important that you
bargain hard and I hope that the suppliers will see also the public
service element in this experiment; that I hope they won't even cut a
profit out of this transaction because if you are successful, I think this
will be one of the biggest use of their technology at 45 million or 35
million voters. I don't know if there's any other country who has that
number of voters using this particular technology.
So, in terms of selling point, this will be one of their strongest selling
points. So I urge the representatives of the vendors to consider that
very strongly even if they have to donate a substantial portion of that
cost for the sake of democracy, 'di ba?29 (Emphasis supplied.)
Indeed, several times during the hearings of the Joint Committee on
AES, the members pointed out that full nationwide elections would be
conducted on May 10, 2010, viz.:
MR. TOLENTINO.30 Yes, Sir.
The costing here would be the purchased (sic) price. And if we base it
on the rate that we sued for the ARMM elections, the lease cost would
be 70 percent of the total budget.
THE CHAIRMAN (SEN. GORDON). Well, I got thrown off because
there is an allegation made by Mr. Dizon that says that they can make
it for 14 to P18 billion, is that correct?cralawred
MR. DIZON. Yes, Mr. Chairman.
THE CHAIRMAN (SEN. GORDON). 'DRE machines'
MR. DIZON. Yes, Mr. Chairman.
THE CHAIRMAN (SEN. GORDON). 'for the entire country,
right?cralawred
MR. DIZON. Yes, Mr. Chairman. That's approximately 37 million
voters.31 (Emphasis supplied.)
In the March 4, 2009 hearing:
THE CHAIRMAN (SEN. ESCUDERO). The only thing I am raising this
(sic), Mr. Chairman, is without violating inter-chamber courtesies, we
are talking here of 40, nearly 50 million voters and you are transmitting
a vote located thousands of kilometers away in an area we are not
even sure if there is signal, dahil kung wala ibababa ho physically
iyong balota mula duon sa presinto para dalhin o maglalagay kayo ng
satellite, hindi ko ho alam kung ano ang gagawin ninyo, wala pa ho
tayo doon. x x x So, please, bear with us as your Oversight Committee
attempts to sift through all of these various inputs and information and
try to find some rhyme or reason into it and justify perhaps our action
of the proposed full automation for the 2010 elections. x x x (Emphasis
supplied.)
x x x
THE CHAIRMAN (SEN. ESCUDERO). And as final point, Mr. Chair, I
would like to make of record what we discussed. Kindly also look into
the possibility, Mr. Chairman, fully automated tayo, OMR kayo, as you
proposed, but in addition to electronic transmission, can't we have an
OMR at the provincial level to count the ERs to be produced by our
OMRs at the precinct or collapsed precinct level either OMR that can
count ER or OMR that can count an encrypted CD from the PCOS
located in the collapsed precinct so that you will have a hard copy of
the ER at the provincial level which you can easily adopt once you go
to the site? x x x32 (Emphasis supplied.)
So it was during the February 2, 2009 hearing of the Senate
Committee on Finance for the appropriation ofP11.3 Billion for the May
10, 2010 AES, viz.:
MR. ROXAS-CHUA. Your Honor, Your Honor, the basis for this is
really the ARMM election because we used similar structure. It was
also a lease with an option to purchase and this is where we came up
with the 70 percent price for the lease with the option to purchase. That
is the structure that we used and there was successful bidder so we
used that as a basis, as the cost structure for this next election.
THE CHAIRMAN.33 Hindi. Siyempre doon sa ARMM,
kinocompartmentalized (compartmentalize) ninyo per province. O,
Maguindanao, you will use DRE. The rest we will use COS. Oo. So,
localized. Ito nationwide ito.34
The Comment-in-Intervention of the Senate of the Philippines also
affirmed the congressional intention to implement a full nationwide
automation of the elections this May 10, 2010. It categorically stated
that the approval of the supplemental budget of P11.3 billion for the
upcoming May 10, 2010 elections was not merely for a pilot test, but
for a full nationwide implementation of the AES.
In the case at bar therefore, there is unmistakable evidence of the
legislative intent to implement a full nationwide automation of the May
2010 elections. It is impossible to give effect to this intent and at the
same time comply with the condition precedent of conducting pilot
exercises in selected areas. The irreconcilability between Section 5 of
RA 8436, as amended, and Section 2 of RA 9525 is apparent for
Congress could not have maintained the requirement of a pilot
exercise as a condition precedent to full automation when it had made
it absolutely clear that it wanted to push through with a full nationwide
AES this May 2010.
Laws of Congress have equal intrinsic dignity and effect; and the
implied repeal of a prior by a subsequent law of that body must depend
upon its intention and purpose in enacting the subsequent law.35 What
is necessary is a manifest indication of a legislative purpose to repeal.
Repeal by implication proceeds from the premise that where a statute
of a later date clearly reveals an intention on the part of the legislature
to abrogate a prior act on the subject, that intention must be given
effect.
c.3 COMELEC's Award of the Automation Contract to the Smartmatic-
TIM Consortium Not Attended by Grave Abuse of Discretion
The petitioners attribute grave abuse of discretion amounting to lack or
excess of jurisdiction to the COMELEC for awarding the 2010
Elections Automation Project to Smartmatic TIM Corporation, on four
grounds, viz.:
1. Private Respondents Smartmatic and TIM allegedly did not execute
and submit a valid joint venture agreement evidencing the existence,
composition and scope of their joint venture, in violation of the
COMELEC's own bidding requirements and this Court's ruling in
Information Technology of the Philippines, et al. v. COMELEC, et al.;36
2. Even granting that such an agreement was submitted, the joint
venture is nevertheless illegal for having been constituted in violation
of the nationality requirement, i.e., 60%-40% Filipino-foreign equity
ceiling;
3. The AES chosen by the COMELEC does not comply with the "prior
successful use" qualification set forth in Section 12 of RA 8436, as
amended; andcralawlibrary
4. The PCOS machines offered by the Smartmatic-TIM Consortium do
not satisfy the minimum system capabilities mandated by Section 7 of
RA 8436, as amended.
Preliminarily, it should be underscored that RA 8436, as amended by
RA 9369, does not mandate the use of any specific voting equipment.
Instead, the law gave COMELEC the sole power to prescribe the
adoption of the most suitable technology of demonstrated
capability37 as it may deem appropriate and practical,38 taking into
account the situation prevailing in the area and the funds available for
the purpose.39 Absent any capricious and whimsical exercise of
judgment on the part of the COMELEC, its determination of the
appropriate election technology, as well as the procedure for its
procurement, should be respected. Our judicial function is merely to
check and not to supplant the judgment of the COMELEC; to ascertain
merely whether it has gone beyond the limits prescribed by law, and
not to exercise the power vested in it or to determine the wisdom of its
act.40
c.4 Valid JVA was duly submitted
The petitioners claim that private respondents Smartmatic and TIM
submitted a "sham" joint venture agreement during the bidding
process. The claim is premised on the following allegations: (i) that
although Smartmatic and TIM were awarded the Automation Contract
by the COMELEC on June 9, 2009, it was only on July 6, 2009 (or
twenty-seven days later) that they were able to "thresh out their serious
differences," sign and thereafter submit their incorporation papers to
the Securities and Exchange Commission; and (ii) that the provisions
of the JVA do not sufficiently establish the due existence, composition
and scope of the Smartmatic-TIM joint venture.
As to the first allegation, it should be noted that the TOR/RFP made by
the COMELEC does not require that a joint venture bidder be
incorporated upon the submission of its bid. Section 2.2.4 of Part IX (B)
of the TOR/RFP declares "[m]anufacturers, suppliers and/or
distributors forming themselves into a joint venture [...]" as eligible to
participate in the bidding for the 2010 Automation Project, without any
incorporated v. unincorporated dichotomy. That the TOR/RFP does not
specifically call for incorporation at the time of the bidding is significant,
because Philippine law admits of a distinction between simple joint
ventures and ordinary corporations.41 In Aurbach, et al. v. Sanitary
Wares Manufacturing Corporation, et al.,42 a joint venture was likened
by this Court to a partnership, thus:
The legal concept of a joint venture is of common law origin. It has no
precise legal definition, but it has been generally understood to mean
an organization formed for some temporary purpose. It is hardly
distinguishable from the partnership, since their elements are similar -
community of interest in the business, sharing of profits and losses,
and a mutual right of control. The main distinction cited by most
opinions in common law jurisdiction is that the partnership
contemplates a general business with some degree of continuity, while
the joint venture is formed for the execution of a single transaction, and
is thus of a temporary nature. This observation is not entirely accurate
in this jurisdiction, since under the Civil Code, a partnership may be
particular or universal, and a particular partnership may have for its
object a specific undertaking. It would seem therefore that under
Philippine law, a joint venture is a form of partnership and should thus
be governed by the law of partnerships. The Supreme Court has
however recognized a distinction between these two business forms,
and has held that although a corporation cannot enter into a
partnership contract, it may however engage in a joint venture with
others. (Citations omitted.)
But any remaining doubt as to the need for incorporation is dispelled
by Bid Bulletin No. 1943 and Bid Bulletin No. 22,44 issued by the
COMELEC-SBAC to provide clarifications to prospective bidders. Both
documents acknowledge that a bid by a joint venture may be made
either through a joint venture corporation (JVC) or an unincorporated
joint venture (UJV). Bid Bulletin No. 19 provides, in relevant part:
[Question/Issue:] If the bidding will be made through an unincorporated
joint venture (UJV), and the UJV wins the bid, can the UJV partners
subsequently assign the contract, after its award, to a newly-formed
joint venture corporation (JVC) registered with the Securities and
Exchange Commission? The registered JVC will assume all rights and
obligations of the UJV. Does Comelec have any requirements for
allowing such assignment to the JVC?cralawred
[Answer/Clarification:] Under the General Conditions of Contract, Sec.
26.1, "The supplier shall not assign his rights or obligations under this
contract in whole or in part except with the Procuring entity's prior
written consent." x x x
x x x
[Question/Issue:] If the bid will be made through a joint venture (JV)
(either a UJV or a JVC), is the JV required also to submit a Tax
Identification No. and Value Added Tax (VAT) registration?cralawred
[Answer/Clarification:] Please see Bid Bulletin No. 13. (Emphasis
supplied.)
Likewise, Bid Bulletin No. 22 states as follows:
[Question/Issue:] How does Joint Venture apply to our group in order
to follow the requirement that Filipino ownership thereof shall be at
least sixty percent (60%)?cralawred
[Answer/Clarification:] The 60% Filipino participation refers to capital
ownership or the Filipino contribution in the pool of financial resources
required to undertake a government project. In an unincorporated joint
venture, determination of the required Filipino participation may be
made by examining the terms and conditions of the joint venture
agreement and other supporting financial documents submitted by the
joint venture. (Emphasis supplied.)
The only restriction imposed on a UJV bidder (vis - à-vis a JVC bidder)
by the TOR/RFP and the Bid Bulletins is that the COMELEC should
consent before the UJV could assign its rights to the Automation
Contract to the newly formed JVC. The records show that Smartmatic
and TIM complied with the consent requirement. After emerging as the
winning bidder, they incorporated the Smartmatic TIM Corporation, the
corporate vehicle through which the joint venture is to be carried
out.45 COMELEC acquiesced to this arrangement, for it subsequently
entered into a contract with this JVC for the Automation Project.
The petitioners next assert that the JVA does not sufficiently establish
the due existence, composition and scope of the Smartmatic-TIM joint
venture, in violation of our ruling in Information Technology of the
Philippines, et al. v. COMELEC, et al.:46 that "in the absence of definite
indicators as to the amount of investments to be contributed by each
party, disbursements for expenses, the parties' respective shares in
the profits and the like, it seems to the Court that this situation could
readily give rise to all kinds of misunderstandings and disagreements
over money matters"; and that "[u]nder such a scenario, it will be
extremely difficult for Comelec to enforce the supposed joint and
several liabilities of the members of the 'consortium.' " According to the
petitioners, Smartmatic and TIM did not submit documents to show
"the full identity of the entity it is dealing with," and "who controls the
money, how much did each of these entities invest to (sic) the alleged
joint venture, and who has control over the decision[-]making process
of the alleged joint venture."
A cursory glance at the JVA belies the petitioners' posture. The
agreement indicates in a thorough and comprehensive manner the
identity, rights, duties, commitments and covenants of the parties, as
well as the purpose, capitalization, and other pertinent details in
respect of the joint venture, thus:
1. Smartmatic and TIM are the members of the joint venture. 47
2. The purpose of the JVC is to carry out and perform jointly, severally
and solidarily the obligations of TIM and Smartmatic arising from being
declared the winning bidder in the public bidding for the Automation
Project, which obligations are spelled out in the [TOR/RFP] released
by the COMELEC.48
3. The authorized capital stock of the JVC is one billion, three hundred
million Philippine pesos (P1,300,000,000.00), divided into one billion,
three hundred million common shares at one peso (P1.00) par
value.49 The capital contribution of TIM is equivalent to sixty percent
(60%) of the shares to be issued by the JVC, with Smartmatic
contributing the residual forty percent (40%).50
4. The contributions51 of the parties are as follows:
A. TIM - (i) the value-added services pertaining or related to
canvassing units, systems integration, transmission and such other
services as required by the Automation Project and as indicated in the
[TOR/RFP]; (ii) services pertaining or related to logistics, deployment,
and manpower; (iii) hardware, software, ballot paper, consumables and
such other services as may be requested by Smartmatic; and (iv) local
support staff as may be required under the circumstances.
b. Smartmatic - (i) the development, manufacture and/or supply of
[electronic voting machines], other machines and equipment, software,
technology and systems; (ii) overall project management as required
by the Automation Project and as indicated in the [TOR/RFP]52; and (iii)
any other activity not expressly written in the JVA or assigned to TIM.
c. Both parties - (i) technical services and/or assistance to carry out the
purpose of the JVC; (ii) financial assistance to the JVC; and (iii)
additional capital contributions, as may be requested by the Board of
Directors.
5. TIM shall be entitled to nominate and elect 60%, and Smartmatic
shall be entitled to nominate and elect 40%, of the Board of Directors
of the JVC.53
6. The EXCOM shall consist of at least three (3) Directors, two of
whom must be Directors nominated by TIM, with the other nominated
by Smartmatic.54
7. Profits are to be distributed to TIM and Smartmatic as may be
determined by the Board of Directors under Article 4.5 or by the
Shareholders under Article 5.3 of the JVA, taking into account the
financial requirements of the JVC with respect to working capital. 55
8. Any dispute or disagreement that may arise between the parties in
connection with the JVA shall first be settled through mutual
cooperation and consultation in good faith. Any dispute or
disagreement that cannot be amicably settled between the parties shall
be submitted to arbitration in Singapore, in accordance with the
commercial arbitration rules of the Singapore Chamber of Commerce,
the accompanying expenses in either case to be equally shared by
both parties.56
9. TIM and Smartmatic are jointly and severally liable to the COMELEC
for the obligations of each of TIM and Smartmatic under the TOR/RFP,
should they be awarded the contract for the Automation Project. 57
Trapped in their own "Catch-22," petitioners' invocation of Information
Technology is misplaced. The facts of that case are entirely different.
In the main, no JVA or document of similar import was submitted
during the bidding process to the COMELEC in Information
Technology. The only "evidence" as to the existence of the alleged
joint venture was a self-serving letter expressing that Mega Pacific
eSolutions, Inc., Election.com, Ltd., WeSolv Open Computing, Inc., SK
C&C, and ePLDT and Oracle System (Philippines), Inc. had agreed to
form a consortium to bid for the Automation Project. This
notwithstanding, the COMELEC awarded the contract to the
"consortium." And the Court pointedly ruled:
The March 7, 2003 letter, signed by only one signatory - "Willy U. Yu,
President, Mega Pacific eSolutions, Inc., (Lead Company/Proponent)
For: Mega Pacific Consortium" - and without any further proof, does
not by itself prove the existence of the consortium. It does not show
that MPEI or its president have been duly pre-authorized by the other
members of the putative consortium to represent them, to bid on their
collective behalf and, more important, to commit them jointly and
severally to the bid undertakings. The letter is purely self-serving and
uncorroborated.
To assure itself properly of the due existence (as well as eligibility and
qualification) of the putative consortium, Comelec's BAC should have
examined the bidding documents submitted on behalf of MPC. They
would have easily discovered the following fatal flaws.
x x x
In the case of a consortium or joint venture desirous of participating in
the bidding, it goes without saying that the Eligibility Envelope would
necessarily have to include a copy of the joint venture agreement, the
consortium agreement or memorandum of agreement - or a business
plan or some other instrument of similar import - establishing the due
existence, composition and scope of such aggrupation. Otherwise,
how would Comelec know who it was dealing with, and whether these
parties are qualified and capable of delivering the products and
services being offered for bidding?cralawred
In the instant case, no such instrument was submitted to Comelec
during the bidding process. This fact can be conclusively ascertained
by scrutinizing the two-inch thick "Eligibility Requirements" file
submitted by Comelec last October 9, 2003, in partial compliance with
this Court's instructions given during the Oral Argument. This file
purports to replicate the eligibility documents originally submitted to
Comelec by MPEI allegedly on behalf of MPC, in connection with the
bidding conducted in March 2003. Included in the file are the
incorporation papers and financial statements of the members of the
supposed consortium and certain certificates, licenses and permits
issued to them.
However, there is no sign whatsoever of any joint venture agreement,
consortium agreement, memorandum of agreement, or business plan
executed among the members of the purported consortium.
The only logical conclusion is that no such agreement was ever
submitted to the Comelec for its consideration, as part of the bidding
process.
It thus follows that, prior the award of the Contract, there was no
documentary or other basis for Comelec to conclude that a consortium
had actually been formed amongst MPEI, SK C&C and WeSolv, along
with Election.com and ePLDT. Neither was there anything to indicate
the exact relationships between and among these firms; their diverse
roles, undertakings and prestations, if any, relative to the prosecution
of the project, the extent of their respective investments (if any) in the
supposed consortium or in the project; and the precise nature and
extent of their respective liabilities with respect to the contract being
offered for bidding. And apart from the self-serving letter of March 7,
2003, there was not even any indication that MPEI was the lead
company duly authorized to act on behalf of the others.
So, it necessarily follows that, during the bidding process, Comelec
had no basis at all for determining that the alleged consortium really
existed and was eligible and qualified; and that the arrangements
among the members were satisfactory and sufficient to ensure delivery
on the Contract and to protect the government's interest.
x x x
At this juncture, one might ask: What, then, if there are four MOAs
instead of one or none at all? Isn't it enough that there are these
corporations coming together to carry out the automation project? Isn't
it true, as respondent aver, that nowhere in the RFP issued by
Comelec is it required that the members of the joint venture execute a
single written agreement to prove the existence of a joint venture.
Indeed, the intention to be jointly and severally liable may be
evidenced not only by a single joint venture agreement, but also by
supplementary documents executed by the parties signifying such
intention. What then is the big deal?cralawred
The problem is not that there are four agreements instead of only
one. The problem is that Comelec never bothered to check. It never
based its decision on documents or other proof that would concretely
establish the existence of the claimed consortium or joint venture or
agglomeration. It relied merely on the self-serving representation in an
uncorroborated letter signed by only one individual, claiming that his
company represented a "consortium" of several different corporations.
It concluded forthwith that a consortium indeed existed, composed of
such and such members, and thereafter declared that the entity was
eligible to bid.
x x x
In brief, despite the absence of competent proof as to the existence
and eligibility of the alleged consortium (MPC), its capacity to deliver
on the Contract, and the members' joint and several liability therefor,
Comelec nevertheless assumed that such consortium existed and was
eligible. It then went ahead and considered the bid of MPC, to which
the Contract was eventually awarded, in gross violation of the former's
own bidding rules and procedures contained in its RFP. Therein lies
Comelec's grave abuse of discretion. (Emphasis and underscoring
supplied.)58
To make matters worse, the COMELEC in Information Technology
awarded the bid to the "consortium" despite some failed marks during
the technical evaluation.59 In the case at bar, the Smartmatic-TIM
Consortium passed the technical evaluation.
It is thus readily apparent that the joint venture of Smartmatic and TIM
is not attended by any of the deficiencies of the MP "consortium," as
the agreement in the instant case states with precision the "exact
nature and scope of the parties' respective undertakings,
commitments, deliverables and covenants."60 The petitioners' repeated
recourse to Information Technology betrays a highly myopic and
constricted view.
c.5 No nationality requirement is violated
Petitioners also contend that the joint venture agreement of TIM and
Smartmatic violates the Filipino-foreign equity ceiling, the Anti-Dummy
Law and COMELEC's own bidding requirements.
I concur fully with the ponencia of Mr. Justice Velasco on this point.
There is no constitutional or statutory provision classifying the lease or
provision of goods and technical services for the automation of an
election as a nationalized activity. To be sure, Section 12 of RA 8436,
as amended by RA 9369, explicitly authorizes the COMELEC to
procure supplies, equipment, materials, software, facilities, and other
services from foreign sources, as follows:
SEC. 12. Procurement of Equipment and Materials. - To achieve the
purpose of this Act, the Commission is authorized to procure, in
accordance with existing laws, by purchase, lease, rent or other forms
of acquisition, supplies, equipment, materials, software, facilities and
other services, from local or foreign sources free from taxes and import
duties, subject to accounting and auditing rules and regulations. With
respect to the May 10, 2010 elections and succeeding electoral
exercises, the system procured must have demonstrated capability
and been successfully used in a prior electoral exercise here or
abroad. Participation in the 2007 pilot exercise shall not be conclusive
of the system's fitness. (Emphasis supplied.)
Petitioners cannot rely on Executive Order No. 584 (EO 584),
containing the Seventh Regular Foreign Investment Negative List,
which cites "contracts for the supply of materials, goods and
commodities to [a] government-owned or controlled corporation,
company, agency or municipal corporation" as limited to forty percent
(40%) foreign equity. The reliance cannot be countenanced in light of
two basic principles of statutory construction.
First, leges posteriores priores contrarias abrogant. In case of an
irreconcilable conflict between two laws of different vintages, the later
enactment prevails.61 The rationale is simple: a later law repeals an
earlier one because it is the later legislative will. 62 RA 9369, which
allows the COMELEC to procure AES supplies and equipment from
foreign sources, became law in 2007, whereas EO 584 is an executive
issuance in 2006.
Second, lex specialis derogat generali. General legislation must give
way to special legislation on the same subject, and generally is so
interpreted as to embrace only cases in which the special provisions
are not applicable.63 In other words, where two statutes are of equal
theoretical application to a particular case, the one specially designed
therefor should prevail.64 RA 9369 specifically covers a well-defined
subject (i.e., procurement for election automation), whereas EO 584
has a more universal scope.
In sum, there is no constitutional or statutory Filipino-foreign equity
ceiling to speak of, and the Anti-Dummy Law does not find application
to the case at bar.
Nonetheless, I wish to clarify certain matters.
It appears that in preparing the bidder eligibility requirements, the
COMELEC, exercising the discretion granted by Section 12 of RA
8436, as amended by RA 9369, adopted the guidelines that were set
forth in the Implementing Rules and Regulations of RA 9184 (The
Government Procurement Reform Act). Thus, in Sections 2.2.1 to 2.2.4
of Part IX (B) of the TOR/RFP, the COMELEC invited the following to
bid for the Automation Project:
(1) Duly licensed Filipino citizens/proprietorships;
(2) Partnerships duly organized under the laws of the Philippines and
of which at least sixty percent (60%) of the interest belongs to citizens
of the Philippines;
(3) Corporations duly organized under the laws of the Philippines, and
of which at least sixty percent (60%) of the outstanding capital stock
belongs to citizens of the Philippines;
(4) Manufacturers, suppliers and/or distributors forming themselves
into a joint venture, i.e., a group of two (2) or more manufacturers,
suppliers and/or distributors, that intend to be jointly and severally
responsible or liable for a particular contract, provided that Filipino
ownership thereof shall be at least sixty percent (60%);
andcralawlibrary
(5) Cooperatives duly registered with the Cooperatives Development
Authority.
But for a few innocuous stylistic changes, this enumeration is an exact
reproduction of Section 23.11.165 of the Implementing Rules and
Regulations of RA 9184.
Per Smartmatic TIM Corporation's Articles of Incorporation, there is no
question that the JVC complied with the 60-40 equity ceiling provided
under the TOR/RFP. Out of a total paid-up capital
of P1,130,000,000.00, TIM contributed sixty percent (60%) thereof
(equivalent to P678,000,000.00), while Smartmatic paid the remaining
forty percent (40%) (equivalent to P452,000,000.00).
The petitioners, however, allege that the sixty percent (60%) interest of
TIM in the JVC was merely simulated. They point to certain provisions
in the JVA as denoting that effective control over Smartmatic TIM
Corporation was given to Smartmatic. Specifically, petitioners assail
the following:
(1) The mandatory presence of at least one of the nominated Directors
of Smartmatic to establish a quorum of the Board of Directors,
pursuant to Article 4.366 of the JVA;
(2) The veto power in the Board of Directors granted by TIM to
Smartmatic to authorize certain important financial and technical
actions, pursuant to Article 4.567 of the JVA;
(3) The mandatory presence of the Director representing Smartmatic to
establish a quorum of the Executive Committee (EXECOM), pursuant
to Article 4.768 of the JVA; andcralawlibrary
(4) The sole right of Smartmatic to nominate the (a) Chairman of the
Board, (b) the Treasurer, and (c) the Corporate Secretary, and TIM's
corresponding duty to elect said nominees, pursuant to Articles
4.1069 and 4.1170 of the JVA.
But far from establishing the tyranny of the minority, these provisions
may be viewed as legitimate minority protection devices. Through
them, Smartmatic sought to protect its huge investment in the
Automation Project. Without these protective provisions, Smartmatic
would be helplessly exposed to the risk of being outvoted on significant
corporate activities and decisions - including decisions on technical
matters falling within its field of expertise, for which it is primarily
responsible (as against TIM) under the express terms of the
COMELEC's bidding rules71 and the Automation Contract72 itself. If that
would come to pass, Smartmatic could not perform its part of the
Contract and the end result would be the ruin of its investment.
To be sure, our lawmakers wanted the foreign joint venture to be
autonomous in carrying out its technical functions, and intended to
protect it from the whims and caprices of the non-expert majority. This
can be gleaned from the April 20, 2009 hearing of the Joint Committee
on AES, during which the following exchanges were made:
MR. MELO. Here is a scenario, Your Honor. Scantron, for instance and
a Philippine Company, they have an agreement, an agreement, joint
venture agreement.
THE CHAIRMAN (REP. LOCSIN). And the one who carries it out will
[be] Scantron even if it's 40 percent?cralawred
MR. MELO. Scantron, let us say, wins. After they win, after Scantron
wins, now, the two, they form a company.
THE CHAIRMAN (REP. LOCSIN). Yes. But do you - will you check
that the ones who will carry out the project will be, in the case of
Smartmatic, the guys who actually conduct elections in Venezuela and
not some local boys who are just, you know, dreaming that they can do
it?cralawred
MR. MELO. But the contract will now be awarded in favor of the new
company?cralawred
THE CHAIRMAN (REP. LOCSIN). Yes. But who will implement
it?cralawred
MR. MELO. Yes, we will make them jointly and severally liable.
THE CHAIRMAN (REP. LOCSIN). I m not really worried nor do (sic)
am I concerned about punishing them up after the failure of elections. I
would just really want to make sure that the guys who will run this will
not be the local boys but the foreign boys who have actually done it
abroad. I don't want amateurs, you know, trying to prove yes, the
Filipino can.
MR. MELO. Yes, Your Honor, precisely. This is speaking my mind
alound (sic). Let us say, a foreign company goes into a partnership
who (sic) are co-venture (sic) in system with a Philippine company.
The Philippine company is usually taken for its expertise in the
dispersal of the machines because [the foreign company] does not
need another technical company expert in computers.
THE CHAIRMAN (REP. LOCSIN). It's the deployment of the machines.
MR. MELO. Deployment. x x x (Emphasis supplied)73
***
THE CHAIRMAN (SEN. ESCUDERO). x x x What legal methodology,
memorandum or agreement will you be requiring to make sure that it's
the foreigner who knows how to run it, who will actually run the [show]
and not be outvoted each time within the company, 60-40? I mean [the
Filipino company] can promise that, "Hindi ho, sila ang nakakaintindi,
sila bahala, kami roll-out lang." But what assurance do we have and
what legal document do you intend to require insofar as this is
concerned? (Emphasis supplied)74
***
THE CHAIRMAN (REP. LOCSIN). x x x As I said, one of the most
compelling arguments for the big guys to win, the foreigners, is that
they have a reputation to defend. No Filipino has a reputation to
defend in IT. In IT, there's none. The problem here is, as Senator
Escudero said, a 60 percent joint venture partner. Are there any
provisions you have made that would prevent them from interfering in
the technical aspects of the electronic elections? What if you have the
majority partners dictating how it will be done?
x x x
THE CHAIRMAN (REP. LOCSIN). You will have to put really strict
sanctions on any interference by the majority partner in the judgment
of the minority partner in implementing the majority project. I don't
know how that's done though. (Emphasis supplied)75
***
THE CHAIRMAN (REP. LOCSIN). The question we were asking - Our
apprehension here, Senator Escudero and myself, is that, will the 60
percent which has no track record and is Filipino and may have
political affiliations, would they be in a position to influence the 40
percent minority that is the expert in electronic elections? Would the 60
percent be able to compromise the integrity of the 40
percent?cralawred
MR. RAFANAN.76 Do you say, sir, bidder with political
connections?cralawred
THE CHAIRMAN (REP. LOCSIN). That's just an example. What we re
saying is that a 40 percent track record - the track record of the 40
percent partner, say, Sequoia or whatever. I mean, no question. They
re qualified but they re always in a minority position in the joint venture
company. What if the majority Filipino tells them to compromise the
integrity? What measures do you take? (Emphasis supplied)77
***
THE CHAIRMAN (SEN. ESCUDERO). x x x So, ang tanong ko[,] you
re awarding [the contract to] a company with a track record although
may minority, minority lang siya. How sure are you na hindi siya
didiktahan nung 60 percent na walang track record, walang
experience, so useless yung requirement natin na may track record ka
hindi naman siya ang masusunod, ang masusunod yung may-ari ng 60
percent na Filipino na walang track record at walang kaalam-alam
presumably.
x x x
THE CHAIRMAN (REP. LOCSIN). Senator Enrile, our worry is that the
60 percent may dictate on the expert 40 percent. Would a joint venture
contract be able to provide some autonomy to the 40 percent expert so
that they cannot be interfered with?cralawred
THE SENATE PRESIDENT. x x x [A] joint venture is a matter of
contract. You have to - apart from the legal requirement, you have to
embed into the joint venture contract the obligation of each of the joint
venturer.
THE CHAIRMAN (SEN. ESCUDERO). So, essentially...
THE SENATE PRESIDENT. Including their voice in the joint venture.
THE CHAIRMAN (SEN. ESCUDERO). So, essentially nga ho[,] we are
bound and doomed to award this contract to a company majority of
which will be owned by individuals or another company that has no
track record to speak of? Kasi yung obligasyon na nating i-award iyang
60/40 sa Filipino company, we are obligated by law, that's what you re
saying, to award it to a company majority of which will be owned by a
company or individuals without any track record whatsoever?cralawred
THE CHAIRMAN (REP. LOCSIN). But Senator Enrile, can the
Comelec require a particular joint venture contract that would specify
the particular obligations of the parties and in some cases that
obligation would be - would protect the minority's integrity in conducting
the election?
x x x
THE CHAIRMAN (SEN. ESCUDERO). x x x [F]or you to require or
impose a requirement saying that the 40 will control the 60 is a
circumvention, if at all, of the 60/40 rule as well.
THE CHAIRMAN (REP. LOCSIN). But would it not be a circumvention,
say, for voting purposes for control of the corporation but not for the
purely technical aspect of conducting an electronic election to protect
the integrity of that undertaking?cralawred
THE CHAIRMAN (SEN. ESCUDERO). Without arguing that point, I
may tend to agree with that point but the fact is, legally the question is
how will you be able to overcome it?cralawred
THE CHAIRMAN (REP. LOCSIN). Can you require that in your terms
of reference?cralawred
MR. MELO. I suppose, Your Honor. You re the expert here, Manong
Johnny. But in the joint venture, can it not be provided that the foreign
company shall have exclusive say on the technical aspect?cralawred
THE SENATE PRESIDENT. Puwede iyon.
MR. MELO. Iyon.
THE SENATE PRESIDENT. You can insist [on] that.
MR. MELO. Yes.
THE SENATE PRESIDENT. The Comelec can impose that.
MR. MELO. Yes, insofar as the technical aspect is concerned, it's only
- it's the foreign company, the supplier of the computers, of the
machines which will have exclusive say. And so the dispersal or the
deployment of the machines will be another matter. (Emphasis
supplied.)78
The petitioners find particularly repugnant Smartmatic's veto power in
the Board of Directors in respect of certain key financial and technical
actions. In my view, however, this is but a fair and reasonable check
against possible abuses by the majority stockholder. As Smartmatic is
the joint venture partner having the greater experience in automated
elections, it deemed it necessary to reserve to itself the veto power on
these important financial matters so as not to compromise the
technical aspects of the Automation Project. As far as matters other
than those provided in Article 4.5 are concerned, Smartmatic does not
have any veto right. This is clear from Article 4.4, which provides as
follows:
4.4 Resolution on matters other than those set forth in Article 4.5 below
shall be adopted by the vote of the majority of the Directors present
and constituting a quorum, except as otherwise provided by law.
The same conclusion may be obtained from the deliberations of the
Senate Committee on Constitutional Amendments, Revision of Codes
and Laws. The following exchanges from their June 23, 2009
hearing79 are illuminating on this point:
THE CHAIRMAN. I went through your JVA and I found some
provisions peculiar and interesting. In your JVA[, it] states that no
board resolution shall be passed - in the first place, three members of
the board will belong to TIM, local, two members of the board will
belong to Smartmatic, foreign, so 60-40 naman talaga iyon. My
question is, under your JVA[,] it says no resolution shall be passed
unless TIM with three votes, presumably majority already, can secure
the vote of Smartmatic, vice versa. But vice versa is expected because
you only have two votes. If TIM needs to secure one more vote from
you before they can do anything, number one, there is a potential for a
deadlock. Number two, is that not effective control or veto power over
the company that essentially overrides or circumvents the 60-40
requirement?cralawred
MR. FLORES. No, sir. That's a standard practice to protect minority
investors and it only relates to certain key decisions not to the whole
development of the project.
THE CHAIRMAN. Major decisions?cralawred
MR. FLORES. Yes, sir.
THE CHAIRMAN. We discussed this before[,] Chairman Melo,
remember?cralawred
MR. MELO. Yes, Your Honor. Precisely at that time it was the
suggestion of the committee, the Oversight Committee that major
decisions or decisions concerning technical matters, concerning the
machines will have to be made by Smartmatic. They cannot be
controlled by the local partner because, otherwise, baka ho hindi
naman expert 'yung local partner sa ano - so we follow that.
x x x
THE CHAIRMAN. But my question is, still there is a 60-40 requirement.
What if ayaw pumayag ng Smartmatic? So does the local company
have effective control over the joint venture company? x x x
MR. RAFANAN.80 Sir, concerning decisions that will pertain to
technical problems or trouble-shooting problems in the election, we are
providing in the contract that these matters will be entrusted to the
foreign corporation which is Smartmatic International.
THE SENATE PRESIDENT. I assume that this provision in their
agreement, between the joint venturers[,] is a function of trust between
them. I suppose they have just met in this particular venture and so
they do not know each other very well, so the foreign company will
naturally protect - want to protect itself that it will not be ousted from
the venture in case of - You know, you are dealing here with a certain
magnitude of financial benefits. So I suppose that is intended to protect
themselves.
x x x
THE CHAIRMAN. Sir, I ll give you an example.
THE SENATE PRESIDENT. As collectivity ha.
THE CHAIRMAN. This is what they will on requiring [Smartmatic's] one
vote even if TIM, the local company, already has three votes. Approval
of operating capital expenditures and budgets for the year; approval of
financial statements; election or removal of corporate officers - [We
are] not talking technical here yet. x x x Approval of financial plans;
borrowing, etcetera. Entering into or terminating an agreement
involving technology transfer; delegation of powers to directors, officers
and delegation of powers to committees. x x x
x x x
THE CHAIRMAN. Financial, appointing of officials.
THE SENATE PRESIDENT. Yes, if they can be removed, if they do
not have that veto power, the 60 percent can kick them out after they
get the contract.
x x x
THE CHAIRMAN. But wherever it is coming from...
THE SENATE PRESIDENT. As a lawyer, from my experience, we
have done that before in many cases in order to protect, to be fair, to
be equitable to the people who are coming here for the first time or
who are dealing with people that they do not know very
well.81 (Emphasis supplied.)
Petitioners also find objectionable Smartmatic's sole right to nominate
the Treasurer, Corporate Secretary and the Chairman of the Board,
and TIM's corresponding duty to elect said nominees. However, the
objection conveniently disregards the fact that, to maintain the balance
of power, TIM in turn has the sole right to nominate the President and
Chief Executive Officer and the Assistant Corporate Secretary of the
joint venture corporation.82 Pursuant to Article 4.11 of the JVA,
Smartmatic is in fact obliged to cause its Directors to vote for the
officers chosen by TIM. Moreover, as an added means to protect their
respective interests in the joint venture, Smartmatic and TIM further
agreed that for the validity of the resolutions contained therein, all
certifications to be issued must bear the signatures of both the
Corporate Secretary and the Assistant Corporate Secretary.83
In fine, the provisions assailed by Petitioners are reasonable under the
circumstances and should be upheld as legitimate minority protection
devices.
c.6 "Prior Successful Use" qualification has been complied with
The petitioners postulate that the PCOS machines offered by the
Smartmatic TIM Corporation have not been successfully used in an
electoral exercise in the Philippines or abroad, as required by Section
12 of RA 8436, as amended.84 A quick overview of the optical scan
technology is in order.
Optical scan or "Marksense" technology has been used for decades for
standardized tests such as the Scholastic Aptitude Test (SAT). 85 The
optical scan ballot is a paper-based technology that relies on
computers in the counting and canvassing process. Voters make their
choices by using a pencil or a pen to mark the ballot, typically by filling
in an oval or by drawing a straight line to connect two parts of an
arrow.86 The ballots are counted by scanners, which may be located
either at the precinct (in "precinct-count" systems) or at some central
location ("central-count" systems).87 If ballots are counted at the polling
place, voters put the ballots into the tabulation equipment, which scans
and tallies the votes.88 These tallies can be captured in removable
storage media, which are transported to a central tally location or are
electronically transmitted from the polling place to the central tally
location.89 If ballots are centrally counted, voters drop ballots into
sealed boxes; and, after the polls close, election officials transfer the
sealed boxes to the central location where they run the ballots through
the tabulation equipment.90
The central-count system (via the CCOS machines) was used during
the 2008 elections in all the provinces of the ARMM except in
Maguindanao. The COMELEC Advisory Council - created by RA 9369
to recommend to the COMELEC the "appropriate, secure, applicable,
and cost-effective technology" to be used in the automation of
elections - deployed various monitors from the DOST, PPCRV and
Consortium on Electoral Reforms to observe the usability of the
technologies used in the ARMM elections as well as to observe the
electoral process in general.91 The CCOS machines were assessed
before and during the actual elections, and the COMELEC Advisory
Council eventually determined that these machines sufficiently
complied with the minimum systems configuration specified in Section
6 of RA 9369.92
In light of this background, the question is whether the central-count
system used in 2008 may be considered as substantial compliance
with the "prior successful use" qualification set forth in Section 12 of
RA 8436, as amended.
With due respect, I answer in the affirmative. It is obvious that the
PCOS and CCOS machines are based on the same optical scan
technology. The sole difference is that the PCOS machines dispense
with the physical transportation of the ballots to the designated
counting centers, since the votes will be counted in the precinct itself
and the results electronically transmitted to the municipal, provincial
and national Board of Canvassers. Tellingly, but for their sweeping and
convenient conclusion that "[e]ven if a PCOS [machine] is an OMR
[Optical Mark Reader] [machine], nevertheless[,] it is totally different
from a CCOS [machine]," the petitioners were silent on this point. 93
In any event, the AES procured by COMELEC for the 2010 elections
has been successfully used in prior electoral exercises in (i) New
Brunswick, Canada; (ii) Ontario, Canada; and (iii) New York; the United
States of America. The petitioners nevertheless question the
certifications submitted to this effect, arguing that these were issued
not to the Smartmatic-TIM joint venture, but to a third party - Dominion
Voting Systems.
I find this argument meritless, for it foists unto the law an imaginary
requirement. As the COMELEC correctly observed, what the law
requires is that the system must have been successfully utilized in a
prior electoral exercise, not that the provider (i.e., Smartmatic TIM
Corporation) should have been the one that previously used or
employed the system. Considering that the system subject of the
certifications is the same one procured by the COMELEC for the 2010
elections, the prior successful use requirement has been adequately
met. At any rate, the clear terms of the Licensing Agreement between
Smartmatic and Dominion Voting Systems indicate that the former is
the entity licensed exclusively by the latter to use the system in the
Philippines.
c.7 COMELEC's determination as to minimum systems capabilities of
the PCOS machines must be respected
This Court is neither constitutionally permitted nor institutionally
outfitted to conduct a cost-benefit analysis of the system or of the
nuances of the available technology. It is ill-equipped to deal with the
complex and difficult problems of election administration. This
inordinately difficult undertaking requires expertise, planning, and the
commitment of resources, all of which are peculiarly within the
province of the legislative and the executive branches of government.
The petitioners contend that the PCOS machines do not comply with
the minimum system capabilities94 set forth by Section 6 of RA 8436, File properties of the
as amended. Then, in an entirely speculative exercise, they conjure a decrypted image file also
perturbing series of doomsday scenarios that would allegedly result revealed 200 dpi.
from using this particular technology: 'unaddressed logistical
nightmares,' 'failure of elections,' and 'massive disenfranchisement.'
6 Does the system scan in Yes. 30 shades of gray
grayscale? were scanned in the test
Let me preface my discussion of this issue by accentuating once more PCOS machine, 20 of which
the core of RA 8346, as amended: the COMELEC, an independent were recognized, exceeding
Constitutional Commission armed with specialized knowledge born of the required 4-bit/16 levels
years of experience in the conduct of elections, has the sole of gray as specified in Bid
prerogative to choose which AES to utilize.95 In carrying out this Bulletin No. 19.
mandate, Section 6 of the same law directs the COMELEC to develop
and adopt, with the assistance of the COMELEC Advisory Council, an
evaluation system to ascertain that the minimum system capabilities 7 Does the system require Yes. The system required
are met. authorization and the use of a security key
authentication of all with different sets of
The COMELEC did in fact adopt a rigid technical evaluation system operators, such as, but passwords/PINs for
composed of twenty-six criteria, against which the procured AES was not limited to, usernames Administrator and Operator
benchmarked by the TWG to determine its viability and concomitant and passwords, with users.
security.96 In this regard, the TWG ascertained that the PCOS multiple user access
machines "PASSED all tests as required in the 26-item criteria,"97 as levels?
follows:

8 Does the system have an Yes. The PCOS machine

electronic display? makes use of an LCD
ITEM98 REQUIREMENT REMARK / DESCRIPTION display to show information:

1 Does the system allow
manual feeding of a
ballot into the PCOS
machine?
2 Does the system scan a
ballot sheet at the speed
of at least 2.75 inches
per second?
Yes. The proposed PCOS  if a ballot may be
machine accepted the test inserted into the
ballots which were manually machine;
fed one at a time.  if a ballot is being
processed;
 if a ballot is being
Yes. A 30-inch ballot was rejected;
used in this test. Scanning
the 30-inch ballot took 2.7  on other
seconds, which translated instructions and
to 11.11 inches per second. information to the
voter/operator.

3 Is the system able to Yes. The system captured

capture and store in an
encrypted format the
digital images of the
ballot for at least 2,000
ballot sides (1,000
ballots, with back to back
printing)?
4 Is the system a fully
integrated single device
as described in item no.
4 of Component 1-B?
5 Does the system have a
scanning resolution of at
least 200 dpi?
the images of 1,000 test
ballots in encrypted format.
Each of the 1,000 image
files contained the images
of the front and back sides
of the ballot, totaling 2,000
ballot sides.
To verify the captured ballot
images, decrypted copies of
the encrypted files were
also provided. The same
were found to be digitalized
representations of the
ballots cast.
Yes. The proposed PCOS is
a fully integrated single
device, with built-in printer
and built-in data
communication ports
(Ethernet and USB).
Yes. A portion of a filled[-]up
marked oval was blown up
using image editor software
to reveal the number of dots
per inch. The sample image
showed 200 dpi.
9 Does the system employ
error handling
procedures, including,
but not limited to, the use
of error prompts and
other related
instructions?
10 Does the system count
the voter's vote as
marked on the ballot with
an accuracy rating of at
least 99.995 %?
Yes. The PCOS showed
error messages on its
screen whenever a ballot is
rejected by the machine and
gives instructions to the
voter on what to do next, or
when there was a ballot jam
error.
Yes. Two rounds of tests
were conducted for this test
using only valid
marks/shades on the
ballots. 20,000 marks were
required to complete this
test, with only one (1)
allowable reading error.
625 ballots with 32 marks
each were used for this test.
During the comparison of
the PCOS-generated results
with the manually
prepared/predetermined
results, it was found out that
there were seven (7) marks
which were inadvertently
missed out during ballot
preparation by the TWG.
Although the PCOS-
 generated results turned out
to be 100% accurate, the
20,000-mark [requirement]
was not met thereby
requiring the test to be
repeated.
To prepare for other
possible missed out marks,
650 ballots (with 20,800
marks) were used for the
next round of test, which
also yielded 100%
accuracy.
11 Does the system detect Yes. This test made use of
and reject fake or one (1) photocopied ballot
spurious, and and one (1) "re-created"
previously'scanned ballot. Both were rejected
ballots? by the PCOS.
The test for the rejection of
previously-scanned (sic)
ballots was done during the
end-to-end demonstration.
12 Does the system scan Yes. Four (4) ballots with
both sides of a ballot and valid marks were fed into
in any orientation in one the PCOS machine in the
pass? four (4) portrait orientations
specified in Bid Bulletin No.
4 (either back or front,
upside down or right side
up), and all were accurately
captured.
13 Does the system have Yes. The system was able
necessary safeguards to to recognize if the security
determine the features on the ballot are
authenticity of a ballot, "missing".
such as, but not limited
to, the use of bar codes,
Aside from the test on the
holograms, color shifting
fake or spurious ballots
ink, micro printing, to be
(Item No. 11), three (3) test
provided on the ballot,
which can be recognized
ballots with tampered bar
codes and timing marks
by the system?
were used and were all
rejected by the PCOS
machine.
The photocopied ballot in
the test for Item No. 11 was
not able to replicate the UV
ink pattern on the top
portion of the ballot[,]
causing the rejection of the
ballot.
14 Are the names of the Yes. Two sample test
candidates pre-printed ballots of different lengths
on the ballot? were provided: one (1) was
14 inches long while the
other was 30 inches long.
Both were 8.5 inches wide.
The first showed 108 pre-
printed candidate names for
fourteen (14) contests /
positions, including two (2)
15 Does each side of the
ballot sheet
accommodate at least
300 names of candidates
with a minimum font size
of 10, in addition to other
mandatory information
required by law?
16 Does the system
recognize full shade
marks on the appropriate
space on the ballot
opposite the name of the
candidate to be voted
for?
17 Does the system
recognize partial shade
marks on the appropriate
space on the ballot
opposite the name of the
candidate to be voted
for?
18 Does the system
recognize check marks
on the appropriate space
on the ballot opposite the
name of the candidate to
be voted for?
19 Does the system
recognize x marks on the
appropriate space on the
ballot opposite the name
of the candidate to be
voted for?
survey questions on gender
and age group, and a
plebiscite question.
The other showed 609 pre-
printed candidate names,
also for fourteen (14)
positions, including three (3)
survey questions.
Yes. The 30-inch ballot,
which was used to test Item
No. 2, contained 309 names
for the national positions
and 300 names for local
positions. The total pre-
printed names on the ballot
totaled 609.
This type of test ballot was
also used for test voting by
the public, including
members of the media.
Arial Narrow, font size 10,
was used in the printing of
the candidate names.
Yes. The ballots used for
the accuracy test (Item No.
10), which made use of full
shade marks, were also
used in this test and were
accurately recognized by
the PCOS machine.
Yes. Four (4) test ballots
were used with one (1)
mark each per ballot
showing the following pencil
marks:
 top half shade;
 bottom half
shade;
 left half shade;
and
 right half shade[.]
These partial shade marks
were all recognized by the
PCOS machine.
Yes. One (1) test ballot with
one check mark, using a
pencil, was used for this
test. The mark was
recognized successfully.
Yes. One (1) yes ballot with
one x mark, using a pencil,
was used for this test. The
mark was recognized
successfully.
20 Does the system Yes. The 1000 ballots used
recognize both pencil in the accuracy test (Item
and ink marks on the No. 10) were marked using
ballot? the proposed marking pen
by the bidder.
A separate ballot with one
(1) pencil mark was also
tested. This mark was also
recognized by the PCOS
machine. Moreover, the
tests for Items No. 17, 18
and 19 were made using
pencil marks on the ballots.
21 In a simulation of a Yes. Five (5) ballots were
system shut down, does used in this test. The power
the system have error cord was pulled from the
recovery features? PCOS while the 3rd ballot
was in the middle of the
scanning procedure, such
that it was left "hanging" in
the ballot reader.
After resumption of the
regular power supply, the
PCOS machine was able to
restart successfully with
notification to the operator
that there were two (2)
ballots already cast in the
machine. The "hanging" 3rd
ballot was returned to the
operator and was able to be
re-fed into the PCOS
machine. The marks on all
five (5) were all accurately
recognized.
22 Does the system have Yes. The PCOS was able to
transmission and transmit to the CCS during
consolidation/canvassing the end-to-end
capabilities? demonstration using [a]
Globe prepaid [i]nternet kit.
23 Does the system Yes. The PCOS saves a
generate a backup copy backup copy of the ERs,
of the generated reports, ballot images, statistical
in a removable data report and audit log into a
storage device? Compact Flash (CF) card.
24 Does the system have Yes. A 12-volt 18AH battery
alternative power lead acid was used in this
sources, which will test.
enable it to fully operate
for at least 12 hours?
The initial test had to be
repeated due to a short
circuit, after seven (7) hours
from start-up without ballot
scanning. This was
explained by TIM-
Smartmatic to be (sic)
caused by non-computable
wiring of the battery to the
PCOS. A smaller wire than
what is required was
inadvertently used, likening
the situation to incorrect
wiring of a car battery. Two
(2) COMELEC electricians
were called to confirm TIM-
Smartmatic's explanation.
The PCOS machine was
connected to regular power
and started up successfully.
The following day, the "re-
test" was completed in 12
hours and 40 minutes,
starting from the
initialization to the printing
of the reports. 984 ballots
were fed into the machine.
The ER, as generated by
the PCOS[,] was compared
with the predetermined
result, showing 100%
accuracy.
25 Is the system capable of Yes. The PCOS prints
generating and printing reports via its built-in
reports? printer[,] which [reports]
include:
1. Initialization Report
2. Election Returns (ER)
3. PCOS Statistical Report
4. Audit Log
26 Did the bidder Yes. An end-to-end
successfully demonstrate demonstration of all
EMS, voting, counting, proposed systems was
consolidation/canvassing presented, covering:
and transmission? (see
B. Demo model)
 importing of
election data into
the EMS;
 creation of
election
configuration data
for the PCOS and
the CCS using
EMS;
 creation of ballot
faces using EMS;
 configuring the
PCOS and the
CCS using the
EMS-generated
election
configuration file;
 initialization,
operation,
generation of
reports and
backup using the
PCOS;
 electronic
transmission of
results ... :
o from the PCOS
to city/municipal
CCS and to the

central server;
o from the
city/municipal
CCS to the
provincial CCS;
o from the
provincial CCS to
the national CCS;
 receipt and
canvass of
transmitted
results:
o by the
city/municipal
CCS from the
PCOS;
o by the provincial
CCS from the
city/municipal
CCS;
o by the national
CCS from the
provincial CCS;
 receipt of
transmitted
results by the
central server
from the PCOS
We cannot close our eyes to the fact that the TWG's technical
evaluation of the AES was corroborated by knowledgeable and
impartial third parties: the law-mandated Official Observers. In their
respective reports to the COMELEC, the PPCRV and the Office of the
Ombudsman found the system procured and the attendant COMELEC
proceedings to be consistent, transparent, and in consonance with the
relevant laws, jurisprudence and the terms of reference. 99
Accordingly, I do not find any grave abuse of discretion on the part of
the COMELEC in awarding the Automation Contract to the Smartmatic
TIM Corporation. It has approved the PCOS system, and we are bereft
of the right to supplant its judgment. Hoary is the principle that the
courts will not interfere in matters that are addressed to the sound
discretion of government agencies entrusted with the regulation of
activities coming under their special technical knowledge and
training.100 Our disquisition in the seminal case Sumulong v.
COMELEC101again finds cogent application:
The Commission on Elections is a constitutional body. It is intended to
play a distinct and important part in our scheme of government. In the
discharge of its functions, it should not be hampered with restrictions
that would be fully warranted in the case of a less responsible
organization. The Commission may err, so this court may also. It
should be allowed considerable latitude in devising means and
methods that will insure the accomplishment of the greater objective
for which it was created - free, orderly and honest elections. We may
not fully agree with its choice of means but unless these are clearly
illegal or constitute gross abuse of discretion, this court should not
interfere. Politics is a practical matter, and political questions must be
dealt with realistically - not from the standpoint of pure theory. The
Commission on Elections, because of its fact-finding facilities, its
contacts with political strategists, and its knowledge derive from actual
experience in dealing with political controversies, is in a peculiarly
advantageous position to decide complex political questions.
x x x
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, ..., we must not by any
excessive zeal take away from the Commission on Elections the
initiative which by constitutional and legal mandates properly belongs
to it. Due regard to the independent character of the Commission, as
ordained in the Constitution, requires that the power of this Court to
review the acts of that body should, as a general proposition, be used
sparingly, but firmly in appropriate cases. We are not satisfied that the
present suit is one of such cases. (Emphasis supplied.)
As the ultimate guardian of the Constitution, we have the distinguished
but delicate duty of determining and defining constitutional meaning,
divining constitutional intent, and deciding constitutional
disputes.102Nonetheless, this power does not spell judicial superiority
(for the judiciary is co-equal with the other branches) or judicial tyranny
(for it is supposed to be the least dangerous branch).103 Thus,
whenever the Court exercises its function of checking the excesses of
any branch of government, it is also duty-bound to check itself.104 The
system of divided and interlocking powers of the branches of
government are carefully blended so as to produce a complex system
of checks and balances that preserve the autonomy of each branch,
without which independence can become supremacy.
Petitioners disparage the technical test and end-to-end demonstration
conducted by the COMELEC for having been done merely for media
mileage. This baseless accusation is easily dismissed by repairing to
the presumption of regularity of official acts. As we ruled in The
Province of Agusan del Norte v. Commission on Elections, et al.:
Appropriately, the Constitution invests the COMELEC with broad
power to enforce and administer all laws and regulations relative to the
conduct of an election, plebiscite and other electoral exercises. In the
discharge of its legal duties, the COMELEC is provided by the law with
tools, ample wherewithal, and considerable latitude in adopting means
that will ensure the accomplishment of the great objectives for which it
was created - to promote free, orderly and honest
elections.105 Conceived by the charter as the effective instrument to
preserve the sanctity of popular suffrage, endowed with independence
and all the needed concomitant powers, COMELEC deserves to be
accorded by the Court the greatest measure of presumption of
regularity in its course of action and choice of means in performing its
duties, to the end that it may achieve its designed place in the
democratic fabric of our government.106 (Emphasis supplied.)
The COMELEC is a constitutional body, mandated to play a distinct
and important role in the governmental scheme. In the performance of
its constitutional duties, it must be given a range of authority and
flexibility, for the art of good government requires cooperation and
harmony among the branches. We may not agree fully with the choices
and decisions that the COMELEC makes, but absent any constitutional
assault, statutory breach or grave abuse of discretion, we should never
substitute our judgment for its own.
c.8 No abdication by the COMELEC of its duty to enforce election laws
The petitioners assert that the COMELEC abdicated its constitutional
duty to enforce and administer all laws relative to the conduct of
elections, and to decide all questions affecting elections when it
entered into the Automation Contract with Smartmatic TIM
Corporation.
Article 3.3 of the contract for the 2010 Elections Automation Project
provides:
Article 3.3 The PROVIDER shall be liable for all its obligations under
this Project, and the performance of portions thereof by other persons
or entities not parties to this Contract shall not relieve the PROVIDER
of said obligations and concomitant liabilities.
SMARTMATIC, as the joint venture partner with the greater track
record in automated elections, shall be in charge of the technical
aspects of the counting and canvassing software and hardware,
including transmission configuration and system integration.
SMARTMATIC shall also be primarily responsible for preventing and
troubleshooting technical problems that may arise during the election.
The PROVIDER must provide to SMARTMATIC at all times the
support required to perform the above responsibilities. (Emphasis
supplied.)
Petitioners claim that under this Article 3.3, the COMELEC has
surrendered to Smartmatic the supervision and control of the system to
be used for the AES in violation of section 26 of RA 8436.
The petitioners also refer to COMELEC Bid Bulletin No. 10, 107 which
was made an integral part of the Automation Contract by virtue of
Articles 21.1 and 21.4 of the contract.108 Bid Bulletin No. 10 provides
that the "digital signature shall be assigned by the winning bidder to all
members of the Board of Election Inspectors (BOI) and the city,
municipal, provincial or district Board of Canvassers (BOC)." Since
Smartmatic would have access to the digital signatures and would
have the authority to assign the access keys to the BEI and BOC, the
petitioners readily conclude that the COMELEC has abdicated its
constitutional mandate to enforce election laws. What the petitioners
failed to consider is that, although the digital signature shall be
assigned by the winning bidder, Bid Bulletin No. 10 further provides
that the certificate of authority for the digital signatures must still be
approved by the COMELEC. Thus, the COMELEC retains control over
the process of generation and distribution of the digital signatures.
Abdication denotes a relinquishment or surrender of authority, which
has not been done by the COMELEC. Part II of the TOR/RFP
provides:
The Commission on Elections (COMELEC), through its Bids and
Awards Committee (BAC), is currently accepting bids for the lease,
with an option to purchase, of an automated election system (AES)
that will meet the following needs:
x x x
6. A complete solutions provider, and not just a vendor, which can
provide experienced and effective overall nationwide project
management service and total customer support (covering all areas of
project implementation including technical support, training, information
campaign support, civil and electrical works service, warehousing,
deployment, installation and pullout, contingency planning, etc.), under
COMELEC supervision and control, to ensure effective and successful
implementation of the Project. (Emphasis supplied.)
The COMELEC identified the type of technology, specifications and
capabilities of the system to be used in the 2010 elections; and the
bidders were required to submit their bids in accordance with the
COMELEC's stipulations. All the choices made by the winning bidder
were to be subject to approval by the COMELEC, and "the final design
and functionality of the system shall still be subject to [its] final
customization requirements."109
It is clear that the COMELEC has not abdicated its constitutional and
legal mandate to control and supervise the elections. Smartmatic and
TIM are merely service providers or lessors of goods and services to
the Commission. Indeed, Article 6.7 of the Automation Contract,
provides that "the entire process of voting, counting, transmission,
consolidation and canvassing of votes shall be conducted by
COMELEC's personnel and officials."
This control and supervision by the COMELEC was assured in the
June 23, 2009 hearing of the Senate Committee on Constitutional
Amendments and Revision of Codes and Laws. This is reflected in the
following exchange between Senator Francis Escudero and
COMELEC Executive Director Jose Tolentino, thus:
"THE CHAIRMAN. Will you deputize the workforce of the winning
bidder? Or are you going to deputize by way of additional technological
support the students?cralawred
MR. TOLENTINO. It would be the students, Mr. Chairman, whom we
will deputize.
With respect to the providers (sic) technical support, we consider them
as partners. So, there is really no need for us to deputize them
because the supervision and control over the counting center would be
solely on the part of the Comelec.
THE CHAIRMAN. Pero pwede ho nilang pakialaman 'yung makina,
hindi po ba? Puwede nilang kalikutin 'yon, galawin 'yon, kasi nga -
kung may palpak, di ba?cralawred
So they re employees of Smartmatic without any counterpart
authorization or deputization from Comelec. So, anyone can just walk
in [and] say, "I am an employee of Smartmatic. Something is wrong
with the machine. I ll check it."
MR. TOLENTINO. No. It doesn't work that way, Mr. Chairman.
First of all, aside from our EO who would be going around all over the
municipality to check on the polling centers, Comelec aside from our
Information Technology Department personnel, would also be going
around to determine the status of the machines on election day.
And I am even sure that the watchers of the political parties and the
candidates will [not] allow anyone to touch a machine if he is not a
member of the Board of Election Inspector (sic).
THE CHAIRMAN. But sir, the workforce of on-site technicians are not
allowed to touch the machines? Something is wrong with the machine,
who is authorized to...
MR. TOLENTINO. Yes, sir. Only when there is a problem with the
machine.
THE CHAIRMAN. Precisely my point, sir. So, then these people be at
least known to Comelec.
MR. TOLENTINO. Yes, Mr. Chairman. In fact, they ll be given
appropriate identification cards...
THE CHAIRMAN. From Comelec.
MR. TOLENTINO. Yes, Mr. Chairman.
THE CHAIRMAN. That was my question, sir. Because you said a while
ago, they re employees only of Smartmatic and you have BEI, anyway.
So, ... under the control and supervision din sila ng Comelec.
MR. TOLENTINO. Yes, Mr. Chairman.
THE CHAIRMAN. Yes." (Emphasis supplied.)110
Finally, the power and duty of the COMELEC to administer election
laws and to have control and supervision over the automated elections
is not incompatible with the decision to subcontract services that may
be better performed by those who are well-equipped to handle
complex technological matters with respect to the implementation of
the AES. The subcontractor cannot act independently of the
COMELEC.
D. Conclusion
We are not unaware of the many doomsday scenarios peddled by
doubting Thomases if the coming May 2010 elections will be fully
automated. To downgrade these scenarios, let it be emphasized that
the PCOS System procured by COMELEC is a paper-based system. It
has a provision for system auditability and a voter-verified paper trail.
The official ballots may be compared with their digital images stored in
the memory cards. All actions done on the machine are stored and can
be printed out by the BEI chairperson as an audit log, which includes
time stamps. And in the event of problems arising from non-functioning
PCOS machines, the official ballots cast in the precincts, which have
previously been fed into the locked ballot box, could be used for a
manual recount. With these safeguards, the fear of automation failure
should not overwhelm us.
We have been bedevilled in the past by elections that are not free, fair
and honest. These elections have made a mockery of our democracy
for they frustrated the sovereign right of the people to choose who
ought to rule them. These elections have also resulted in instability of
governments whose legitimacy has been placed in doubt. All these
elections were conducted manually. For the first time, we shall be
conducting our May 2010 elections through full automation. To be
sure, full automation will not completely cleanse the dirt in our electoral
system. But it is a big forward step which can lead us to the gateway of
real democracy where the vote of the people is sacred and supreme.
Accordingly, I vote to DISMISS the petition.
Motion for reconsideration
EN BANC
G.R. No. 188456 February 10, 2010
H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROMEL R.
BAGARES, ALLAN JONES F. LARDIZABAL, GILBERT T. ANDRES,
IMMACULADA D. GARCIA, ERLINDA T. MERCADO, FRANCISCO
A. ALCUAZ, MA. AZUCENA P. MACEDA, and ALVIN A.
PETERS, Petitioners,
vs.
COMMISSION ON ELECTIONS, Represented by HON. CHAIRMAN
JOSE MELO, COMELEC SPECIAL BIDS and AWARDS
COMMITTEE, represented by its CHAIRMAN HON. FERDINAND
RAFANAN, DEPARTMENT OF BUDGET and MANAGEMENT,
represented by HON. ROLANDO ANDAYA, TOTAL INFORMATION
MANAGEMENT CORPORATION and SMARTMATIC
INTERNATIONAL CORPORATION, Respondents.
PETE QUIRINO-QUADRA, Petitioner-in-Intervention.
SENATE OF THE PHILIPPINES, represented by its President,
JUAN PONCE ENRILE, Movant-Intervenor.
RESOLUTION
VELASCO, JR., J.:
By Decision dated September 10, 2009, the Court denied the petition
of H. Harry L. Roque, Jr., et al. for certiorari, prohibition, and
mandamus to nullify the contract-award of the 2010 Election
Automation Project to the joint venture of Total Information
Management Corporation (TIM) and Smartmatic International
Corporation (Smartmatic). The Court also denied the petition-in-
intervention of Pete Q. Quadra, praying that the respondents be
directed to implement the minimum requirements provided under pars.
(f) and (g), Section 6 of Republic Act No. (RA) 8436, or the Election
Modernization Act, as amended by RA 9369.
Petitioners Roque, et al. are again before the Court on a motion for
reconsideration, as supplemented, praying, as they did earlier, that the
contract award be declared null and void on the stated ground that it
was made in violation of the Constitution, statutes, and
jurisprudence.1 Intervening petitioner also interposed a similar motion,
but only to pray that the Board of Election Inspectors be ordered to
manually count the ballots after the printing and electronic transmission
of the election returns.
To both motions, private respondents TIM and Smartmatic, on the one
hand, and public respondents Commission on Elections (Comelec), et
al., on the other, have interposed their separate comments and/or
oppositions.
As may be recalled, the underlying petition for certiorari, etc. on its face
assailed the award by Comelec of the poll automation project to the
TIM-Smartmatic joint venture, the challenge basically predicated on the
non-compliance of the contract award with the pilot-testing
requirements of RA 9369 and the minimum system capabilities of the
chosen automated election system (AES), referring to the Precinct
Count Optical Scan (PCOS) system. The non-submission of
documents to show the existence and scope of a valid joint venture
agreement between TIM and Smartmatic was also raised as a
nullifying ground, albeit later abandoned or at least not earnestly
pursued.
The Court, in its September 10, 2009 Decision, dismissed the petition
and the petition-in-intervention on the following main grounds: (1) RA
8436, as amended, does not require that the AES procured or, to be
used for the 2010 nationwide fully automated elections must, as a
condition sine qua non, have been pilot-tested in the 2007 Philippine
election, it being sufficient that the capability of the chosen AES has
been demonstrated in an electoral exercise in a foreign jurisdiction; (2)
Comelec has adopted a rigid technical evaluation mechanism to
ensure compliance of the PCOS with the minimum capabilities
standards prescribed by RA 8436, as amended, and its determination
in this regard must be respected absent grave abuse of discretion; (3)
Comelec retains under the automation arrangement its supervision,
oversight, and control mandate to ensure a free, orderly, and honest
electoral exercise; it did not, by entering into the assailed automation
project contract, abdicate its duty to enforce and administer all laws
relative to the conduct of elections and decide, at the first instance, all
questions affecting elections; and (4) in accordance with contract
documents, continuity and back-up plans are in place to be activated in
case the PCOS machines falter during the actual election exercise.
Petitioners Roque, et al., as movants herein, seek a reconsideration of
the September 10, 2009 Decision on the following issues or grounds:
1. The Comelec’s public pronouncements show that there is
a "high probability" that there will be failure of automated
elections;
2. Comelec abdicated its constitutional functions in favor of
Smartmatic;
3. There is no legal framework to guide the Comelec in
appreciating automated ballots in case the PCOS machines
fail;
4. Respondents cannot comply with the requirements of RA
8436 for a source code review;
5. Certifications submitted by private respondents as to the
successful use of the machines in elections abroad do not
fulfill the requirement of Sec. 12 of RA 8436;
6. Private respondents will not be able to provide
telecommunications facilities that will assure 100%
communications coverage at all times during the conduct of
the 2010 elections; and
 7. Subcontracting the manufacture of PCOS machines to
Quisdi violates the Comelec’s bidding rules.
Both public and private respondents, upon the other hand, insist that
petitioners’ motion for reconsideration should be held devoid of merit,
because the motion, for the most part, either advances issues or
theories not raised in the petition for certiorari, prohibition, and
mandamus, and argues along speculative and conjectural lines.
Upon taking a second hard look into the issues in the case at bar and
the arguments earnestly pressed in the instant motions, the Court
cannot grant the desired reconsideration.
Petitioners’ threshold argument delves on possibilities, on matters that
may or may not occur. The conjectural and speculative nature of the
first issue raised is reflected in the very manner of its formulation and
by statements, such as "the public pronouncements of public
respondent COMELEC2 x x x clearly show that there is a high
probability that there will be automated failure of elections"; 3 "there is a
high probability that the use of PCOS machines in the May 2010
elections will result in failure of elections";4 "the unaddressed logistical
nightmares—and the lack of contingency plans that should have been
crafted as a result of a pilot test—make an automated failure of
elections very probable";5 and "COMELEC committed grave abuse of
discretion when it signed x x x the contract for full automation x x x
despite the likelihood of a failure of elections."6
Speculations and conjectures are not equivalent to proof; they have
little, if any, probative value and, surely, cannot be the basis of a sound
judgment.
Petitioners, to support their speculative venture vis-à-vis the possibility
of Comelec going manual, have attributed certain statements to
respondent Comelec Chairman Melo, citing for the purpose a news
item on Inquirer.net, posted September 16, 2009.7
Reacting to the attribution, however, respondents TIM and Smartmatic,
in their comment, described the Melo pronouncements as made in the
context of Comelec’s contingency plan. Petitioners, however, the same
respondents added, put a misleading spin to the Melo pronouncements
by reproducing part of the news item, but omitting to make reference to
his succeeding statements to arrive at a clearer and true picture.
Private respondents’ observation is well-taken. Indeed, it is easy to
selectively cite portions of what has been said, sometimes out of their
proper context, in order to assert a misleading conclusion. The effect
can be dangerous. Improper meaning may be deliberately attached to
innocent views or even occasional crude comments by the simple
expediency of lifting them out of context from any publication. At any
event, the Court took it upon itself to visit the website, whence
petitioners deduced their position on the possible failure of automated
elections in problem areas and found the following items:
Allaying fears of failure of elections in 2010, the x x x [Comelec] said it
will prepare for manual balloting, especially for areas with problems in
electricity and telecommunications network coverage. x x x
"Aside from preparations for poll automation, Comelec is also
preparing for manual elections sa mga liblib na lugar [in remote places]
x x x, provinces with no electricity and would have issues in electronic
transmission. We are ready for manual polls in at least 30 percent or
50 percent of the country as a last contingency measure in case the
contingency plans for automation are difficult to implement," said Melo.
The poll chief was reacting to statements expressing the
possibility of failure of elections due to the novelty of poll
automation.
"The occurrence of nationwide failure of elections as alleged by
doomsayers is impossible. Under the laws of probability, all 80,000
PCOS machines nationwide cannot breakdown. Maybe several would
but we have standby units for this and we also have preparations for
manual elections," he said.8 (Emphasis added.)
Petitioners next maintain that the Comelec abdicated its constitutional
mandate9 to decide all questions affecting elections when, under
Article 3.310 of the poll automation contract, it surrendered control of
the system and technical aspects of the 2010 automated elections to
Smartmatic in violation of Sec. 2611 of RA 8436. Comelec, so
petitioners suggest, should have stipulated that its Information
Technology (IT) Department shall have charge of the technical aspects
of the elections.
Petitioners’ above contention, as well as the arguments, citations, and
premises holding it together, is a rehash of their previous position
articulated in their memorandum12 in support of their petition. They
have been considered, squarely addressed, and found to be without
merit in the Decision subject hereof. The Court is not inclined to
embark on another extended discussion of the same issue again.
Suffice it to state that, under the automation contract, Smartmatic is
given a specific and limited technical task to assist the Comelec in
implementing the AES. But at the end of the day, the Smarmatic-TIM
joint venture is merely a service provider and lessor of goods and
services to the Comelec, which shall have exclusive supervision and
control of the electoral process. Art. 6.7 of the automation contract
could not have been more clear:
6.7 Subject to the provisions of the General Instructions to be issued
by the Commission En Banc, the entire process of voting, counting,
transmission, consolidation and canvassing of votes shall [still] be
conducted by COMELEC’s personnel and officials and their
performance, completion and final results according to specifications
and within specified periods shall be the shared responsibility of
COMELEC and the PROVIDER. (Emphasis added.)
The aforequoted provision doubtless preserves Comelec’s
constitutional and statutory responsibilities. But at the same time, it
realistically recognizes the complexity and the highly technical nature
of the automation project and addresses the contingencies that the
novelty of election automation brings.
Petitioners’ posture anent the third issue, i.e, there no is legal
framework to guide Comelec in the appreciation of automated ballots
or to govern manual count should PCOS machines fail, cannot be
accorded cogency. First, it glosses over the continuity and back-up
plans that would be implemented in case the PCOS machines falter
during the 2010 elections.13 The overall fallback strategy and options to
address even the worst-case scenario—the wholesale breakdown of
the 80,000 needed machines nationwide and of the 2,000 reserved
units—have been discussed in some detail in the Decision subject of
this recourse. The Court need not belabor them again.
While a motion for reconsideration may tend to dwell on issues already
resolved in the decision sought to be reconsidered—and this should
not be an obstacle for a reconsideration—the hard reality is that
petitioners have failed to raise matters substantially plausible or
compellingly persuasive to warrant the desired course of action.
Second, petitioners’ position presupposes that the Comelec is, in the
meanwhile, standing idly by, totally unconcerned with that grim
eventuality and the scenarios petitioners envision and depict. Comelec,
to reiterate, is the constitutional body tasked to enforce and administer
all laws and regulations relative to the conduct of an election. In the
discharge of this responsibility, Comelec has been afforded enough
latitude in devising means and methods that would enable it to
accomplish the great objective for which it was created. In the matter of
the administration of laws relative to the conduct of elections, the
Court—or petitioners for that matter—must not, by any preemptive
move or any excessive zeal, take away from Comelec the initiative that
by law pertains to it.14 It should not be stymied with restrictions that
would perhaps be justified in the case of an organization of lesser
responsibility.15
Significantly, petitioners, in support of their position on the lack-of-
legal-framework issue, invoke the opinion of Associate, later Chief,
Justice Artemio Panganiban in Loong v. Comelec,16 where he made
the following observations: "Resort to manual appreciation of the
ballots is precluded by the basic features of the automated election
system,"17 and "the rules laid down in the Omnibus Election Code
(OEC) for the appreciation and counting of ballots cast in a manual
election x x x are inappropriate, if not downright useless, to the proper
appreciation and reading of the ballots used in the automated
system."18 Without delving on its wisdom and validity, the view of
Justice Panganiban thus cited came by way of a dissenting opinion. As
such, it is without binding effect, a dissenting opinion being a mere
expression of the individual view of a member of the Court or other
collegial adjudicating body, while disagreeing with the conclusion held
by the majority.19
Petitioners insist next that public respondents cannot comply with the
requirement of a source code20 review as mandated by Sec. 14 of RA
8436, as amended, which provides:
SEC. 14. Examination and Testing of Equipment or Device of the AES
and Opening of the Source Code of Review.—Once an AES
Technology is selected for implementation, the Commission shall
promptly make the source code of that technology available and open
to any interested political party or groups which may conduct their own
review thereof.
Pursuing the point, after citing a commentary of an IT expert on the
importance of a source code review, petitioners state the observation
that "there are strong indications of [the inability] to comply x x x since
the source code, which runs the PCOS machines, will effectively be
kept secret from the people."21
Again, petitioners engage in an entirely speculative exercise, second-
guessing what the Comelec can and will probably do, or what it cannot
and probably will not do, with respect to the implementation of a
statutory provision. The fact that a source code review is not expressly
included in the Comelec schedule of activities is not an indication, as
petitioners suggest, that Comelec will not implement such review.
Comelec, in its Comment on the Motion for Reconsideration, manifests
its intention to make available and open the source code to all political
and interested parties, but under a controlled environment to obviate
replication and tampering of the source code, thus protecting, in the
process, the intellectual proprietary right of Smartmatic to the source
code. Absent compelling proof to the contrary, the Court accords the
Comelec, which enjoys the presumption of good faith in the
performance of its duties in the first place, the benefit of the doubt.
And going to another but recycled issue, petitioners would have the
Court invalidate the automation contract on the ground that the
certifications submitted by Smartmatic during the bidding, showing that
the PCOS technology has been used in elections abroad, do not
comply with Sec. 1222 of RA 8436.
We are not convinced.
As stressed in our September 10, 2009 Decision, the AES chosen by
Comelec for the 2010 elections has been successfully deployed in
previous electoral exercises in foreign countries, such as Ontario,
Canada and New York, USA,23 albeit Smartmatic was not necessarily
the system provider.
Roque, et al., in their petition, had questioned the certifications to this
effect, arguing that these certifications were not issued to respondent
TIM-Smartmatic, but to a third party, Dominion Voting Systems.
Resolving the challenge, the Court, in effect, said that the system
subject of the certifications was the same one procured by Comelec for
the 2010 elections. And besides, the Licensing Agreement between
Smartmatic and the Dominion Voting Systems indicates that the former
is the entity licensed by the latter to use the system in the Philippines.
Presently, petitioners assert that the system certified as having been
used in New York was the Dominion Image Cast, a ballot marking
device.
Petitioners have obviously inserted, at this stage of the case, an
entirely new factual dimension to their cause. This we cannot allow for
compelling reasons. For starters, the Court cannot plausibly validate
this factual assertion of petitioners. As it is, private respondents have
even questioned the reliability of the website24 whence petitioners base
their assertion, albeit the former, citing the same website, state that the
Image Cast Precinct tabulation device refers to the Dominion’s PCOS
machines.
Moreover, as a matter of sound established practice, points of law,
theories, issues, and arguments not raised in the original proceedings
cannot be brought out on review. Basic considerations of fair play
impel this rule. The imperatives of orderly, if not speedy, justice frown
on a piecemeal presentation of evidence25 and on the practice of
parties of going to trial haphazardly.26
Moving still to another issue, petitioners claim that "there are very
strong indications that Private Respondents will not be able to provide
for telecommunication facilities for areas without these facilities."27 This
argument, being again highly speculative, is without evidentiary value
and hardly provides a ground for the Court to nullify the automation
contract. Surely, a possible breach of a contractual stipulation is not a
legal reason to prematurely rescind, much less annul, the
contract.1avvphi1
Finally, petitioners argue that, based on news reports,28 the TIM-
Smartmatic joint venture has entered into a new contract with Quisdi, a
Shanghai-based company, to manufacture on its behalf the needed
PCOS machines to fully automate the 2010 elections.29 This
arrangement, petitioners aver, violates the bid rules proscribing sub-
contracting of significant components of the automation project.
The argument is untenable, based as it is again on news reports.
Surely, petitioners cannot expect the Court to act on unverified reports
foisted on it. And, of course, the Court is at a loss to understand how
the sub-contract would, in the scheme of things, constitute grave
abuse of discretion on the part of Comelec so as to nullify the contract
award of the automation project. As petitioners themselves
acknowledge, again citing news reports, "Smartmatic has unilaterally
made the new subcontract to the Chinese company."30 Petitioners
admit too, albeit with qualification, that RA 9184 allows subcontracting
of a portion of the automation project.31
The motion of intervenor Quadra deals with the auditability of the
results of the automated elections. His concern has already been
addressed by the Court in its Decision. As we have said, the AES
procured by the Comelec is a paper-based system, which has a
provision for system auditability, since the voter would be able, if
needed, to verify if the PCOS machine has scanned, recorded, and
counted his vote properly. All actions done on the machine can be
printed out by the Board of Election Inspectors Chairperson as an audit
log.32
On the basis of the arguments, past and present, presented by the
petitioners and intervenor, the Court does not find any grave abuse of
discretion on the part of the Comelec in awarding the automation
contract to the joint venture of private respondents.
In closing, the Court harks back to its parting message embodied in its
September 10, 2009 Decision, but this time even more mindful of
warnings and apprehensions of well-meaning sectors of society,
including some members of the Court, about the possibility of failure of
elections. The Court, to repeat, will not venture to say that nothing
could go wrong in the conduct of the 2010 nationwide automated
elections. Neither will it guarantee, as it is not even equipped with the
necessary expertise to guarantee, the effectiveness of the voting
machines and the integrity of the counting and consolidation software
embedded in them. That difficult and complex undertaking belongs at
the first instance to the Comelec as part of its mandate to insure
orderly and peaceful elections. The Comelec, as it were, is laboring
under a very tight timeline. It would accordingly need the help of all
advocates of orderly and honest elections, all men and women of
goodwill, to assist Comelec personnel in addressing the fears
expressed about the integrity of the system. After all, peaceful, fair,
honest, and credible elections is everyone’s concern.

WHEREFORE, the instant separate motions for reconsideration of the

main and intervening petitioners are DENIED.

SO ORDERED.
 EN BANC
G.R. No. 199082 September 18, 2012
JOSE MIGUEL T. ARROYO, Petitioner,
vs.
DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON.
LEILA DE LIMA, in her capacity as Secretary of the Department of
Justice; HON. SIXTO BRILLANTES, .JR., in his capacity as
Chairperson of the Commission on Elections; and the JOINT DOJ-
COMELEC PRELIMINARY INVESTIGATION COMMITTEE and
FACT-FINDING TEAM, Respondents.
x-----------------------x
G.R. No. 199085
BENJAMIN S. ABALOS, SR., Petitioner,
vs.
HON. LEILA DE LIMA, in her capacity as Secretary of Justice;
HON. SIXTO S. BRILLANTES, JR., in his capacity as COMELEC
Chairperson; RENE V. SARMIENTO, LUCENITO N. TAGLE,
ARMANDO V. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT
S. LIM AND AUGUSTO C. LAGMAN, in their capacity as COMELEC
COMMISSIONERS; CLARO A. ARELLANO, GEOUGE C. DEE,
JACINTO G. ANG, ROMEO B. FORTES AND MICHAEL D.
VILLARET, in their capacity as CHAIRPERSON AND MEMBERS,
RESPECTIVELY, OF THE JOINT DOJ-COMELEC PRELIMINARY
INVESTIGATION COMMITEE ON THE 2004 AND 2007 ELECTION
FRAUD,Respondents.
x-----------------------x
G.R. No.199118
GLORIA MACAPAGAL-ARROYO, Petitioner,
vs.
COMMISSION ON ELECTIONS, represented by Chairperson Sixto
S. Brillantes, Jr., DEPARTMENT OF JUSTICE, represented by
Secretary Leila M. De Lima, JOINT DOJ-COMELEC PRELIMINARY
INVESTIGATION COMMITTEE, SENATOR AQUILINO M. PIMENTEL
III, and DOJ-COMELEC FACT FINDING TEAM, Respondents.
DECISION
PERALTA, J.:
The Court is vested with the constitutional mandate to resolve
justiciable controversies by applying the rule of law with due deference
to the right to due process, irrespective of the standing in society of the
parties involved. It is an assurance that in this jurisdiction, the wheels
of justice turn unimpeded by public opinion or clamor, but only for the
ultimate end of giving each and every member of society his just due
without distinction.
Before the Court are three (3) consolidated petitions and supplemental
petitions for Certiorari and Prohibition under Rule 65 of the Rules of
Court filed by Jose Miguel T. Arroyo (Mike Arroyo) in G.R. No. 199082,
Benjamin S. Abalos, Sr. (Abalos) in G.R. No. 199085 and Gloria
Macapagal
Arroyo (GMA) in G.R. No. 199118 assailing the following: (1)
Commission on Elections (Comelec) Resolution No. 9266 "In the
Matter of the Commission on Elections and Department of Justice Joint
Investigation on the Alleged Election Offenses Committed during the
2004 and 2007 Elections Pursuant to Law"1 dated August 2, 2011; (2)
Joint Order No. 001-2011 (Joint Order) "Creating and Constituting a
Joint DOJ-Comelec Preliminary Investigation Committee [Joint
Committee] and Fact-Finding Team on the 2004 and 2007 National
Elections Electoral Fraud and
Manipulation Cases"2 dated August 15, 2011; (3) Rules of Procedure
on the Conduct of Preliminary Investigation on the Alleged Election
Fraud in the 2004 and 2007 National Elections (Joint Committee Rules
of Procedure)3 dated August 23, 2011; and (4) Initial Report of the
Fact-Finding Team dated October 20, 2011.4 The consolidated
petitions and supplemental petitions likewise assail the validity of the
proceedings undertaken pursuant to the aforesaid issuances.
The Antecedents
Acting on the discovery of alleged new evidence and the surfacing of
new witnesses indicating the occurrence of massive electoral fraud
and manipulation of election results in the 2004 and 2007 National
Elections, on August 2, 2011, the Comelec issued Resolution No. 9266
approving the creation of a committee jointly with the Department of
Justice (DOJ), which shall conduct preliminary investigation on the
alleged election offenses and anomalies committed during the 2004
and 2007 elections.5
On August 4, 2011, the Secretary of Justice issued Department Order
No. 6406 naming three (3) of its prosecutors to the Joint Committee.
On August 15, 2011, the Comelec and the DOJ issued Joint Order No.
001-2011 creating and constituting a Joint Committee and Fact-Finding
Team on the 2004 and 2007 National Elections electoral fraud and
manipulation cases. The Joint Committee and the Fact-Finding Team
are composed of officials from the DOJ and the Comelec. Section 2 of
the Joint Order lays down the mandate of the Joint Committee, to wit:
Section 2. Mandate. – The Committee shall conduct the necessary
preliminary investigation on the basis of the evidence gathered and the
charges recommended by the Fact-Finding Team created and referred
to in Section 4 hereof. Resolutions finding probable cause for election
offenses, defined and penalized under the Omnibus Election Code and
other election laws shall be approved by the Comelec in accordance
with the Comelec Rules of Procedure. For other offenses, or those not
covered by the Omnibus Election Code and other election laws, the
corresponding criminal information may be filed directly with the
appropriate courts.7
The Fact-Finding Team,8 on the other hand, was created for the
purpose of gathering real, documentary, and testimonial evidence
which can be utilized in the preliminary investigation to be conducted
by the Joint Committee. Its specific duties and functions as
enumerated in Section 4 of the Joint Order are as follows:
a) Gather and document reports, intelligence information,
and investigative leads from official as well as unofficial
sources and informants;
b) Conduct interviews, record testimonies, take affidavits of
witnesses, and collate material and relevant documentary
evidence, such as, but not limited to, election documents
used in the 2004 and 2007 national elections. For security
reasons, or to protect the identities of informants, the Fact-
Finding Team may conduct interviews or document
testimonies discreetly;
c) Assess and evaluate affidavits already executed and other
documentary evidence submitted or may be submitted to the
Fact-Finding Team and/or Committee;
d) Identify the offenders, their offenses and the manner of
their commission, individually or in conspiracy, and the
provisions of election and general criminal laws violated,
establish evidence for individual criminal and administrative
liability and prosecution, and prepare the necessary
documentation, such as complaints and charge sheets for
the initiation of preliminary investigation proceedings against
said individuals to be conducted by the Committee;
 e) Regularly submit to the Committee, the Secretary of
Justice and the Chairman of the Comelec periodic reports
and recommendations, supported by real, testimonial and
documentary evidence, which may then serve as the
Committee’s basis for immediately commencing appropriate
preliminary investigation proceedings, as provided under
Section 6 of this Joint Order; and
f) Upon the termination of its investigation, make a full and
final report to the Committee, the Secretary of Justice, and
the Chairman of the Comelec.9
Pursuant to Section 710 of the Joint Order, on August 23, 2011, the
Joint Committee promulgated its Rules of Procedure.
The members of the Fact-Finding Team unanimously agreed that the
subject of the Initial Report would be the electoral fraud and
manipulation of election results allegedly committed during the May 14,
2007 elections. Thus, in its Initial Report11 dated October 20, 2011, the
Fact-Finding Team concluded that manipulation of the results in the
May 14, 2007 senatorial elections in the provinces of North and South
Cotabato and Maguindanao were indeed perpetrated.12 The Fact-
Finding Team recommended that petitioner Abalos and ten (10)
others13 be subjected to preliminary investigation for electoral sabotage
for conspiring to manipulate the election results in North and South
Cotabato. Twenty-six (26)14 persons, including petitioners GMA and
Abalos, were likewise recommended for preliminary investigation for
electoral sabotage for manipulating the election results in
Maguindanao.15 Several persons were also recommended to be
charged administratively, while others,16 including petitioner Mike
Arroyo, were recommended to be subjected to further
investigation.17 The case resulting from the investigation of the Fact-
Finding Team was docketed as DOJ-Comelec Case No. 001-2011.
Meanwhile, on October 17, 2011, Senator Aquilino Pimentel III
(Senator Pimentel) filed a Complaint-Affidavit18 for Electoral Sabotage
against petitioners and twelve others19 and several John Does and
Jane Does. The case was docketed as DOJ-Comelec Case No. 002-
2011.
On October 24, 2011, the Joint Committee issued two subpoenas
against petitioners in DOJ-Comelec Case Nos. 001-2011 and 002-
2011.20 On November 3, 2011, petitioners, through counsel, appeared
before the Joint Committee.21 On that preliminary hearing, the Joint
Committee consolidated the two DOJ-Comelec cases. Respondents
therein were likewise ordered to submit their Counter-Affidavits by
November 14, 2011.22
Thereafter, petitioners filed before the Court separate Petitions for
Certiorari and Prohibition with Prayer for the Issuance of a Temporary
Restraining Order (TRO) and/or Writ of Preliminary Injunction assailing
the creation of the Joint Panel.23 The petitions were eventually
consolidated.
On November 14, 2011, petitioner Mike Arroyo filed a Motion to Defer
Proceedings24 before the Joint Committee, in view of the pendency of
his petition before the Court. On the same day, petitioner GMA filed
before the Joint Committee an Omnibus Motion Ad Cautelam25 to
require Senator Pimentel to furnish her with documents referred to in
his complaint-affidavit and for the production of election documents as
basis for the charge of electoral sabotage. GMA contended that for the
crime of electoral sabotage to be established, there is a need to
present election documents allegedly tampered which resulted in the
increase or decrease in the number of votes of local and national
candidates.26 GMA prayed that she be allowed to file her counter-
affidavit within ten (10) days from receipt of the requested
documents.27 Petitioner Abalos, for his part, filed a Motion to Suspend
Proceedings (Ex Abundante Ad Cautelam),28 in view of the pendency
of his petition brought before the Court.
In an Order29 dated November 15, 2011, the Joint Committee denied
the aforesaid motions of petitioners. GMA subsequently filed a motion
for reconsideration.30
On November 16, 2011, the Joint Committee promulgated a Joint
Resolution which was later indorsed to the Comelec.31 On November
18, 2011, after conducting a special session, the Comelec en banc
issued a Resolution32approving and adopting the Joint Resolution
subject to modifications. The dispositive portion of the Comelec
Resolution reads:
WHEREFORE, premises considered, the Resolution of the Joint DOJ-
COMELEC Preliminary Investigation Committee in DOJ-COMELEC
Case No. 001-2011 and DOJ-COMELEC Case No. 002-2011, upon
the recommendation of the COMELEC’s own representatives in the
Committee, is hereby APPROVED and ADOPTED, subject to the
following MODIFICATIONS:
1. That information/s for the crime of ELECTORAL
SABOTAGE under Section 42 (b) of R.A. 9369, amending
Section 27 (b) of R.A. 6646, be filed against GLORIA
MACAPAGAL-ARROYO, BENJAMIN ABALOS, SR.,
LINTANG H. BEDOL, DATU ANDAL AMPATUAN, SR. and
PETER REYES;
2. That the charges against MICHAEL C. ABAS,
NICODEMO FERRER, REUBEN BASIAO, JAIME PAZ and
NORIE K. UNAS be subjected to further investigation;
3. That the charges against JOSE MIGUEL T. ARROYO,
BONG SERRANO, ALBERTO AGRA, ANDREI BON
TAGUM, GABBY CLAUDIO, ROMY DAYDAY, JEREMY
JAVIER, JOHN DOE a.k.a BUTCH, be DISMISSED for
insufficiency of evidence to establish probable cause;
4. That the recommendation that ESTELITA B. ORBASE,
ELIZA A. GASMIN, ELSA Z. ATINEN, SALIAO S. AMBA,
MAGSAYSAY B. MOHAMAD, SALONGA K. EDZELA,
RAGAH D. AYUNAN, SUSAN U. CANANBAN, RUSSAM H.
MABANG, ASUNCION CORAZON P. RENIEDO, NENA A.
ALID, MA. SUSAN L. ALBANO, ROHAIDA T. KHALID,
ARAW M. CAO, JEEHAN S. NUR, ALICE A. LIM,
NORIJEAN P. HANGKAL, CHRISTINA ROAN M. DALOPE,
and MACEDA L. ABO be administratively charged be
subjected to further review by this Commission to determine
the appropriate charge/s that may be filed against them;
5. That the findings of lack of probable cause against LILIAN
S. SUAN-RADAM and YOGIE G. MARTIRIZAR be
REJECTED by reason of the pendency of their respective
cases before the Regional Trial Court of Pasay (Branch 114)
and this Commission for the same offense under
consideration.
In the higher interest of justice and by reason of manifest attempts to
frustrate the government’s right to prosecute and to obtain speedy
disposition of the present case pending before the Commission, the
Law Department and/or any COMELEC legal officers as may be
authorized by this Commission is hereby ORDERED to IMMEDIATELY
PREPARE and FILE the necessary Information/s before the
appropriate court/s
SO ORDERED.33 (Emphasis supplied.)
On even date, pursuant to the above Resolution, the Comelec’s Law
Department filed with the Regional Trial Court (RTC), Pasay City, an
Information against petitioner GMA, Governor Andal Ampatuan, Sr.,
and Atty. Lintang H. Bedol, for violation of Section 42 (b)(3) of Republic
Act (R.A.) No. 9369, amending Section 27 (b) of R.A. No. 6646,
docketed as Criminal Case No. RPSY-11-04432-CR.34 The case was
raffled to Branch 112 and the corresponding Warrant of Arrest was
issued which was served on GMA on the same day.35
On November 18, 2011, petitioner GMA filed with the RTC an Urgent
Omnibus Motion Ad Cautelam36 with leave to allow the Joint Committee
to resolve the motion for reconsideration filed by GMA, to defer
issuance of a warrant of arrest and a Hold Departure Order, and to
proceed to judicial determination of probable cause. She, likewise, filed PETITIONER’S CONSTITUTIONAL RIGHT TO DUE
with the Comelec a Motion to Vacate Ad Cautelam 37 praying that its PROCESS OF LAW?
Resolution be vacated for being null and void. The RTC nonetheless
issued a warrant for her arrest which was duly served. GMA thereafter
III.
filed a Motion for Bail which was granted.

DID THE DOJ AND COMELEC VIOLATE THE PRINCIPLE

Issues
OF SEPARATION OF POWERS BY CREATING THE
JOINT DOJ-COMELEC FACT-FINDING TEAM AND
In G.R. No. 199082, petitioner Arroyo relies on the following grounds: PRELIMINARY INVESTIGATION COMMITTEE WHICH
ENCROACHED UPON THE POWERS OF THE
LEGISLATURE AND THE REGIONAL TRIAL COURT?
A. THE CREATION OF THE JOINT COMMITTEE VIA THE
JOINT ORDER IS AT WAR WITH THE DUE PROCESS
AND EQUAL PROTECTION CLAUSE OF THE IV.
CONSTITUTION, HAVING BEEN CREATED WITH THE
SOLE END IN VIEW OF INVESTIGATING AND
DOES THE JOINT DOJ-COMELEC FACT-FINDING TEAM
PROSECUTING CERTAIN PERSONS AND INCIDENTS
AND PRELIMINARY INVESTIGATION COMMITTEE HAVE
ONLY, SPECIFICALLY THOSE INVOLVING THE 2004 AND
THE POWER AND LEGAL AUTHORITY TO CONDUCT A
2007 ELECTIONS TO THE EXCLUSION OF OTHERS, IN
PRELIMINARY INVESTIGATION OF THE SAME
VIOLATION OF THE DOCTRINE IN BIRAOGO V. TRUTH
ELECTORAL SABOTAGE CASES WHICH THE COMELEC
COMMISSION AND COMPANION CASE.
HAD ALREADY TAKEN COGNIZANCE OF?39

B. NO LAW OR RULE AUTHORIZES THE JOINT

In G.R. No. 199118, petitioner GMA anchors her petition on the
COMMITTEE TO CONDUCT PRELIMINARY
following grounds:
INVESTIGATION.

I. THE EXECUTIVE DEPARTMENT, THROUGH THE DOJ,

C. THE CREATION OF THE JOINT COMMITTEE, WHICH
OSTENSIBLY ACTING "JOINTLY" WITH THE COMELEC,
FUSES THE COMMISSION ON ELECTIONS - A
HAS ACTED BEYOND THE LIMITS OF THE
CONSTITUTIONALLY INDEPENDENT BODY - WITH THE
CONSTITUTION, IN THAT IT HAS COMPROMISED THE
DEPARTMENT OF JUSTICE – A POLITICAL AGENT OF
INDEPENDENCE OF THE COMELEC.
THE EXECUTIVE – DEMOLISHES THE INDEPENDENCE
OF THE COMMISSION ON ELECTIONS AS PROVIDED IN
ARTICLE IX(A), SECTIONS 1 AND 2 AND IX(C) OF THE II. THE COMELEC HAS EFFECTIVELY ABDICATED ITS
CONSTITUTION. CONSTITUTIONAL MANDATE "TO INVESTIGATE AND,
WHERE APPROPRIATE, PROSECUTE CASES OF
VIOLATIONS OF ELECTION LAWS, INCLUDING ACTS OR
D. IN VIEW OF THE NUMEROUS AND PERSISTENT
OMISSIONS CONSTITUTING ELECTION FRAUDS,
PUBLIC PRONOUNCEMENTS OF THE PRESIDENT, HIS
OFFENSES, AND MALPRACTICES" (ARTICLE IX-C,
SPOKESPERSONS, THE HEADS OF THE DOJ AND THE
SECTION 26, 1987 CONSTITUTION OF THE REPUBLIC
COMELEC, AND MEMBERS OF THE JOINT COMMITTEE
OF THE PHILIPPINES) IN FAVOR OF THE EXECUTIVE
THAT CASES SHOULD BE FILED AGAINST PETITIONER
DEPARTMENT, ACTING THROUGH RESPONDENT
AND HIS FAMILY AND ALLEGED ASSOCIATES BY THE
JUSTICE SECRETARY DE LIMA.
END OF 2011, THE PROCEEDINGS THEREOF SHOULD
BE ENJOINED FOR BEING PERSECUTORY, PURSUANT
TO ALLADO V. DIOKNO AND RELATED CASES. III. DOJ-COMELEC JOINT ORDER NO. 001-2011 AND THE
JOINT COMMITTEE RULES HAVE NOT BEEN
PUBLISHED PURSUANT TO TAÑADA V. TUVERA, G.R.
E. THE CREATION AND CONSTITUTION OF THE JOINT
No. L-63915 (29 DECEMBER 1986). AFTER ALL, AS THE
COMMITTEE TRAMPLES UPON PETITIONER’S RIGHT
HONORABLE COURT LIKEWISE DECLARED IN
TO A FAIR PROCEEDING BY AN INDEPENDENT AND
REPUBLIC V. PILIPINAS SHELL PETROLEUM
IMPARTIAL TRIBUNAL.
CORPORATION, G.R. No. 173918 (08 APRIL 2008), (SIC)40

F. THE COMELEC, AND SUBSEQUENTLY, THE RTC OF

We deferred the resolution of petitioners’ Motion for the Issuance of a
PASAY CITY, HAVE ASSUMED JURISDICTION OVER
TRO and, instead, required the respondents to comment on the
THE SUBJECT MATTER SOUGHT TO BE INVESTIGATED
petitions.41
BY THE JOINT COMMITTEE, TO THE EXCLUSION OF
ANY BODY, INCLUDING THE JOINT COMMITTEE.38
We likewise scheduled the consolidated cases for oral argument for
which the parties were directed to limit their respective discussions to
In G.R. No. 199085, petitioner Abalos raises the following issues:
the following issues:

I.
I. Whether or not Joint Order No. 001-2011 "Creating and Constituting
a Joint DOJ-COMELEC Preliminary Investigation Committee and Fact-
DOES JOINT ORDER NO. 001-2011, CREATING THE Finding Team on the 2004 and 2007 National Elections Electoral Fraud
JOINT DOJ-COMELEC FACT-FINDING TEAM AND and Manipulation Cases" is constitutional in light of the following:
PRELIMINARY INVESTIGATON COMMITTEE VIOLATE
PETITIONER’S CONSTITUTIONAL RIGHT TO EQUAL
A. The due process clause of the 1987 Constitution
PROTECTION OF THE LAW?

B. The equal protection clause of the 1987 Constitution

II.

C. The principle of separation of powers

DID THE CONDUCT AND PROCEEDINGS OF THE JOINT
DOJ-COMELEC FACT-FINDING TEAM AND
PRELIMINARY INVESTIGATION COMMITTEE VIOLATE D. The independence of the COMELEC as a constitutional
body
II. Whether or not the COMELEC has jurisdiction under the law to
conduct preliminary investigation jointly with the DOJ.
A. Whether or not due process was observed by the Joint DOJ-
COMELEC Fact-Finding Team and Preliminary Investigation
Committee, and the COMELEC in the conduct of the preliminary
investigation and approval of the Joint Panel’s Resolution.42
The Court, thereafter, required the parties to submit their respective
Memoranda.43
The Court’s Ruling
Procedural Issues
Respondents claim that Mike Arroyo’s petition is moot and that of GMA
is moot and academic. They explain that the Mike Arroyo petition
presents no actual controversy that necessitates the exercise by the
Court of its power of judicial review, considering that he was not
among those indicted for electoral sabotage in the 2007 national
elections as the Comelec dismissed the case against him for
insufficiency of evidence.44 Anent the 2004 national elections, the Fact-
Finding Team is yet to complete its investigation so Mike Arroyo’s
apprehensions are merely speculative and anticipatory. 45 As to the
GMA petition, respondents aver that any judgment of the Court will
have no practical legal effect because an Information has already been
filed against her in Branch 112, RTC of Pasay City.46 With the filing of
the Information, the RTC has already acquired jurisdiction over the
case, including all issues relating to the constitutionality or legality of
her preliminary investigation.47 Respondents also claim that the issues
relating to the constitutionality and validity of the conduct of the
preliminary investigation of GMA are best left to the trial court,
considering that it involves questions of fact.48 Respondents add that
considering that the RTC has concurrent jurisdiction to determine a
constitutional issue, it will be practical for the Court to allow the RTC to
determine the constitutional issues in this case.49
We do not agree.
Mootness
It cannot be gainsaid that for a court to exercise its power of
adjudication, there must be an actual case or controversy, that is, one
which involves a conflict of legal rights, an assertion of opposite legal
claims susceptible of judicial resolution.50 The case must not be moot
or academic or based on extra-legal or other similar considerations not
cognizable by a court of justice.51
A case becomes moot and academic when it ceases to present a
justiciable controversy so that a declaration on the issue would be of
no practical use or value.52 However, a case should not be dismissed
simply because one of the issues raised therein had become moot and
academic by the onset of a supervening event, whether intended or
incidental, if there are other causes which need to be resolved after
trial.53
Here, the consolidated cases are not rendered moot and academic by
the promulgation of the Joint Resolution by the Joint Committee and
the approval thereof by the Comelec. It must be recalled that the main
issues in the three petitions before us are the constitutionality and
legality of the creation of the Joint Committee and the Fact-Finding
Team as well as the proceedings undertaken pursuant thereto. The
assailed Joint Order specifically provides that the Joint Committee was
created for purposes of investigating the alleged massive electoral
fraud during the 2004 and 2007 national elections. However, in the
Fact-Finding Team’s Initial Report, the team specifically agreed that
the report would focus on the irregularities during the 2007 elections.
Also, in its November 18, 2011 Resolution, the Comelec, while
directing the filing of information against petitioners Abalos and GMA,
ordered that further investigations be conducted against the other
respondents therein. Apparently, the Fact-Finding Team’s and Joint
Committee’s respective mandates have not been fulfilled and they are,
therefore, bound to continue discharging their duties set forth in the
assailed Joint Order. Moreover, petitioners question the validity of the
proceedings undertaken by the Fact-Finding Team and the Joint
Committee leading to the filing of information, on constitutional
grounds. We are not, therefore, barred from deciding on the petitions
simply by the occurrence of the supervening events of filing an
information and dismissal of the charges.
Jurisdiction over the validity of the
conduct of the preliminary investigation
This is not the first time that the Court is confronted with the issue of
jurisdiction to conduct preliminary investigation and at the same time
with the propriety of the conduct of preliminary investigation. In
Cojuangco, Jr. v. Presidential Commission on Good Government
(PCGG),54 the Court resolved two issues, namely: (1) whether or not
the PCGG has the power to conduct a preliminary investigation of the
anti-graft and corruption cases filed by the Solicitor General against
Eduardo Conjuangco, Jr. and other respondents for the alleged misuse
of coconut levy funds; and (2) on the assumption that it has jurisdiction
to conduct such a preliminary investigation, whether or not its conduct
constitutes a violation of petitioner’s right to due process and equal
protection of the law.55 The Court decided these issues notwithstanding
the fact that Informations had already been filed with the trial court.
In Allado v. Diokno,56 in a petition for certiorari assailing the propriety of
the issuance of a warrant of arrest, the Court could not ignore the
undue haste in the filing of the information and the inordinate interest
of the government in filing the same. Thus, this Court took time to
determine whether or not there was, indeed, probable cause to warrant
the filing of information. This, notwithstanding the fact that information
had been filed and a warrant of arrest had been issued. Petitioners
therein came directly to this Court and sought relief to rectify the
injustice that they suffered.
Hierarchy of courts
Neither can the petitions be dismissed solely because of violation of
the principle of hierarchy of courts. This principle requires that recourse
must first be made to the lower-ranked court exercising concurrent
jurisdiction with a higher court.57 The Supreme Court has original
jurisdiction over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus. While this jurisdiction is shared with the
Court of Appeals and the RTC, a direct invocation of this Court’s
jurisdiction is allowed when there are special and important reasons
therefor, clearly and especially set out in the petition, as in the present
case.58 In the consolidated petitions, petitioners invoke exemption from
the observance of the rule on hierarchy of courts in keeping with the
Court’s duty to determine whether or not the other branches of
government have kept themselves within the limits of the Constitution
and the laws, and that they have not abused the discretion given to
them.59
It is noteworthy that the consolidated petitions assail the
constitutionality of issuances and resolutions of the DOJ and the
Comelec. The general rule is that this Court shall exercise only
appellate jurisdiction over cases involving the constitutionality of a
statute, treaty or regulation.
However, such rule is subject to exception, that is, in circumstances
where the Court believes that resolving the issue of constitutionality of
a law or regulation at the first instance is of paramount importance and
immediately affects the social, economic, and moral well-being of the
people.60
This case falls within the exception. An expeditious resolution of the
issues raised in the petitions is necessary. Besides, the Court has
entertained a direct resort to the Court without the requisite motion for
reconsideration filed below or without exhaustion of administrative
remedies where there is an urgent necessity for the resolution of the
question and any further delay would prejudice the interests of the
government or of the petitioners and when there is an alleged violation
of due process, as in the present case.61 We apply the same relaxation
of the Rules in the present case and, thus, entertain direct resort to this Moreover, as we acknowledged in People v. Basilla,69 the prompt and
Court. fair investigation and prosecution of election offenses committed
before or in the course of nationwide elections would simply not be
possible without the assistance of provincial and city fiscals
Substantive Issues
prosecutors and their assistants and staff members, and of the state
Bases for the Creation of the
prosecutors of the DOJ.70
Fact-Finding Team and Joint Committee

Section 265 of the Omnibus Election Code was amended by Section

Section 2, Article IX-C of the 1987 Constitution enumerates the powers
and functions of the Comelec. Paragraph (6) thereof vests in the
Comelec the power to:
(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.
This was an important innovation introduced by the 1987 Constitution,
because the above-quoted provision was not in the 1935 and 1973
Constitutions.62
The grant to the Comelec of the power to investigate and prosecute
election offenses as an adjunct to the enforcement and administration
of all election laws is intended to enable the Comelec to effectively
insure to the people the free, orderly, and honest conduct of elections.
The failure of the Comelec to exercise this power could result in the
frustration of the true will of the people and make a mere idle
ceremony of the sacred right and duty of every qualified citizen to
vote.63
The constitutional grant of prosecutorial power in the Comelec was
reflected in Section 265 of Batas Pambansa Blg. 881, otherwise known
as the Omnibus Election Code, to wit:
Section 265. Prosecution. The Commission shall, through its duly
authorized legal officers, have the exclusive power to conduct
preliminary investigation of all election offenses punishable under this
Code, and to prosecute the same. The Commission may avail of the
assistance of other prosecuting arms of the government: Provided,
however, That in the event that the Commission fails to act on any
complaint within four months from his filing, the complainant may file
the complaint with the office of the fiscal [public prosecutor], or with the
Ministry Department of Justice for proper investigation and
prosecution, if warranted.
Under the above provision of law, the power to conduct preliminary
investigation is vested exclusively with the Comelec. The latter,
however, was given by the same provision of law the authority to avail
itself of the assistance of other prosecuting arms of the
government.64 Thus, under Section 2,65 Rule 34 of the Comelec Rules
of Procedure, provincial and city prosecutors and their assistants are
given continuing authority as deputies to conduct preliminary
investigation of complaints involving election offenses under election
laws and to prosecute the same. The complaints may be filed directly
with them or may be indorsed to them by the petitioner or its duly
authorized representatives.66
Thus, under the Omnibus Election Code, while the exclusive
jurisdiction to conduct preliminary investigation had been lodged with
the Comelec, the prosecutors had been conducting preliminary
investigations pursuant to the continuing delegated authority given by
the Comelec. The reason for this delegation of authority has been
explained in Commission on Elections v. Español:67
43 of R.A. No. 9369,71 which reads:
Section 43. Section 265 of Batas Pambansa Blg. 881 is hereby
amended to read as follows:
SEC. 265. Prosecution. – The Commission shall, through its duly
authorized legal officers, have the power, concurrent with the other
prosecuting arms of the government, to conduct preliminary
investigation of all election offenses punishable under this Code, and
to prosecute the same.72
As clearly set forth above, instead of a mere delegated authority, the
other prosecuting arms of the government, such as the DOJ, now
exercise concurrent jurisdiction with the Comelec to conduct
preliminary investigation of all election offenses and to prosecute the
same.
It is, therefore, not only the power but the duty of both the Comelec
and the DOJ to perform any act necessary to ensure the prompt and
fair investigation and prosecution of election offenses. Pursuant to the
above constitutional and statutory provisions, and as will be explained
further below, we find no impediment for the Comelec and the DOJ to
create the Joint Committee and Fact-Finding Team for the purpose of
conducting a thorough investigation of the alleged massive electoral
fraud and the manipulation of election results in the 2004 and 2007
national elections relating in particular to the presidential and senatorial
elections.73
Constitutionality of Joint-Order No. 001-2011
A. Equal Protection Clause
Petitioners claim that the creation of the Joint Committee and Fact-
Finding Team is in violation of the equal protection clause of the
Constitution because its sole purpose is the investigation and
prosecution of certain persons and incidents. They argue that there is
no substantial distinction between the allegations of massive electoral
fraud in 2004 and 2007, on the one hand, and previous and
subsequent national elections, on the other hand; and no substantial
distinction between petitioners and the other persons or public officials
who might have been involved in previous election offenses. They
insist that the Joint Panel was created to target only the Arroyo
Administration as well as public officials linked to the Arroyo
Administration. To bolster their claim, petitioners explain that Joint
Order No. 001-2011 is similar to Executive Order No. 1 (creating the
Philippine Truth Commission) which this Court had already nullified for
being
violative of the equal protection clause.
Respondents, however, refute the above contentions and argue that
the wide array of the possible election offenses and broad spectrum of
individuals who may have committed them, if any, immediately negate
the assertion that the assailed orders are aimed only at the officials of
the Arroyo Administration.

The deputation of the Provincial and City Prosecutors is necessitated

We agree with the respondents.
by the need for prompt investigation and dispensation of election cases
as an indispensable part of the task of securing fine, orderly, honest,
peaceful and credible elections. Enfeebled by lack of funds and the The equal protection clause is enshrined in Section 1, Article III of the
magnitude of its workload, the petitioner does not have a sufficient Constitution which reads:
number of legal officers to conduct such investigation and to prosecute
such cases.68
Section 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal
protection of the laws.74
The concept of equal protection has been laid down in Biraogo v.
Philippine Truth Commission of 2010:75
One of the basic principles on which this government was founded is
that of the equality of right which is embodied in Section 1, Article III of
the 1987 Constitution. The equal protection of the laws is embraced in
the concept of due process, as every unfair discrimination offends the
requirements of justice and fair play. It has been embodied in a
separate clause, however, to provide for a more specific guaranty
against any form of undue favoritism or hostility from the government.
Arbitrariness in general may be challenged on the basis of the due
process clause. But if the particular act assailed partakes of an
unwarranted partiality or prejudice, the sharper weapon to cut it down
is the equal protection clause.
According to a long line of decisions, equal protection simply requires
that all persons or things similarly situated should be treated alike, both
as to rights conferred and responsibilities imposed. It requires public
bodies and institutions to treat similarly-situated individuals in a similar
manner. The purpose of the equal protection clause is to secure every
person within a state's jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a statute
or by its improper execution through the state's duly-constituted
authorities. In other words, the concept of equal justice under the law
requires the state to govern impartially, and it may not draw distinctions
between individuals solely on differences that are irrelevant to a
legitimate governmental objective.76
Unlike the matter addressed by the Court’s ruling in Biraogo v.
Philippine Truth Commission of 2010, Joint Order No. 001-2011 cannot
be nullified on the ground that it singles out the officials of the Arroyo
Administration and, therefore, it infringes the equal protection clause.
The Philippine Truth Commission of 2010 was expressly created for
the purpose of investigating alleged graft and corruption during the
Arroyo Administration since Executive Order No. 177 specifically
referred to the "previous administration"; while the Joint Committee
was created for the purpose of conducting preliminary investigation of
election offenses during the 2004 and 2007 elections. While GMA and
Mike Arroyo were among those subjected to preliminary investigation,
not all respondents therein were linked to GMA as there were public
officers who were investigated upon in connection with their acts in the
performance of their official duties. Private individuals were also
subjected to the investigation by the Joint Committee.
The equal protection guarantee exists to prevent undue favor or
privilege. It is intended to eliminate discrimination and oppression
based on inequality. Recognizing the existence of real differences
among men, it does not demand absolute equality. It merely requires
that all persons under like circumstances and conditions shall be
treated alike both as to privileges conferred and liabilities enforced. 78
We once held that the Office of the Ombudsman is granted virtually
plenary investigatory powers by the Constitution and by law and thus
may, for every particular investigation, whether commenced by
complaint or on its own initiative, decide how best to pursue each
investigation. Since the Office of the Ombudsman is granted such
latitude, its varying treatment of similarly situated investigations cannot
by itself be considered a violation of any of the parties’ rights to the
equal protection of the laws.79 This same doctrine should likewise apply
in the present case.
Thus, as the constitutional body granted with the broad power of
enforcing and administering all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum and
recall,80 and tasked to ensure free, orderly, honest, peaceful, and
credible elections,81 the Comelec has the authority to determine how
best to perform such constitutional mandate. Pursuant to this authority,
the Comelec issues various resolutions prior to every local or national
elections setting forth the guidelines to be observed in the conduct of
the elections. This shows that every election is distinct and requires
different guidelines in order to ensure that the rules are updated to
respond to existing circumstances.
Moreover, as has been practiced in the past, complaints for violations
of election laws may be filed either with the Comelec or with the DOJ.
The Comelec may even initiate, motu proprio, complaints for election
offenses.82
Pursuant to law and the Comelec’s own Rules, investigations may be
conducted either by the Comelec itself through its law department or
through the prosecutors of the DOJ. These varying procedures and
treatment do not, however, mean that respondents are not treated
alike. Thus, petitioners’ insistence of infringement of their constitutional
right to equal protection of the law is misplaced.
B. Due Process
Petitioners claim that the Joint Panel does not possess the required
cold neutrality of an impartial judge because it is all at once the
evidence-gatherer, prosecutor and judge. They explain that since the
Fact-Finding Team has found probable cause to subject them to
preliminary investigation, it is impossible for the Joint Committee to
arrive at an opposite conclusion. Petitioners likewise express doubts of
any possibility that the Joint Committee will be fair and impartial to
them as Secretary De Lima and Chairman Brillantes had repeatedly
expressed prejudgment against petitioners through their statements
captured by the media.
For their part, respondents contend that petitioners failed to present
proof that the President of the Philippines, Secretary of Justice, and
Chairman of the Comelec actually made the statements allegedly
prejudging their case and in the context in which they interpreted them.
They likewise contend that assuming that said statements were made,
there was no showing that Secretary De Lima had tried to intervene in
the investigation to influence its outcome nor was it proven that the
Joint Committee itself had prejudged the case. Lastly, they point out
that Joint Order No. 001-2011 created two bodies, the Fact-Finding
Team and the Joint Committee, with their respective mandates. Hence,
they cannot be considered as one.
We find for respondents.
It is settled that the conduct of preliminary investigation is, like court
proceedings, subject to the requirements of both substantive and
procedural due process.83 Preliminary investigation is considered as a
judicial proceeding wherein the prosecutor or investigating officer, by
the nature of his functions, acts as a quasi-judicial officer.84 The
authority of a prosecutor or investigating officer duly empowered to
preside over or to conduct a preliminary investigation is no less than
that of a municipal judge or even an RTC Judge.85 Thus, as
emphasized by the Court in Ladlad v. Velasco:86
x x x We cannot emphasize too strongly that prosecutors should not
allow, and should avoid, giving the impression that their noble office is
being used or prostituted, wittingly or unwittingly, for political ends, or
other purposes alien to, or subversive of, the basic and fundamental
objective of serving the interest of justice evenhandedly, without fear or
favor to any and all litigants alike, whether rich or poor, weak or strong,
powerless or mighty. Only by strict adherence to the established
procedure may public's perception of the impartiality of the prosecutor
be enhanced.87
In this case, as correctly pointed out by respondents, there was no
showing that the statements claimed to have prejudged the case
against petitioners were made by Secretary De Lima and Chairman
Brillantes or were in the prejudicial context in which petitioners claimed
the statements were made. A reading of the statements allegedly
made by them reveals that they were just responding to hypothetical
questions in the event that probable cause would eventually be found
by the Joint Committee.
More importantly, there was no proof or even an allegation that the
Joint Committee itself, tasked to conduct the requisite preliminary
investigation against petitioners, made biased statements that would
convey to the public that the members were favoring a particular party.
Neither did the petitioners show that the President of the Philippines,
the Secretary of Justice or the Chairman of the Comelec intervened in
the conduct of the preliminary investigation or exerted undue pressure
on their subordinates to tailor their decision with their public
declarations and adhere to a pre-determined result.88 Moreover, insofar
as the Comelec is concerned, it must be emphasized that the
constitutional body is collegial. The act of the head of a collegial body
cannot be considered as that of the entire body itself. 89 In equating the
alleged bias of the above-named officials with that of the Joint
Committee, there would be no arm of the government credible enough
to conduct a preliminary investigation.90
It must also be emphasized that Joint Order No. 001-2011 created two
bodies, namely: (1) the Fact-Finding Team tasked to gather real,
documentary and testimonial evidence which can be utilized in the
preliminary investigation to be conducted by the Joint Committee; and
(2) the Joint Committee mandated to conduct preliminary investigation.
It is, therefore, inaccurate to say that there is only one body which
acted as evidence-gatherer, prosecutor and judge.
C. Separation of powers
Petitioners claim that the Joint Panel is a new public office as shown
by its composition, the creation of its own Rules of Procedure, and the
source of funding for its operation. It is their position that the power of
the DOJ to investigate the commission of crimes and the Comelec’s
constitutional mandate to investigate and prosecute violations of
election laws do not include the power to create a new public office in
the guise of a joint committee. Thus, in creating the Joint Panel, the
DOJ and the Comelec encroached upon the power of the Legislature
to create public office.
Respondents dispute this and contend that the Joint Committee and
Fact-Finding Team are not new public offices, but merely
collaborations between two existing government agencies sharing
concurrent jurisdiction. This is shown by the fact that the members of
the Joint Panel are existing officers of the DOJ and the Comelec who
exercise duties and functions that are already vested in them.
Again, we agree with respondents.
As clearly explained above, the Comelec is granted the power to
investigate, and where appropriate, prosecute cases of election
offenses. This is necessary in ensuring free, orderly, honest, peaceful
and credible elections. On the other hand, the DOJ is mandated to
administer the criminal justice system in accordance with the accepted
processes thereof consisting in the investigation of the crimes,
prosecution of offenders and administration of the correctional
system.91 It is specifically empowered to "investigate the commission of
crimes, prosecute offenders and administer the probation and
correction system."92 Also, the provincial or city prosecutors and their
assistants, as well as the national and regional state prosecutors, are
specifically named as the officers authorized to conduct preliminary
investigation.93Recently, the Comelec, through its duly authorized legal
offices, is given the power, concurrent with the other prosecuting arms
of the government such as the DOJ, to conduct preliminary
investigation of all election offenses.94
Undoubtedly, it is the Constitution, statutes, and the Rules of Court and
not the assailed Joint Order which give the DOJ and the Comelec the
power to conduct preliminary investigation. No new power is given to
them by virtue of the assailed order. As to the members of the Joint
Committee and Fact-Finding Team, they perform such functions that
they already perform by virtue of their current positions as prosecutors
of the DOJ and legal officers of the Comelec. Thus, in no way can we
consider the Joint Committee as a new public office.
D. Independence of the Comelec
Petitioners claim that in creating the Joint Panel, the Comelec has
effectively abdicated its constitutional mandate to investigate and,
where appropriate, to prosecute cases of violation of election laws
including acts or omissions constituting election frauds, offenses, and
malpractices in favor of the Executive Department acting through the
DOJ Secretary. Under the set- up, the Comelec personnel is placed
under the supervision and control of the DOJ. The chairperson is a
DOJ official. Thus, the Comelec has willingly surrendered its
independence to the DOJ and has acceded to share its exercise of
judgment and discretion with the Executive Branch.
We do not agree.
Section 1,95 Article IX-A of the 1987 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.96 The
Constitution envisions a truly independent Comelec committed to
ensure free, orderly, honest, peaceful, and credible elections and to
serve as the guardian of the people’s sacred right of suffrage – the
citizenry’s vital weapon in effecting a peaceful change of government
and in achieving and promoting political stability.97
Prior to the amendment of Section 265 of the Omnibus Election Code,
the Comelec had the exclusive authority to investigate and prosecute
election offenses. In the discharge of this exclusive power, the
Comelec was given the right to avail and, in fact, availed of the
assistance of other prosecuting arms of the government such as the
prosecutors of the DOJ. By virtue of this continuing authority, the state
prosecutors and the provincial or city prosecutors were authorized to
receive the complaint for election offense and delegate the conduct of
investigation to any of their assistants. The investigating prosecutor, in
turn, would make a recommendation either to dismiss the complaint or
to file the information. This recommendation is subject to the approval
of the state, provincial or city prosecutor, who himself may file the
information with the proper court if he finds sufficient cause to do so,
subject, however, to the accused’s right to appeal to the Comelec.98
Moreover, during the past national and local elections, the Comelec
issued Resolutions99 requesting the Secretary of Justice to assign
prosecutors as members of Special Task Forces to assist the Comelec
in the investigation and prosecution of election offenses. These Special
Task Forces were created because of the need for additional lawyers
to handle the investigation and prosecution of election offenses.
Clearly, the Comelec recognizes the need to delegate to the
prosecutors the power to conduct preliminary investigation. Otherwise,
the prompt resolution of alleged election offenses will not be attained.
This delegation of power, otherwise known as deputation, has long
been recognized and, in fact, been utilized as an effective means of
disposing of various election offense cases. Apparently, as mere
deputies, the prosecutors played a vital role in the conduct of
preliminary investigation, in the resolution of complaints filed before
them, and in the filing of the informations with the proper court.
As pointed out by the Court in Barangay Association for National
Advancement and Transparency (BANAT) Party-List v. Commission on
Elections,100 the grant of exclusive power to investigate and prosecute
cases of election offenses to the Comelec was not by virtue of the
Constitution but by the Omnibus Election Code which was eventually
amended by Section 43 of R.A. 9369. Thus, the DOJ now conducts
preliminary investigation of election offenses concurrently with the
Comelec and no longer as mere deputies. If the prosecutors had been
allowed to conduct preliminary investigation and file the necessary
information by virtue only of a delegated authority, they now have
better grounds to perform such function by virtue of the statutory grant
of authority. If deputation was justified because of lack of funds and
legal officers to ensure prompt and fair investigation and prosecution of
election offenses, the same justification should be cited to justify the
grant to the other prosecuting arms of the government of such
concurrent jurisdiction.
In view of the foregoing disquisition, we find no impediment for the
creation of a Joint Committee. While the composition of the Joint
Committee and Fact-Finding Team is dominated by DOJ officials, it
does not necessarily follow that the Comelec is inferior. Under the Joint
Order, resolutions of the Joint Committee finding probable cause for
election offenses shall still be approved by the Comelec in accordance
with the Comelec Rules of Procedure. This shows that the Comelec,
though it acts jointly with the DOJ, remains in control of the
proceedings. In no way can we say that the Comelec has thereby
abdicated its independence to the executive department.
The text and intent of the constitutional provision granting the Comelec
the authority to investigate and prosecute election offenses is to give
the Comelec all the necessary and incidental powers for it to achieve
the objective of holding free, orderly, honest, peaceful, and credible
elections.101 The Comelec should be allowed considerable latitude in
devising means and methods that will insure the accomplishment of
the great objective for which it was created.102We may not agree fully
with its choice of means, but unless these are clearly illegal or
constitute gross abuse of discretion, this Court should not
interfere.103 Thus, Comelec Resolution No. 9266, approving the
creation of the Joint Committee and Fact-Finding Team, should be
viewed not as an abdication of the constitutional body’s independence
but as a means to fulfill its duty of ensuring the prompt investigation
and prosecution of election offenses as an adjunct of its mandate of
ensuring a free, orderly, honest, peaceful and credible elections.
Although it belongs to the executive department, as the agency tasked
to investigate crimes, prosecute offenders, and administer the
correctional system, the DOJ is likewise not barred from acting jointly
with the Comelec. It must be emphasized that the DOJ and the
Comelec exercise concurrent jurisdiction in conducting preliminary
investigation of election offenses. The doctrine of concurrent
jurisdiction means equal jurisdiction to deal with the same subject
matter.104 Contrary to the contention of the petitioners, there is no
prohibition on simultaneous exercise of power between two coordinate
bodies. What is prohibited is the situation where one files a complaint
against a respondent initially with one office (such as the Comelec) for
preliminary investigation which was immediately acted upon by said
office and the re-filing of substantially the same complaint with another
office (such as the DOJ). The subsequent assumption of jurisdiction by
the second office over the cases filed will not be allowed. Indeed, it is a
settled rule that the body or agency that first takes cognizance of the
complaint shall exercise jurisdiction to the exclusion of the others. 105 As
cogently held by the Court in Department of Justice v. Hon. Liwag: 106
To allow the same complaint to be filed successively before two or
more investigative bodies would promote multiplicity of proceedings. It
would also cause undue difficulties to the respondent who would have
to appear and defend his position before every agency or body where
the same complaint was filed. This would lead hapless litigants at a
loss as to where to appear and plead their cause or defense.
There is yet another undesirable consequence. There is the distinct
possibility that the two bodies exercising jurisdiction at the same time
would come up with conflicting resolutions regarding the guilt of the
respondents.
Finally, the second investigation would entail an unnecessary
expenditure of public funds, and the use of valuable and limited
resources of Government, in a duplication of proceedings already
started with the Ombudsman.107
None of these problems would likely arise in the present case. The
Comelec and the DOJ themselves agreed that they would exercise
their concurrent jurisdiction jointly. Although the preliminary
investigation was conducted on the basis of two complaints – the initial
report of the Fact-Finding Team and the complaint of Senator Pimentel
– both complaints were filed with the Joint Committee. Consequently,
the complaints were filed with and the preliminary investigation was
conducted by only one investigative body. Thus, we find no reason to
disallow the exercise of concurrent jurisdiction jointly by those given
such authority. This is especially true in this case given the magnitude
of the crimes allegedly committed by petitioners. The joint preliminary
investigation also serves to maximize the resources and manpower of
both the Comelec and the DOJ for the prompt disposition of the cases.
Citing the principle of concurrent jurisdiction, petitioners insist that the
investigation conducted by the Comelec involving Radam and
Martirizar bars the creation of the Joint Committee for purposes of
conducting another preliminary investigation. In short, they claim that
the exercise by the Comelec of its jurisdiction to investigate excludes
other bodies such as the DOJ and the Joint Committee from taking
cognizance of the case. Petitioners add that the investigation should
have been conducted also by the Comelec as the 2007 cases of
Radam and Martirizar include several John Does and Jane Does.
We do not agree.
While the Comelec conducted the preliminary investigation against
Radam, Martirizar and other unidentified persons, it only pertains to
election offenses allegedly committed in North and South Cotabato. On
the other hand, the preliminary investigation conducted by the Joint
Committee (involving GMA) pertains to election offenses supposedly
committed in Maguindanao. More importantly, considering the broad
power of the Comelec to choose the means of fulfilling its duty of
ensuring the prompt investigation and prosecution of election offenses
as discussed earlier, there is nothing wrong if the Comelec chooses to
work jointly with the DOJ in the conduct of said investigation. To
reiterate, in no way can we consider this as an act abdicating the
independence of the Comelec.
Publication Requirement
In the conduct of preliminary investigation, the DOJ is governed by the
Rules of Court, while the Comelec is governed by the 1993 Comelec
Rules of Procedure. There is, therefore, no need to promulgate new
Rules as may be complementary to the DOJ and Comelec Rules.
As earlier discussed, considering that Joint Order No. 001-2011 only
enables the Comelec and the DOJ to exercise powers which are
already vested in them by the Constitution and other existing laws, it
need not be published for it to be valid and effective. A close
examination of the Joint Committee’s Rules of Procedure, however,
would show that its provisions affect the public. Specifically, the
following provisions of the Rules either restrict the rights of or provide
remedies to the affected parties, to wit: (1) Section 1 provides that "the
Joint Committee will no longer entertain complaints from the public as
soon as the Fact-Finding Team submits its final report, except for such
complaints involving offenses mentioned in the Fact-Finding Team’s
Final Report"; (2) Section 2 states that "the Joint Committee shall not
entertain a Motion to Dismiss"; and (3) Section 5 provides that a
Motion for Reconsideration may be availed of by the aggrieved parties
against the Joint Committee’s Resolution. Consequently, publication of
the Rules is necessary.
The publication requirement covers not only statutes but administrative
regulations and issuances, as clearly outlined in Tañada v.
Tuvera:108 effectivity, which shall begin fifteen days after publication
unless a different effectivity date is fixed by the legislature. Covered by
this rule are presidential decrees and executive orders promulgated by
the President in the exercise of legislative powers whenever the same
are validly delegated by the legislature or, at present, directly conferred
by the Constitution. Administrative rules and regulations must also be
published if their purpose is to enforce or implement existing law
pursuant also to a valid delegation. Interpretative regulations and those
merely internal in nature, that is, regulating only the personnel of the
administrative agency and not the public, need not be published.
Neither is publication required of the so called letters of instructions
issued by administrative superiors concerning the rules or guidelines to
be followed by their subordinates in the performance of their duties.109
As opposed to Honasan II v. The Panel of Investigating Prosecutors of
the Department of Justice,110 where the Court held that OMB-DOJ Joint
Circular No. 95-001 is only an internal arrangement between the DOJ
and the Office of the Ombudsman outlining the authority and
responsibilities among prosecutors of both offices in the conduct of
preliminary investigation, the assailed Joint Committee’s Rules of
Procedure regulate not only the prosecutors of the DOJ and the
Comelec but also the conduct and rights of persons, or the public in
general. The publication requirement should, therefore, not be ignored.
Publication is a necessary component of procedural due process to
give as wide publicity as possible so that all persons having an interest
in the proceedings may be notified thereof.111 The requirement of
publication is intended to satisfy the basic requirements of due
process. It is imperative for it will be the height of injustice to punish or
otherwise burden a citizen for the transgressions of a law or rule of
which he had no notice whatsoever.112
Nevertheless, even if the Joint Committee’s Rules of Procedure is
ineffective for lack of publication, the proceedings undertaken by the
Joint Committee are not rendered null and void for that reason,
because the preliminary investigation was conducted by the Joint
Committee pursuant to the procedures laid down in Rule 112 of the
Rules on Criminal Procedure and the 1993 Comelec Rules of
Procedure.
Validity of the Conduct of
Preliminary Investigation
In her Supplemental Petition,113 GMA outlines the incidents that took
place after the filing of the instant petition, specifically the issuance by
the Joint Committee of the Joint Resolution, the approval with
modification of such resolution by the Comelec and the filing of
information and the issuance of a warrant of arrest by the RTC. With
these supervening events, GMA further assails the validity of the
proceedings that took place based on the following additional grounds:
(1) the undue and unbelievable haste attending the Joint Committee’s
conduct of the preliminary investigation, its resolution of the case, and
its referral to and approval by the Comelec, taken in conjunction with
the statements from the Office of the President, demonstrate a
deliberate and reprehensible pattern of abuse of inalienable rights and
a blatant disregard of the envisioned integrity and independence of the
Comelec; (2) as it stands, the creation of the Joint Committee was for
the singular purpose of railroading the proceedings in the prosecution
of the petitioner and in flagrant violation of her right to due process and
equal protection of the laws; (3) the proceedings of the Joint
Committee cannot be considered impartial and fair, considering that
respondents have acted as law enforcers, who conducted the criminal
investigation, gathered evidence and thereafter ordered the filing of
complaints, and at the same time authorized preliminary investigation
based on the complaints they caused to be filed; (4) the Comelec
became an instrument of oppression when it hastily approved the
resolution of the Joint Committee even if two of its members were in no
position to cast their votes as they admitted to not having yet read the
voluminous records of the cases; and (5) flagrant and repeated
violations of her right to due process at every stage of the proceedings
demonstrate a deliberate attempt to single out petitioner through the
creation of the Joint Committee.114
In their Supplement to the Consolidated Comment,115 respondents
accuse petitioners of violating the rule against forum shopping. They
contend that in filing the Supplemental Petition before the Court, the
Urgent Omnibus Motion Ad Cautelam with the RTC, and the Motion to
Vacate Ad Cautelam with the Comelec, GMA raises the common issue
of whether or not the proceedings before the Joint Committee and the
Comelec are null and void for violating the Constitution. Respondents
likewise claim that the issues raised in the supplemental petition are
factual which is beyond the power of this Court to decide.
We cannot dismiss the cases before us on the ground of forum
shopping.
Forum shopping is the act of a party against whom an adverse
judgment has been rendered in one forum, of seeking another and
possibly favorable opinion in another forum other than by appeal or the
special civil action of certiorari.116There can also be forum shopping
when a party institutes two or more suits in different courts, either
simultaneously or successively, in order to ask the courts to rule on the
same and related causes and/or to grant the same or substantially the
same reliefs on the supposition that one or the other court would make
a favorable disposition or increase a party’s chances of obtaining a
favorable decision or action.117
Indeed, petitioner GMA filed a Supplemental Petition before the Court,
an Urgent Omnibus Motion Ad Cautelam before the RTC, and a Motion
to Vacate Ad Cautelam before the Comelec, emphasizing the
unbelievable haste committed by the Joint Committee and the
Comelec in disposing of the cases before them. However, a plain
reading of the allegations in GMA’s motion before the RTC would show
that GMA raised the issue of undue haste in issuing the Joint
Resolution only in support of her prayer for the trial court to hold in
abeyance the issuance of the warrant of arrest, considering that her
motion for reconsideration of the denial of her motion to be furnished
copies of documents was not yet acted upon by the Joint Committee. If
at all the constitutional issue of violation of due process was raised, it
was merely incidental. More importantly, GMA raised in her motion
with the RTC the finding of probable cause as she sought the judicial
determination of probable cause which is not an issue in the petitions
before us. GMA’s ultimate prayer is actually for the court to defer the
issuance of the warrant of arrest. Clearly, the reliefs sought in the RTC
are different from the reliefs sought in this case. Thus, there is no
forum shopping.
With respect to the Motion to Vacate Ad Cautelam filed with the
Comelec, while the issues raised therein are substantially similar to the
issues in the supplemental petition which, therefore, strictly speaking,
warrants outright dismissal on the ground of forum shopping, we
cannot do so in this case in light of the due process issues raised by
GMA.118 It is worthy to note that the main issues in the present petitions
are the constitutionality of the creation of the Joint Panel and the
validity of the proceedings undertaken pursuant thereto for alleged
violation of the constitutional right to due process. In questioning the
propriety of the conduct of the preliminary investigation in her
Supplemental Petition, GMA only raises her continuing objection to the
exercise of jurisdiction of the Joint Committee and the Comelec. There
is, therefore, no impediment for the Court to rule on the validity of the
conduct of preliminary investigation.
In Uy v. Office of the Ombudsman,119 the Court explained the nature of
preliminary investigation, to wit:
A preliminary investigation is held before an accused is placed on trial
to secure the innocent against hasty, malicious, and oppressive
prosecution; to protect him from an open and public accusation of a
crime, as well as from the trouble, expenses, and anxiety of a public
trial. It is also intended to protect the state from having to conduct
useless and expensive trials. While the right is statutory rather than
constitutional, it is a component of due process in administering
criminal justice. The right to have a preliminary investigation conducted
before being bound for trial and before being exposed to the risk of
incarceration and penalty is not a mere formal or technical right; it is a
substantive right. To deny the accused's claim to a preliminary
investigation is to deprive him of the full measure of his right to due
process.120
A preliminary investigation is the crucial sieve in the criminal justice
system which spells for an individual the difference between months if
not years of agonizing trial and possibly jail term, on the one hand, and
peace of mind and liberty, on the other hand. Thus, we have
characterized the right to a preliminary investigation as not a mere
formal or technical right but a substantive one, forming part of due
process in criminal justice.121
In a preliminary investigation, the Rules of Court guarantee the
petitioners basic due process rights such as the right to be furnished a
copy of the complaint, the affidavits, and other supporting documents,
and the right to submit counter-affidavits, and other supporting
documents in her defense.122 Admittedly, GMA received the notice
requiring her to submit her counter-affidavit. Yet, she did not comply,
allegedly because she could not prepare her counter-affidavit. She
claimed that she was not furnished by Senator Pimentel pertinent
documents that she needed to adequately prepare her counter-
affidavit.
In her Omnibus Motion Ad Cautelam123 to require Senator Pimentel to
furnish her with documents referred to in his complaint-affidavit and for
production of election documents as basis for the charge of electoral
sabotage, GMA prayed that the Joint Committee issue an Order
directing the Fact-Finding Team and Senator Pimentel to furnish her
with copies of the following documents:
a. Complaint-affidavit and other relevant documents of
Senator Aquilino Pimentel III filed before the Commission on
Elections against Attys. Lilia Suan-Radam and Yogie
Martirizar, as well as the Informations filed in the Regional
Trial Court of Pasay City, Branch 114 in Criminal Case Nos.
R-PSU-11-03190-CR to R-PSU-11-03200-CR.
b. Records in the petitions filed by complainant Pimentel
before the National Board of Canvassers, specifically in NBC
Case Nos. 07-162, 07-168, 07-157, 07-159, 07-161 and 07-
163.
c. Documents which served as basis in the allegations of
"Significant findings specific to the protested municipalities in
the Province of Maguindanao."
d. Documents which served as basis in the allegations of
"Significant findings specific to the protested municipalities in
the Province of Lanao del Norte."
e. Documents which served as basis in the allegations of
"Significant findings specific to the protested municipalities in
the Province of Shariff Kabunsuan."
f. Documents which served as basis in the allegations of
"Significant findings specific to the protested municipalities in
the Province of Lanao del Sur."
g. Documents which served as basis in the allegations of
"Significant findings specific to the protested municipalities in
the Province of Sulu."
h. Documents which served as basis in the allegations of
"Significant findings specific to the protested municipalities in
the Province of Basilan."
i. Documents which served as basis in the allegations of
"Significant findings specific to the protested municipalities in
the Province of Sultan Kudarat."124
GMA likewise requested the production of election documents used in
the Provinces of South and North Cotabato and Maguindanao.125
The Joint Committee, however, denied GMA’s motion which carried
with it the denial to extend the filing of her counter-affidavit.
Consequently, the cases were submitted for resolution sans GMA’s
and the other petitioners’ counter-affidavits. This, according to GMA,
violates her right to due process of law.
We do not agree.
GMA’s insistence of her right to be furnished the above-enumerated
documents is based on Section 3 (b), Rule 112 of the Rules on
Criminal Procedure, which reads:
(b) x x x
The respondent shall have the right to examine the evidence submitted
by the complainant which he may not have been furnished and to copy
them at his expense. If the evidence is voluminous, the complainant
may be required to specify those which he intends to present against
the respondent, and these shall be made available for examination or
copying by the respondent at his expense,
Objects as evidence need not be furnished a party but shall be made
available for examination, copying or photographing at the expense of
the requesting party.126
Section 6 (a), Rule 34 of the Comelec Rules of Procedure also grants
the respondent such right of examination, to wit:
Sec. 6. Conduct of preliminary investigation. – (a) If on the basis of the
complaint, affidavits and other supporting evidence, the investigating
officer finds no ground to continue with the inquiry, he shall
recommend the dismissal of the complaint and shall follow the
procedure prescribed in Sec. 8 (c) of this Rule. Otherwise, he shall
issue a subpoena to the respondent, attaching thereto a copy of the
complaint, affidavits and other supporting documents giving said
respondent ten (10) days from receipt within which to submit counter-
affidavits and other supporting documents. The respondent shall have
the right to examine all other evidence submitted by the
complainant.127
Clearly from the above-quoted provisions, the subpoena issued
against respondent therein should be accompanied by a copy of the
complaint and the supporting affidavits and documents. GMA also has
the right to examine documents but such right of examination is limited
only to the documents or evidence submitted by the complainants
(Senator Pimentel and the Fact-Finding Team) which she may not
have been furnished and to copy them at her expense.
While it is true that Senator Pimentel referred to certain election
documents which served as bases in the allegations of significant
findings specific to the protested municipalities involved, there were no
annexes or attachments to the complaint filed.128 As stated in the Joint
Committee’s Order dated November 15, 2011 denying GMA’s
Omnibus Motion Ad Cautelam, Senator Pimentel was ordered to
furnish petitioners with all the supporting evidence129 However, Senator
Pimentel manifested that he was adopting all the affidavits attached to
the Fact-Finding Team’s Initial Report.130Therefore, when GMA was
furnished with the documents attached to the Initial Report, she was
already granted the right to examine as guaranteed by the Comelec
Rules of Procedure and the Rules on Criminal Procedure. Those were
the only documents submitted by the complainants to the Committee. If
there are other documents that were referred to in Senator Pimentel’s
complaint but were not submitted to the Joint Committee, the latter
considered those documents unnecessary at that point (without
foreclosing the relevance of other evidence that may later be
presented during the trial)131 as the evidence submitted before it were
considered adequate to find probable cause against her. 132Anyway, the
failure of the complainant to submit documents supporting his
allegations in the complaint may only weaken his claims and eventually
works for the benefit of the respondent as these merely are allegations
unsupported by independent evidence.
We must, however, emphasize at this point that during the preliminary
investigation, the complainants are not obliged to prove their cause
beyond reasonable doubt. It would be unfair to expect them to present
the entire evidence needed to secure the conviction of the accused
prior to the filing of information.133 A preliminary investigation is not the
occasion for the full and exhaustive display of the parties’ respective
evidence but the presentation only of such evidence as may engender
a well-grounded belief that an offense has been committed and that
the accused is probably guilty thereof and should be held for
trial.134 Precisely there is a trial to allow the reception of evidence for
the prosecution in support of the charge.135
With the denial of GMA’s motion to be furnished with and examine the
documents referred to in Senator Pimentel’s complaint, GMA’s motion
to extend the filing of her counter-affidavit and countervailing evidence
was consequently denied. Indeed, considering the nature of the crime
for which GMA was subjected to preliminary investigation and the
documents attached to the complaint, it is incumbent upon the Joint
Committee to afford her ample time to examine the documents
submitted to the Joint Committee in order that she would be able to
prepare her counter-affidavit. She cannot, however, insist to examine
documents not in the possession and custody of the Joint Committee
nor submitted by the complainants. Otherwise, it might cause undue
and unnecessary delay in the disposition of the cases. This undue
delay might result in the violation of the right to a speedy disposition of
cases as enshrined in Section 16, Article III of the Constitution which
states that "all persons shall have the right to a speedy disposition of
their cases before all judicial, quasi-judicial, or administrative bodies."
The constitutional right to speedy disposition of cases is not limited to
the accused in criminal proceedings but extends to all parties in all
cases, including civil and administrative cases, and in all proceedings,
including judicial and quasi-judicial hearings.136 Any party to a case has
the right to demand on all officials tasked with the administration of
justice to expedite its disposition.137 Society has a particular interest in
bringing swift prosecutions, and the society’s representatives are the
ones who should protect that interest.138
Even assuming for the sake of argument that the denial of GMA’s
motion to be furnished with and examine the documents referred to in
Senator Pimentel’s complaint carried with it the denial to extend the
filing of her counter-affidavit and other countervailing evidence
rendering the preliminary investigation irregular, such irregularity would
not divest the RTC of jurisdiction over the case and would not nullify
the warrant of arrest issued in connection therewith, considering that
Informations had already been filed against petitioners, except Mike
Arroyo. This would only compel us to suspend the proceedings in the
RTC and remand the case to the Joint Committee so that GMA could
submit her counter-affidavit and other countervailing evidence if she
still opts to. However, to do so would hold back the progress of the
case which is anathema to the accused’s right to speedy disposition of
cases.
It is well settled that the absence or irregularity of preliminary
investigation does not affect the court’s jurisdiction over the case. Nor
does it impair the validity of the criminal information or render it
defective. Dismissal is not the remedy.139Neither is it a ground to quash
the information or nullify the order of arrest issued against the accused
or justify the release of the accused from detention. 140 The proper
course of action that should be taken is to hold in abeyance the
proceedings upon such information and to remand the case for the
conduct of preliminary investigation.141
In the landmark cases of Cojuangco, Jr. v. Presidential Commission on
Good Government (PCGG)142 and Allado v. Diokno,143 we dismissed
the criminal cases and set aside the informations and warrants of
arrest. In Cojuangco, we dismissed the criminal case because the
information was filed by the PCGG which we declared to be
unauthorized to conduct the preliminary investigation and,
consequently, file the information as it did not possess the cold
neutrality of an impartial judge. In Allado, we set aside the warrant of
arrest issued against petitioners therein and enjoined the trial court
from proceeding further for lack of probable cause. For one, there was
serious doubt on the reported death of the victim in that case since the
corpus delicti had not been established nor had his remains been
recovered;and based on the evidence submitted, there was nothing to
incriminate petitioners therein. In this case, we cannot reach the same
conclusion because the Information filed before the RTC of Pasay City
was filed by the Comelec en banc which had the authority to file the
information for electoral sabotage and because the presence or
absence of probable cause is not an issue herein. As can be gleaned
from their assignment of errors/issues, petitioners did not question the
finding of probable cause in any of their supplemental petitions. It was
only in GMA’s memorandum where she belatedly included a
discussion on the "insufficiency" of the evidence supporting the finding
of probable cause for the filing of the Information for electoral sabotage
against her.144 A closer look at her arguments, however, would show
that they were included only to highlight the necessity of examining the
election documents GMA requested to see before she could file her
counter-affidavit. At any rate, since GMA failed to submit her counter-
affidavit and other countervailing evidence within the period required
by the Joint Committee, we cannot excuse her from non-compliance.
There might have been overzealousness on the part of the Joint
Committee in terminating the investigation, endorsing the Joint
Resolution to the Comelec for approval, and in filing the information in
court. However, speed in the conduct of proceedings by a judicial or
quasi-judicial officer cannot per se be instantly attributed to an
injudicious performance of functions.145 The orderly administration of
justice remains the paramount consideration with particular regard to
the peculiar circumstances of each case.146 To be sure, petitioners
were given the opportunity to present countervailing evidence. Instead
of complying with the Joint Committee’s directive, several motions
were filed but were denied by the Joint Committee. Consequently,
petitioners’ right to submit counter-affidavit and countervailing evidence
was forfeited. Taking into account the constitutional right to speedy
disposition of cases and following the procedures set forth in the Rules
on Criminal Procedure and the Comelec Rules of Procedure, the Joint
Committee finally reached its conclusion and referred the case to the
Comelec. The latter, in turn, performed its task and filed the
information in court. Indeed, petitioners were given the opportunity to
be heard. They even actively participated in the proceedings and in
fact filed several motions before the Joint Committee. Consistent with
the constitutional mandate of speedy disposition of cases,
unnecessary delays should be avoided.
Finally, we take judicial notice that on February 23, 2012, GMA was
already arraigned and entered a plea of "not guilty" to the charge
against her and thereafter filed a Motion for Bail which has been
granted. Considering that the constitutionality of the creation of the
Joint Panel is sustained, the actions of the Joint Committee and Fact-
Finding Team are valid and effective. As the information was filed by
the Commission authorized to do so, its validity is sustained. Thus, we
consider said entry of plea and the Petition for Bail waiver on the part
of GMA of her right to submit counter-affidavit and countervailing
evidence before the Joint Committee, and recognition of the validity of
the information against her. Her act indicates that she opts to avail of
judicial remedies instead of the executive remedy of going back to the
Joint Committee for the submission of the counter-affidavit and
countervailing evidence. Besides, as discussed earlier, the absence or
irregularity of preliminary investigation does not affect the court’s
jurisdiction over the case nor does it impair the validity of the criminal
information or render it defective.
It must be stressed, however, that this supervening event does not
render the cases before the Court moot and academic as the main
issues raised by petitioners are the constitutionality of the creation of
the Joint Committee and the Fact-Finding Team and the validity of the
proceedings undertaken pursuant to their respective mandates.
The Court notes that the Joint Committee and the Comelec have not
disposed of the cases of the other respondents subjects of the
preliminary investigation as some of them were subjected to further
investigation. In order to remove the cloud of doubt that pervades that
petitioners are being singled out, it is to the best interest of all the
parties concerned that the Joint Committee and the Comelec terminate
the proceedings as to the other respondents therein and not make a
piecemeal disposition of the cases.
A peripheral issue which nonetheless deserves our attention is the
question about the credibility of the Comelec brought about by the
alleged professional relationship between Comelec Chairman
Brillantes on one hand and the complainant Senator Pimentel and
Fernando Poe, Jr. (FPJ), GMA’s rival in the 2004 elections, on the
other hand; and by the other Commissioners’147 reasons for their partial
inhibition. To be sure, Chairman Brillantes’ relationship with FPJ and
Senator Pimentel is not one of the grounds for the mandatory
disqualification of a Commissioner. At its most expansive, it may be
considered a ground for voluntary inhibition which is indeed
discretionary as the same was primarily a matter of conscience and
sound discretion on the part of the Commissioner judge based on his
or her rational and logical assessment of the case.148 Bare allegations
of bias and prejudice are not enough in the absence of clear and
convincing evidence to overcome the presumption that a judge will
undertake his noble role to dispense justice according to law and
evidence without fear or favor.149 It being discretionary and since
Commissioner Brillantes was in the best position to determine whether
or not there was a need to inhibit from the case, his decision to
participate in the proceedings, in view of higher interest of justice,
equity and public interest, should be respected. While a party has the
right to seek the inhibition or disqualification of a judge (or prosecutor
or Commissioner) who does not appear to be wholly free,
disinterested, impartial, and independent in handling the case, this
right must be weighed with his duty to decide cases without fear of
repression.150
Indeed, in Javier v. Comelec,151 the Court set aside the Comelec’s publication requirement. Consequently, Rule 112 of the Rules on
decision against Javier when it was disclosed that one of the Criminal Procedure and the 1993 Comelec Rules of Procedure govern.
Commissioners who had decided the case was a law partner of
Javier’s opponent and who had refused to excuse himself from hearing
Fifth, petitioners were given the opportunity to be heard. They were
the case. Javier, however, is not applicable in this case. First, the cited
furnished a copy of the complaint, the affidavits, and other supporting
case involves the Comelec’s exercise of its adjudicatory function as it
documents submitted to the Joint Committee and they were required to
was called upon to resolve the propriety of the proclamation of the
submit their counter-affidavit and countervailing evidence. As to
winner in the May 1984 elections for Batasang Pambansa of Antique.
petitioners Mike Arroyo and Abalos, the pendency of the cases before
Clearly, the grounds for inhibition/disqualification were applicable.
the Court does not automatically suspend the proceedings before the
Second, the case arose at the time where the purity of suffrage has
Joint Committee nor excuse them from their failure to file the required
been defiled and the popular will scorned through the confabulation of
counter-affidavits. With the foregoing disquisitions, we find no reason
those in authority.152 In other words, the controversy arose at the time
to nullify the proceedings undertaken by the Joint Committee and the
when the public confidence in the Comelec was practically nil because
Comelec in the electoral sabotage cases against petitioners.
of its transparent bias in favor of the administration.153Lastly, in
determining the propriety of the decision rendered by the Comelec, the
Court took into consideration not only the relationship (being former WHEREFORE, premises considered, the petitions and supplemental
partners in the law firm) between private respondents therein, Arturo F. petitions are DISMISSED. Comelec Resolution No. 9266 dated August
Pacificador, and then Comelec Commissioner Jaime Opinion 2, 2011, Joint Order No. 001-2011 dated August 15, 2011, and the
(Commissioner Opinion) but also the general attitude of the Comelec Fact-Finding Team’s Initial Report dated October 20, 2011, are
toward the party in power at that time. Moreover, the questioned declared VALID. However, the Rules of Procedure on the Conduct of
Comelec decision was rendered only by a division of the Comelec. The Preliminary Investigation on the Alleged Election Fraud in the 2004 and
Court thus concluded in Javier that Commissioner Opinion’s refusal to 2007 National Elections is declared INEFFECTIVE for lack of
inhibit himself divested the Comelec’s Second Division of the publication.
necessary vote for the questioned decision and rendered the
proceedings null and void.154
In view of the constitutionality of the Joint Panel and the proceedings
having been conducted in accordance with Rule 112 of the Rules on
On the contrary, the present case involves only the conduct of Criminal Procedure and Rule 34 of the Comelec Rules of Procedure,
preliminary investigation and the questioned resolution is an act of the the conduct of the preliminary investigation is hereby declared VALID.
Comelec En Banc where all the Commissioners participated and more
than a majority (even if Chairman Brillantes is excluded) voted in favor
of the assailed Comelec resolution. Unlike in 1986, public confidence Let the proceedings in the Regional Trial Court of Pasay City, Branch
in the Comelec remains. The Commissioners have already taken their 112, where the criminal cases for electoral sabotage against
positions in light of the claim of "bias and partiality" and the causes of petitioners GMA and Abalos are pending, proceed with dispatch.
their partial inhibition. Their positions should be respected confident
that in doing so, they had the end in view of ensuring that the credibility SO ORDERED.
of the Commission is not seriously affected.

To recapitulate, we find and so hold that petitioners failed to establish

any constitutional or legal impediment to the creation of the Joint DOJ-
Comelec Preliminary Investigation Committee and Fact-Finding Team.

First, while GMA and Mike Arroyo were among those subjected to
preliminary investigation, not all respondents therein were linked to
GMA; thus, Joint Order No. 001-2011 does not violate the equal
protection clause of the Constitution.

Second, the due process clause is likewise not infringed upon by the
alleged prejudgment of the case as petitioners failed to prove that the
Joint Panel itself showed such bias and partiality against them. Neither
was it shown that the Justice Secretary herself actually intervened in
the conduct of the preliminary investigation. More importantly,
considering that the Comelec is a collegial body, the perceived
prejudgment of Chairman Brillantes as head of the Comelec cannot be
considered an act of the body itself.

Third, the assailed Joint Order did not create new offices because the
Joint Committee and Fact-Finding Team perform functions that they
already perform by virtue of the Constitution, the statutes, and the
Rules of Court.1âwphi1

Fourth, in acting jointly with the DOJ, the Comelec cannot be

considered to have abdicated its independence in favor of the
executive branch of government. Resolution No. 9266 was validly
issued by the Comelec as a means to fulfill its duty of ensuring the
prompt investigation and prosecution of election offenses as an adjunct
of its mandate of ensuring a free, orderly, honest, peaceful, and
credible elections. The role of the DOJ in the conduct of preliminary
investigation of election offenses has long been recognized by the
Comelec because of its lack of funds and legal officers to conduct
investigations and to prosecute such cases on its own. This is
especially true after R.A. No. 9369 vested in the Comelec and the DOJ
the concurrent jurisdiction to conduct preliminary investigation of all
election offenses. While we uphold the validity of Comelec Resolution
No. 9266 and Joint Order No. 001-2011, we declare the Joint
Committee’s Rules of Procedure infirm for failure to comply with the
 EN BANC
G.R. No. 199082 July 23, 2013
JOSE MIGUEL T. ARROYO, Petitioner,
vs.
DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON.
LEILA DE LIMA, in her capacity as Secretary of the Department of
Justice; HON. SIXTO BRILLANTES, JR., in his capacity as
Chairperson of the Commission on Elections; and the JOINT DOJ-
COMELEC PRELIMINARY INVESTIGATION COMMITTEE and
FACT-FINDING TEAM, Respondents.
x-----------------------x
G.R. No. 199085
BENJAMIN S. ABALOS, SR., Petitioner,
vs.
HON. LEILA DE LIMA, in capacity as Secretary of Justice; HON.
SIXTO S. BRILLANTES, JR., in his capacity as COMELEC
Chairperson; RENE V. SARMIENTO, LUCENITO N. TAGLE,
ARMANDO V. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT
S. LIM AND AUGUSTO C. LAGMAN, in their capacity as COMELEC
COMMISSIONERS; CLARO A. ARELLANO, GEORGE C. DEE,
JACINTO G. ANG, ROMEO B. FORTES AND MICHAEL D.
VILLARET, in their capacity as CHAIRPERSON AND MEMBERS,
RESPECTIVELY, OF THE JOINT DOJ-COMELEC PRELIMINARY
INVESTIGATION COMMITTEE ON THE 2004 AND 2007 ELECTION
FRAUD,Respondents.
x-----------------------x
G.R. No. 199118
GLORIA MACAPAGAL-ARROYO, Petitioner,
vs.
COMMISSION ON ELECTIONS, represented by Chairperson Sixto
S. Brillantes, Jr., DEPARTMENT OF JUSTICE, represented by
Secretary Leila M. De Lima, JOINT DOJ-COMELEC PRELIMINARY
INVESTIGATION COMMITTEE, SENATOR AQUILINO M. PIMENTEL
III, and DOJ-COMELEC FACT FINDING TEAM, Respondents.
RESOLUTION
PERALTA, J.:
For resolution are the separate motions for reconsideration filed by
movants Gloria Macapagal Arroyo (GMA)1 in G.R. No. 199118 and
Jose Miguel T. Arroyo (Mike Arroyo )2 in G.R. No. 199082 praying that
the Court take a second look at our September 18, 2012
Decision3 dismissing their petitions and supplemental petitions against
respondents Commission on Elections (Comelec), the Department of
Justice (DOJ), Senator Aquilino M. Pimentel III (Senator Pimentel),
Joint DOJ-Comelec Preliminary Investigation Committee (Joint
Committee) and DOJ-Comelec Fact-Finding Team (Fact-Finding
Team), et al.
For a better perspective, we briefly state the relevant factual and
procedural antecedents as found by the Court in the assailed decision,
to wit:
On August 15, 2011, the Comelec and the DOJ issued Joint Order No.
001-2011 creating and constituting a Joint Committee and Fact-Finding
Team (referred to as Joint Panel) on the 2004 and 2007 National
Elections electoral fraud and manipulation cases. The Joint Committee
was mandated to conduct the necessary preliminary investigation on
the basis of the evidence gathered and the charges recommended by
the Fact-Finding Team. The Fact-Finding Team, on the other hand,
was created for the purpose of gathering real, documentary, and
testimonial evidence which can be utilized in the preliminary
investigation to be conducted by the Joint Committee. Pursuant to
Section 74 of the Joint Order, on August 23, 2011, the Joint Committee
promulgated its Rules of Procedure.
In its Initial Report5 dated October 20, 2011, the Fact-Finding Team
concluded that manipulation of the results in the May 14, 2007
senatorial elections in the provinces of North and South Cotabato, and
Maguindanao was indeed perpetrated.6 The Fact-Finding Team
recommended, among others, that petitioner Benjamin S. Abalos, Sr.
(Abalos) be subjected to preliminary investigation for electoral
sabotage for conspiring to manipulate the election results in North and
South Cotabato; that GMA and Abalos be subjected to another
preliminary investigation for manipulating the election results in
Maguindanao;7 and, that Mike Arroyo be subjected to further
investigation.8 The case was docketed as DOJ-Comelec Case No.
001-2011.
Meanwhile, on October 17, 2011, Senator Pimentel filed a
ComplaintAffidavit9 for Electoral Sabotage against petitioners and
twelve others, and several John Does and Jane Does. The case was
docketed as DOJ-Comelec Case No. 002-2011.
On October 24, 2011, the Joint Committee issued two subpoenas
against petitioners in DOJ-Comelec Case Nos. 001-2011 and 002-
2011.10 On November 3, 2011, petitioners, through counsel, appeared
before the Joint Committee11 and respondents therein were ordered to
submit their Counter-Affidavits by November 14, 2011.12
Thereafter, petitioners filed before the Court separate Petitions for
Certiorari and Prohibition with Prayer for the Issuance of a Temporary
Restraining Order (TRO) and/or Writ of Preliminary Injunction assailing
the creation of the Joint Panel.13 The petitions were eventually
consolidated.
On November 14, 2011, Mike Arroyo filed a Motion to Defer
Proceedings14 before the Joint Committee, in view of the pendency of
his petition before the Court. On the same day, GMA filed before the
Joint Committee an Omnibus Motion Ad Cautelam 15 to require Senator
Pimentel to furnish her with documents referred to in his complaint-
affidavit and for the production of election documents as basis for the
charge of electoral sabotage. GMA prayed that she be allowed to file
her counter-affidavit within ten (10) days from receipt of the requested
documents.16Petitioner Abalos, for his part, filed a Motion to Suspend
Proceedings (Ex Abundante Ad Cautelam),17 in view of the pendency
of his petition brought before the Court.
In an Order18 dated November 15, 2011, the Joint Committee denied
the aforesaid motions of petitioners. GMA, subsequently, filed a motion
for reconsideration.19
On November 16, 2011, the Joint Committee promulgated a Joint
Resolution which was later indorsed to the Comelec.20 On November
18, 2011, the Comelec en banc issued a Resolution21 approving and
adopting the Joint Resolution subject to modifications. The Comelec
resolved, among others, that an information for electoral sabotage be
filed against GMA and Abalos, while the charges against Mike Arroyo
be dismissed for insufficiency of evidence.
On even date, pursuant to the above Resolution, the Comelec’s Law
Department filed with the Regional Trial Court (RTC), Pasay City, an
Information against petitioner GMA, Governor Andal Ampatuan, Sr.,
and Atty. Lintang H. Bedol, for violation of Section 42(b)(3) of Republic
Act (RA) No. 9369, amending Section 27 (b) of RA 6646, docketed as
Criminal Case No. RPSY-11-04432-CR.22 The case was raffled to
Branch 112 and the corresponding Warrant of Arrest was issued which
was served on GMA on the same day.23
On November 18, 2011, GMA filed with the RTC an Urgent Omnibus
Motion Ad Cautelam24 with leave to allow the Joint Committee to
resolve the motion for reconsideration filed by GMA, to defer issuance
of a warrant of arrest and a hold departure order, and to proceed to
judicial determination of probable cause. She, likewise, filed with the
Comelec a Motion to Vacate Ad Cautelam 25 praying that its Resolution
be vacated for being null and void. The RTC, nonetheless, issued a
Warrant for her arrest which was duly served. GMA was later arraigned
and she entered a plea of "not guilty." She was, for some time, on
hospital arrest but was able to obtain temporary liberty when her
motion for bail was granted. At present, she is again on hospital arrest
by virtue of a warrant issued in another criminal case.
On September 18, 2012, the Court rendered the assailed Decision, the
dispositive portion of which reads:
WHEREFORE, premises considered, the petitions and supplemental
petitions are DISMISSED. Comelec Resolution No. 9266 dated August
2, 2011, Joint Order No. 001-2011 dated August 15, 2011, and the
Fact- Finding Team’s Initial Report dated October 20, 2011, are
declared VALID. However, the Rules of Procedure on the Conduct of
Preliminary Investigation on the Alleged Election Fraud in the 2004 and
2007 National Elections is declared INEFFECTIVE for lack of
publication.
In view of the constitutionality of the Joint Panel and the proceedings
having been conducted in accordance with Rule 112 of the Rules on
Criminal Procedure and Rule 34 of the Comelec Rules of Procedure,
the conduct of the preliminary investigation is hereby declared VALID.
Let the proceedings in the Regional Trial Court of Pasay City, Branch
112, where the criminal cases for electoral sabotage against
petitioners GMA and Abalos are pending, proceed with dispatch.
SO ORDERED.26
Hence, these motions for reconsideration.
Issues
Mike Arroyo reiterates his arguments on the independence of the
Comelec as basis in nullifying the subject joint DOJ-Comelec
resolutions. Echoing Justice Arturo Brion in his Dissenting and
Concurring Opinion,27 Mike Arroyo insists that the creation of the Joint
Panel undermines the decisional independence of the Comelec.28
Mike Arroyo also maintains that the DOJ should conduct preliminary
investigation only when deputized by the Comelec but not exercise
concurrent jurisdiction.29 Finally, as has been repeatedly pointed out in
his earlier pleadings before the Court, Mike Arroyo claims that the
proceedings involving the electoral sabotage case were rushed
because of pressures from the executive branch of the government.30
For her part, GMA claims that in availing of the procedural remedies
available, she merely exercised her earnest efforts to defend herself
and should not have been deemed by the Court as acts which
purportedly tend to demonstrate that she either waived or forfeited her
right to submit her counter-affidavit and countervailing
evidence.31 Citing several cases decided by the Court, she likewise
faults the Court in not upholding her right to ask for additional time
within which to submit her counter-affidavit and countervailing
evidence.32 GMA highlights that the subject Comelec Resolution
creating the Joint Panel is different from the previous Comelec
resolutions requesting the DOJ Secretary to assign prosecutors to
assist the Comelec, as the latter emphasize the role of the DOJ as
deputized agency in the conduct of preliminary investigation. She
maintains that it is the Comelec and not the Joint Committee that has
the primary, if not exclusive, authority to conduct preliminary
investigation of election cases.33
34
In their Consolidated Comment, respondents defend the creation of
the Joint Committee and argue that it does not undermine the
independence of the Comelec as a constitutional body because it is
still the Comelec that ultimately determines probable cause.35 As to the
conduct of the preliminary investigation, respondents maintain that no
rights were violated as GMA was afforded the opportunity to defend
herself, submit her counter-affidavit and other countervailing
evidence.36 They, thus, consider GMA’s claim of availing of the
remedial measures as "delaying tactics" employed to thwart the
investigation of charges against her by the Joint Committee.37
The Court’s Ruling
Clearly from the above discussion, movants raise issues that have
been thoroughly explained by the Court in the assailed decision. The
issues were all addressed and the explanation was exhaustive, thus,
we find no reason to disturb the Court’s conclusions.
At any rate, if only to address the motions of the movants herein and to
put an end to the questions attached to the creation of the Joint Panel
and, consequently, to the performance of their assigned tasks, we
hereby reiterate our findings and conclusions made in the assailed
decision.
This is not the first time that the Court is confronted with the issue of
whether the Comelec has the exclusive power to investigate and
prosecute cases of violations of election laws. In Barangay Association
for National Advancement and Transparency (BANAT) Party-List v.
Commission on Elections,38 the constitutionality of Section 4339 of RA
936940 had already been raised by petitioners therein and addressed
by the Court. While recognizing the Comelec’s exclusive power to
investigate and prosecute cases under Batas Pambansa Bilang 881 or
the Omnibus Election Code, the Court pointed out that the framers of
the 1987 Constitution did not have such intention. This exclusivity is
thus a legislative enactment that can very well be amended by Section
43 of RA 9369. Therefore, under the present law, the Comelec and
other prosecuting arms of the government, such as the DOJ, now
exercise concurrent jurisdiction in the investigation and prosecution of
election offenses.
Indeed, as aptly pointed out by GMA, there is a discrepancy between
Comelec Resolution No. 346741 dated January 12, 2001 and Joint
Order No. 001-2011, dated August 15, 2011, creating and constituting
a Joint Committee and Fact-Finding Team on the 2004 and 2007
National Elections electoral fraud and manipulation cases. However,
GMA seemed to miss the date when these two resolutions were
promulgated by the Comelec. It is noteworthy that Comelec Resolution
No. 3467 was issued when Section 265 of the Omnibus Election Code
was still effective, while Joint Order No. 001-2011 as well as Comelec
Resolution Nos. 873342 and 905743 mentioned in the assailed decision
but missed out by GMA in her motion, were issued during the
effectivity of Section 43 of RA 9369, giving the Comelec and other
prosecuting arms of the government the concurrent jurisdiction to
investigate and prosecute election offenses. This amendment paved
the way for the discrepancy. In Comelec Resolution No. 3467, the
Comelec maintained the continuing deputation of prosecutors and the
Comelec Law Department was tasked to supervise the investigatory
and prosecutory functions of the task force pursuant to the mandate of
the Omnibus Election Code. However, with the amendment, the
Comelec likewise changed the tenor of the later resolutions to reflect
the new mandate of the Comelec and other prosecuting arms of the
government now exercising concurrent jurisdiction. Thus, the Comelec
Law Department and the Office of the Chief State Prosecutor of the
DOJ were tasked to jointly supervise the investigatory and prosecutory
functions of the Comelec-DOJ Task Force. Considering, therefore, that
the later resolutions, including Joint Order No. 001-2011, were issued
pursuant to Section 43 of RA 9369 amending Section 265 of BP 881
which was declared "constitutional" in Banat, there is no reason for us
to declare otherwise. To maintain the previous role of other
prosecuting arms of the government as mere deputies despite the
amendment would mean challenging Section 43 of RA 9369 anew
which has already been settled in Banat.
To be sure, the creation of a Joint Committee is not repugnant to the
concept of "concurrent jurisdiction" authorized by the amendatory law.
As we explained in our September 18, 2012 Decision:
x x x The doctrine of concurrent jurisdiction means equal jurisdiction to
deal with the same subject matter. Contrary to the contention of the
petitioners, there is no prohibition on simultaneous exercise of power
between two coordinate bodies. What is prohibited is the situation
where one files a complaint against a respondent initially with one
office (such as the Comelec) for preliminary investigation which was
immediately acted upon by said office and the re-filing of substantially
the same complaint with another office (such as the DOJ). The
subsequent assumption of jurisdiction by the second office over the
cases filed will not be allowed. Indeed, it is a settled rule that the body
or agency that first takes cognizance of the complaint shall exercise
jurisdiction to the exclusion of the others.
xxxx
None of these problems would likely arise in the present case. The
Comelec and the DOJ themselves agreed that they would exercise
their concurrent jurisdiction jointly. Although the preliminary
investigation was conducted on the basis of two complaints – the initial
report of the Fact-Finding Team and the complaint of Senator Pimentel
– both complaints were filed with the Joint Committee. Consequently,
the complaints were filed with and the preliminary investigation was
conducted by only one investigative body. Thus, we find no reason to
disallow the exercise of concurrent jurisdiction jointly by those given
such authority. This is especially true in this case given the magnitude
of the crimes allegedly committed by petitioners. The joint preliminary
investigation also serves to maximize the resources and manpower of
both the Comelec and the DOJ for the prompt disposition of the
cases.44
Notwithstanding the grant of concurrent jurisdiction, the Comelec and
the DOJ nevertheless included a provision in the assailed Joint Order
whereby the resolutions of the Joint Committee finding probable cause
for election offenses shall still be approved by the Comelec in
accordance with the Comelec Rules of Procedure. 45 With more reason,
therefore, that we cannot consider the creation of the Joint Committee
as an abdication of the Comelec’s independence enshrined in the 1987
Constitution.
Finally, we focus on the validity of the preliminary investigation
conducted by the Joint Committee.
The procedure in conducting the preliminary investigation is governed
by Rule 112 of the Revised Rules on Criminal Procedure and Rule 34
of the Comelec Rules of Procedure. Under both Rules, 46 the
respondent shall submit his counter-affidavit and that of his witnesses
and other supporting documents relied upon for his defense, within ten
(10) days from receipt of the subpoena, with the complaint and
supporting affidavits and documents.47Also in both Rules, respondent
is given the right to examine evidence, but such right of examination is
limited only to the documents or evidence submitted by complainants
which she may not have been furnished and to copy them at her
expense.48
As to the alleged denial of GMA’s right to examine documents, we
maintain that no right was violated in view of the limitation of such right
as set forth above. We reiterate our explanation in the assailed
decision, to wit:
While it is true that Senator Pimentel referred to certain election
documents which served as bases in the allegations of significant
findings specific to the protested municipalities involved, there were no
annexes or attachments to the complaint filed. As stated in the Joint
Committee’s Order dated November 15, 2011 denying GMA’s
Omnibus Motion Ad Cautelam, Senator Pimentel was ordered to
furnish petitioners with all the supporting evidence. However, Senator
Pimentel manifested that he was adopting all the affidavits attached to
the Fact-Finding Team’s Initial Report. Therefore, when GMA was
furnished with the documents attached to the Initial Report, she was
already granted the right to examine as guaranteed by the Comelec
Rules of Procedure and the Rules on Criminal Procedure. Those were
the only documents submitted by the complainants to the Committee. If
there are other documents that were referred to in Senator Pimentel’s
complaint but were not submitted to the Joint Committee, the latter
considered those documents unnecessary at that point (without
foreclosing the relevance of other evidence that may later be
presented during the trial) as the evidence submitted before it were
considered adequate to find probable cause against her. x x
x491âwphi1
Neither was GMA’s right violated when her motion for extension of time
within which to submit her counter-affidavit and countervailing
evidence was consequently denied. The Rules use the term "shall" in
requiring the respondent to submit counter-affidavit and other
countervailing evidence within ten (10) days from receipt of the
subpoena. It is settled that the use of the word "shall" which is a word
of command, underscores the mandatory character of the rule.50 As in
any other rule, though, liberality in the application may be allowed
provided that the party is able to present a compelling justification for
the non-observance of the mandatory rules. In the 2008 Revised
Manual for Prosecutors, investigating prosecutors allow or grant
motions or requests for extension of time to submit counter-affidavits
when the interest of justice demands that respondent be given
reasonable time or sufficient opportunity to engage the services of
counsel; examine voluminous records submitted in support of the
complaint or undertake research on novel, complicated or technical
questions or issues of law and facts of the case.51
In this case, GMA claimed that she could not submit her
counteraffidavit within the prescribed period because she needed to
examine documents mentioned in Senator Pimentel’s complaint-
affidavit. It appeared, however, that said documents were not
submitted to the Joint Committee and the only supporting documents
available were those attached to the Initial Report of the Fact-Finding
Team. Admittedly, GMA was furnished those documents. Thus, at the
time she asked for the extension of time within which to file her
counter-affidavit, she very well knew that the documents she was
asking were not in the record of the case. Obviously, she was not
furnished those documents because they were not submitted to the
Joint Committee. Logically, she has no right to examine said
documents. We cannot, therefore, fault the Joint Committee in
consequently denying her motion for extension to file counter-affidavit
as there was no compelling justification for the non-observance of the
period she was earlier required to follow.
And as we held in the assailed decision:
There might have been overzealousness on the part of the Joint
Committee in terminating the investigation, endorsing the Joint
Resolution to the Comelec for approval, and in filing the information in
court.
However, speed in the conduct of proceedings by a judicial or
quasijudicial officer cannot per se be instantly attributed to an
injudicious performance of functions. The orderly administration of
justice remains the paramount consideration with particular regard to
the peculiar circumstances of each case. To be sure, petitioners were
given the opportunity to present countervailing evidence. Instead of
complying with the Joint Committee’s directive, several motions were
filed but were denied by the Joint Committee. Consequently,
petitioners’ right to submit counter-affidavit and countervailing evidence
was forfeited. Taking into account the constitutional right to speedy
disposition of cases and following the procedures set forth in the Rules
on Criminal Procedure and the Comelec Rules of Procedure, the Joint
Committee finally reached its conclusion and referred the case to the
Comelec. The latter, in turn, performed its task and filed the
information in court. Indeed, petitioners were given the opportunity to
be heard. They even actively participated in the proceedings and in
fact filed several motions before the Joint Committee. Consistent with
the constitutional mandate of speedy disposition of cases,
unnecessary delays should be avoided.52
Finally, in our assailed decision, we already took judicial notice that not
only did GMA enter a plea of "not guilty," she also filed a Motion for
Bail and after due hearing, it was granted. Apparently, she benefited
from the RTC Order giving her temporary liberty. In filing the motion
before the RTC and actively participating therein, she has chosen to
seek judicial remedy before the RTC where the electoral sabotage
case is pending instead of the executive remedy of going back to the
Joint Committee for the submission of her counter-affidavit and
countervailing evidence. Besides, as thoroughly discussed in the
assailed decision, the irregularity or even the absence of preliminary
investigation does not impair the validity of the information filed against
her.
WHEREFORE, premises considered, the Motions for Reconsideration
are DENIED for lack of merit.

SO ORDERED.
 EN BANC
G.R. No. 207264 June 25, 2013
REGINA ONGSIAKO REYES, Petitioner,
vs.
COMMISSION ON ELECTIONS and JOSEPH SOCORRO B.
TAN, Respondents.
RESOLUTION
PEREZ, J.:
Before the Court is a Petition for Certiorari with Prayer for Temporary
Restraining Order and/or Preliminary Injunction and/or Status Quo
Ante Order dated 7 June 2013 filed by petitioner Regina Ongsiako
Reyes, assailing the Resolutions dated 27 March 2013 and 14 May
2013 issued by public respondent Commission on Elections
(COMELEC) in SPA No. 13-053. The assailed Resolutions ordered the
cancellation of the Certificate of Candidacy of petitioner for the position
of Representative of the lone district of Marinduque.
On 31 October 2012, respondent Joseph Socorro Tan, a registered
voter and resident of the Municipality of Torrijos, Marinduque, filed
before the COMELEC an Amended Petition to Deny Due Course or to
Cancel the Certificate of Candidacy (COC) of petitioner on the ground
that it contained material misrepresentations, specifically: (1) that she
is single when she is married to Congressman Herminaldo I.
Mandanas of Batangas;1 (2) that she is a resident of Brgy. Lupac,
Boac, Marinduque when she is a resident of Bauan, Batangas which is
the residence of her husband, and at the same time, when she is also
a resident of 135 J.P. Rizal, Brgy. Milagrosa, Quezon City as admitted
in the Directory of Congressional Spouses of the House of
Representatives;2 (3) that her date of birth is 3 July 1964 when other
documents show that her birthdate is either 8 July 1959 or 3 July
1960;3 (4) that she is not a permanent resident of another country
when she is a permanent resident or an immigrant4 of the United
States of America;5 and (5) that she is a Filipino citizen when she is, in
fact, an American citizen.6
In her Answer, petitioner countered that, while she is publicly known to
be the wife of Congressman Herminaldo I. Mandanas (Congressman
Mandanas), there is no valid and binding marriage between them.
According to petitioner, although her marriage with Congressman
Mandanas was solemnized in a religious rite, it did not comply with
certain formal requirements prescribed by the Family Code, rendering
it void ab initio.7 Consequently, petitioner argues that as she is not
duty-bound to live with Congressman Mandanas, then his residence
cannot be attributed to her.8 As to her date of birth, the Certificate of
Live Birth issued by the National Statistics Office shows that it was on
3 July 1964.9 Lastly, petitioner notes that the allegation that she is a
permanent resident and/or a citizen of the United States of America is
not supported by evidence.10
During the course of the proceedings, on 8 February 2013, respondent
filed a "Manifestation with Motion to Admit Newly Discovered Evidence
and Amended List of Exhibits"11 consisting of, among others: (1) a
copy of an article published on the internet on 8 January 2013 entitled
"Seeking and Finding the Truth about Regina O. Reyes" with an
Affidavit of Identification and Authenticity of Document executed by its
author Eliseo J. Obligacion, which provides a database record of the
Bureau of Immigration indicating that petitioner is an American citizen
and a holder of a U.S. passport; (2) a Certification of Travel Records of
petitioner, issued by Simeon Sanchez, Acting Chief, Verification and
Certification Unit of the Bureau of Immigration which indicates that
petitioner used a U.S. Passport in her various travels abroad.
On 27 March 2013, the COMELEC First Division issued a
Resolution12 cancelling petitioner’s COC, to wit:
WHEREFORE, in view of the foregoing, the instant Petition is
GRANTED. Accordingly, the Certificate of Candidacy of respondent
REGINA ONGSIAKO REYES is hereby CANCELLED.
The COMELEC First Division found that, contrary to the declarations
that she made in her COC, petitioner is not a citizen of the Philippines
because of her failure to comply with the requirements of Republic Act
(R.A.) No. 9225 or the Citizenship Retention and Re-acquisition Act of
2003, namely: (1) to take an oath of allegiance to the Republic of the
Philippines; and (2) to make a personal and sworn renunciation of her
American citizenship before any public officer authorized to administer
an oath. In addition, the COMELEC First Division ruled that she did not
have the oneyear residency requirement under Section 6, Article VI of
the 1987 Constitution.13 Thus, she is ineligible to run for the position of
Representative for the lone district of Marinduque.
Not agreeing with the Resolution of the COMELEC First Division,
petitioner filed a Motion for Reconsideration14 on 8 April 2013 claiming
that she is a natural-born Filipino citizen and that she has not lost such
status by simply obtaining and using an American passport.
Additionally, petitioner surmised that the COMELEC First Division
relied on the fact of her marriage to an American citizen in concluding
that she is a naturalized American citizen. Petitioner averred, however,
that such marriage only resulted into dual citizenship, thus there is no
need for her to fulfill the twin requirements under R.A. No. 9225. Still,
petitioner attached an Affidavit of Renunciation of Foreign Citizenship
sworn to before a Notary Public on 24 September 2012. As to her
alleged lack of the one-year residency requirement prescribed by the
Constitution, she averred that, as she never became a naturalized
citizen, she never lost her domicile of origin, which is Boac,
Marinduque.
On 14 May 2013, the COMELEC En Banc, promulgated a
Resolution15 denying petitioner’s Motion for Reconsideration for lack of
merit.
Four days thereafter or on 18 May 2013, petitioner was proclaimed
winner of the 13 May 2013 Elections.
On 5 June 2013, the COMELEC En Banc issued a Certificate of
Finality16 declaring the 14 May 2013 Resolution of the COMELEC En
Banc final and executory, considering that more than twenty-one (21)
days have elapsed from the date of promulgation with no order issued
by this Court restraining its execution.17
On same day, petitioner took her oath of office18 before Feliciano R.
Belmonte Jr., Speaker of the House of Representatives.
Petitioner has yet to assume office, the term of which officially starts at
noon of 30 June 2013.
In the present Petition for Certiorari with Prayer for Temporary
Restraining Order and/or Preliminary Injunction and/or Status Quo
Ante Order, petitioner raises the following issues:19
31) Whether or not Respondent Comelec is without
jurisdiction over Petitioner who is a 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.
32) Whether or not Respondent Comelec committed grave
abuse of discretion amounting to lack or excess of
jurisdiction when it took cognizance of Respondent Tan’s
alleged "newly-discovered evidence" without the same
having been testified on and offered and admitted in
evidence which became the basis for its Resolution of the
case without giving the petitioner the opportunity to question
and present controverting evidence, in violation of
Petitioner’s right to due process of law.
33) Whether or not Respondent Comelec committed grave
abuse of discretion amounting to lack or excess of
jurisdiction when it declared that Petitioner is not a Filipino
citizen and did not meet the residency requirement for the
position of Member of the House of Representatives.
 34) Whether or not Respondent Commission on Elections
committed grave abuse of discretion amounting to lack or
excess of jurisdiction when, by enforcing the provisions of
Republic Act No. 9225, it imposed additional qualifications to
the qualifications of a Member of the House of
Representatives as enumerated in Section 6 of Article VI of
the 1987 Constitution of the Philippines.
The petition must fail.
At the outset, it is observed that the issue of jurisdiction of respondent
COMELEC vis-a-vis that of House of Representatives Electoral
Tribunal (HRET) appears to be a non-issue. Petitioner is taking an
inconsistent, if not confusing, stance for while she seeks remedy
before this Court, she is asserting that it is the HRET which has
jurisdiction over her. Thus, she posits that the issue on her eligibility
and qualifications to be a Member of the House of Representatives is
best discussed in another tribunal of competent jurisdiction. It appears
then that petitioner’s recourse to this Court was made only in an
attempt to enjoin the COMELEC from implementing its final and
executory judgment in SPA No. 13-053.
Nevertheless, we pay due regard to the petition, and consider each of
the issues raised by petitioner. The need to do so, and at once, was
highlighted during the discussion En Banc on 25 June 2013 where and
when it was emphasized that the term of office of the Members of the
House of Representatives begins on the thirtieth day of June next
following their election.
According to petitioner, the COMELEC was ousted of its jurisdiction
when she was duly proclaimed20 because pursuant to Section 17,
Article VI of the 1987 Constitution, the HRET has the exclusive
jurisdiction to be the "sole judge of all contests relating to the election,
returns and qualifications" of the Members of the House of
Representatives.
Contrary to petitioner’s claim, however, the COMELEC retains
jurisdiction for the following reasons:
First, the HRET does not acquire jurisdiction over the issue of
petitioner’s qualifications, as well as over the assailed COMELEC
Resolutions, unless a petition is duly filed with said tribunal. Petitioner
has not averred that she has filed such action.
Second, the jurisdiction of the HRET begins only after the candidate is
considered a Member of the House of Representatives, as stated in
Section 17, Article VI of the 1987 Constitution:
Section 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. x x x
As held in Marcos v. COMELEC,21 the HRET does not have jurisdiction
over a candidate who is not a member of the House of
Representatives, to wit:
As to the House of Representatives Electoral Tribunal’s supposed
assumption of jurisdiction over the issue of petitioner’s qualifications
after the May 8, 1995 elections, suffice it to say that HRET’s
jurisdiction as the sole judge of all contests relating to the elections,
returns and qualifications of members of Congress begins only after a
candidate has become a member of the House of Representatives.
Petitioner not being a member of the House of Representatives, it is
obvious that the HRET at this point has no jurisdiction over the
question. (Emphasis supplied.)
The next inquiry, then, is when is a candidate considered a Member of
the House of Representatives?
In Vinzons-Chato v. COMELEC,22 citing Aggabao v. COMELEC23 and
Guerrero v. COMELEC,24 the Court ruled that:
The Court has invariably held that once a winning candidate has been
proclaimed, taken his oath, and assumed office as a Member of the
House of Representatives, the COMELEC’s jurisdiction over election
contests relating to his election, returns, and qualifications ends, and
the HRET’s own jurisdiction begins. (Emphasis supplied.)
This pronouncement was reiterated in the case of Limkaichong v.
COMELEC,25 wherein the Court, referring to the jurisdiction of the
COMELEC vis-a-vis the HRET, held that:
The Court has invariably held that once a winning candidate has been
proclaimed, taken his oath, and assumed office as a Member of the
House of Representatives, the COMELEC's jurisdiction over election
contests relating to his election, returns, and qualifications ends, and
the HRET's own jurisdiction begins. (Emphasis supplied.)
This was again affirmed in Gonzalez v. COMELEC,26 to wit:
After proclamation, taking of oath and assumption of office by
Gonzalez, jurisdiction over the matter of his qualifications, as well as
questions regarding the conduct of election and contested returns –
were transferred to the HRET as the constitutional body created to
pass upon the same. (Emphasis supplied.)
From the foregoing, it is then clear that to be considered a Member of
the House of Representatives, there must be a concurrence of the
following requisites: (1) a valid proclamation, (2) a proper oath, and (3)
assumption of office.
Indeed, in some cases, this Court has made the pronouncement that
once a proclamation has been made, COMELEC’s jurisdiction is
already lost and, thus, its jurisdiction over contests relating to elections,
returns, and qualifications ends, and the HRET’s own jurisdiction
begins. However, it must be noted that in these cases, the doctrinal
pronouncement was made in the context of a proclaimed candidate
who had not only taken an oath of office, but who had also assumed
office.
For instance, in the case of Dimaporo v. COMELEC,27 the Court
upheld the jurisdiction of the HRET against that of the COMELEC only
after the candidate had been proclaimed, taken his oath of office
before the Speaker of the House, and assumed the duties of a
Congressman on 26 September 2007, or after the start of his term on
30 June 2007, to wit:
On October 8, 2007, private respondent Belmonte filed his comment in
which he brought to Our attention that on September 26, 2007, even
before the issuance of the status quo ante order of the Court, he had
already been proclaimed by the PBOC as the duly elected Member of
the House of Representatives of the First Congressional District of
Lanao del Norte. On that very same day, he had taken his oath before
Speaker of the House Jose de Venecia, Jr. and assumed his duties
accordingly.
In light of this development, jurisdiction over this case has already
been transferred to the House of Representatives Electoral Tribunal
(HRET). (Emphasis supplied.)
Apparently, the earlier cases were decided after the questioned
candidate had already assumed office, and hence, was already
considered a Member of the House of Representatives, unlike in the
present case.
Here, the petitioner cannot be considered a Member of the House of
Representatives because, primarily, she has not yet assumed office.
To repeat what has earlier been said, the term of office of a Member of
the House of Representatives begins only "at noon on the thirtieth day
of June next following their election."28 Thus, until such time, the
COMELEC retains jurisdiction.
In her attempt to comply with the second requirement, petitioner
attached a purported Oath Of Office taken before Hon. Feliciano
Belmonte Jr. on 5 June 2013. However, this is not the oath of office Procedure "shall be liberally construed in order x xx to achieve just,
which confers membership to the House of Representatives. 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
Section 6, Rule II (Membership) of the Rules of the House of
certificate of candidacy are summary in nature, then the "newly
Representatives provides:
discovered evidence" was properly admitted by respondent
COMELEC.
Section 6. Oath or Affirmation of Members. – Members shall take their
oath or affirmation either collectively or individually before the Speaker
Furthermore, there was no denial of due process in the case at bar as
in open session.
petitioner was given every opportunity to argue her case before the
COMELEC. From 10 October 2012 when Tan’s petition was filed up to
Consequently, before there is a valid or official taking of the oath it 27 March 2013 when the First Division rendered its resolution,
must be made (1) before the Speaker of the House of Representatives, petitioner had a period of five (5) months to adduce evidence.
and (2) in open session. Here, although she made the oath before Unfortunately, she did not avail herself of the opportunity given her.
Speaker Belmonte, there is no indication that it was made during
plenary or in open session and, thus, it remains unclear whether the
Also, in administrative proceedings, procedural due process only
required oath of office was indeed complied with.
requires that the party be given the opportunity or right to be heard. As
held in the case of Sahali v. COMELEC:31
More importantly, we cannot disregard a fact basic in this controversy
– that before the proclamation of petitioner on 18 May 2013, the
The petitioners should be reminded that due process does not
COMELEC En Banc had already finally disposed of the issue of
necessarily mean or require a hearing, but simply an opportunity or
petitioner’s lack of Filipino citizenship and residency via its Resolution
right to be heard. One may be heard, not solely by verbal presentation
dated 14 May 2013. After 14 May 2013, there was, before the
but also, and perhaps many times more creditably and predictable than
COMELEC, no longer any pending case on petitioner’s qualifications to
oral argument, through pleadings. In administrative proceedings
run for the position of Member of the House of Representative. We will
moreover, technical rules of procedure and evidence are not strictly
inexcusably disregard this fact if we accept the argument of the
applied; administrative process cannot be fully equated with due
petitioner that the COMELEC was ousted of jurisdiction when she was
process in its strict judicial sense. Indeed, deprivation of due process
proclaimed, which was four days after the COMELEC En Banc
cannot be successfully invoked where a party was given the chance to
decision. The Board of Canvasser which proclaimed petitioner cannot
be heard on his motion for reconsideration. (Emphasis supplied)
by such act be allowed to render nugatory a decision of the COMELEC
En Banc which affirmed a decision of the COMELEC First Division.
As to the ruling that petitioner is ineligible to run for office on the
ground of citizenship, the COMELEC First Division, discoursed as
Indeed, the assailed Resolution of the COMELEC First Division which
follows:
was promulgated on 27 March 2013, and the assailed Resolution of
the COMELEC En Banc which was promulgated on 14 May 2013,
became final and executory on 19 May 2013 based on Section 3, Rule "x x x for respondent to reacquire her Filipino citizenship and become
37 of the COMELEC Rules of Procedure which provides: 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
Section 3. Decisions Final after five days. Decisions in pre-
Consulate in the USA; and (2) make a personal and sworn
proclamation cases and petitions to deny due course to or cancel
renunciation of her American citizenship before any public officer
certificates of candidacy, to declare nuisance candidate or to disqualify
authorized to administer an oath.
a candidate, and to postpone or suspend elections shall become final
and executory after the lapse of five (5) days from their promulgation
unless restrained by the Supreme Court. In the case at bar, there is 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
To prevent the assailed Resolution dated 14 May 2013 from becoming
citizenship, contending that it is petitioner’s burden to present a case.
final and executory, petitioner should have availed herself of Section 1,
She, however, specifically denied that she has become either a
Rule 3729 of the COMELEC Rules of Procedure or Rule 6430 of the
permanent resident or naturalized citizen of the USA.
Rules of Court by filing a petition before this Court within the 5-day
period, but she failed to do so. She would file the present last hour
petition on 10 June 2013. Hence, on 5 June 2013, respondent Due to petitioner’s submission of newly-discovered evidence thru a
COMELEC rightly issued a Certificate of Finality. 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
As to the issue of whether petitioner failed to prove her Filipino
substantiate his allegations. The burden now shifts to respondent to
citizenship, as well as her one-year residency in Marinduque, suffice it
present substantial evidence to prove otherwise. This, the respondent
to say that the COMELEC committed no grave abuse of discretion in
utterly failed to do, leading to the conclusion inevitable that respondent
finding her ineligible for the position of Member of the House of
falsely misrepresented in her COC that she is a natural-born Filipino
Representatives.
citizen. Unless and until she can establish that she had availed of the
privileges of RA 9225 by becoming a dual Filipino-American citizen,
Petitioner alleges that the COMELEC gravely abused its discretion and thereafter, made a valid sworn renunciation of her American
when it took cognizance of "newly-discovered evidence" without the citizenship, she remains to be an American citizen and is, therefore,
same having been testified on and offered and admitted in evidence. ineligible to run for and hold any elective public office in the
She assails the admission of the blog article of Eli Obligacion as Philippines."32(Emphasis supplied.)
hearsay and the photocopy of the Certification from the Bureau of
Immigration. She likewise contends that there was a violation of her
Let us look into the events that led to this petition: In moving for the
right to due process of law because she was not given the opportunity
cancellation of petitioner’s COC, respondent submitted records of the
to question and present controverting evidence.
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
Her contentions are incorrect. 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 reacquired such status in accordance with the
It must be emphasized that the COMELEC is not bound to strictly provisions of R.A. No. 9225. Aside from the bare allegation that she is
adhere to the technical rules of procedure in the presentation of
a natural-born citizen, however, petitioner submitted no proof to
evidence. Under Section 2 of Rule I, the COMELEC Rules of
support such contention. Neither did she submit any proof as to the
inapplicability of R.A. No. 9225 to her.
Notably, in her Motion for Reconsideration before the COMELEC En
Banc, 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.33 Still, attached to
the said motion is an Affidavit of Renunciation of Foreign Citizenship
dated 24 September 2012.34 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."35 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.
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
reacquisition 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."36 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?
The only proof presented by petitioner to show that she has met the
one-year residency requirement of the law and never abandoned her
domicile of origin in Boac, Marinduque is her claim that she served as
Provincial Administrator of the province from January 18, 2011 to July
13, 2011. But such fact alone is not sufficient to prove her one-year
residency. For, petitioner has never regained her domicile in
Marinduque as she remains to be an American citizen. No amount of
her stay in the said locality can substitute the fact that she has not
abandoned her domicile of choice in the USA."37 (Emphasis supplied.)
All in all, considering that the petition for denial and cancellation of the
COC is summary in nature, the COMELEC is given much discretion in
the evaluation and admission of evidence pursuant to its principal
objective of determining of whether or not the COC should be
cancelled. We held in Mastura v. COMELEC:38
The rule that factual findings of administrative bodies will not be
disturbed by courts of justice except when there is absolutely no
evidence or no substantial evidence in support of such findings should
be applied with greater force when it concerns the COMELEC, as the
framers of the Constitution intended to place the COMELEC — created
and explicitly made independent by the Constitution itself — on a level
higher than statutory administrative organs. The COMELEC has broad
powers to ascertain the true results of the election by means available
to it. For the attainment of that end, it is not strictly bound by the rules
of evidence.1âwphi1
Time and again, We emphasize that the "grave abuse of discretion"
which warrants this Court’s exercise of certiorari jurisdiction has a
welldefined meaning. Guidance is found in Beluso v. Commission on
Elections39 where the Court held:

x x x A petition for certiorari will prosper only if grave abuse of

To cover-up her apparent lack of an oath of allegiance as required by
discretion is alleged and proved to exist. "Grave abuse of discretion,"
R.A. No. 9225, petitioner contends that, since she took her oath of
under Rule 65, has a specific meaning. It is the arbitrary or despotic
allegiance in connection with her appointment as Provincial
exercise of power due to passion, prejudice or personal hostility; or the
Administrator of Marinduque, she is deemed to have reacquired her
whimsical, arbitrary, or capricious exercise of power that amounts to an
status as a natural-born Filipino citizen.
evasion or refusal to perform a positive duty enjoined by law or to act
at all in contemplation of law. For an act to be struck down as having
This contention is misplaced. For one, this issue is being presented for been done with grave abuse of discretion, the abuse of discretion must
the first time before this Court, as it was never raised before the be patent and gross. (Emphasis supplied.)
COMELEC. For another, said oath of allegiance cannot be considered
compliance with Sec. 3 of R.A. No. 9225 as certain requirements have
Here, this Court finds that petitioner failed to adequately and
to be met as prescribed by Memorandum Circular No. AFF-04-01,
substantially show that grave abuse of discretion exists.
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 Lastly, anent the proposition of petitioner that the act of the COMELEC
Bureau of Immigration. Thus, petitioner’s oath of office as Provincial in enforcing the provisions of R.A. No. 9225, insofar as it adds to the
Administrator cannot be considered as the oath of allegiance in qualifications of Members of the House of Representatives other than
compliance with R.A. No. 9225. those enumerated in the Constitution, is unconstitutional, We find the
same meritless.
These circumstances, taken together, show that a doubt was clearly
cast on petitioner’s citizenship. Petitioner, however, failed to clear such The COMELEC did not impose additional qualifications on candidates
doubt. for the House of Representatives who have acquired foreign
citizenship. It merely applied the qualifications prescribed by Section 6,
Article VI of the 1987 Constitution that the candidate must be a natural-
As to the issue of residency, proceeding from the finding that petitioner
born citizen of the Philippines and must have one-year residency prior
has lost her natural-born status, we quote with approval the ruling of
to the date of elections. Such being the case, the COMELEC did not
the COMELEC First Division that petitioner cannot be considered a
err when it inquired into the compliance by petitioner of Sections 3 and
resident of Marinduque:
5 of R.A. No. 9225 to determine if she reacquired her status as a
natural-born Filipino citizen. It simply applied the constitutional
"Thus, a Filipino citizen who becomes naturalized elsewhere effectively provision and nothing more.
abandons his domicile of origin. Upon re-acquisition of Filipino
citizenship pursuant to RA 9225, he must still show that he chose to
IN VIEW OF THE FOREGOING, the instant petition is DISMISSED,
establish his domicile in the Philippines through positive acts, and the
finding no grave abuse of discretion on the part of the Commission on
period of his residency shall be counted from the time he made it his
Elections. The 14 May 2013 Resolution of the COMELEC En Bane
domicile of choice.
affirming the 27 March 2013 Resolution of the COMELEC First Division
is upheld.
In this case, there is no showing whatsoever that petitioner had already
re-acquired her Filipino citizenship pursuant to RA 9225 so as to
SO ORDERED.
conclude that she has regained her domicile in the Philippines. There
being no proof that petitioner had renounced her American citizenship,
it follows that she has not abandoned her domicile of choice in the
USA.
 EN BANC
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
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:
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.
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 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.
 EN BANC
G.R. No. 205505, September 29, 2015
ATTY. ISIDRO Q. LICO, RAFAEL A. PUENTESPINA, PROCULO T.
SARMEN, AMELITO L. REVUELTA, WILLIAM C. YBANEZ,
SILVERIO J. SANCHEZ, GLORIA G. FUTALAN, HILARIO DE
GUZMAN, EUGENE M. PABUALAN, RODOLFO E. PEREZ,
HIPOLITO R. QUILLAN, MARIO ARENAS, TIRSO C.
BUENAVENTURA, LYDIA B. TUBELLA, REYNALDO C. GOLO&
JONATHAN DEQUINA IN THEIR INDIVIDUAL CAPACITIES, AND
AS LEGITIMATE MEMBERS AND OFFICERS OF ADHIKAING
TINATAGUYOD NG KOOPERATIBA (ATING KOOP PARTY
LIST), Petitioners, v. THE COMMISSION ON ELECTIONS EN BANC
AND THE SELF-STYLED SHAM ATING KOOP PARTYLIST
REPRESENTED BY AMPARO T. RIMAS, Respondents.
DECISION
SERENO, C.J.:
The pivotal and interrelated issues before Us in this case involve the
seemingly elementary matter of the Commission on Elections'
(COMELEC) jurisdiction over the expulsion of a sitting party-list
representative: from the House of Representatives, on the one hand;
and from his party-list organization, on the other.
The instant case involves two rival factions of the same party-list
organization, the Adhikaing Tinataguyod ng Kooperatiba (Ating Koop).
One group is headed by petitioner Atty. Isidro Q. Lico (the Lico Group),
who represents the organization in the House of Representatives, and
the other group by Amparo T. Rimas (respondents herein, or the
Rimas Group).
THE CASE
Before Us is a Petition for Certiorari under Rule 641 in relation to Rule
65,2 seeking to annul the Resolutions in E.M. No. 12-039 dated 18 July
2012 and 31 January 2013 of the COMELEC.
THE ANTECEDENT FACTS
Ating Koop is a multi-sectoral party-list organization which was
registered on 16 November 2009 under Republic Act (R.A.) No. 7941,
also known as the Party-List System Act (Party-List Law).
Under Ating Koop's Constitution and By-Laws, its highest policymaking
body is the National Convention. The Central Committee, however,
takes over when the National Convention is not in session.3
On 30 November 2009, Ating Koop filed its Manifestation of Intent to
Participate in the Party-List System of Representation for the 10 May
2010 Elections.4 On 6 March 2010, it filed with the COMELEC the list
of its nominees, with petitioner Lico as first nominee and Roberto
Mascarina as second nominee.
On 8 December 2010, COMELEC proclaimed Ating Koop as one of the
winning party-list groups.5Based on the procedure provided in BANAT
Party-List v. COMELEC,6 Ating Koop earned a seat in the House of
Representatives. Petitioner Lico subsequently took his oath of office on
9 December 2010 before the Secretary-General of the House of
Representatives,7 and thereafter assumed office.
Several months prior to its proclamation as one of the winning party-list
organizations, or on 9 June 2010, Ating Koop issued Central
Committee Resolution 2010-01, which incorporated a term-sharing
agreement signed by its nominees.8 Under the agreement, petitioner
Lico was to serve as Party-list Representative for the first year of the
three-year term.9
On 14 May 2011, Ating Koop held its Second National Convention,
during which it introduced amendments to its Constitution and By-laws.
Among the salient changes was the composition of the Central
Committee,10 which would still be composed of 15 representatives but
with five each coming from Luzon, Visayas and Mindanao (5-5-5 equal
representation).11 The amendments likewise mandated the holding of
an election of Central Committee members within six months after the
Second National Convention.12
In effect, the amendments cut short the three-year term of the
incumbent members (referred to hereafter as the Interim Central
Committee) of the Central Committee.13 The Interim Central Committee
was dominated by members of the Rimas Group.
On 5 December 2011, or almost one year after petitioner Lico had
assumed office, the Interim Central Committee expelled him from Ating
Koop for disloyalty.14 Apart from allegations of malversation and graft
and corruption, the Committee cited petitioner Lico's refusal to honor
the term-sharing agreement as factual basis for disloyalty and as
cause for his expulsion under Ating Koop's Amended Constitution and
By-laws.15
On 8 December 2011, Congressman Lico filed a Motion for
Reconsideration with the Interim Central Committee,16 which
subsequently denied the same in a Resolution dated 29 December
2011.17
While petitioner Lico's Motion for Reconsideration was pending, the
Lico Group held a special meeting in Cebu City (the Cebu meeting) on
19 December 2011. At the said meeting, new members of the Central
Committee, as well as a new set of officers, were elected.18 The
election was purportedly held for the purpose of implementing the 5-5-
5 equal representation amendment made during the Second National
Convention.19
On 21 January 2012, the Rimas Group held a Special National
Convention in Parañaque City20 (the Parañaque convention), at which
a new Central Committee and a new set of officers were
constituted.21 Members of the Rimas Group won the election and
occupied all the corresponding seats.
PROCEEDINGS BEFORE THE COMELEC
SECOND DIVISION
On 16 March 2012, the Rimas Group, claiming to represent Ating
Koop, filed with COMELEC a Petition against petitioner Lico docketed
as E.M. No. 12-039.22 The said Petition, which was subsequently
raffled to the Second Division, prayed that petitioner Lico be ordered to
vacate the office of Ating Koop in the House of Representatives, and
for the succession of the second nominee, Roberto Mascarina as Ating
Koop's representative in the House.
The Rimas Group thereafter filed an Amended Petition with the
COMELEC on 14 May 2012, this time impleading not only petitioner
Lico but the entire Lico Group. The Amended Petition also prayed that
the COMELEC nullify the election conducted at the Cebu meeting and
recognize the Paranaque convention.
In both the Petition and the Amended Petition, the Rimas Group
alleged that Ating Koop had expelled Congressman Lico for acts
inimical to the party-list group, such as malversation, graft and
corruption, and that he had "boldly displayed his recalcitrance to honor
party commitment to be upright and consistently honest, thus violating
basic principles of the Ating Koop."23 The Amended Petition stated
further that the Cebu meeting held by the Lico Group violated notice
and quorum requirements.24
In a Resolution dated 18 July 2012,25 the COMELEC Second Division
upheld the expulsion of petitioner Lico from Ating Koop and declared
Mascarina as the duly qualified nominee of the party-list group.26The
Second Division characterized the issue of the validity of the expulsion
of petitioner Lico from Ating Koop as an intra-party leadership dispute,
which it could resolve as an incident of its power to register political
parties.27chanroblesvirtuallawlibrary
PROCEEDINGS BEFORE THE COMELEC
EN BANC
Consequently, the Lico Group filed a Motion for Reconsideration from
the Second Division's Resolution, which the COMELEC En
Banc denied on 31 January 2013. The dispositive portion of its
Resolution reads:cralawlawlibrary
WHEREFORE, premises considered, the Commission (En
Banc) RESOLVES, as it herebyRESOLVED, to:
a. DISMISS the instant Petition to Expel Respondent Atty. Isidro Q.
Lico in the House of Representatives and to Sanction the Immediate
Succession of the Second Nominee of ATING KOOP Party List, Mr.
Roberto C. Mascarina as its Party Representative, for lack of
jurisdiction;ChanRoblesVirtualawlibrary
b. UPHOLD the Expulsion of Respondent Atty. Isidro Lico from ATING
KOOP Party-list Group; [and]
c. UPHOLD the ATING KOOP Party-list Group represented by its
President, Amparo T. Rimas, as the legitimate Party-list Group
accredited by the Commission on Elections, to the exclusion of
respondents Atty. Isidro Q. Lico, Rafael A. Puentespina, Proculo T.
Sarmen, Amelito L. Revuelta, William C. Ybanez, Silverio J. Sanchez,
Gloria G. Futalan, Hilario De Guzman, Eugene M. Pabualan, Rodolfo
E. Perez, Hipolito R. Quillan, Mario Arenas, Tirso C. Buenaventura,
Lydia B. Tubella, and Jonathan Dequina.28
chanrobleslaw
In arriving at its Resolution, the COMELEC En Banc held that it had no
jurisdiction to expel Congressman Lico from the House of
Representatives, considering that his expulsion from Ating Koop
affected his qualifications as member of the House, and therefore it
was the House of Representatives Electoral Tribunal (HRET) that had
jurisdiction over the Petition.
At the same time, the COMELEC upheld the validity of petitioner Lico's
expulsion from Ating Koop, explaining that when the Interim Central
Committee ousted him from Ating Koop, the said Committee's
members remained in hold-over capacity even after their terms had
expired;29 and that the COMELEC was not in a position to substitute its
judgment for that of Ating Koop with respect to the cause of the
expulsion.30
Finally, the COMELEC En Banc recognized the Rimas Group as the
legitimate representative of Ating Koop considering that: 1) it found
nothing in the records to show that the Lico Group made a valid call for
the special election of Central Committee members as required under
the Amended Constitution and By-Laws;31 2) there is nothing on record
indicating that a minimum of 100 attended the Cebu meeting;32 and 3)
the Parañaque convention was in accordance with Ating Koop's
Amended Constitution and By-Laws.33
Hence, this Petition: the Lico Group now comes before Us, praying for
a review of the COMELEC Resolutions.
The Court's Ruling
On the COMELEC's jurisdiction over
the expulsion of a Member of the House
of Representatives from his party-list
organization
We find that while the COMELEC correctly dismissed the Petition to
expel petitioner Lico from the House of Representatives for being
beyond its jurisdiction, it nevertheless proceeded to rule upon the
validity of his expulsion from Ating Koop - a matter beyond its purview.
The COMELEC notably characterized the Petition for expulsion of
petitioner Lico from the House of Representatives and for the
succession of the second nominee as party-list representative as a
disqualification case. For this reason, the COMELEC dismissed the
petition for lack of jurisdiction, insofar as it relates to the question of
unseating petitioner Lico from the House of Representatives.
Section 17, Article VI of the 1987 Constitution34 endows the HRET with
jurisdiction to resolve questions on the qualifications of members of
Congress. In the case of party-list representatives, the HRET acquires
jurisdiction over a disqualification case upon proclamation of the
winning party-list group, oath of the nominee, and assumption of office
as member of the House of Representatives.35In this case, the
COMELEC proclaimed Ating Koop as a winning party-list group;
petitioner Lico took his oath; and he assumed office in the House of
Representatives. Thus, it is the HRET, and not the COMELEC, that
has jurisdiction over the disqualification case.
What We find to be without legal basis, however, is the action of the
COMELEC in upholding the validity of the expulsion of petitioner Lico
from Ating Koop, despite its own ruling that the HRET has jurisdiction
over the disqualification issue. These findings already touch upon the
qualification requiring a party-list nominee to be a bona fide member of
the party-list group sought to be represented.
The COMELEC justified its Resolution on the merits of the expulsion,
by relying on the rule that it can decide intra-party matters as an
incident of its constitutionally granted powers and functions. It
citedLokin v. COMELEC, where We held that when the resolution of an
intra-party controversy is necessary or incidental to the performance of
the constitutionally-granted functions of the COMELEC, the latter can
step in and exercise jurisdiction over the intra-party matter.36 The Lokin
case, however, involved nominees and not incumbent members of
Congress. In the present case, the fact that petitioner Lico was a
member of Congress at the time of his expulsion from Ating Koop
removes the matter from the jurisdiction of the COMELEC.
The rules on intra-party matters and on the jurisdiction of the HRET are
not parallel concepts that do not intersect. Rather, the operation of the
rule on intra-party matters is circumscribed by Section 17 of Article VI
of the 1987 Constitution and jurisprudence on the jurisdiction of
electoral tribunals. The jurisdiction of the HRET is exclusive. It is given
full authority to hear and decide the cases on any matter touching on
the validity of the title of the proclaimed winner.37
In the present case, the Petition for petitioner Lico's expulsion from the
House of Representatives is anchored on his expulsion from Ating
Koop, which necessarily affects his title as member of Congress. A
party-list nominee must have been, among others, a bona fide member
of the party or organization for at least ninety (90) days preceding the
day of the election. Needless to say, bona fide membership in the
party-list group is a continuing qualification. We have ruled that
qualifications for public office, whether elective or not, are continuing
requirements. They must be possessed not only at the time of
appointment or election, or of assumption of office, but during the
officer's entire tenure.39
This is not the first time that this Court has passed upon the issue of
HRET jurisdiction over the requirements for bona fide membership in a
party-list organization. In Abayon v. HRET,40 it was argued that the
petitioners did not belong to the marginalized and under-represented
sectors that they should represent; as such, they could not be properly
considered bona fide members of their respective party-list
organizations. The Court held that it was for the HRET to interpret the
meaning of the requirement of bona fide membership in a party-list
organization. It reasoned that under Section 17, Article VI of the
Constitution, the HRET is the sole judge of all contests when it
comes to qualifications of the members of the House of
Representatives.41
Consequently, the COMELEC failed to recognize that the issue on the
validity of petitioner Lico's expulsion from Ating Koop is integral to the
issue of his qualifications to sit in Congress. This is not merely an error
of law but an error of jurisdiction correctible by a writ of certiorari; 42 the
COMELEC should not have encroached into the expulsion issue, as it
was outside its authority to do so.
Distinguished from Reyes v. COMELEC
Our ruling here must be distinguished from Regina Ongsiako Reyes v.
Commission on Elections.43 In that case, We upheld the disqualification
by the COMELEC of petitioner Reyes, even as she was already
proclaimed winner in the elections at the time she filed her petition with
the High Court. In doing so, We rejected the argument that the case
fell within the exclusive jurisdiction of the HRET.
In Reyes, the petitioner was proclaimed winner of the 13 May 2013
Elections, and took her oath of office before the Speaker of the House
of Representatives. However, the Court ruled on her qualifications
since she was not yet a member of the House of Representatives:
petitioner Reyes had yet to assume office, the term of which would
officially start at noon of 30 June 2013, when she filed a Petition
for Certiorari with Prayer for Temporary Restraining Order and/or
Preliminary Injunction and/or Status Quo Ante Order dated 7 June
2013 assailing the Resolutions ordering the cancellation of her
Certificate of Candidacy. In the present case, all three requirements of
proclamation, oath of office, and assumption of office were satisfied.
Moreover, in Reyes, the COMELEC En Banc Resolution disqualifying
petitioner on grounds of lack of Filipino citizenship and residency had
become final and executory when petitioner elevated it to this
Court.44 It should be mentioned that when petitioner Reyes filed her
petition with the Court, the COMELEC En Banc had, as early as 5
June 2013, already issued a Certificate of Finality over its 14 May 2013
Resolution disqualifying her. Therefore, there was no longer any
pending case on the qualifications of petitioner Reyes to speak of.
Here, the question of whether petitioner Lico remains a member of the
House of Representatives in view of his expulsion from Ating Koop is a
subsisting issue.
Finally, in Reyes, We found the question of jurisdiction of the HRET to
be a non-issue, since the recourse of the petitioner to the Court
appeared to be a mere attempt to prevent the COMELEC from
implementing a final and executory judgment. We said that the
petitioner therein took an inconsistent, if not confusing, stance,
considering that she sought remedy before the Court, and yet asserted
that it is the HRET which had jurisdiction over the case.45 In this case,
the question on the validity of petitioner Lico's expulsion from Ating
Koop is a genuine issue that falls within the jurisdiction of the HRET,
as it unmistakably affects his qualifications as party-list representative.
On which group legitimately represents
Ating Koop
We now pass upon the question of which, between the two contending
groups, is the legitimate leadership of Ating Koop.
At the outset, We reject the Lico Group's argument that the COMELEC
has no jurisdiction to decide which of the feuding groups is to be
recognized, and that it is the Regional Trial Court which has jurisdiction
over intra-corporate controversies. Indeed, the COMELECs jurisdiction
to settle the struggle for leadership within the party is well established.
This power to rule upon questions of party identity and leadership is
exercised by the COMELEC as an incident of its enforcement
powers.46
That being said, We find the COMELEC to have committed grave
abuse of discretion in declaring the Rimas Group as the legitimate set
of Ating Koop officers for the simple reason that the amendments to
the Constitution and By-laws of Ating Koop were not registered with
the COMELEC. Hence, neither of the elections held during the Cebu
meeting and the Paranaque conference pursuant to the said
amendments, were valid.
Both the Lico Group and the Rimas Group indeed assert that their
respective elections were conducted pursuant to the amendment
introduced in the Second National Convention held on 14 May 2011. In
particular, Section 1 of Article VI of Ating Koop's By-laws called for the
conduct of an election of Central Committee members within six
months after the Second National Convention.47
There is no showing, however, that the amendments were actually filed
with the COMELEC.
A party-list organization owes its existence to the State and the latter's
approval must be obtained through its agent, the COMELEC. In the
2013 case of Dayao v. COMELEC,48 We declared that it is the State,
acting through the COMELEC, that breathes life to a party-list
organization. The implication, therefore, is that the State, through the
COMELEC, is a party to the principal contracts entered into by the
party-list organization and its members - the Constitution and By-laws -
such that any amendment to these contracts would constitute a
novation requiring the consent of all the parties involved. An
amendment to the bylaws of a party-list organization should become
effective only upon approval by the COMELEC.
Such a prerequisite is analogous to the requirement of filing of the
amended by-laws and subsequent conformity thereto of the Securities
and Exchange Commission (SEC) under corporation law. Under the
Corporation Code, an amendment to a by-law provision must be filed
with the SEC. The amendment shall be effective only upon the
issuance by the SEC of a certification that it is not inconsistent with the
Corporation Code.49
There being no showing that the amendments on the by-laws of Ating
Koop were filed with and subsequently approved by the COMELEC,
any election conducted pursuant thereto may not be considered valid.
Without such requisite proof, neither the Lico Group nor the Rimas
Group can claim to be the legitimate set of officers of Ating Koop.
Even assuming arguendo that the amendment calling for a special
election were effective, this Court still cannot declare any of the
feuding groups as the legitimate set of officers considering that the
respective sets of evidence presented were evenly balanced. With
respect to the Lico Group's Cebu meeting, the COMELEC correctly
found - and the records bear out - that the notices sent were deficient
and that there was no sufficient proof of quorum. Hence, the Cebu
meeting was held to be invalid. On the other hand, the COMELEC
failed to appreciate the fact that the Paranaque convention suffered
from the same infirmity, the records of the said convention, consisting
merely of the Minutes thereof, likewise fail to establish due notice and
a quorum.50
Accordingly, as neither group can sufficiently lay claim to legitimacy,
the equipoise doctrine comes into play. This rule provides that when
the evidence in an issue of fact is in equipoise, that is, when the
respective sets of evidence of both parties are evenly balanced, the
party having the burden of proof fails in that issue. Since neither party
succeeds in making out a case, neither side prevails. The courts are
left with no other option but to leave them as they are. The
consequence, therefore, is the dismissal of the complaint/petition. 51
The Rimas Group, being the petitioner before the COMELEC, had the
burden of proving that it is the petitioner, and not the Lico Group, that
is the legitimate group. As the evidence of both parties are in
equipoise, the Rimas Group failed to discharge its burden. The
COMELEC should have dismissed the petition of the Rimas Group
insofar as it sought to be declared the legitimate group representing
Ating Koop.
Yet, the COMELEC held that the Paranaque convention "appeared to
be in conformity" with Ating Koop's Amended Constitution and By-
Laws.52 It should be stressed that the COMELEC did not even
substantiate this conclusion.53
The Court ordinarily refrains from reviewing the COMELEC s
appreciation and evaluation of the evidence.54 But when the
COMELECs assessment of the evidence is so grossly unreasonable
that it turns into an error of jurisdiction, the Court is compelled to
intervene and correct the error.55
As seen in the above discussions, neither of the parties was able to
establish its legitimacy. The evaluation of the evidence by the
COMELEC in deciding the issue of which group legitimately represents
Ating Koop was therefore grossly unreasonable, which amounts to a
jurisdictional error that may be remedied by certiorari under Rule 65.
The final, and most important question to be addressed is: if neither of
the two groups is the legitimate leadership of Ating Koop, then who is?
We find such legitimate leadership to be the Interim Central
Committee, whose members remain as such in a hold-over capacity.
In Seneres v. COMELEC,56 the validity of the Certificate of Nomination
filed by Buhay Party-List through its President, Roger Robles, was
questioned on the ground that his term had expired at the time it was
filed. The Court applied by analogy the default rule in corporation law
to the effect that officers and directors of a corporation hold over after
the expiration of their terms until such time as their successors are
elected or appointed.57Señeres ruled that the hold-over principle
applies in the absence of a provision in the constitution or by-laws of
the party-list organization prohibiting its application.
In the present case, We have gone through the Constitution and By-
laws of Ating Koop and We do not see any provision forbidding, either
expressly or impliedly, the application of the hold-over rule. Thus, in
accordance with corporation law, the existing Interim Central
Committee is still a legitimate entity with full authority to bind the
corporation and to carry out powers despite the lapse of the term of its
members on 14 November 2011, since no successors had been validly
elected at the time, or since.

WHEREFORE, premises considered, the Petition is GRANTED. The

COMELEC En Banc Resolution dated 31 January 2013 and the
COMELEC Second Division Resolution dated 18 July 2012 in E.M. No.
12-039 are hereby ANNULLED and SET ASIDE insofar as it declares
valid the expulsion of Congressman Lico from Ating Koop and it
upholds the ATING KOOP Party-list Group represented by its
President, Amparo T. Rimas, as the legitimate Party-list Group.

A new one is entered DECLARING that the legitimate Central

Committee and set of officers legitimately representing Ating Koop are
the Interim Central Committee and set of officers prior to the split of
Ating Koop.

SO ORDERED
 EN BANC 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
G.R. No. 193808 June 26, 2012

In the Resolution dated 5 July 2010, the COMELEC First Division

LUISK. LOKIN, JR. and TERESITA F. PLANAS, Petitioners,
granted the Petition, ordered the Certificate filed by Derla to be
vs.
expunged from the records, and declared respondents’ faction as the
COMMISSION ON ELECTIONS (COMELEC), CITIZENS’ BATTLE
true nominees of CIBAC.12Upon Motion for Reconsideration separately
AGAINST CORRUPTION PARTY LIST represented by VIRGINIA S.
filed by the adverse parties, the COMELEC en banc affirmed the
JOSE SHERWIN N. TUGNA, and CINCHONA CRUZ-
Division’s findings. In a per curiam Resolution dated 31 August
GONZALES, Respondents,
2010,13 the Commission reiterated that Pia Derla was unable to prove
her authority to file the said Certificate, whereas respondents
DECISION presented overwhelming evidence that Villanueva deputized CIBAC
Secretary General Virginia Jose to submit the Certificate of Nomination
pursuant to CIBAC’s Constitution and bylaws.
SERENO, J.:

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.
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.

On 5 July 2010, the COMELEC First Division issued a

As earlier stated, this Court denies the petition for being filed outside
Resolution1 expunging the Certificate of Nomination which included the requisite period. The review by this Court of judgments and final
herein petitioners as representatives of the party-list group known as orders of the COMELEC is governed specifically by Rule 64 of the
Citizens’ Battle Against Corruption (CIBAC). The COMELEC en
Rules of Court, which states:
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 Sec. 1. Scope. This rule shall govern the review of judgments and final
issuing both Resolutions, praying that they be recognized as the orders or resolutions of the Commission on Elections and the
legitimate nominees of CIBAC party-list, and that petitioner Lokin, Jr. Commission on Audit.
be proclaimed as the CIBAC party-list representative to the House of
Representatives.
Sec. 2. Mode of review. A judgment or final order or resolution of the
Commission on Elections and the Commission on Audit may be
2
Respondent CIBAC party-list is a multi-sectoral party registered under brought by the aggrieved party to the Supreme Court on certiorari
Republic Act No. (R.A.) 7941, otherwise known as the Party- List under Rule 65, except as hereinafter provided.
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 exception referred to in Section 2 of this Rule refers precisely to
the country’s public service.3 Under the leadership of the National
the immediately succeeding provision, Section 3 thereof,14 which
Council, its highest policymaking and governing body, the party
provides for the allowable period within which to file petitions for
participated in the 2001, 2004, and 2007 elections.4 On 20 November
certiorari from judgments of both the COMELEC and the Commission
2009, two different entities, both purporting to represent CIBAC,
on Audit. Thus, while Rule 64 refers to the same remedy of certiorari
submitted to the COMELEC a "Manifestation of Intent to Participate in
as the general rule in Rule 65, they cannot be equated, as they provide
the Party-List System of Representation in the May 10, 2010
for different reglementary periods.15 Rule 65 provides for a period of 60
Elections." The first Manifestation5 was signed by a certain Pia B.
days from notice of judgment sought to be assailed in the Supreme
Derla, who claimed to be the party’s acting secretary-general. At 1:30
Court, while Section 3 expressly provides for only 30 days, viz:
p.m. of the same day, another Manifestation6 was submitted by herein
respondents Cinchona Cruz-Gonzales and Virginia Jose as the party’s
vice-president and secretary-general, respectively. 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
On 15 January 2010, the COMELEC issued Resolution No.
reconsideration of said judgment or final order or resolution, if allowed
87447 giving due course to CIBAC’s Manifestation, "WITHOUT
under the procedural rules of the Commission concerned, shall
PREJUDICE …TO the determination which of the two factions of the
interrupt the period herein fixed. If the motion is denied, the aggrieved
registered party-list/coalitions/sectoral organizations which filed two (2)
party may file the petition within the remaining period, but which shall
manifestations of intent to participate is the official representative of
not be less than five (5) days in any event, reckoned from notice of
said party-list/coalitions/sectoral organizations xxx."8
denial.

On 19 January 2010, respondents, led by President and Chairperson

Petitioner received a copy of the first assailed Resolution on 12 July
Emmanuel Joel J. Villanueva, submitted the Certificate of
2010. Upon the Motion for Reconsideration filed by petitioners on 15
Nomination9 of CIBAC to the COMELEC Law Department. The
July 2010, the COMELEC en banc issued the second assailed
nomination was certified by Villanueva and Virginia S. Jose. On 26
Resolution on 31 August 2010. This per curiam Resolution was
March 2010, Pia Derla submitted a second Certificate of
received by petitioners on 1 September 2010.16 Thus, pursuant to
Nomination,10 which included petitioners Luis Lokin, Jr. and Teresita
Section 3 above, deducting the three days it took petitioners to file the
Planas as party-list nominees. Derla affixed to the certification her
Motion for Reconsideration, they had a remaining period of 27 days or
signature as "acting secretary-general" of CIBAC.
until 28 September 2010 within which to file the Petition for Certiorari
with this Court.
Claiming that the nomination of petitioners Lokin, Jr. and Planas was
unauthorized, respondents filed with the COMELEC a "Petition to
However, petitioners filed the present Petition only on 1 October 2010,
Expunge From The Records And/Or For Disqualification," seeking to
clearly outside the required period. In Pates v. Commission on
nullify the Certificate filed by Derla. Respondents contended that Derla
Elections and Domingo v. Commission on Elections,17 we have
had misrepresented herself as "acting secretary-general," when she
established that the fresh-period rule used in Rule 65 does not similarly
was not even a member of CIBAC; that the Certificate of Nomination
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."
xxx xxx xxx
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.
xxx xxx xxx
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:
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);
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.
 EN BANC
G.R. No. 160465 May 27, 2004
ROMEO M. ESTRELLA, petitioner,
vs.
COMMISSION ON ELECTIONS, HON. COMMISSIONER RALPH C.
LANTION and ROLANDO F. SALVADOR,respondents.
RESOLUTION
CARPIO MORALES, J.:
From this Court’s Resolution of April 28, 2004, private respondent
Rolando F. Salvador seeks a reconsideration.
In his petition for certiorari filed before this Court, petitioner Romeo M.
Estrella sought the nullification of the November 5, 2003 Status Quo
Ante Order1 issued by the Commission on Elections (COMELEC) En
Banc in EAC No. A-10-2002, "Romeo M. Estrella v. Rolando F.
Salvador," directing the "parties to maintain the status quo ante order,
which is the condition prevailing before the issuance" by the Regional
Trial Court of Malolos of a writ of execution for the enforcement of said
court’s decision declaring petitioner as the duly elected mayor of
Baliwag, Bulacan.
In the issuance of the questioned COMELEC En Banc Status Quo
Ante Order, five (5) of the then incumbentseven (7) members of the
COMELEC participated: Commissioners Benjamin Abalos, Sr.,
Luzviminda Tangcangco, Rufino S.B. Javier, Ressureccion Z. Borra
and Ralph C. Lantion.
Commissioners Abalos, Tangcangco, Javier and Lantion voted for the
issuance of said order, while Commissioner Borra dissented.
Commissioner Lantion previously inhibited in SPR No. 21-2002, a case
pending before the COMELEC Second Division involving the same
parties, thus necessitating the issuance of an order designating
Commissioner Borra as his substitute. The substitution order was
subsequently adopted in EAC No. A-10-2002. Parenthetically,
petitioner had previously filed a Motion for Inhibition of Commissioner
Lantion before the Second Division in SPR No. 21-2002 which was
denied, albeit on Motion for Reconsideration the Second Division, in its
Resolution of May 7, 2002, noted that "Com[missioner] Lantion
indicated for the record that he is no longer taking part in the
proceedings in this case."
In the COMELEC En Banc Status Quo Ante Order, Commissioner
Lantion stated in his handwriting that "his previous voluntary inhibition
is only in the SPR cases and not in the EAC" and that "as further
agreed in the Second Division, [he] will not participate in the Division
deliberations but will vote when the case is elevated [to the]en banc."
In this Court’s Resolution2 of April 28, 2004 now the subject of private
respondent’s Motion for Reconsideration, it was held that:
Commissioner Lantion’s voluntary piecemeal inhibition cannot be
countenanced. Nowhere in the COMELEC Rules does it allow a
Commissioner to voluntarily inhibit with reservation. To allow him to
participate in the En Bancproceedings when he previously inhibited
himself in the Division is, absent any satisfactory justification, not only
judicially unethical but legally improper and absurd.
Since Commissioner Lantion could not participate and vote in the
issuance of the questioned order, thus leaving three (3) members
concurring therewith, the necessary votes of four (4) or majority of the
members of the COMELEC was not attained. The order thus failed to
comply with the number of votes necessary for the pronouncement of a
decision or order, as required under Rule 3, Section 5(a) of the
COMELEC Rules of Procedure which provides:
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.
WHEREFORE, the instant petition is GRANTED. The Status Quo
Ante Order dated November 5, 2003 issued by the COMELEC En
Banc is hereby NULLIFIED. This Resolution is IMMEDIATELY
EXECUTORY. (Emphasis and underscoring supplied)
In seeking a reconsideration of the above-quoted Resolution, private
respondent cites Cua v. Commission on Elections3 wherein this Court
ruled:
After considering the issues and the arguments raised by the parties,
the Court holds that the 2-1 decision rendered by the First Division was
a valid decision under Article IX-A, section 7 of the Constitution.
Furthermore, the three members who voted to affirm the First Division
constituted a majority of the five members who deliberated and voted
thereon en banc and their decision is also valid under the aforecited
constitutional provision. x x x (Italics in the original; emphasis supplied)
Private respondent argues that "[f]ollowing the doctrine laid out in Cua,
three (3) votes would have been sufficient to constitute a majority to
carry the decision of the COMELEC En Banc as provided by the
Constitution and the appropriate rules."4
Section 5(a) of the COMELEC Rules of Procedure was lifted from
Section 7, Article IX-A of the Constitution which provides:
SECTION 7. Each Commission shall decide by a majority vote of all its
members any case or matter brought before it within sixty days from
the date of its submission for decision or resolution. x x x (Emphasis
and underscoring supplied)
The provision of the Constitution is clear that it should be the majority
vote of all its members and not only those who participated and took
part in the deliberations. Under the rules of statutory construction, it is
to be assumed that the words in which constitutional provisions are
couched express the objective sought to be attained.5 Since the above-
quoted constitutional provision states "all of its members," without any
qualification, it should be interpreted as such.
In the case at bar, following the clear provision of the Constitution,
counting out Commissioner Lantion’s vote from the questioned
COMELEC En Banc resolution would leave just three (3) votes out of
"all" seven (7) members of the COMELEC.
Even former Constitutional Commissioner Fr. Joaquin Bernas, SJ,
questions the Cua ruling in light of Section 7, which says "majority of all
the Members." He thus concludes that "[t]hree is not the majority of
seven."6
Had the framers intended that it should be the majority of the members
who participated or deliberated, it would have clearly phrased it that
way as it did with respect to the Supreme Court in Section 4(2), Article
VIII of the Constitution:
SECTION 4(2) x x x all other cases which under the Rules of Court are
required to be heard en banc, x x x shall be decided with the
concurrence of a majority of the members who actually took part in the
deliberations on the issues in the case and voted thereon. (Italics in the
original; emphasis and underscoring supplied).
For the foregoing reasons then, this Court hereby abandons the
doctrine laid down in Cua and holds that the COMELEC En Banc shall
decide a case or matter brought before it by a majority vote of "all
its members," and NOT majority of the members who deliberated
and voted thereon.
WHEREFORE, private respondent’s motion for reconsideration is
hereby DENIED.

SO ORDERED.
 EN BANC
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
banc in 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 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."
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.
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,

In the present case, while the October 6, 2012 Resolution of the

A formal or trial-type hearing is not at all times and in all instances
Comelec en banc appears to have affirmed the Comelec Second
essential.1âwphi1 The requirements are satisfied where the parties are
Division’s Resolution and, in effect, denied Sevilla’s motion for
afforded fair and reasonable opportunity to explain their side of the
reconsideration, the equally divided voting between three
controversy at hand.
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 Thus, a rehearing clearly presupposes the participation of the opposing
6, 2012 Resolution of the Comelec en banc. 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
In essence, based on the 3-3 voting, the Comelec en banc did not
already on hand only by the members of the tribunal, without the
sustain the Comelec Second Division’s findings on the basis of the
participation of the parties.
three concurring votes by Commissioners Tagle, Velasco and Yusoph;
conversely, it also did not overturn the Comelec Second Division on
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.

No costs.

SO ORDERED.
 EN BANC
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/Opposition8 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-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
Disqualification20filed 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. Comelec29 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.
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 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)

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.
 EN BANC
G. R. No. 155717 - October 23, 2003
ALBERTO JARAMILLA, Petitioner, vs. COMMISSION ON
ELECTIONS, ANTONIO SUYAT, MUNICIPAL BOARD OF
CANVASSERS OF STA. CRUZ, ILOCOS SUR, THE NEW
MUNICIPAL BOARD OF CANVASSERS (COMELEC), AND IRENEO
CORTEZ, Respondents.
On June 13, 2001, respondent Suyat filed before the COMELEC en
banc an Urgent Motion for Issuance of Order to Reconvene,3 which the
latter treated as a Petition for Correction of Manifest Error. Petitioner
countered in his Answer4 that said petition should be dismissed for
having been filed out of time and for lack of the required certification of
non-forum shopping.
On October 24, 2002, COMELEC en banc issued the assailed
resolution, the dispositive portion of which reads:5cräläwvirtualibräry

WHEREFORE, premises considered, the Motion/Petition is hereby

DECISION
GRANTED. The proclamation of Respondent ALBERTO J.
JARAMILLA [herein petitioner] is ANNULLED. A New Municipal Board
AZCUNA, J.: of Canvassers is hereby created composed of the following:

For review before the Court is the instant petition for certiorari1 with
prayer for temporary restraining order and preliminary injunction
ascribing grave abuse of discretion to public respondent Commission
on Elections (COMELEC) in issuing its en banc resolution dated
October 24, 2002.
The antecedent facts, as summarized in the COMELEC
resolution,2 are as follows:
[Respondent] Antonio Suyat and [petitioner] Alberto J. Jaramilla both
ran for the position of Member of the Sangguniang Bayan in the
Municipality of Sta. Cruz, Ilocos Sur in the May 14, 2001 elections.
On May 16, 2001, the Municipal Board of Canvassers of Sta. Cruz,
proclaimed the winning candidates for the offices of Mayor, Vice-Mayor
and eight (8) members of the Sangguniang Bayan. The Certificate of
Canvass of Votes and Proclamation shows the following results and
ranking with respect to the members of the Sangguniang Bayan, to wit:
Atty. NELIA AUREUS Chairman
Atty. MICHAEL D. DIONEDA Vice Chairman
Atty. ALLEN FRANCIS F. ABAYA Member
The New Board is hereby directed to immediately convene at the
Comelec Session Hall, Intramuros, Manila, after due notice to parties
and effect a correction in the entry in the Statement of Votes by
Precinct particularly the votes for Respondent Alberto Jaramilla [herein
petitioner], who should be credited with twenty three (23) votes only.
Thereafter, the New Board shall prepare a corrected Certificate of
Canvass and Proclamation on the basis of the New Statement of Votes
and proclaim the Petitioner [herein private respondent Suyat] as the
eighth (8th) Board Member of Sta. Cruz, Ilocos Sur. Mr. Ireneo Habon
Cortez shall be declared the 7th Municipal Board Member. The New
Board shall use the Comelec copies of the election returns and
Statement of Votes pertaining to the instant case.

SO ORDERED.
Name of Candidates Total Votes Obtained

1. RAGUCOS, Ma. Luisa Laxamana 6,324 Hence the present recourse by petitioner anchored on the following
grounds:
2. ABAYA, Juan Jr., Andaquig 6,013

3. GINES, Fidel Cudiamat
4. QUILOP, Renato Avila
5. BILIGAN, Osias Depdepen
6. RUIZ, Agustin Turgano
7. JARAMILLA, Alberto Jimeno
8. CORTEZ, Ireneo Habon
5,789 I. THAT THE COMMISSION ON ELECTION ERRED IN NOT
DISMISSING THE CASE CONSIDERING THAT THE PETITION
5,227 FILED BEFORE THE COMELEC WAS FILED BEYOND THE
PRESCRIPTIVE PERIOD AS SET FORTH IN THE COMELEC RULES
5,130
OF PROCEDURE.
4,972
II. THAT THE COMMISSION ON ELECTION ERRED IN GIVING DUE
4,815 COURSE TO THE PETITION INSTEAD OF DISMISSING IT
4,807 CONSIDERING THAT THE PETITION LACKED A CERTIFICATION
AGAINST FORUM-SHOPPING.

In the tabulated results issued by the Election Officer and Chairperson
of the Municipal Board of Canvassers of Sta. Cruz, it is shown that
[respondent Suyat] obtained Four thousand seven hundred seventy
nine (4,779) votes and was ranked no. 9.
Upon review by [respondent Suyat], he discovered that [petitioner] was
credited with only twenty three (23) votes per Election Return from
Precinct No. 34A1. However, when the figures were forwarded to the
Statement of Votes by Precinct, [petitioner] was credited with seventy
three (73) votes for Precinct No. 34A1 or fifty (50) votes more than
what he actually obtained. If the entry were to be corrected, the
affected candidates would be ranked as follows:
7. CORTEZ, Ireneo Habon 4,807
8. SUYAT, Antonio 4,779
III. THAT THE COMMISSION ON ELECTION ERRED IN NOT
DISMISSING THE CASE FOR FAILURE TO PAY THE DOCKET OR
FILING FEE ON TIME.6
Before discussing the merits, although not raised in the petition, the
Court deems it appropriate to discuss the jurisdiction of the
COMELEC en banc in election cases. Article IX-C of the Constitution
states in part that:
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.7cräläwvirtualibräry

9. JARAMILLA, Alberto 4,765 As stated in the provision, and in line with the Courts recent
pronouncement in Milla v. Balmores-Laxa,8 election cases including
pre-proclamation controversies should first be heard and decided by a
division of the COMELEC, and then by the commission en banc if a votes in his favor. The COMELECs unquestioned findings of fact are
motion for reconsideration of the division is filed. therefore sustained. The Court reiterates that factual findings of the
COMELEC based on its own assessments and duly supported by
evidence, are given conclusive weight in the absence of arbitrariness
It must be noted however that this provision applies only in cases
or grave abuse of discretion.19cräläwvirtualibräry
where the COMELEC exercises its adjudicatory or quasi-judicial
powers, and not when it merely exercises purely administrative
functions. This doctrine was laid out in Castromayor v. Laws governing election contests must be liberally construed to the
COMELEC,9 and reiterated in subsequent cases.10 Accordingly, when end that the will of the people in the choice of public officials may not
the case demands only the exercise by the COMELEC of its be defeated by mere technical objections.20 Adherence to technicality
administrative functions, such as the correction of a manifest mistake that would put a stamp on a palpably void proclamation, with the
in the addition of votes or an erroneous tabulation in the statement of inevitable result of frustrating the peoples will, can never be
votes, the COMELEC en banc can directly act on it in the exercise of countenanced.21cräläwvirtualibräry
its constitutional function to decide questions affecting
elections.11cräläwvirtualibräry
WHEREFORE, finding no grave abuse of discretion committed by
public respondent COMELEC, its Resolution en banc dated October
The Petition for Correction of Manifest Errors in the case at bar alleges 24, 2002 is AFFIRMED. The petition is DISMISSED.
an erroneous copying of figures from the election return to the
Statement of Votes by Precinct. Such an error in the tabulation of the
No pronouncement as to costs.
results, which merely requires a clerical correction without the
necessity of opening ballot boxes or examining ballots, demands only
the exercise of the administrative power of the COMELEC. Hence, the SO ORDERED.
Commissionen banc properly assumed original jurisdiction over the
aforesaid petition.

Now we proceed to the merits of the case.

Petitioner bewails the fact that the COMELEC took cognizance of

respondent Suyats petition for correction despite its having been filed
beyond the 5-day reglementary period fixed in the COMELEC Rules of
Procedure and its lack of certification against forum-
shopping.12cräläwvirtualibräry

Petitioner overlooks the fact that the COMELEC has the discretion to
suspend its rules or any portion thereof in the interest of justice.
Section 4, Rule 1 of the COMELEC Rules expressly provides that:

SEC. 4. Suspension of the Rules In the interest of justice and in order

to obtain speedy disposition of all matters pending before the
commission, these rules or any portion thereof may be suspended by
the Commission.

The COMELEC therefore has authority to suspend the reglementary

periods provided by the rules, or the requirement of certification of non-
forum shopping for that matter, in the interest of justice and speedy
resolution of the cases before it.13cräläwvirtualibräry

Petitioner next points out respondent Suyats omission to pay the

prescribed filing fees.

As correctly pointed out by the Office of the Solicitor General, the

COMELEC is not constrained to dismiss a case before it by reason of
non-payment of filing fees.14 Section 18, Rule 40 the COMELEC Rules
of Procedure states:

SEC 18. Nonpayment of Prescribed Fees If the fees above prescribed

are not paid, the Commission may refuse to take action thereon until
they are paid and may dismiss the action or the
proceeding.15cräläwvirtualibräry

The use of the word "may" in the aforecited provision readily shows
that the COMELEC is conferred the discretion whether to entertain the
petition or not in case of non-payment of legal fees.16 And even if it
were not afforded such discretion, as discussed above, it is authorized
to suspend its rules or any portion thereof in the interest of
justice.17cräläwvirtualibräry

It is noteworthy that petitioner only raised issues on the foregoing

technicalities, without questioning the COMELECs finding of manifest
error in the tabulation of votes. Even at the COMELEC stage, his
denial in his Answer18 was unsubstantiated by any rebuttal evidence to
disprove the submitted photocopies of the election returns and
statement of votes, which clearly showed the erroneous addition of 50
 EN BANC 2013.2 R.A. No. 10360 was published in the Philippine Star and the
Manila Bulletin only on 21 January 2013. Considering that R.A. No.
10360 shall take effect 15 days after its publication in at least two
G.R. No. 209185 October 25, 2013
newspapers of general and local circulation,3COMELEC, therefore,
only had until 6 April 2013 to conduct the plebiscite.4
MARC DOUGLAS IV C. CAGAS, Petitioner,
vs.
As early as 27 November 2012, prior to the effectivity of R.A. No.
COMMISSION ON ELECTIONS represented by its CHAIRMAN
10360, the COMELEC suspended the conduct of all plebiscites as a
ATTY. SIXTO BRILLANTES JR. and the PROVINCIAL ELECTION
matter of policy and in view of the preparations for the 13 May 2013
OFFICER OF DAVAO DEL SUR, represented by ATTY. MA. FEBES
National and Local Elections.5 On 9 July 2013, the COMELEC
BARLAAN,Respondents.
extended

RESOLUTION
CARPIO, J.:
This Resolution resolves the Petition for Prohibition,1 filed by Marc
Douglas IV C. Cagas (Cagas), in his capacity as taxpayer, to prohibit
the Commission on Elections (COMELEC) from conducting a plebiscite
for the creation of the province of Davao Occidental simultaneously
with the 28 October 2013 Barangay Elections within the whole
province of Davao del Sur, except in Davao City.
Cagas, while he was representative of the first legislative district of
Davao del Sur, filed with Hon. Franklin Bautista, then representative of
the second legislative district of the same province, House Bill No.
4451 (H.B. No. 4451), a bill creating the province of Davao Occidental.
H.B. No. 4451 was signed into law as Republic Act No. 10360 (R.A.
No. 10360), the Charter of the Province of Davao Occidental.
Sections 2 and 7 of R.A. No. 10360 provide for the composition of the
new provinces of Davao Occidental and Davao del Sur:
the policy on suspension of the holding of plebiscites by resolving to
defer action on the holding of all plebiscites until after the 28 October
2013 Barangay Elections.6 During a meeting held on 31 July 2013, the
COMELEC decided to hold the plebiscite for the creation of Davao
Occidental simultaneously with the 28 October 2013 Barangay
Elections to save on expenses7 . The COMELEC, in Minute Resolution
No. 13-0926, approved the conduct of the Concept of Execution for the
conduct of the plebiscite on 6 August 2013.8 On 14 August 2013,
Bartolome J. Sinocruz, Jr., the Deputy Executive Director for
Operations of the COMELEC, issued a memorandum furnishing a copy
of Minute Resolution No. 13-0926 to Atty. Remlane M. Tambuang,
Regional Election Director of Region XI; Atty. Ma. Febes M. Barlaan,
Provincial Election Supervisor of Davao del Sur; and to all election
officers of Davao del Sur. On 6 September 2013, the COMELEC
promulgated Resolution Nos. 97719 and 9772.10Resolution No. 9771
provided for the following calendar of activities:
DATE/PERIOD ACTIVITIES
SEPT. 09, 2013 (MON) Last day to constitute the Plebiscite Board of
Canvassers

Sec. 2. Province of Davao Occidental. – There is hereby created a new SEPT. 28, 2013 (SAT) PLEBISCITE PERIOD Bearing
province from the present Province of Davao del Sur to be known as – NOV. 12, 2013 deadly
the Province of Davao Occidental, consisting of the municipalities of (TUE) (30 DAYS building
Sta. Maria, Malita, Don Marcelino, Jose Abad Santos and Sarangani. BEFORE THE DATE convey
The territorial jurisdiction of the Province of Davao Occidental shall be OF PLEBISCITE AND carry th
within the present metes and bounds of all the municipalities that 15 DAYS the Com
comprise the Province of Davao Occidental. THEREAFTER amend

Suspen
xxxx (x), OE
the civi
Sec. 7. Legislative District. – The Province of Davao Occidental shall
have its own legislative district to commence in the next national and Alterati
local elections after the effectivity of this Charter. Henceforth, the establis
municipalities of Sta. Maria, Malita, Don Marcelino, Jose Abad Santos 8189)
and Sarangani shall comprise the Lone Legislative District of the
Province of Davao Occidental while the City of Digos and the Organiz
municipalities of Malalag, Sulop, Kiblawan, Padada, Hagonoy, Sta. similar
Cruz, Matanao, Bansalan and Magsaysay shall comprise the Lone
Legislative District of the Province of Davao del Sur. Illegal r

Use of
xxxx candida
regular
Section 46 of R.A. No. 10360 provides for the date of the holding of a Nationa
plebiscite. Philippi
(Sec. 2
7166);
Sec. 46. Plebiscite. – The Province of Davao Occidental shall be
created, as provided for in this Charter, upon approval by the majority
of the votes cast by the voters of the affected areas in a plebiscite to 1
be conducted and supervised by the Commission on Elections
(COMELEC) within sixty (60) days from the date of the effectivity of Releas
this Charter. funds (
works,
issuanc
The amount necessary for the conduct of the plebiscite shall be borne for a fu
by the COMELEC. funds (

R.A. No. 10360 was passed by the House of Representatives on 28 SEPTEMBER 28, 2013 INFORMATIONCAMPAIGN PERIOD Making
November 2012, and by the Senate on 5 December 2012. President (SAT) to OCTOBER (Sec. 1
Benigno S. Aquino III approved R.A. No. 10360 on 14 January 26, 2013 (SAT) craft. (S
 1. The 1987 Constitution does not fix the period to hold a
special policemen, special/ for
plebiscite confidential agents
the creation or government unit;
of a local
the like. (Sec. 261 (m), OEC);

SEPTEMBER 28, 2013 2. There was

Issuance of appointments, logisticalcreation
promotions, and financial
of impossibility for the
(SAT) to OCTOBER new positions, or COMELEC to hold
giving of salary a plebiscite at a mere two months’ notice;
increases.
28, 2013 (MON)
3. Legislative intent is for R.A. No. 10360 to be implemented;
OCTOBER 27, 2013 EVE OF PLEBISCITE DAY Campaigning (Sec. 3, OEC);
(SUN)
4. Public interest demands that the plebiscite be conducted;
Giving, acceptingand
free transportation, foods,
drinks, and things of value (Sec. 89, OEC);

Selling, furnishing, 5. offering,

The COMELEC did not abuse
buying, serving or its discretion in issuing the
16
questioned Resolutions.
taking intoxicating liquor (Sec. 261 (dd), (1),
OEC).(NOTE: Acts mentioned in the three (3)
preceding paragraphs
In this Resolution, arewe
prohibited
simplify until election
the issues raised by the parties, thus:
day.) Did the COMELEC act without or in excess of its jurisdiction or with
grave abuse of discretion amounting to lack or excess of jurisdiction
OCTOBER 28, 2013 PLEBISCITE DAYCasting of votes- (from Vote-buying
when and vote selling
it resolved (Sec.
to hold the 261 (a), for the creation of the Province
plebiscite
(MON) 7:00 a.m. to 3:00 p.m. simultaneous with the OEC);Voting
of Davao more than onceonor28
Occidental in October
substitution
2013,of simultaneous with the
voting for the Barangay and SK anotherBarangay
(Sec. 261Elections?
(z) (2) and (3),
Elections)Counting of votes shall be after the OEC);Campaigning (Sec. 3, OEC);Soliciting votes
counting of votes for Barangay and SK or undertaking any propaganda for or against any
Elections)Convening of the City Plebiscite We or
candidate answer in the negative.
any political party within the polling
Board of Canvassers – (6:00 p.m.) place or within thirty (30) meters thereof (Sec.
261 (cc)The(6),COMELEC’s
OEC);Selling, furnishing,
power offering,elections
to administer
buying, serving or taking intoxicating liquor, etc.
(Sec. 261 (dd) (1), OEC);Opening of booths or
includes
stalls for the sale,theetc.,
power to conduct
of wares, a plebiscite
merchandise or beyond the schedule
refreshments, within thirty (30) meters radius from
the polling place. (Sec.
prescribed by law.261 (dd) (2) OEC);Giving
and/or accepting free transportation, food, drinks
and things of value (Sec. 89, OEC);Holding of
The conduct
fairs, cockfights, of a plebiscite
boxing, horse races is necessary
or similar for the creation of a province.
sports. Sections
(Sec. 26110(dd) and(3),
11 OEC).
of Article X of the Constitution provide that:

Sec. 10. No province, city, municipality, or barangay may be created,

Resolution No. 9772, on the other hand, provided that copies of R.A.
No. 10360 be posted11 and that information campaigns be conducted
prior to the plebiscite.12
On 9 October 2013, Cagas filed the present petition for prohibition.
Cagas cites three causes of action:
1. COMELEC is without authority or legal basis to AMEND or MODIFY
Section 46 of Republic Act No. 10360 by mere MINUTE RESOLUTION
because it is only CONGRESS who can validly amend, repel [sic] or
modify existing laws, thus COMELEC [sic] act in suspending the
holding of a plebiscite is unconstitutional;13
2. COMELEC is without authority or legal basis to hold a plebiscite this
coming October 28, 2013 for the creation of the Province of Davao
Occidental because Section 46 of Republic Act No. 10360 has already
lapsed;14 and
3. Petitioner has no other adequate remedy to prevent the COMELEC
from holding the Plebiscite on October 28, 2013 for the creation of the
Province of Davao Occidental except through the issuance of
Temporary Restraining Order and Preliminary Injunction because
COMELEC had already commenced the preparation for holding of the
Plebiscite for the creation of the Province of Davao Occidental
synchronizing it with that of the Barangay and SK elections this coming
October 28, 2013.15
On 17 October 2013, we issued a Resolution requiring respondents
COMELEC, represented by its Chairperson, Hon. Sixto Brillantes, Jr.,
and the Provincial Election Officer of Davao del Sur, represented by
Atty. Ma. Febes Barlaan, to file their comment to Cagas’ petition not
later than 21 October 2013.
The respondents, through the Office of the Solicitor General (OSG),
filed their comment on 21 October 2013. The OSG raises the following
arguments:
divided, merged, abolished, or its boundary substantially altered,
except in accordance with the criteria established in the local
government code and subject to approval by a majority of the votes
cast in a plebiscite in the political units directly affected.
Sec. 11. The Congress may, by law, create special metropolitan
political subdivisions, subject to a plebiscite as set forth in Section 10
hereof. The component cities and municipalities shall retain their basic
autonomy and shall be entitled to their own local executive and
legislative assemblies. The jurisdiction of the metropolitan authority
that will thereby be created shall be limited to basic services requiring
coordination. Section 10, Article X of the Constitution emphasizes the
direct exercise by the people of their sovereignty. After the legislative
branch’s enactment of a law to create, divide, merge or alter the
boundaries of a local government unit or units, the people in the local
government unit or units directly affected vote in a plebiscite to register
their approval or disapproval of the change.17
The Constitution does not specify a date as to when plebiscites should
be held. This is in contrast with its provisions for the election of
members of the legislature in Section 8, Article VI18 and of the
President and Vice-President in Section 4, Article VII.19 The
Constitution recognizes that the power to fix the date of elections is
legislative in nature, which is shown by the exceptions in previously
mentioned Constitutional provisions, as well as in the election of local
government officials.20
Section 10 of R.A. No. 7160 furnishes the general rule as to when a
plebiscite may be held:
Sec. 10. Plebiscite Requirement. – No creation, division, merger,
abolition, or substantial alteration of boundaries of local government
units shall take effect unless approved by a majority of the votes cast
in a plebiscite called for the purpose in the political unit or units directly
affected. Said plebiscite shall be conducted by the Commission on
Elections (COMELEC) within one hundred twenty (120) days from the
date of effectivity of the law or ordinance effecting such action, unless
said law or ordinance fixed another date.
Section 46 of R.A. No. 10360, however, specifically provides that the
plebiscite for the creation of the province of Davao Occidental be held
within 60 days from the effectivity of R.A. No. 10360, or until 6 April
2013.21 Cagas claims that R.A. No. 10360 "did not confer express or
implied power to COMELEC to exercise discretion when the plebiscite
for the creation of the Province of Davao Occidental will be held. On
the contrary, said law provides a specific period when the COMELEC
should conduct a plebiscite."22 Cagas views the period "60 days from
the effectivity" in R.A. No. 10360 as absolute and mandatory; thus,
COMELEC has no legal basis to hold a plebiscite on 28 October 2013.
The Constitution, however, grants the COMELEC the power to
"enforce and administer all laws and regulations relative to the conduct
of an election, plebiscite, initiative, referendum and recall."23 The
COMELEC has "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."24 The text and
intent of Section 2(1) of Article IX(C) is to give COMELEC "all the
necessary and incidental powers for it to achieve the objective of
holding free, orderly, honest, peaceful and credible elections."25
Sections 5 and 6 of Batas Pambansa Blg. 881 (B.P. Blg. 881) the
Omnibus Election Code, provide the COMELEC the power to set
elections to another date.
Sec. 5. Postponement of election.- When for any serious cause such
as violence, terrorism, loss or destruction of election paraphernalia or
records, force majeure, and other analogous causes of such a nature
that the holding of a free, orderly and honest election should become
impossible in any political subdivision, the Commission, motu proprio
or upon a verified petition by any interested party, and after due notice
and hearing, whereby all interested parties are afforded equal
opportunity to be heard, shall postpone the election therein to a date
which should be reasonably close to the date of the election not held,
suspended or which resulted in a failure to elect but not later than thirty
days after the cessation of the cause for such postponement or
suspension of the election or failure to elect.
Sec. 6. Failure of election. - If, on account of force majeure, violence,
terrorism, fraud, or other analogous causes the election in any polling
place has not been held on the date fixed, or had been suspended
before the hour fixed by law for the closing of the voting, or after the
voting and during the preparation and the transmission of the election
returns or in the custody or canvass thereof, such election results in a
failure to elect, and in any of such cases the failure or suspension of
election would affect the result of the election, the Commission shall,
on the basis of a verified petition by any interested party and after due
notice and hearing, call for the holding or continuation of the election
not held, suspended or which resulted in a failure to elect on a date
reasonably close to the date of the election not held, suspended or
which resulted in a failure to elect but not later than thirty days after the
cessation of the cause of such postponement or suspension of the
election or failure to elect.
The tight time frame in the enactment, signing into law, and effectivity
of R.A. No. 10360 on 5 February 2013, coupled with the subsequent
conduct of the National and Local Elections on 13 May 2013 as
mandated by the Constitution, rendered impossible the holding of a
plebiscite for the creation of the province of Davao Occidental on or
before 6 April 2013 as scheduled in R.A. No. 10360. We also take
judicial notice of the COMELEC’s burden in the accreditation and
registration of candidates for the Party-List Elections.26 The logistic and
financial impossibility of holding a plebiscite so close to the National
and Local Elections is unforeseen and unexpected, a cause analogous
to force majeure and administrative mishaps covered in Section 5 of
B.P. Blg. 881. The COMELEC is justified, and did not act with grave
abuse of discretion, in postponing the holding of the plebiscite for the
creation of the province of Davao Occidental to 28 October 2013 to
synchronize it with the Barangay Elections.
The OSG illustrated the COMELEC’s predicament in this manner:
To be sure, at the time R.A. No. 10360 was approved, the COMELEC
had to deliver and accomplish the following, among many others, for
the May 2013 National and Local Elections:
1. Preparation of the Project of Precincts indicating the total
number of established precincts and the number of
registered voters per precincts [sic] in a city or municipality.
2. Constitution of the Board of Election Inspectors including
the precincts where they will be assigned and the barangay
where the precinct is located.
3. Inspection, verification and sealing of the Book of Voters
containing the approved voter registration records of
registered voters in the particular precinct which must be
inspected, verified, and sealed.
4. Finalization and printing of the computerized voters list for
use on election day.
5. The preparation, bidding, printing and distribution of the
voters’ information.
6. Configuration, testing, and demonstration of the PCOS
machines and their distribution to the different precincts.
To comply with the 60-day period to conduct the plebiscite then, as
insisted, petitioner would have the COMELEC hold off all of its above
tasks. If COMELEC abandoned any of its tasks or did not strictly follow
the timetable for the accomplishment of these tasks then it could have
put in serious jeopardy the conduct of the May 2013 National and
Local Elections. The COMELEC had to focus all its attention and
concentrate all its manpower and other resources on its preparation for
the May 2013 National and Local Elections, and to ensure that it would
not be derailed, it had to defer the conduct of all plebiscites including
that of R.A. No. 10360.
Parenthetically, for the COMELEC to hold the plebiscite for the
ratification of R.A. No. 10360 within the fixed period, it would have to
reconfigure for said purpose some of the PCOS machines that were
already configured for the May 2013 National and Local Elections; or in
the alternative, conduct the plebiscite manually.
However, conducting the plebiscite manually would require another set
of ballots and other election paraphernalia. Besides, another set of
election materials would also require additional logistics for printing,
checking, packing, and deployment thereof. Lest it be forgotten, that all
of these things should undergo public bidding.
Since the plebiscite would be a separate undertaking, the COMELEC
would have to appoint separate sets of boards of election inspectors,
tellers, and other personnel to canvass the result of the plebiscite – all
of which would have entailed further cost for the COMELEC whose
budget had already been overly stretched to cover the May 2013
National and Local Elections.
More importantly, it bears stressing that the COMELEC was not given
a special budget to defray the cost of the plebiscite. In fact, the
COMELEC had to take ₱11 million from its savings and from the
Barangay Elections budget to finance the plebiscite to ratify R.A. No.
10360 on October 28, 2013.
The COMELEC’s questioned Resolution then directing the holding of
the plebiscite for the ratification of R.A. No. 10360 simultaneously with
the Barangay Elections was not an abuse of its discretion, as alleged,
but simply an exercise of prudence, because as the COMELEC itself
noted, doing so "will entail less expense than holding it separately." [p.
9, Resolution No. 13-0926, Annex B, Petition.]
The determination of the feasibility of holding a plebiscite on a given
date is within the competence and discretion of the COMELEC.
Petitioner cannot therefore simply insist that the COMELEC should
have complied with the period specified in the law when doing so
would be virtually impossible under the circumstances.27
This Court has rejected a too literal interpretation of election laws in
favor of holding free, orderly, honest, peaceful and credible elections.
In Pangandaman v. COMELEC,28 Lining Pangandaman
(Pangandaman) filed a petition for certiorari and prohibition with prayer
for temporary restraining order and preliminary injunction to challenge
the Omnibus Order of the COMELEC En Banc. The COMELEC En
Banc ordered the conduct of special elections in certain municipalities
in Lanao del Sur on 18 and 25 July 1998, or more than 30 days after
the failure of elections on 11 May 1998. Like Cagas, Pangandaman
insisted on a strict compliance with the schedule of the holding of
special elections. Pangandaman asserted that COMELEC’s authority
to call a special election was limited by the 30-day period and that
Congress had the power to call a special election after the 30th day.
We admonished Pangandaman against a too literal interpretation of
the law, and protected COMELEC’s powers against the straitjacketing
by procedural rules.
It is a basic precept in statutory construction that a statute should be
interpreted in harmony with the Constitution and that the spirit, rather
than the letter of the law determines its construction; for that reason, a
statute must be read according to its spirit and intent. Thus, a too literal
interpretation of the law that would lead to absurdity prompted this
Court to —
x x x admonish against a too-literal reading of the law as this is apt to
constrict rather than fulfill its purpose and defeat the intention of its
authors. That intention is usually found not in ‘the letter that killeth but
in the spirit that vivifieth’ x x x
Section 2(1) of Article IX(C) of the Constitution gives the COMELEC
the broad power to "enforce and administer all laws and regulations
relative to the conduct of an election, plebiscite, initiative, referendum
and recall." There can hardly be any doubt that the text and intent of
this constitutional provision is to give COMELEC all the necessary and
incidental powers for it to achieve the objective of holding free, orderly,
honest, peaceful and credible elections.
Pursuant to this intent, this Court has been liberal in defining the
parameters of the COMELEC’s powers in conducting elections. As
stated in the old but nevertheless still very much applicable case of
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 x x x. 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 laws relative to the
conduct of election 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.
More pointedly, this Court recently stated in Tupay Loong v.
COMELEC, et al., that "Our elections are not conducted under
laboratory conditions. In running for public offices, candidates do not
follow the rules of Emily Post. 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. We cannot, however,
engage in a swivel chair criticism of these actions often taken under
very difficult circumstances."
The purpose of the governing statutes on the conduct of elections —
x x x is to protect the integrity of elections to suppress all evils that may
violate its purity and defeat the will of the voters. The purity of the
elections is one of the most fundamental requisites of popular
government. 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
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 with.
Guided by the above-quoted pronouncement, the legal compass from
which the COMELEC should take its bearings in acting upon election
controversies is the principle that " clean elections control the
appropriateness of the remedy."
In fixing the date for special elections the COMELEC should see to it
that: 1.] it should not be later than thirty (30) days after the cessation of
the cause of the postponement or suspension of the election or the
failure to elect; and, 2.] it should be reasonably close to the date of the
election not held, suspended or which resulted in the failure to
elect.1avvphi1 The first involves a question of fact. The second must
be determined in the light of the peculiar circumstances of a case.
Thus, the holding of elections within the next few months from the
cessation of the cause of the postponement, suspension or failure to
elect may still be considered "reasonably close to the date of the
election not held."
In this case, the COMELEC can hardly be faulted for tardiness. The
dates set for the special elections were actually the nearest dates from
the time total/partial failure of elections was determined, which date fell
on July 14, 1998, the date of promulgation of the challenged Omnibus
Order. Needless to state, July 18 and 25, the dates chosen by the
COMELEC for the holding of special elections were only a few days
away from the time a total/partial failure of elections was declared and,
thus, these were "dates reasonably close" thereto, given the prevailing
facts herein. Furthermore, it bears stressing that in the exercise of the
plenitude of its powers to protect the integrity of elections, the
COMELEC should not and must not be straitjacketed by procedural
rules in the exercise of its discretion to resolve election disputes. 29
In Sambarani v. COMELEC,30 petitioners were candidates for punong
barangay in different barangays in Lanao del Sur. There was a failure
of elections in the 15 July 2002 Synchronized Barangay and
Sangguniang Kabataan (SK) Elections, and special elections were set
on 13 August 2002 in the affected barangays. No special elections
were held on 13 August 2002, so petitioners asked the COMELEC to
declare a failure of elections in their barangays and to hold another
special election. The COMELEC, however, directed the Department of
Interior and Local Government to appoint the Barangay Captains,
Barangay Kagawads, SK Chairmen, and SK
Kagawads in the affected barangays. The COMELEC stated that it is
no longer in a position to call for another special election since Section
6 of the Omnibus Election Code provides that "special elections shall
be held on a date reasonably close to the date of the election not held,
but not later than thirty days after cessation of the cause of such
postponement."
We directed the COMELEC to conduct special elections and stated
that the deadline cannot defeat the right of suffrage of the people.
The prohibition on conducting special elections after thirty days from
the cessation of the cause of the failure of elections is not
absolute.1âwphi1 It is directory, not mandatory, and the COMELEC
possesses residual power to conduct special elections even beyond
the deadline prescribed by law. The deadline in Section 6 cannot
defeat the right of suffrage of the people as guaranteed by the
Constitution. The COMELEC erroneously perceived that the deadline
in Section 6 is absolute. The COMELEC has broad power or authority
to fix other dates for special elections to enable the people to exercise
their right of suffrage. The COMELEC may fix other dates for the
conduct of special elections when the same cannot be reasonably held
within the period prescribed by law.31

It is thus not novel for this Court to uphold the COMELEC’s broad
power or authority to fix other dates for a plebiscite, as in special
elections, to enable the people to exercise their right of suffrage. The
COMELEC thus has residual power to conduct a plebiscite even
beyond the deadline prescribed by law. The date 28 October 2013 is
reasonably close to 6 April 2013, and there is no reason why the
plebiscite should not proceed as scheduled by the COMELEC. The
OSG points out that public interest demands that the plebiscite be
conducted.

At this point, there is nothing more for the COMELEC to do except to

hold the plebiscite as scheduled on October 18, [sic] 2013. In fact, the
COMELEC already scheduled the shipment and deployment of the
election paraphernalia to all the precincts in Davao del Sur, except
Davao City.

The COMELEC had put so much work and effort in its preparation for
the conduct of the plebiscite. A substantial amount of funds have also
been defrayed for the following election undertakings:

1 Bidding for election paraphernalia;

2 Cleansing of voters registration list;

3 Preparation, bidding, printing and distribution of the voters

information;

4 Preparation and completion of the projects of precincts;

5 Printing of ballots;

6 Constitution of the Board of Election Inspectors;

7 Training and assignment of personnel; and

8 Information dissemination campaign.

To demand now that the COMELEC desist from holding the plebiscite
would be an utter waste of time, effort and resources, not to mention its
detriment to public interest given that public funds are involved.32

In election law, the right of suffrage should prevail over mere

scheduling mishaps in holding elections or plebiscites. Indeed, Cagas
insistence that only Congress can cure the alleged legal infirmity in the
date of holding the plebiscite for the creation of the Province of Davao
Occidental fails in light of the absence of abuse of discretion of the
COMELEC. Finally, this Court finds it unacceptable to utilize more of
our taxpayers time and money by preventing the COMELEC from
holding the plebiscite as now scheduled.

WHEREFORE, we DISMISS the petition for lack of merit.

SO ORDERED.
 EN BANC
G.R. No. 230249, April 24, 2018
ATTY. PABLO B. FRANCISCO, Petitioner, v. COMMISSION ON
ELECTIONS AND ATTY. JOHNIELLE KEITH P.
NIETO, Respondents.
DECISION
VELASCO JR., J.:
Nature of the Case
This treats of the petition for certiorari under Rule 64, in relation to Rule
65, of the Rules of Court filed by Atty. Pablo B. Francisco (Francisco),
which seeks to nullify the February 2, 2017 Resolution1 of the public
respondent Commission on Elections (COMELEC) En Banc. The
assailed ruling dismissed Francisco's Petition for Disqualification
against private respondent Atty. Johnielle Keith P. Nieto (Nieto).
The Facts
Francisco is a registered voter in Cainta, Rizal, while Nieto was elected
as mayor of the same municipality in 2013. Nieto filed a certificate of
candidacy (COC) to signify his bid for re-election for the 2016 National
and Local Elections.
On April 8, 2016, Francisco filed before the COMELEC a Petition for
Disqualification against Nieto, docketed as SPA 16-062(DC), alleging
that on April 1-2, 2016, respondent made financial contributions out of
the government coffers for the asphalt-paving of the road entrance
along Imelda Avenue of Cainta Green Park Village. This, according to
petitioner, amounted to the expending of public funds within forty-five
(45) days before the 2016 polls and to illegal contributions for road
repairs, respectively punishable under Sees. 261(v)2 and 1043 of Batas
Pambansa Blg. 881, otherwise known as the Omnibus Election Code
(OEC). Petitioner further claimed that the said asphalt paving was one
of the accomplishments that respondent reported on his Facebook
page.
In his Answer filed on April 22, 2016, Nieto countered that the
questioned asphalting project was subjected to public bidding on
March 15, 2016, with a Notice of Award issued on March 21, 2016.
Thus, the asphalting project falls within the excepted public works
mentioned in Sec. 261(v)(l)(b) of the OEC.
During the preliminary conference on May 5, 2016, the counsels for the
parties marked their respective pieces of evidence. Thereafter, an
Order was issued giving them ten (10) days to file their respective
memoranda. The COMELEC would receive copies of the memoranda
on May 16, 2016 and, thereafter, the case was deemed submitted for
resolution. In the interim, Nieto would be re-elected as municipal mayor
of Cainta, Rizal, having garnered the plurality of votes upon the
conclusion of the 2016 polls.
Ruling of the COMELEC
On August 16, 2016, the COMELEC Second Division promulgated a
Resolution4 dismissing the Petition for Disqualification against Nieto,
and ruled in the following wise:
From the foregoing, it is clear that a candidate cannot be disqualified
without a prior finding that he or she is suffering from a disqualification
provided by law or the Constitution. To be sure, in order 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.
In the instant case, this Commission (Second Division) finds no such
prior declaration by a final judgment of a competent court or of a
finding of the Commission that Respondent is guilty of the acts
complained of Whether or not the Respondent is guilty of the alleged
acts is a prejudicial question which should be determined first in a
proper proceedings (sic) before a tribunal with competent jurisdiction.
In the absence of such prior finding of a competent tribunal, the
Commission has no basis to disqualify Respondent. That said, the
case must be dismissed.
WHEREFORE, premises considered, the instant Petition
is DISMISSED.
SO ORDERED.5
The COMELEC Second Division anchored its ruling on the Court's
landmark decision in Poe-Llamanzares v. COMELEC6 (Poe) wherein
the Court enunciated thusly:
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 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.
(emphasis added)
On September 8, 2016, petitioner moved for reconsideration from the
COMELEC Second Division's Resolution before the COMELEC En
Banc, arguing in the main that there need not be a final judgment by a
competent court that the candidate sought to be disqualified is guilty of
or is suffering from any disqualification. He also stressed that since the
act complained of can only be committed within forty-five (45) days
before the election, it would be impossible to secure a conviction prior
to initiating the disqualification proceedings.
Despite these strong asseverations, however, the COMELEC En
Banc found no reason to disturb the ruling of the Second Division.
Instead, the seven-person Commission echoed the pronouncement
that for a petition for disqualification to prosper, 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."
The COMELEC En Bancthen deemed that the denial of the petition is
the only course of action it could take under the premises. Thus, in its
assailed February 2, 2017 Resolution, the electoral tribunal held:
Although the ruling enunciated by the Supreme Court in [Poe] has
effectively emasculated the Commission's power under COMELEC
Resolution No. 9523 to disqualify a candidate, it cannot decline to
apply such ruling in view of the principle that "judicial decisions
applying or interpreting the laws or the Constitution shall form a part of
the legal system of the Philippines."
As such, Petitioner's reliance on the cases cited in the Motion for
Reconsideration is misplaced, considering that the Poe case is now
the controlling doctrine on the matter having been decided in 2016 and
thus supersedes any previous ruling on the matter.
xxxx
Consequently, having no leg to stand on, the instant Motion for
Reconsideration is DENIED and the Resolution of the Commission
(Second Division) is herebyAFFIRMED.7
Hence, the instant recourse.
The Issues
The issues to be resolved by this Court can be condensed to the
following:
I. Whether or not the COMELEC acted in grave abuse of
discretion in ruling that a petition for disqualification under
Sec. 68 of the OEC cannot prosper without a prior judgment
finding the respondent guilty of an election offense.
 II. Whether or not petitioner sufficiently established by
substantial evidence that respondent violated Secs. 261(v)
and 104 of the OEC.
Petitioner bewails that the COMELEC abruptly dismissed the
disqualification case. According to petitioner, the situation ushered in
by the COMELEC ruling would render toothless Section 68 of the OEC
against election irregularities because of the virtual impossibility of
compliance with the prior ruling requirement. He also asserts
that Poe does not apply to candidates for local posts.
In his Comment, respondent Nieto cited the Poe ruling and averred
that since there was no prior declaration by a final judgment of a
competent court or of a finding of the Commission that he is guilty of
the acts complained of, the COMELEC Second Division had no basis
to disqualify him. Nieto likens the requirement of a prior ruling to a
prejudicial question that must first be determined in a proper
proceeding before a tribunal with competent jurisdiction.
Moreover, Nieto reiterated the defense that the asphalting project is
outside the ambit of the ban against the expenditure of public funds
since it was contracted prior to the 45-day period before the scheduled
elections. It was, thus, an infrastructure activity lawfully entered into by
the local government unit of Cainta. In addition, no public funds were
disbursed for the project during the ban since all expenses were for the
account of the winning bidder, Franzcor Trading and Construction.
The Office of the Solicitor General (OSG), representing the
government, in its Comment took a stance different from that of the
COMELEC. The OSG argued that Article IX-C, Section 2(2) and (3) of
the Constitution granted the COMELEC the quasi-judicial power to
decide all questions affecting elections, except those involving the right
to vote. This power further finds legal mooring in the dual aspect of the
prohibited acts constituting the grounds for disqualification under
Section 68 of the OEC. Lastly, the OSG posited that the context of
the Poe ruling bars its application to local elective officials since the
discussions were aptly made within the confines of a national
candidate for the presidency.
The Court's Ruling
Petitioner is correct in his contention that a prior judgment is not a
precondition to filing a Petition for Disqualification. Nevertheless, the
petition must necessarily fail for lack of substantial evidence to
establish that private respondent committed an election offense.
Petitioner failed to comply with the material date rule
Before We discuss the merits of the case, the Court observes that
petitioner failed to state the material dates to establish that the instant
recourse was timely interposed. The petitioner merely stated that he
received a copy of the COMELEC's Resolution denying his motion for
reconsideration on February 20, 2017, and that he was filing this
petition within thirty (30) days from the said date on March 22, 2017. 8
The allegation is not sufficient. Rule 64, Section 3 of the Rules of Court
prescribes the period for elevating the COMELEC's ruling to this Court
thusly:
Section 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.
Clear from the provision is that the intervening period petitioner utilized
in moving for reconsideration before the COMELEC must be deducted
from the thirty (30)-day period for resorting to a Rule 64 petition. As
held in Pates v. COMELEC,9 the fresh period rule in Neypes v. Court of
Appeals10 that resets the period of the fi1ing of an appeal from the date
of receipt of the ruling on reconsideration is applicable only in civil
cases, not in election controversies. Filing a motion for reconsideration
before the COMELEC then almost guarantees that the full 30-day
period could not be availed of.
In the case at bar, petitioner failed to indicate when he received a copy
of the August 16, 2016 Resolution of the COMELEC Second Division,
from which he moved for reconsideration on September 8, 2016. The
Court is then unable to determine how many days should be deducted
from his period for filing a Rule 64 petition and, consequently, if the
instant recourse had been filed on time. The particular date of receipt
is of utmost significance in this case since petitioner cannot deny that
he availed of the full 30-day period from February 20, 2017 to March
22, 2017. This means that unless petitioner filed his motion for
reconsideration on the very same day he received the COMELEC's
August 16, 2016 Resolution, the instant petition had been filed out of
time. In any case, non-compliance with the material date rule, in itself,
is already a ground for dismissal.11
Revisiting Poe and strengthening the jurisdiction of the
COMELEC
Public respondent COMELEC relied heavily on the Court's
pronouncement in Poe when it dismissed the election controversy. The
Court, however, takes this opportunity to rectify Our position
in Poe and to uphold the jurisdiction of the COMELEC as strengthened
under the present Constitution.
For perspective, the COMELEC was never part of the original version
of the 1935 Constitution. Prior to its creation, it was the then
Department of Interior, through an Executive Bureau then directly, that
superintended the conduct of elections.12 The Courts were charged
with resolving questions affecting the right to vote as well as contested
elections of local elective officials, while the Secretary of Interior was
vested with the authority to enforce the election laws and assign local
authorities to perform ministerial duties relative thereto.
The close official relationship between the President and the Secretary
of Interior, however, aroused suspicion that the latter had been
administering election statutes not for the purpose of securing honest
and free elections, but to serve the political interest of the party in
power to which they belonged. They were never entirely free from
suspicion of acting with partisan bias. And this general dissatisfaction
and distrust over the manner the elections were conducted at that time
impelled the National Assembly to propose the creation of the
COMELEC by constitutional amendment.13
Through a plebiscite held on June 17, 1940, several amendments were
introduced to the 1935 Constitution: modifying the term of office of the
President and the Vice-President from six (6) years to four (4) years,
but with re-election for another term establishing a bicameral Congress
composed of the Senate as the upper house and the House of
Representatives as the lower house; and creating an independent
COMELEC.
Since its creation, the COMELEC's power had been increased in each
incarnation of the Constitution to reflect the country's awareness of the
need to provide greater regulation and protection to our electoral
processes and to ensure their integrity.14 To demonstrate, Article X,
Section 2 of the 1935 Constitution, as amended, declares the power of
the electoral commission thusly:
Section 2. 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 and location of polling
places, and the appointment of election inspectors and of other
election officials. All law enforcement agencies and instrumentalities of
the Government, when so required by the Commission, shall act as its
deputies for the purpose of insuring free, orderly, and honest election.
The decisions, orders, and rulings of the Commission shall be subject
to review by the Supreme Court.
No pardon, parole. or suspension of sentence for the violation of any
election law may be granted without the favorable recommendation of
the Commission. (emphasis added)
Thus, the administrative control over the conduct of elections erstwhile
exercised by the Secretary of Interior was shifted to the COMELEC.
Under its constitutional mandate, it was tasked with "the enforcement
and administration of all laws relative to the conduct of elections" and
bestowed the power to "decide save those involving the right to vole,
all administrative questions affecting elections." But since its authority
to decide was circumscribed to administrative questions, the courts
retained their original powers over local election contests.
It was not until the enactment of the 1973 Constitution when the power
of the COMELEC to resolve election controversies was
institutionalized. Through Article XII (C), Section 2 of the 1973
Constitution. the powers of the COMELEC were expanded to the
following:
SEC. 2. The Commission on Elections shall have the following powers
and functions:
(1) Enforce and administer all laws relative to the conduct of elections.
(2) Be the sole judge of all contests relating to the elections,
returns, and qualifications of all Members of the Batasang
Pambansa and elective provincial and city officials.
(3) Decide, save those involving the right to vote, administrative
questions affecting elections, including the determination of the
number and location of polling places, the appointment of election
officials and inspectors, and the registration of voters.
(4) Deputize, with the consent or at the instance of the President, law
enforcement agencies and instrumentalities of the Government,
including the armed forces of the Philippines, for the purpose of
ensuring free, orderly, and honest elections.
(5) Register and accredit political parties subject to the provisions of
Section eight hereof
(6) Recommend to the Batasang Pambansa effective measures to
minimize election expenses and prohibit all forms of election frauds
and malpractices, political opportunism, guest or nuisance candidacy,
or other similar acts.
(7) Submit to the President, the Prime Minister, and the Batasang
Pambansa a report on the conduct and manner of each election.
(8) Perform such other functions as may be provided by law.
(emphasis added)
As aptly observed in Mendoza v. COMELEC (Mendoza),15 these
powers of the COMELEC have been enhanced in scope and details
under the 1987 Constitution. Article X (C), Section 2 of the Constitution
embodies the myriad of powers bestowed upon the polling body, viz:
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.
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 com prehensive report
on the conduct of each election, plebiscite, initiative, referendum, or
recall. (emphasis added)
Significantly, the present Constitution clarifies that the COMELEC
retains its character as an administrative agency notwithstanding its
authority to resolve election contests. As held in Mendoza:
As will be seen on close examination, the 1973 Constitution used the
unique wording that the COMELEC shall be the sole judge of all
contests, thus giving the appearance that judicial power had been
conferred. This phraseology, however, was changed in the 1987
Constitution to give the COMELEC exclusive jurisdiction over all
contests, thus removing any vestige of exercising its adjudicatory
power as a court and correctly aligning it with what it is a quasi-judicial
body.16
As enunciated, the COMELEC's adjudicative function over election
contests is quasi-judicial in character since the COMELEC is a
governmental body, other than a court, that is vested with jurisdiction
to decide the specific class of controversies it Is charged with
resolving. In adjudicating the rights of persons before it, the COMELEC
is not just empowered but is in fact required to investigate facts or
ascertain the existence of facts, hold hearings, weigh evidence, and
draw conclusions from them as basis for their official action and
exercise of discretion in a judicial nature.17 This is simply in
congruence with the concept of due process that all administrative
adjudicatory bodies are enjoined to observe.
The COMELEC is, thus, fully-clothed with authority to make factual
determinations in relation to the election contests before it. This has
been the thrust of the decades worth of constitutional revisions that
transformed the COMELEC from a purely administrative body, whose
scope of decision making is limited to those incidental to its duty to
enforce election laws, to a polling commission that also exercises
original and exclusive, as well as appellate, jurisdiction over election
contests.
Considering the historical evolution of the COMELEC, the Court now
declares that the polling body has full adjudicatory powers to resolve
election contests outside the jurisdiction of the electoral tribunals. To
rule otherwise would be an act of regression, contrary to the intent
behind the constitutional innovations creating and further strengthening
the Commission. There is no novelty in this pronouncement, but
merely a reinstatement of Our consistent jurisprudence prior to Poe.
In the landmark case of Aratea v. COMELEC,18 for instance, the COC
of Romeo D. Lonzanida was cancelled and declared void ab
initio because of his misrepresentation as to his eligibility. He knew
fully well that he had been elected, and had served, as mayor of San
Antonio, Zambales for more than three consecutive terms yet he still
certified that he was eligible to run for mayor for the next succeeding
term, thus constituting false material representation. No prior judgment
recognizing Lonzanida's service for three terms was necessary to
effect the cancellation of his COC.
In Maquiling v. COMELEC,19 Linog G. Balua, through a petitiOn treated
as one for cancellation and/or denial of due course of COC, contended
that Rommel Arnado is not a resident of Kauswagan, Lanao del Norte
and that the latter is a foreigner based on a certification by the Bureau
of Immigration indicating that Amado is American. The Court did not
find issue in the COMELEC's authority to make a factual determination
as to Amado's citizenship and residence, though We eventually
reversed the COMELEC En Banc's ruling and reinstated that of its First
Division based on Our own appreciation of the evidence on record.
And in Cerafica v. COMELEC (Cerafica),20 the Court reversed the
COMELEC's mling not because of any alleged lack of authority to
make factual determinations as to the eligibility of a candidate, but,
quite the contrary, because it did not make use of the same authority.
To reiterate, the COMELEC, as an adjunct to its adjudicatory power.
may investigate facts or ascertain the existence of facts, hold hearings.
weigh evidence, and draw conclusions from them as basis for their
official action. As held in Cerafica:21
The determination of whether a candidate is eligible for the position he
is seeking involves a determination of fact where parties must be
allowed to adduce evidence in support of their contentions. We thus
caution the Comelec against its practice of impetuous cancellation of
COCs via minute resolutions adopting the recommendations of its Law
Department when the situation properly calls for the case's referral to a
Division for summary hearing.
It may be true that the sole ground for Petitions to Deny Due Course or
to Cancel COC is false material representation compounded by intent
to deceive on the part of the candidate and that the intent to deceive or
mislead will be difficult, if not impossible, to ascertain absent an
established fact that the candidate deviated from. Contrary to Poe, the
Court categorical1y rules herein that the COMELEC can be the
proper body to make the pronouncement against which the truth or
falsity of a material representation in a COC can be measured. But lest
it be misunderstood, these disquisitions will not by any means alter the
outcome of Poe, for even if We dispense the requirement of a
predicate judgment therein and uphold the jurisdiction of the
COMELEC, the Court's conclusion would still find mooring on the
factual findings on Poe's Filipino blood relation and residency.22
A predicate judgment is not required in Petitions for
Disqualification
Moreover, the Commission gravely abused its discretion when it failed
to appreciate the characteristics that distinguish Poe from the case at
bar. It must be stressed that there is a world of difference between the
remedies availed of in Poe and in the instant case. What is involved
herein is a Petition for Disqualification under Sec. 68 of the OEC,
whereas Poe was initiated by multiple Petitions to Deny Due Course or
Cancel COC under Sec. 78 of the OEC.23
The statutory bases for the two distinct remedies read:
Sec. 68. Disqualifications. - Any candidate who, in an action or
protest in which he is a party is declared by final decision of a
competent court guilty of, or found by the Commission of having
xxxx
d. solicited, received or made any contribution prohibited under
Sections 89, 95, 96, 97 and 104; or
e. violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e,
k, v, and cc, subparagraph 6, shall be disqualified from continuing
as a candidate, or if he has been elected, from holding the office.
xxx
xxxx
Sec. 78. Petition to deny due course to or cancel a certificate of
candidacy. - A verified petition seeking to deny due course or to
cancel a certificate of candidacy may be filed by the
person exclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false.
The petition may be filed at any time not later than twenty-five days
from the time of the filing of the certificate of candidacy and shall be
decided, after due notice and hearing, not later than fifteen days before
the election. (emphasis added)
The essence of a disqualification proceeding that invokes Sec. 68 of
the OEC is to bar an individual from becoming a candidate or from
continuing as a candidate for public office based not on the candidate's
lack of qualification, but on his possession of a disqualification as
declared by a final decision of a competent court, or as found by the
Commission.24 The jurisdiction of the COMELEC to disqualify
candidates is limited to those enumerated in Section 68 of the OEC. All
other election offenses are beyond the ambit of COMELEC
jurisdiction.25
Meanwhile, for a Petition to Deny Due Course or to Cancel COC under
Sec. 78 of the OEC to prosper, the candidate must have made a
material misrepresentation involving his eligibility or qualification for the
office to which he seeks election, such as the requisite residency, age,
citizenship or any other legal qualification necessary to run for elective
office26 enumerated under Sec. 74 of the OEC.27Moreover, the false
representation under Sec. 78 must consist of a deliberate attempt to
mislead, misinform, or hide a fact which would otherwise render a
candidate ineligible.28 The relief is granted not because of the
candidate's lack of eligibility per se, but because of his or her false
misrepresentation of possessing the statutory qualifications.
The doctrine in Poe was never meant to apply to Petitions for
Disqualification. A prior court judgment is not required before the
remedy under Sec. 68 of the OEC can prosper. This is highlighted
by the provision itself, which contemplates of two scenarios: first,
there is a final decision by a competent court that the candidate is
guilty of an election offense and second, it is the Commission
itself that found that the candidate committed any of the
enumerated prohibited acts. Noteworthy is that in the second
scenario, it is not required that there be a prior final judgment; it
is sufficient that the Commission itself made the determination.
The conjunction "or" separating "competent court" and "the
Commission" could only mean that the legislative intent was for
bot/1 bodies to be clothed with authority to ascertain whether or
not there is evidence that the respondent candidate ought to be
disqualified.
Furthermore, the quantum of proof necessary in election cases is, as in
all administrative cases, substantial evidence. This is defined as such
relevant evidence as a reasonable mind will accept as adequate to
support a conclusion.29 To impose prior conviction of an election
offense as a conditionsine qua non before a Petition for Disqualification
can be launched would be tantamount to requiring proof beyond
reasonable doubt, which is significantly beyond what our laws require.
Jurisprudence is rife with teachings on the separability of the criminal
prosecution for election offenses or even t he determination for
probable cause to criminally charge a candidate for any election
violation, from the administrative proceeding for disqualification. The
Court even elucidated on the concept of this twin aspect in the case
of Ejercito v. COMELEC,30 viz:
x x x It has been repeatedly underscored that an election offense has
its criminal and electoral aspects. While its criminal aspect to
determine the guilt or innocence of the accused cannot be the subject
of summary hearing, its electoral aspect to ascertain whether the
offender should be disqualified from office can be determined in an
administrative proceeding that is summary in character. This Court
said in Sunga [v. COMELEC]:
It is worth to note that an election offense has criminal as well as
electoral aspects. Its criminal aspect involves the ascertainment of the
guilt or innocence of the accused candidate. Like in any other criminal
case, it usually entails a full-blown hearing and the quantum of proof
required to secure a conviction is beyond reasonable doubt. Its
electoral aspect, on the other hand, is a determination of whether the
offender should be disqualified from office. This is done through an
administrative proceeding which is summary in character and requires
only a clear preponderance of evidence. Thus, under Sec. 4 of the
COMELEC Rules of Procedure, petitions for disqualification "shall be
heard summarily after due notice." It is the electoral aspect that we
are more concerned with, under which an erring candidate may
be disqualified even without prior criminal conviction.
and equally in Lanot [v. COMELEC]:

x x x The electoral aspect of a disqualification case determines
whether the offender should be disqualified from being a candidate or
from holding office. Proceedings are summary in character and
require only clear preponderance of evidence. An erring
candidate may be disqualified even without prior determination of
probable cause in a preliminary investigation. The electoral aspect
may proceed independently of the criminal aspect, and vice-versa.
The criminal aspect of a disqualification case determines whether there
is probable cause to charge a candidate for an election offense. The
prosecutor is the COMELEC, through its Law Department, which
determines whether probable cause exists. If there is probable cause,
the COMELEC, through its Law Department, files the criminal
information before the proper court. Proceedings before the proper
court demand a full-blown hearing and require proof beyond
reasonable doubt to convict. A criminal conviction shall result in the
disqualification of the offender, which may even include disqualification
from holding a future public office.
The Court's disquisitions in Sunga v. COMELEC31 and Lanot v.
COMELEC32 centered on whether or not the polling body has the
discretion to proceed with disqualification cases even after the
elections had been concluded.
In Sunga, petitioner Manuel C. Sunga was a mayoralty candidate in
the Municipality of Iguig, Cagayan in the May 1995 Elections. He filed
a complaint accusing respondent, then incumbent mayor Ferdinand B.
Trinidad, of using threats, intimidation, terrorism or other forms of
coercion, in violation of the OEC. The COMELEC denied the
complaint, ruling that petitions for disqualification filed after the conduct
of the elections ought to be dismissed. In reversing the ruling of the
tribunal, the Court held that neither the conclusion of the elections nor
Trinidad's proclamation and assumption of office divested the
COMELEC of authority and jurisdiction to decide the disqualification
case.
Meanwhile, in Lanot, therein petitioners led by Henry P. Lanot filed a
Petition for Disqualification against then incumbent Pasig City Mayor
Vicente P. Eusebio for allegedly violating Section 261(a) of the OEC on
the prohibition against vote-buying. The COMELEC First Division
granted the petition, prompting Eusebio to move for reconsideration. At
the time of the elections, the disqualification case was not yet resolved
with finality. Thus, Eusebio's votes were still counted and canvassed,
and he was proclaimed city mayor of Pasig. Thereafter, the
COMELEC En Banc annulled the COMELEC First Division's
disqualification order and referred the case to the COMELEC Law
Department for preliminary investigation.
The Court agreed with Lanot that the COMELEC En Banc gravely
abused its discretion when it ordered the dismissal of the
disqualification case because of Eusebio's proclamation as city mayor
and at the same time allowed the criminal aspect to proceed with
preliminary investigation. Lanot highlighted the inconsistency by citing
the teaching in Sunga that:
A candidate guilty of election offenses would be undeservedly
rewarded, instead of punished, by the dismissal of the disqualification
case against him simply because the investigating body was unable,
for any reason caused upon it, to determine before the election if the
offenses were indeed committed by the candidate sought to be
disqualified. All that the erring aspirant would need to do is to employ
delaying tactics so that the disqualification case based on the
commission of election offenses would not be decided before the
election. This scenario is productive of more fraud which certainly is
not the main intent and purpose of the law.33
To then avoid the above-illustrated deleterious scenario, the Court
instructed that the COMELEC should continue the trial and hearing of
the disqualification case until judgment is rendered thereon, and to
treat the criminal aspect of the case as a separate issue altogether.
The distinction between the electoral aspect from the criminal one was
further amplified in Ejercito. There, the Court rebuked therein
petitioner's assertion that the conduct of preliminary investigation to
determine whether the acts enumerated under Section 68 of the OEC
were indeed committed is a requirement prior to actual disqualification.
Resultantly, the Court upheld the COMELEC's disqualification of
petitioner Emilio Ramon Ejercito even though there has yet to be any
finding of probable cause, let alone guilt, that he spent more than the
threshold amount prescribed under Sections I00-103 of the OEC, an
election offense under Section 262 of the same code.
Neither a prior conviction nor even a determination of probable cause
is then a requirement before a Petition for Disqualification can be
lodged. Credit must be given to petitioner for his apt observation that to
rule otherwise would render inutile the remedy under Section 68 of the
OEC insofar as the specific ground raised herein is concerned.
Pertinently, Section 261(v) of the OEC and Rule 25, Section 3 of the
COMELEC Rules of Procedure read:
Section 261. Prohibited Acts. - The following shall be guilty of an
election offense:
xxxx
(v) Prohibition against release, disbursement or expenditure of public
funds. - Any public official or employee including barangay officials and
those of government-owned or controlled corporations and their
subsidiaries, who, during forty-five days before a regular election
and thirty days before a special election, releases, disburses or
expends any public funds x x x (emphasis added)
Rule 25 - Disqualification of Candidates
xxxx
Section 3. Period to File Petition. - The Petition shall be filed any day
after the last day for filing of certificates of candidacy, but not later
than the date of proclamation. (emphasis added)
Clearly, the particular election offense and ground for disqualification
imputed on respondent must necessarily be committed within forty-five
(45) days before a regular election and within thirty (30) days before a
special election. Meanwhile, the window for filing a Petition for
Disqualification raising the same ground is between the day after the
filing of a certificate of candidacy until the date of proclamation, which
in the advent of automated elections could only take less than a week
for local posts. Through its ruling, the COMELEC then effectively
required petitioner to secure against Nieto a final judgment of guilt
within the very limited timeframe, an almost impossible feat under the
normal course of legal procedure.
We are, therefore, constrained to rule that the COMELEC erred when,
relying on Poe, it imposed the requirement of a prior court judgment
before resolving the current controversy.
The records are bereft of evidence to hold that respondent
violated Secs. 261(v) and 104 of the Omnibus Election Code
Notwithstanding the COMELEC's error in applying Poe, the petition
must nevertheless fail. Though the COMELEC can properly take
cognizance of the Petition for Disqualification without issue, petitioner
miserably failed to tender evidence that respondent committed the
election offenses imputed.
The quantum of proof necessary in election cases is substantial
evidence, or such relevant evidence as a reasonable mind will accept
as adequate to support a conclusion.34 Corollarily, the rule is that he
who alleges must prove.35 Thus, the burden is on Francisco to
establish through substantial evidence that Nieto unlawfully disbursed
government funds during the election ban, a burden that Francisco
failed to discharge.
There is simply a dearth of evidence to support petitioner's claim that
respondent violated Sec. 261(v) of the OEC. To be sure, petitioner
merely submitted the following to support his allegations:
1. Pictures of the asphalt-paving along Imelda Avenue of
Cainta Green Park Village, Barangay San Isidro, Cainta,
Rizal;
2. Picture of the Facebook page of the respondent
acknowledging the project as one of the accomplishments of
his administration; and
3. Picture of a tarpaulin banner expressing gratitude for the
asphalt-paving.
The photographs36 petitioner presented depicting the construction and
works done on the asphalting project would only prove the fact of
paving, which is not even contested. They do not, however, establish
that respondent expended public funds or made financial contributions
during the election prohibition.
On the other hand, respondent Nieto sufficiently parried the alleged
commission of the election offenses by proving that the asphalting
project squarely falls under the exception in Sec. 261 (v)(l)(b). The
provision states:
v. Prohibition against release, disbursement or expenditure of
public funds. - Any public official or employee including
barangay officials and those of government-owned or
controlled corporations and their subsidiaries, who,during
forty-five days before a regular election and thirty days
before a special election, releases, disburses or expends
any public funds for:
1. Any and all kinds of public works, except the
following:
5. A certification41 from the Election Officer of the COMELEC
Region IV-A office acknowledging receipt of the letter.
To cast doubt on the sufficiency of respondent Nieto's evidence,
petitioner Francisco points out that the followin g were never offered in
evidence: (a) an ordinance enacted by the Sangguniang Bayan of
Cainta authorizing the P6,000,000.00 expenditure for the project, (b) a
certification from the proper accounting official that there is an
appropriation by law of such am ou nt and that the fund is available,
and (c) an affidavit from the editor or publisher of a newspaper of
general circulation that the Invitation to Bid had been published.
However, petitioner is not excused from shifting the burden of proof to
private respondent, especially since the latter has the presumption of
regularity in his favor.42 bolstered by evidence proving that the project
was contracted outside the period of prohibition.
There being substantial evidence to support Nieto's defense that the
construction procurement for t he project was aboveboard, there is
then no reason to disturb public respondent's rulings. No abuse of
discretion, let alone one that is grave, can be attributed to the
COMELEC Second Division in dismissing the Petition for
Disqualification, nor to the COMELEC En Banc in denying petitioner's
motion for reconsideration.

xxxx WHEREFORE, premises considered, the instant petition

is DISMISSED for lack of merit. The Court declares that in a Petition
for Disqualification under Section 68 of the Omnibus Election
Code, a prior judgment by a competent court that the candidate is
b. Work undertaken by contract guilty of an election offense is not required before the said
through public bidding held, or by petition can be entertained or given due course by the
negotiated contract awarded, Commission on Elections.
before the forty-five day period
before election: Provided, That SO ORDERED.
work for the purpose of this section
undertaken under the so-called
"takay" or "paquiao" system shall not
be considered as work by contract;
(emphasis added)

The Court is in concurrence with the observations of Commissioners

Luie Tito F. Guia and Ma. Rowena Amelia V. Guanzon that the
evidence on record sufficiently proved that the expenditure for the road
repair is exempted from the prohibition under Sec. 261(v) of the OEC.
Private respondent Nieto was able to show with competent evidence
that the bidding for and the award of the subject project were regular
and done consistent with existing laws. The charge for illegal
contribution under Sec. 104 of the OEC has even less leg to stand on.
There was no contribution to speak of since it was established that the
asphalting work was a government project and not a contribution.

Notably, private respondent adduced the following pieces of evidence

to support his contention:

1. A copy of the posting of the project in the Philippine

Government Electronic Procurement System (PHILGEPS)
website.37 This indicates that the Bid Notice Abstract and
Invitation to Bid for the subject project were posted on the
website on February 25, 2016;

2. A certified true copy of the Abstract of Bids38 attested by the

members of the Bids and Awards Committee, indicating that
the bidding for the asphalting project was held on March 15,
2016;

3. A certified true copy of the Notice of Award39 stating that, on

March 21, 2016, the project was awarded in favor of the
winning bidder, contractor Franzcor Trading and
Construction;

4. A letter40 dated March 21, 2016 filed by respondent Nieto

with the Acting Regional Election Director of COMELEC in
Region IV-A submitting to the Commission the list of the
infrastructure projects bid out, including the asphalting
project, which were awarded before March 25, 2016, the
reckoning date of the forty-five day prohibition period and
The Omnibus Election Code

Section 118. Disqualifications. - The following shall be disqualified

from voting:

(a) Any person who has been sentenced by final judgment to

suffer imprisonment for not less than one year, such
disability not having been removed by plenary pardon or
granted amnesty: Provided, however, That any person
disqualified to vote under this paragraph shall automatically
reacquire the right to vote upon expiration of five years after
service of sentence.

(b) Any person who has been adjudged by final judgment by

competent court or tribunal of having committed any crime
involving disloyalty to the duly constituted government such
as rebellion, sedition, violation of the anti-subversion and
firearms laws, or any crime against national security, unless
restored to his full civil and political rights in accordance with
law: Provided, That he shall regain his right to vote
automatically upon expiration of five years after service of
sentence.

(c) Insane or incompetent persons as declared by competent

authority.

ABSENTEE VOTING LAW

Sec. 12. Section 169 of Batas Pambansa Blg. 881 shall remain in
force and effect, and shall continue to govern the voting privilege
of members of the board of election inspectors. All laws, orders,
issuances, rules and regulations or parts thereof inconsistent
with this Executive Order are hereby repealed or modified
accordingly.
EXECUTIVE ORDER NO. 157 March 30, 1987
PROVIDING FOR ABSENTEE VOTING BY OFFICERS AND
EMPLOYEES OF GOVERNMENT WHO ARE AWAY FROM THE
PLACE OF THEIR REGISTRATION BY REASON OF OFFICIAL
FUNCTIONS ON ELECTION DAY
WHEREAS, under the electoral law now in force the rule is that a
person has to be physically present in the polling place whereof he is a
registered voter in order to be able to vote;
WHEREAS, the only exception is that established by Section 169 of
Batas Pambansa Blg. 881, which allows members of the board of
election inspectors to vote in the polling place where they are assigned
on election day, under certain conditions;
WHEREAS, there are other persons who, by reason of public functions
and duties, are assigned on election day in places other than their
place of registration, and under existing rules, are thus unable to vote;
WHEREAS, the democratic principle requires the broadest
participation in electoral and similar exercises by persons who have all
the qualifications and none of the disqualifications to vote;
WHEREAS, government officials and employees who are assigned to
places other than their place of registration must not be deprived of
their right to participate in electoral exercises;
NOW, THEREFORE, I, CORAZON C. AQUINO, President of the
Philippines, do hereby order:
Sec. 1. Any person who by reason of public functions and duties, is not
in his/her place of registration on election day, may vote in the
city/municipality where he/she is assigned on election day: Provided,
That he/she is a duly registered voter.
Sec. 8. The voters who cast absentee votes shall vote one week
before election day. They shall do so by delivering to the Commission
on Elections Regional Director, or the Provincial Election Supervisor or
the City or Municipal Election Registrar of the place of their assignment
ballot within two security envelopes, the one containing the absentee
ballots indicating only that it is an envelope of the Commission on
Elections, and the other envelope indicating the name of the absentee
voter and his/her affidavit number.
Sec. 9. The Commission on Elections official concerned to whom the
absentee vote is delivered shall immediately transmit by the fastest
means available to the Commission on Elections the special
Commission on Elections absentee ballot within two security
envelopes so that the same are in the central office of the Commission
one day before the elections.
The transmittal letter shall indicate the names of the persons who cast
the absentee votes, their voters' affidavit numbers and their certificates
of eligibility to vote absentee.
Sec. 10. The Commission on Elections shall canvass the votes cast by
absentee voters and shall add the results of the same to the votes
reported throughout the country.
Sec. 11. The Commission shall promulgate the necessary rules and
regulations to implement this Executive Order.
Sec. 12. Section 169 of Batas Pambansa Blg. 881 shall remain in force
and effect, and shall continue to govern the voting privilege of
members of the Board of Election Inspectors. All laws, orders,
issuances, rules and regulations or parts thereof inconsistent with this
Executive Order are hereby repealed or modified
accordingly. lawphi1.net
Sec. 13. This Executive Order shall take effect immediately.

Sec. 2. Thirty (30) days before the election, the appropriate head of
office shall submit to the Commission on Elections a list of officers and
employees of the office who are registered voters, and who, by reason
of their duties and functions, will be in places other than their place of
registration, and who desire to exercise their right to vote, with the
request that said officers and employees be provided with application
forms to cast absentee ballots in their place of assignment.

The list and the request shall be under oath.

Sec. 3. Upon verification by the Commission on Elections that the

persons included in the list are qualified voters, it shall transmit the
exact number of application forms to the head of the office making the
request.

Sec. 4. The application forms shall be returned only accomplished to

the Commission on Elections not later than April 25, 1987.

Sec. 5. Upon verification of the applications, the Commission shall

transmit the exact number of absentee ballots to the appropriate head
of the government office for distribution to the applicants.

Sec. 6. The head of the office shall prepare a sworn report on the
manner of distribution of the absentee ballots, indicating therein the
number of ballots transmitted to each province, the names of the
persons to whom the absentee ballots are delivered, and the serial
numbers of ballots. It shall be accompanied by a certificate of eligibility
to vote absentee for each particular voter.

Sec. 7. For the purpose of the 1987 congressional election, the

absentee voters shall vote only for candidates for senator.
REPUBLIC ACT No. 10380

AN ACT PROVIDING FOR LOCAL ABSENTEE VOTING FOR

MEDIA

Be it enacted by the Senate and House of Representatives of the

Philippines in Congress assembled:

Section 1. Declaration of Policy. – The State shall ensure the free

exercise of the right of suffrage by all citizens of the Philippines not
otherwise disqualified by law.

Section 2. Local Absentee Voting for Members of Media. – The

Commission on Elections shall extend the right to vote under the local
absentee voting system provided under existing laws and executive
orders to members of media, media practitioners, including the
technical and support staff, who are duly registered voters and who, on
election day, may not be able to vote due to the performance of their
functions in covering and reporting on the elections: Provided, That
they shall be allowed to vote only for the positions of President, Vice
President, Senators and Party-List Representative.

Section 3. Implementing Rules and Regulations. – The Commission

on Elections shall, within thirty (30) days from the effectivity of this Act,
promulgate the implementing rules and regulations which shall include
a system of accreditation and verification of the members of media,
media practitioners, the technical and support staff, who are qualified
to avail of local absentee voting.

Section 4. Appropriations. – The initial funding of this Act shall be

charged against the current year’s appropriations or from any available
savings of the Commission on Elections. Thereafter, such amount as
may be necessary for the continued implementation of this Act shall be
included in the annual General Appropriations Act.

Section 5. Separability Clause. – If any part or provision of this Act

shall be declared unconstitutional or invalid, other provisions hereof
which are not affected thereby shall continue to be in full force and
effect.

Section 6. Repealing Clause. – All laws, presidential decrees,

executive orders, resolutions, rules and regulations, other issuances,
and parts thereof, which are inconsistent with the provisions of this Act,
are hereby repealed or modified accordingly.

Section 7. Effectivity. – This Act shall take effect fifteen (15) days
following its publication in at least two (2) newspapers of general
circulation.

Approved
Republic Act No. 9189 February 13, 2003
AN ACT PROVIDING FOR A SYSTEM OF OVERSEAS ABSENTEE
VOTING BY QUALIFIED CITIZENS OF THE PHILIPPINES ABROAD,
APPROPRIATING FUNDS THEREFOR, AND FOR OTHER
PURPOSES
Be it enacted by the Senate and House of Representatives of the
Philippine Congress Assembled:
Section 1. Short Title. – This Act shall be known as "The Overseas
Absentee Voting Act of 2003."
Sec. 2. Declaration of Policy. – It is the prime duty of the State to
provide a system of honest and orderly overseas absentee voting that
upholds the secrecy and sanctity of the ballot. Towards this end, the
State ensures equal opportunity to all qualified citizens of the
Philippines abroad in the exercise of this fundamental right.
Sec. 3. Definition of Terms. – For purposes of this Act:
a. "Absentee Voting" refers to the process by which qualified
citizens of the Philippines abroad exercise their right to vote;
b. "Commission" refers to the Commission on Elections;
c. "Certified List of Overseas Absentee Voters" refers to the
list of registered overseas absentee voters whose
applications to vote in absentia have been approved by the
Commission, said list to be prepared by the Committee on
Absentee Voting of the Commission, on a country-by-country
basis. This list shall be approved by the Commission in an
en banc resolution;
d. "Day of Election" refers to the actual date of elections in
the Philippines;
e. "National Registry of Absentee Voters" refers to the
consolidated list prepared, approved and maintained by the
Commission, of overseas absentee voters whose
applications for registration as absentee voters, including
those registered voters who have applied to be certified as
absentee voters, have been approved by the Election
Registered Board;
f. "Overseas Absentee Voter" refers to a citizen of the
Philippines who is qualified to register and vote under this
Act, not otherwise disqualified by law, who is abroad on the
day of elections.
Sec. 4. Coverage. – All citizens of the Philippines abroad, who are not
otherwise disqualified by law, at least eighteen (18) years of age on the
day of elections, may vote for president, vice-president, senators and
party-list representatives.
Sec. 5. Disqualifications. – The following shall be disqualified from
voting under this Act:
1. Those who have lost their Filipino citizenship in
accordance with Philippine laws;
2. Those who have expressly renounced their Philippine
citizenship and who have pledged allegiance to a foreign
country;
3. Those who have committed and are convicted in a final
judgment by a court or tribunal of an offense punishable by
imprisonment of not less than one (1) year, including those
who have committed and been found guilty of Disloyalty as
defined under Article 137 of the Revised Penal Code, such
disability not having been removed by plenary pardon or
amnesty; Provided, however, That any person disqualified to
vote under this subsection shall automatically acquire the
right to vote upon expiration of five (5) years after service of
sentence; Provided, further, That the Commission may take
cognizance of final judgments issued by foreign courts or
tribunals only on the basis of reciprocity and subject to the
formalities and processes prescribed by the Rules of Court
on execution of judgments;
4. 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.
5. Any citizen of the Philippines abroad previously declared
insane or incompetent by competent authority in the
Philippines or abroad, as verified by the Philippine
embassies, consulates or foreign service establishments
concerned, unless such competent authority subsequently
certifies that such person is no longer insane or incompetent.
Sec. 6. Personal Overseas Absentee Registration. – Registration as
an overseas absentee voter shall be done in person.
Qualified citizens of the Philippines abroad who failed to register under
Republic Act No. 8189, otherwise known as the "The Voters
Registration Act of 1996", may personally apply for registration with the
Election Registration Board of the city or municipality where they were
domiciled immediately prior to their departure from the Philippines, or
with the representative of the Commission at the Philippine embassies,
consulates and other foreign service establishments that have
jurisdiction over the locality where they temporarily reside. Subject to
the specific guidelines herein provided, the Commission is hereby
authorized to prescribe additional procedures for overseas absentee
registration pursuant to the provisions of Republic Act No. 8189,
whenever applicable, taking into strict consideration the time zones
and the various periods and processes herein provided for the proper
implementation of this Act. The embassies, consulates and other
foreign service establishments shall transmit within (5) days from
receipt the accomplished registration forms to the Commission, after
which the Commission shall coordinate with the Election Officer of the
city or municipality of the applicant’s stated residence for verification,
hearing and annotation in the permanent list of voters.
All applications for the May, 2004 elections shall be filed with the
Commission not later than two hundred eighty (280) calendar days
before the day of elections. For succeeding elections, the Commission
shall provide for the period within which applications to register must
be filed.
In the case of seafarers, the Commission shall provide a special
mechanism for the time and manner of personal registration taking into
consideration the nature of their work.
6.1. Upon receipt of the application for registration, the
Election Officer shall immediately set the application for
hearing, the notice of which shall be posted in a conspicuous
place in the premises of the city or municipal building of the
applicant’s stated residence for at least one (1) week before
the date of the hearing. The Election Officer shall
immediately furnish a copy of the application to the
designated representatives of political parties and other
accredited groups.
 6.2. If no verified objection to the application is filed, the
Election Officer shall immediately forward the application to
the Election Registration Board, which shall decide on the
application within one (1) week from the date of hearing
without waiting for the quarterly meeting of the Board. The
applicant shall be notified of the approval or disapproval of
his/her application by registered mail.
6.3. In the event that an objection to the application is filed
prior to or on the date of hearing, the Election Officer shall
notify the applicant of said objection by registered mail,
enclosing therein copies of affidavits or documents
submitted in support of the objection filed with the said
Election Officer, if any. The applicant shall have the right to
file his counter-affidavit by registered mail, clearly stating
therein facts and defenses sworn before any officer in the
host country authorized to administer oaths.
6.4. The application shall be approved or disapproved based
on the merits of the objection, counter-affidavit and
documents submitted by the party objecting and those of the
applicant.
6.5 A Certificate of Registration as an overseas absentee
voter shall be issued by the Commission to all applicants
whose applications have been approved, including those
certified as registered voters. The Commission shall include
the approved applications in the National Registry of
Absentee Voters.
6.6. If the application has been approved, any interested
party may file a petition for exclusion not later than two
hundred ten (210) days before the day of elections with the
proper municipal or metropolitan trial court. The petition shall
be decided within fifteen (15) days after its filing on the basis
of the documents submitted in connection therewith. Should
the court fail to render a decision within the prescribed
period, the ruling of the Election Registration Board shall be
considered affirmed.
6.7. If the application has been disapproved, the applicant or
his authorized representative shall, within a period of five (5)
days from receipt of the notice of disapproval, have the right
to file a petition for inclusion with the proper municipal or
metropolitan trial court. The petition shall be decided within
five (5) days after its filing on the basis of documents
submitted in connection therewith.
Qualified citizens of the Philippines abroad, who have previously
registered as voters pursuant to Republic Act No. 8189 shall apply for
certification as absentee voters and for inclusion in the National
Registry of Overseas Absentee Voters, with a corresponding
annotation in the Certified Voters’ List.
Sec. 7. System of Continuing Registration. – The Commission shall
ensure that the benefits of the system of continuing registration are
extended to qualified overseas absentee voters. Towards this end, the
Commission shall optimize the use of existing facilities, personnel and
mechanisms of the various government agencies for purposes of data
gathering, data validation, information dissemination and facilitation of
the registration process.
Pre-departure programs, services and mechanisms offered and
administered by the Department of Foreign Affairs, Department of
Labor and Employment, Philippine Overseas Employment
Administration, Overseas Workers’ Welfare Administration,
Commission on Filipinos Overseas and other appropriate agencies of
the government shall be utilized for purposes of supporting the
overseas absentee registration and voting processes, subject to
limitations imposed by law.
Sec. 8. Requirements for Registration. – Every Filipino registrant shall
be required to furnish the following documents:
a. A valid Philippine passport. In the absence of a valid
passport, a certification of the Department of Foreign Affairs
that it has reviewed the appropriate documents submitted by
the applicant and found them sufficient to warrant the
issuance of a passport, or that the applicant is a holder of a
valid passport but is unable to produce the same for a valid
reason;
b. Accomplished registration form prescribed by the
Commission containing the following mandatory information:
i. Last known residence of the applicant in the
Philippines before leaving for abroad;
ii. Address of applicant abroad, or forwarding
address in the case of seafarers;
iii. Where voting by mail is allowed, the applicant’s
mailing address outside the Philippines where the
ballot for absentee voters will be sent, in proper
cases; and;
iv. Name and address of applicant’s authorized
representative in the Philippines for purposes of
Section 6.7 and Section 12 hereof.
c. In the case of immigrants and permanent residents not
otherwise disqualified to vote under this Act, an affidavit
declaring the intention to resume actual physical permanent
residence in the Philippines not later than three (3) years
after approval of his/her registration as an overseas
absentee voter under this Act. Such affidavit shall also state
that he/she has not applied for citizenship in another country.
The Commission may also require additional data to facilitate
registration and recording. No information other than those necessary
to establish the identity and qualification of the applicant shall be
required.
Sec. 9. National Registry of Overseas Absentee Voters. – The
Commission shall maintain a National Registry of Overseas Absentee
Voters. Approved applications of overseas absentee registrants shall
also be included in the permanent list of voters of the city or
municipality where the registrant is domiciled, with the corresponding
annotation that such person has been registered or will be voting as an
overseas absentee voter. The registry shall also include those
registered under Republic Act No. 8189 and who have been issued
certifications as overseas absentee voters. The entries in the National
Registry of Overseas Absentee Voters and the annotations as
overseas absentee voters in the Certified Voters’ List shall be
permanent, and cannot be cancelled or amended except in any of the
following cases:
9.1. When the overseas absentee voter files a letter under
oath addressed to the Commission that he/she wishes to be
removed from the Registry of Overseas Absentee Voters, or
that his/her name be transferred to the regular registry of
voters; or,
9.2. When an overseas absentee voter’s name was ordered
removed by the Commission from the Registry of Overseas
Absentee Voters for his/her failure to exercise his/her right to
vote under this Act for two (2) consecutive national elections.
Sec. 10. Notice of Registration and Election. – The Commission shall,
through the embassies, consulates and other foreign service
establishments, cause the publication in a newspaper of general
circulation of the place, date and time of the holding of a regular or
special national election and the requirements for the participation of
qualified citizens of the Philippines abroad, at least six (6) months
before the date set for the filing of applications for registration.
The Commission shall determine the countries where publication shall
be made, and the frequency thereof, taking into consideration the
number of overseas Filipinos present in such countries. Likewise, the
Commission and the Department of Foreign Affairs shall post the same
in their respective websites.
Sec. 11. Procedure for Application to Vote in Absentia. –
11.1. Every qualified citizen of the Philippines abroad whose
application for registration has been approved, including
those previously registered under Republic Act No. 8189,
shall, in every national election, file with the officer of the
embassy, consulate or other foreign service establishment
authorized by the Commission, a sworn written application to
vote in a form prescribed by the Commission. The
authorized officer of such embassy, consulate or other
foreign service establishment shall transmit to the
Commission the said application to vote within five (5) days
from receipt thereof. The application form shall be
accomplished in triplicate and submitted together with the
photocopy of his/her overseas absentee voter certificate of
registration.
11.2. Every application to vote in absentia may be done
personally at, or by mail to, the embassy, consulate or
foreign service establishment, which has jurisdiction over the
country where he/she has indicated his/her address for
purposes of the elections.
11.3. Consular and diplomatic services rendered in
connection with the overseas absentee voting processes
shall be made available at no cost to the overseas absentee
voter.
Sec. 12. Verification and Approval of Application to Vote. – All
applications shall be acted upon by the Commission upon receipt
thereof, but in no case later than one hundred fifty (150) days before
the day of elections. In the event of disapproval of the application, the
voter or his authorized representative may file a Motion for
Reconsideration with the Commission personally, or by registered mail,
within ten (10) days from receipt of the notice of disapproval. The
Commission shall act within five (5) days from receipt of such Motion
for Reconsideration and shall immediately notify the voter of its
decision. The decision of the Commission shall be final and executory.
The Commission shall issue an overseas absentee voter identification
card to those whose applications to vote have been approved.
Sec. 13. Preparation and Posting of Certified List of Overseas
Absentee Voters. – The Commission shall prepare the Certified List of
Overseas Absentee Voters within one hundred twenty (120) days
before every election, and furnish within the same period copies
thereof to the appropriate embassies, consulates and other foreign
service establishments, which shall post the same in their bulletin
boards within ten (10) days from receipt thereof.
Subject to reasonable regulation and the payment of fees in such
amounts as may be fixed by the Commission, the candidates, political
parties, accredited citizens’ arms, interested persons and all
embassies, consulates and other foreign service establishments shall
be furnished copies thereof.
Sec. 14. Printing and Transmittal of Ballots, Voting Instructions,
Election Forms and Paraphernalia. –
14.1. The Commission shall cause the printing of ballots for
overseas absentee voters, voting instructions, and election
forms in such number as may be necessary, but in no case
shall it exceed the total number of approved applications.
Security markings shall be used in the printing of ballots for
overseas absentee voters.
14.2. The Commission shall present to the authorized
representatives of the Department of Foreign Affairs and the
accredited major political parties the ballots for overseas
absentee voters, voting instructions, election forms and other
election paraphernalia for scrutiny and inspection prior to
their transmittal to the embassies, consulates and other
foreign service establishments concerned.
14.3. The Commission shall, not later than seventy-five (75)
days before the day of elections, transmit by special pouch
to the embassies, consulates and other foreign service
establishments, the exact number of ballots for overseas
absentee voters corresponding to the number of approved
applications, along with such materials and election
paraphernalia necessary to ensure the secrecy and integrity
of the election.
14.4. The authorized representatives of accredited major
political parties shall have the right to be present in all
phases of printing, transmittal, and casting of ballots abroad.
Unclaimed ballots properly marked as such, shall be
cancelled and shipped to the Commission by the least costly
method.
Sec. 15. Regulation on Campaigning Abroad. – The use of campaign
materials, as well as the limits on campaign spending shall be
governed by the laws and regulations applicable in the Philippines.
Sec. 16. Casting and Submission of Ballots. –
16.1. Upon receipt by the designated officer of the embassy,
consulate and other foreign service establishments of the
ballots for overseas absentee voters, voting instructions,
election forms and other paraphernalia, he/she shall make
them available on the premises to the qualified overseas
absentee voters in their respective jurisdictions during the
thirty (30) days before the day of elections when overseas
absentee voters may cast their vote. Immediately upon
receiving it, the overseas absentee voter must fill-out his/her
ballot personally, in secret, without leaving the premises of
the embassies, consulates and other foreign service
establishments concerned.
16.2. The overseas absentee voter shall personally
accomplish his/her ballot at the embassy, consulate or other
foreign service establishment that has jurisdiction over the
country where he/she temporarily resides or at any polling
place designated and accredited by the Commission.
16.3. The overseas absentee voter shall cast his ballot, upon
presentation of the absentee voter identification card issued
by the Commission, within thirty (30) days before the day of
elections. In the case of seafarers, they shall cast their
ballots anytime within sixty (60) days before the day of
elections as prescribed in the Implementing Rules and
Guidelines.
16.4. All accomplished ballots received shall be placed
unopened inside sealed containers and kept in a secure
place designated by the Commission.
16.5. The embassies, consulates and other foreign service
establishments concerned shall keep a complete record of
the ballots for overseas absentee voters, specifically
indicating the number of ballots they actually received, and
in cases where voting by mail is allowed under Section 17
hereof, the names and addresses of the voters to whom
these ballots were sent, including proof of receipt thereof. In
addition, the embassies, consulates and other foreign
service establishments shall submit a formal report to the
Commission and the Joint Congressional Oversight
Committee created under this Act within thirty (30) days from
the day of elections. Such report shall contain data on the
 number of ballots cast and received by the offices, the
number of invalid and unclaimed ballots and other pertinent
data.
16.6. The overseas absentee voter shall be instructed that
his/her ballot shall not be counted if it is not inside the
special envelope furnished him/her when it is cast.
16.7. Ballots not claimed by the overseas absentee voters at
the embassies, consulates and other foreign service
establishments, in case of personal voting, and ballots
returned to the embassies, consulates and other foreign
service establishments concerned, in the case of voting by
mail, shall be cancelled and shipped to the Commission by
the least costly method within six (6) months from the day of
elections.
16.8. Only ballots cast, and mailed ballots received by the
Philippine embassies, consulates and other foreign service
establishments concerned in accordance with Section 17
hereof before the close of voting on the day of elections shall
be counted in accordance with Section 18 hereof. All
envelopes containing the ballots received by the embassies,
Sec. 18. On-Site Counting and Canvassing. –
consulates and other foreign service establishments after the
prescribed period shall not be opened, and shall be
cancelled and shipped to the Commission by the least costly
method within six (6) months from the day of elections.
16.9. A Special Ballot Reception and Custody Group
composed of three (3) members shall be constituted by the
Commission from among the staff of the embassies,
consulates and other foreign service establishments
concerned, including their attached agencies, and citizens of
the Philippines abroad, who will be deputized to receive
ballots and take custody of the same preparatory to their
transmittal to the Special Boards of Election Inspectors.
16.10. During this phase of the election process, the
authorized representatives of the political parties,
candidates, and accredited citizens’ arms of the Commission
shall be notified in writing thereof and shall have the right to
witness the proceedings.
16.11. The Commission shall study the use of electronic
mail, Internet, or other secured networks in the casting of
votes, and submit a report thereon to the Joint
Congressional Oversight Committee.
Sec. 17. Voting by Mail. –
17.1. For the May, 2004 elections, the Commission shall
authorize voting by mail in not more than three (3) countries,
subject to the approval of the Congressional Oversight
Committee. Voting by mail may be allowed in countries that
satisfy the following conditions:
a. Where the mailing system is fairly well-
developed and secure to prevent the occasion of
fraud;
b. Where there exists a technically established
identification system that would preclude multiple
or proxy voting; and,
c. Where the system of reception and custody of
mailed ballots in the embassies, consulates and
other foreign service establishments concerned
are adequate and well-secured.
Thereafter, voting by mail in any country shall be allowed
only upon review and approval of the Joint Congressional
Oversight Committee.
17.2. The overseas absentee voters shall send his/her
accomplished ballot to the corresponding embassy, consular
or other foreign service establishment that has jurisdiction
over the country where he/she temporarily resides. He/She
shall be entitled to cast his/her ballot at any time upon
his/her receipt thereof, provided that the same Is received
before the close of voting on the day of elections. The
overseas absentee voter shall be instructed that his/her
ballot shall not be counted if not transmitted in the special
envelope furnished him/her.
17.3. Only mailed ballots received by the Philippine
embassy, consulate and other foreign service
establishments before the close of voting on the day of
elections shall be counted in accordance with Section 18
hereof. All envelopes containing the ballots received by the
embassies, consulates and other foreign service
establishments after the prescribed period shall not be
opened, and shall be cancelled and disposed of
appropriately, with a corresponding report thereon submitted
to the Commission not later than thirty (30) days from the
day of elections.
18.1. The counting and canvassing of votes shall be
conducted on site in the country where the votes were
actually cast. The opening of the specially-marked
envelopes containing the ballots and the counting and
canvassing of votes shall be conducted within the premises
of the embassies, consulates and other foreign service
establishments or in such other places as may be
designated by the Commission pursuant to the Implementing
Rules and Regulations. The Commission shall ensure that
the start of counting in all polling places abroad shall be
synchronized with the start of counting in the Philippines.
18.2. For these purposes, the Commission shall constitute
as many Special Boards of Election Inspectors as may be
necessary to conduct and supervise the counting of votes as
provided in Section 18.2 hereof. The Special Boards of
Election Inspectors to be constituted herein shall be
composed of a Chairman and two (2) members, one (1) of
whom shall be designated as poll clerk. The ambassador or
consul-general, or any career public officer posted abroad
designated by the Commission, as the case may be, shall
act as the chairman; in the absence of other government
officers, the two (2) other members shall be citizens of the
Philippines who are qualified to vote under this act and
deputized by the Commission not later than sixty (60) days
before the day of elections. All resolutions of the Special
Board of Election Inspectors on issues brought before it
during the conduct of its proceedings shall be valid only
when they carry the approval of the chairman.
Immediately upon the completion of the counting, the
Special Boards of Election Inspectors shall transmit via
facsimile and/or electronic mail the results to the
Commission in Manila and the accredited major political
parties.
18.3. Only ballots cast on, or received by the embassies,
consulates and other foreign service establishments before
the close of voting on the day of elections shall be included
in the counting of votes. Those received afterwards shall not
be counted.
18.4. A Special Board of Canvassers composed of a lawyer
preferably of the Commission as chairman, a senior career
officer from any of the government agencies maintaining a
post abroad and, in the absence of another government
officer, a citizen of the Philippines qualified to vote under this
Act deputized by the Commission, as vice-chairman and
member-secretary, respectively, shall be constituted to
 canvass the election returns submitted to it by the Special
Boards of Election Inspectors. Immediately upon the
completion of the canvass, the chairman of the Special
Board of Canvassers shall transmit via facsimile, electronic
mail, or any other means of transmission equally safe and
reliable the Certificates of Canvass and the Statements of
Votes to the Commission, and shall cause to preserve the
same immediately after the conclusion of the canvass, and
make it available upon instructions of the Commission. The
Special Board of Canvassers shall also furnish the
accredited major political parties and accredited citizens’
arms with copies thereof via facsimile, electronic mail and
any other means of transmission equally safe, secure and
reliable.
The Certificates of Canvass and the accompanying
Statements of Votes as transmitted via facsimile, electronic
mail and any other means of transmission equally safe,
secure and reliable shall be the primary basis for the national
canvass.
18.5. The canvass of votes shall not cause the delay of the
proclamation of a winning candidate if the outcome of the
election will not be affected by the results thereof.
Notwithstanding the foregoing, the Commission is
empowered to order the proclamation of winning candidates
despite the fact that the scheduled election has not taken
place in a particular country or countries, if the holding of
elections therein has been rendered impossible by events,
factors and circumstances peculiar to such country or
countries, and which events, factors and circumstances are
beyond the control or influence of the Commission.
18.6. In the preparation of the final tally of votes on the
results of the national elections, the Commission shall
ensure that the votes canvassed by each and every country
shall be reflected as a separate item from the tally of national
votes. For purposes of this Act, the returns of every election
for president and vice-president prepared by the Special
Board of Canvassers shall be deemed a certificate of
canvass of a city or province.
18.7. Where feasible, the counting and canvassing of votes
shall be automated. Towards this end, the Commission is
hereby authorized to borrow, rent, lease or acquire
automated voting machines for purposes of canvassing and
counting of votes pursuant to the provisions of this Act, and
in accordance with the Implementing Rules and Regulations
promulgated by the Commission.
Sec. 19. Authority of the Commission to Promulgate Rules. – The
Commission shall issue the necessary rules and regulations to
effectively implement the provisions of this Act within sixty (60) days
from the effectivity of this Act. The Implementing Rules and
Regulations shall be submitted to the Joint Congressional Oversight
Committee created by virtue of this Act for prior approval.
In the formulation of the rules and regulations, the Commission shall
coordinate with the Department of Foreign Affairs, Department of
Labor and Employment, Philippine Overseas and Employment
Administration, Overseas Workers’ Welfare Administration and the
Commission on Filipinos Overseas. Non-government organizations
and accredited Filipino organizations or associations abroad shall be
consulted.
Sec. 20. Information Campaign. – The Commission, in coordination
with agencies concerned, shall undertake an information campaign to
educate the public on the manner of absentee voting for qualified
overseas absentee voters. It may require the support and assistance of
the Department of Foreign Affairs, through the embassies, consulates
and other foreign service establishments, Department of Labor and
employment, Department of Transportation and Communications,
Philippine Postal Corporation, Philippine Overseas Employment
Administration, Overseas Workers’ Welfare Administration and the
Commission on Filipinos Overseas. The Commission may deputize
Filipino organizations/associations overseas for the same purpose:
Provided, That any such deputized organization/association shall be
prohibited from participating in the elections by campaigning for or
fielding candidates; Provided, further, That if any such deputized
organization/association is discovered to have a member who is not a
qualified overseas absentee voter as herein defined, such deputized
organization/association shall be banned from participating in any
manner, and at any stage, in the Philippine political process abroad.
Such information campaign shall educate the Filipino public, within and
outside the Philippines, on the rights of overseas absentee voters,
absentee voting processes and other related concerns. Information
materials shall be developed by the Commission for distribution,
through the said government agencies and private organizations. No
government agency or accredited private organizations shall prepare,
print, distribute or post in websites any information material without the
prior approval of the Commission.
Sec. 21. Access to Official Records and Documents. – Subject to the
pertinent provisions of this Act, any person shall have the right to
access and/or copy at his expense all registration records, voters lists
and other official records and documents, subject to reasonable
regulations as may be imposed by the Commission.
Sec. 22. Assistance from Government Agencies. – All government
officers, particularly from the Department of Foreign Affairs,
Department of Labor and Employment, Department of Transportation
and Communications, Philippine Postal Corporation, Philippine
Overseas Employment Administration, Overseas Workers’ Welfare
Administration, Commission on Filipinos Overseas and other
government offices concerned with the welfare of the Filipinos
overseas shall, to the extent compatible with their primary
responsibilities, assist the Commission in carrying out the provisions of
this Act. All such agencies or officers thereof shall take reasonable
measures to expedite all election activities, which the Commission
shall require of them. When necessary, the Commission may send
supervisory teams headed by career officers to assist the embassies,
consulates and other foreign service establishment concerned.
Sec. 23. Security Measures to Safeguard the Secrecy and Sanctity of
Ballots. – At all stages of the electoral process, the Commission shall
ensure that the secrecy and integrity of the ballots are preserved. The
Committee on Absentee Voting of the Commission shall be
responsible for ensuring the secrecy and sanctity of the absentee
voting process. In the interest of transparency, all necessary and
practicable measures shall be adopted to allow representation of the
candidates, accredited major political parties, accredited citizens’ arms
and non-government organizations to assist, and intervene in
appropriate cases, in all stages of the electoral exercise and to prevent
any and all forms of fraud and coercion.
No officer or member of the foreign service corps, including those
belonging to attached agencies shall be transferred, promoted,
extended, recalled or otherwise moved from his current post or position
one (1) year before and three (3) months after the day of elections,
except upon the approval of the Commission.
Sec. 24. Prohibited Acts. – In addition to the prohibited acts provided
by law, it shall be unlawful:
24.1. For any officer or employee of the Philippine
government to influence or attempt to influence any person
covered by this Act to vote, or not to vote, for a particular
candidate. Nothing in this Act shall be deemed to prohibit
free discussion regarding politics or candidates for public
office.
24.2. For any person to deprive any person of any right
secured in this Act, or to give false information as to his/her
name, address, or period of residence for the purposes of
establishing his/her eligibility or ineligibility to register or vote
under this Act; or to conspire with another person for the
purpose of encouraging the giving of false information in
 order to establish the eligibility or ineligibility of any individual House Committee on Suffrage and Electoral Reforms, and seven (7)
to register or vote under this Act; or, to pay, or offer to pay, other Members of the House of Representatives designated by the
or to accept payment either for application to vote in Speaker of the House of Representatives: Provided, That, of the seven
absentia or for voting; (7) members to be designated by each House of Congress, four (4)
should come from the majority and the remaining three (3) from the
minority.
24.3. For any person to tamper with the ballot, the mail
containing the ballots for overseas absentee voters, the
election returns, including the destruction, mutilation and The Joint Congressional Oversight Committee shall have the power to
manipulation thereof; monitor and evaluate the implementation of this Act. It shall review,
revise, amend and approve the Implementing Rules and Regulations
promulgated by the Commission.
24.4. For any person to steal, destroy, conceal, mutilate or
alter any record, document or paper as required for
purposes of this Act; Sec. 26. Applicability of Other Election Laws. – The pertinent
provisions of the Omnibus Election Code, as amended, and other
election laws, which are not in conflict with the provisions of this Act
24.5. For any deputized agent to refuse without justifiable
shall remain in full force and shall have suppletory application to this
ground, to serve or continue serving, or to comply with
Act.
his/her sworn duties after acceptance of his/her
appointment;
Sec. 27. Enforcement and Administration by the Commission. – The
Commission shall, for the purpose of ensuring honest, orderly,
24.6. For any public officer or employee who shall cause the
peaceful and free elections abroad, have exclusive charge of the
preparation, printing, distribution of information material, or
enforcement, administration and implementation of this Act.
post the same in websites without the prior approval of the
Commission;
Sec. 28. Mandatory Review. – Congress shall complete a mandatory
review of this Act within two (2) years following the May, 2004 elections
24.7. For any public officer or employee to cause the
for the purpose of amending it to expand or restrict its coverage, scope
transfer, promotion, extension, recall of any member of the
and application, as well as improve its procedures and institute
foreign service corps, including members of the attached
measures and safeguards, taking into account the experience of the
agencies, or otherwise cause the movement of any such
previous election, technological advances and structural political
member from his current post or position one (1) year before
changes.
and three (3) months after the day of elections, without
securing the prior approval of the Commission;
Sec. 29. Appropriations. – The amount necessary to carry out the
provisions of this Act shall be provided in a supplemental budget or
24.8. For any person who, after being deputized by the
included in the General Appropriations Act of the year of its enactment
Commission to undertake activities in connection with the
into law. Thereafter, the expenses for its continued implementation
implementation of this Act, shall campaign for or assist, in
shall be included in the subsequent General Appropriations Act.
whatever manner, candidates in the elections;

Sec. 30. Separability Clause. – If any part or provision of this Act shall
24.9. For any person who is not a citizen of the Philippines to
be declared unconstitutional or invalid, other provisions hereof which
participate, by word or deed, directly or indirectly through
are not affected thereby shall continue to be in full force and effect.
qualified organizations/associations, in any manner and at
any stage of the Philippine political process abroad,
including participation in the campaign and elections. Sec. 31. Repealing Clause. – All laws, presidential decrees, executive
orders, rules and regulations, other issuances, and parts thereof, which
are inconsistent with the provisions of this Act, are hereby repealed or
The provision of existing laws to the contrary notwithstanding, and with
modified accordingly.
due regard to the Principle of Double Criminality, the prohibited acts
described in this section are electoral offenses and punishable in the
Philippines. Sec. 32. Effectivity. – This Act shall take effect fifteen (15) days
following its publication in three (3) newspapers of general circulation.
The penalties imposed under Section 264 of the Omnibus Election
Code, as amended, shall be imposed on any person found guilty of
committing any of the prohibited acts as defined in this section:
Provided, That the penalty of prision mayor in its minimum period shall
be imposed upon any person found guilty of Section 24.3 hereof
without the benefit of the operation of the Indeterminate Sentence Law.
If the offender is a public officer or a candidate, the penalty shall be
prision mayor in its maximum period. In addition, the offender shall be
sentenced to suffer perpetual disqualification to hold public office and
deprivation of the right to vote.

Immigrants and permanent residents who do not resume residence in

the Philippines as stipulated in their affidavit under Section 5(d) within
three (3) years after approval of his/her registration under this Act and
yet vote in the next elections contrary to the said section, shall be
penalized by imprisonment of not less than one (1) year, and shall be
deemed disqualified as provided in Section 5(c) of this Act. His/her
passport shall be stamped "not allowed to vote".

Sec. 25. Joint Congressional Oversight Committee. – A Joint

Congressional Oversight Committee is hereby created, composed of
the Chairman of the Senate Committee on Constitutional
Amendments, Revision of Codes and Laws, and seven (7) other
Senators designated by the Senate President, and the Chairman of the
REPUBLIC ACT No. 10590
AN ACT AMENDING REPUBLIC ACT NO. 9189, ENTITLED "AN
ACT PROVIDING FOR A SYSTEM OF OVERSEAS ABSENTEE
VOTING BY QUALIFIED CITIZENS OF THE PHILIPPINES ABROAD,
APPROPRIATING FUNDS THEREFOR AND FOR OTHER
PURPOSES"
Be it enacted by the Senate and House of Representatives of the
Philippines in Congress assembled:
Section 1. Section 1 of Republic Act No. 9189 is hereby amended to
read as follows:
"SECTION 1. Short Title. - This Act shall be known as 'The
Overseas Voting Act of 2013′."
Section 2. Section 3 of Republic Act No. 9189 is hereby amended to
read as follows:
"SEC. 3. Definition of Terms. - For purposes of this Act:
"(a) Certified List of Overseas Voters
(CLOV) refers to the list of registered overseas
voters whose applications to vote overseas have
been approved by the Commission, said list to be
prepared by the Office for Overseas Voting of the
Commission, on a country-by-country and post-by-
post basis. The list shall be approved by the
Commission in an en banc resolution.
"(b) Commission refers to the Commission on
Elections.
"(c) Day of Election refers to the actual date of
elections in the Philippines.
"(d) Department of Foreign Affairs Overseas
Voting Secretariat (DFA-OVS) refers to the
secretariat based at the Department of Foreign
Affairs (DFA) home office tasked to assist the
Office for Overseas Voting (OFOV) under the
Commission, and to direct, coordinate and
oversee the participation of the DFA in the
implementation of the Overseas Voting Act.
"(e) Field Registration refers to the conduct of
registration of overseas voters at predetermined
locations, either in the Philippines, as may be
determined by the Commission, or outside the
posts, upon the favorable recommendation of the
DFA-OVS, both being of limited duration and
based on the guidelines prescribed by the
Commission for that exclusive purpose; the
government shall not collect fees for the same.
"(f) Mobile Registration refers to the conduct of
registration of overseas voters at various locations
outside the posts, other than at field registrations,
undertaken as part of the posts' mobile consular
and outreach activities to Filipinos within their
jurisdictions.
"(g) Municipal/City/District Registry of Overseas
Voters (ROV) refers to the consolidated list
prepared, approved and maintained by the
Commission for every municipality/city/district of
overseas voters whose applications for registration
as such, including those registered voters under
Republic Act No. 8189, 'Voter's Registration Act of
1996′, who applied for certification as overseas
voters, have been approved by the Election
Registration Board and/or resident Election
Registration Board.
"(h) National Registry of Overseas Voters
(NROV) refers to the consolidated list prepared,
approved and maintained by the Commission of
overseas voters whose applications for registration
as overseas voters, including those registered
voters under Republic Act No. 8189 who have
applied to be certified as overseas voters, have
been approved by the resident Election
Registration Board, indicating the post where the
overseas voter is registered.
"(i) Office for Overseas Voting (OFOV) refers to
the Office of the Commission tasked to oversee
and supervise the effective implementation of the
Overseas Voting Act.
"(j) Overseas 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.
"(k) Overseas Voting refers to the process by
which qualified citizens of the Philippines abroad
exercise their right to vote.
"(l) Posts refer to the Philippine embassies,
consulates, foreign service establishments and
other Philippine government agencies maintaining
offices abroad and having jurisdiction over the
places where the overseas voters reside.
"(m) Resident Election Registration Board
(RERB) refers to the in-house Election
Registration Board in every post and in the OFOV,
which processes, approves or disapproves all
applications for registration and/or certification as
overseas voters, including the deactivation,
reactivation and cancellation of registration
records.
"(n) Seafarers refer to ship officers and ratings
manning ships, including offshore workers, service
providers and fishermen, as denned in the revised
rules on the issuance of seafarer's identification
and record book of the Maritime Industry Authority.
"(o) Special Ballot Reception and Custody Group
(SBRCG) refers to the group constituted by the
Commission to receive and take custody of all
accountable and other election forms, supplies
and paraphernalia from the OFOV for transmittal
to the Special Board of Election Inspectors and
Special Board of Canvassers.
"(p) Special Board of Canvassers (SBOC) refers to
the body deputized by the Commission to canvass
the overseas voting election returns submitted to it
by the Special Board of Election Inspectors.
"(q) Special Board of Election Inspectors
(SBEI) refers to the body deputized by the
Commission to conduct the voting and counting of
votes.
"(r) Voting Period refers to a continuous thirty (30)-
day period, the last day of which is the day of
election, inclusive of established holidays in the
 Philippines and of such other holidays in the host
countries."
Section 3. Section 4 of the same Act is hereby amended to read as
follows:
"SEC. 4. Coverage. - All citizens of the Philippines abroad,
who are not otherwise disqualified by law, at least eighteen
(18) years of age on the day of elections, may vote for
President, Vice-President, Senators and Party-List
Representatives, as well as in all national referenda and
plebiscites."
Section 4. Section 5 of the same Act is hereby amended to read as
follows:
"SEC. 5. Disqualifications. - The following shall be
disqualified from registering and 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, except those who
have reacquired or retained their Philippine
citizenship under Republic Act No. 9225,
otherwise known as the 'Citizenship Retention and
Reacquisition Act of 2003′;
"(c) Those who have committed and are convicted
in a final judgment by a Philippine court or tribunal
of an offense punishable by imprisonment of not
less than one (1) year, such disability not having
been removed by plenary pardon or
amnesty: Provided, however, That any person
disqualified to vote under this subsection shall
automatically acquire the right to vote upon the
expiration of five (5) years after service of
sentence; and
"(d) Any citizen of the Philippines abroad
previously declared insane or incompetent by
competent authority in the Philippines or abroad,
as verified by the Philippine embassies,
consulates or foreign service establishments
concerned, unless such competent authority
subsequently certifies that such person is no
longer insane or incompetent."
Section 5. Section 6 of the same Act is hereby amended to read as
follows:
"SEC. 6. Personal Overseas Registration and/or
Certification. - Registration and/or certification as an
overseas voter shall be done in person at any post abroad or
at designated registration centers outside the post or in the
Philippines approved by the Commission.
"Field and mobile registration centers shall be set up by the
posts concerned to ensure accessibility by the overseas
voters.
"All applicants shall submit themselves for live capture of
their biometrics.
"The Commission shall issue an overseas voter identification
card to those whose applications to vote have been
approved."
Section 6. A new Section 7 of the same Act is hereby inserted to read
as follows:
"SEC. 7. Resident Election Registration Board (RERB);
Composition, Appointment, Disqualification and
Compensation. - The RERB shall be composed of the
following:
"(a) A career official of the DFA, as Chairperson;
"(b) The most senior officer from the Department
of Labor and Employment (DOLE) or any
government agency of the Philippines maintaining
offices abroad, as member: Provided, That in case
of disqualification or nonavailability of the most
senior officer from the DOLE or any government
agency of the Philippines maintaining offices
abroad, the Commission shall designate a career
official from the embassy or consulate concerned;
and
"(c) A registered overseas voter of known probity,
as member.
"The Commission shall appoint the members of the RERB
upon the recommendation of the DFA-OVS.
"The RERB in the OFOV shall be based in the main office of
the Commission and shall be composed of a senior official of
the Commission as the Chairperson and one (1) member
each from the DFA and the DOLE, whose rank shall not be
lower than a division chief or its equivalent.
"No member of the RERB shall be related to each other or to
an incumbent President, Vice-President, Senator or Member
of the House of Representatives representing the party-list
system of representation, within the fourth civil degree of
consanguinity or affinity.
"Each member of the RERB shall be entitled to an
honorarium at the rates approved by the Department of
Budget and Management (DBM)."
Section 7. A new Section 8 of the same Act is hereby inserted to read
as follows:
"SEC. 8. Duties and Functions of the RERB. - The RERB
shall have the following duties and functions:
"(a) Post in the bulletin boards of the embassy or
consulates or at the OFOV, as the case may be,
and in their respective websites, the names of the
applicants and the dates when their applications
shall be heard, as well as the place where the
RERB will hold its hearing;
"(b) Notify, through the OFOV, all political parties
and other parties concerned of the pending
applications through a weekly updated publication
in the website of the Commission;
"(c) Act on all applications received;
"(d) Notify all applicants, whose applications have
been disapproved, stating the reasons for such
disapproval;
"(e) Prepare a list of all approved applications
during each hearing and post the same at the
bulletin boards of the embassy or consulates or at
 the OFOV, as the case may be, and in their
respective websites;
"(f) Deactivate the registration records of overseas
voters; and
"(g) Perform such other duties as may be
consistent with its functions as provided under this
Act."
Section 8. A new Section 9 of the same Act is hereby inserted to read
as follows:
"SEC. 9. Petition for Exclusion, Motion for Reconsideration,
Petition for Inclusion. -
"9.1. Petition for Exclusion. - If the application has been
approved, any interested party may file a petition for
exclusion not later than one hundred eighty (180) days
before the start of the overseas voting period with the proper
Municipal/Metropolitan Trial Court in the City of Manila or
where the overseas voter resides in the Philippines, at the
option of the petitioner.
"The petition shall be decided on the basis of the documents
submitted within fifteen (15) days from its filing, but not later
than one hundred twenty (120) days before the start of the
overseas voting period. Should the Court fail to render a
decision within the prescribed period, the ruling of the RERB
shall be considered affirmed.
"9.2. Motion for Reconsideration. - If the application has
been disapproved, the applicant or the authorized
representative shall have the right to file a motion for
reconsideration before the RERB within a period of five (5)
days from receipt of the notice of disapproval. The motion
shall be decided within five (5) days after its filing on the
basis of documents submitted but not later than one hundred
twenty (120) days before the start of the overseas voting
period. The resolution of the RERB shall be immediately
executory, unless reversed or set aside by the Court.
"9.3. Petition for Inclusion. - Within ten (10) days from receipt
of notice denying the motion for reconsideration, the
applicant may file a petition for inclusion with the proper
Municipal/Metropolitan Trial Court in the City of Manila or
where the overseas voter resides in the Philippines, at the
option of the petitioner.
"The petition shall be decided on the basis of the documents
submitted within fifteen (15) days from filing, but not later
than one hundred twenty (120) days before the start of the
overseas voting period. Should the Court fail to render a
decision within the, prescribed period, the RERB ruling shall
be considered affirmed.
"Qualified Philippine citizens abroad who have previously
registered as voters pursuant to Republic Act No. 8189,
otherwise known as the 'Voter's Registration Act of 1996′,
shall apply for certification as overseas voters and for
inclusion in the NROV. In case of approval, the Election
Officer concerned shall annotate the fact of
registration/certification as overseas voter before the voter's
name as appearing in the certified voters' list and in the
voter's registration records."
Section 9. A new Section 10 of the same Act is hereby inserted to
read as follows:
"SEC. 10. Transfer of Registration Record. - In the event of
change of voting venue, an application for transfer of
registration record must be filed by the overseas voter with
the OFOV, through its Chairperson, at least one hundred
eighty (180) days prior to the start of the overseas voting
period: Provided, That those who would eventually vote in
the Philippines should register within the time frame provided
for local registration in the municipality, city or district where
they intend to vote: Provided, further, That those who have
registered in the municipality, city or district where they
resided prior to their departure abroad need not register
anew: Provided, finally, That transferees shall notify the
OFOV, through its Chairperson, of their transfer back to the
Philippines at least one hundred eighty (180) days prior to
the next national elections for purposes of cancelling their
names from the CLOV and of removing their overseas
voter's registration from the book of voters."
Section 10. Section 7 of the same Act is hereby renumbered as
Section 11 and is amended to read as follows:
"SEC. 11. System of Continuing Registration. - The
Commission shall ensure that the benefits of the system of
continuing registration are extended to qualified overseas
voters. Registration shall commence not later than six (6)
months after the conduct of the last national elections.
Towards this end, the Commission shall be authorized to
utilize and optimize the use of existing facilities, personnel
and mechanisms of the various government agencies for
purposes of data gathering and validation, information
dissemination and facilitation of the registration process.
"Pre-departure Orientation Seminars (PDOS), services and
mechanisms offered and administered by the DFA, the
DOLE, the Philippine Overseas Employment Administration
(POEA), the Overseas Workers' Welfare Administration
(OWWA), the Commission on Filipinos Overseas and by
other appropriate agencies of the government and private
agencies providing the same services shall include the
salient features of this Act and shall be utilized for purposes
of supporting the overseas registration and voting
processes.
"All employment contracts processed and approved by the
POEA shall state the right of migrant workers to exercise
their constitutional right of suffrage within the limits provided
for by this Act."
Section 11. Section 8 of the same Act is hereby renumbered as
Section 12 and is amended to read as follows:
"SEC. 12. Requirements for Registration. - Every Filipino
registrant shall be required to furnish the following
documents:
"(a) A valid Philippine passport. In the absence of
a valid passport, a certification of the DFA that it
has reviewed the appropriate documents
submitted by the applicant and has found them
sufficient to warrant the issuance of a passport, or
that the applicant is a holder of a valid passport
but is unable to produce the same for a valid
reason;
"(b) Accomplished registration form prescribed by
the Commission; and
"(c) Applicants who availed themselves of the
'Citizen Retention and Reacquisition Act' (Republic
Act No. 9225) shall present the original or certified
true copy of the order of approval of their
application to retain or reacquire their Filipino
citizenship issued by the post or their identification
certificate issued by the Bureau of Immigration.
 "The Commission may also require, additional data to
facilitate registration and recording.1âwphi1 No information
other than those necessary to establish the identity and
qualification of the applicant shall be required.
"All applications for registration and/or certification as an
overseas voter shall be considered as applications to vote
overseas. An overseas voter is presumed to be abroad until
she/he applies for transfer of her/his registration records or
requests that her/his name be cancelled from the NROV."
Section 12. Section 9 of the same Act is hereby renumbered as
Section 13 and is amended to read as follows:
"SEC. 13. National Registry of Overseas Voters (NROV). -
The Commission shall maintain a National Registry of
Overseas Voters or NROV containing the names of
registered overseas voters and the posts where they are
registered.
"Likewise, the Commission shall maintain a registry of voters
(ROV) per municipality, city or district containing the names
of registered overseas voters domiciled therein. The
Commission shall provide each and every municipality, city
or district with a copy of their respective ROVS for their
reference."
Section 13. A new Section 14 of the same Act is hereby inserted to
read as follows:
"SEC. 14. Deactivation of Registration. - The RERB shall
deactivate and remove the registration records of the
following persons from the corresponding book of voters and
place the same, properly marked and dated, in the inactive
file after entering any of the following causes of deactivation:
"(a) Any person who has been sentenced by final
judgment by a Philippine court or tribunal to suffer
imprisonment for not less than one (1) year, such
disability not having been removed by plenary
pardon or amnesty: Provided, however, That any
person disqualified to vote under this paragraph
shall automatically reacquire the right to vote upon
the expiration of five (5) years after service of
sentence, as certified by the Clerks of Courts of
the Municipal, Municipal Circuit, Metropolitan,
Regional Trial Courts or the Sandiganbayan;
"(b) Any person declared by competent authority
to be insane or incompetent, unless such
disqualification has been subsequently removed
by a declaration of a proper authority that such
person is no longer insane or incompetent;
"(c) Any person who did not vote in two (2)
consecutive national elections as shown by voting
records; and
"(d) Any person whose registration has been
ordered excluded by the courts.
"The fact of deactivation shall be annotated in the NROV and
the corresponding ROV."
Section 14. Section 10 of the same Act is hereby renumbered as
Section 15.
"SEC. 15. Notice of Registration and Election. - The
Commission shall, through the posts cause the publication in
a newspaper of general circulation of the place, date and
time of the holding of a regular or special national election
and the requirements for the participation of qualified citizens
of the Philippines abroad, at least six (6) months before the
date set for the filing of applications for registration.
"The Commission shall determine the countries where
publication shall be made, and the frequency thereof, taking
into consideration the number of overseas Filipinos present
in such countries. Likewise, the Commission and the DFA
shall post the same in their respective websites."
Section 15. Sections 11 and 12 of the same Act are hereby deleted.
Section 16. A new Section 16 of the same Act is hereby inserted to
read as follows:
"SEC. 16. Reactivation of Registration. - Any overseas voter
whose registration has been deactivated pursuant to the
preceding section may file with the RERB at any time, but
not later than one hundred twenty (120) days before the start
of the overseas voting period, a sworn application for
reactivation of registration stating that the grounds for the
deactivation no longer exist."
Section 17. A new Section 17 of the same Act is hereby inserted to
read as follows:
"SEC 17. Cancellation of Registration. - The RERB shall
cancel the registration records of those who have died, as
certified by either the posts or by the local civil registrar, and
those who have been proven to have lost their Filipino
citizenship."
Section 18. A new Section 18 of the same Act is hereby inserted to
read as follows:
"SEC. 18. Voters Excluded from the NROV Through
Inadvertence. - Any registered overseas voter whose name
has been inadvertently omitted from the NROV may,
personally or through an authorized representative, file with
the RERB through the OFOV or the post exercising
jurisdiction over the voter's residence, an application under
oath for reinstatement not later than one hundred twenty
(120) days before the start of the voting period.
"The RERB shall resolve the application within one (1)
month from receipt thereof, otherwise the application shall
be deemed approved."
Section 19. A new Section 19 of the same Act is hereby inserted to
read as follows:
"SEC. 19. Application for Correction of Entries and Change
of Name. - Any registered overseas voter who intends to
change her/his name by reason of marriage, death of
husband, or final court judgment; or to correct a mispelled
name or any erroneous entry in the NROV, CLOV and
voter's identification card may, personally or through an
authorized representative, file an application under oath for
change of name or correction of entries with the RERB
through the OFOV or the post exercising jurisdiction over the
voter's residence not later than ninety (90) days before the
start of the voting period.
"The RERB shall resolve the application within one (1)
month from receipt thereof, otherwise the application shall
be deemed approved."
Section 20. Section 13 of the same Act is hereby renumbered as
Section 20 and is amended to read as follows:
 "SEC. 20. Preparation and Posting of Certified List of
Overseas Voters. - The Commission shall prepare the
Certified List of Overseas Voters or CLOV not later than
ninety (90) days before the start of the overseas voting
period, and furnish within the same period electronic and
hard copies thereof to the appropriate posts, which shall post
the same in their bulletin boards and/or websites within ten
(10) days from receipt thereof.
"Subject to reasonable regulation and the payment of fees in
such amounts as may be fixed by the Commission, the
candidates, political parties, accredited citizens' arms, and all
other interested persons shall be furnished copies
Section 24. Section 16 of the same Act is hereby renumbered as
thereof: Provided, That nongovernmental organizations and
Section 24 and is amended to read as follows:
other civil society organizations accredited by and working
with the Commission as partners on overseas voters'
education and participation shall be exempt from the
payment of fees."
Section 21. Section 14 of the same Act is hereby renumbered as
Section 21 and is amended to read as follows:
"SEC. 21. Printing and Transmittal of Ballots, Voting
Instructions, Election Forms and Paraphernalia. -
"21.1. The Commission shall cause the printing of ballots for
overseas voters, and all other accountable election forms in
such number as may be necessary, but in no case shall
these exceed the total number of approved applications.
Security markings shall be used in the printing of ballots for
overseas voters.
"21.2. The Commission shall present to the authorized
representatives of the DFA and of the accredited major
political parties the ballots for overseas voters, voting
instructions, election forms and other election paraphernalia
for scrutiny and inspection prior to their transmittal to the
posts.
"21.3. The Commission shall transmit, as far as practicable,
but not later than forty-five (45) days before the day of
elections, by special pouch to all posts the exact number of
ballots for overseas voters corresponding to the number of
approved applications, along with such accountable forms
necessary to ensure the secrecy and integrity of the election.
"21.4. The authorized representatives of accredited major
political parties shall have the right to be present in all
phases of printing, transmittal, and casting of mailed ballots
abroad. Unclaimed ballots properly marked as such, shall be
cancelled and shipped to the Commission by the least costly
method."
Section 22. Section 15 of the same Act is hereby renumbered as
Section 22 and is amended to read as follows:
"SEC. 22. Regulation on Campaigning Abroad. - Personal
campaigning, the use of campaign materials, as well as the
limits on campaign spending shall be governed by the laws
and regulations applicable in the Philippines: Provided, That
all forms of campaigning abroad within the thirty (30)-day
overseas voting period shall be prohibited."
Section 23. A new Section 23 of the same Act is hereby inserted to
read as follows:
"SEC. 23. Voting. - Voting may be done either personally, by
mail or by any other means as may be determined by the
Commission. For this purpose, the Commission shall issue
the necessary guidelines on the manner and procedures of
voting.
"The OFOV, in consultation with the DFA-OVS, shall
determine the countries where voting shall be done by any
specific mode, taking into consideration the minimum criteria
enumerated under this Act which shall include the number of
registered voters, accessibility of the posts, efficiency of the
host country's applied system and such other circumstances
that may affect the conduct of voting.
"The Commission shall announce the specific mode of voting
per country/post at least one hundred twenty (120) days
before the start of the voting period."
"SEC. 24. Casting and Submission of Ballots. -
"24.1. Upon receipt by the SBEI of the ballots for overseas
voters, voting instructions, election forms and other
paraphernalia, they shall make these available on the
premises to the qualified overseas voters in their respective
jurisdictions during the thirty (30) days before the day of
elections when overseas voters may cast their vote.
Immediately upon receiving it, the overseas voter must fill-
out her/his ballot personally, in secret, without leaving the
premises of the posts concerned.
"24.2. The overseas voter shall personally accomplish
her/his ballot at the post that has jurisdiction over the country
where she/he temporarily resides or at any polling place
designated and accredited by the Commission.
"24.3. The overseas voter shall cast her/his ballot, upon
presentation of the voter identification card issued by the
Commission or such other documents deemed by the SBEI
at the post as sufficient to establish the voter's identity.
"24.4. x x x
"24.5. The posts concerned shall keep a complete record of
the ballots for overseas voters, specifically indicating the
number of ballots they actually received, and in cases where
voting by mail is allowed under Section 25 hereof, the names
and addresses of the voters to whom these ballots were
sent, including proof of receipt thereof. In addition, the posts
shall submit a formal report to the Commission and the Joint
Congressional Oversight Committee created under this Act
within thirty (30) days from the day of elections. Such report
shall contain data on the number of ballots cast and received
by the offices, the number of invalid and unclaimed ballots
and other pertinent data.
"24.6. Ballots not claimed by the overseas voters at the
posts, in case of personal voting, and ballots returned to the
posts concerned, in the case of voting by mail, shall be
cancelled and shipped to the Commission by the least costly
method within six (6) months from the day of elections.
"24.7. Only ballots cast, and mailed ballots received by the
posts concerned in accordance with Section 25 hereof
before the close of voting on the day of elections shall be
counted in accordance with Section 27 hereof. All envelopes
containing the ballots received by the posts after the
prescribed period shall not be opened, and shall be
cancelled and shipped to the Commission by the least costly
method within six (6) months from the day of elections.
"24.8. A special ballot Reception and Custody Group
composed of three (3) members shall be constituted by the
Commission from among the staff of the posts concerned,
including their attached agencies, and citizens of the
Philippines abroad, who will be deputized to receive ballots
 and take custody of the same preparatory to their transmittal
to the SBEI.
"24.9. x x x
"24.10. x x x."
Section 25. Section 17 of the same Act is hereby renumbered as
Section 25 and is amended to read as follows:
"SEC. 25. Voting by Mail. -
"25.1. x x x
"(a) x x x;
"(b) x x x; and
"(c) x x x.
"25.2. The overseas voter shall send her/his accomplished
ballot to the corresponding post that has jurisdiction over the
country where she/he temporarily resides. She/He shall be
entitled to cast her/his ballot at any time upon her/his receipt
thereof: Provided, That the same is received before the
close of voting on the day of elections. The overseas
absentee voter shall be instructed that her/his ballot shall not
be counted if not transmitted in the special envelope
furnished her/him.
"25.3. Only mailed ballots received by the post before the
close of voting on the day of elections shall be counted in
accordance with Section 27 hereof. All envelopes containing
the ballots received by the posts after the prescribed period
shall not be opened, and shall be cancelled and disposed of
appropriately, with a corresponding report thereon submitted
to the Commission not later than thirty (30) days from the
day of elections."
Section 26. A new Section 26 of the same Act is hereby inserted to
read as follows:
"SEC. 26. Voting Privilege of Members of the SBEI, SBRCG
and SBOC. - Government employees posted abroad who
will perform election duties as members of the SBEI,
SBCRG and SBOC shall be allowed to vote in their
respective posts: Provided, That they are registered either in
the Philippines or as overseas voters."
Section 27. Section 18 of the same Act is hereby renumbered as
Section 27 and is amended to read as follows:
"SEC. 27. On-Site Counting and Canvassing. -
"27.1. x x x
"27.2. For these purposes, the Commission shall constitute
as many SBEIs as may be necessary to conduct and
supervise the counting of votes as provided in Section 27.2
hereof. The SBEIs to be constituted herein shall be
composed of a Chairman and two (2) members, one (1) of
whom shall be designated as poll clerk. The ambassador or
consul-general, or any career public officer posted abroad
designated by the Commission, as the case may be, shall
act as the Chairman; in the absence of other government
officers, the two (2) other members shall be citizens of the
Philippines who are qualified to vote under this Act and
deputized by the Commission not later than sixty (60) days
before the day of elections. All resolutions of the SBEIs on
issues brought before it during the conduct of its
proceedings shall be valid only when they carry the approval
of the Chairman.
"Immediately upon the completion of the counting, the SBEIs
shall transmit via facsimile and/or electronic mail the results
to the Commission in Manila and the accredited major
political parties.
"x x x
"27.3. x x x
"27.4. The SBOC composed of the highest ranking officer of
the post as Chairperson, a senior career officer from any of
the government agencies maintaining a post abroad and, in
the absence of another government officer, a citizen of the
Philippines qualified to vote under this Act and deputized by
the Commission, as vice chairperson and member-secretary,
respectively, shall be constituted to canvass the election
returns submitted to it by the SBEIs. Immediately upon the
completion of the canvass, the chairperson of the SBOC
shall transmit via facsimile, electronic mail, or any other
means of transmission equally safe and reliable the
Certificates of Canvass and the Statements of Votes to the
Commission, and shall cause to preserve the same
immediately after the conclusion of the canvass, and make it
available upon instructions of the Commission. The SBOC
shall also furnish the accredited major political parties and
accredited citizens' arms with copies thereof via facsimile,
electronic mail and any other means of transmission equally
safe, secure and reliable.
"x x x
"27.5. x x x
"27.6. x x x. For purposes of this Act, the returns of every
election for President and Vice-President prepared by the
SBOCs shall be deemed a certificate of canvass of a city or
a province.
"27.7. x x x."
Section 28. A new Section 28 of the same Act is hereby inserted to
read as follows:
"SEC. 28. Authority to Explore Other Modes or Systems
Using Automated Election System. - Notwithstanding current
procedures and systems herein provided, for the proper
implementation of this Act and in view of the peculiarities
attendant to the overseas voting process, the Commission
may explore other more efficient, reliable and secure modes
or systems, ensuring the secrecy and sanctity of the entire
process, whether paper-based, electronic-based or internet-
based technology or such other latest technology available,
for onsite and remote registration and elections and submit
reports and/or recommendations to the Joint Congressional
Oversight Committee."
Section 29. A new Section 29 of the same Act is hereby inserted to
read as follows:
"SEC. 29. Procurement of Facilities, Equipment, Materials,
Supplies or Services. - To achieve the purpose of this Act,
the Commission may, likewise, procure from local or foreign
sources, through purchase, lease, rent or other forms of
acquisition, hardware or software, facilities, equipment,
materials, supplies or services in accordance with existing
laws, free from taxes and import duties, subject to
government procurement rules and regulations."
Section 30. A new Section 30 of the same Act is hereby inserted to
read as follows:
"SEC. 30. Establishment of an Office for Overseas Voting
(OFOV) Under the Commission. - The Commission is hereby
authorized to establish an OFOV tasked specifically to
oversee and supervise the effective implementation of the
Overseas Voting Act: Provided, That its secretariat shall
come from the existing secretariat personnel of the
Commission on Elections."
Section 31. A new Section 31 of the same Act is hereby inserted to
read as follows:
"SEC. 31. Creation of the Department of Foreign Affairs
Overseas Voting Secretariat (DFA-OVS). - A secretariat
based in the DFA home office is hereby created to assist the
OFOV, and to direct, coordinate and oversee the
participation of the DFA in the implementation of the
Overseas Voting Act: Provided, That its secretariat shall
Section 37. Section 24 of the same Act is hereby renumbered as
come from the existing secretariat personnel of the DFA."
Section 36 and is amended to read as follows:
Section 32. Section 19 of the same Act is hereby deleted.
Section 33. Section 20 of the same Act is hereby renumbered as
Section 32 and is amended to read as follows:
"SEC. 32. Information Campaign. - The Commission, in
coordination with agencies concerned, shall undertake an
information campaign to educate the public on the manner of
overseas voting for qualified overseas voters. It may require
the support and assistance of the DFA, through the posts,
the DOLE, the Department of Transportation and
Communications (DOTC), the Philippine Postal Corporation
(PPC), the POEA, the OWWA and the Commission on
Filipinos Overseas.
Such information campaign shall educate the Filipino public,
within and outside the Philippines, on the Philippine Electoral
System, the rights of overseas voters, overseas voting
processes and other related concerns. Information materials
shall be developed by the Commission for distribution,
through the said government agencies and private
organizations. No government agency shall prepare, print,
distribute or post any information material without the prior
approval of the Commission."
Section 34. Section 21 of the same Act is hereby renumbered as
Section 33.
Section 35. Section 22 of the same Act is hereby renumbered as
Section 34 and is amended to read as follows:
"SEC. 34. Assistance from Government Agencies. - All
government officers, particularly from the DFA, the DOLE,
the DOTC, the PPC, the POEA, the OWWA, the
Commission on Filipinos Overseas and other government
offices concerned with the welfare of the Filipinos overseas
shall, to the extent compatible with their primary
responsibilities, assist the Commission in carrying out the
provisions of this Act. All such agencies or officers thereof
shall take reasonable measures to expedite all election
activities, which the Commission shall require of them. When
necessary, the Commission may send supervisory teams
headed by career officers to assist the posts.
"Likewise, consular and diplomatic services rendered in
connection with the overseas voting processes shall be
made available at no cost to the overseas voters."
Section 36. Section 23 of the same Act is hereby renumbered as
Section 35 and is amended to read as follows:
"SEC. 35. Security Measures to Safeguard the Secrecy and
Sanctity of Ballots. - At all stages of the electoral process,
the Commission shall ensure that the secrecy and integrity
of the ballots are preserved. The OFOV of the Commission
shall be responsible for ensuring the secrecy and sanctity of
the overseas voting process. In the interest of transparency,
all necessary and practicable measures shall be adopted to
allow representation of the candidates, accredited major
political parties, accredited citizens' arms and
nongovernment organizations to assist, and intervene in
appropriate cases, in all stages of the electoral exercise and
to prevent any and all forms of fraud and coercion.
"No officer or member of the foreign service corps, including
those belonging to attached agencies shall be transferred,
promoted, extended, recalled or otherwise moved from his
current post or position one (1) year before and three (3)
months after the day of elections, except upon the approval
of the Commission."
"SEC. 36. Prohibited Acts. - In addition to the prohibited acts
provided by law, it shall be unlawful:
"36.1. For any officer or employee of the Philippine
government to influence or attempt to influence
any person covered by this Act to vote, or not to
vote, for a particular candidate. Nothing in this Act
shall be deemed to prohibit free discussion
regarding politics or candidates for public office;
"36.2. For any person to deprive another of any
right secured in this Act, or to give false
information as to one's name, address, or period
of residence for the purposes of establishing the
eligibility or ineligibility to register or vote under
this Act; or to conspire with another person for the
purpose of encouraging the giving of false
information in order to establish the eligibility or
ineligibility of any individual to register or vote
under this Act; or, to pay, or offer to pay, or to
accept payment either for application for
registration, or for voting;
"36.3. For any person to steal, conceal, alter,
destroy, mutilate, manipulate, or in any way
tamper with the mail containing the ballots for
overseas voters, the ballot, the election returns, or
any record, document or paper required for
purposes of this Act;
"36.4. For any deputized agent to refuse without
justifiable ground, to serve or continue serving, or
to comply with one's sworn duties after
acceptance of the deputization;
"36.5. For any public officer or employee or
accredited or deputized organization or
association to cause the preparation, printing,
distribution or posting of information or material,
without the prior approval of the Commission;
"36.6. For any public officer or employee to cause
the transfer, promotion, extension, recall of any
member of the foreign service corps, including
members of the attached agencies, or otherwise
cause the movement of any such member from
the current post or position one (1) year before
and three (3) months after the day of elections,
without securing the prior approval of the
Commission;
 "36.7. For any person who, after being deputized
by the Commission to undertake activities in
connection with the implementation of this Act,
shall campaign for or assist, in whatever manner,
candidates in the elections;
"36.8. For any person to engage in partisan
political activity abroad during the thirty (30)-day
overseas voting period;
"36.9. For any person who is not a citizen of the
Philippines to participate, by word or deed, directly
or indirectly through qualified
organizations/associations, in any manner and at
any stage of the Philippine political process
abroad, including participation in the campaign
and elections.
"The provision of existing laws to the contrary
notwithstanding, and with due regard to the
Principle of Double Criminality, the prohibited acts
described in this section are electoral offenses and
shall be punishable in the Philippines.
"The penalties imposed under Section 264 of the
Omnibus Election Code, as amended, shall be
imposed on any person found guilty of committing
any of the prohibited acts as defined in this
section:Provided, That the penalty of prision
mayor in its minimum period shall be imposed
upon any person found guilty under Section 36.3
hereof without the benefit of the operation of the
Indeterminate Sentence Law. If the offender is a
public officer or a candidate, the penalty shall
be prision mayor in its maximum period. In
addition, the offender shall be sentenced to suffer
perpetual disqualification to hold public office and
deprivation of the right to vote."
Section 41. Implementing Rules and Regulations. - The Commission
shall promulgate rules and regulations for the implementation and
enforcement of the provisions of this Act within sixty (60) days from the
effectivity thereof.
In the formulation of the rules and regulations, the Commission shall
coordinate with the DFA, the DOLE, the POEA, the OWWA and the
Commission on Filipinos Overseas. Nongovernment organizations and
accredited Filipino organizations or associations abroad shall be
consulted.
Section 42. Amending Clause. - Consistent with the amendments
introduced by this Act, Section 2 of Republic Act No. 9189, on the
declaration of policy, is, hereby amended to read as follows:
"SEC. 2. Declaration of Policy. - It is the prime duty of the
State to provide a system of honest and orderly overseas
voting that upholds the secrecy and sanctity of the ballot.
Towards this end, the State ensures equal opportunity to all
qualified citizens of the Philippines abroad in the exercise of
this fundamental right."
Section 43. Separability Clause. - If any part or provision of this Act
shall be declared unconstitutional or invalid, the other provisions hereof
which are not affected thereby shall continue to be in full force and
effect.
Section 44. Repealing Clause. - All laws, presidential decrees,
executive orders, rules and regulations, other issuances and parts
thereof which are inconsistent with the provisions of this Act are hereby
repealed or modified accordingly.
Section 45. Effectivity Clause. - This Act shall take effect fifteen (15)
days after its publication in the Official Gazette or in at least two (2)
newspapers of general circulation.

Section 38. Section 25 of the same Act is hereby renumbered as

Section 37 and is amended to read as follows:

"SEC. 37. Joint Congressional Oversight Committee. -

A Joint Congressional Oversight Committee is hereby
created, composed of the Chairperson of the Senate
Committee on Constitutional Amendments, Revision of
Codes and Laws, and seven (7) other Senators designated
by the Senate President, and the Chairperson of the House
Committee on Suffrage and Electoral Reforms, and seven
(7) other Members of the House of Representatives
designated by the Speaker of the House of
Representatives: Provided, That, of the seven (7) members
to be designated by each House of Congress, four (4)
should come from the majority to include the chair of the
Committee on Foreign Affairs and the remaining three (3)
from the minority.

"The Joint Congressional Oversight Committee shall have

the power to monitor and evaluate the implementation of this
Act."

Section 39. Sections 26, 27 and 28 of the same Act are hereby
renumbered as Sections 38, 39 and 40, respectively.

Section 40. Section 29 of the same Act is hereby renumbered as

Section 41 and is amended to read as follows:

"SEC. 41. Appropriations. - The amount necessary to carry

out the provisions of this Act shall be included in the budgets
of the Commission on Elections and the DFA in the annual
General Appropriations Act."
 EN BANC
[G.R. No. 157013. July 10, 2003.]
ATTY. ROMULO B. MACALINTAL, Petitioner, v. COMMISSION ON
ELECTIONS, HON. ALBERTO ROMULO, in his official capacity as
Executive Secretary, and HON. EMILIA T. BONCODIN, Secretary
of the Department of Budget and Management, Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for certiorari and prohibition filed by
Romulo B. Macalintal, a member of the Philippine Bar, seeking a
declaration that certain provisions of Republic Act No. 9189 (The
Overseas Absentee Voting Act of 2003) 1 suffer from constitutional
infirmity. Claiming that he has actual and material legal interest in the
subject matter of this case in seeing to it that public funds are properly
and lawfully used and appropriated, petitioner filed the instant petition
as a taxpayer and as a lawyer.chanrob1es virtua1 1aw 1ibrary
The Court upholds the right of petitioner to file the present petition.
R.A. No. 9189, entitled, "An Act Providing for A System of Overseas
Absentee Voting by Qualified Citizens of the Philippines Abroad,
Appropriating Funds Therefor, and for Other Purposes," appropriates
funds under Section 29 thereof which provides that a supplemental
budget on the General Appropriations Act of the year of its enactment
into law shall provide for the necessary amount to carry out its
provisions. Taxpayers, such as herein petitioner, have the right to
restrain officials from wasting public funds through the enforcement of
an unconstitutional statute. 2 The Court has held that they may assail
the validity of a law appropriating public funds 3 because expenditure
of public funds by an officer of the State for the purpose of executing
an unconstitutional act constitutes a misapplication of such funds. 4
The challenged provision of law involves a public right that affects a
great number of citizens. The Court has adopted the policy of taking
jurisdiction over cases whenever the petitioner has seriously and
convincingly presented an issue of transcendental significance to the
Filipino people. This has been explicitly pronounced in Kapatiran ng
mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 5 where the
Court held:chanrob1es virtual 1aw library
Objections to taxpayers’ suit for lack of sufficient personality standing,
or interest are, however, in the main procedural matters. Considering
the importance to the public of the cases at bar, and in keeping with
the Court’s duty, under the 1987 Constitution, to determine whether or
not the other branches of government have kept themselves within the
limits of the Constitution and the laws and that they have not abused
the discretion given to them, the Court has brushed aside technicalities
of procedure and has taken cognizance of these petitions. 6
Indeed, in this case, the Court may set aside procedural rules as the
constitutional right of suffrage of a considerable number of Filipinos is
involved.
The question of propriety of the instant petition which may appear to be
visited by the vice of prematurity as there are no ongoing proceedings
in any tribunal, board or before a government official exercising
judicial, quasi-judicial or ministerial functions as required by Rule 65 of
the Rules of Court, dims in light of the importance of the constitutional
issues raised by the petitioner. In Tañada v. Angara, 7 the Court
held:chanrob1es virtual 1aw library
In seeking to nullify an act of the Philippine Senate on the ground that
it contravenes the Constitution, the petition no doubt raises a
justiciable controversy. Where an action of the legislative branch is
seriously alleged to have infringed the Constitution, it becomes not
only the right but in fact the duty of the judiciary to settle the dispute.
"The question thus posed is judicial rather than political. The duty (to
adjudicate) remains to assure that the supremacy of the Constitution is
upheld." Once a "controversy as to the application or interpretation of
constitutional provision is raised before this Court (as in the instant
case), it becomes a legal issue which the Court is bound by
constitutional mandate to decide."cralaw virtua1aw library
In another case of paramount impact to the Filipino people, it has been
expressed that it is illogical to await the adverse consequences of the
law in order to consider the controversy actual and ripe for judicial
resolution. 8 In yet another case, the Court said that:chanrob1es virtual
1aw library
. . . despite the inhibitions pressing upon the Court when confronted
with constitutional issues, it will not hesitate to declare a law or act
invalid when it is convinced that this must be done. In arriving at this
conclusion, its only criterion will be the Constitution and God as its
conscience gives it in the light to probe its meaning and discover its
purpose. Personal motives and political considerations are
irrelevancies that cannot influence its decisions. Blandishment is as
ineffectual as intimidation, for all the awesome power of the Congress
and Executive, the Court will not hesitate "to make the hammer fall
heavily," where the acts of these departments, or of any official, betray
the people’s will as expressed in the Constitution . . . 9
The need to consider the constitutional issues raised before the Court
is further buttressed by the fact that it is now more than fifteen years
since the ratification of the 1987 Constitution requiring Congress to
provide a system for absentee voting by qualified Filipinos abroad.
Thus, strong reasons of public policy demand that the Court resolves
the instant petition 10 and determine whether Congress has acted
within the limits of the Constitution or if it had gravely abused the
discretion entrusted to it. 11
The petitioner raises three principal questions:chanrob1es virtual 1aw
library
A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of
voters who are immigrants or permanent residents in other countries
by their mere act of executing an affidavit expressing their intention to
return to the Philippines, violate the residency requirement in Section 1
of Article V of the Constitution?
B. Does Section 18.5 of the same law empowering the COMELEC to
proclaim the winning candidates for national offices and party list
representatives including the President and the Vice-President violate
the constitutional mandate under Section 4, Article VII of the
Constitution that the winning candidates for President and the Vice-
President shall be proclaimed as winners by Congress?
C. May Congress, through the Joint Congressional Oversight
Committee created in Section 25 of Rep. Act No. 9189, exercise the
power to review, revise, amend, and approve the Implementing Rules
and Regulations that the Commission on Elections shall promulgate
without violating the independence of the COMELEC under Section 1,
Article IX-A of the Constitution?
The Court will resolve the questions in seriatim.
A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V
of the 1987 Constitution of the Republic of the Philippines?
Section 5(d) provides:chanrob1es virtual 1aw library
Sec. 5. Disqualifications. — The following shall be disqualified from
voting under this Act:chanrob1es virtual 1aw library
x x x
d) An immigrant or a permanent resident who is recognized as such in
the host country, unless he/she executes, upon registration, an
affidavit prepared for the purpose by the Commission declaring that
he/she shall resume actual physical permanent residence in the
Philippines not later than three (3) years from approval of his/her
registration under this Act. Such affidavit shall also state that he/she
has not applied for citizenship in another country. Failure to return shall
be cause for the removal of the name of the immigrant or permanent
resident from the National Registry of Absentee Voters and his/her
permanent disqualification to vote in absentia.
Petitioner posits that Section 5(d) is unconstitutional because it violates
Section 1, Article V of the 1987 Constitution which requires that the
voter must be a resident in the Philippines for at least one year and in
the place where he proposes to vote for at least six months
immediately preceding an election. Petitioner cites the ruling of the
Court in Caasi v. Court of Appeals 12 to support his claim. In that case,
the Court held that a "green card" holder immigrant to the United
States is deemed to have abandoned his domicile and residence in the
Philippines.
Petitioner further argues that Section 1, Article V of the Constitution
does not allow provisional registration or a promise by a voter to
perform a condition to be qualified to vote in a political exercise; 13 that
the legislature should not be allowed to circumvent the requirement of
the Constitution on the right of suffrage by providing a condition
thereon which in effect amends or alters the aforesaid residence
requirement to qualify a Filipino abroad to vote. 14 He claims that the
right of suffrage should not be granted to anyone who, on the date of
the election, does not possess the qualifications provided for by
Section 1, Article V of the Constitution.
Respondent COMELEC refrained from commenting on this issue. 15
In compliance with the Resolution of the Court, the Solicitor General
filed his comment for all public respondents. He contraposes that the
constitutional challenge to Section 5(d) must fail because of the
absence of clear and unmistakable showing that said provision of law
is repugnant to the Constitution. He stresses: All laws are presumed to
be constitutional; by the doctrine of separation of powers, a department
of government owes a becoming respect for the acts of the other two
departments; all laws are presumed to have adhered to constitutional
limitations; the legislature intended to enact a valid, sensible, and just
law.
In addition, the Solicitor General points out that Section 1, Article V of
the Constitution is a verbatim reproduction of those provided for in the
1935 and the 1973 Constitutions. Thus, he cites Co v. Electoral
Tribunal of the House of Representatives 16 wherein the Court held
that the term "residence" has been understood to be synonymous with
"domicile" under both Constitutions. He further argues that a person
can have only one "domicile" but he can have two residences, one
permanent (the domicile) and the other temporary; 17 and that the
definition and meaning given to the term residence likewise applies to
absentee voters. Invoking Romualdez-Marcos v. COMELEC 18 which
reiterates the Court’s ruling in Faypon v. Quirino, 19 the Solicitor
General maintains that Filipinos who are immigrants or permanent
residents abroad may have in fact never abandoned their Philippine
domicile. 20
Taking issue with the petitioner’s contention that "green card" holders
are considered to have abandoned their Philippine domicile, the
Solicitor General suggests that the Court may have to discard its ruling
in Caasi v. Court of Appeals 21 in so far as it relates to immigrants and
permanent residents in foreign countries who have executed and
submitted their affidavits conformably with Section 5(d) of R.A. No.
9189. He maintains that through the execution of the requisite
affidavits, the Congress of the Philippines with the concurrence of the
President of the Republic had in fact given these immigrants and
permanent residents the opportunity, pursuant to Section 2, Article V of
the Constitution, to manifest that they had in fact never abandoned
their Philippine domicile; that indubitably, they would have formally and
categorically expressed the requisite intentions, i.e., "animus manendi"
and "animus revertendi;" that Filipino immigrants and permanent
residents abroad possess the unquestionable right to exercise the right
of suffrage under Section 1, Article V of the Constitution upon approval
of their registration, conformably with R.A. No. 9189. 22
The seed of the present controversy is the interpretation that is given
to the phrase, "qualified citizens of the Philippines abroad" as it
appears in R.A. No. 9189, to wit:chanrob1es virtual 1aw library
SEC. 2. Declaration of Policy. — It is the prime duty of the State to
provide a system of honest and orderly overseas absentee voting that
upholds the secrecy and sanctity of the ballot. Towards this end, the
State ensures equal opportunity to all qualified citizens of the
Philippines abroad in the exercise of this fundamental right.
SEC. 3. Definition of Terms. — For purposes of this Act:chanrob1es
virtual 1aw library
a) "Absentee Voting" refers to the process by which qualified citizens
of the Philippines abroad, exercise their right to vote;
. . . (Emphasis supplied)
f) "Overseas Absentee Voter" refers to a citizen of the Philippines who
is qualified to register and vote under this Act, not otherwise
disqualified by law, who is abroad on the day of elections. (Emphasis
supplied)
SEC. 4. Coverage. — All citizens of the Philippines abroad, who are
not otherwise disqualified by law, at least eighteen (18) years of age on
the day of elections, may vote for president, vice-president, senators
and party-list representatives. (Emphasis supplied)
in relation to Sections 1 and 2, Article V of the Constitution which
read:chanrob1es virtual 1aw library
SEC. 1. Suffrage may be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are at least eighteen years of age,
and who shall have resided in the Philippines for at least one year and
in the place wherein they propose to vote for at least six months
immediately preceding the election. No literacy, property, or other
substantive requirement shall be imposed on the exercise of suffrage.
SEC. 2. The Congress shall provide a system for securing the secrecy
and sanctity of the ballot as well as a system for absentee voting by
qualified Filipinos abroad.
. . . (Emphasis supplied)
Section 1, Article V of the Constitution specifically provides that
suffrage may be exercised by (1) all citizens of the Philippines, (2) not
otherwise disqualified by law, (3) at least eighteen years of age, (4)
who are residents in the Philippines for at least one year and in the
place where they propose to vote for at least six months immediately
preceding the election. Under Section 5(d) of R.A. No. 9189, one of
those disqualified from voting is an immigrant or permanent resident
who is recognized as such in the host country unless he/she executes
an affidavit declaring that he/she shall resume actual physical
permanent residence in the Philippines not later than three years from
approval of his/her registration under said Act.
Petitioner questions the rightness of the mere act of execution of an
affidavit to qualify the Filipinos abroad who are immigrants or
permanent residents, to vote. He focuses solely on Section 1, Article V
of the Constitution in ascribing constitutional infirmity to Section 5(d) of
R.A. No. 9189, totally ignoring the provisions of Section 2 empowering
Congress to provide a system for absentee voting by qualified Filipinos
abroad.
A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed
give the impression that it contravenes Section 1, Article V of the
Constitution. Filipino immigrants and permanent residents overseas
are perceived as having left and abandoned the Philippines to live
permanently in their host countries and therefore, a provision in the law
enfranchising those who do not possess the residency requirement of
the Constitution by the mere act of executing an affidavit expressing
their intent to return to the Philippines within a given period, risks a
declaration of unconstitutionality. However, the risk is more apparent
than real.
The Constitution is the fundamental and paramount law of the nation to
which all other laws must conform and in accordance with which all
private rights must be determined and all public authority administered.
23 Laws that do not conform to the Constitution shall be stricken down
for being unconstitutional.chanrob1es virtua1 1aw 1ibrary
Generally, however, all laws are presumed to be constitutional. In
Peralta v. COMELEC, the Court said:chanrob1es virtual 1aw library
. . . An act of the legislature, approved by the executive, is presumed to
be within constitutional limitations. The responsibility of upholding the
Constitution rests not on the courts alone but on the legislature as well.
The question of the validity of every statute is first determined by the
legislative department of the government itself. 24
Thus, presumption of constitutionality of a law must be overcome
convincingly:chanrob1es virtual 1aw library
. . . To declare a law unconstitutional, the repugnancy of that law to the
Constitution must be clear and unequivocal, for even if a law is aimed
at the attainment of some public good, no infringement of constitutional
rights is allowed. To strike down a law there must be a clear showing
that what the fundamental law condemns or prohibits, the statute
allows it to be done.25cralaw:red
As the essence of R.A. No. 9189 is to enfranchise overseas qualified
Filipinos, it behooves the Court to take a holistic view of the pertinent
provisions of both the Constitution and R.A. No. 9189. It is a basic rule
in constitutional construction that the Constitution should be construed
as a whole. In Chiongbian v. De Leon, 26 the Court held that a
constitutional provision should function to the full extent of its
substance and its terms, not by itself alone, but in conjunction with all
other provisions of that great document. Constitutional provisions are
mandatory in character unless, either by express statement or by
necessary implication, a different intention is manifest. 27 The intent of
the Constitution may be drawn primarily from the language of the
document itself. Should it be ambiguous, the Court may consider the
intent of its framers through their debates in the constitutional
convention. 28
R.A. No. 9189 was enacted in obeisance to the mandate of the first
paragraph of Section 2, Article V of the Constitution that Congress
shall provide a system for voting by qualified Filipinos abroad. It must
be stressed that Section 2 does not provide for the parameters of the
exercise of legislative authority in enacting said law. Hence, in the
absence of restrictions, Congress is presumed to have duly exercised
its function as defined in Article VI (The Legislative Department) of the
Constitution.
To put matters in their right perspective, it is necessary to dwell first on
the significance of absentee voting. The concept of absentee voting is
relatively new. It is viewed thus:chanrob1es virtual 1aw library
The method of absentee voting has been said to be completely
separable and distinct from the regular system of voting, and to be a
new and different manner of voting from that previously known, and an
exception to the customary and usual manner of voting. The right of
absentee and disabled voters to cast their ballots at an election is
purely statutory; absentee voting was unknown to, and not recognized
at, the common law.
Absentee voting is an outgrowth of modern social and economic
conditions devised to accommodate those engaged in military or civil
life whose duties make it impracticable for them to attend their polling
places on the day of election, and the privilege of absentee voting may
flow from constitutional provisions or be conferred by statutes, existing
in some jurisdictions, which provide in varying terms for the casting
and reception of ballots by soldiers and sailors or other qualified voters
absent on election day from the district or precinct of their residence.
Such statutes are regarded as conferring a privilege and not a right, or
an absolute right. When the legislature chooses to grant the right by
statute, it must operate with equality among all the class to which it is
granted; but statutes of this nature may be limited in their application to
particular types of elections. The statutes should be construed in the
light of any constitutional provisions affecting registration and elections,
and with due regard to their texts prior to amendment and to
predecessor statutes and the decisions thereunder; they should also
be construed in the light of the circumstances under which they were
enacted; and so as to carry out the objects thereof, if this can be done
without doing violence to their provisions and mandates. Further, in
passing on statutes regulating absentee voting, the court should look
to the whole and every part of the election laws, the intent of the entire
plan, and reasons and spirit of their adoption, and try to give effect to
every portion thereof. 29 (Emphasis supplied)
Ordinarily, an absentee is not a resident and vice versa; a person
cannot be at the same time, both a resident and an absentee. 30
However, under our election laws and the countless pronouncements
of the Court pertaining to elections, an absentee remains attached to
his residence in the Philippines as residence is considered
synonymous with domicile.
In Romualdez-Marcos, 31 the Court enunciated:chanrob1es virtual
1aw library
Article 50 of the Civil Code decrees that" [f]or the exercise of civil rights
and the fulfillment of civil obligations, the domicile of natural persons is
their place of habitual residence." In Ong v. Republic, this court took
the concept of domicile to mean an individual’s "permanent home," "a
place to which, whenever absent for business or for pleasure, one
intends to return, and depends on facts and circumstances in the
sense that they disclose intent." Based on the foregoing, domicile
includes the twin elements of "the fact of residing or physical presence
in a fixed place" and animus manendi, or the intention of returning
there permanently.
Residence, in its ordinary conception, implies the factual relationship of
an individual to a certain place. It is the physical presence of a person
in a given area, community or country. The essential distinction
between residence and domicile in law is that residence involves the
intent to leave when the purpose for which the resident has taken up
his abode ends. One may seek a place for purposes such as pleasure,
business, or health. If a person’s intent be to remain, it becomes his
domicile; if his intent is to leave as soon as his purpose is established it
is residence. It is thus, quite perfectly normal for an individual to have
different residences in various places. However, a person can only
have a single domicile, unless, for various reasons, he successfully
abandons his domicile in favor of another domicile of choice. In
Uytengsu v. Republic, we laid this distinction quite
clearly:jgc:chanrobles.com.ph
"There is a difference between domicile and residence.’Residence’ is
used to indicate a place of abode, whether permanent or temporary;
‘domicile’ denotes a fixed permanent residence to which, when absent,
one has the intention of returning. A man may have a residence in one
place and a domicile in another. Residence is not domicile, but
domicile is residence coupled with the intention to remain for an
unlimited time. A man can have but one domicile for the same purpose
at any time, but he may have numerous places of residence. His place
of residence is generally his place of domicile, but it is not by any
means necessarily so since no length of residence without intention of
remaining will constitute domicile."cralaw virtua1aw library
For political purposes the concepts of residence and domicile are
dictated by the peculiar criteria of political laws. As these concepts
have evolved in our election law, what has clearly and unequivocally
emerged is the fact that residence for election purposes is used
synonymously with domicile. 32 (Emphasis supplied)
Aware of the domiciliary legal tie that links an overseas Filipino to his
residence in this country, the framers of the Constitution considered
the circumstances that impelled them to require Congress to establish
a system for overseas absentee voting, thus:chanrob1es virtual 1aw
library
MR. OPLE.
With respect to Section 1, it is not clear whether the right of suffrage,
which here has a residential restriction, is not denied to citizens
temporarily residing or working abroad. Based on the statistics of
several government agencies, there ought to be about two million such
Filipinos at this time. Commissioner Bernas had earlier pointed out that
these provisions are really lifted from the two previous Constitutions of
1935 and 1973, with the exception of the last paragraph. They could
not therefore have foreseen at that time the phenomenon now
described as the Filipino labor force explosion overseas.
According to government data, there are now about 600,000 contract
workers and employees, and although the major portions of these
expatriate communities of workers are to be found in the Middle East,
they are scattered in 177 countries in the world.
In a previous hearing of the Committee on Constitutional Commissions
and Agencies, the Chairman of the Commission on Elections, Ramon
Felipe, said that there was no insuperable obstacle to making effective
the right of suffrage for Filipinos overseas. Those who have adhered to
their Filipino citizenship notwithstanding strong temptations are
exposed to embrace a more convenient foreign citizenship. And those
who on their own or under pressure of economic necessity here, find
that they have to detach themselves from their families to work in other
countries with definite tenures of employment. Many of them are on
contract employment for one, two, or three years. They have no
intention of changing their residence on a permanent basis, but are
technically disqualified from exercising the right of suffrage in their
countries of destination by the residential requirement in Section 1
which says:chanrob1es virtual 1aw library
Suffrage shall be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are eighteen years of age or over,
and who shall have resided in the Philippines for at least one year and
in the place wherein they propose to vote for at least six months
preceding the election.
I, therefore, ask the Committee whether at the proper time they might
entertain an amendment that will make this exercise of the right to vote
abroad for Filipino citizens an effective, rather than merely a nominal
right under this proposed Constitution.
FR. BERNAS.
Certainly, the Committee will consider that. But more than just saying
that, I would like to make a comment on the meaning of "residence" in
the Constitution because I think it is a concept that has been discussed
in various decisions of the Supreme Court, particularly in the case of
Faypon v. Quirino, a 1954 case which dealt precisely with the meaning
of "residence" in the Election Law. Allow me to quote:chanrob1es
virtual 1aw library
A citizen may leave the place of his birth to look for greener pastures,
as the saying goes, to improve his lot and that, of course, includes
study in other places, practice of his avocation, reengaging in
business. When an election is to be held, the citizen who left his
birthplace to improve his lot may decide to return to his native town, to
cast his ballot, but for professional or business reasons, or for any
other reason, he may not absent himself from the place of his
professional or business activities.
So, they are here registered as voters as he has the qualifications to
be one, and is not willing to give up or lose the opportunity to choose
the officials who are to run the government especially in national
elections. Despite such registration, the animus revertendi to his home,
to his domicile or residence of origin has not forsaken him.
This may be the explanation why the registration of a voter in a place
other than his residence of origin has not been deemed sufficient to
consider abandonment or loss of such residence of origin.
In other words, "residence" in this provision refers to two residence
qualifications: "residence" in the Philippines and "residence" in the
place where he will vote. As far as residence in the Philippines is
concerned, the word "residence" means domicile, but as far as
residence in the place where he will actually cast his ballot is
concerned, the meaning seems to be different. He could have a
domicile somewhere else and yet he is a resident of a place for six
months and he is allowed to vote there. So that there may be serious
constitutional obstacles to absentee voting, unless the vote of the
person who is absent is a vote which will be considered as cast in the
place of his domicile.
MR. OPLE.
Thank you for citing the jurisprudence.
It gives me scant comfort thinking of about two million Filipinos who
should enjoy the right of suffrage, at least a substantial segment of
these overseas Filipino communities. The Committee, of course, is
aware that when this Article of the Constitution explicitly and
unequivocally extends the right of effective suffrage to Filipinos abroad,
this will call for a logistical exercise of global proportions. In effect, this
will require budgetary and administrative commitments on the part of
the Philippine government, mainly through the COMELEC and the
Ministry of Foreign Affairs, and perhaps, a more extensive elaboration
of this mechanism that will be put in place to make effective the right to
vote. Therefore, seeking shelter in some wise jurisprudence of the past
may not be sufficient to meet the demands of the right of suffrage for
Filipinos abroad that I have mentioned. But I want to thank the
Committee for saying that an amendment to this effect may be
entertained at the proper time. . . . 33 (Emphasis Supplied)
Thus, the Constitutional Commission recognized the fact that while
millions of Filipinos reside abroad principally for economic reasons and
hence they contribute in no small measure to the economic uplift of this
country, their voices are marginal insofar as the choice of this country’s
leaders is concerned.
The Constitutional Commission realized that under the laws then
existing and considering the novelty of the system of absentee voting
in this jurisdiction, vesting overseas Filipinos with the right to vote
would spawn constitutional problems especially because the
Constitution itself provides for the residency requirement of
voters:chanrob1es virtual 1aw library
MR. REGALADO.
Before I act on that, may I inquire from Commissioner Monsod if the
term "absentee voting" also includes transient voting; meaning, those
who are, let us say, studying in Manila need not go back to their places
of registration, for instance, in Mindanao, to cast their votes.
MR. MONSOD.
I think our provision is for absentee voting by Filipinos abroad.
MR. REGALADO.
How about those people who cannot go back to the places where they
are registered?
MR. MONSOD.
Under the present Election Code, there are provisions for allowing
students and military people who are temporarily in another place to
register and vote. I believe that those situations can be covered by the
Omnibus Election Code. The reason we want absentee voting to be in
the Constitution as a mandate to the legislature is that there could be
inconsistency on the residence rule if it is just a question of legislation
by Congress. So, by allowing it and saying that this is possible, then
legislation can take care of the rest. 34 (Emphasis supplied)
Thus, Section 2, Article V of the Constitution came into being to
remove any doubt as to the inapplicability of the residency requirement
in Section 1. It is precisely to avoid any problems that could impede the
implementation of its pursuit to enfranchise the largest number of
qualified Filipinos who are not in the Philippines that the Constitutional
Commission explicitly mandated Congress to provide a system for
overseas absentee voting.
The discussion of the Constitutional Commission on the effect of the
residency requirement prescribed by Section 1, Article V of the
Constitution on the proposed system of absentee voting for qualified
Filipinos abroad is enlightening:chanrob1es virtual 1aw library
MR. SUAREZ.
May I just be recognized for a clarification. There are certain
qualifications for the exercise of the right of suffrage like having resided
in the Philippines for at least one year and in the place where they
propose to vote for at least six months preceding the elections. What is
the effect of these mandatory requirements on the matter of the
exercise of the right of suffrage by the absentee voters like Filipinos
abroad?
THE PRESIDENT.
Would Commissioner Monsod care to answer?
MR. MONSOD.
I believe the answer was already given by Commissioner Bernas, that
the domicile requirements as well as the qualifications and
disqualifications would be the same.
THE PRESIDENT.
Are we leaving it to the legislature to devise the system?
FR. BERNAS.
I think there is a very legitimate problem raised there.
THE PRESIDENT.
Yes.
MR. BENGZON.
I believe Commissioner Suarez is clarified.
FR. BERNAS.
But I think it should be further clarified with regard to the residence
requirement or the place where they vote in practice; the
understanding is that it is flexible. For instance, one might be a
resident of Naga or domiciled therein, but he satisfies the requirement
of residence in Manila, so he is able to vote in Manila.
MR. TINGSON.
Madam President, may I then suggest to the Committee to change the
word "Filipinos" to QUALIFIED FILIPINO VOTERS. Instead of
"VOTING BY FILIPINOS ABROAD," it should be QUALIFIED FILIPINO
VOTERS. If the Committee wants QUALIFIED VOTERS LIVING
ABROAD, would that not satisfy the requirement?
THE PRESIDENT.
What does Commissioner Monsod say?
MR. MONSOD.
Madam President, I think I would accept the phrase "QUALIFIED
FILIPINOS ABROAD" because "QUALIFIED" would assume that he
has the qualifications and none of the disqualifications to vote.
MR. TINGSON.
That is right. So does the Committee accept?
FR. BERNAS.
"QUALIFIED FILIPINOS ABROAD" ?
THE PRESIDENT.
Does the Committee accept the amendment?
MR. REGALADO.
Madam President.
THE PRESIDENT.
Commissioner Regalado is recognized.
MR. REGALADO.
When Commissioner Bengzon asked me to read my proposed
amendment, I specifically stated that the National Assembly shall
prescribe a system which will enable qualified citizens, temporarily
absent from the Philippines, to vote. According to Commissioner
Monsod, the use of the phrase "absentee voting" already took that into
account as its meaning. That is referring to qualified Filipino citizens
temporarily abroad.
MR. MONSOD.
Yes, we accepted that. I would like to say that with respect to
registration we will leave it up to the legislative assembly, for example,
to require where the registration is. If it is, say, members of the
diplomatic corps who may be continuously abroad for a long time,
perhaps, there can be a system of registration in the embassies.
However, we do not like to preempt the legislative assembly.
THE PRESIDENT.
Just to clarify, Commissioner Monsod’s amendment is only to provide
a system.
MR. MONSOD.
Yes.
THE PRESIDENT.
The Commissioner is not stating here that he wants new qualifications
for these absentee voters.
MR. MONSOD.
That is right. They must have the qualifications and none of the
disqualifications.
THE PRESIDENT.
It is just to devise a system by which they can vote.
MR. MONSOD.
That is right, Madam President. 35 (Emphasis supplied)
Clearly therefrom, the intent of the Constitutional Commission is to
entrust to Congress the responsibility of devising a system of absentee
voting. The qualifications of voters as stated in Section 1 shall remain
except for the residency requirement. This is in fact the reason why the
Constitutional Commission opted for the term qualified Filipinos abroad
with respect to the system of absentee voting that Congress should
draw up. As stressed by Commissioner Monsod, by the use of the
adjective qualified with respect to Filipinos abroad, the assumption is
that they have the "qualifications and none of the disqualifications to
vote." In fine-tuning the provision on absentee voting, the
Constitutional Commission discussed how the system should
work:chanrob1es virtual 1aw library
MR. SUAREZ.
For clarification purposes, we just want to state for the record that in
the case of qualified Filipino citizens residing abroad and exercising
their right of suffrage, they can cast their votes for the candidates in the
place where they were registered to vote in the Philippines. So as to
avoid any complications, for example, if they are registered in Angeles
City, they could not vote for a mayor in Naga City.
In other words, if that qualified voter is registered in Angeles City, then
he can vote only for the local and national candidates in Angeles City. I
just want to make that clear for the record.
MR. REGALADO.
Madam President.
THE PRESIDENT.
What does Commissioner Regalado say?
MR. REGALADO.
I just want to make a note on the statement of Commissioner Suarez
that this envisions Filipinos residing abroad. The understanding in the
amendment is that the Filipino is temporarily abroad. He may not be
actually residing abroad; he may just be there on a business trip. It just
so happens that the day before the elections he has to fly to the United
States, so he could not cast his vote. He is temporarily abroad, but not
residing there. He stays in a hotel for two days and comes back. This
is not limited only to Filipinos temporarily residing abroad. But as long
as he is temporarily abroad on the date of the elections, then he can
fall within the prescription of Congress in that situation.
MR. SUAREZ.
I thank the Commissioner for his further clarification. Precisely, we
need this clarification on record.
MR. MONSOD.
Madam President, to clarify what we mean by "temporarily abroad," it
need not be on very short trips. One can be abroad on a treaty traders
visa. Therefore, when we talk about registration, it is possible that his
residence is in Angeles and he would be able to vote for the
candidates in Angeles, but Congress or the Assembly may provide the
procedure for registration, like listing one’s name, in a registry list in the
embassy abroad. That is still possible under the system.
FR. BERNAS.
Madam President, just one clarification if Commissioner Monsod
agrees with this.
Suppose we have a situation of a child of a diplomatic officer who
reaches the voting age while living abroad and he has never registered
here. Where will he register? Will he be a registered voter of a certain
locality in the Philippines?
MR. MONSOD.
Yes, it is possible that the system will enable that child to comply with
the registration requirements in an embassy in the United States and
his name is then entered in the official registration book in Angeles
City, for instance.
FR. BERNAS.
In other words, he is not a registered voter of Los Angeles, but a
registered voter of a locality here.
MR. MONSOD.
That is right. He does not have to come home to the Philippines to
comply with the registration procedure here.
FR. BERNAS.
So, he does not have to come home.
MR. BENGZON.
Madam President, the Floor Leader wishes to inquire if there are more
clarifications needed from the body.
Also, the Floor Leader is happy to announce that there are no more
registered Commissioners to propose amendments. So I move that we
close the period of amendments. 36 (Emphasis supplied)
It is clear from these discussions of the members of the Constitutional
Commission that they intended to enfranchise as much as possible all
Filipino citizens abroad who have not abandoned their domicile of
origin. The Commission even intended to extend to young Filipinos
who reach voting age abroad whose parents’ domicile of origin is in the
Philippines, and consider them qualified as voters for the first time.
It is in pursuance of that intention that the Commission provided for
Section 2 immediately after the residency requirement of Section 1. By
the doctrine of necessary implication in statutory construction, which
may be applied in construing constitutional provisions, 37 the strategic
location of Section 2 indicates that the Constitutional Commission
provided for an exception to the actual residency requirement of
Section 1 with respect to qualified Filipinos abroad. The same
Commission has in effect declared that qualified Filipinos who are not
in the Philippines may be allowed to vote even though they do not
satisfy the residency requirement in Section 1, Article V of the
Constitution.
That Section 2 of Article V of the Constitution is an exception to the
residency requirement found in Section 1 of the same Article was in
fact the subject of debate when Senate Bill No. 2104, which became
R.A. No. 9189, was deliberated upon on the Senate floor,
thus:chanrob1es virtual 1aw library
Senator Arroyo.
Mr. President, this bill should be looked into in relation to the
constitutional provisions. I think the sponsor and I would agree that the
Constitution is supreme in any statute that we may enact.
Let me read Section 1, Article V, of the Constitution entitled, “Suffrage.”
It says:chanrob1es virtual 1aw library
Section 1. Suffrage may be exercised by all citizens of the Philippines
not otherwise disqualified by law, who are at least eighteen years of
age, and who shall have resided in the Philippines for at least one year
and in the place wherein they propose to vote for at least six months
immediately preceding the election.
Now, Mr. President, the Constitution says, "who shall have resided in
the Philippines." They are permanent immigrants. They have changed
residence so they are barred under the Constitution. This is why I
asked whether this committee amendment which in fact does not alter
the original text of the bill will have any effect on this?
Senator Angara.
Good question, Mr. President. And this has been asked in various fora.
This is in compliance with the Constitution. One, the interpretation here
of "residence" is synonymous with "domicile."cralaw virtua1aw library
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."cralaw virtua1aw library
The key to this whole exercise, Mr. President, is “qualified.” In other
words, anything that we may do or say in granting our compatriots
abroad must be anchored on the proposition that they are qualified.
Absent the qualification, they cannot vote. And “residents” (sic) is a
qualification.
I will lose votes here from permanent residents so-called "green-card
holders", but the Constitution is the Constitution. We cannot
compromise on this. The Senate cannot be a party to something that
would affect or impair the Constitution.
Look at what the Constitution says — "In the place wherein they
propose to vote for at least six months immediately preceding the
election."cralaw virtua1aw library
Mr. President, all of us here have run (sic) for office.
I live in Makati. My neighbor is Pateros where Senator Cayetano lives.
We are separated only by a creek. But one who votes in Makati cannot
vote in Pateros unless he resides in Pateros for six months. That is
how restrictive our Constitution is. I am not talking even about the
Election Code. I am talking about the Constitution.
As I have said, if a voter in Makati would want to vote in Pateros, yes,
he may do so. But he must do so, make the transfer six months before
the election, otherwise, he is not qualified to vote.
That is why I am raising this point because I think we have a
fundamental difference here.
Senator Angara.
It is a good point to raise, Mr. President. But it is a point already well-
debated even in the constitutional commission of 1986. And the reason
Section 2 of Article V was placed immediately after the six-month/one-
year residency requirement is to demonstrate unmistakably that
Section 2 which authorizes absentee voting is an exception to the 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 —
and I think this is so well-entrenched that one need not argue about it
— "residency" has been interpreted as synonymous with
"domicile."cralaw virtua1aw library
But the third more practical reason, Mr. President, is, if we follow the
interpretation of the gentleman, then it is legally and constitutionally
impossible to give a franchise to vote to overseas Filipinos who do not
physically live in the country, which is quite ridiculous because that is
exactly the whole point of this exercise — to enfranchise them and
empower them to vote. 38 (Emphasis supplied)
Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of
the absentee voting process, to wit:chanrob1es virtual 1aw library
SEC. 4. Coverage. — All citizens of the Philippines abroad, who are
not otherwise disqualified by law, at least eighteen (18) years of age on
the day of elections, may vote for president, vice-president, senators
and party-list representatives.
which does not require physical residency in the Philippines; and
Section 5 of the assailed law which enumerates those who are
disqualified, to wit:chanrob1es virtual 1aw library
SEC. 5. Disqualifications. — The following shall be disqualified from
voting under this Act:chanrob1es virtual 1aw library
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 committed and are convicted in a final judgment by
a court or tribunal of an offense punishable by imprisonment of not less
than one (1) year, including those who have committed and been
found guilty of Disloyalty as defined under Article 137 of the Revised
Penal Code, such disability not having been removed by plenary
pardon or amnesty: Provided, however, That any person disqualified to
vote under this subsection shall automatically acquire the right to vote
upon expiration of five (5) years after service of sentence; Provided,
further, That the Commission may take cognizance of final judgments
issued by foreign courts or tribunals only on the basis of reciprocity and
subject to the formalities and processes prescribed by the Rules of
Court on execution of judgments;
d) An immigrant or a permanent resident who is recognized as such in
the host country, unless he/she executes, upon registration, an
affidavit prepared for the purpose by the Commission declaring that
he/she shall resume actual physical permanent residence in the
Philippines not later than three (3) years from approval of his/her
registration under this Act. Such affidavit shall also state that he/she
has not applied for citizenship in another country. Failure to return shall
be cause for the removal of the name of the immigrant or permanent
resident from the National Registry of Absentee Voters and his/her
permanent disqualification to vote in absentia.
e) Any citizen of the Philippines abroad previously declared insane or
incompetent by competent authority in the Philippines or abroad, as
verified by the Philippine embassies, consulates or foreign service
establishments concerned, unless such competent authority
subsequently certifies that such person is no longer insane or
incompetent.
As finally approved into law, Section 5(d) of R.A. No. 9189 specifically
disqualifies an immigrant or permanent resident who is "recognized as
such in the host country" because immigration or permanent residence
in another country implies renunciation of 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 "all citizens of the Philippines not otherwise
disqualified by law" must be entitled to exercise the right of suffrage
and, that Congress must establish a system for absentee voting; for
otherwise, if actual, physical residence in the Philippines is required,
there is no sense for the framers of the Constitution to mandate
Congress to establish a system for absentee voting.chanrob1es virtua1
1aw 1ibrary
Contrary to the claim of petitioner, the execution of the affidavit itself is
not the enabling or enfranchising act. The affidavit required in Section
5(d) is not only proof of the intention of the immigrant or permanent
resident to go back and resume residency in the Philippines, but more
significantly, it serves as an explicit expression that he had not in fact
abandoned his domicile of origin. Thus, it is not correct to say that the
execution of the affidavit under Section 5(d) violates the Constitution
that proscribes "provisional registration or a promise by a voter to
perform a condition to be qualified to vote in a political exercise."cralaw
virtua1aw library
To repeat, the affidavit is required of immigrants and permanent
residents abroad because by their status in their host countries, they
are presumed to have relinquished their intent to return to this country;
thus, without the affidavit, the presumption of abandonment of
Philippine domicile shall remain.
Further perusal of the transcripts of the Senate proceedings discloses
another reason why the Senate required the execution of said affidavit.
It wanted the affiant to exercise the option to return or to express his
intention to return to his domicile of origin and not to preempt that
choice by legislation. Thus:chanrob1es virtual 1aw library
Senator Villar.
Yes, we are going back.
It states that: "For Filipino immigrants and those who have acquired
permanent resident status abroad," a requirement for the registration is
the submission of "a Sworn Declaration of Intent to Return duly sworn
before any Philippine embassy or consulate official authorized to
administer oath. . ."cralaw virtua1aw library
Mr. President, may we know the rationale of this provision? Is the
purpose of this Sworn Declaration to include only those who have the
intention of returning to be qualified to exercise the right of suffrage?
What if the Filipino immigrant has no purpose of returning? Is he
automatically disbarred from exercising this right to suffrage?
Senator Angara.
The rationale for this, Mr. President, is that we want to be expansive
and all-inclusive in this law. That as long as he is a Filipino, no matter
whether he is a green-card holder in the U.S. or not, he will be
authorized to vote. But if he is already a green-card holder, that means
he has acquired permanent residency in the United States, then he
must indicate an intention to return. This is what makes for the
definition of "domicile." And to acquire the vote, we thought that we
would require the immigrants and the green-card holders . . . Mr.
President, the three administration senators are leaving, maybe we
may ask for a vote [Laughter].
Senator Villar.
For a merienda, Mr. President.
Senator Angara.
Mr. President, going back to the business at hand. The rationale for the
requirement that an immigrant or a green-card holder should file an
affidavit that he will go back to the Philippines is that, if he is already an
immigrant or a green-card holder, that means he may not return to the
country any more and that contradicts the definition of "domicile" under
the law.
But what we are trying to do here, Mr. President, is really provide the
choice to the voter. The voter, after consulting his lawyer or after
deliberation within the family, may decide “No, I think we are risking
our permanent status in the United States if we file an affidavit that we
want to go back." But we want to give him the opportunity to make that
decision. We do not want to make that decision for him. 39 (Emphasis
supplied)
The jurisprudential declaration in Caasi v. Court of Appeals that green
card holders are disqualified to run for any elective office finds no
application to the present case because the Caasi case did not, for
obvious reasons, consider the absentee voting rights of Filipinos who
are immigrants and permanent residents in their host countries.
In the advent of The Overseas Absentee Voting Act of 2003 or R.A.
9189, they may still be considered as a "qualified citizen of the
Philippines abroad" upon fulfillment of the requirements of registration
under the new law for the purpose of exercising their right of suffrage.
It must be emphasized that Section 5(d) does not only require an
affidavit or a promise to "resume actual physical permanent residence
in the Philippines not later than three years from approval of his/her
registration," the Filipinos abroad must also declare that they have not
applied for citizenship in another country. Thus, they must return to the
Philippines; otherwise, their failure to return "shall be cause for the
removal" of their names "from the National Registry of Absentee
Voters and his/her permanent disqualification to vote in
absentia."cralaw virtua1aw library
Thus, Congress crafted a process of registration by which a Filipino
voter permanently residing abroad who is at least eighteen years old,
not otherwise disqualified by law, who has not relinquished Philippine
citizenship and who has not actually abandoned his/her intentions to
return to his/her domicile of origin, the Philippines, is allowed to
register and vote in the Philippine embassy, consulate or other foreign
service establishments of the place which has jurisdiction over the
country where he/she has indicated his/her address for purposes of the
elections, while providing for safeguards to a clean election.
Thus, Section 11 of R.A. No. 9189 provides:chanrob1es virtual 1aw
library
SEC. 11. Procedure for Application to Vote in Absentia. —
11.1. Every qualified citizen of the Philippines abroad whose
application for registration has been approved, including those
previously registered under Republic Act No. 8189, shall, in every
national election, file with the officer of the embassy, consulate or other
foreign service establishment authorized by the Commission, a sworn
written application to vote in a form prescribed by the Commission. The
authorized officer of such embassy, consulate or other foreign service
establishment shall transmit to the Commission the said application to
vote within five (5) days from receipt thereof. The application form shall
be accomplished in triplicate and submitted together with the
photocopy of his/her overseas absentee voter certificate of registration.
11.2. Every application to vote in absentia may be done personally at,
or by mail to, the embassy, consulate or foreign service establishment,
which has jurisdiction over the country where he/she has indicated
his/her address for purposes of the elections.
11.3. Consular and diplomatic services rendered in connection with the
overseas absentee voting processes shall be made available at no
cost to the overseas absentee voter.
Contrary to petitioner’s claim that Section 5(d) circumvents the
Constitution, Congress enacted the law prescribing a system of
overseas absentee voting in compliance with the constitutional
mandate. Such mandate expressly requires that Congress provide a
system of absentee voting that necessarily presupposes that the
"qualified citizen of the Philippines abroad" is not physically present in
the country. The provisions of Sections 5(d) and 11 are components of
the system of overseas absentee voting established by R.A. No. 9189.
The qualified Filipino abroad who executed the affidavit is deemed to
have retained his domicile in the Philippines. He is presumed not to
have lost his domicile by his physical absence from this country. His
having become an immigrant or permanent resident of his host country
does not necessarily imply an abandonment of his intention to return to
his domicile of origin, the Philippines. Therefore, under the law, he
must be given the opportunity to express that he has not actually
abandoned his domicile in the Philippines by executing the affidavit
required by Sections 5(d) and 8(c) of the law.
Petitioner’s speculative apprehension that the implementation of
Section 5(d) would affect the credibility of the elections is insignificant
as what is important is to ensure that all those who possess the
qualifications to vote on the date of the election are given the
opportunity and permitted to freely do so. The COMELEC and the
Department of Foreign Affairs have enough resources and talents to
ensure the integrity and credibility of any election conducted pursuant
to R.A. No. 9189.
As to the eventuality that the Filipino abroad would renege on his
undertaking to return to the Philippines, the penalty of perpetual
disenfranchisement provided for by Section 5(d) would suffice to serve
as deterrence to non-compliance with his/her undertaking under the
affidavit.
Petitioner argues that should a sizable number of “immigrants” renege
on their promise to return, the result of the elections would be affected
and could even be a ground to contest the proclamation of the winning
candidates and cause further confusion and doubt on the integrity of
the results of the election. Indeed, the probability that after an
immigrant has exercised the right to vote, he shall opt to remain in his
host country beyond the third year from the execution of the affidavit, is
not farfetched. However, it is not for this Court to determine the
wisdom of a legislative exercise. As expressed in Tañada v. Tuvera, 40
the Court is not called upon to rule on the wisdom of the law or to
repeal it or modify it if we find it impractical.
Congress itself was conscious of said probability and in fact, it has
addressed the expected problem. Section 5(d) itself provides for a
deterrence which is that the Filipino who fails to return as promised
stands to lose his right of suffrage. Under Section 9, should a
registered overseas absentee voter fail to vote for two consecutive
national elections, his name may be ordered removed from the
National Registry of Overseas Absentee Voters.
Other serious legal questions that may be raised would be: what
happens to the votes cast by the qualified voters abroad who were not
able to return within three years as promised? What is the effect on the
votes cast by the non-returnees in favor of the winning candidates?
The votes cast by qualified Filipinos abroad who failed to return within
three years shall not be invalidated because they were qualified to vote
on the date of the elections, but their failure to return shall be cause for
the removal of the names of the immigrants or permanent residents
from the National Registry of Absentee Voters and their permanent
disqualification to vote in absentia.
In fine, considering the underlying intent of the Constitution, the Court
does not find Section 5(d) of R.A. No. 9189 as constitutionally
defective.
B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same
Act in contravention of Section 4, Article VII of the Constitution?
Section 4 of R.A. No. 9189 provides that the overseas absentee voter
may vote for president, vice-president, senators and party-list
representatives.
Section 18.5 of the same Act provides:chanrob1es virtual 1aw library
SEC. 18. On-Site Counting and Canvassing. —
x x x
18.5 The canvass of votes shall not cause the delay of the
proclamation of a winning candidate if the outcome of the election will
not be affected by the results thereof. Notwithstanding the foregoing,
the Commission is empowered to order the proclamation of winning
candidates despite the fact that the scheduled election has not taken
place in a particular country or countries, if the holding of elections
therein has been rendered impossible by events, factors and
circumstances peculiar to such country or countries, in which events,
factors and circumstances are beyond the control or influence of the
Commission. (Emphasis supplied)
Petitioner claims that the provision of Section 18.5 of R.A. No. 9189
empowering the COMELEC to order the proclamation of winning
candidates insofar as it affects the canvass of votes and proclamation
of winning candidates for president and vice-president, is
unconstitutional because it violates the following provisions of
paragraph 4, Section 4 of Article VII of the Constitution:chanrob1es
virtual 1aw library
SEC. 4. . . .
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.
The person having the highest number of votes shall be proclaimed
elected, but in case two or more shall have an equal and highest
number of votes, one of them shall forthwith be chosen by the vote of a
majority of all the Members of both Houses of the Congress, voting
separately.
The Congress shall promulgate its rules for the canvassing of the
certificates.
x x x independence of the constitutional commissions such as the
which gives to Congress the duty to canvass the votes and proclaim
the winning candidates for president and vice-president.
The Solicitor General asserts that this provision must be harmonized
with paragraph 4, Section 4, Article VII of the Constitution and should
be taken to mean that COMELEC can only proclaim the winning
Senators and party-list representatives but not the President and Vice-
President. 41
Respondent COMELEC has no comment on the matter.
Indeed, the phrase, proclamation of winning candidates, in Section
18.5 of R.A. No. 9189 is far too sweeping that it necessarily includes
the proclamation of the winning candidates for the presidency and the
vice-presidency.
Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4,
Article VII of the Constitution only insofar as said Section totally
disregarded the authority given to Congress by the Constitution to
proclaim the winning candidates for the positions of president and vice-
president.
In addition, the Court notes that Section 18.4 of the law, to
wit:chanrob1es virtual 1aw library
18.4. . . . Immediately upon the completion of the canvass, the
chairman of the Special Board of Canvassers shall transmit via
facsimile, electronic mail, or any other means of transmission equally
safe and reliable the Certificates of Canvass and the Statements of
Votes to the Commission, . . . [Emphasis supplied]
clashes with paragraph 4, Section 4, Article VII of the Constitution
which provides that the returns of every election for President and
Vice-President shall be certified by the board of canvassers to
Congress.chanrob1es virtua1 1aw 1ibrary
Congress could not have allowed the COMELEC to usurp a power that
constitutionally belongs to it or, as aptly stated by petitioner, to
encroach “on the power of Congress to canvass the votes for president
and vice-president and the power to proclaim the winners for the said
positions.” The provisions of the Constitution as the fundamental law of
the land should be read as part of The Overseas Absentee Voting Act
of 2003 and hence, the canvassing of the votes and the proclamation
of the winning candidates for president and vice-president for the entire
nation must remain in the hands of Congress.
C. Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1,
Article IX-A of the Constitution?
Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate
Article IX-A (Common Provisions) of the Constitution, to
wit:chanrob1es virtual 1aw library
Section 1. The Constitutional Commissions, which shall be
independent, are the Civil Service Commission, the Commission on
Elections, and the Commission on Audit. (Emphasis supplied)
He submits that the creation of the Joint Congressional Oversight
Committee with the power to review, revise, amend and approve the
Implementing Rules and Regulations promulgated by the COMELEC,
R.A. No. 9189 intrudes into the independence of the COMELEC which,
as a constitutional body, is not under the control of either the executive
or legislative departments of government; that only the COMELEC
itself can promulgate rules and regulations which may be changed or
revised only by the majority of its members; and that should the rules
promulgated by the COMELEC violate any law, it is the Court that has
the power to review the same via the petition of any interested party,
including the legislators.
It is only on this question that respondent COMELEC submitted its
Comment. It agrees with the petitioner that Sections 19 and 25 of R.A.
No. 9189 are unconstitutional. Like the petitioner, respondent
COMELEC anchors its claim of unconstitutionality of said Sections
upon Section 1, Article IX-A of the Constitution providing for the
COMELEC. It asserts that its power to formulate rules and regulations
has been upheld in Gallardo v. Tabamo, Jr. 42 where this Court held
that the power of the COMELEC to formulate rules and regulations is
implicit in its power to implement regulations under Section 2(1) of
Article IX-C 43 of the Constitution. COMELEC joins the petitioner in
asserting that as an independent constitutional body, it may not be
subject to interference by any government instrumentality and that only
this Court may review COMELEC rules and only in cases of grave
abuse of discretion.
The COMELEC adds, however, that another provision, vis-à-vis its
rule-making power, to wit:chanrob1es virtual 1aw library
SEC. 17. Voting by Mail. —
17.1. For the May, 2004 elections, the Commission shall authorize
voting by mail in not more than three (3) countries, subject to the
approval of the Congressional Oversight Committee. Voting by mail
may be allowed in countries that satisfy the following
conditions:chanrob1es virtual 1aw library
a) Where the mailing system is fairly well-developed and secure to
prevent occasion for fraud;
b) Where there exists a technically established identification system
that would preclude multiple or proxy voting; and
c) Where the system of reception and custody of mailed ballots in the
embassies, consulates and other foreign service establishments
concerned are adequate and well-secured.
Thereafter, voting by mail in any country shall be allowed only upon
review and approval of the Joint Congressional Oversight Committee.
. . . (Emphasis supplied)
is likewise unconstitutional as it violates Section 1, Article IX-A
mandating the independence of constitutional commissions.
The Solicitor General takes exception to his prefatory statement that
the constitutional challenge must fail and agrees with the petitioner that
Sections 19 and 25 are invalid and unconstitutional on the ground that
there is nothing in Article VI of the Constitution on Legislative
Department that would as much as imply that Congress has concurrent
power to enforce and administer election laws with the COMELEC; and
by the principles of exclusio unius est exclusio alterius and expressum
facit cessare tacitum, the constitutionally enumerated powers of
Congress circumscribe its authority to the exclusion of all others.
The parties are unanimous in claiming that Sections 19, 25 and
portions of Section 17.1 are unconstitutional. Thus, there is no actual
issue forged on this question raised by petitioner.
However, the Court finds it expedient to expound on the role of
Congress through the Joint Congressional Oversight Committee
(JCOC) vis-à-vis the independence of the COMELEC, as a
constitutional body.
R.A. No. 9189 created the JCOC, as follows:chanrob1es virtual 1aw
library
SEC. 25. Joint Congressional Oversight Committee. — A Joint
Congressional Oversight Committee is hereby created, composed of
the Chairman of the Senate Committee on Constitutional
Amendments, Revision of Codes and Laws, and seven (7) other
Senators designated by the Senate President, and the Chairman of the
House Committee on Suffrage and Electoral Reforms, and seven (7)
other Members of the House of Representatives designated by the
Speaker of the House of Representatives: Provided, That, of the seven
(7) members to be designated by each House of Congress, four (4)
should come from the majority and the remaining three (3) from the
minority.
The Joint Congressional Oversight Committee shall have the power to
monitor and evaluate the implementation of this Act. It shall review,
revise, amend and approve the Implementing Rules and Regulations
promulgated by the Commission. (Emphasis supplied)
SEC. 19. Authority of the Commission to Promulgate Rules. — The
Commission shall issue the necessary rules and regulations to
effectively implement the provisions of this Act within sixty (60) days
from the effectivity of this Act. The Implementing Rules and
Regulations shall be submitted to the Joint Congressional Oversight
Committee created by virtue of this Act for prior approval.
. . . (Emphasis supplied)
Composed of Senators and Members of the House of Representatives,
the Joint Congressional Oversight Committee (JCOC) is a purely
legislative body. There is no question that the authority of Congress to
"monitor and evaluate the implementation" of R.A. No. 9189 is geared
towards possible amendments or revision of the law itself and thus,
may be performed in aid of its legislation.
However, aside from its monitoring and evaluation functions, R.A. No.
9189 gives to the JCOC the following functions: (a) to "review, revise,
amend and approve the Implementing Rules and Regulations" (IRR)
promulgated by the COMELEC [Sections 25 and 19]; and (b) subject to
the approval of the JCOC [Section 17.1], the voting by mail in not more
than three countries for the May 2004 elections and in any country
determined by COMELEC.
The ambit of legislative power under Article VI of the Constitution is
circumscribed by other constitutional provisions. One such provision is
Section 1 of Article IX-A of the 1987 Constitution ordaining that
constitutional commissions such as the COMELEC shall be
"independent."cralaw virtua1aw library
Interpreting Section 1, Article X of the 1935 Constitution providing that
there shall be an independent COMELEC, the Court has held that"
[w]hatever may be the nature of the functions of the Commission on
Elections, the fact is that the framers of the Constitution wanted it to be
independent from the other departments of the Government." 44 In an
earlier case, the Court elucidated:chanrob1es virtual 1aw library
The Commission on Elections is a constitutional body. It is intended to
play a distinct and important part in our scheme of government. In the
discharge of its functions, it should not be hampered with restrictions
that would be fully warranted in the case of a less responsible
organization. The Commission may err, so may this court also. It
should be allowed considerable latitude in devising means and
methods that will insure the accomplishment of the great objective for
which it was created — free, orderly and honest elections. We may not
agree fully with its choice of means, but unless these are clearly illegal
or constitute gross abuse of discretion, this court should not interfere.
Politics is a practical matter, and political questions must be dealt with
realistically – not from the standpoint of pure theory. The Commission
on Elections, because of its 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. 45 (Emphasis supplied)
The Court has no general powers of supervision over COMELEC
which is an independent body “except those specifically granted by the
Constitution,” that is, to review its decisions, orders and rulings. 46 In
the same vein, it is not correct to hold that because of its recognized
extensive legislative power to enact election laws, Congress may
intrude into the independence of the COMELEC by exercising
supervisory powers over its rule-making authority.
By virtue of Section 19 of R.A. No. 9189, Congress has empowered
the COMELEC to "issue the necessary rules and regulations to
effectively implement the provisions of this Act within sixty days from
the effectivity of this Act." This provision of law follows the usual
procedure in drafting rules and regulations to implement a law – the
legislature grants an administrative agency the authority to craft the
rules and regulations implementing the law it has enacted, in
recognition of the administrative expertise of that agency in its
particular field of operation. 47 Once a law is enacted and approved,
the legislative function is deemed accomplished and complete. The
legislative function may spring back to Congress relative to the same
law only if that body deems it proper to review, amend and revise the
law, but certainly not to approve, review, revise and amend the IRR of
the COMELEC.
By vesting itself with the powers to approve, review, amend, and revise
the IRR for The Overseas Absentee Voting Act of 2003, Congress
went beyond the scope of its constitutional authority. Congress
trampled upon the constitutional mandate of independence of the
COMELEC. Under such a situation, the Court is left with no option but
to withdraw from its usual reticence in declaring a provision of law
unconstitutional.
The second sentence of the first paragraph of Section 19 stating that"
[t]he Implementing Rules and Regulations shall be submitted to the
Joint Congressional Oversight Committee created by virtue of this Act
for prior approval," and the second sentence of the second paragraph
of Section 25 stating that" [i]t shall review, revise, amend and approve
the Implementing Rules and Regulations promulgated by the
Commission," whereby Congress, in both provisions, arrogates unto
itself a function not specifically vested by the Constitution, should be
stricken out of the subject statute for constitutional infirmity. Both
provisions brazenly violate the mandate on the independence of the
COMELEC.
Similarly, the phrase, "subject to the approval of the Congressional
Oversight Committee" in the first sentence of Section 17.1 which
empowers the Commission to authorize voting by mail in not more than
three countries for the May, 2004 elections; and the phrase, "only upon
review and approval of the Joint Congressional Oversight Committee"
found in the second paragraph of the same section are unconstitutional
as they require review and approval of voting by mail in any country
after the 2004 elections. Congress may not confer upon itself the
authority to approve or disapprove the countries wherein voting by mail
shall be allowed, as determined by the COMELEC pursuant to the
conditions provided for in Section 17.1 of R.A. No. 9189. 48 Otherwise,
Congress would overstep the bounds of its constitutional mandate and
intrude into the independence of the COMELEC.
During the deliberations, all the members of the Court agreed to adopt
the separate opinion of Justice Reynato S. Puno as part of the
ponencia on the unconstitutionality of Sections 17.1, 19 and 25 of R.A.
No. 9189 insofar as they relate to the creation of and the powers given
to the Joint Congressional Oversight Committee.
WHEREFORE, the petition is partly GRANTED. The following portions
of R.A. No. 9189 are declared VOID for being
UNCONSTITUTIONAL:chanrob1es virtual 1aw library
a) The phrase in the first sentence of the first paragraph of Section
17.1, to wit: "subject to the approval of the Joint Congressional
Oversight Committee;"
b) The portion of the last paragraph of Section 17.1, to wit: “only upon
review and approval of the Joint Congressional Oversight Committee;”
c) The second sentence of the first paragraph of Section 19, to wit:
"The Implementing Rules and Regulations shall be submitted to the
Joint Congressional Oversight Committee created by virtue of this Act
for prior approval;" and

d) The second sentence in the second paragraph of Section 25, to wit:

"It shall review, revise, amend and approve the Implementing Rules
and Regulations promulgated by the Commission" of the same law;

for being repugnant to Section 1, Article IX-A of the Constitution

mandating the independence of constitutional commission, such as
COMELEC.

The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with

respect only to the authority given to the COMELEC to proclaim the
winning candidates for the Senators and party-list representatives but
not as to the power to canvass the votes and proclaim the winning
candidates for President and Vice-President which is lodged with
Congress under Section 4, Article VII of the Constitution.

The constitutionality of Section 5(d) is UPHELD.

Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of

said law continues to be in full force and effect.chanrob1es virtua1 1aw
1ibrary

SO ORDERED.
 EN BANC
G.R. No. L-42300 January 31, 1936
THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee,
vs.AMADEO CORRAL, Defendant-Appellant.
Generoso, Pelayo, Castillo, Braganza, Chavez, Doromal, Diaz and
Capili for appellant.
Office of the Solicitor General Hilado for appellee.
ABAD SANTOS, J.: chanrobles virtual law library
Appellant was charged having voted illegally at the general elections
held on June 5, 1934. After due trial, he was convicted on the ground
that he had voted while laboring under a legal disqualification. The
judgment of conviction was based on section 2642, in connection with
section 432. of the Revised Administrative
Code.chanroblesvirtualawlibrary chanrobles virtual law library
Said Section 432 reads as follows:
The following persons shall be disqualified from voting:chanrobles
virtual law library
(a) Any person who, since the thirteenth day of August, eighteen
hundred and ninety-eight, has been sentenced by final judgment to
suffer not less than eighteen months of imprisonment, such disability
not having been removed by plenary
pardon.chanroblesvirtualawlibrary chanrobles virtual law library
(b) Any person who has violated an oath of allegiance taken by him to
the United States.chanroblesvirtualawlibrary chanrobles virtual law
library
(c) Insane of feeble-minded
persons.chanroblesvirtualawlibrary chanrobles virtual law library
(d) Deaf-mutes who cannot read and
write.chanroblesvirtualawlibrary chanrobles virtual law library
(e) Electors registered under subsection (c) of the next proceeding
section who, after failing to make sworn statement to the satisfaction of
the board of inspectors at any of its two meetings for registration and
revision, that they are incapacitated for preparing their ballots due to
permanent physical disability, present themselves at the hour of voting
as incapacitated, irrespective of whether such incapacity be real or
feigned.
And section 2642 provides:
Whoever at any election votes or attempts to vote knowing that he is
not entitled so to do, ... shall be punished by imprisonment for not less
than one month nor more than one year and by a fine of not less than
one hundred pesos nor more than one thousand pesos, and in all
cases by deprivation of the right of suffrage and disqualification from
public office for a period of not more than four years.
It is undisputed that appellant was sentenced by final judgment of this
court promulgated on March 3, 1910, 1 to suffer eight years and one
day of presidio mayor. No evidence was presented to show that prior
to June 5, 1934, he had been granted a plenary pardon. It is likewise
undisputed that at the general elections held on June 5, 1934, the
voted in election precinct No. 18 of the municipality of Davao, Province
of Davao.chanroblesvirtualawlibrary chanrobles virtual law library
The modern conception of the suffrage is that voting is a function of
government. The right to vote is not a natural right but is a right created
by law. Suffrage is a privilege granted by the State to such persons or
classes as are most likely to exercise it for the public good. In the early
stages of the evolution of the representative system of government, the
exercise of the right of suffrage was limited to a small portion of the
inhabitants. But with the spread of democratic ideas, the enjoyment of
the franchise in the modern states has come to embrace the mass of
the audit classes of persons are excluded from the franchise. Among
the the generally excluded classes are minors idiots, paupers, and
convicts.chanroblesvirtualawlibrary chanrobles virtual law library
The right of the State to deprive persons to the right of suffrage by
reason of their having been convicted of crime, is beyond question.
"The manifest purpose of such restrictions upon this right is to preserve
the purity of elections. The presumption is that one rendered infamous
by conviction of felony, or other base offense indicative of moral
turpitude, is unfit to exercise the privilege of suffrage or to hold office.
The exclusion must for this reason be adjudged a mere
disqualification, imposed for protection and not for punishment, the
withholding of a privilege and not the denial of a personal right. (9
R.C.L., 1042.)chanrobles virtual law library
Upon the facts established in this case, it seems clear that the
appellant was not entitled to vote on June 5 1934, because of section
432 of the Revised Administrative Code which disqualified from voting
any person who, since the 13th day of August, 1898, had been
sentenced by final judgment to offer not less than eighteen months of
imprisonment, such disability not having been removed by plenary
pardon. As above stated, the appellant had been sentenced by final
judgment to suffer eight years and one day of presidio mayor, and had
not been granted a plenary
pardon.chanroblesvirtualawlibrary chanrobles virtual law library
Counsel for the appellant contend that inasmuch as the latter voted in
1928 his offense had already prescribed, and he could no longer be
prosecuted for illegal voting at the general election held on June 5,
1934. This contention is clearly without merit. The disqualification for
crime imposed under section 432 of the Revised Administrative Code
having once attached on the appellant and not having been
subsequently removed by a plenary pardon, continued and rendered it
illegal for the appellant to vote at the general elections of
1934.chanroblesvirtualawlibrary chanrobles virtual law library
Neither is there any merit in the contention advanced by counsel for
the appellant that the disqualification imposed on the latter must be
considered as having been removed at the expiration of his sentence.
This claim is based upon an erroneous theory of the nature of the
disqualification. It regards it as a punishment when, as already
indicated, the correct view is that it is imposed, "for protection and not
for punishment,. the withholding of a prvilege and not the denial of a
personal right." Judicial interpretation and long established
administrative practice are against such a
view.chanroblesvirtualawlibrary chanrobles virtual law library
The judgment appealed from is affirmed with costs against the
appellant. So ordered.
Villa-Real, Vickers, Imperial, Butte, and Goddard, JJ., concur.
Separate Opinions
AVANCE� A, C.J., dissenting:chanrobles virtual law library
The appealed judgment affirmed by the majority members of this court
sentences the appellant for having voted in the general election held
on June 5, 1934, in the municipality of Davao, Province of Davao,
being disqualified from voting. The appellant, in my opinion, was not
disqualified from voting.chanroblesvirtualawlibrary chanrobles virtual
law library
The appellant was sentenced to the penalty of eight years and one day I am of the opinion that this anomaly can be avoided only by
of prision mayor in the year 1910. This penalty carried with it, as an interpreting section 432 in the sense that the disqualification referred to
accessory, disqualification from the right of suffrage during the term of therein is merely during the term of the sentence.
the sentence. He began to serve his sentence on April 11, 1910. He
was granted a conditional pardon on July 31, 1913. Inasmuch as the
RECTO, J.: chanrobles virtual law library
accessory penalty of disqualification from the right of suffrage was not
expressly remitted in this pardon, it is understood that he complied with
and extinguished this part of the sentence on April 12, 1918. I concur in this dissenting opinion of Chief Justice
Therefore, under the penalty imposed upon the appellant, he was not Avance� a.chanroblesvirtualawlibrary chanrobles virtual law library
disqualified from voting in 1934.chanroblesvirtualawlibrary chanrobles
virtual law library
I hereby certify that Hon. George A. Malcolm, Associate Justice,
participated in this decision and voted to affirm the judgment. -
The majority, however bases its decision on section 432 of the
administrative Code which reads: AVANCE� A, C.J.

The following persons shall be disqualified from voting:chanrobles Endnotes:

virtual law library

(a) Any person who, since the thirteenth day of August, eighteen
hundred and ninety-eight, has been sentenced by final judgment to
suffer not less than eighteen months of imprisonment, such disability
not having been removed by plenary pardon.

The language of the law is not clear whether the disqualification

referred to therein is only for the term of the sentence or for the entire
life time of the convict. The majority however, interprets this provision
in the latter sense to which I do not agree, it being contrary to the spirit
thereof.chanroblesvirtualawlibrary chanrobles virtual law library

If the interpretation of the majority were correct, section 432 of the

Administrative Code would not harmonize with the latter provisions
thereof (secs. 2636, 2637, 2639, 2640, 2641, 2642, 2643, 2644, 2645,
2646, 2647, 2649, 2652, 2654, 2656, 2657, 2658 and 2659) on
offenses relative to elections and elective officers, imposing the
penalties of imprisonment and disqualification from the right of suffrage
for a period not exceeding five and fourteen years, respectively.
Supposing that in one of said cases, for instance that of an election
inspector who willfully signs a false statement of the result of a ballot
(sec. 2639), the penalty of imprisonment for more than eighteen
months is imposed upon him could be disqualified from voting during
his entire lifetime, in accordance with section 432, if the interpretation
of the majority is correct, and it would be to no purpose still to sentence
him to him to the penalty of disqualification from the right of suffrage for
a period not exceeding fourteen
years.chanroblesvirtualawlibrary chanrobles virtual law library

It cannot be said to harmonize these provisions, that the

disqualification from the right of suffrage should be imposed only when
the penalty of imprisonment imposed therein less than eighteen
months because it is expressly required that both penalties be imposed
in all cases.chanroblesvirtualawlibrary chanrobles virtual law library

Neither can it be said that section 432 governs all cases, in general,
and sections 2336 et seq. govern the specific cases referred to therein,
because there would be no justice in the law. One may be sentenced
to more than eighteen months of imprisonment for having committed
the crime of serious physical injuries, for instance, through reckless
negligence or in self-defense, but without having used the means
reasonably necessary therefor, and according to the majority opinion
he will be disqualified from voting during his entire who, abusing his
position, willfully commits a falsehood in connection with a ballot
entrusted to him, after serving his sentence which does not exceed
fourteen years, will again be qualified to vote. This cannot be the result
countenanced by the law. If the law in more serious cases wherein an
attempt is made directly against the cleanliness of the election, not
disqualifies the guilty party from the right of suffrage for a period not
exceeding fourteen years, it cannot be supposed that its intention is to
forever disqualify therefrom the party guilty of a crime which bears no
relation to the exercise of suffrage and which does not involve the
degree of moral turpitude as in the other
case.chanroblesvirtualawlibrary chanrobles virtual law library