G.R. No. 161265             February 24, 2004

LABAN NG DEMOKRATIKONG PILIPINO, represented by its Chairman EDGARDO J. ANGARA vs.THE COMMISION ON ELECTIONS and AGAPITO A. AQUINO

D E C I S I O N

TINGA, J.:

The Bible tells the story of how two women came to King Solomon to decide who among them is the baby’s true mother. King Solomon, in his legendary wisdom, awarded the baby to the woman who gave up her claim after he threatened to split the baby into two.

It is fortunate that the two women did not ask the Commission on Elections (COMELEC) to decide the baby’s fate; otherwise, it would have cut the baby in half. For that is what the COMELEC exactly did in this case.

On December 8, 2003, the General Counsel of the Laban ng Demokratikong Pilipino (LDP), a registered political party, informed the COMELEC by way of Manifestation that only the Party Chairman, Senator Edgardo J. Angara, or his authorized representative may endorse the certificate of candidacy of the party’s official candidates. The same Manifestation stated that Sen. Angara had placed the LDP Secretary General, Representative Agapito A. Aquino, on "indefinite forced leave." In the meantime, Ambassador Enrique A. Zaldivar was designated Acting Secretary General. The Manifestation concluded with this prayer:

A. The Honorable Commission recognizes [sic] only those Certificates of Candidacy to which are attached Certificates of Nomination executed by LDP Party Chairman Edgardo J. Angara or by such other officers of the LDP whom he may authorize in writing, and whose written authorizations shall be deposited with the Honorable Commission by the LDP General Counsel.

B. The Honorable Commission declares [sic] as a nullity, denies [sic] due course or cancels [sic] all Certificates of Candidacy not endorsed by LDP Party Chairman Angara or by such other LDP officials as may be authorized by him.

C. The Honorable Commission takes [sic] note of the designation of Ambassador Enrique "Ike" A. Zaldivar as Acting Secretary General of the LDP, and for the Honorable Commission to honor and recognize the official acts, to the exclusion of everyone, of Ambassador Zaldivar for and in behalf of the LDP as Secretary General.1

On December 16, 2003, Rep. Aquino filed his Comment, contending that the Party Chairman does not have the authority to impose disciplinary sanctions on the Secretary General. As the Manifestation filed by the LDP General Counsel has no basis, Rep. Aquino asked the COMELEC to disregard the same.

On December 17, 2003, the parties agreed to file a joint manifestation pending which the proceedings were deemed suspended. On December 22, 2003, however, only the LDP General Counsel filed an Urgent Manifestation reiterating the contents of the December 8, 2003 Manifestation. The COMELEC also received aLetter from Rep. Aquino stating that the parties were unable to arrive at a joint manifestation.

The next day, the LDP General Counsel filed a Second Urgent Manifestation disputing newspaper accounts that Rep. Aquino had suspended Sen. Angara as Party Chairman.

On December 26, 2003, the COMELEC issued an Order requiring the parties to file a verified petition. It turned out that, two days before, Sen. Angara had submitted a verified Petition, in essence, reiterating the contents of its previous Manifestations. Attached to the Petition was a Resolution2 adopted by the LDP National Executive Council, stating:

WHEREAS, on September 25, 2003, the National Executive Council of the Laban ng Demokratikong Pilipino (LDP) convened and unanimously passed a resolution granting full authority to Party Chairman Edgardo J. Angara to enter, negotiate and conclude a coalition agreement with other like-minded opposition parties, aggrupations and interest groups with the sole purpose of uniting the political opposition and fielding a unity ticket for the May 10, 2004 elections;

WHEREAS, on December 3, 2003, the LDP, together with the Puwersa ng Masang Pilipino (PMP) and the Partido Demokratiko ng Pilipinas - LABAN (PDP-LABAN) forged a coalition to form the Koalisyon ng Nagkakaisang Pilipino(KNP);

WHEREAS, the Executive Committee of the KNP subsequently adopted its resolution entitled: "Resolution Choosing Mr. Fernando Poe, Jr. as the Standard Bearer of the Koalisyon ng Nagkakaisang Pilipino (KNP) for President of the Republic of the Philippines in the May 10, 2004 National Elections";

. . . .

WHEREAS, the process of unification of the political opposition and the actions taken in connection therewith by Chairman Angara and by other governing bodies of the LDP required the taking of immediate and forceful action by them to preserve and protect the integrity, credibility, unity and solidarity of the LDP, and ensure the attainment of unification of the political opposition;

WHEREAS, such immediate and forceful action include those that have to do with pre-emptive efforts to diffuse the chaos, confusion and disunity projected by the pronouncements and acts of some officers and members to the general membership of the LDP and the electorate, such as the one taken by the Regional Committee for Region VI (Western Visayas) on December 6, 2003; the enforcement of order in the LDP through the voice of a central leadership in command in an otherwise extraordinary and emergency situation, such as the one taken by Party Chairman Angara on December 6, 2003; the filing of the Manifestation with the COMELEC on the matter of the authorized signatories for the nominations and, the adoption of resolutions by the regional committees affirming their trust and confidence in Chairman Angara, and authorizing him to choose the presidential standard bearer for the May 10, 2004 elections; NOW THEREFORE, BE IT

RESOLVED, AS IT IS HEREBY RESOLVED, By the National Executive Council, to ratify and confirm the Covenant of National Unity, the Declaration of Unity entered into by Party Chairman Edgardo J. Angara, and all acts and decisions taken by him to enforce and implement the same;

RESOLVED, FURTHER, To ratify and confirm all other acts and decisions of Chairman Angara and other governing bodies to preserve the integrity, credibility, unity and solidarity of the LDP; and,

RESOLVED, FINALLY, To reiterate the vote of confidence of the National Executive Council in, and support to, the continued efforts of Chairman Angara to unite the political opposition.3

Rep. Aquino filed his Answer to the Petition on December 30, 2003. The COMELEC heard the parties on oral arguments on the same day, after which the case was submitted for resolution.

Pending resolution, a Certificate of Nomination of Sen. Panfilo Lacson as LDP candidate for President was filed with the COMELEC. The Certificate of Nomination was signed by Rep. Aquino as LDP Secretary General.

On January 6, 2004, the COMELEC came to a decision.

The Commission identified the sole issue as "who among the [LDP] officers [are] authorized to authenticate before the Commission that the person filing the certificate of candidacy as party nominee for a certain position is the official candidate of the party chosen in accordance with its Constitution."4

The COMELEC recognized that it "has the authority to act on matters pertaining to ‘the ascertainment of the identity of [a] political party and its legitimate officers….’"5 In the same breath, however, it held that "internal party matters and wranglings [sic] are purely for the party members to settle among themselves and any unsettled controversy should be brought to the proper forum with jurisdiction." The "question of who was suspended by whom" was thus left for such proper forum to resolve.6 Noting that "the intramurals in the LDP as an internal party matter seems to be irreconcilable for the present when the filing of Certificate of Candidacy and Certificate of Nomination are about to reach the deadline," the COMELEC disposed of the Petition in the following fashion:

WHEREFORE, premises considered, the petition is GRANTED with LEGAL EQUITY for both Petitioner and Oppositor. The candidates for President down to the last Sangguniang Bayan Kagawad nominated and endorsed by LDP Chairman Edgardo J. Angara are recognized by the Commission as official candidates of LDP "Angara Wing". The candidates from President down to the last Sangguniang Bayan Kagawad as nominated and endorsed by LDP Secretary General Agapito "Butz" Aquino are recognized as official candidates of LDP "Aquino Wing".

Consequently, each faction or "Wing" is entitled to a representative to any election committee to which it may be entitled as created by the Commission for the May 10, 2004 elections. For the copies of the election returns, the "Angara Wing" will be entitled to the copies corresponding to odd number of precincts, that is, Precinct Nos. 1, 3, 5, etc., and for the "Aquino Wing" to the even number of precincts, that is Precinct Nos. 2, 4, 6, etc. This is on the assumption that the LDP or as a party within a registered Political Coalition becomes a recognized and denominated as a Dormant [sic] Minority Party under the Election Laws. The two LDP "Wings" are further entitled to and be accorded the rights and privileges with corresponding legal obligations under Election Laws.7

Commissioners Luzviminda G. Tancangco, Ralph C. Lantion, Resurreccion Z. Borra and Florentino A. Tuason, Jr. concurred in the Resolution authored by Commissioner Rufino S.B. Javier. Chair Benjamin S. Abalos, Sr., joined by Commissioner Mehol K. Sadain, submitted dissenting opinions.

Sen. Angara thus filed the present petition for Certiorari8 assailing the COMELEC Resolution for having been issued with grave abuse of discretion.

Thereafter, Rep. Aquino filed his Comment.

The Office of the Solicitor General submitted a Manifestation and Motion praying for the granting of the Petition. The COMELEC thus filed a separate Comment  to the Petition.

The COMELEC correctly stated that "the ascertainment of the identity of [a] political party and its legitimate officers" is a matter that is well within its authority. The source of this authority is no other than the fundamental law itself, which vests upon the COMELEC the power and function to enforce and administer all laws and regulations relative to the conduct of an election.9 In the exercise of such power and in the discharge of such function, the Commission is endowed with ample "wherewithal" and "considerable latitude in adopting means and methods that will ensure the accomplishment of the great objectives for which it was created to promote free, orderly and honest elections."10

Thus, in Kalaw v. Commission on Elections which involved the leadership fight in the Liberal Party, 11 this Court held:

… that the respondent [COMELEC] has jurisdiction to hear and decide SP Case No. 85-021 [involving a petition to prohibit Eva Estrada Kalaw "from usurping or using the title or position of President of the Liberal Party"] in view of its powers under Article IX-C, Section 2, of the Constitution to, among others, enforce and administer all laws relative to the conduct of elections, decide all questions affecting elections, register and regulate political parties, and insure orderly elections. These powers include the determination of the conflicting claims made in SP Case No. 85-021, which are likely to cause confusion among the electorate if not resolved. Additionally, the COMELEC is mandated by the Election Code to inter alia require candidates to specify their political party affiliation in their certificates of candidacy, allow political parties to appoint watchers, limit the expenditures of each political party, determine whether or not a political party shall retain its registration on the basis of its showing in the preceding elections, etc. These matters include the ascertainment of the identity of the political party and its legitimate officers responsible for its acts and the resolution of such controversies as the one now before it where one party appears to be divided into two wings under separate leaders each claiming to be the president of the entire party…. [Emphasis supplied.]

Likewise in Palmares v. Commission on Elections,12 to which the assailed Resolution made reference and which involved the Nacionalista Party,13 this Court ruled

… that the COMELEC has jurisdiction over the issue of leadership in a political party. Under the Constitution, the COMELEC is empowered to register political parties [Sec. 2(5), Article IX-C.] Necessarily, the power to act on behalf of a party and the responsibility for the acts of such political party must be fixed in certain persons acting as its officers. In the exercise of the power to register political parties, the COMELEC must determine who these officers are. Consequently, if there is any controversy as to leadership, the COMELEC may, in a proper case brought before it, resolve the issue incidental to its power to register political parties.

This Court then proceeded to quote from Kalaw, supra.

The two cited decisions find support in Sumulong v. Commission on Elections14 and Sotto v. Commission on Elections,15 where this Court, in resolving the issue as to who between the factions of a political party was entitled to nominate election inspectors, necessarily settled claims to the party’s leadership. Both cases were decided without question on the COMELEC’s power to determine such claims. In conformity with jurisprudence, this Court did not identify the COMELEC’s jurisdiction as an issue when this case was heard on oral argument.

There is no inconsistency between the above cases on the one hand and this Court’s more recent ruling in Sinaca v. Mula16 on the other. In the latter case, this Court held:

A political party has the right to identify the people who constitute the association and to select a standard bearer who best represents the party’s ideologies and preference. Political parties are generally free to conduct their internal affairs free from judicial supervision; this common-law principle of judicial restraint, rooted in the constitutionally protected right of free association, serves the public interest by allowing the political processes to operate without undue interference. Thus, the rule is that the determination of disputes as to party nominations rests with the party, in the absence of statutes giving the court’s [sic] jurisdiction.

Quintessentially, where there is no controlling statute or clear legal right involved, the court will not assume jurisdiction to determine factional controversies within a political party, but will leave the matter for determination by the proper tribunals of the party itself or by the electors at the polls. Similarly, in the absence of specific constitutional or legislative regulations defining how nominations are to be made, or prohibiting nominations from being made in certain ways, political parties may handle such affairs, including nominations, in such manner as party rules may establish. [Emphasis supplied.]

Sinaca, unlike previous cases, did not involve the question of party identity or leadership; hence, it was not necessary for the COMELEC to delve therein. None of the candidates involved in that case were claiming to be the political party’s sole candidate.

In the case at bar, the Party Chairman, purporting to represent the LDP, contends that under the Party Constitution only he or his representative, to the exclusion of the Secretary General, has the authority to endorse and sign party nominations. The Secretary General vigorously disputes this claim and maintains his own authority. Clearly, the question of party identity or leadership has to be resolved if the COMELEC is to ascertain whether the candidates are legitimate party standard bearers or not.

The repercussions of the question of party identity and leadership do not end at the validity of the endorsement of the certificates of candidacy of persons claiming to be the party’s standard bearer. The law grants a registered political party certain rights and privileges,17 which, naturally, redound to the benefit of its candidates. It is also for this significant dimension that Sinaca  is not applicable in this case. As conceded in Sinaca  itself, the Court will have to assume jurisdiction to determine factional controversies within a political party where a controlling statute or clear legal right is involved.18 Verily, there is more than one law, as well as a number of clear legal rights, that are at stake in the case at bar.

The law accords special treatment to political parties. The dominant majority party, the dominant minority party as determined by the COMELEC, for instance, is entitled to a copy of the election returns.19 The six (6) accredited major political parties may nominate the principal watchers to be designated by the Commission.20 The two principal watchers representing the ruling coalition and the dominant opposition coalition in a precinct shall, if available, affix their signatures and thumbmarks on the election returns for that precinct.21 Three (3) of the six accredited major political parties are entitled to receive copies of the certificate of canvass.22 Registered political parties whose candidates obtained at least ten percent (10%) of the total votes cast in the next preceding senatorial election shall each have a watcher and/or representative in the procurement and watermarking of papers to be used in the printing of election returns and official ballots and in the printing, numbering, storage, and distribution thereof.23 Finally, a candidate and his political party are authorized to spend more per voter than a candidate without a political party.24

It is, therefore, in the interest of every political party not to allow persons it had not chosen to hold themselves out as representatives of the party. 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"25 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.26 A candidate’s political party affiliation is also printed followed by his or her name in the certified list of candidates.27 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.

Having revisited and clarified the jurisdiction of COMELEC to rule upon questions of party identity and leadership as an incident to its enforcement powers, this Court cannot help but be baffled by the COMELEC’s ruling declining to inquire into which party officer has the authority to sign and endorse certificates of candidacy of the party’s nominees.

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.

To resolve this simple issue, the COMELEC need only to turn to the Party Constitution. It need not go so far as to resolve the root of the conflict between the party officials. It need only resolve such questions as may be necessary in the exercise of its enforcement powers.

The LDP has a set of national officers composed of, among others, the Party Chairman and the Secretary General.28 The Party Chairman is the Chief Executive Officer of the Party, whose powers and functions include:

(1) To represent the Party in all external affairs and concerns, sign documents for and on its behalf, and call the meetings and be the presiding officer of the National Congress and the National Executive Council….29

The Secretary General, on the other hand, assists the Party Chairman in overseeing the day-to-day operations of the Party. Among his powers and functions is:

(1) When empowered by the Party Chairman, to sign documents for and on behalf of the Party…. 30

The Secretary General’s authority to sign documents, therefore, is only a delegated power, which originally pertains to the Party Chairman.

Rep. Aquino claims that he was authorized to exercise to sign the party candidates’ certificates of candidacy in the previous elections. Indeed, the COMELEC found that:

In fact, during the May 14, 2001 elections, oppositor Agapito "Butz’ Aquino, as LDP Secretary General, was authorized by the LDP to sign for the Certificates of Nomination of the LDP Senatorial Candidates, including the Certificate of Nomination for Senatorial Candidate Edgardo J. Angara, a copy of said Certificate of Nomination and a copy of the Certificate for Senator Edgardo J. Angara are attached as Annexes A and B, respectively. This action by Secretary General Aquino is in accordance with the Constitution and By-laws of LDP, not questioned by the LDP signed by its Secretary General. This revocation has not been revoked or recalled by

the National Congress of the LDP which is the one authorized to nominate candidates for President and Vice-President, respectively.31

Assuming that Rep. Aquino previously had such authority, this Court cannot share the COMELEC’s finding that the same "has not been revoked or recalled." No revocation of such authority can be more explicit than the totality of Sen. Angara’s Manifestations and Petition before the COMELEC, through which he informed the Commission that Rep. Aquino’s had been placed on indefinite forced leave and that Ambassador Zaldivar has been designated Acting Secretary General, who "shall henceforth exercise all the powers and functions of the Secretary General under the Constitution and By-Laws of the LDP."32 As the prerogative to empower Rep. Aquino to sign documents devolves upon Sen. Angara, so he may choose, at his discretion, to withhold or revoke such power.

Both respondents Rep. Aquino and COMELEC also cited Section 6 of COMELEC Resolution No. 645333 as basis for the Party Secretary General’s authority to sign certificates of candidacy. Said Section 6 states:

SEC. 6. Certificate of nomination of official candidates by political party. – The certificate of nomination of registered political parties or coalitions of political parties of their official candidates shall be filed not later than the last day for filing of certificates of candidacy, which is January 2, 2004 duly signed and attested under oath by the party president, chairman, secretary-general or any other duly authorized officer and shall bear the acceptance of the nominee by affixing his signature in the space provided therein. [Emphasis and underscoring supplied.]

Clearly, however, the above provision presupposes that the party president, chairman or secretary-general has been "duly authorized" by the party to sign the certificate of candidacy. COMELEC Resolution No. 6453 cannot grant a party official greater authority than what the party itself grants, lest such Resolution amount to a violation of the party’s freedom of association.

Neither does the Party Secretary General have the power to nominate the official candidates of the LDP. That power resides in the governing bodies of the Party.34 In particular, the National Congress, which is the highest policy-making and governing body of the Party, has the power

(6) To nominate the official candidates of the Party for President, Vice President, and Senators, and, whenever the corresponding conventions fail to meet or to make the requisite nominations, to nominate the official candidates for municipal city, congressional district, provincial and regional elective offices….35

Not only does Rep. Aquino insist on his power to sign Certificates of Candidacy on behalf of the LDP but he would also deny Sen. Angara that power on account of the latter’s preventive suspension. It seems, however, that respondent has abandoned this tack by the silence of his Memorandum on the matter.

In any case, it appears that on November 28, 2003, Representative Rolex Suplico, LDP Region VI Regional Chairman, filed a complaint with Rep. Aquino against Party Chairman Sen. Angara for disloyalty to the Party, gross violation of the Party Constitution, and other divisive acts inimical to the interest of the party and its members. Rep. Aquino, as Secretary General, created a committee composed of three (3) members of the LDP National Executive Council to investigate the complaint and recommend appropriate action thereon. On December 12, 2003, the investigating committee issued a resolution placing Sen. Angara under preventive suspension effective immediately and directing him to refrain from performing acts in behalf of the party until the committee finishes its investigation and submits its final recommendations.

The authority to create the investigating committee supposedly rests on Section 9 (4), Article VI of the LDP Constitution, which enumerates the powers and functions of the Secretary General:

(4) With the concurrence of the Party Chairman, to enforce Party discipline…. {Emphasis supplied.]

Evidently, just as Rep. Aquino has no power to sign and nominate candidates in behalf of the LDP, neither does he have the power to enforce Party discipline or, as an incident thereto, to create an investigating committee, without the Party Chairman’s concurrence. Much less does the investigating committee so created have the power to place the Party Chairman under preventive suspension since its authority stems from a nullity. Simply put, the spring has no source.

The lack of Rep. Aquino’s authority to sign documents or to nominate candidates for the LDP would not result in the denial of due course to or the cancellation of the certificates of candidacy he may have signed on behalf of the LDP.36 The exclusive ground for the denial of due course to or the cancellation of a certificate of candidacy for any elective office is that any material representation contained therein as required by law is false.37 Since the signature of Rep. Aquino was affixed either prior to, or on the basis of, the challenged Resolution recognizing his authority to sign on behalf of the LDP, the same would not constitute material representation that is false. In such case, the candidates are simply deemed as not nominated by the LDP and are considered independent candidates pursuant to Section 7 of COMELEC Resolution No. 6453:

SEC. 7. Effect of filing certificate of nomination. – A candidate who has not been nominated by a registered political party or its duly authorized representative, or whose nomination has not been submitted by a registered political party… shall be considered as an independent candidate.

COMELEC Commissioner Sadain referred to the above provision in his Dissenting Opinion, and this Court finds refreshing wisdom – so sorely wanting in the majority opinion – in his suggestion that:

All other party members representing themselves to be candidates of the party shall not be deprived of their right to file their respective certificates of candidacy and run for office, if so qualified, but that they shall not be accorded the rights and privileges reserved by election laws for official nominees of registered political parties. Instead, they shall be treated as independent candidates.38

From the foregoing, it is plain that the COMELEC misapplied equity in the present case. For all its conceded merits, equity is available only in the absence of law and not as its replacement.39 Equity is described as justice without legality, which simply means that it cannot supplant, although it may, as often happens, supplement the law.40 The COMELEC should have decided the case on the basis of the party constitution and election laws. It chose not to because of its irrational fear of treading, as respondent Aquino put it, on "unchartered" territories.41But, as shown above, these territories have long been charted by jurisprudence and, in any case, the COMELEC need not have sailed far from the shore to arrive at the correct conclusion. In truth, the COMELEC Resolution is indecision in the guise of equity.

Worse, the COMELEC divided the LDP into "wings," each of which may nominate candidates for every elective position. Both wings are also entitled to representatives in the election committees that the Commission may create. In the event that the LDP is accorded dominant minority party election status, election returns of odd-numbered precincts shall be furnished the Angara wing and those of even-numbered precincts, the Aquino wing.

By creating the two wings, the COMELEC effectively diffused the LDP’s strength and undeniably emasculated its chance of obtaining the Commission’s nod as the dominant minority party.

By allowing each wing to nominate different candidates, the COMELEC planted the seeds of confusion among the electorate, who are apt to be confounded by two candidates from a single political party. In Recabo, Jr. v. Commission on Elections,42 this Court declared that the electoral process envisions one candidate from a political party for each position, and disunity and discord amongst members of a political party should not be allowed to create a mockery thereof. The admonition against mocking the electoral process not only applies to political parties but with greater force to the COMELEC.

By according both wings representatives in the election committees, the COMELEC has eroded the significance of political parties and effectively divided the opposition. The COMELEC has lost sight of the unique political situation of the Philippines where, to paraphrase Justice Perfecto’s concurring opinion in Sotto, supra, the administration party has always been unnecessarily and dangerously too big and the opposition party too small to be an effective check on the administration. The purpose of according dominant status and representation to a minority party is precisely to serve as an effective check on the majority. The COMELEC performed a disservice to the opposition and, ultimately, to the voting public, as its Resolution facilitated, rather than forestalled, the division of the minority party.

By splitting copies of the election returns between the two factions, the COMELEC has fractured both wings. The practical purpose of furnishing a party with a copy of the election returns is to allow it to tally the results of the elections at the precinct level. Ultimately, it is a guard against fraud. Thus, resort to copies thereof may be had when the election returns are delayed, lost or destroyed,43 or when they appear to be tampered or falsified.44 A split party without a complete set of election returns cannot successfully help preserve the sanctity of the ballot.

It bears reminding respondent Commission of this Court’s pronouncement in Peralta v. Commission on Elections,45which, while made in the backdrop of a parliamentary form of government, holds equally true under the present government structure:

… political parties constitute a basic element of the democratic institutional apparatus. Government derives its strength from the support, active or passive, of a coalition of elements of society. In modern times the political party has become the instrument for the organization of societies. This is predicated on the doctrine that government exists with the consent of the governed. Political parties perform an "essential function in the management of succession to power, as well as in the process of obtaining popular consent to the course of public policy. They amass sufficient support to buttress the authority of governments; or, on the contrary, they attract or organize discontent and dissatisfaction sufficient to oust the government. In either case they perform the function of the articulation of the interests and aspirations of a substantial segment of the citizenry, usually in ways contended to be promotive of the national weal."

The assailed COMELEC Resolution does not advance, but subverts, this philosophy behind political parties.

As if to rationalize its folly, the COMELEC invokes the constitutional policy towards a free and open party system.46 This policy, however, envisions a system that shall "evolve according to the free choice of the people,"47 not one molded and whittled by the COMELEC. When the Constitution speaks of a multi-party system, it does not contemplate the COMELEC splitting parties into two. For doing just that, this pretender to the throne of King Solomon acted whimsically and capriciously. Certiorari lies against it, indeed.

WHEREFORE, the assailed COMELEC Resolution  is ANNULLED and the Petition is GRANTED IN PART. Respondent Commission on Elections is directed to recognize as official candidates of the Laban ng Demokratikong Pilipino only those whose Certificates of Candidacy are signed by LDP Party Chairman Senator Edgardo J. Angara or his duly authorized representative/s.

SO ORDERED.

G.R. No. 133840 November 13, 1998

CIPRIANO "EFREN" BAUTISTA, petitioner, vs.THE COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF NAVOTAS, METRO MANILA and MIGUELITA DEL ROSARIO, respondents.

 

MELO, J.:

Petitioner assails the order of the Commission on Elections dated May 28, 1998 which dismissed the petition he filed seeking to declare illegal the proceeding of the Municipal Board of Canvassers of Navotas for failing to include in the canvass the Bautista stray votes contained in a separate tally sheet.

Petitioner Cipriano "Efren" Bautista and private respondent were duly registered candidates for the position of Mayor of Navotas, Metro Manila in the elections of May 11, 1998. Aside from said candidates, a certain Edwin "Efren" Bautista, hereinafter referred to as Edwin Bautista, also filed a certificate of candidacy for the same position of mayor. His certificate of candidacy was filed at midnight on March 27, 1997, the last day for such filing. In fact, the filing was done at the very last minute.

On April 1, 1998, petitioner filed a petition praying that Edwin Bautista be declared a nuisance candidate. The COMELEC saw merit in the petition and in a resolution dated April 30, 1998, declared Edwin Bautista a nuisance candidate and consequently ordered the cancellation of his certificate of candidacy for the position of mayor.

Accordingly, the name of Edwin Bautista was not included in the list of candidates for the position of mayor for Navotas. Copies of said list were distributed by the Office of the Election Officer of Navotas to the boards of election inspectors (BEI).

On May 8, 1998, Edwin Bautista filed a motion for reconsideration. As a result, on May 10, 1998, the Election Officer of Navotas issued a directive to the BEI to include the name of Edwin Bautista in the certified list of candidates. Conversely, on the afternoon of the same day, the Election Officer issued another directive to the BEI recalling his earlier directive for the inclusion of Edwin Bautista pending resolution of his motion for reconsideration.

In view of the conflicting directives, the Regional Election Director of the National Capital Region, responding to a request made by Atty. Gauttier T. Dupaya, counsel for petitioner, gave instructions to the BEI to tally separately either in some other portion of the same election return not intended for the tallying of votes for the candidates for mayor, or in a separate sheet of paper, the votes for "EFREN BAUTISTA", "EFREN", "E. BAUTISTA" and "BAUTISTA". Said instructions were affirmed in a Memorandum of the then COMELEC Chairman, directing the BEI to "proceed with the counting of the votes for local officials excluding the votes cast for 'Bautista', 'Efren' and 'Efren Bautista' as stray but to segregate such stray votes into a separate improvised tally sheet in order to count the total stray votes."

On May 13, 1998, the COMELEC denied Edwin Bautista's motion praying for the reconsideration of the April 30, 1998 resolution declaring him a nuisance candidate.

When the canvass of the election returns was commenced, the Municipal Board of Canvassers of Navotas refused to canvass as part of the valid votes of petitioner the separate tallies of ballots on which were written "EFREN BAUTISTA", "EFREN", "E. BAUTISTA", and "BAUTISTA". Said ballots were tallied by the BEI separately either on some portion of the election return not intended for votes for mayoralty candidates or in separate sheets of paper. In view of this refusal, objections to the inclusion of the election returns were raised during the canvass. Consequently, on May 20, 1998, petitioner filed with the COMELEC a Petition to Declare Illegal the Proceedings of the Municipal Board of Canvassers which was docketed as SPC No. 98-10. The assailed order resolving said petition reads in relevant part as follows:

The issue before this Commission En Banc is whether or not of the Board of Canvassers not to include in the canvass the "Bautista stray votes" contained in the separate tally sheet constitutes an illegal proceeding thereof?

We rule in the negative.

The duty of the Board of Canvassers is only to canvass what is on the face of the election returns and not to go beyond it. Obviously, the stray votes in the separate tally sheet cannot be said to be entries in the election returns. Thus, the ruling of respondent Board not to Include in the canvass the Bautista stay votes is correct.

Further, under the Omnibus Election Code, Section 211 (4) which provides:

4. When two or more words are written on the same line on the ballot all of which are the surnames of two or more candidates, the same shall not be counted for any of them, unless one is a surname of an incumbent who has served for at least one year in which case it shall be counted in favor of the latter.

Thus, under the circumstances stray votes cannot be considered a vote for either party.

WHEREFORE, premises considered, the instant petition of Cipriano "Efren" Bautista is hereby DISMISSED for lack of merit.

(p. 24-25, 

Meanwhile, on May 18, 1998, the disqualified nuisance candidate, Edwin "Efren" Bautista, filed a petition for certiorariwith the Court, docketed as G.R No. 133607, where he assailed the actions of the COMELEC Second Division and of respondent COMELEC En Banc, declaring him a nuisance candidate and ordering the cancellation of his certificate of candidacy. The Court dismissed said petition on May 21, 1998, ruling that there is no showing that the COMELEC

committed grave abuse of discretion in declaring Edwin Bautista a nuisance candidate. Edwin Bautista's motion for reconsideration of our resolution was denied with finality on July 7, 1998.

The instant petition posits the following grounds for nullification of the assailed COMELEC order:

UTTER LACK AND DISREGARD OF DUE PROCESS IN THE ISSUANCE OF THE QUESTIONED ORDER; and

RESPONDENT COMELEC COMMITTED A GRAVE ABUSE OF DISCRETION AMOUNTING TO EXCESS OR LACK OF JURISDICTION IN DENYING THE INCLUSION AS PART OF PETITIONER'S VALID VOTES THE VOTES THAT WERE SEPARATELY TALLIED BY THE BOARDS OF ELECTION INSPECTORS AND THE RESPONDENT BOARD.

Let us first examine the due process issue as regards the issuance of the questioned order.

The petition resolved by COMELEC in the assailed resolution was lodged to declare illegal the proceedings of the Municipal Board of Canvassers of Navotas due to non-inclusion of votes which herein petitioner claims to be valid. On this score, we agree with petitioner that the matter falls under the category of special cases, particularly a pre-proclamation controversy raising the issue of the illegality of the proceedings of the board of canvassers (Sec. 3, Rule 27, Part V, Comelec Rules of Procedure).

Sec. 2 of the above-stated Rule provides that all pre-proclamation controversies shall be heard summarily after due notice. Hence, the COMELEC only has to give notice to the parties by issuing summons and by serving a copy of the petition. The proceedings being summary, the COMELEC may rely on whatever pleading that may have been filed by the parties. A hearing wherein the parties engage in oral argument is not required.

In Zaldivar vs. Sandiganbayan (166 SCRA 316 [1988]), we held that the right to be heard does not only refer to the right to present verbal arguments in court. A party may also be heard through his pleadings. Where opportunity to be heard is accorded either through oral arguments or pleadings, there is no denial of procedural due process. As reiterated inNational Semiconductor (HK) Distribution, Ltd. vs. NLRC (G.R. No. 123520, June 26, 1998), the essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one's side. Hence, in Navarro III vs. Damaso (246 SCRA 260 [1995]), we held that a formal or trial-type hearing is not at all times and not in all instances essential. Plainly, petitioner was not denied due process.

We nevertheless find merit in petitioner's second argument.

The Municipal Board of Canvassers denied the inclusion, as part of petitioner's valid votes, of those votes that were separately tallied by the BEI and the Board of Canvassers.

When petitioner raised the matter to the COMELEC, the commission upheld the act of the Board of Canvassers, stating that the same cannot go beyond the election returns. In its Comment, the Office of the Solicitor General opines that the improvised sheets of paper containing the tally of Bautista stray votes cannot be legally considered in the canvass.

An examination of the foregoing incidents brings us to the following legal queries: (1) Did the "EFREN BAUTISTA" (or EFREN/E. BAUTISTA/BAUTISTA) votes which were tallied in separate sheets of paper categorically pertain to petitioner? Stated otherwise, did said separate tally reflect the intention of the voters?; (2) What is the legal effect of the final declaration made by the COMELEC that Edwin Bautista was a nuisance candidate? Further, what are the implications of the final and conclusive ruling of this Court on the issue? and (3) Will there be a disenfranchisement of the voters' will if the "EFREN BAUTISTA" votes separately tallied are not counted as votes for petitioner?

At the outset and initially setting aside all the ramifications of the substantive issue of the instant petition, the primordial concern of the Court is to verify whether or not on the day of the election, there was only one "Efren Bautista" as a validly registered candidate as far as the electorate was concerned.

We find significant reference in the resolution of the COMELEC dated April 10, 1998 declaring Edwin Bautista a nuisance candidate, the  ratio decidendi of which reads as follows:

While Section 69 of the Omnibus Election Code does not explicitly provide for grounds to declare a nuisance candidate, it states clearly some tests, viz:

Sec. 69. Nuisance candidates. — The Commission may motu proprio or upon a verified petition of an interested party, refuse to give due course to or cancel a certificate of candidacy, if it shown that said certificate has been filed to put the election process in mockery or disrepute; or to cause confusion among the voters by the similarity of the names of the registered candidates; or by other circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been field and thus prevent a faithful determination of the true will of the electorate.

In the present case, it has been established that respondent's known appellation or nickname is not "Efren" as stated in his Certificate of Candidacy, but "Boboy" or "Boboy Tarugo". Two "EFRENS" and two "BAUTISTAS" will necessarily confuse the voters and render worthless a vote for an "Efren" or "Bautista" during the appreciation of ballots, thus preventing the determination of the choice and true will of the electorate. Respondent's lack of financial means to support a campaign as an independent candidate is manifested by his inability to file his Income Tax Returns for calendar years 1995 and 1996. This only amplifies the fact that he has no bona fide  intention to run for the position of municipal mayor of Navotas, a municipality with 104,601 registered voters.

Respondent has not demonstrated any accomplishment/achievement in his twenty-six (26) years of existence as a person that would surely attract the electorate to choose him as their representative in government. Elective public officials are respected leaders in the community. Respondent has not shown any.

This Commission as the vanguard of the people in the determination of the chosen representative of the electorate in government will not be an instrument to subvert that choice. The circumstances in the case at bar warrant that respondent be declared a nuisance candidate.

(pp. 28-29,

Edwin Bautista moved for reconsideration on May 8, 1998. Unfortunately said motion was not resolved as of election day. Technically, the April 30, 1998 decision was not yet final as of May 11, 1998, and this technicality created serious problems on election day.

As mentioned earlier, the name of Edwin Bautista was initially not included in the list of candidates for mayor of Navotas. Then on election day itself May 11, 1998, Edwin Bautista's name was included in the certified list of candidates. Later that same day, however, Edwin Bautista's name was again stricken off the list.

To remedy the situation which was bound to affect petitioner's candidacy, his counsel requested the COMELEC that a directive be issued to all members of the BEI of Navotas for the preparation of a separate tally for all votes in favor of: "Efren Bautista", "Edwin Bautista", "Efren", "Edwin", "E. Bautista", and "Bautista". The request for the separate tally was said to have been necessitated by the pendency of the petition before the COMELEC to disqualify Edwin Bautista for being a nuisance candidate. Since the final resolution of said petition was delayed due to the filing of a motion for reconsideration, counsel for petitioner stated that the basis must be laid down "for the ultimate appreciation of all Bautista votes in favor of petitioner," and the requested separate tally sheet would "protect his substantial rights" as well as the will of the electorate.

Consequently, as mentioned above, the Regional Election Director of the National Capital Region instructed the various boards of election inspectors to tally separately either in some other portion of the same election return not intended for the tallying of votes for the candidates for mayor, or in a separate sheet of paper, the votes for "EFREN BAUTISTA", "EFREN", "E. BAUTISTA", and "BAUTISTA". The then COMELEC Chairman affirmed said directive in a Memorandum to the Board of Canvassers of Navotas for the purpose of counting the total stray votes.

An analysis of the foregoing incidents shows that the separate tallies were made to remedy any prejudice that may be caused by the inclusion of a potential nuisance candidate in the Navotas mayoralty race. Such inclusion was brought about by technicality, specifically Edwin Bautista's filing of a motion for reconsideration, which prevented the April 30, 1998 resolution disqualifying him from becoming final at that time.

Ideally, the matter should have been finally resolved prior to election day. Its pendency on election day exposed petitioner to the evils brought about by the inclusion of a then potential, later shown in reality to be nuisance candidate. We have ruled that a nuisance candidate is one whose certificate of candidacy is presented and filed to cause confusion among the electorate

by the similarity of the names of the registered candidate or by other names which demonstrate that the candidate has no bona fide  intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate (Fernandez vs. Fernandez, 36 SCRA 1 [1970]).

It must be emphasized that the instant case involves a ground for disqualification which clearly affects the voters' will and causes confusion that frustrates the same. This is precisely what election laws are trying to protect. They give effect to, rather than frustrate, the will of the voter. Thus, extreme caution should be observed before any ballot is invalidated. Further, in the appreciation of ballots, doubts are resolved in favor of their validity (Silverio vs. Castro, 19 SCRA 521 [1967]).

Sec. 69 of the Omnibus Election Code sets forth that the COMELEC may motu proprio or upon a verified petition of an interested party, refuse to give due course to or cancel a certificate of candidacy if the following situations are extant: (1) if it is shown that said certificate has been filed to put the election process in mockery or disrepute; (2) or if said certificate was filed to cause confusion among the voters by the similarity of the names of the registered candidate; (3) or if there are other circumstances or acts which clearly demonstrate that the candidate has no bona fide  intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate.

As discussed in the COMELEC's April 30, 1998 decision, in accordance with Section 69, Edwin Bautista was found to be a nuisance candidate. First and foremost, he was running under the name of Edwin "Efren" Bautista, when it had been established that he was really known as "Boboy" or "Boboy Tarugo". Second, the following circumstances saliently demonstrate that he had no bona fide  intention of running for the office for which he filed his certificate of candidacy: He is said to be engaged in a "buy and sell" business, but has no license therefor. He declared that he had a monthly income of P10,000.00, but with expenses totalling P9,000.00. He does not own any real property. He did not file his income tax return for the years 1995 and 1996 and when asked why, he said he did not have any net income and that he was only earning enough to defray household expenses. He even violated COMELEC rules since he failed to submit the names of individuals who paid for his campaign materials as well as the printing press he dealt with. He did not have a political line-up and had no funds to support his campaign expenses. He merely depended on friends whose names he did not submit to the COMELEC. And as straightforwardly found by the COMELEC, he "has not demonstrated any accomplishment/achievement in his twenty-six (26) years of existence as a person that would surely attract the electorate to choose him as their representative in government."

In contrast, it was shown that petitioner had previously held under his name Cipriano and appellation, "Efren" Bautista, various elective positions, namely: Barangay Captain of Navotas in 1962, Municipal Councilor of Navotas in 1970, and Vice-Mayor of Navotas in 1980. He is a duly registered Naval Architect and Marine Engineer, and a member of various civic organizations such as the Rotary Club of Navotas and the Philippine Jaycees.

It seems obvious to us that the votes separately tallied are not really stray votes. Then COMELEC Chairman Bernardo P. Pardo himself, now a respected member of the Court, in his May 14, 1998 Memorandum, allowed the segregation of the votes for "Bautista", "Efren", and "Efren Bautista", and "E. Bautista" into a separate improvised tally, for the purpose of later counting the votes. In fine, the COMELEC itself validated the separate tallies since they were meant to be used in the canvassing later on to the actual number of votes cast. These separate tallies actually made the will of the electorate determinable despite the apparent confusion caused by a potential nuisance candidate. What remained unsaid by the COMELEC Chairman was the fact that as early as May 13, 1998, the COMELEC had already spoken and stated its final position on the issue of whether or not Edwin Bautista is a nuisance candidate. It had already denied Edwin's motion for reconsideration in its May 13, 1998 Order which reads:

Deliberating on the motion for reconsideration of respondent Edwin "Efren" Bautista on the grounds therein stated, the Commission, Second Division, maintains its resolution. Commissioners Manolo B. Gorospe, Teresita Dy-Liacco Flores and Evalyn I. Fetalino concur with the Second Division's resolution.

IN VIEW WHEREOF, the motion for reconsideration is hereby DENIED. This denial is final.

SO ORDERED.

(p. 54,

This important detail only shows that as of May 14, 1998, when Chairman Pardo issued the aforestated Memorandum, Edwin Bautista had already been finally declared as a nuisance candidate by the COMELEC. And when Edwin Bautista elevated the matter to this Court, we upheld such declaration. How then can we consider valid the votes for Edwin Bautista whom we finally ruled as disqualified from the 1998 Navotas mayoralty race? That is like saying one thing and doing another. These are two incompatible acts the contrariety and inconsistency of which are all too obvious.

In this light, we now refer to the dispositive portion of COMELEC's April 30, 1998 resolution, which reads:

WHEREFORE, in view of the foregoing, respondent EDWIN "EFREN" BAUTISTA is hereby declared a NUISANCE CANDIDATE, and consequently, his CERTIFICATE OF CANDIDACY for the position of Municipal Mayor of Navotas, Metro Manila is hereby ordered CANCELLED.

(pp. 29-30,

Strictly speaking, a cancelled certificate cannot give rise to a valid candidacy, and much less to valid votes. However, since the aforestated ruling was not yet final on election day, how then do we determine the will of the electorate? Factual circumstances and logic dictate that the "Bautista" and "Efren" votes which were mistakenly deemed as "stray votes" refer to only one candidate, herein petitioner. Such votes, which represent the voice of approximately 21,000 electors, could not have been intended for Edwin Bautista, allegedly known in Navotas as a mere tricycle driver and worse, a drug addict, and satisfactorily and finally shown as a candidate with no political line-up, no personal funds that could have supported this own campaign, and no accomplishments which may be noted and considered by the public, as against a known former public officer who had served the people of Navotas as barangay official, councilor, and as vice-mayor. To rule other wise will definitely result in the disenfranchisement of the will of the electorate, which is, as we mentioned, the situation that our election laws are enacted to prevent.

Verily, Edwin Bautista got only 29 votes, while petitioner under the very restrictive name Cipriano "Efren" Bautista got 17,981 votes. To be sure, however, there are 12,034 Bautista votes which have been tallied but not credited to petitioner, and there are 8,982 Bautista votes which were not tallied and credited to petitioner. These Bautista votes which total 21,016 could only have been meant for petitioner and which added to the 17,981 votes he got as Cipriano "Efren" Bautista would give him a grand aggregate of 38,997 votes.

A stray vote is invalidated because there is no way of determining the real intention of the voter. This is, however, not the situation in the case at bar. Significantly, it has also been established that by virtue of newspaper releases and other forms of notification, the voters were informed of the COMELEC's decision to declare Edwin Bautista a nuisance candidate.

From another angle, it is likewise improper and strained to limit petitioner's votes to the ballots which only indicate the name "Cipriano" when it is of public knowledge that petitioner is also known by the appellation and nickname "Efren" which he in fact registered as his nickname.

As we said earlier, the instant petition is laden with an issue which involves several ramifications. Matters tend to get complicated when technical rules are strictly applied. True it is, the disqualification of Edwin Bautista was not yet final on election day. However, it is also true that the electorate of Navotas was informed of such disqualification. The voters had constructive as well as actual knowledge of the action of the COMELEC delisting Edwin Bautista as a candidate for mayor. Technicalities should not be permitted to defeat the intention of the voter, especially so if that intention is discoverable from the ballot itself as in this case.

WHEREFORE, premises considered, the petition is hereby GRANTED and the assailed order of respondent COMELEC dated May 28, 1998 is hereby REVERSED and SET ASIDE. Respondent COMELEC is likewise directed to order the inclusion, as part of the valid votes of petitioner, the following votes that were separately tallied by the boards of election inspectors: "EFREN BAUTISTA", "EFREN", "E. BAUTISTA" and "BAUTISTA".

SO ORDERED.

G.R. No. 136351 July 28, 1999

JOEL G. MIRANDA, petitioner, vs.ANTONIO M. ABAYA and the COMMISSION ON ELECTIONS, respondents.

EN BANC

 

MELO, J.:

Before us is a petition for certiorari with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction questioning the resolution of the Comelec En Banc dated December 8, 1998 in SPA Case No. 98-288 which disposed:

ACCORDINGLY, judgment is hereby rendered to:

1. AMEND and RECTIFY the dispositive portion of the Resolution of the Commission (First Division) in SPA No. 98-019 promulgated on May 5, 1998, to read as follows:

WHEREFORE, in view of the foregoing, the Commission (First Division) GRANTS the Petition. Respondent JOSE "PEMPE" MIRANDA's certificate of candidacy for the position of mayor of Santiago City in the May 11, 1998 national and local elections is hereby DENIED DUE COURSE AND/OR CANCELLED.

SO ORDERED.

2. ANNUL the election and proclamation of respondent JOEL G. MIRANDA as mayor of Santiago City in the May 11, 1998 election and CANCEL the Certificate of Canvass and Proclamation (C.E. form 25) issued therefor;

3. DIRECT THE City board of Canvassers of Santiago City to RECONVENE, PREPARE a new certificate of canvass & proclamation and PROCLAIM the winning candidate among those voted upon as the duly elected mayor of Santiago City in the May 11, 1998 election; and

4. DIRECT the Clerk of Court of the Commission to furnish copies of this Decision to the Office of the President of the Philippines; the Department of Interior and Local Government; the Department of Finance, and the Secretary of the Sangguniang Panglunsod of Santiago City.

SO ORDERED.

(pp. 90-91,

The aforementioned resolution dated December 8, 1998 reversed and set aside the earlier resolution of the First Division of the Comelec dated May 16, 1998, dismissing private respondent's petition to declare the substitution of Jose "Pempe" Miranda by petitioner as candidate for the City of Santiago's mayoralty post void.

Briefly, the pertinent factual backdrop is summarized as follows:

On March 24, 1998, Jose "Pempe" Miranda, then incumbent mayor of Santiago City, Isabela, filed his certificate of candidacy for the same mayoralty post for the synchronized May 11, 1998 elections.

On March 27, 1998, private respondent Antonio M. Abaya filed a Petition to Deny Due Course to and/or Cancel Certificate of Candidacy (pp. 26-33, Rollo), which was docketed as SPA No. 98-019. The petition was GRANTED by the Comelec in its resolution dated May 5, 1998 (pp. 36-43, Rollo). The Comelec further ruled to DISQUALIFY Jose "Pempe" Miranda.

On May 6, 1998, way beyond the deadline for filing a certificate of candidacy, petitioner Joel G. Miranda filed his certificate of candidacy for the mayoralty post, supposedly as a substitute for his father, Jose "Pempe" Miranda.

During the May 11, 1998 elections; petitioner and private respondent vied for the mayoralty seat, with petitioner garnering 22,002 votes, 1,666 more votes than private respondent who got only 20,336 votes.

On May 13, 1998, private respondent filed a Petition to Declare Null and Void Substitution with Prayer for Issuance of Writ of Preliminary Injunction and/or Temporary Restraining Order, which was docketed as SPA No. 98-288. He prayed for the nullification of petitioner's certificate of candidacy for being void ab initio because the certificate of candidacy of Jose "Pempe" Miranda, whom petitioner was supposed to substitute, had already been cancelled and denied due course.

On May 16, 1998, Comelec's First Division dismissed SPA No. 98-288 motu proprio (pp. 57-61, Rollo). Private respondent moved for reconsideration (pp. 62-72, Rollo). On December 8, 1998, the Comelec En Banc rendered the assailed decision aforequoted, resolving to GRANT the motion for reconsideration, thus nullifying the substitution by petitioner Joel G. Miranda of his father as candidate for the mayoralty post of Santiago City.

On December 9, 1998, petitioner sought this Court's intercession via a petition for certiorari, with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction. On December 11, 1998, the Court resolved to issue a temporary restraining order and to require respondents to comment on the petition. On December 14, 1998, private respondent filed his Comment (pp. 140-187 and 188-234, Rollo) and on February 16, 1999, the Comelec, through its counsel, the Solicitor General, filed its Comment (pp. 254-265, Rollo). The Court required petitioner to file a consolidated reply within 10 days from notice, but petitioner twice asked for an extension of the period. Without granting the motions for extension of time to file consolidated reply, the Court decided to resolve the controversy in favor of petitioner.

Tersely, the issues in the present case may be summarized as follows:

1. Whether the annulment of petitioner's substitution and proclamation was issued without jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction; and

2. Whether the order of the Comelec directing the proclamation of the private respondent was issued with grave abuse of discretion amounting to lack of jurisdiction.

The Court finds neither lack of jurisdiction nor grave abuse of discretion attended the annulment of the substitution and proclamation of petitioner.

On the matter of jurisdiction, there is no question that the case at hand is within the exclusive original jurisdiction of the Comelec. As early as in Herrera vs. Barretto (25 Phil, 245 [1913]), this Court had occasion to apply the following principles:

Jurisdiction is the authority to hear and determine a cause — the right to act in a case. Since it is the power to hear and determine, it does not depend either upon the regularity of the exercise of that power or upon the rightfulness of the decision made. Jurisdiction should therefore be distinguished from the exercise of jurisdiction. The authority to decide a cause at all, and not the decision rendered therein, is what makes up jurisdiction. Where there is jurisdiction over the subject matter, as we have said before, the decision of all other questions arising in the case is but an exercise of that jurisdiction.

(p. 251)

On the issue of soundness of the disposition in SPA No. 98-288, the Court finds that the Comelec's action nullifying the substitution by and proclamation of petitioner for the mayoralty post of Santiago City, Isabela is proper and legally sound.

Petitioner insists that the substitution at bar is allowed under Section 77 of the Omnibus Election Code which provides:

Sec. 77. Candidates in case of death, disqualification or withdrawal. — If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid-day of the day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of election day, said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission.

Petitioner capitalizes on the fact that the Comelec ruled to disqualify Jose "Pempe" Miranda in the May 5, 1998 resolution and he heavily relies upon the above-quoted provision allowing substitution of a candidate who has been disqualified for any cause.

While there is no dispute as to whether or not a nominee of a registered or accredited political party may substitute for a candidate of the same party who had been disqualified for any cause, this does not include those cases where the certificate of candidacy of the person to be substituted had been denied due course and cancelled under Section 78 of the Code.

Expressio unius est exclusio alterius. While the law enumerated the occasions where a candidate may be validly substituted, there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy. Under the foregoing rule, there can be no valid substitution for the latter case, much in the same way that a nuisance candidate whose certificate of candidacy is denied due course and/or cancelled may not be substituted. If the intent of the lawmakers were otherwise, they

could have so easily and conveniently included those persons whose certificates of candidacy have been denied due course and/or cancelled under the provisions of Section 78 of the Code.

More importantly, under the express provisions of Section 77 of the Code, not just any person, but only "an official candidate of a registered or accredited political party" may be substituted. In Bautista vs. Comelec (G.R. No. 133840, November 13, 1998) this Court explicitly ruled that "a cancelled certificate does not give rise to a valid candidacy" (p.13).

A person without a valid certificate of candidacy cannot be considered a candidate in much the same way as any person who has not filed any certificate of candidacy at all can not, by any stretch of the imagination, be a candidate at all.

The law clearly provides:

Sec. 73. Certificate of candidacy — No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein.

By its express language, the foregoing provision of law is absolutely mandatory. It is but logical to say that any person who attempts to run for an elective office but does not file a certificate of candidacy, is not a candidate at all. No amount of votes would catapult him into office. In Gador vs. Comelec (95 SCRA 431 [1980]), the Court held that a certificate of candidacy filed beyond the period fixed by law is void, and the person who filed it is not, in law, a candidate. Much in the same manner as a person who filed no certificate of candidacy at all and a person who filed it out of time, a person whose certificate of candidacy is cancelled or denied due course is no candidate at all. No amount of votes should entitle him to the elective office aspired for.

The evident purposes of the law in requiring the filing of certificates of candidacy and in fixing the time limit therefor are: (a) to enable the voters to know, at least sixty days before the regular election, the candidates among whom they are to make the choice, and (b) to avoid confusion and inconvenience in the tabulation of the votes cast. For if the law did not confine the choice or election by the voters to the duly registered candidates, there might be as many persons voted for as there are voters, and votes might be cast even for unknown or fictitious persons as a mark to identify the votes in favor of a candidate for another office in the same election. (Monsale vs. Nice, 83 Phil. 758 [1949]).

It is at once evident that the importance of a valid certificate of candidacy rests at the very core of the electoral process. It cannot be taken lightly, lest there be anarchy and chaos. Verily, this explains why the law provides for grounds for the cancellation and denial of due course to certificates of candidacy.

After having considered the importance of a certificate of candidacy, it can be readily understood why in Bautistawe ruled that a person with a cancelled certificate is no candidate at all. Applying this principle to the case at bar and considering that Section 77 of the Code is clear and unequivocal that only an official candidate of a registered or accredited party may be substituted, there demonstrably cannot be any possible substitution of a person whose certificate of candidacy has been cancelled and denied due course.

Also, under ejusdem generis rule, where a general word or phrase (such as "disqualification for any cause" in this case) follows an enumeration of particular and specific words of the same class (such as the words "dies" and "withdraws" in the instant case) or where the latter follow the former, the general word or phrase is to be construed to include, or to be restricted to persons, things or cases akin to, resembling, or of the same kind or class as those specifically mentioned (see: Vera vs. Cuevas, 90 SCRA 379 [1979]). A deceased candidate is required to have duly

filed a valid certificate of candidacy, otherwise his political party would not be allowed to field a substitute candidate in his stead under Section 77 of the Code. In the case of withdrawal of candidacy, the withdrawing candidate is required to have duly filed a valid certificate of candidacy in order to allow his political party to field a substitute candidate in his stead. Most reasonable it is then, under the foregoing rule, to hold that a valid certificate of candidacy is likewise an indispensable requisite in the case of a substitution of a disqualified candidate under the provisions of Section 77 of the Code, just as it is in the two previous instances.

Furthermore, interpretatio talis in ambiguis semper freinda est, ut euiatur inconveniens et absurdum, meaning, where there is ambiguity, such interpretation as will avoid inconvenience and absurdity shall in all cases be adopted. To include those disqualified candidates whose certificate of candidacy had likewise been denied due course and/or cancelled among those who may be substituted under Section 77 of the Omnibus Election Code, leads to the absurdity where a substitute is allowed to take the place of somebody who had not been a candidate in the first place — a person who did not have a valid certificate of candidacy prior to substitution. Nemo dat quod non habet. What right can a non-candidate pass on to his substitute? Clearly, there is none because no one can give what he does not have.

Even on the most basic and fundamental principles, it is readily understood that the concept of a substitute presupposes the existence of the person to be substituted, for how can a person take the place of somebody who does not exist or who never was. The Court has no other choice but to rule that in all the instances enumerated in Section 77 of the Omnibus Election Code, the existence of a valid certificate of candidacy seasonably filed is a requisite sine qua non.

All told, a disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first place because, if the disqualified candidate did not have a valid and seasonably filed certificate of candidacy, he is and was not a candidate at all. If a person was not a candidate, he cannot be substituted under Section 77 of the Code. Besides, if we were to allow the so-called "substitute" to file a "new" and "original" certificate of candidacy beyond the period for the filing thereof, it would be a crystalline case of unequal protection of the law, an act abhorred by our Constitution.

From the foregoing discussion it is evident that the controversy at hand is not a simple case of hair-splitting. A candidate may not be qualified to run for election but may have filed a valid certificate of candidacy. Another candidate may likewise be not qualified and at the same time not have a valid certificate of candidacy, for which reason, said certificate of candidacy is also cancelled and/or denied due course. Or, a third candidate may be qualified but, his certificate of candidacy may be denied due course and/or cancelled. This is possible because the grounds for disqualification (see: Omnibus Election Code, Section 68 — Disqualifications) are totally separate and distinct from the grounds for cancellation and/or denying due course to a certificate of candidacy (Ibid., Section 69 — nuisance candidates; and Section 78 — material misrepresentation). Only the candidate who had a valid certificate of candidacy may be substituted.

The question to settle next is whether or not aside from Joel "Pempe" Miranda being disqualified by the Comelec in its May 5, 1998 resolution, his certificate of candidacy had likewise been denied due course and cancelled.

The Court rules that it was.

Private respondent's petition in SPA No. 98-019 specifically prayed for the following:

WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by respondent for the position of Mayor for the City of Santiago be not given due course and/or cancelled.

Other reliefs just and equitable in the premises are likewise prayed for.

(Rollo

In resolving the petition filed by private respondent specifying a very particular relief, the Comelec ruled favorably in the following manner:

SO ORDERED.

(p,43,

From a plain reading of the dispositive portion of the Comelec resolution of May 5, 1998 in SPA No. 98-019, it is sufficiently clear that the prayer specifically and particularly sought in the petition was GRANTED, there being no qualification on the matter whatsoever. The disqualification was simply ruled over and above the granting of the specific prayer for denial of due course and cancellation of the certificate of candidacy. It may be stressed at this instance that the legal consequences of this May 5, 1998 resolution are independent of the issue of whether or not the Comelec was correct in reviving SPA No. 98-019 by consolidating it with SPA No. 98-288 in its December 8, 1998 resolution.

As regards the procedural matter in the present petition for certiorari, the following considerations are also in point:

It may be relevantly stressed that the review powers of the Supreme Court over decisions of the Constitutional Commissions, in general, and the Commission on Elections, in particular, were rather particularly defined and "limited" by the 1987 Constitution, as they were also circumscribed in the 1973 Constitution, to a petition for review on certiorari under Rule 65. In Dario vs. Mison (176 SCRA 84 [1989]), the Court held:

. . . We affirm the teaching of Aratuc vs. Commission of Elections, 88 SCRA 251 [1979]) — as regards recourse to this Court with respect to rulings of the Civil Service Commission — which is that judgments of the Commission may be brought to the Supreme Court through certiorari alone, under Rule 65 of the Rules of Court.

In Aratuc, we declared:

It is at once evident from these constitutional and statutory modifications that there is a definite tendency to enhance and invigorate the role of the Commission on Elections as the independent constitutional body charged with the safeguarding of free, peaceful and honest elections. The framers of the new Constitution must be presumed to have definite knowledge of what it means to make the decisions, orders and rulings of the Commission "subject to review by the Supreme Court." And since instead of maintaining that provision intact, it ordained that the Commission's actuations be instead

"brought to the Supreme Court on certiorari", We cannot insist that there was no intent to change the nature of the remedy, considering that the limited scope of certiorari, compared to a review, is well known in remedial law.

xxx xxx xxx

. . . It should also be noted that under the new Constitution, as under the 1973 Charter, "any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari," which, asAratuc  tells us, "technically connotes something less than saying that the same "shall be subject to review by the Supreme Court," which in turn suggests an appeal by review by petition for review under Rule 45. Therefore, our jurisdiction over cases emanating from the Civil Service Commission is limited to complaints of lack or excess of jurisdiction or grave abuse of discretion tantamount to lack or excess of jurisdiction, complaints that justify certiorari under Rule 65.

(pp. 111-112)

To emphasize this procedural point, then Commissioner, later to become a distinguished Member of this Court, Mr. Justice Florenz Regalado responded to Commissioner Bernas' query during the deliberations of the 1987 Constitution thusly:

FR. BERNAS. So, for purposes of the record, now, what is the intention of the Committee? What are the grounds for certiorari?

MR. REGALADO. The Committee refers specifically to a technical term of review by certiorari would be relying on the provision of Rule XLV [Should be LXV] of the Rules of Court that laid down the three grounds.

(I RECORD OF THE CONSTITUTIONAL COMMISSION, p. 539, as cited in Bernas, S.J, The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 Edition, p. 903.)

Thus, we have to be guided by jurisprudence relating to review by certiorari under Rule 65. Generally, certiorarilies where a court has acted without or in excess of jurisdiction or with grave abuse of discretion. "Without jurisdiction" refers to an absolute want of jurisdiction; "excess of jurisdiction" refers to the case where the court has jurisdiction, but it transcended the same or acted without any statutory authority; "grave abuse of discretion" implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction.

Even assuming for the sake of argument that the Comelec committed an error in the exercise of its jurisdiction in the present case, such is not within the province of certiorari, as a remedial measure, to correct. The only issue that may be taken cognizance of in the present case is whether or not the Comelec committed grave abuse of discretion in rendering the assailed decision.

It is well-settled that an act of a court or tribunal may only be considered to have been done in grave abuse of discretion when the same was performed in a capricious or whimsical exercise of judgment which is equivalent to lack of jurisdiction. The abuse of discretion must be so patent

and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility (Intestate Estate of Carmen de Luna vs. Intermediate Appellate Court, 170 SCRA 246 [1989]; Litton Mills vs. Galleon Traders, 163 SCRA 489 [1988]; Butuan Bay Export Co. vs. Court of Appeals, 97 SCRA 297 [1980]). An error of judgment committed in the exercise of its legitimate jurisdiction is not the same as "grave abuse of discretion". An abuse of discretion is not sufficient by itself to justify the issuance of a writ of certiorari. The abuse must be grave and patent, and it must be shown that the discretion was exercised arbitrarily and despotically (Soriano vs. Atienza, 171 SCRA 284 [1989]).

Petitioner posits that the Comelec committed grave abuse of discretion when it annulled the substitution by and proclamation of petitioner, who under Section 77 of the Omnibus Election Code, was allowed to substitute for disqualified the candidate Jose "Pempe" Miranda. Petitioner also contends that it was an act of grave abuse of discretion for the Comelec to direct the proclamation of private respondent as the winning candidate in the May 11, 1998 election.

Petitioner further faults the Comelec for amending the dispositive portion of its resolution in SPA No. 98-019, which was not elevated to it on review, the same having already attained finality by then.

While it may be conceded that the Comelec stepped overboard and acted in excess of its jurisdiction when it motu proprio took cognizance of SPA No. 98-019, the decision in which was by then already final, it does not necessarily follow that the Comelec also committed grave abuse of discretion in resolving to grant private respondent's motion for reconsideration by nullifying the substitution of petitioner Joel G. Miranda. Evidently, what is under review before us in this certiorari proceedings is SPA No. 98-288, and not SPA No. 98-019.

The question to answer is: will the Comelec's act which may constitute an excess of jurisdiction in SPA No. 98-019 be tantamount to an act of grave abuse of discretion in its judgment in the separate and distinct case of SPA No. 98-288 as well? Clearly, non sequitur. SPA No. 98-288 should be judged on its own accord, and not under the shadow of SPA No. 98-019.

Comelec committed no grave abuse of discretion, in resolving SPA No. 98-288 in favor of private respondent. As earlier pointed out, the result in the dispositive portion of the December 8, 1998 resolution pertaining to the issues involved in SPA No. 98-288 is correct insofar as it annulled the election and proclamation of Joel G. Miranda. But even assuming for the sake of argument that it is not, still, this supposed error does not constitute grave abuse of discretion which may be annulled and reversed in the present petition for certiorari.

As earlier elucidated too, the crux of the Comelec's disposition in SPA No. 98-288 is the fact that former candidate Jose "Pempe" Miranda's certificate of candidacy was denied due course and cancelled. There is no dispute that the complaint or petition filed by private respondent in SPA No. 98-019 is one to deny due course and to cancel the certificate of candidacy of Jose "Pempe" Miranda (Rollo, pp. 26-31). There is likewise no question that the said petition was GRANTED without any qualification whatsoever. It is rather clear, therefore, that whether or not the Comelec granted any further relief in SPA No. 98-019 by disqualifying the candidate, the fact remains that the said petition was granted and that the certificate of candidacy of Jose "Pempe" Miranda was denied due course and cancelled. In fact, it was not even necessary for the Comelec to reiterate this in its December 8, 1998 resolution. At best, the Comelec's motu proprio act of resurrecting SPA No. 98-019 should be treated as a mere surplusage. The fact that the certificate of candidacy of Joel "Pempe" Miranda was denied due course and cancelled did not depend on the en banc resolution dated December 8, 1998 of the Comelec. It stems from the fact that the May 5, 1998 resolution GRANTED private respondent's Petition to Deny Due Course to and/or Cancel Certificate of Candidacy.

Verily, there is clear basis to find that there indeed was a blatant misrepresentation in the instant case and that it was a valid ground for the granting of the petition in SPA No. 98-019. Also, there appears to be sound basis to rule that a certificate of candidacy which has been denied due course on account of misrepresentation is, in every legal contemplation, no certificate at all. Ergo, there is nothing to substitute. If this judgment, rendered in the Comelec's rightful exercise of its jurisdiction in SPA No. 98-288 may, at all, be considered flawed, this blemish would only constitute an error of judgment and definitely not grave abuse of discretion. And, of course, errors of judgment may not be corrected by certiorari.

It may be noted that Commissioner Flores raised this supposed error in her dissenting opinion (pp. 93-99, Rollo). However, her legal opinion failed to convince the majority of the collegiate body and was not adopted by the Commission en banc. This Court in the present certiorari proceedings cannot substitute its judgment for that of the Comelec without violating the Constitution and the Rules of Court on the matter. The Comelec's decision is not subject to appeal to this Court. We may only strike out a Comelec decision if it was rendered without jurisdiction, in excess thereof, or with grave abuse of discretion amounting to lack of jurisdiction.

The Court cannot accede to the reasoning that this Court should now acquiesce and submit to the sovereign will of the electorate, as expressed by their votes. We should always be reminded that ours is a government of laws not of men. If this Court should fold its arms and refuse to apply the law at every "clamor" of the majority of the supposed constituency, where shall order and justice lie? Without the least intention to degrade, where shall "people power" end, and where shall "law and justice" begin? Would the apparent results of the canvassing of votes justify this Court in refusing to apply the law instead? The answers to the foregoing are obvious. The Court cannot choose otherwise but to exercise its sacred duty to uphold the Constitution and the laws of the Republic for and under which it exists. Besides, only history will discern whether Jose "Pempe" Miranda's filing of a certificate of candidacy for a 4th term and the intended substitution by his son was a ploy to perpetrate the Mirandas in power by way of a political dynasty disdained and abhorred by our Constitution which declared:

Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.

(Article II, 1987 Constitution)

The invalidation of petitioner's supposed substitution of Jose "Pempe" Miranda brings about the disqualification of petitioner in the mayoralty race. In this regard, what was said in Nolasco vs. Commission on Elections (275 SCRA 763 [1997]) may be recalled:

Our case law is now settled that in a mayoralty election, the candidate who obtained the second highest number of votes, in this case Alarilla, cannot be proclaimed winner in case the winning candidate is disqualified. Thus, we reiterated the rule in the fairly recent case of Reyes v. Comelec(254 SCRA 514 [1996]), viz.:

xxx xxx xxx

We likewise find no grave abuse of discretion on the part of the Comelec in denying petitioner Julius O. Garcia's petition to be proclaimed mayor in view of the disqualification of Renato U. Reyes.

That the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified is now settled. The doctrinal instability caused by see-sawing rulings has since been removed. In the latest ruling on the question, this Court said:

To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under the circumstances.

Garcia's plea that the votes case for Reyes be invalidated is without merit. The votes cast for Reyes are presumed to have been cast in the belief that Reyes was qualified and for that reason can be treated as stray, void and meaningless. The subsequent finding that he is disqualified cannot retroact to the date of the elections as to invalidate the votes cast for him.

Consequently, respondent Comelec committed grave abuse of discretion insofar as it failed to follow the above doctrine, a descendant of our ruling in Labo v. Comelec (176 SCRA 1[1989]).

(pp. 782-783)

Thus, the Comelec committed grave abuse of discretion insofar as it failed to follow the above-cited settled ruling consistently applied by this Court since the case of Labo vs. Comelec (176 SCRA 1 [1989]), Aquino vs. Comelec, 248 SCRA 400 [1995], Reyes vs. Comelec (254 SCRA 514 [1996]); and Nolasco vs. Comelec (275 SCRA 763 [1997]).

Even as the Court cannot accede to the contention that, in view of the election results pointing to petitioner as the electors' choice for the mayoralty post, we should now close our eyes to the pertinent provisions of the Omnibus Election Code on the matter, nevertheless, the Court duly notes that the said election results point to the fact that private respondent was not then the choice of the people of Santiago City, Isabela. This Court has no authority under any law to impose upon and compel the people of Santiago City to accept private respondent as their mayor. The law on succession under section 44 of Republic Act 7160, otherwise known as the Local Government Code, would then apply. Said provision relevantly states:

Sec. 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice Mayor, — (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor, or vice mayor, the highest ranking sanggunian member, or, in case of his permanent disability, the second highest ranking sanggunian member, shall become governor, vice governor, mayor or vice mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein.

xxx xxx xxx

For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office.

For purposes of succession as provided in this Chapter, ranking in the sanggunian shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local election.

WHEREFORE, the petition is hereby partly DENIED, insofar as the Comelec ruling to ANNUL the election and proclamation of petitioner is being AFFIRMED. The petition is, however, hereby GRANTED so as to MODIFY the resolution of the Comelec in SPA No. 98-288 by DELETING the portion directing the city board of canvassers to reconvene and proclaim the winning candidate from among those voted upon during the May 11, 1998 elections. The law on succession should be enforced. Accordingly, the restraining order issued in this case is forthwith LIFTED.

SO ORDERED.

G.R. No. 189698               February 22, 2010

ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners, vs.COMMISSION ON ELECTIONS, Respondent.

R E S O L U T I O N

PUNO, C.J.:

Upon a careful review of the case at bar, this Court resolves to grant the respondent Commission on Elections’ (COMELEC) motion for reconsideration, and the movants-intervenors’

motions for reconsideration-in-intervention, of this Court’s December 1, 2009 Decision (Decision).1

The assailed Decision granted the Petition for Certiorari and Prohibition filed by Eleazar P. Quinto and Gerino A. Tolentino, Jr. and declared as unconstitutional the second proviso in the third paragraph of Section 13 of Republic Act No. 9369,2 Section 66 of the Omnibus Election Code3 and Section 4(a) of COMELEC Resolution No. 8678,4mainly on the ground that they violate the equal protection clause of the Constitution and suffer from overbreadth. The assailed Decision thus paved the way for public appointive officials to continue discharging the powers, prerogatives and functions of their office notwithstanding their entry into the political arena.

In support of their respective motions for reconsideration, respondent COMELEC and movants-intervenors submit the following arguments:

(1) The assailed Decision is contrary to, and/or violative of, the constitutional proscription against the participation of public appointive officials and members of the military in partisan political activity;

(2) The assailed provisions do not violate the equal protection clause when they accord differential treatment to elective and appointive officials, because such differential treatment rests on material and substantial distinctions and is germane to the purposes of the law;

(3) The assailed provisions do not suffer from the infirmity of overbreadth; and

(4) There is a compelling need to reverse the assailed Decision, as public safety and interest demand such reversal.

We find the foregoing arguments meritorious.

I.

Procedural Issues

First, we shall resolve the procedural issues on the timeliness of the COMELEC’s motion for reconsideration which was filed on December 15, 2009, as well as the propriety of the motions for reconsideration-in-intervention which were filed after the Court had rendered its December 1, 2009 Decision.

i. Timeliness of COMELEC’s Motion for Reconsideration

Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court,5 in relation to Section 1, Rule 52 of the same rules,6COMELEC had a period of fifteen days from receipt of notice of the assailed Decision within which to move for its reconsideration. COMELEC received notice of the assailed Decision on December 2, 2009, hence, had until December 17, 2009 to file a Motion for Reconsideration.

The Motion for Reconsideration of COMELEC was timely filed. It was filed on December 14, 2009. The corresponding Affidavit of Service (in substitution of the one originally submitted on December 14, 2009) was subsequently filed on December 17, 2009 – still within the reglementary period.

ii. Propriety of the Motions for Reconsideration-in-Intervention

Section 1, Rule 19 of the Rules of Court provides:

A person who has legal interest in the matter in litigation or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenor’s rights may be fully protected in a separate proceeding.

Pursuant to the foregoing rule, this Court has held that a motion for intervention shall be entertained when the following requisites are satisfied: (1) the would-be intervenor shows that he has a substantial right or interest in the case; and (2) such right or interest cannot be adequately pursued and protected in another proceeding.7

Upon the other hand, Section 2, Rule 19 of the Rules of Court provides the time within which a motion for intervention may be filed, viz.:

SECTION 2. Time to intervene.– The motion for intervention may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. (italics supplied)

This rule, however, is not inflexible. Interventions have been allowed even beyond the period prescribed in the Rule, when demanded by the higher interest of justice. Interventions have also been granted to afford indispensable parties, who have not been impleaded, the right to be heard even after a decision has been rendered by the trial court,8 when the petition for review of the judgment has already been submitted for decision before the Supreme Court,9 and even where the assailed order has already become final and executory.10 In Lim v. Pacquing,11 the motion for intervention filed by the Republic of the Philippines was allowed by this Court to avoid grave injustice and injury and to settle once and for all the substantive issues raised by the parties.

In fine, the allowance or disallowance of a motion for intervention rests on the sound discretion of the court12 after consideration of the appropriate circumstances.13 We stress again that Rule 19 of the Rules of Court is a rule of procedure whose object is to make the powers of the court fully and completely available for justice.14 Its purpose is not to hinder or delay, but to facilitate and promote the administration of justice.15

We rule that, with the exception of the IBP – Cebu City Chapter, all the movants-intervenors may properly intervene in the case at bar.

First, the movants-intervenors have each sufficiently established a substantial right or interest in the case.

As a Senator of the Republic, Senator Manuel A. Roxas has a right to challenge the December 1, 2009 Decision, which nullifies a long established law; as a voter, he has a right to intervene in a matter that involves the electoral process; and as a public officer, he has a personal interest in maintaining the trust and confidence of the public in its system of government.

On the other hand, former Senator Franklin M. Drilon and Tom V. Apacible are candidates in the May 2010 elections running against appointive officials who, in view of the December 1, 2009

Decision, have not yet resigned from their posts and are not likely to resign from their posts. They stand to be directly injured by the assailed Decision, unless it is reversed.

Moreover, the rights or interests of said movants-intervenors cannot be adequately pursued and protected in another proceeding. Clearly, their rights will be foreclosed if this Court’s Decision attains finality and forms part of the laws of the land.

With regard to the IBP – Cebu City Chapter, it anchors its standing on the assertion that "this case involves the constitutionality of elections laws for this coming 2010 National Elections," and that "there is a need for it to be allowed to intervene xxx so that the voice of its members in the legal profession would also be heard before this Highest Tribunal as it resolves issues of transcendental importance."16

Prescinding from our rule and ruling case law, we find that the IBP-Cebu City Chapter has failed to present a specific and substantial interest sufficient to clothe it with standing to intervene in the case at bar. Its invoked interest is, in character, too indistinguishable to justify its intervention.

We now turn to the substantive issues.

II.

Substantive Issues

The assailed Decision struck down Section 4(a) of Resolution 8678, the second proviso in the third paragraph of Section 13 of Republic Act (RA) 9369, and Section 66 of the Omnibus Election Code, on the following grounds:

(1) They violate the equal protection clause of the Constitution because of the differential treatment of persons holding appointive offices and those holding elective positions;

(2) They are overbroad insofar as they prohibit the candidacy of all civil servants holding appointive posts: (a) without distinction as to whether or not they occupy high/influential positions in the government, and (b) they limit these civil servants’ activity regardless of whether they be partisan or nonpartisan in character, or whether they be in the national, municipal or barangay level; and

(3) Congress has not shown a compelling state interest to restrict the fundamental right of these public appointive officials.

We grant the motions for reconsideration. We now rule that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369 are not unconstitutional, and accordingly reverse our December 1, 2009 Decision.

III.

Section 4(a) of COMELEC Resolution 8678 Compliant with Law

Section 4(a) of COMELEC Resolution 8678 is a faithful reflection of the present state of the law and jurisprudence on the matter, viz.:

Incumbent Appointive Official. - Under Section 13 of RA 9369, which reiterates Section 66 of the Omnibus Election Code, any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

Incumbent Elected Official. – Upon the other hand, pursuant to Section 14 of RA 9006 or the Fair Election Act,17which repealed Section 67 of the Omnibus Election Code18 and rendered ineffective Section 11 of R.A. 8436 insofar as it considered an elected official as resigned only upon the start of the campaign period corresponding to the positions for which they are running,19 an elected official is not deemed to have resigned from his office upon the filing of his certificate of candidacy for the same or any other elected office or position. In fine, an elected official may run for another position without forfeiting his seat.

These laws and regulations implement Section 2(4), Article IX-B of the 1987 Constitution, which prohibits civil service officers and employees from engaging in any electioneering or partisan political campaign.

The intention to impose a strict limitation on the participation of civil service officers and employees in partisan political campaigns is unmistakable. The exchange between Commissioner Quesada and Commissioner Foz during the deliberations of the Constitutional Commission is instructive:

MS. QUESADA.

x x x x

Secondly, I would like to address the issue here as provided in Section 1 (4), line 12, and I quote: "No officer or employee in the civil service shall engage, directly or indirectly, in any partisan political activity." This is almost the same provision as in the 1973 Constitution. However, we in the government service have actually experienced how this provision has been violated by the direct or indirect partisan political activities of many government officials.

So, is the Committee willing to include certain clauses that would make this provision more strict, and which would deter its violation?

MR. FOZ. Madam President, the existing Civil Service Law and the implementing rules on the matter are more than exhaustive enough to really prevent officers and employees in the public service from engaging in any form of partisan political activity. But the problem really lies in implementation because, if the head of a ministry, and even the superior officers of offices and agencies of government will themselves violate the constitutional injunction against partisan political activity, then no string of words that we may add to what is now here in this draft will really implement the constitutional intent against partisan political activity. x x x20 (italics supplied)

To emphasize its importance, this constitutional ban on civil service officers and employees is presently reflected and implemented by a number of statutes. Section 46(b)(26), Chapter 7 and Section 55, Chapter 8 – both of Subtitle A, Title I, Book V of the Administrative Code of 1987 – respectively provide in relevant part:

Section 44. Discipline: General Provisions:

x x x x

(b) The following shall be grounds for disciplinary action:

x x x x

(26) Engaging directly or indirectly in partisan political activities by one holding a non-political office.

x x x x

Section 55. Political Activity. — No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of his candidates for public office whom he supports: Provided, That public officers and employees holding political offices may take part in political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code.

Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus Election Code) further makes intervention by civil service officers and employees in partisan political activities an election offense, viz.:

SECTION 261. Prohibited Acts. — The following shall be guilty of an election offense:

x x x x

(i) Intervention of public officers and employees. — Any officer or employee in the civil service, except those holding political offices; any officer, employee, or member of the Armed Forces of the Philippines, or any police force, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes in any election campaign or engages in any partisan political activity, except to vote or to preserve public order, if he is a peace officer.

The intent of both Congress and the framers of our Constitution to limit the participation of civil service officers and employees in partisan political activities is too plain to be mistaken.

But Section 2(4), Article IX-B of the 1987 Constitution and the implementing statutes apply only to civil servants holding apolitical offices. Stated differently, the constitutional ban does not cover elected officials, notwithstanding the fact that "[t]he civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters."21 This is because elected public officials, by the very nature of their office, engage in partisan political activities almost all year round, even outside of the campaign period.22 Political partisanship is the inevitable essence of a political office, elective positions included.23

The prohibition notwithstanding, civil service officers and employees are allowed to vote, as well as express their views on political issues, or mention the names of certain candidates for public office whom they support. This is crystal clear from the deliberations of the Constitutional Commission, viz.:

MS. AQUINO: Mr. Presiding Officer, my proposed amendment is on page 2, Section 1, subparagraph 4, lines 13 and 14. On line 13, between the words "any" and "partisan," add the phrase ELECTIONEERING AND OTHER; and on line 14, delete the word "activity" and in lieu thereof substitute the word CAMPAIGN.

May I be allowed to explain my proposed amendment?

THE PRESIDING OFFICER (Mr. Treñas): Commissioner Aquino may proceed.

MS. AQUINO: The draft as presented by the Committee deleted the phrase "except to vote" which was adopted in both the 1935 and 1973 Constitutions. The phrase "except to vote" was not intended as a guarantee to the right to vote but as a qualification of the general prohibition against taking part in elections.

Voting is a partisan political activity. Unless it is explicitly provided for as an exception to this prohibition, it will amount to disenfranchisement. We know that suffrage, although plenary, is not an unconditional right. In other words, the Legislature can always pass a statute which can withhold from any class the right to vote in an election, if public interest so required. I would only like to reinstate the qualification by specifying the prohibited acts so that those who may want to vote but who are likewise prohibited from participating in partisan political campaigns or electioneering may vote.

MR. FOZ: There is really no quarrel over this point, but please understand that there was no intention on the part of the Committee to disenfranchise any government official or employee. The elimination of the last clause of this provision was precisely intended to protect the members of the civil service in the sense that they are not being deprived of the freedom of expression in a political contest. The last phrase or clause might have given the impression that a government employee or worker has no right whatsoever in an election campaign except to vote, which is not the case. They are still free to express their views although the intention is not really to allow them to take part actively in a political campaign.24

IV.

Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code Do Not Violate the Equal Protection Clause

We now hold that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369 are not violative of the equal protection clause of the Constitution.

i. Fariñas, et al. v. Executive Secretary, et al. is Controlling

In truth, this Court has already ruled squarely on whether these deemed-resigned provisions challenged in the case at bar violate the equal protection clause of the Constitution in Fariñas, et al. v. Executive Secretary, et al.25

In Fariñas, the constitutionality of Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, was assailed on the ground, among others, that it unduly discriminates against appointive officials. As Section 14 repealed Section 67 (i.e., the deemed-resigned provision in respect of elected officials) of the Omnibus Election Code, elected officials are no longer considered ipso facto resigned from their respective offices upon their filing of certificates of candidacy. In contrast, since Section 66 was not repealed, the limitation on appointive officials continues to be operative – they are deemed resigned when they file their certificates of candidacy.

The petitioners in Fariñas thus brought an equal protection challenge against Section 14, with the end in view of having the deemed-resigned provisions "apply equally" to both elected and appointive officials. We held, however, that the legal dichotomy created by the Legislature is a reasonable classification, as there are material and significant distinctions between the two classes of officials. Consequently, the contention that Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, infringed on the equal protection clause of the Constitution, failed muster. We ruled:

The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous.

The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this manner:

The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not.

Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority.

Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take (sic) part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities.

By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification.

Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-à-vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed.26

The case at bar is a crass attempt to resurrect a dead issue. The miracle is that our assailed Decision gave it new life. We ought to be guided by the doctrine of stare decisis et non quieta movere. This doctrine, which is really "adherence to precedents," mandates that once a case has been decided one way, then another case involving exactly the same point at issue should be decided in the same manner.27 This doctrine is one of policy grounded on the necessity for securing certainty and stability of judicial decisions. As the renowned jurist Benjamin Cardozo stated in his treatise The Nature of the Judicial Process:

It will not do to decide the same question one way between one set of litigants and the opposite way between another. "If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights." Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts.28

Our Fariñas ruling on the equal protection implications of the deemed-resigned provisions cannot be minimalized as mere obiter dictum. It is trite to state that an adjudication on any point within the issues presented by the case cannot be considered as obiter dictum.29 This rule applies to all pertinent questions that are presented and resolved in the regular course of the consideration of the case and lead up to the final conclusion, and to any statement as to the matter on which the decision is predicated.30 For that reason, a point expressly decided does not lose its value as a precedent because the disposition of the case is, or might have been, made on some other ground; or even though, by reason of other points in the case, the result reached might have been the same if the court had held, on the particular point, otherwise than it did.31 As we held in Villanueva, Jr. v. Court of Appeals, et al.:32

… A decision which the case could have turned on is not regarded as obiter dictum merely because, owing to the disposal of the contention, it was necessary to consider another question, nor can an additional reason in a decision, brought forward after the case has been disposed of on one ground, be regarded as dicta. So, also, where a case presents two (2) or more points, any one of which is sufficient to determine the ultimate issue, but the court actually decides all such points, the case as an authoritative precedent as to every point decided, and none of such points can be regarded as having the status of a dictum, and one point should not be denied authority merely because another point was more dwelt on and more fully argued and considered, nor does a decision on one proposition make statements of the court regarding other propositions dicta.33 (italics supplied)

ii. Classification Germane to the Purposes of the Law

The Fariñas ruling on the equal protection challenge stands on solid ground even if reexamined.

To start with, the equal protection clause does not require the universal application of the laws to all persons or things without distinction.34 What it simply requires is equality among equals as determined according to a valid classification.35 The test developed by jurisprudence here and yonder is that of reasonableness,36 which has four requisites:

(1) The classification rests on substantial distinctions;

(2) It is germane to the purposes of the law;

(3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class.37

Our assailed Decision readily acknowledged that these deemed-resigned provisions satisfy the first, third and fourth requisites of reasonableness. It, however, proffers the dubious conclusion that the differential treatment of appointive officials vis-à-vis elected officials is not germane to the purpose of the law, because "whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain," viz.:

… For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield the same influence as the Vice-President who at the same time is appointed to a Cabinet post (in the recent past, elected Vice-Presidents were appointed to take charge of national housing, social welfare development, interior and local government, and foreign affairs). With the fact that they both head executive offices, there is no valid justification to treat them differently when both file their [Certificates of Candidacy] for the elections. Under the present state of our law, the Vice-President, in the example, running this time, let us say, for President, retains his position during the entire election period and can still use the resources of his office to support his campaign.38

Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an injustice, the Legislature need not address every manifestation of the evil at once; it may proceed "one step at a time."39 In addressing a societal concern, it must invariably draw lines and make choices, thereby creating some inequity as to those included or excluded.40 Nevertheless, as long as "the bounds of reasonable choice" are not exceeded, the courts must defer to the legislative judgment.41 We may not strike down a law merely because the legislative aim would have been more fully achieved by expanding the class.42 Stated differently, the fact that a legislative classification, by itself, is underinclusive will not render it unconstitutionally arbitrary or invidious.43 There is no constitutional requirement that regulation must reach each and every class to which it might be applied;44 that the Legislature must be held rigidly to the choice of regulating all or none.

Thus, any person who poses an equal protection challenge must convincingly show that the law creates a classification that is "palpably arbitrary or capricious."45 He must refute all possible rational bases for the differing treatment, whether or not the Legislature cited those bases as reasons for the enactment,46 such that the constitutionality of the law must be sustained even if the reasonableness of the classification is "fairly debatable."47 In the case at bar, the petitioners failed – and in fact did not even attempt – to discharge this heavy burden. Our assailed Decision was likewise silent as a sphinx on this point even while we submitted the following thesis:

... [I]t is not sufficient grounds for invalidation that we may find that the statute’s distinction is unfair, underinclusive, unwise, or not the best solution from a public-policy standpoint; rather, we must find that there is no reasonably rational reason for the differing treatment.48

In the instant case, is there a rational justification for excluding elected officials from the operation of the deemed resigned provisions? I submit that there is.

An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people.49 It involves the choice or selection of candidates to public office by popular vote.50 Considering that elected officials are put in office by their constituents for a definite term, it may justifiably be said that they were excluded from the ambit of the deemed resigned provisions in utmost respect for the mandate of the sovereign will. In other words,

complete deference is accorded to the will of the electorate that they be served by such officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar as appointed officials are concerned.

The dichotomized treatment of appointive and elective officials is therefore germane to the purposes of the law. For the law was made not merely to preserve the integrity, efficiency, and discipline of the public service; the Legislature, whose wisdom is outside the rubric of judicial scrutiny, also thought it wise to balance this with the competing, yet equally compelling, interest of deferring to the sovereign will.51 (emphasis in the original)

In fine, the assailed Decision would have us "equalize the playing field" by invalidating provisions of law that seek to restrain the evils from running riot. Under the pretext of equal protection, it would favor a situation in which the evils are unconfined and vagrant, existing at the behest of both appointive and elected officials, over another in which a significant portion thereof is contained. The absurdity of that position is self-evident, to say the least.

The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his dissent, that elected officials (vis-à-vis appointive officials) have greater political clout over the electorate, is indeed a matter worth exploring – but not by this Court. Suffice it to say that the remedy lies with the Legislature. It is the Legislature that is given the authority, under our constitutional system, to balance competing interests and thereafter make policy choices responsive to the exigencies of the times. It is certainly within the Legislature’s power to make the deemed-resigned provisions applicable to elected officials, should it later decide that the evils sought to be prevented are of such frequency and magnitude as to tilt the balance in favor of expanding the class. This Court cannot and should not arrogate unto itself the power to ascertain and impose on the people the best state of affairs from a public policy standpoint.

iii. Mancuso v. Taft Has Been Overruled

Finding no Philippine jurisprudence to prop up its equal protection ruling, our assailed Decision adverted to, and extensively cited, Mancuso v. Taft.52 This was a decision of the First Circuit of the United States Court of Appeals promulgated in March 1973, which struck down as unconstitutional a similar statutory provision. Pathetically, our assailed Decision, relying on Mancuso, claimed:

(1) The right to run for public office is "inextricably linked" with two fundamental freedoms – freedom of expression and association;

(2) Any legislative classification that significantly burdens this fundamental right must be subjected to strict equal protection review; and

(3) While the state has a compelling interest in maintaining the honesty and impartiality of its public work force, the deemed-resigned provisions pursue their objective in a far too heavy-handed manner as to render them unconstitutional.

It then concluded with the exhortation that since "the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too, should follow suit."

Our assailed Decision’s reliance on Mancuso is completely misplaced. We cannot blink away the fact that the United States Supreme Court effectively overruled Mancuso three months after its promulgation by the United States Court of Appeals. In United States Civil Service Commission, et al. v. National Association of Letter Carriers AFL-CIO, et al.53 and Broadrick, et al. v. State of

Oklahoma, et al.,54 the United States Supreme Court was faced with the issue of whether statutory provisions prohibiting federal55 and state56 employees from taking an active part in political management or in political campaigns were unconstitutional as to warrant facial invalidation. Violation of these provisions results in dismissal from employment and possible criminal sanctions.

The Court declared these provisions compliant with the equal protection clause. It held that (i) in regulating the speech of its employees, the state as employer has interests that differ significantly from those it possesses in regulating the speech of the citizenry in general; (ii) the courts must therefore balance the legitimate interest of employee free expression against the interests of the employer in promoting efficiency of public services; (iii) if the employees’ expression interferes with the maintenance of efficient and regularly functioning services, the limitation on speech is not unconstitutional; and (iv) the Legislature is to be given some flexibility or latitude in ascertaining which positions are to be covered by any statutory restrictions.57 Therefore, insofar as government employees are concerned, the correct standard of review is an interest-balancing approach, a means-end scrutiny that examines the closeness of fit between the governmental interests and the prohibitions in question.58

Letter Carriers elucidated on these principles, as follows:

Until now, the judgment of Congress, the Executive, and the country appears to have been that partisan political activities by federal employees must be limited if the Government is to operate effectively and fairly, elections are to play their proper part in representative government, and employees themselves are to be sufficiently free from improper influences. The restrictions so far imposed on federal employees are not aimed at particular parties, groups, or points of view, but apply equally to all partisan activities of the type described. They discriminate against no racial, ethnic, or religious minorities. Nor do they seek to control political opinions or beliefs, or to interfere with or influence anyone's vote at the polls.

But, as the Court held in Pickering v. Board of Education,59 the government has an interest in regulating the conduct and ‘the speech of its employees that differ(s) significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the (employee), as a citizen, in commenting upon matters of public concern and the interest of the (government), as an employer, in promoting the efficiency of the public services it performs through its employees.’ Although Congress is free to strike a different balance than it has, if it so chooses, we think the balance it has so far struck is sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act.

It seems fundamental in the first place that employees in the Executive Branch of the Government, or those working for any of its agencies, should administer the law in accordance with the will of Congress, rather than in accordance with their own or the will of a political party. They are expected to enforce the law and execute the programs of the Government without bias or favoritism for or against any political party or group or the members thereof. A major thesis of the Hatch Act is that to serve this great end of Government-the impartial execution of the laws-it is essential that federal employees, for example, not take formal positions in political parties, not undertake to play substantial roles in partisan political campaigns, and not run for office on partisan political tickets. Forbidding activities like these will reduce the hazards to fair and effective government.

There is another consideration in this judgment: it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent.

Another major concern of the restriction against partisan activities by federal employees was perhaps the immediate occasion for enactment of the Hatch Act in 1939. That was the conviction that the rapidly expanding Government work force should not be employed to build a powerful, invincible, and perhaps corrupt political machine. The experience of the 1936 and 1938 campaigns convinced Congress that these dangers were sufficiently real that substantial barriers should be raised against the party in power-or the party out of power, for that matter-using the thousands or hundreds of thousands of federal employees, paid for at public expense, to man its political structure and political campaigns.

A related concern, and this remains as important as any other, was to further serve the goal that employment and advancement in the Government service not depend on political performance, and at the same time to make sure that Government employees would be free from pressure and from express or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their superiors rather than to act out their own beliefs. It may be urged that prohibitions against coercion are sufficient protection; but for many years the joint judgment of the Executive and Congress has been that to protect the rights of federal employees with respect to their jobs and their political acts and beliefs it is not enough merely to forbid one employee to attempt to influence or coerce another. For example, at the hearings in 1972 on proposed legislation for liberalizing the prohibition against political activity, the Chairman of the Civil Service Commission stated that ‘the prohibitions against active participation in partisan political management and partisan political campaigns constitute the most significant safeguards against coercion . . ..’ Perhaps Congress at some time will come to a different view of the realities of political life and Government service; but that is its current view of the matter, and we are not now in any position to dispute it. Nor, in our view, does the Constitution forbid it.

Neither the right to associate nor the right to participate in political activities is absolute in any event.60 x x x

x x x x

As we see it, our task is not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations. (italics supplied)

Broadrick likewise definitively stated that the assailed statutory provision is constitutionally permissible, viz.:

Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan political conduct of state employees. Appellants freely concede that such restrictions serve valid and important state interests, particularly with respect to attracting greater numbers of qualified people by insuring their job security, free from the vicissitudes of the elective process, and by protecting them from ‘political extortion.’ Rather, appellants maintain that however permissible, even commendable, the goals of s 818 may be, its language is unconstitutionally vague and its prohibitions too broad in their sweep, failing to distinguish between conduct that may be proscribed and conduct that must be permitted. For these and other reasons, appellants assert that the sixth and seventh paragraphs of s 818 are void in toto and cannot be enforced against them or anyone else.

We have held today that the Hatch Act is not impermissibly vague.61 We have little doubt that s 818 is similarly not so vague that ‘men of common intelligence must necessarily guess at its meaning.’62 Whatever other problems there are with s 818, it is all but frivolous to suggest that the section fails to give adequate warning of what activities it proscribes or fails to set out ‘explicit standards' for those who must apply it. In the plainest language, it prohibits any state classified employee from being ‘an officer or member’ of a ‘partisan political club’ or a candidate for ‘any paid public office.’ It forbids solicitation of contributions ‘for any political organization, candidacy or other political purpose’ and taking part ‘in the management or affairs of any political

party or in any political campaign.’ Words inevitably contain germs of uncertainty and, as with the Hatch Act, there may be disputes over the meaning of such terms in s 818 as ‘partisan,’ or ‘take part in,’ or ‘affairs of’ political parties. But what was said in Letter Carriers, is applicable here: ‘there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.' x x x

x x x x

[Appellants] nevertheless maintain that the statute is overbroad and purports to reach protected, as well as unprotected conduct, and must therefore be struck down on its face and held to be incapable of any constitutional application. We do not believe that the overbreadth doctrine may appropriately be invoked in this manner here.

x x x x

The consequence of our departure from traditional rules of standing in the First Amendment area is that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. x x x

x x x But the plain import of our cases is, at the very least, that facial over-breadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from ‘pure speech’ toward conduct and that conduct-even if expressive-falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect-at best a prediction-cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It is our view that s 818 is not substantially overbroad and that whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.

Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s 818 is directed, by its terms, at political expression which if engaged in by private persons would plainly be protected by the First and Fourteenth Amendments. But at the same time, s 818 is not a censorial statute, directed at particular groups or viewpoints. The statute, rather, seeks to regulate political activity in an even-handed and neutral manner. As indicted, such statutes have in the past been subject to a less exacting overbreadth scrutiny. Moreover, the fact remains that s 818 regulates a substantial spectrum of conduct that is as manifestly subject to state regulation as the public peace or criminal trespass. This much was established in United Public Workers v. Mitchell, and has been unhesitatingly reaffirmed today in Letter Carriers. Under the decision in Letter Carriers, there is no question that s 818 is valid at least insofar as it forbids classified employees from: soliciting contributions for partisan candidates, political parties, or other partisan political purposes; becoming members of national, state, or local committees of political parties, or officers or committee members in partisan political clubs, or candidates for any paid public office; taking part in the management or affairs of any political party's partisan political campaign; serving as delegates or alternates to caucuses or conventions of political

parties; addressing or taking an active part in partisan political rallies or meetings; soliciting votes or assisting voters at the polls or helping in a partisan effort to get voters to the polls; participating in the distribution of partisan campaign literature; initiating or circulating partisan nominating petitions; or riding in caravans for any political party or partisan political candidate.

x x x It may be that such restrictions are impermissible and that s 818 may be susceptible of some other improper applications. But, as presently construed, we do not believe that s 818 must be discarded in toto because some persons’ arguably protected conduct may or may not be caught or chilled by the statute. Section 818 is not substantially overbroad and it not, therefore, unconstitutional on its face. (italics supplied)

It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not deny the principles enunciated in Letter Carriers and Broadrick. He would hold, nonetheless, that these cases cannot be interpreted to mean a reversal of Mancuso, since they "pertain to different types of laws and were decided based on a different set of facts," viz.:

In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or threatening to enforce, the Hatch Act’s prohibition against "active participation in political management or political campaigns." The plaintiffs desired to campaign for candidates for public office, to encourage and get federal employees to run for state and local offices, to participate as delegates in party conventions, and to hold office in a political club.

In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision in the (sic) Oklahoma’s Merit System of Personnel Administration Act restricting the political activities of the State’s classified civil servants, in much the same manner as the Hatch Act proscribed partisan political activities of federal employees. Prior to the commencement of the action, the appellants actively participated in the 1970 reelection campaign of their superior, and were administratively charged for asking other Corporation Commission employees to do campaign work or to give referrals to persons who might help in the campaign, for soliciting money for the campaign, and for receiving and distributing campaign posters in bulk.

Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision. Kenneth Mancuso, a full time police officer and classified civil service employee of the City of Cranston, filed as a candidate for nomination as representative to the Rhode Island General Assembly. The Mayor of Cranston then began the process of enforcing the resign-to-run provision of the City Home Rule Charter.

Clearly, as the above-cited US cases pertain to different types of laws and were decided based on a different set of facts, Letter Carriers and Broadrick cannot be interpreted to mean a reversal of Mancuso. x x x (italics in the original)

We hold, however, that his position is belied by a plain reading of these cases. Contrary to his claim, Letter Carriers, Broadrick and Mancuso all concerned the constitutionality of resign-to-run laws, viz.:

(1) Mancuso involved a civil service employee who filed as a candidate for nomination as representative to the Rhode Island General Assembly. He assailed the constitutionality of §14.09(c) of the City Home Rule Charter, which prohibits "continuing in the classified service of the city after becoming a candidate for nomination or election to any public office."

(2) Letter Carriers involved plaintiffs who alleged that the Civil Service Commission was enforcing, or threatening to enforce, the Hatch Act’s prohibition against "active participation in political management or political campaigns"63 with respect to certain

defined activities in which they desired to engage. The plaintiffs relevant to this discussion are:

(a) The National Association of Letter Carriers, which alleged that its members were desirous of, among others, running in local elections for offices such as school board member, city council member or mayor;

(b) Plaintiff Gee, who alleged that he desired to, but did not, file as a candidate for the office of Borough Councilman in his local community for fear that his participation in a partisan election would endanger his job; and

(c) Plaintiff Myers, who alleged that he desired to run as a Republican candidate in the 1971 partisan election for the mayor of West Lafayette, Indiana, and that he would do so except for fear of losing his job by reason of violation of the Hatch Act.

The Hatch Act defines "active participation in political management or political campaigns" by cross-referring to the rules made by the Civil Service Commission. The rule pertinent to our inquiry states:

30. Candidacy for local office: Candidacy for a nomination or for election to any National, State, county, or municipal office is not permissible. The prohibition against political activity extends not merely to formal announcement of candidacy but also to the preliminaries leading to such announcement and to canvassing or soliciting support or doing or permitting to be done any act in furtherance of candidacy. The fact that candidacy, is merely passive is immaterial; if an employee acquiesces in the efforts of friends in furtherance of such candidacy such acquiescence constitutes an infraction of the prohibitions against political activity. (italics supplied)

Section 9(b) requires the immediate removal of violators and forbids the use of appropriated funds thereafter to pay compensation to these persons.64

(3) Broadrick was a class action brought by certain Oklahoma state employees seeking a declaration of unconstitutionality of two sub-paragraphs of Section 818 of Oklahoma’s Merit System of Personnel Administration Act. Section 818 (7), the paragraph relevant to this discussion, states that "[n]o employee in the classified service shall be … a candidate for nomination or election to any paid public office…" Violation of Section 818 results in dismissal from employment, possible criminal sanctions and limited state employment ineligibility.

Consequently, it cannot be denied that Letter Carriers and Broadrick effectively overruled Mancuso. By no stretch of the imagination could Mancuso still be held operative, as Letter Carriers and Broadrick (i) concerned virtually identical resign-to-run laws, and (ii) were decided by a superior court, the United States Supreme Court. It was thus not surprising for the First Circuit Court of Appeals – the same court that decided Mancuso – to hold categorically and emphatically in Magill v. Lynch65 that Mancuso is no longer good law. As we priorly explained:

Magill involved Pawtucket, Rhode Island firemen who ran for city office in 1975. Pawtucket’s "Little Hatch Act" prohibits city employees from engaging in a broad range of political activities. Becoming a candidate for any city office is specifically proscribed,66 the violation being punished by removal from office or immediate dismissal. The firemen brought an action against the city officials on the ground that that the provision of the city charter was unconstitutional. However, the court, fully cognizant of Letter Carriers and Broadrick, took the position that Mancuso had since lost considerable vitality. It observed that the view that political candidacy was a fundamental interest which could be infringed upon only if less restrictive alternatives were not

available, was a position which was no longer viable, since the Supreme Court (finding that the government’s interest in regulating both the conduct and speech of its employees differed significantly from its interest in regulating those of the citizenry in general) had given little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of Congress, and applying a "balancing" test to determine whether limits on political activity by public employees substantially served government interests which were "important" enough to outweigh the employees’ First Amendment rights.67

It must be noted that the Court of Appeals ruled in this manner even though the election in Magill was characterized as nonpartisan, as it was reasonable for the city to fear, under the circumstances of that case, that politically active bureaucrats might use their official power to help political friends and hurt political foes. Ruled the court:

The question before us is whether Pawtucket's charter provision, which bars a city employee's candidacy in even a nonpartisan city election, is constitutional. The issue compels us to extrapolate two recent Supreme Court decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers and Broadrick v. Oklahoma. Both dealt with laws barring civil servants from partisan political activity. Letter Carriers reaffirmed United Public Workers v. Mitchell, upholding the constitutionality of the Hatch Act as to federal employees. Broadrick sustained Oklahoma's "Little Hatch Act" against constitutional attack, limiting its holding to Oklahoma's construction that the Act barred only activity in partisan politics. In Mancuso v. Taft, we assumed that proscriptions of candidacy in nonpartisan elections would not be constitutional. Letter Carriers and Broadrick compel new analysis.

x x x x

What we are obligated to do in this case, as the district court recognized, is to apply the Court’s interest balancing approach to the kind of nonpartisan election revealed in this record. We believe that the district court found more residual vigor in our opinion in Mancuso v. Taft than remains after Letter Carriers. We have particular reference to our view that political candidacy was a fundamental interest which could be trenched upon only if less restrictive alternatives were not available. While this approach may still be viable for citizens who are not government employees, the Court in Letter Carriers recognized that the government's interest in regulating both the conduct and speech of its employees differs significantly from its interest in regulating those of the citizenry in general. Not only was United Public Workers v. Mitchell "unhesitatingly" reaffirmed, but the Court gave little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of the Congress. We cannot be more precise than the Third Circuit in characterizing the Court's approach as "some sort of 'balancing' process".68 It appears that the government may place limits on campaigning by public employees if the limits substantially serve government interests that are "important" enough to outweigh the employees' First Amendment rights. x x x (italics supplied)

Upholding thus the constitutionality of the law in question, the Magill court detailed the major governmental interests discussed in Letter Carriers and applied them to the Pawtucket provision as follows:

In Letter Carriers[,] the first interest identified by the Court was that of an efficient government, faithful to the Congress rather than to party. The district court discounted this interest, reasoning that candidates in a local election would not likely be committed to a state or national platform. This observation undoubtedly has substance insofar as allegiance to broad policy positions is concerned. But a different kind of possible political intrusion into efficient administration could be thought to threaten municipal government: not into broad policy decisions, but into the particulars of administration favoritism in minute decisions affecting welfare, tax assessments,

municipal contracts and purchasing, hiring, zoning, licensing, and inspections. Just as the Court in Letter Carriers identified a second governmental interest in the avoidance of the appearance of "political justice" as to policy, so there is an equivalent interest in avoiding the appearance of political preferment in privileges, concessions, and benefits. The appearance (or reality) of favoritism that the charter's authors evidently feared is not exorcised by the nonpartisan character of the formal election process. Where, as here, party support is a key to successful campaigning, and party rivalry is the norm, the city might reasonably fear that politically active bureaucrats would use their official power to help political friends and hurt political foes. This is not to say that the city's interest in visibly fair and effective administration necessarily justifies a blanket prohibition of all employee campaigning; if parties are not heavily involved in a campaign, the danger of favoritism is less, for neither friend nor foe is as easily identified.

A second major governmental interest identified in Letter Carriers was avoiding the danger of a powerful political machine. The Court had in mind the large and growing federal bureaucracy and its partisan potential. The district court felt this was only a minor threat since parties had no control over nominations. But in fact candidates sought party endorsements, and party endorsements proved to be highly effective both in determining who would emerge from the primary election and who would be elected in the final election. Under the prevailing customs, known party affiliation and support were highly significant factors in Pawtucket elections. The charter's authors might reasonably have feared that a politically active public work force would give the incumbent party, and the incumbent workers, an unbreakable grasp on the reins of power. In municipal elections especially, the small size of the electorate and the limited powers of local government may inhibit the growth of interest groups powerful enough to outbalance the weight of a partisan work force. Even when nonpartisan issues and candidacies are at stake, isolated government employees may seek to influence voters or their co-workers improperly; but a more real danger is that a central party structure will mass the scattered powers of government workers behind a single party platform or slate. Occasional misuse of the public trust to pursue private political ends is tolerable, especially because the political views of individual employees may balance each other out. But party discipline eliminates this diversity and tends to make abuse systematic. Instead of a handful of employees pressured into advancing their immediate superior's political ambitions, the entire government work force may be expected to turn out for many candidates in every election. In Pawtucket, where parties are a continuing presence in political campaigns, a carefully orchestrated use of city employees in support of the incumbent party's candidates is possible. The danger is scarcely lessened by the openness of Pawtucket's nominating procedure or the lack of party labels on its ballots.

The third area of proper governmental interest in Letter Carriers was ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity. The district court did not address this factor, but looked only to the possibility of a civil servant using his position to influence voters, and held this to be no more of a threat than in the most nonpartisan of elections. But we think that the possibility of coercion of employees by superiors remains as strong a factor in municipal elections as it was in Letter Carriers. Once again, it is the systematic and coordinated exploitation of public servants for political ends that a legislature is most likely to see as the primary threat of employees' rights. Political oppression of public employees will be rare in an entirely nonpartisan system. Some superiors may be inclined to ride herd on the politics of their employees even in a nonpartisan context, but without party officials looking over their shoulders most supervisors will prefer to let employees go their own ways.

In short, the government may constitutionally restrict its employees' participation in nominally nonpartisan elections if political parties play a large role in the campaigns. In the absence of substantial party involvement, on the other hand, the interests identified by the Letter Carriers Court lose much of their force. While the employees' First Amendment rights would normally outbalance these diminished interests, we do not suggest that they would always do so. Even when parties are absent, many employee campaigns might be thought to endanger at least one strong public interest, an interest that looms larger in the context of municipal elections than it does in the national elections considered in Letter Carriers. The city could reasonably fear the

prospect of a subordinate running directly against his superior or running for a position that confers great power over his superior. An employee of a federal agency who seeks a Congressional seat poses less of a direct challenge to the command and discipline of his agency than a fireman or policeman who runs for mayor or city council. The possibilities of internal discussion, cliques, and political bargaining, should an employee gather substantial political support, are considerable. (citations omitted)

The court, however, remanded the case to the district court for further proceedings in respect of the petitioners’ overbreadth charge. Noting that invalidating a statute for being overbroad is "not to be taken lightly, much less to be taken in the dark," the court held:

The governing case is Broadrick, which introduced the doctrine of "substantial" overbreadth in a closely analogous case. Under Broadrick, when one who challenges a law has engaged in constitutionally unprotected conduct (rather than unprotected speech) and when the challenged law is aimed at unprotected conduct, "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Two major uncertainties attend the doctrine: how to distinguish speech from conduct, and how to define "substantial" overbreadth. We are spared the first inquiry by Broadrick itself. The plaintiffs in that case had solicited support for a candidate, and they were subject to discipline under a law proscribing a wide range of activities, including soliciting contributions for political candidates and becoming a candidate. The Court found that this combination required a substantial overbreadth approach. The facts of this case are so similar that we may reach the same result without worrying unduly about the sometimes opaque distinction between speech and conduct.

The second difficulty is not so easily disposed of. Broadrick found no substantial overbreadth in a statute restricting partisan campaigning. Pawtucket has gone further, banning participation in nonpartisan campaigns as well. Measuring the substantiality of a statute's overbreadth apparently requires, inter alia, a rough balancing of the number of valid applications compared to the number of potentially invalid applications. Some sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable. The question is a matter of degree; it will never be possible to say that a ratio of one invalid to nine valid applications makes a law substantially overbroad. Still, an overbreadth challenger has a duty to provide the court with some idea of the number of potentially invalid applications the statute permits. Often, simply reading the statute in the light of common experience or litigated cases will suggest a number of probable invalid applications. But this case is different. Whether the statute is overbroad depends in large part on the number of elections that are insulated from party rivalry yet closed to Pawtucket employees. For all the record shows, every one of the city, state, or federal elections in Pawtucket is actively contested by political parties. Certainly the record suggests that parties play a major role even in campaigns that often are entirely nonpartisan in other cities. School committee candidates, for example, are endorsed by the local Democratic committee.

The state of the record does not permit us to find overbreadth; indeed such a step is not to be taken lightly, much less to be taken in the dark. On the other hand, the entire focus below, in the short period before the election was held, was on the constitutionality of the statute as applied. Plaintiffs may very well feel that further efforts are not justified, but they should be afforded the opportunity to demonstrate that the charter forecloses access to a significant number of offices, the candidacy for which by municipal employees would not pose the possible threats to government efficiency and integrity which Letter Carriers, as we have interpreted it, deems significant. Accordingly, we remand for consideration of plaintiffs' overbreadth claim. (italics supplied, citations omitted)

Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt that Mancuso v. Taft, heavily relied upon by the ponencia, has effectively been overruled.69 As it is no longer good law, the ponencia’s exhortation that "[since] the Americans, from whom we copied the provision in

question, had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too, should follow suit" is misplaced and unwarranted.70

Accordingly, our assailed Decision’s submission that the right to run for public office is "inextricably linked" with two fundamental freedoms – those of expression and association – lies on barren ground. American case law has in fact never recognized a fundamental right to express one’s political views through candidacy,71 as to invoke a rigorous standard of review.72 Bart v. Telford73 pointedly stated that "[t]he First Amendment does not in terms confer a right to run for public office, and this court has held that it does not do so by implication either." Thus, one’s interest in seeking office, by itself, is not entitled to constitutional protection.74 Moreover, one cannot bring one’s action under the rubric of freedom of association, absent any allegation that, by running for an elective position, one is advancing the political ideas of a particular set of voters.75

Prescinding from these premises, it is crystal clear that the provisions challenged in the case at bar, are not violative of the equal protection clause. The deemed-resigned provisions substantially serve governmental interests (i.e., (i) efficient civil service faithful to the government and the people rather than to party; (ii) avoidance of the appearance of "political justice" as to policy; (iii) avoidance of the danger of a powerful political machine; and (iv) ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity). These are interests that are important enough to outweigh the non-fundamental right of appointive officials and employees to seek elective office.1avvphi1

En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v. Fashing76 and Morial, et al. v. Judiciary Commission of the State of Louisiana, et al.77 to buttress his dissent. Maintaining that resign-to-run provisions are valid only when made applicable to specified officials, he explains:

…U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run provisions when applied to specified or particular officials, as distinguished from all others,78 under a classification that is germane to the purposes of the law. These resign-to-run legislations were not expressed in a general and sweeping provision, and thus did not violate the test of being germane to the purpose of the law, the second requisite for a valid classification. Directed, as they were, to particular officials, they were not overly encompassing as to be overbroad. (emphasis in the original)

This reading is a regrettable misrepresentation of Clements and Morial. The resign-to-run provisions in these cases were upheld not because they referred to specified or particular officials (vis-à-vis a general class); the questioned provisions were found valid precisely because the Court deferred to legislative judgment and found that a regulation is not devoid of a rational predicate simply because it happens to be incomplete. In fact, the equal protection challenge in Clements revolved around the claim that the State of Texas failed to explain why some public officials are subject to the resign-to-run provisions, while others are not. Ruled the United States Supreme Court:

Article XVI, § 65, of the Texas Constitution provides that the holders of certain offices automatically resign their positions if they become candidates for any other elected office, unless the unexpired portion of the current term is one year or less. The burdens that § 65 imposes on candidacy are even less substantial than those imposed by § 19. The two provisions, of course, serve essentially the same state interests. The District Court found § 65 deficient, however, not because of the nature or extent of the provision's restriction on candidacy, but because of the manner in which the offices are classified. According to the District Court, the classification system cannot survive equal protection scrutiny, because Texas has failed to explain sufficiently why some elected public officials are subject to § 65 and why others are not. As with the case of

§ 19, we conclude that § 65 survives a challenge under the Equal Protection Clause unless appellees can show that there is no rational predicate to the classification scheme.

The history behind § 65 shows that it may be upheld consistent with the "one step at a time" approach that this Court has undertaken with regard to state regulation not subject to more vigorous scrutiny than that sanctioned by the traditional principles. Section 65 was enacted in 1954 as a transitional provision applying only to the 1954 election. Section 65 extended the terms of those offices enumerated in the provision from two to four years. The provision also staggered the terms of other offices so that at least some county and local offices would be contested at each election. The automatic resignation proviso to § 65 was not added until 1958. In that year, a similar automatic resignation provision was added in Art. XI, § 11, which applies to officeholders in home rule cities who serve terms longer than two years. Section 11 allows home rule cities the option of extending the terms of municipal offices from two to up to four years.

Thus, the automatic resignation provision in Texas is a creature of the State's electoral reforms of 1958. That the State did not go further in applying the automatic resignation provision to those officeholders whose terms were not extended by § 11 or § 65, absent an invidious purpose, is not the sort of malfunctioning of the State's lawmaking process forbidden by the Equal Protection Clause. A regulation is not devoid of a rational predicate simply because it happens to be incomplete. The Equal Protection Clause does not forbid Texas to restrict one elected officeholder's candidacy for another elected office unless and until it places similar restrictions on other officeholders. The provision's language and its history belie any notion that § 65 serves the invidious purpose of denying access to the political process to identifiable classes of potential candidates. (citations omitted and italics supplied)

Furthermore, it is unfortunate that the dissenters took the Morial line that "there is no blanket approval of restrictions on the right of public employees to become candidates for public office" out of context. A correct reading of that line readily shows that the Court only meant to confine its ruling to the facts of that case, as each equal protection challenge would necessarily have to involve weighing governmental interests vis-à-vis the specific prohibition assailed. The Court held:

The interests of public employees in free expression and political association are unquestionably entitled to the protection of the first and fourteenth amendments. Nothing in today's decision should be taken to imply that public employees may be prohibited from expressing their private views on controversial topics in a manner that does not interfere with the proper performance of their public duties. In today's decision, there is no blanket approval of restrictions on the right of public employees to become candidates for public office. Nor do we approve any general restrictions on the political and civil rights of judges in particular. Our holding is necessarily narrowed by the methodology employed to reach it. A requirement that a state judge resign his office prior to becoming a candidate for non-judicial office bears a reasonably necessary relation to the achievement of the state's interest in preventing the actuality or appearance of judicial impropriety. Such a requirement offends neither the first amendment's guarantees of free expression and association nor the fourteenth amendment's guarantee of equal protection of the laws. (italics supplied)

Indeed, the Morial court even quoted Broadrick and stated that:

In any event, the legislature must have some leeway in determining which of its employment positions require restrictions on partisan political activities and which may be left unregulated. And a State can hardly be faulted for attempting to limit the positions upon which such restrictions are placed. (citations omitted)

V.

Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code Do Not Suffer from Overbreadth

Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code on equal protection ground, our assailed Decision struck them down for being overbroad in two respects, viz.:

(1) The assailed provisions limit the candidacy of all civil servants holding appointive posts without due regard for the type of position being held by the employee seeking an elective post and the degree of influence that may be attendant thereto;79 and

(2) The assailed provisions limit the candidacy of any and all civil servants holding appointive positions without due regard for the type of office being sought, whether it be partisan or nonpartisan in character, or in the national, municipal or barangay level.

Again, on second look, we have to revise our assailed Decision.

i. Limitation on Candidacy Regardless of Incumbent Appointive Official’s Position, Valid

According to the assailed Decision, the challenged provisions of law are overly broad because they apply indiscriminately to all civil servants holding appointive posts, without due regard for the type of position being held by the employee running for elective office and the degree of influence that may be attendant thereto.

Its underlying assumption appears to be that the evils sought to be prevented are extant only when the incumbent appointive official running for elective office holds an influential post.

Such a myopic view obviously fails to consider a different, yet equally plausible, threat to the government posed by the partisan potential of a large and growing bureaucracy: the danger of systematic abuse perpetuated by a "powerful political machine" that has amassed "the scattered powers of government workers" so as to give itself and its incumbent workers an "unbreakable grasp on the reins of power."80 As elucidated in our prior exposition:81

Attempts by government employees to wield influence over others or to make use of their respective positions (apparently) to promote their own candidacy may seem tolerable – even innocuous – particularly when viewed in isolation from other similar attempts by other government employees. Yet it would be decidedly foolhardy to discount the equally (if not more) realistic and dangerous possibility that such seemingly disjointed attempts, when taken together, constitute a veiled effort on the part of an emerging central party structure to advance its own agenda through a "carefully orchestrated use of [appointive and/or elective] officials" coming from various levels of the bureaucracy.

…[T]he avoidance of such a "politically active public work force" which could give an emerging political machine an "unbreakable grasp on the reins of power" is reason enough to impose a restriction on the candidacies of all appointive public officials without further distinction as to the type of positions being held by such employees or the degree of influence that may be attendant thereto. (citations omitted)

ii. Limitation on Candidacy Regardless of Type of Office Sought, Valid

The assailed Decision also held that the challenged provisions of law are overly broad because they are made to apply indiscriminately to all civil servants holding appointive offices, without

due regard for the type of elective office being sought, whether it be partisan or nonpartisan in character, or in the national, municipal or barangay level.

This erroneous ruling is premised on the assumption that "the concerns of a truly partisan office and the temptations it fosters are sufficiently different from those involved in an office removed from regular party politics [so as] to warrant distinctive treatment,"82 so that restrictions on candidacy akin to those imposed by the challenged provisions can validly apply only to situations in which the elective office sought is partisan in character. To the extent, therefore, that such restrictions are said to preclude even candidacies for nonpartisan elective offices, the challenged restrictions are to be considered as overbroad.

Again, a careful study of the challenged provisions and related laws on the matter will show that the alleged overbreadth is more apparent than real. Our exposition on this issue has not been repudiated, viz.:

A perusal of Resolution 8678 will immediately disclose that the rules and guidelines set forth therein refer to the filing of certificates of candidacy and nomination of official candidates of registered political parties, in connection with the May 10, 2010 National and Local Elections.83 Obviously, these rules and guidelines, including the restriction in Section 4(a) of Resolution 8678, were issued specifically for purposes of the May 10, 2010 National and Local Elections, which, it must be noted, are decidedly partisan in character. Thus, it is clear that the restriction in Section 4(a) of RA 8678 applies only to the candidacies of appointive officials vying for partisan elective posts in the May 10, 2010 National and Local Elections. On this score, the overbreadth challenge leveled against Section 4(a) is clearly unsustainable.

Similarly, a considered review of Section 13 of RA 9369 and Section 66 of the Omnibus Election Code, in conjunction with other related laws on the matter, will confirm that these provisions are likewise not intended to apply to elections for nonpartisan public offices.

The only elections which are relevant to the present inquiry are the elections for barangay offices, since these are the only elections in this country which involve nonpartisan public offices.84

In this regard, it is well to note that from as far back as the enactment of the Omnibus Election Code in 1985, Congress has intended that these nonpartisan barangay elections be governed by special rules, including a separate rule on deemed resignations which is found in Section 39 of the Omnibus Election Code. Said provision states:

Section 39. Certificate of Candidacy. – No person shall be elected punong barangay or kagawad ng sangguniang barangay unless he files a sworn certificate of candidacy in triplicate on any day from the commencement of the election period but not later than the day before the beginning of the campaign period in a form to be prescribed by the Commission. The candidate shall state the barangay office for which he is a candidate.

x x x x

Any elective or appointive municipal, city, provincial or national official or employee, or those in the civil or military service, including those in government-owned or-controlled corporations, shall be considered automatically resigned upon the filing of certificate of candidacy for a barangay office.

Since barangay elections are governed by a separate deemed resignation rule, under the present state of law, there would be no occasion to apply the restriction on candidacy found in

Section 66 of the Omnibus Election Code, and later reiterated in the proviso of Section 13 of RA 9369, to any election other than a partisan one. For this reason, the overbreadth challenge raised against Section 66 of the Omnibus Election Code and the pertinent proviso in Section 13 of RA 9369 must also fail. 85

In any event, even if we were to assume, for the sake of argument, that Section 66 of the Omnibus Election Code and the corresponding provision in Section 13 of RA 9369 are general rules that apply also to elections for nonpartisan public offices, the overbreadth challenge would still be futile. Again, we explained:

In the first place, the view that Congress is limited to controlling only partisan behavior has not received judicial imprimatur, because the general proposition of the relevant US cases on the matter is simply that the government has an interest in regulating the conduct and speech of its employees that differs significantly from those it possesses in connection with regulation of the speech of the citizenry in general.86

Moreover, in order to have a statute declared as unconstitutional or void on its face for being overly broad, particularly where, as in this case, "conduct" and not "pure speech" is involved, the overbreadth must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.87

In operational terms, measuring the substantiality of a statute’s overbreadth would entail, among other things, a rough balancing of the number of valid applications compared to the number of potentially invalid applications.88In this regard, some sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable.89 The question is a matter of degree.90 Thus, assuming for the sake of argument that the partisan-nonpartisan distinction is valid and necessary such that a statute which fails to make this distinction is susceptible to an overbreadth attack, the overbreadth challenge presently mounted must demonstrate or provide this Court with some idea of the number of potentially invalid elections (i.e. the number of elections that were insulated from party rivalry but were nevertheless closed to appointive employees) that may in all probability result from the enforcement of the statute.91

The state of the record, however, does not permit us to find overbreadth. Borrowing from the words of Magill v. Lynch, indeed, such a step is not to be taken lightly, much less to be taken in the dark,92 especially since an overbreadth finding in this case would effectively prohibit the State from ‘enforcing an otherwise valid measure against conduct that is admittedly within its power to proscribe.’93

This Court would do well to proceed with tiptoe caution, particularly when it comes to the application of the overbreadth doctrine in the analysis of statutes that purportedly attempt to restrict or burden the exercise of the right to freedom of speech, for such approach is manifestly strong medicine that must be used sparingly, and only as a last resort.94

In the United States, claims of facial overbreadth have been entertained only where, in the judgment of the court, the possibility that protected speech of others may be muted and perceived grievances left to fester (due to the possible inhibitory effects of overly broad statutes) outweighs the possible harm to society in allowing some unprotected speech or conduct to go unpunished.95 Facial overbreadth has likewise not been invoked where a limiting construction could be placed on the challenged statute, and where there are readily apparent constructions that would cure, or at least substantially reduce, the alleged overbreadth of the statute.96

In the case at bar, the probable harm to society in permitting incumbent appointive officials to remain in office, even as they actively pursue elective posts, far outweighs the less likely evil of

having arguably protected candidacies blocked by the possible inhibitory effect of a potentially overly broad statute.a1f

In this light, the conceivably impermissible applications of the challenged statutes – which are, at best, bold predictions – cannot justify invalidating these statutes in toto and prohibiting the State from enforcing them against conduct that is, and has for more than 100 years been, unquestionably within its power and interest to proscribe.97 Instead, the more prudent approach would be to deal with these conceivably impermissible applications through case-by-case adjudication rather than through a total invalidation of the statute itself.98

Indeed, the anomalies spawned by our assailed Decision have taken place. In his Motion for Reconsideration, intervenor Drilon stated that a number of high-ranking Cabinet members had already filed their Certificates of Candidacy without relinquishing their posts.99 Several COMELEC election officers had likewise filed their Certificates of Candidacy in their respective provinces.100 Even the Secretary of Justice had filed her certificate of substitution for representative of the first district of Quezon province last December 14, 2009101 – even as her position as Justice Secretary includes supervision over the City and Provincial Prosecutors,102 who, in turn, act as Vice-Chairmen of the respective Boards of Canvassers.103 The Judiciary has not been spared, for a Regional Trial Court Judge in the South has thrown his hat into the political arena. We cannot allow the tilting of our electoral playing field in their favor.

For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678 and Section 13 of RA 9369, which merely reiterate Section 66 of the Omnibus Election Code, are not unconstitutionally overbroad.

IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondent’s and the intervenors’ Motions for Reconsideration; REVERSE and SET ASIDE this Court’s December 1, 2009 Decision; DISMISS the Petition; and ISSUE this Resolution declaring as not UNCONSTITUTIONAL (1) Section 4(a) of COMELEC Resolution No. 8678, (2) the second proviso in the third paragraph of Section 13 of Republic Act No. 9369, and (3) Section 66 of the Omnibus Election Code.

SO ORDERED.

G.R. No. 189698               December 1, 2009

ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners, vs.COMMISSION ON ELECTIONS, Respondent.

D E C I S I O N

NACHURA, J.:

In our predisposition to discover the "original intent" of a statute, courts become the unfeeling pillars of the status quo. Little do we realize that statutes or even constitutions are bundles of compromises thrown our way by their framers. Unless we exercise vigilance, the statute may already be out of tune and irrelevant to our day.1 It is in this light that we should address the instant case.

Before the Court is a petition for prohibition and certiorari, with prayer for the issuance of a temporary restraining order and a writ of preliminary injunction, assailing Section 4(a) of Resolution No. 8678 of the Commission on Elections (COMELEC). In view of pressing contemporary events, the petition begs for immediate resolution.

The Antecedents

This controversy actually stems from the law authorizing the COMELEC to use an automated election system (AES).

On December 22, 1997, Congress enacted Republic Act (R.A.) 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." Section 11 thereof reads:

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

Both sides of the ballots may be used when necessary.

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

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

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

The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot for every registered voter with a provision of additional four (4) ballots per precinct.2

Almost a decade thereafter, Congress amended the law on January 23, 2007 by enacting R.A. No. 9369, entitled "AN ACT AMENDING 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, TO ENCOURAGE TRANSPARENCY, CREDIBILITY, FAIRNESS AND ACCURACY OF ELECTIONS, AMENDING FOR THE PURPOSE BATAS PAMPANSA BLG. 881, AS AMEMDED, REPUBLIC ACT NO. 7166 AND OTHER RELATED ELECTION LAWS, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES." Section 13 of the amendatory law modified Section 11 of R.A. No. 8436, thus:

SEC. 13. Section 11 of Republic Act No. 8436 is hereby amended to read as follows:

Section 15. Official Ballot.- The Commission shall prescribe the format of the electronic display and/or the size and form of the official ballot, which shall contain the titles of the position to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Where practicable, electronic displays must be constructed to present the names of all candidates for the same position in the same page or screen, otherwise, the electronic displays must be constructed to present the entire ballot to the voter, in a series of sequential pages, and to ensure that the voter sees all of the ballot options on all pages before completing his or her vote and to allow the voter to review and change all ballot choices prior to completing and casting his or her ballot. Under each position to be filled, the names of candidates shall be arranged alphabetically by surname and uniformly indicated using the same type size. The maiden or married name shall be listed in the official ballot, as preferred by the female candidate. Under each proposition to be vote upon, the choices should be uniformly indicated using the same font and size.

A fixed space where the chairman of the board of election inspectors shall affix his/her signature to authenticate the official ballot shall be provided.

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

Political parties may hold political conventions to nominate their official candidates within thirty (30) days before the start of the period for filing a certificate of candidacy.

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

To prevent the use of fake ballots, the Commission through the Committee shall ensure that the necessary safeguards, such as, but not limited to, bar codes, holograms, color shifting ink, microprinting, are provided on the ballot.

The official ballots shall be printed and distributed to each city/municipality at the rate of one ballot for every registered voter with a provision of additional three ballots per precinct.3

Pursuant to its constitutional mandate to enforce and administer election laws, COMELEC issued Resolution No. 8678,4 the Guidelines on the Filing of Certificates of Candidacy (CoC) and Nomination of Official Candidates of Registered Political Parties in Connection with the May 10, 2010 National and Local Elections. Sections 4 and 5 of Resolution No. 8678 provide:

SEC. 4. Effects of Filing Certificates of Candidacy.- a) Any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

b) Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of candidacy for the same or any other elective office or position.

SEC. 5. Period for filing Certificate of Candidacy.- The certificate of candidacy shall be filed on regular days, from November 20 to 30, 2009, during office hours, except on the last day, which shall be until midnight.

Alarmed that they will be deemed ipso facto resigned from their offices the moment they file their CoCs, petitioners Eleazar P. Quinto and Gerino A. Tolentino, Jr., who hold appointive positions in the government and who intend to run in the coming elections,5 filed the instant petition for prohibition and certiorari, seeking the declaration of the afore-quoted Section 4(a) of Resolution No. 8678 as null and void.

The Petitioners' Contention

Petitioners contend that the COMELEC gravely abused its discretion when it issued the assailed Resolution. They aver that the advance filing of CoCs for the 2010 elections is intended merely for the purpose of early printing of the official ballots in order to cope with time limitations. Such advance filing does not automatically make the person who filed the CoC a candidate at the moment of filing. In fact, the law considers him a candidate only at the start of the campaign period. Petitioners then assert that this being so, they should not be deemed ipso facto resigned from their government offices when they file their CoCs, because at such time they are not yet treated by law as candidates. They should be considered resigned from their respective offices only at the start of the campaign period when they are, by law, already considered as candidates.6

Petitioners also contend that Section 13 of R.A. No. 9369, the basis of the assailed COMELEC resolution, contains two conflicting provisions. These must be harmonized or reconciled to give effect to both and to arrive at a declaration that they are not ipso facto resigned from their positions upon the filing of their CoCs.7

Petitioners further posit that the provision considering them as ipso facto resigned from office upon the filing of their CoCs is discriminatory and violates the equal protection clause in the Constitution.8

The Respondent's Arguments

On the procedural aspect of the petition, the Office of the Solicitor General (OSG), representing respondent COMELEC, argues that petitioners have no legal standing to institute the suit."

Petitioners have not yet filed their CoCs, hence, they are not yet affected by the assailed provision in the COMELEC resolution. The OSG further claims that the petition is premature or unripe for judicial determination." Petitioners have admitted that they are merely planning to file their CoCs for the coming 2010 elections. Their interest in the present controversy is thus merely speculative and contingent upon the filing of the same. The OSG likewise contends that petitioners availed of the wrong remedy. They are questioning an issuance of the COMELEC made in the exercise of the latter's rule-making power. Certiorari under Rule 65 is then an improper remedy.9

On the substantive aspect, the OSG maintains that the COMELEC did not gravely abuse its discretion in phrasing Section 4(a) of Resolution No. 8678 for it merely copied what is in the law. The OSG, however, agrees with petitioners that there is a conflict in Section 13 of R.A. No. 9369 that should be resolved. According to the OSG, there seems to be no basis to consider appointive officials as ipso facto resigned and to require them to vacate their positions on the same day that they file their CoCs, because they are not yet considered as candidates at that time. Further, this - deemed resigned- provision existed in Batas Pambansa Bilang (B.P. Blg.) 881, and no longer finds a place in our present election laws with the innovations brought about by the automated system.10

Our Ruling

I.

At first glance, the petition suffers from an incipient procedural defect. What petitioners assail in their petition is a resolution issued by the COMELEC in the exercise of its quasi-legislative power. Certiorari under Rule 65, in relation to Rule 64, cannot be availed of, because it is a remedy to question decisions, resolutions and issuances made in the exercise of a judicial or quasi-judicial function.11 Prohibition is also an inappropriate remedy, because what petitioners actually seek from the Court is a determination of the proper construction of a statute and a declaration of their rights thereunder. Obviously, their petition is one for declaratory relief,12 over which this Court does not exercise original jurisdiction.13

However, petitioners raise a challenge on the constitutionality of the questioned provisions of both the COMELEC resolution and the law. Given this scenario, the Court may step in and resolve the instant petition.

The transcendental nature and paramount importance of the issues raised and the compelling state interest involved in their early resolution the period for the filing of CoCs for the 2010 elections has already started and hundreds of civil servants intending to run for elective offices are to lose their employment, thereby causing imminent and irreparable damage to their means of livelihood and, at the same time, crippling the government's manpowerfurther dictate that the Court must, for propriety, if only from a sense of obligation, entertain the petition so as to expedite the adjudication of all, especially the constitutional, issues.

In any event, the Court has ample authority to set aside errors of practice or technicalities of procedure and resolve the merits of a case. Repeatedly stressed in our prior decisions is the principle that the Rules were promulgated to provide guidelines for the orderly administration of justice, not to shackle the hand that dispenses it. Otherwise, the courts would be consigned to being mere slaves to technical rules, deprived of their judicial discretion.14

II.

To put things in their proper perspective, it is imperative that we trace the brief history of the assailed provision. Section 4(a) of COMELEC Resolution No. 8678 is a reproduction of the

second proviso in the third paragraph of Section 13 of R.A. No. 9369, which for ready reference is quoted as follows:

For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy.15

Notably, this proviso is not present in Section 11 of R.A. No. 8436, the law amended by R.A. No. 9369. The proviso was lifted from Section 66 of B.P. Blg. 881 or the Omnibus Election Code (OEC) of the Philippines, which reads:

Sec. 66. Candidates holding appointive office or position.- Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

It may be recalled-in inverse chronology-that earlier, Presidential Decree No. 1296, or the 1978 Election Code, contained a similar provision, thus'

SECTION 29. Candidates holding appointive office or position. - Every person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall ipso facto cease in his office or position on the date he files his certificate of candidacy. Members of the Cabinet shall continue in the offices they presently hold notwithstanding the filing of certificate of candidacy, subject to the pleasure of the President of the Philippines.

Much earlier, R.A. No. 6388, or the Election Code of 1971, likewise stated in its Section 23 the following:

SECTION 23. Candidates Holding Appointive Office or Position. - Every person holding a public appointive office or position, including active members of the Armed Forces of the Philippines and every officer or employee in government-owned or controlled corporations, shall ipso facto cease in his office or position on the date he files his certificate of candidacy: Provided, That the filing of a certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which he may have incurred.

Going further back in history, R.A. No. 180, or the Revised Election Code approved on June 21, 1947, also provided that

SECTION 26. Automatic cessation of appointive officers and employees who are candidates. - Every person holding a public appointive office or position shall ipso facto cease in his office or position on the date he files his certificate of candidacy.

During the Commonwealth era, Commonwealth Act (C.A.) No. 725, entitled "AN ACT TO PROVIDE FOR THE NEXT ELECTION FOR PRESIDENT AND VICE-PRESIDENT OF THE PHILIPPINES, SENATORS AND MEMBERS OF THE HOUSE OF REPRESENTATIVES, AND

APPROPRIATING THE NECESSARY FUNDS THEREFOR," approved on January 5, 1946, contained, in the last paragraph of its Section 2, the following:

A person occupying any civil office by appointment in the government or any of its political subdivisions or agencies or government-owned or controlled corporations, whether such office by appointive or elective, shall be considered to have resigned from such office from the moment of the filing of such certificate of candidacy.

Significantly, however, C.A. No. 666, entitled "AN ACT TO PROVIDE FOR THE FIRST ELECTION FOR PRESIDENT AND VICE-PRESIDENT OF THE PHILIPPINES, SENATORS, AND MEMBERS OF THE HOUSE OF REPRESENTATIVES, UNDER THE CONSTITUTION AND THE AMENDMENTS THEREOF," enacted without executive approval on June 22, 1941, the precursor of C.A. No. 725, only provided for automatic resignation of elective, but not appointive, officials.

Nevertheless, C.A. No. 357, or the Election Code approved on August 22, 1938, had, in its Section 22, the same verbatim provision as Section 26 of R.A. No. 180.

The earliest recorded Philippine law on the subject is Act No. 1582, or the Election Law enacted by the Philippine Commission in 1907, the last paragraph of Section 29 of which reads:

Sec. 29. Penalties upon officers.- x x x.

No public officer shall offer himself as a candidate for election, nor shall he be eligible during the time that he holds said public office to election, at any municipal, provincial or Assembly election, except for reelection to the position which he may be holding, and no judge of the Court of First Instance, justice of the peace, provincial fiscal, or officer or employee of the Bureau of Constabulary or of the Bureau of Education shall aid any candidate or influence in any manner or take any part in any municipal, provincial, or Assembly election under penalty of being deprived of his office and being disqualified to hold any public office whatever for a term of five years: Provided, however, That the foregoing provisions shall not be construed to deprive any person otherwise qualified of the right to vote at any election.

From this brief historical excursion, it may be gleaned that the second proviso in the third paragraph of Section 13 of R.A. No. 9369- that any person holding a public appointive office or position, including active members of the armed forces, and officers, and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy- traces its roots to the period of the American occupation.

In fact, during the deliberations of Senate Bill No. 2231, the bill later to be consolidated with House Bill No. 5352 and enacted as R.A. No. 9369, Senator Richard Gordon, the principal author of the bill, acknowledged that the said proviso in the proposed legislative measure is an old provision which was merely copied from earlier existing legislation, thus'

Senator Osmeña.- May I just opine here and perhaps obtain the opinion of the good Sponsor.- This reads like, "ANY PERSON HOLDING [means currently] A PUBLIC APPOINTIVE POSITION" SHALL BE CONSIDERED IPSO FACTO RESIGNED- [which means that the prohibition extends only to appointive officials] "INCLUDING ACTIVE MEMBERS OF THE ARMED FORCES, OFFICERS AND EMPLOYEES"- This is a prohibition, Mr. President.- This means if one is chairman of SSS or PDIC, he is deemed ipso facto resigned when he files his certificate of candidacy.- Is that the intention

Senator Gordon.- This is really an old provision, Mr. President.

Senator Osmeña.- It is in bold letters, so I think it was a Committee amendment.

Senator Gordon.- No, it has always been there.

Senator Osmeña.- I see.

Senator Gordon.- I guess the intention is not to give them undue advantage, especially certain people.

Senator Osmeña.- All right.16

In that Senate deliberation, however, Senator Miriam Defensor-Santiago expressed her concern over the inclusion of the said provision in the new law, given that the same would be disadvantageous and unfair to potential candidates holding appointive positions, while it grants a consequent preferential treatment to elective officials, thus'

Senator Santiago.- On page 15, line 31, I know that this is a losing cause, so I make this point more as a matter of record than of any feasible hope that it can possibly be either accepted or if we come to a division of the House, it will be upheld by the majority.

I am referring to page 15, line 21.- The proviso begins: "PROVIDED FINALLY, THAT ANY PERSON HOLDING A PUBLIC APPOINTIVE OFFICE - SHALL BE CONSIDERED IPSO FACTO RESIGNED FROM HIS/HER OFFICE."

The point that I made during the appropriate debate in the past in this Hall is that there is, for me, no valid reason for exempting elective officials from this inhibition or disqualification imposed by the law.- If we are going to consider appointive officers of the government, including AFP members and officers of government-owned and controlled corporations, or any other member of the appointive sector of the civil service, why should it not apply to the elective sector for, after all, even senators and congressmen are members of the civil service as well

Further, it is self-serving for the Senate, or for the Congress in general, to give an exception to itself which is not available to other similarly situated officials of government. Of course, the answer is, the reason why we are special is that we are elected. Since we are imposing a disqualification on all other government officials except ourselves, I think, it is the better part of delicadeza to inhibit ourselves as well, so that if we want to stay as senators, we wait until our term expires. But if we want to run for some other elective office during our term, then we have to be considered resigned just like everybody else. That is my proposed amendment. But if it is unacceptable to the distinguished Sponsor, because of sensitivity to the convictions of the rest of our colleagues, I will understand.

Senator Gordon. Mr. President, I think the suggestion is well-thought of.- It is a good policy.- However, this is something that is already in the old law which was upheld by the Supreme court in a recent case that the rider was not upheld and that it was valid.17

The obvious inequality brought about by the provision on automatic resignation of appointive civil servants must have been the reason why Senator Recto proposed the inclusion of the following during the period of amendments: "ANY PERSON WHO FILES HIS CERTIFICATE OF CANDIDACY WITHIN THIS PERIOD SHALL ONLY BE CONSIDERED AS A CANDIDATE AT THE START OF THE CAMPAIGN PERIOD FOR WHICH HE FILED HIS COC."18 The said

proviso seems to mitigate the situation of disadvantage afflicting appointive officials by considering persons who filed their CoCs as candidates only at the start of the campaign period, thereby, conveying the tacit intent that persons holding appointive positions will only be considered as resigned at the start of the campaign period when they are already treated by law as candidates.

Parenthetically, it may be remembered that Section 67 of the OEC and Section 11 of R.A. No. 8436 contained a similar provision on automatic resignation of elective officials upon the filing of their CoCs for any office other than that which they hold in a permanent capacity or for President or Vice-President. However, with the enactment of R.A. No. 9006, or the Fair Election Act,19 in 2001, this provision was repealed by Section 1420 of the said act. There was, thus, created a situation of obvious discrimination against appointive officials who were deemed ipso facto resigned from their offices upon the filing of their CoCs, while elective officials were not.

This situation was incidentally addressed by the Court in Far v. The Executive Secretaryi 21 when it ruled that

Section 14 of Rep. Act No. 9006

Is Not Violative of the Equal

Protection Clause of the Constitution

The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous.

The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification.- If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this manner:

The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality.- It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate.- It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced.- The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not.

Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority.- Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority.

Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take part in any election

except to vote.- Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities.

By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them.- Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification.

Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-a-vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed.22

However, it must be remembered that the Court, in Fari/i>, was intently focused on the main issue of whether the repealing clause in the Fair Election Act was a constitutionally proscribed rider, in that it unwittingly failed to ascertain with stricter scrutiny the impact of the retention of the provision on automatic resignation of persons holding appointive positions (Section 66) in the OEC, vis-୶ is the equal protection clause.- Moreover, the Court's vision in Fari/i> was shrouded by the fact that petitioners therein, Far et al., never posed a direct challenge to the iconstitutionality of Section 66 of the OEC. Far et al. rather merely questioned, on constitutional igrounds, the repealing clause, or Section 14 of the Fair Election Act. The Court's afore-quoted declaration in Fari/i> may then very well be considered as an obiter dictum.

III.

The instant case presents a rare opportunity for the Court, in view of the constitutional challenge advanced by petitioners, once and for all, to settle the issue of whether the second proviso in the third paragraph of Section 13 of R.A. No. 9369, a reproduction of Section 66 of the OEC, which, as shown above, was based on provisions dating back to the American occupation, is violative of the equal protection clause.

But before delving into the constitutional issue, we shall first address the issues on legal standing and on the existence of an actual controversy.

Central to the determination of locus standi is the question of whether a party has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.23 In this case, petitioners allege that they will be directly affected by COMELEC Resolution No. 8678 for they intend, and they all have the qualifications, to run in the 2010 elections. The OSG, for its part, contends that since petitioners have not yet filed their CoCs, they are not yet candidates; hence, they are not yet directly affected by the assailed provision in the COMELEC resolution.

The Court, nevertheless, finds that, while petitioners are not yet candidates, they have the standing to raise the constitutional challenge, simply because they are qualified voters. A restriction on candidacy, such as the challenged measure herein, affects the rights of voters to choose their public officials. The rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters.24 The Court believes that both candidates and voters may challenge, on grounds of equal protection, the assailed measure because of its impact on voting rights.25

In any event, in recent cases, this Court has relaxed the stringent direct injury test and has observed a liberal policy allowing ordinary citizens, members of Congress, and civil organizations to prosecute actions involving the constitutionality or validity of laws, regulations and rulings.26

We have also stressed in our prior decisions that the exercise by this Court of judicial power is limited to the determination and resolution of actual cases and controversies.27 The Court, in this case, finds that an actual case or controversy exists between the petitioners and the COMELEC, the body charged with the enforcement and administration of all election laws. Petitioners have alleged in a precise manner that they would engage in the very acts that would trigger the enforcement of the provisionthey would file their CoCs and run in the 2010 elections. Given that the assailed provision provides for ipso facto resignation upon the filing of the CoC, it cannot be said that it presents only a speculative or hypothetical obstacle to petitioners' candidacy.28

IV.

Having hurdled what the OSG posed as obstacles to judicial review, the Court now delves into the constitutional challenge.

It is noteworthy to point out that the right to run for public office touches on two fundamental freedoms, those of expression and of association. This premise is best explained in Mancuso v. Taft,29 viz.:

Freedom of expression guarantees to the individual the opportunity to write a letter to the local newspaper, speak out in a public park, distribute handbills advocating radical reform, or picket an official building to seek redress of grievances. All of these activities are protected by the First Amendment if done in a manner consistent with a narrowly defined concept of public order and safety. The choice of means will likely depend on the amount of time and energy the individual wishes to expend and on his perception as to the most effective method of projecting his message to the public. But interest and commitment are evolving phenomena. What is an effective means for protest at one point in time may not seem so effective at a later date. The dilettante who participates in a picket line may decide to devote additional time and resources to his expressive activity. As his commitment increases, the means of effective expression changes, but the expressive quality remains constant. He may decide to lead the picket line, or to publish the newspaper. At one point in time he may decide that the most effective way to give expression to his views and to get the attention of an appropriate audience is to become a candidate for public office-means generally considered among the most appropriate for those desiring to effect change in our governmental systems. He may seek to become a candidate by filing in a general election as an independent or by seeking the nomination of a political party. And in the latter instance, the individual's expressive activity has two dimensions: besides urging that his views be the views of the elected public official, he is also attempting to become a spokesman for a political party whose substantive program extends beyond the particular office in question. But Cranston has said that a certain type of its citizenry, the public employee, may not become a candidate and may not engage in any campaign activity that promotes himself as a candidate for public office. Thus the city has stifled what may be the most important expression an individual can summon, namely that which he would be willing to effectuate, by means of concrete public action, were he to be selected by the voters.

It is impossible to ignore the additional fact that the right to run for office also affects the freedom to associate. In Williams v. Rhodes, supra, the Court used strict review to invalidate an Ohio election system that made it virtually impossible for third parties to secure a place on the ballot. The Court found that the First Amendment protected the freedom to associate by forming and promoting a political party and that that freedom was infringed when the state effectively denied a party access to its electoral machinery. The Cranston charter provision before us also affects associational rights, albeit in a slightly different way. An individual may decide to join or

participate in an organization or political party that shares his beliefs. He may even form a new group to forward his ideas. And at some juncture his supporters and fellow party members may decide that he is the ideal person to carry the group's standard into the electoral fray. To thus restrict the options available to political organization as the Cranston charter provision has done is to limit the effectiveness of association; and the freedom to associate is intimately related with the concept of making expression effective. Party access to the ballot becomes less meaningful if some of those selected by party machinery to carry the party's programs to the people are precluded from doing so because those nominees are civil servants.

Whether the right to run for office is looked at from the point of view of individual expression or associational effectiveness, wide opportunities exist for the individual who seeks public office. The fact of candidacy alone may open previously closed doors of the media. The candidate may be invited to discuss his views on radio talk shows; he may be able to secure equal time on television to elaborate his campaign program; the newspapers may cover his candidacy; he may be invited to debate before various groups that had theretofore never heard of him or his views. In short, the fact of candidacy opens up a variety of communicative possibilities that are not available to even the most diligent of picketers or the most loyal of party followers. A view today, that running for public office is not an interest protected by the First Amendment, seems to us an outlook stemming from an earlier era when public office was the preserve of the professional and the wealthy. Consequently we hold that candidacy is both a protected First Amendment right and a fundamental interest. Hence any legislative classification that significantly burdens that interest must be subjected to strict equal protection review.30

Here, petitioners' interest in running for public office, an interest protected by Sections 4 and 8 of Article III of the Constitution, is breached by the proviso in Section 13 of R.A. No. 9369. It is now the opportune time for the Court to strike down the said proviso for being violative of the equal protection clause and for being overbroad.

In considering persons holding appointive positions as ipso facto resigned from their posts upon the filing of their CoCs, but not considering as resigned all other civil servants, specifically the elective ones, the law unduly discriminates against the first class. The fact alone that there is substantial distinction between those who hold appointive positions and those occupying elective posts, does not justify such differential treatment.

In order that there can be valid classification so that a discriminatory governmental act may pass the constitutional norm of equal protection, it is necessary that the four (4) requisites of valid classification be complied with, namely:

(1) It must be based upon substantial distinctions;

(2) It must be germane to the purposes of the law;

(3) It must not be limited to existing conditions only; and

(4) It must apply equally to all members of the class.

The first requirement means that there must be real and substantial differences between the classes treated differently. As illustrated in the fairly recent Mirasol v. Department of Public Works and Highways,31 a real and substantial distinction exists between a motorcycle and other motor vehicles sufficient to justify its classification among those prohibited from plying the toll ways. Not all motorized vehicles are created equal a two-wheeled vehicle is less stable and more easily overturned than a four-wheel vehicle.

Nevertheless, the classification would still be invalid if it does not comply with the second requirement if it is not germane to the purpose of the law. Justice Isagani A. Cruz (Ret.), in his treatise on constitutional law, explains,

The classification, even if based on substantial distinctions, will still be invalid if it is not germane to the purpose of the law. To illustrate, the accepted difference in physical stamina between men and women will justify the prohibition of the latter from employment as miners or stevedores or in other heavy and strenuous work. On the basis of this same classification, however, the law cannot provide for a lower passing average for women in the bar examinations because physical strength is not the test for admission to the legal profession. Imported cars may be taxed at a higher rate than locally assembled automobiles for the protection of the national economy, but their difference in origin is no justification for treating them differently when it comes to punishing violations of traffic regulations. The source of the vehicle has no relation to the observance of these rules.32

The third requirement means that the classification must be enforced not only for the present but as long as the problem sought to be corrected continues to exist. And, under the last requirement, the classification would be regarded as invalid if all the members of the class are not treated similarly, both as to rights conferred and obligations imposed.33

Applying the four requisites to the instant case, the Court finds that the differential treatment of persons holding appointive offices as opposed to those holding elective ones is not germane to the purposes of the law.

The obvious reason for the challenged provision is to prevent the use of a governmental position to promote one's candidacy, or even to wield a dangerous or coercive influence on the electorate. The measure is further aimed at promoting the efficiency, integrity, and discipline of the public service by eliminating the danger that the discharge of official duty would be motivated by political considerations rather than the welfare of the public.34 The restriction is also justified by the proposition that the entry of civil servants to the electoral arena, while still in office, could result in neglect or inefficiency in the performance of duty because they would be attending to their campaign rather than to their office work.

If we accept these as the underlying objectives of the law, then the assailed provision cannot be constitutionally rescued on the ground of valid classification. Glaringly absent is the requisite that the classification must be germane to the purposes of the law. Indeed, whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain. For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield the same influence as the Vice-President who at the same time is appointed to a Cabinet post (in the recent past, elected Vice-Presidents were appointed to take charge of national housing, social welfare development, interior and local government, and foreign affairs). With the fact that they both head executive offices, there is no valid justification to treat them differently when both file their CoCs for the elections. Under the present state of our law, the Vice-President, in the example, running this time, let us say, for President, retains his position during the entire election period and can still use the resources of his office to support his campaign.

As to the danger of neglect, inefficiency or partisanship in the discharge of the functions of his appointive office, the inverse could be just as true and compelling. The public officer who files his certificate of candidacy would be driven by a greater impetus for excellent performance to show his fitness for the position aspired for.

Mancuso v. Taft,35 cited above, explains that the measure on automatic resignation, which restricts the rights of civil servants to run for officea right inextricably linked to their freedom of expression and association, is not reasonably necessary to the satisfaction of the state interest. Thus, in striking down a similar measure in the United States, Mancuso succinctly declares'

In proceeding to the second stage of active equal protection review, however, we do see some contemporary relevance of the Mitchell decision. National Ass'n of Letter Carriers, supra. In order for the Cranston charter provision to withstand strict scrutiny, the city must show that the exclusion of all government employees from candidacy is necessary to achieve a compelling state interest. And, as stated in Mitchell and other cases dealing with similar statutes, see Wisconsin State Employees, supra; Broadrick, supra, government at all levels has a substantial interest in protecting the integrity of its civil service. It is obviously conceivable that the impartial character of the civil service would be seriously jeopardized if people in positions of authority used their discretion to forward their electoral ambitions rather than the public welfare. Similarly if a public employee pressured other fellow employees to engage in corrupt practices in return for promises of post-election reward, or if an employee invoked the power of the office he was seeking to extract special favors from his superiors, the civil service would be done irreparable injury. Conversely, members of the public, fellow-employees, or supervisors might themselves request favors from the candidate or might improperly adjust their own official behavior towards him. Even if none of these abuses actually materialize, the possibility of their occurrence might seriously erode the public's confidence in its public employees. For the reputation of impartiality is probably as crucial as the impartiality itself; the knowledge that a clerk in the assessor's office who is running for the local zoning board has access to confidential files which could provide pressure points for furthering his campaign is destructive regardless of whether the clerk actually takes advantage of his opportunities. For all of these reasons we find that the state indeed has a compelling interest in maintaining the honesty and impartiality of its public work force.

We do not, however, consider the exclusionary measure taken by Cranston-a flat prohibition on office-seeking of all kinds by all kinds of public employees-as even reasonably necessary to satisfaction of this state interest. As Justice Marshall pointed out in Dunn v. Blumstein, [s]tatutes affecting constitutional rights must be drawn with precision. For three sets of reasons we conclude that the Cranston charter provision pursues its objective in a far too heavy-handed manner and hence must fall under the equal protection clause. First, we think the nature of the regulation-a broad prophylactic rule-may be unnecessary to fulfillment of the city's objective. Second, even granting some sort of prophylactic rule may be required, the provision here prohibits candidacies for all types of public office, including many which would pose none of the problems at which the law is aimed. Third, the provision excludes the candidacies of all types of public employees, without any attempt to limit exclusion to those employees whose positions make them vulnerable to corruption and conflicts of interest.

There is thus no valid justification to treat appointive officials differently from the elective ones. The classification simply fails to meet the test that it should be germane to the purposes of the law. The measure encapsulated in the second proviso of the third paragraph of Section 13 of R.A. No. 9369 and in Section 66 of the OEC violates the equal protection clause.

V.

The challenged provision also suffers from the infirmity of being overbroad.

First, the provision pertains to all civil servants holding appointive posts without distinction as to whether they occupy high positions in government or not. Certainly, a utility worker in the government will also be considered as ipso facto resigned once he files his CoC for the 2010 elections. This scenario is absurd for, indeed, it is unimaginable how he can use his position in the government to wield influence in the political world.

While it may be admitted that most appointive officials who seek public elective office are those who occupy relatively high positions in government, laws cannot be legislated for them alone, or with them alone in mind. For the right to seek public elective office is universal, open and unrestrained, subject only to the qualification standards prescribed in the Constitution and in the laws. These qualifications are, as we all know, general and basic so as to allow the widest

participation of the citizenry and to give free rein for the pursuit of one's highest aspirations to public office. Such is the essence of democracy.

Second, the provision is directed to the activity of seeking any and all public offices, whether they be partisan or nonpartisan in character, whether they be in the national, municipal or barangay level. Congress has not shown a compelling state interest to restrict the fundamental right involved on such a sweeping scale.36

Specific evils require specific treatments, not through overly broad measures that unduly restrict guaranteed freedoms of the citizenry. After all, sovereignty resides in the people, and all governmental power emanates from them.

Mancuso v. Taft,37 on this point, instructs

As to approaches less restrictive than a prophylactic rule, there exists the device of the leave of absence. Some system of leaves of absence would permit the public employee to take time off to pursue his candidacy while assuring him his old job should his candidacy be unsuccessful. Moreover, a leave of absence policy would eliminate many of the opportunities for engaging in the questionable practices that the statute is designed to prevent. While campaigning, the candidate would feel no conflict between his desire for election and his publicly entrusted discretion, nor any conflict between his efforts to persuade the public and his access to confidential documents. But instead of adopting a reasonable leave of absence policy, Cranston has chosen a provision that makes the public employee cast off the security of hard-won public employment should he desire to compete for elected office.

The city might also promote its interest in the integrity of the civil service by enforcing, through dismissal, discipline, or criminal prosecution, rules or statutes that treat conflict of interests, bribery, or other forms of official corruption. By thus attacking the problem directly, instead of using a broad prophylactic rule, the city could pursue its objective without unduly burdening the First Amendment rights of its employees and the voting rights of its citizens. Last term in Dunn v. Blumstein, the Supreme Court faced an analogous question when the State of Tennessee asserted that the interest of ballot box purity justified its imposition of one year and three month residency requirements before a citizen could vote. Justice Marshall stated, inter alia, that Tennessee had available a number of criminal statutes that could be used to punish voter fraud without unnecessary infringement on the newcomer's right to vote. Similarly, it appears from the record in this case that the Cranston charter contains some provisions that might be used against opportunistic public employees.

Even if some sort of prophylactic rule is necessary, we cannot say that Cranston has put much effort into tailoring a narrow provision that attempts to match the prohibition with the problem. The charter forbids a Cranston public employee from running for any office, anywhere. The prohibition is not limited to the local offices of Cranston, but rather extends to statewide offices and even to national offices. It is difficult for us to see that a public employee running for the United States Congress poses quite the same threat to the civil service as would the same employee if he were running for a local office where the contacts and information provided by his job related directly to the position he was seeking, and hence where the potential for various abuses was greater. Nor does the Cranston charter except the public employee who works in Cranston but aspires to office in another local jurisdiction, most probably his town of residence. Here again the charter precludes candidacies which can pose only a remote threat to the civil service. Finally, the charter does not limit its prohibition to partisan office-seeking, but sterilizes also those public employees who would seek nonpartisan elective office. The statute reviewed inMitchell was limited to partisan political activity, and since that time other courts have found the partisan-nonpartisan distinction a material one. See Kinnear, supra; Wisconsin State Employees, supra; Gray v. Toledo, supra. While the line between nonpartisan and partisan can often be blurred by systems whose true characters are disguised by the names given them by

their architects, it seems clear that the concerns of a truly partisan office and the temptations it fosters are sufficiently different from those involved in an office removed from regular party politics to warrant distinctive treatment in a charter of this sort.

The third and last area of excessive and overinclusive coverage of the Cranston charter relates not to the type of office sought, but to the type of employee seeking the office. As Justice Douglas pointed out in his dissent inMitchell, 330 U.S. at 120-126, 67 S.Ct. 556, restrictions on administrative employees who either participate in decision-making or at least have some access to information concerning policy matters are much more justifiable than restrictions on industrial employees, who, but for the fact that the government owns the plant they work in, are, for purposes of access to official information, identically situated to all other industrial workers. Thus, a worker in the Philadelphia mint could be distinguished from a secretary in an office of the Department of Agriculture; so also could a janitor in the public schools of Cranston be distinguished from an assistant comptroller of the same city. A second line of distinction that focuses on the type of employee is illustrated by the cases of Kinnear andMinielly, supra. In both of these cases a civil service deputy decided to run for the elected office of sheriff. The courts in both cases felt that the no-candidacy laws in question were much too broad and indicated that perhaps the only situation sensitive enough to justify a flat rule was one in which an inferior in a public office electorally challenged his immediate superior. Given all these considerations, we think Cranston has not given adequate attention to the problem of narrowing the terms of its charter to deal with the specific kinds of conflict-of-interest problems it seeks to avoid.

We also do not find convincing the arguments that after-hours campaigning will drain the energy of the public employee to the extent that he is incapable of performing his job effectively and that inevitable on-the-job campaigning and discussion of his candidacy will disrupt the work of others. Although it is indisputable that the city has a compelling interest in the performance of official work, the exclusion is not well-tailored to effectuate that interest. Presumably the city could fire the individual if he clearly shirks his employment responsibilities or disrupts the work of others. Also, the efficiency rationale common to both arguments is significantly underinclusive. It applies equally well to a number of non-political, extracurricular activities that are not prohibited by the Cranston charter. Finally, the connection between after-hours campaigning and the state interest seems tenuous; in many cases a public employee would be able to campaign aggressively and still continue to do his job well.38

Incidentally, Clements v. Fashing39 sustained as constitutional a provision on the automatic resignation of District Clerks, County Clerks, County Judges, County Treasurers, Criminal District Attorneys, County Surveyors, Inspectors of Hides and Animals, County Commissioners, Justices of the Peace, Sheriffs, Assessors and Collectors of Taxes, District Attorneys, County Attorneys, Public Weighers, and Constables if they announce their candidacy or if they become candidates in any general, special or primary election.

In Clements, it may be readily observed that a provision treating differently particular officials, as distinguished from all others, under a classification that is germane to the purposes of the law, merits the stamp of approval from American courts. Not, however, a general and sweeping provision, and more so one violative of the second requisite for a valid classification, which is on its face unconstitutional.

On a final note, it may not be amiss to state that the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional. It is high-time that we, too, should follow suit and, thus, uphold fundamental liberties over age-old, but barren, restrictions to such freedoms.

WHEREFORE, premises considered, the petition is GRANTED. The second proviso in the third paragraph of Section 13 of Republic Act No. 9369, Section 66 of the Omnibus Election Code and Section 4(a) of COMELEC Resolution No. 8678 are declared as UNCONSTITUTIONAL.

SO ORDERED.

G.R. No. 163302             July 23, 2004

ROBERTO ALBAÑA, KATHERINE BELO, GENEROSO DERRAMAS, VICENTE DURAN, RICARDO ARAQUE, LILIA ARANAS, MERLINDA DEGALA, GABRIEL ARANAS, ERNESTO BITO-ON AND JUVIC DESLATE,petitioners, vs.COMMISSION ON ELECTIONS, PIO JUDE S. BELO, RODOLFO DEOCAMPO AND LORENCITO B. DIAZ,respondents.

D E C I S I O N

CALLEJO, SR., J.:

Before us is a Petition for Certiorari and Prohibition for the nullification of the Resolution of the Commission on Elections (COMELEC), First Division, dated October 21, 2003 annulling the proclamation of the petitioners as the duly-elected municipal officials of Panitan, Capiz, during the May 14, 2001 elections, and the Resolution of the COMELEC En Banc dated May 5, 2004, denying their motion for reconsideration. The petitioners aver that the public respondent committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed resolutions.

The Antecedents

During the May 14, 2001 elections, the petitioners and private respondents ran for the positions of Mayor, Vice-Mayor and Members of the Sangguniang Bayan in the Municipality of Panitan, Capiz. On May 18, 2001, the petitioners were duly elected and proclaimed winners to the following positions:

(a) Roberto Albaña – Mayor

(b) Katherine Belo – Vice-Mayor

(c) Generoso Derramas – Member of the Sang[g]uniang Bayan (SB)

(d) Vicente Duran – Member of the SB

(e) Ricardo Araque – Member of the SB

(f) Lilia Aranas – Member of the SB

(g) Merlinda Degala – Member of the SB

(h) Gabriel Aranas – Member of the SB

(i) Ernesto Bito-on – Member of the SB

(j) Juvic Deslate – Member of the SB1

On June 23, 2001, the private respondents filed a complaint against the petitioners with the COMELEC Law Department, alleging that the latter committed acts of terrorism punishable by Section 261(e)2 of the Omnibus Election Code, and engaged in vote-buying, punishable under Section 261(a)3 of the Omnibus Election Code. The private respondents prayed that the petitioners be charged of the said crimes and disqualified from holding office under Section 684 of the said Code, and Section 65 of Republic Act No. 6646. The case was docketed as Election Offense Case No. 01-111.

The Law Department of the COMELEC found a prima facie case and issued a Resolution on January 15, 2002, recommending the filing of an Information against the petitioners for violation of Section 261(e) of the Omnibus Election Code, in relation to Section 28 of Republic Act No. 6648. It, likewise, recommended the disqualification of all the petitioners from further holding

office, and the reconvening of the Municipal Board of Canvassers (MBC) in order to proclaim the qualified candidates who obtained the highest number of votes.6

Acting on the said resolution, the COMELEC En Banc issued, on February 28, 2003, a Resolution directing its Law Department to file the appropriate Information against the petitioners for violation of Section 261(e) of the Omnibus Election Code and directing the Clerk of the Commission to docket the electoral aspect of the complaint as a disqualification case. The dispositive portion reads:

IN VIEW OF THE FOREGOING, We DIRECT the LAW DEPARTMENT to FILE THE NECESSARY INFORMATION against ROBERTO ALBAÑA, KATHERINE BELO, GENEROSO DERRAMAS, VICENTE DURAN, RICARDO ARAQUE, LILIA ARANAS, MERLINDA DEGALA, GABRIEL ARANAS, ERNESTO BITO-ON and JUVIC DESLATE before a court of competent jurisdiction.

The Clerk of the Commission is likewise directed to docket the electoral aspect of the complaint as a disqualification case and immediately assign the same to a division which shall resolve the case on the basis of the recommendation of the Law Department.7

The petitioners filed a motion for reconsideration8 thereon, alleging that the COMELEC did not make any findings of fact in its resolution, and that there was even no disquisition as to the merits of the affidavits of their witnesses and the evidence presented by them. The petitioners also alleged that the COMELEC erred in ordering the docketing of the electoral aspect of the complaint, in light of Section 2 of COMELEC Resolution No. 2050.

On June 3, 2003, the COMELEC issued a Resolution9 denying the said motion for lack of merit and for having been filed out of time. The Clerk of the Commission docketed the disqualification case against the petitioners as SPA No. 03-006.

On October 21, 2003, the COMELEC First Division rendered the assailed resolution in SPA No. 03-006 annulling the petitioners' proclamation on the ground that they violated Section 261(a) and (e) of the Omnibus Election Code, and directing the election officer of Panitan to constitute a new municipal board of canvassers, thus:

WHEREFORE, in view of the foregoing, the proclamation of respondents Roberto Albaña, Katherine Belo, Generoso Derramas, Vicente Duran, Ricardo Araque, Lilia Aranas, Merlinda Degala, Gabriel Aranas, Ernesto Bito-on and Juvic Deslate as Mayor, Vice-Mayor and members of the Sangguniang Bayan of Panitan, Capiz, are hereby annulled on the ground that they committed election offenses as provided for under Section 261 (a) of the Omnibus Election Code in relation to Section 28 of RA 6646 and Section 261 (e) of the same Code in relation to Section 68 thereof. The Election Officer of the municipality of Panitan is hereby directed to constitute a new Municipal Board of Canvassers which shall disregard the votes garnered by the respondents, prepare a new Certificate of Canvass on the basis of the votes of the candidates for the position held by the respondents to the exclusion of the latter and immediately, proclaim the winners.

SO ORDERED.10

The petitioners' motion for reconsideration and supplement to the motion for reconsideration were denied by the COMELEC En Banc in the Resolution of May 5, 2004, declaring that the disqualification case was the result of the findings of the Commission En Banc. It also held that as an aftermath of petitioners' violation of Section 261(e) in relation to Section 68 of the

Omnibus Election Code, they are considered disqualified candidates and, therefore, the votes they received are deemed stray votes.11 Commissioners Mehol K. Sadain and Florentino A. Tuason, Jr. filed separate dissenting opinions.

On the same day, the private respondents moved for the execution pending appeal of the assailed resolutions on the ground that decisions on election contests rendered by the COMELEC may be executed pending appeal for good reasons. They contended that a good reason existed in this case, considering that their terms of office were about to expire.12

The Present Petition

On May 13, 2004, the petitioners filed this Petition for Certiorari and Prohibition with Application for a Temporary Restraining Order (TRO) or a Writ of Preliminary Injunction seeking to nullify the two Resolutions dated October 21, 2003 and May 5, 2004. Since the Court did not issue a temporary restraining order, the COMELEC declared the assailed Resolutions as final and executory and directed the Regional Election Director to implement the same in an Order dated May 27, 2004.13

On June 1, 2004, the Municipal Election Officer issued a Notice to the Members of the Municipal Board of Canvassers informing them that the Board shall convene on June 8, 2004.14 On June 10, 2004, the Municipal Board of Canvassers proclaimed the private respondents as the winners in the May 14, 2001 elections, with Pio Jude S. Belo as Mayor, Rodolfo Deocampo as Vice-Mayor and Lorencito B. Diaz as a Member of the Sangguniang Bayan.15

The threshold issues raised by the parties in this case are the following: (a) whether the petition was mooted by the election and proclamation of the new set of municipal officials after the May 10, 2004 elections; and, (b) if in the negative, whether the COMELEC committed a grave abuse of discretion amounting to excess or lack of jurisdiction in issuing the assailed resolutions.

The Ruling of the Court

On the first issue, we agree with the COMELEC that the petition for the nullification of its October 21, 2003 and May 5, 2004 Resolutions and the proclamation of the private respondents on June 10, 2004 was mooted by the election and proclamation of a new set of municipal officials after the May 10, 2004 elections. In fact, the records show that petitioner Katherine Belo was elected as Mayor, petitioner Generoso Derramas as Vice-Mayor, and petitioners Ricardo Araque and Ernesto Bito-on as members of the Sangguniang Bayan. The expiration of the challenged term of the offices renders the corresponding petition moot and academic.16

Where the issues have become moot and academic, there is no justiciable controversy, thereby rendering the resolution of the same of no practical use or value.17 Nonetheless, courts will decide a question otherwise moot and academic if it is capable of repetition, yet evading review.18 In this case, we find it necessary to resolve the issues raised in the petition in order to prevent a repetition thereof and, thus, enhance free, orderly, and peaceful elections. For this reason, we resolve to grant the petition.

On the second issue, the petitioners aver that since they were already proclaimed the duly-elected municipal officials of Panitan, Capiz, on May 18, 2001, the COMELEC should have dismissed the complaint for their disqualification which the private respondents filed only on June 23, 2001, more than a month after such proclamation. They aver that such dismissal was mandated by Section 2 of COMELEC Resolution No. 2050, adopted on November 3, 1988, which reads:

2. Any complaint for disqualification based on Section 68 of the Omnibus Election Code in relation to Section 6 of Rep. Act No. 6646 filed after the election against a candidate who has already been proclaimed as winner shall be dismissed as a disqualification case. However, the complainant shall be referred for preliminary investigation to the Law Department of the commission.

Where a similar complaint is filed after election but before proclamation of the respondent candidate, the complaint shall, nevertheless, be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department. If, before proclamation, the Law Department makes a prima facie finding of guilt and the corresponding information has been filed with the appropriate trial court, the complainant may file a petition for suspension of the proclamation of the respondent with the court before which the criminal case is pending and the said court may order the suspension of the proclamation if the evidence of guilt is strong. (Emphasis supplied)

The petitioners cite the ruling of this Court in Bagatsing vs. COMELEC,19 and the dissenting opinion of Commissioner Mehol Sadain, that after the COMELEC directed its Law Department on February 28, 2003 to file the appropriate Informations against the petitioners for violations of Section 261(a) and (e) of the Omnibus Election Code, it should have refrained from making a finding of disqualification before the petitioners' conviction by final judgment, since by so doing, the COMELEC preempted the decision of the trial court.

The Office of the Solicitor General, for its part, asserts that the petition at bar, considering the petitioners' plea for a writ of preliminary injunction, was designed to eschew criminal prosecution for violation of Section 261(a)(e) of the Omnibus Election Code.

We rule for the petitioners.

Section 2 of COMELEC Resolution No. 2050 is as clear as day: the COMELEC is mandated to dismiss a complaint for the disqualification of a candidate who has been charged with an election offense but who has already been proclaimed as winner by the Municipal Board of Canvassers. COMELEC Resolution No. 2050 specifically mandates a definite policy and procedure for disqualification cases;20 hence, should be applied and given effect. In Bagatsing vs. Commission on Election,21 this Court ruled that a complaint for disqualification filed after the election against a candidate before or after his proclamation as winner shall be dismissed by the COMELEC, viz:

Second, as laid down in paragraph 2, a complaint for disqualification filed after the election against a candidate (a) who has not yet been proclaimed as winner, or (b) who has already been proclaimed as winner. In both cases, the complaint shall be dismissed as a disqualification case but shall be referred to the Law Department of the COMELEC for preliminary investigation. …

…

In sharp contrast, the complaint for disqualification against private respondent in the case at bar was lodged on May 18, 1998 or seven (7) days after the 1998 elections. Pursuant to paragraph 2 of Resolution No. 2050, the complaint shall be dismissed as a disqualification case and shall be referred for preliminary investigation to the Law Department of the COMELEC. Under this scenario, the complaint for disqualification is filed after the election which may be either before or after the proclamation of the respondent candidate.22

It bears stressing that Resolution No. 2050 was approved precisely because of the variance in opinions of the members of the respondent COMELEC on matters of procedure in dealing with and evaluating cases for disqualification filed under Section 68 of the Omnibus Election Code in relation to Section 6 of Rep. Act No. 6646.23

Under the said resolution, if a complaint is filed with the COMELEC against a candidate who has already been proclaimed winner, charging an election offense under Section 261 of the Omnibus Election Code, as amended by Rep. Act Nos. 6646 and 8436, and praying for the disqualification of the said candidate, the COMELEC shall determine the existence of probable cause24 for the filing of an Information against the candidate for the election offense charged. However, if the COMELEC finds no probable cause, it is mandated to dismiss the complaint for the disqualification of the candidate.

If the COMELEC finds that there is probable cause, it shall order its Law Department to file the appropriate Information with the Regional Trial Court (RTC) which has territorial jurisdiction over the offense, but shall, nonetheless, order the dismissal of the complaint for disqualification, without prejudice to the outcome of the criminal case. If the trial court finds the accused guilty beyond reasonable doubt of the offense charged, it shall also order his disqualification pursuant to Section 264 of the Omnibus Election Code, as amended by Section 46 of Rep. Act No. 8189 which reads:

SEC. 46. Penalties.— Any person found guilty of any Election offense under this Act shall be punished with imprisonment of not less than one (1) year but not more than six (6) years and shall not be subject to probation. In addition, the guilty party shall be sentenced to suffer disqualification to hold public office and deprivation of the right of suffrage. If he is a foreigner, he shall be deported after the prison term has been served. Any political party found guilty shall be sentenced to pay a fine not less One hundred thousand pesos (P100,000.00) but not more than Five hundred thousand pesos (P500,000.00).

In this case, the petitioners were proclaimed winners on May 18, 2001. The private respondents filed their complaint for violation of Section 216(a) and (e) of the Omnibus Election Code and for the disqualification of the petitioners only on June 23, 2001. The COMELEC found probable cause against the respondents for the offense charged and directed its Law Department to file the appropriate Information against the petitioners. Patently then, the COMELEC committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing its assailed resolutions disqualifying the petitioners from the positions they were respectively elected, in defiance of Resolution No. 2050.

The plaint of the Office of the Solicitor General, that the petitioners filed their petition merely and solely to eschew criminal prosecution for violation of Section 216(a) and (e) of the Omnibus Election Code, as amended, has no factual basis. In fact, the petitioners stated in their petition that "inasmuch as the COMELEC had already directed the prosecution of the herein petitioners in a criminal case which is now pending in the Regional Trial Court of Capiz, their supposed disqualification should be adjudged by the latter court and not by the COMELEC."

The COMELEC, likewise, committed a grave abuse of its discretion when it ordered the Municipal Election Officers to convene a new Board of Canvassers and proclaim the winners after the petitioners were declared disqualified.

It is well-settled that the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office. The votes intended for the disqualified candidate should not be considered null and void, as it would amount to

disenfranchising the electorate in whom sovereignty resides.25 As we held in Reyes vs. Commission on Elections:26

To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under the circumstances. 27

WHEREFORE, the petition is GRANTED. The COMELEC Resolutions dated October 21, 2003 and May 5, 2004 are hereby NULLIFIED AND SET ASIDE. As a necessary consequence, the proclamation of the private respondents on June 10, 2004 by the Municipal Board of Canvassers as the elected Mayor, Vice-Mayor and Members of the Sangguniang Bayan of the Municipality of Panitan, Capiz, respectively, is, likewise, NULLIFIED AND SET ASIDE. No costs.

SO ORDERED.

G.R. No. 161872             April 13, 2004

REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner, vs.COMMISSION ON ELECTIONS, respondent.

RESOLUTION

TINGA, J.:

Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President on December 17, 2003. Respondent Commission on Elections (COMELEC) refused to give due

course to petitioner’s Certificate of Candidacy in its Resolution No. 6558 dated January 17, 2004. The decision, however, was not unanimous since Commissioners Luzviminda G. Tancangco and Mehol K. Sadain voted to include petitioner as they believed he had parties or movements to back up his candidacy.

On January 15, 2004, petitioner moved for reconsideration of Resolution No. 6558. Petitioner’s Motion for Reconsideration was docketed as SPP (MP) No. 04-001. The COMELEC, acting on petitioner’s Motion for Reconsideration and on similar motions filed by other aspirants for national elective positions, denied the same under the aegis of Omnibus Resolution No. 6604 dated February 11, 2004. The COMELEC declared petitioner and thirty-five (35) others nuisance candidates who could not wage a nationwide campaign and/or are not nominated by a political party or are not supported by a registered political party with a national constituency. Commissioner Sadain maintained his vote for petitioner. By then, Commissioner Tancangco had retired.

In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which were allegedly rendered in violation of his right to "equal access to opportunities for public service" under Section 26, Article II of the 1987

Constitution,1 by limiting the number of qualified candidates only to those who can afford to wage a nationwide campaign and/or are nominated by political parties. In so doing, petitioner argues that the COMELEC indirectly amended the constitutional provisions on the electoral process and limited the power of the sovereign people to choose their leaders. The COMELEC supposedly erred in disqualifying him since he is the most qualified among all the presidential candidates, i.e., he possesses all the constitutional and legal qualifications for the office of the president, he is capable of waging a national campaign since he has numerous national organizations under his leadership, he also has the capacity to wage an international campaign since he has practiced law in other countries, and he has a platform of government. Petitioner likewise attacks the validity of the form for theCertificate of Candidacy prepared by the COMELEC. Petitioner claims that the form does not provide clear and reasonable guidelines for determining the qualifications of candidates since it does not ask for the candidate’s bio-data and his program of government.

First, the constitutional and legal dimensions involved.

Implicit in the petitioner’s invocation of the constitutional provision ensuring "equal access to opportunities for public office" is the claim that there is a constitutional right to run for or hold public office and, particularly in his case, to seek the presidency. There is none. What is recognized is merely a privilege subject to limitations imposed by law. Section 26, Article II of the Constitution neither bestows such a right nor elevates the privilege to the level of an enforceable right. There is nothing in the plain language of the provision which suggests such a thrust or justifies an interpretation of the sort.

The "equal access" provision is a subsumed part of Article II of the Constitution, entitled "Declaration of Principles and State Policies." The provisions under the Article are generally considered not self-executing,2 and there is no plausible reason for according a different treatment to the "equal access" provision. Like the rest of the policies enumerated in Article II, the provision does not contain any judicially enforceable constitutional right but merely specifies a guideline for legislative or executive action.3 The disregard of the provision does not give rise to any cause of action before the courts.4

An inquiry into the intent of the framers5 produces the same determination that the provision is not self-executory. The original wording of the present Section 26, Article II had read, "The State shall broaden opportunities to public office and prohibit public dynasties."6 Commissioner (now Chief Justice) Hilario Davide, Jr. successfully brought forth an amendment that changed the

word "broaden" to the phrase "ensure equal access," and the substitution of the word "office" to "service." He explained his proposal in this wise:

I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because what is important would be equal access to the opportunity. If you broaden, it would necessarily mean that the government would be mandated to create as many offices as are possible to accommodate as many people as are also possible. That is the meaning of broadening opportunities to public service. So, in order that we should not mandate the State to make the government the number one employer and to limit offices only to what may be necessary and expedient yet offering equal opportunities to access to it, I change the word "broaden."7 (emphasis supplied)

Obviously, the provision is not intended to compel the State to enact positive measures that would accommodate as many people as possible into public office. The approval of the "Davide amendment" indicates the design of the framers to cast the provision as simply enunciatory of a desired policy objective and not reflective of the imposition of a clear State burden.

Moreover, the provision as written leaves much to be desired if it is to be regarded as the source of positive rights. It is difficult to interpret the clause as operative in the absence of legislation since its effective means and reach are not properly defined. Broadly written, the myriad of claims that can be subsumed under this rubric appear to be entirely open-ended.8 Words and phrases such as "equal access," "opportunities," and "public service" are susceptible to countless interpretations owing to their inherent impreciseness. Certainly, it was not the intention of the framers to inflict on the people an operative but amorphous foundation from which innately unenforceable rights may be sourced.

As earlier noted, the privilege of equal access to opportunities to public office may be subjected to limitations. Some valid limitations specifically on the privilege to seek elective office are found in the provisions9 of the Omnibus Election Code on "Nuisance Candidates" and COMELEC Resolution No. 645210 dated December 10, 2002 outlining the instances wherein the COMELEC may motu proprio refuse to give due course to or cancel aCertificate of Candidacy.

As long as the limitations apply to everybody equally without discrimination, however, the equal access clause is not violated. Equality is not sacrificed as long as the burdens engendered by the limitations are meant to be borne by any one who is minded to file a certificate of candidacy. In the case at bar, there is no showing that any person is exempt from the limitations or the burdens which they create.

Significantly, petitioner does not challenge the constitutionality or validity of Section 69 of the Omnibus Election Code and COMELEC Resolution No. 6452 dated 10 December 2003. Thus, their presumed validity stands and has to be accorded due weight.

Clearly, therefore, petitioner’s reliance on the equal access clause in Section 26, Article II of the Constitution is misplaced.

The rationale behind the prohibition against nuisance candidates and the disqualification of candidates who have not evinced a bona  fide intention to run for office is easy to divine. The State has a compelling interest to ensure that its electoral exercises are rational, objective, and orderly. Towards this end, the State takes into account the practical considerations in conducting elections. Inevitably, the greater the number of candidates, the greater the opportunities for logistical confusion, not to mention the increased allocation of time and resources in preparation for the election. These practical difficulties should, of course, never exempt the State from the conduct of a mandated electoral exercise. At the same time, remedial actions should be

available to alleviate these logistical hardships, whenever necessary and proper. Ultimately, a disorderly election is not merely a textbook example of inefficiency, but a rot that erodes faith in our democratic institutions. As the United States Supreme Court held:

[T]here is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization and its candidates on the ballot – the interest, if no other, in avoiding confusion, deception and even frustration of the democratic [process].11

The COMELEC itself recognized these practical considerations when it promulgated Resolution No. 6558 on 17 January 2004, adopting the study Memorandum of its Law Department dated 11 January 2004. As observed in the COMELEC’s Comment:

There is a need to limit the number of candidates especially in the case of candidates for national positions because the election process becomes a mockery even if those who cannot clearly wage a national campaign are allowed to run. Their names would have to be printed in the Certified List of Candidates, Voters Information Sheet and the Official Ballots. These would entail additional costs to the government. For the official ballots in automated counting and canvassing of votes, an additional page would amount to more or less FOUR HUNDRED FIFTY MILLION PESOS (P450,000,000.00).

xxx[I]t serves no practical purpose to allow those candidates to continue if they cannot wage a decent campaign enough to project the prospect of winning, no matter how slim.12

The preparation of ballots is but one aspect that would be affected by allowance of "nuisance candidates" to run in the elections. Our election laws provide various entitlements for candidates for public office, such as watchers in every polling place,13 watchers in the board of canvassers,14 or even the receipt of electoral contributions.15Moreover, there are election rules and regulations the formulations of which are dependent on the number of candidates in a given election.

Given these considerations, the ignominious nature of a nuisance candidacy becomes even more galling. The organization of an election with bona fide candidates standing is onerous enough. To add into the mix candidates with no serious intentions or capabilities to run a viable campaign would actually impair the electoral process. This is not to mention the candidacies which are palpably ridiculous so as to constitute a one-note joke. The poll body would be bogged by irrelevant minutiae covering every step of the electoral process, most probably posed at the instance of these nuisance candidates. It would be a senseless sacrifice on the part of the State.

Owing to the superior interest in ensuring a credible and orderly election, the State could exclude nuisance candidates and need not indulge in, as the song goes, "their trips to the moon on gossamer wings."

The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the compelling State interest to ensure orderly and credible elections by excising impediments thereto, such as nuisance candidacies that distract and detract from the larger purpose. The COMELEC is mandated by the Constitution with the administration of elections16 and endowed with considerable latitude in adopting means and methods that will ensure the promotion of free, orderly and honest elections.17 Moreover, the Constitution guarantees that only bona fide candidates for public office shall be free from any form of harassment and

discrimination.18 The determination of bona fidecandidates is governed by the statutes, and the concept, to our mind is, satisfactorily defined in the Omnibus Election Code.

Now, the needed factual premises.

However valid the law and the COMELEC issuance involved are, their proper application in the case of the petitioner cannot be tested and reviewed by this Court on the basis of what is now before it. The assailed resolutions of the COMELEC do not direct the Court to the evidence which it considered in determining that petitioner was a nuisance candidate. This precludes the Court from reviewing at this instance whether the COMELEC committed grave abuse of discretion in disqualifying petitioner, since such a review would necessarily take into account the matters which the COMELEC considered in arriving at its decisions.

Petitioner has submitted to this Court mere photocopies of various documents purportedly evincing his credentials as an eligible candidate for the presidency. Yet this Court, not being a trier of facts, can not properly pass upon the reproductions as evidence at this level. Neither the COMELEC nor the Solicitor General appended any document to their respective Comments.

The question of whether a candidate is a nuisance candidate or not is both legal and factual. The basis of the factual determination is not before this Court. Thus, the remand of this case for the reception of further evidence is in order.

A word of caution is in order. What is at stake is petitioner’s aspiration and offer to serve in the government. It deserves not a cursory treatment but a hearing which conforms to the requirements of due process.

As to petitioner’s attacks on the validity of the form for the certificate of candidacy, suffice it to say that the form strictly complies with Section 74 of the Omnibus Election Code. This provision specifically enumerates what a certificate of candidacy should contain, with the required information tending to show that the candidate possesses the minimum qualifications for the position aspired for as established by the Constitution and other election laws.

IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby remanded to the COMELEC for the reception of further evidence, to determine the question on whether petitioner Elly Velez Lao Pamatong is a nuisance candidate as contemplated in Section 69 of the Omnibus Election Code.

The COMELEC is directed to hold and complete the reception of evidence and report its findings to this Court with deliberate dispatch.

SO ORDERED.

[G.R. No. 143351. September 14, 2000]

MA. AMELITA C. VILLAROSA, petitioner, vs. THE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and RICARDO V. QUINTOS,respondents.

[G.R. No. 144129. September 14, 2000]

MA. AMELITA C. VILLAROSA, petitioner, vs. THE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and RICARDO V. QUINTOS,respondents.

D E C I S I O N

DAVIDE, JR., C.J.:

These cases, which were ordered consolidated on 15 August 2000, have their genesis in HRET Case No. 98-030,[1] an election protest case filed by private respondent Ricardo V. Quintos (hereafter QUINTOS) against petitioner Amelita C. Villarosa (hereafter VILLAROSA) before the House of Representatives Electoral Tribunal (hereafter HRET).

VILLAROSA and QUINTOS were the only candidates for the office of Representative of the Lone Legislative District of Occidental Mindoro in the 11 May 1998 synchronized national and local elections. On 27 May 1998 the Provincial Board of Canvassers proclaimed VILLAROSA as the winning candidate with a margin of 3,032 votes.

On 4 June 1998 QUINTOS filed an election protest against VILLAROSA [2] contesting the results of the election in all the 882 precincts in the eleven municipalities of Occidental Mindoro on the following grounds: (1) the ballots were misread and counted in favor of protestee; (2) there was rampant substitute voting, i.e., persons other than the registered voters voted; (3) violence and intimidation were committed by protestee and her followers against known supporters of protestant to enhance protestee’s candidacy; 4) previously prepared ballots for the protestee were deposited in the ballot boxes; and (5) illiterate Mangyan voters voting for protestant were assisted by self-appointed assistors of protestee, who wrote “JTV” on the ballots contrary to the instruction of said illiterate voters.

On 6 July 1998 VILLAROSA filed her Answer with Counter-Protest and Counterclaim.[3] She counter-protested the results of the election in 497 precincts.

During the preliminary conference conducted by the HRET on 6 August 1998, QUINTOS and VILLAROSA agreed on the following facts:

1. Protestant and Protestee were registered candidates for and voted as Representatives, Lone Legislative District of Occidental Mindoro in the May 11, 1998 elections;

2. On May 27, 1998, after canvass of returns, the Provincial Board of Canvassers proclaimed Protestee Villarosa as the winning candidate for having obtained fifty-five thousand four hundred (55,400) votes, or a margin of three thousand thirty-two (3,032) votes over Protestant Quintos who was credited fifty-two thousand three hundred sixty-eight (52,368) votes;

3. All the precints in the Lone Legislative District of Occidental Mindoro functioned in the elections;

4. Protestant contests the results of the elections in all the precints of the eleven (11) municipalities comprising the Lone Legislative District of Occidental Mindoro; upon the other hand, Protestee counter-protests the results of the elections in four hundred ninety-seven (497) precints;

5. Protestee is wife of JOSE T. VILLAROSA, who was Representative of the District in question for two terms, the last of which ended on June 30, 1998; in his

certificate of candidacy for the election of May 8, 1995, JOSE T. VILLAROSA wrote as his “nickname or stage name: JOE-JTV.”

6. In her certificate of candidacy, Protestee wrote “JTV” as her “nickname/stage name.”

7. In her affidavit dated April 16, 1998 sent to the Office of the Provincial Election Supervisor, Occidental Mindoro, Protestee asked that she be allowed to insert in her certificate of candidacy the name GIRLIE such that her name should read in full as MA. AMELITA “Girlie” C. VILLAROSA as “in every barangays [sic] of the Province of Occidental Mindoro” she is known as “Girlie Villarosa”;

8. In a letter dated March 27, 1998 sent by Provincial Election Supervisor (PES) Arsenio Guste of Occidental Mindoro to Director Jose B. Balbuena, Law Department, COMELEC, the former notified the latter that the nickname of protestee in her certificate of candidacy is JTV;

9. In his Memorandum dated May 10, 1998 to all Election Officers, PES Guste informed them that “JTV” is the authorized nickname or stage name of protestee and that “henceforth JTV, for all intents and purposes, in the appreciation of official ballots, … should be counted in her favor;”

10. One Atty. Dan Restor of San Jose, Occidental Mindoro, had filed with the COMELEC a petition to invalidate/cancel “JTV” as the official nickname of the protestee; the petition was docketed as Election Matter No. 98-044; both Protestant and Protestee were not made formal parties thereto;

11. In its Resolution of May 11, 1998, the COMELEC en banc unanimously granted the petition in Election Matter No. 98-044; it ruled that the Protestee “cannot use the nickname “JTV” considering that the same is not her nickname to which she is popularly known.” Protestee’s motion to reconsider the resolution was denied by the COMELEC in its Order of May 13, 1998; Protestee thereafter filed with the Supreme Court a Special Civil Action for Certiorari to challenge the resolution and order, which was docketed as G.R. No. 133927, which is still pending therein;

12. Per joint affidavit of Ms. Michelle Vizcarra and Mrs. Carmen Antonio (Annex “D” of Petition) a copy of the COMELEC Resolution of May 11, 1998 in Election Matter No. 98-044 was received by PES Guste at around 4:00 p.m., but were seen by him at 4:20 p.m. of May 11, 1998;

13. Before the filing of this protest, Protestant filed with the COMELEC a petition to disqualify Protestee, which was docke[te]d therein as SPA No. 98-342, on the grounds that protestee had “given money or material consideration to influence, induce or corrupt the voters or public officials performing electoral functions and committed acts of terrorism to enhance her candidacy.” The case is still pending.[4]

The parties further agreed and stipulated on the following issues:

1. Whether or not the votes JTV should be counted in favor of Protestee;

2. Recount and appreciation of ballots;

3. Damages, attorney’s fees and litigation expenses as alleged and prayed for by Protestee, and according to Protestant, as indicated in prayer for “other relief, just and equitable.”[5]

The HRET thereafter required the parties to designate 25% of the protested and counter-protested precincts as their respective pilot precincts pursuant to Rule 68 of the HRET Rules of Procedure.

During the revision, ballots bearing “JTV,” “JTB,” “GTV,” “GTB,” “Jitivi,” “Gitivi,” “Jitibi” and “Gitibi” on the line for Representative were classified as ballots for VILLAROSA, which the revisors of QUINTOS objected to. Likewise, ballots bearing “Girlie” on the line for Representative were classified as votes for VILLAROSA.

On 5 August 1999, QUINTOS filed a “Motion to Withdraw Remaining Non-Pilot Protested Precincts.”[6]

On 7 October 1999, after granting this motion, the HRET promulgated a resolution[7]stating that with QUINTOS’ withdrawal of the remaining non-pilot protested precincts, QUINTOS impliedly limited the issue to

WHETHER OR NOT THE “JTV” VOTES SHOULD BE COUNTED IN FAVOR OF PROTESTEE AMELITA C. VILLAROSA

On 9 December 1999 the HRET conducted an oral argument and heard QUINTOS and VILLAROSA on the aforestated issue.[8]

On 18 May 2000, the HRET promulgated Resolution No. 00-65 [9] wherein it resolved to “PROCEED with the revision of the ballots in the remaining 75%; and DIRECT the Secretariat to continue with the revision.” This resolution prompted VILLAROSA to file an Omnibus Motion[10] praying for (1) the suspension of the revision of the ballots pursuant to HRET Resolution No. 00-65; (2) a categorical ruling that all ballots cast for “JTV” are valid votes for VILLAROSA; and (3) the dismissal of the protest.

On 8 June 2000 the HRET issued Resolution No. 00-82 [11] informing the parties that “the Tribunal ruled on May 18, 2000, by [a] vote of 5-4 of its members, not to count ‘JTV’ and its variations as valid votes for Protestee Amelita C. Villarosa, the same being considered stray ballots... [and that it] directed that the revision of ballots proceed with respect to the 75% counter-protest precincts.”

On 14 June 2000, VILLAROSA filed with this Court a petition for certiorari docketed as G.R. No. 143351. She alleged therein that the HRET gravely abused its discretion in (a) issuing the above-mentioned resolutions of 18 May and 8 June 2000 in that it violated her right to due process when it disposed by a 5-4 ruling a vital election incident without stating therein the findings of fact and law on which the resolutions were based; and (b) treating “JTV” votes as stray and invalid, resulting in the disenfranchisement of the voters of Occidental Mindoro. She argued that “JTV” was her designated nickname in the official list of candidates submitted by the provincial election supervisor to the COMELEC in Manila; it was the nickname she used in her posters, handbills and other election propaganda throughout the campaign period. In her speeches during the rallies, she urged the voters who might have found her full name difficult to write to simply vote “JTV,” as she had decided to use that nickname as a shortcut of her name as a married woman under Article 370 of the Civil Code. Under this Article, a married woman may use (1) her maiden first name and surname and add her husband’s surname; (2) her maiden first name and her husband’s surname; or (3) her husband’s full name, but prefixing a word indicating that she is his wife, such as Mrs.

VILLAROSA then prayed that this Court issue a temporary restraining order (TRO) or a writ of preliminary injunction in G.R. No. 143351 to enjoin the HRET from resuming the revision of the remaining ballots in HRET Case No. 98-030. The Court, however, did not issue a TRO but required the HRET and QUINTOS to file a comment on the petition.

In his Comment, QUINTOS alleged that the petition in G.R. No. 143351 is premature because the HRET had not yet rendered a decision on the election protest. The assailed resolutions of the HRET are not decisions or formal resolutions which, as mandated by the Constitution, should set out the facts and the law on which they are based; nor are they acts which may be reviewed by certiorari under Rule 65 of the Rules of Court. As to the use of “JTV” as VILLAROSA’s nickname, QUINTOS claims that the HRET’s ruling on the matter should be maintained because under Section 211 of the Omnibus Election Code any vote containing

initials only shall be considered a stray vote. Moreover, VILLAROSA’s use of such nickname was attended by bad faith, fraud and misrepresentation, and could have been for no other purpose than to make voters believe that they are voting for her husband, who was the Congressman of Occidental Mindoro for two terms and the incumbent Congressman at the time of the elections on 11 May 1998.

The Office of the Solicitor General submitted a Manifestation in Lieu of Comment and took the position that “JTV” votes should be declared valid and counted in favor of VILLAROSA, and to declare otherwise would frustrate the sovereign will of the people of Occidental Mindoro.

No TRO having been issued by this Court, the revision of the ballots of the remaining 75% of the counter-protested precincts went on and was completed on 28 June 2000.Because of the ruling that “JTV” votes or votes consisting of variations of “JTV” are stray votes, VILLAROSA lost 1,842 votes in the 75% counter-protested precincts and 4,336 votes in the 25% pilot precincts.

Accordingly, in its decision promulgated on 27 July 2000,[12] the HRET, by a vote of 5-4, (1) ruled that QUINTOS obtained 51,465 votes, while VILLAROSA garnered 48,617 votes; (2) declared QUINTOS as the duly elected Representative of the Lone District of Occidental Mindoro, having obtained the highest number of votes with a margin of 2,848 votes over VILLAROSA; and (3) ordered VILLAROSA to vacate her office at the House of Representatives.

The HRET maintained that the issue of whether to count in favor of VILLAROSA votes for “JTV” or its variations necessitated a determination of whether VILLAROSA was in fact generally or popularly known as such in the locality of Occidental Mindoro.

The HRET held against VILLAROSA for various reasons. First, in her affidavit asking for the insertion of “GIRLIE” between her given name and surname she stated that she was known as GIRLIE in every barangay of the Province of Occidental Mindoro. This is an admission that, indeed, her nickname is not “JTV” but “GIRLIE.” In fact, votes cast for “GIRLIE” were credited in her favor. Hence, the counting in her favor of ballots bearing “JTV” votes on the line for Representative would be tantamount to injustice because that would allow VILLAROSA to use two nicknames, “GIRLIE” and “JTV,” which would be in violation of the second paragraph of Section 74 of the Omnibus Election Code allowing candidates to use only one nickname or stage name by which they are generally or popularly known in the locality. Moreover, Rule 13, Section 211 of the Omnibus Election Code on appreciation of ballots provides:

The use of nicknames and appellations of affection and friendship, if accompanied by the first name or surname of the candidate, does not annul such vote, except when they were used as a means to identify the voter, in which case the whole ballot is invalid; Provided, That if the nickname used is unaccompanied by the name or surname of a candidate and it is the one by which he is generally or popularly known in the locality, the name shall be counted in favor of said candidate, if there is no other candidate for the same office with the same nickname.

The HRET thus agreed with the COMELEC in its resolution [13] that disallowed VILLAROSA to use “JTV” as a nickname because the same was not her nickname with which she was popularly known. In other cases the COMELEC en banc in its Resolution No. 95-0707 of 9 February 1995 required the following senatorial candidates in the 8 May 1995 elections to submit other names considering that the nicknames or stage names they submitted were not acceptable under the law for purposes of their candidacy:

1. Juan Flavier, who submitted the nickname “Let’s DOH it,” which is a slogan of the Department of Health and not the nickname of a person;

2. Rodolfo Biazon, who submitted the nickname “General,” which cannot refer to Rodolfo Biazon only;

3. Gloria Macapagal-Arroyo, who submitted the nickname “GMA,” which is more associated with Channel 7; and

4. Sergio Osmeña III, who submitted the nickname “OK Eskapo,” which is a title of a recent movie and not a general or popular nickname of Osmeña.

Finally, the HRET invoked Rule 14 of Section 211 of the Omnibus Election Code, which provides that “any vote containing initials only… or which does not sufficiently identify the candidate for whom it is intended shall be considered stray vote.” The letters “JTV” and its derivatives do not adequately describe the identity of VILLAROSA considering that they are part of the “JOE-JTV” nickname of Jose Tapales Villarosa who had been the representative of the district in question for two terms, the last of which ended on 30 June 1998. The letters “JTV” could not definitely impress upon the voters that the person running for election was indeed petitioner VILLAROSA.

Her motion for the reconsideration of the decision having been denied, VILLAROSA filed in G.R. No. 143351 a Supplemental Manifestation with Urgent Motion to Act on a Pending Prayer and pleaded that this Court issue a temporary restraining order or a status quo order pending deliberation on, and resolution of, the petition.

On 8 August 2000 this Court required QUINTOS to comment on the Supplemental Manifestation, and set the case for oral argument on 15 August 2000.

On 11 August 2000 VILLAROSA filed a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, which was docketed as G.R. No. 144129, (1) assailing the HRET decision; (2) reiterating the issue of the validity of the “JTV” votes; and (3) charging the HRET with grave abuse of discretion in dispensing with the hearings and appreciation of ballots in the remaining 75% counter-protested precincts, thereby depriving her of the right to due process.

QUINTOS filed his Comment on the Supplemental Manifestation in G.R. No. 143351. Later, in his Addendum to Comment he informed the Court that on 12 August 2000, following the denial by the HRET of VILLAROSA’s motion for reconsideration, he took his oath of office as Representative of the Lone Legislative District of Occidental Mindoro.  He then prayed that the petition in G.R. No. 14335 be dismissed for having been rendered moot and academic.

At the oral argument on 15 August 2000, the parties argued on the following issues:

(1) Whether or not due process was observed by the HRET in rendering the decision in question.

(2) Whether or not the HRET committed grave abuse of discretion in not counting in favor of VILLAROSA the votes for “JTV” or derivatives thereof.

(3) Whether or not this Court can still sustain the enforcement of the decision of the HRET considering its rules on finality of judgment and the fact that QUINTOS has taken his oath of office.

By a vote of 7-4, the Court resolved to issue a Status Quo Order allowing VILLAROSA to continue holding her office until 29 August 2000.

On 29 August 2000, by a vote of 7-4, with Davide, Jr., C.J.; Bellosillo; Kapunan; Quisumbing; Purisima; Buena and Santiago, JJ., voting in favor of the dismissal of these petitions; and with Puno, Panganiban, Reyes and De Leon, JJ., dissenting, the Court resolved to dismiss the petitions in these cases, without prejudice to an extended opinion. We also ordered the immediate lifting of the status quo order issued on 15 August 2000.

This ponencia is an extended opinion.

The first two issues revolve on the ruling of the HRET limiting the issue to the validity of the votes for “JTV” or derivatives thereof and in dispensing with the hearings and appreciation of ballots in the remaining 75% of the counter-protested precincts.

We hold that VILLAROSA was not denied due process in this regard. As to the limitation of the issue, VILLAROSA has herself to blame. First, she sought no reconsideration of the pronouncement of the HRET in its 7 October 1999 Resolution that “[w]ith Protestant’s withdrawal of the remaining non-pilot protested precincts, Protestant impliedly limited the issue to whether or not ‘JTV’ votes should be counted in favor of protestee Amelita C. Villarosa.” Second, at the oral argument before the HRET on 9 December 1999, VILLAROSA’s counsel did not object to, but instead concurred with, QUINTOS’ submission that the case would rise or fall on how the Tribunal would rule on the “JTV” votes.

The assailed decision of the HRET quotes the statements of Atty. Felizmeña, counsel for QUINTOS, and Atty. Makalintal, counsel for VILLAROSA, during the oral argument, thus:

Atty. Felizmeña: x x x Our case will rise or fall on “JTV” on whether or not it is valid or not x x x (TSN of December 9, 1999, Part I, p. 10)

x x x

Atty. Felizmeña: x x x if this Tribunal will validate “JTV” ballots, I have no case. (Ibid, ibid, p. 14)

x x x

Atty. Felizmeña: x x x as I said earlier, I already withdrew the balance of our protest, Your Honor, and I will only submit for resolution on the precincts so revised, referring to the pilot precincts of both parties. Now, even in the pilot precincts of the protestee, Your Honor, there were 865 ballots containing “JTV” and its derivatives so it will increase even the lead of the protestant should the Hon. Tribunal rule[ ] that “JTV” is null and void. However, if the rule is valid, I have no more case (Ibid, Part II, p. 10)

x x x

Atty. Felizmeña: x x x And finally, Your Honors, there are sufficient ballots containing “JTV” and its derivatives including “Girlie” which will offset the winning margin of the protestee by more than one thousand eight hundred (1,800). And the protestee, in the remaining non-pilot counter-protested [precincts] will not anymore recover what she had lost here in the pilot precincts because the pilot precincts are supposedly the precincts where the anomaly is more notorious. So, there is no more chance for the protestee to recover what she had lost if “JTV” ballots are considered stray.  (Ibid, Part III, p. 23)

x x x

Atty. Felizmeña: x x x we already withdrew our remaining non-pilot protested precincts. What is now left for the Tribunal is to decide whether or not it will continue the revision of the non-pilot counter-protested precincts x x x We submit, Your Honors, that if this Honorable Tribunal will consider as stray “JTV” ballots, we will sufficiently overcome the winning margin. And the protestee cannot overcome our winning margin in the non-pilot counter-protested precincts. So that, therefore, Your Honors, there is no need anymore to go though [sic] and this case could be decided without anymore revising. That is why we withdrew, as we stated earlier, our case will rise and fall on “JTV.” x x x (Ibid, ibid, pp. 24-25)

x x x

Atty. Macalintal: x x x Well, I have nothing more to discuss, Your Honors, because I think the only issue here is whether we could validate the use[ ] of initials, Your Honors. (Ibid, Part IV, p. 25).[14] (underscoring supplied for emphasis)

Finally, after the HRET promulgated its resolution of 18 May 2000 directing the revision of the ballots in the remaining 75% precincts, VILLAROSA filed an Omnibus Motion, praying for, inter alia, a categorical ruling that all ballots cast for “JTV” are valid votes for her. In its

resolution of 8 June 2000 the HRET ruled by a 5-4 vote “not to count JTV and its variations as valid votes for” VILLAROSA.

In the 1918 case of Banco Español-Filipino v. Palanca[15]  this Court held:

As applied to a judicial proceeding, however, it may be laid down with certainty that the requirement of due process is satisfied if the following conditions are present, namely; (1) there must be a court or tribunal clothed with judicial power to hear and determine the matter before it; (2) jurisdiction must be lawfully acquired over the person of the defendant or over the property which is the subject of the proceeding; (3) the defendant must be given an opportunity to be heard; and (4) judgment must be rendered upon the lawful hearing.

The essence of due process is the reasonable opportunity to be heard and submit evidence in support of one’s defense. To be heard does not only mean verbal arguments in court; one may be heard also through pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of due process.[16]

From the foregoing, it is too plain and obvious that not only was VILLAROSA heard on the issue, she even moved that the HRET make a categorical ruling that all ballots cast for “JTV” are valid ballots for her. VILLAROSA cannot now be heard to complain that she was denied due process.

With the ruling that the only issue left for determination was whether to count in favor of VILLAROSA votes cast for JTV or variations thereof, it logically follows that a hearing or appreciation of ballots other than those cast for “JTV” or variations thereof in the remaining 75% counter-protested precincts was unnecessary. All that was to be done was to segregate therefrom ballots bearing “JTV” or variations thereof.

Concretely then, the only issue that can justify our taking cognizance of these cases is to determine, pursuant to our duty under Section 1 of Article VIII of the Constitution, whether the HRET committed grave abuse of discretion amounting to lack or excess of jurisdiction in declaring the “JTV” votes as stray votes. It should not be forgotten that under the Constitution the HRET is “the sole judge of all contests relating to the election, returns and qualifications of the Members of the House of Representatives.[17] Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction; or, in other words, where the power is exercised in an arbitrary manner by reason of passion or personal hostility. It must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.[18]

If the HRET had committed grave abuse of discretion amounting to lack or excess of jurisdiction, then the aggrieved party may come to us for redress by way of a special civil action for certiorari under Rule 65 of the 1997 Rules of Civil Procedure even if by the HRET Rules of Procedure the assailed judgment has become final and the prevailing party has taken his oath of office or assumed his position. The HRET rule on finality of its judgment cannot divest the Supreme Court of its power and duty under Section 1 of Article VIII of the Constitution to determine in a proper case whether there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of HRET.

Explaining this duty of the courts, then Commissioner Roberto R. Concepcion, former Chief Justice, stated:

Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its offices. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature.[19]

The facts established in this case, strengthened by the admission of the parties at the preliminary conference conducted by the HRET on 6 August 1998 and during the oral argument before the Court on 15 August 2000, lead us to no other conclusion than that the use by VILLAROSA of “JTV” as her nickname or stage name, as indicated in her Certificate of Candidacy, was a clever ruse or ploy to make a mockery of the election process.  Therefore, the HRET did not commit any grave abuse of discretion in ruling that “JTV” votes should not be counted in favor of VILLAROSA. They are stray votes. Here are the facts:

1. The husband of petitioner is Jose Tapales Villarosa.

2. Jose Tapales Villarosa was elected Representative of the Lone Legislative District of Occidental Mindoro in the 1992 and 1995 elections, thereby serving two full terms.

3. During the election and campaign periods for the 11 May 1998 elections Jose Tapales Villarosa was the incumbent Representative of the Lone Legislative District of Occidental Mindoro.

4. In his certificate of candidacy for the May 1995 elections Jose Tapales Villarosa entered as his nickname “JOE-JTV.” As stated by counsel for VILLAROSA during the 15 August 2000 oral argument, JOE and “JTV” are two nicknames of Jose Tapales Villarosa.

5. Per admission of VILLAROSA’s counsel during the oral argument on 15 August 2000, “JTV” was used by Jose Tapales Villarosa as his nickname in both the 1992 and 1995 elections, and the public was publicly informed thereof.[20]

6. “JTV” refers actually to the initials of Jose Tapales Villarosa.

7. Before VILLAROSA filed her certificate of candidacy on 27 March 1998 for the 11 May 1998 elections, VILLAROSA never used “JTV” as her nickname or stage name. Her nickname was “GIRLIE.” In her affidavit dated 16 April 1998 which she filed with the Provincial Election Supervisor, she requested that she be allowed to insert in her Certificate of Candidacy the name “GIRLIE” between her given name Amelita and the initial of her maiden surname C so that her name would read in full as follows: “MA. AMELITA “Girlie” C. VILLAROSA.”

8. In said affidavit of 16 April 1998, VILLAROSA solemnly declared under oath that she was known as “GIRLIE” Villarosa in every barangay of the Province of Occidental Mindoro.

9. During the campaign period for the 11 May 1998 elections, VILLAROSA’s campaign streamers (e.g., Annex “P-1” of Petition in G.R. No. 144129) and handbills (e.g., Annex “P-2,” id.) did not at all show that “JTV” was her nickname. She earlier wanted her real nickname “GIRLIE” to be placed between AMELITA and VILLAROSA per the request in her affidavit of 16 April 1998, which request was not acted upon.

From the foregoing, the following conclusions are beyond dispute:

First, “JTV” represents either the initials or the nickname of Jose Tapales Villarosa.

Second, VILLAROSA was never generally or popularly known as “JTV.” She was generally or popularly known as “GIRLIE.” Clearly then, since “JTV” remains to be either the initials or nickname of Jose Tapales Villarosa, who was the incumbent Congressman during the election and campaign periods for the 11 May 1998 elections, votes entered or written as “JTV” cannot be considered as votes for petitioner. The votes “JTV” or any variations thereof are, therefore, stray votes.

It would be the height of naivety to believe that, indeed, “JTV” is petitioner’s nickname, or that she used it for any other purpose than to ride on the popularity of her husband to mislead the voters, especially the less informed.

The plea that the voters’ intention must prevail is misplaced. It assumes that those who wrote “JTV” actually intended to vote for petitioner. This could be true only if the person who actually owns the nickname or the initials “JTV” were not (a) VILLAROSA’s husband, (b) the incumbent Representative who had won as such in both the 1992 and 1995 elections, (c) generally and popularly known as “JTV” when he ran and campaigned for Representative in both elections in the same legislative district where VILLAROSA ran in the May 1998 elections. But since these were the immutable facts, the voters who wrote “JTV” or variations thereof had no other person in mind except the then incumbent Representative, Jose Tapales Villarosa, or the very person whom they have known for a long time as “JTV.”

The foregoing facts distinguish these cases from those relied upon by VILLAROSA and in the concurring and dissenting opinion of Mme. Justice Gonzaga-Reyes.

Since “JTV” undoubtedly refers to the initials or nickname of VILLAROSA’s husband, Jose Tapales Villarosa, who was, let it be stressed again, the incumbent Representative of the district in question at the time of the election for his successor, neither reason nor rhyme can support or justify a claim that “JTV” votes were intended for petitioner VILLAROSA.

Article 370 of the Civil Code, which VILLAROSA invokes, provides no relief for her. The article enumerates the names which a married woman may use. One of them is “her husband’s full name, but prefixing a word indicating that she is his wife, such as Mrs.” If VILLAROSA had availed herself of this, as she suggested in her petition and during the oral argument, then her name would be “MRS. JOSE TAPALES VILLAROSA.” If for expediency and convenience she would use the initials of her husband, then her name, in initials would be “MRS. JTV.” Yet, on this point, VILLAROSA even attempted to confuse us. During the oral argument on 15 August 2000 she tried to convince us that “MRS. JTV” is also her nickname, thus:

CHIEF JUSTICE:

And before 1995 can you inform the Court if Mrs. Villarosa the petitioner here had ever used the nickname JTV?

ATTY. DE LIMA BOHOL:

As Mrs. JTV, yes, but not purely as JTV.   I am not aware of any instance where she used purely as JTV but as Mrs. JTV.

CHIEF JUSTICE:

Do you have evidence to show that before 1995 elections JTV was the nickname of Mrs. Villarosa or the petitioner now?

ATTY. DE LIMA BOHOL:

We don’t have evidence, Your Honor.

CHIEF JUSTICE:

Can you tell the Court if at any time before the filing of the certificate of candidacy of the petitioner before the May 11, 1998 election she ever used the nickname JTV?

ATTY. DE LIMA BOHOL:

As Mrs. JTV, yes.

CHIEF JUSTICE:

So, before the filing of the certificate of candidacy for the May 11, 1998 election the petitioner here used the nickname Mrs. JTV?

ATTY. DE LIMA BOHOL:

Yes, Your Honor.

CHIEF JUSTICE:

Meaning, I stress Mrs. JTV?

ATTY. DE LIMA BOHOL:

Yes, your Honor.[21] (Emphasis supplied)

This attempt further proves beyond doubt that, indeed, “JTV” had never been VILLAROSA’s nickname.

Even if VILLAROSA decided to use “JTV” as her nickname for purposes of the 11 May 1998 elections, one must never forget that she never used it as a nickname before she filed her certificate of candidacy. The nickname which the second paragraph of Section 74 of the Omnibus Election Code allows to be included in the certificate of candidacy is that “by which [the candidate] is generally or popularly known.” This clearly means the nickname by which one has been generally or popularly known BEFORE the filing of the certificate of candidacy, but NOT what the candidate wants to THEREAFTER use. By her own statement under oath in her affidavit of 16 April 1998, VILLAROSA solemnly declared that she was generally and popularly known in every barangay in Occidental Mindoro as “GIRLIE” BEFORE and AFTER she filed her certificate of candidacy. And, as asserted by her counsel during the oral argument on 15 August 2000, her other nickname before she filed her certificate of candidacy was “MRS. JTV,” not “JTV.”

Rule 13 of Section 211 of the Omnibus Election Code cannot be applied in favor of VILLAROSA. That rule allows the use of (a) a nickname and appellation of affection and friendship,   provided that it is accompanied by the first name or surname of the candidate, unless the nickname or appellation is used to identify the voter; and (b) a nickname, which is not accompanied by the name or surname of a candidate, provided that it is the one by which the candidate is generally or popularly known in the locality. In both instances, the vote cast for the nickname is a valid vote for the candidate concerned. The “JTV” votes are unaccompanied by her first name or surname; and “JTV” is not, to repeat, a nickname by which VILLAROSA was generally and popularly known in the Legislative District of Occidental Mindoro. The HRET then committed no error in not applying in favor of VILLAROSA Rule 13, Section 211 of the Omnibus Election Code.

Significantly, VILLAROSA’s original counsel admitted during the oral argument on 9 December 1999 that “JTV” are mere initials, thus:

Atty. Macalintal: xxx Well, I have nothing more to discuss, Your Honors, because I think the very issue here is whether, we could validate the used [sic] of initials, Your Honors.

The HRET was thus correct in applying Rule 14 of Section 211 of the Omnibus Election Code, which provides:

14. Any vote containing initials only or which is illegible or which does not sufficiently identify the candidate for whom it is intended shall be considered as a stray vote but shall not invalidate the whole ballot.

Under this rule three kinds of votes are considered stray: (1) a vote containing initials only, (2) a vote which is illegible, and (3) a vote which does not sufficiently identify the candidate for whom it is intended. The only error of the HRET is its ruling that if the votes are in initials only, they are to be considered stray votes if they do not sufficiently identify the candidate for whom

the votes are intended. The first category of stray votes under this rule is not to be qualified by the third category in the sense that votes in initials only may be counted for a candidate provided that the initials would sufficiently identify the candidate voted for. Such construction of the rule fails to give meaning to the disjunctive conjunction ORseparating the first category from the second, and the second from the third.

Furthermore, since votes for “GIRLIE” written in the space for Representative were in fact claimed by VILLAROSA and credited in her favor, then the HRET correctly ruled that “JTV” votes or variations thereof, under the idem sonans rule, cannot be counted for VILLAROSA because only one nickname or stage name is allowed.

From all the foregoing, bad faith or malice on the part of VILLAROSA was evident when, in her certificate of candidacy and campaign materials, she appropriated the initials or nickname of her husband, the incumbent Representative of the district in question whom she wanted to succeed in office. She tried to make a mockery of a process whose credibility is essential in preserving democracy. Nullus commodum potest de injuria sua propia. No one should be allowed to take advantage of his own wrong.

Howsoever viewed, public respondent HRET did not commit any abuse of discretion in holding that the only issue for its determination was whether “JTV” votes or variations thereof should be counted in favor of VILLAROSA and in ruling that such votes are stray votes.

WHEREFORE, the petitions in these cases are DISMISSED for lack of merit.

SO ORDERED.

[G.R. No. 133927.  November 29, 1999]

MA. AMELITA C. VILLAROSA, petitioner, vs. COMMISSION ON ELECTIONS, and ATTY. DAN RESTOR, respondents.

RICARDO QUINTOS, necessary respondent.

D E C I S I O N

GONZAGA_REYES, J.:

For the Court’s resolution is the instant petition for certiorari and prohibition assailing Resolution dated May 11, 1998 of the Commission on  Elections (hereafter, “COMELEC” or “the Commission”)[1]on Election Matter No. 98-044, disallowing the use by petitioner of the nickname “JTV” for the purpose of her candidacy in the May 11, 1998 elections, and the COMELEC Resolution, dated May 13, 1998,[2] denying reconsideration of the earlier Resolution.

Petitioner was a candidate for Representative of the lone district of Occidental Mindoro in the May 11, 1998 elections and was proclaimed duly elected thereto on May 27, 1998.  On March 27, 1998, she filed her certificate of candidacy in which she stated, among others, that her nickname is “JTV”.  On April 20, 1998, private respondent Restor filed a letter-petition[3] addressed to COMELEC Chairman Bernardo Pardo through Atty. Jose Balbuena, Director of the COMELEC Law Department, asking for the invalidation or cancellation of “JTV” as the official nickname of petitioner as declared in her certificate of candidacy, and the nullification of all votes cast in the said nickname, on the ground that petitioner is not publicly known by that name.  The letter-petition further averred that petitioner is publicly known in Occidental Mindoro as “Girlie” and that the appellation “JTV” actually pertains to the initials of her husband and former Congressman of Occidental Mindoro, Jose Tapales Villarosa.

On election day, May 11, 1998, the Commission, sitting en banc, issued a Resolution granting private respondent Restor’s letter-petition on the ground that the nickname “JTV” is not one by which petitioner is popularly known.[4] Petitioner received a fax copy of this Resolution at 5:32 in the afternoon of May 11, 1998, at which time voting has ceased and canvassing of votes in some precincts has already gone underway.

On May 12, 1998, petitioner filed with the Commission an Urgent Manifestation and Motion to reconsider the aforesaid Resolution.  Finding that no new matter has been raised therein, the Commissionen banc issued another Resolution the next day, May 13, 1998, denying the above motion.

Thus, this petition raises the question of whether the Commission gravely abused its discretion in:  (1) ruling on private respondent Restor’s letter-petition without according notice and hearing to petitioner; (2) taking cognizance of the letter-petition which was not filed by a real party in interest; (3) resolving the letter-petition en banc, instead of first referring it to one of its Divisions; and finally, (4) disallowing petitioner’s use of the nickname “JTV” and ordering the election officers of Occidental Mindoro to consider invalid all votes cast in that appellation.

The petition also impleads as a necessary respondent Ricardo Quintos, who ran opposite petitioner for the lone congressional post of Occidental Mindoro in the May 11, 1998 elections, in view of “confirmed reports” that he will file an election protest before the House of Representatives Electoral Tribunal (“HRET”) invoking the questioned resolutions.  Private respondents validated this allegation when they declared that private respondent Quintos has in fact filed such an election protest case, docketed as HRET Case No. 98-030.[5]

In its Manifestation In Lieu of Comment, the Office of the Solicitor General observed that even if the letter-petition was treated as an “election matter” which may be properly heard

firsthand by the Commission en banc, the Commission should have given notice to petitioner before resolving the issue therein, especially since the petitioner stands to be adversely affected should the petition be granted.  On the issue of the validity of the use of “JTV” as petitioner’s nickname, it opined that petitioner may validly use the same as she is in fact Mrs. Jose Tapales Villarosa, and hence, there is no misrepresentation. Moreover, no one among the other candidates had the same initials as to be prejudiced by her use of the same.

The petition is impressed with merit.

It stands uncontested that petitioner came to know of the letter-petition lodged against her by private respondent Restor only upon receipt of a copy of the COMELEC Resolution issued on May 11, 1998, which she received by fax at 5:32 in the afternoon of the same day.  Under these circumstances, it is clear that the Commission passed upon the letter-petition without affording petitioner the opportunity to explain her side and to counter the allegations of private respondent Restor’s letter-petition.  Due process dictates that before any decision can be validly rendered in a case, the twin requirements of notice and hearing must be observed. [6] Evidently, the conclusion of the Commission in the assailed Resolution dated May 11, 1998, that “JTV” is not a nickname by which petitioner is generally or popularly known, was drawn purely from the allegations of the letter-petition and for this reason, the Commission acted in excess of its jurisdiction.

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.[7] However, we find the foregoing rule inapplicable to the circumstances of the case at bench.

As earlier narrated, petitioner filed an “Urgent Manifestation and Motion” with the Commission on May 12, 1998, which the Commission promptly denied the following day.   By its own designation, the two-page pleading filed by petitioner is one part manifestation and one part motion.  On the main, it enters appearance of petitioner, who was not impleaded in private respondent Restor’s letter-petition, and communicates receipt of the May 11, 1998 Resolution.  Even as it seeks reconsideration of the said resolution by invoking due process, it does not purport to embody petitioner’s grounds and arguments for reconsideration.  Rather, it states that “(petitioner) reserve(s) all rights and waive(s) none, including filing a supplemental motion for reconsideration, pending retaining additional counsel” as the lawyer representing petitioner at the time was saddled with other commitments.[8] In filing this “Urgent Manifestation and Motion” on the second day of canvassing of votes, and immediately after receipt of the contested resolution, it is obvious that petitioner’s immediate concern for doing so was not mainly to exercise her right to be heard, but to have the Commission seasonably reconsider the May 11, 1998 Resolution while canvassing was still at the precinct or municipal level.

While the filing of a supplemental motion for reconsideration is not a matter of right, it is believed that the judicious thing for the Commission to have done, considering the obvious due process issues brought about by the May 11, 1998 Resolution, was to afford petitioner a chance to explain why she should be allowed to use the nickname “JTV”, such as by requiring her to submit a supplemental motion for reconsideration.  We consider this more in consonance with our rulings in Salonga and Rodriguez on opportunity to be heard on reconsideration.  Thus, we find that respondent COMELEC acted imprudently and in excess of its jurisdiction in treating the “Urgent Manifestation and Motion” as petitioner’s motion for reconsideration of the May 11, 1998 Resolution, and in summarily dismissing the same.

Anent the second issue, petitioner contends that the Commission gravely abused its discretion when it took cognizance of the petition below, there being no showing that it was filed in the name of a real party in interest.

The argument is tenable.  The COMELEC Rules of Procedure require that all actions filed with the Commission be prosecuted and defended in the name of the real party in interest. [9] The letter-petition does not allege that the protestant, herein private respondent Restor, is a candidate for any position in the May 11, 1998 elections, or a representative of a registered political party or coalition, or at the very least, a registered voter in the lone district of Occidental Mindoro --- as to stand to sustain any form of injury by petitioner’s use of the nickname

“JTV”.  Absent such essential allegation, the letter-petition stood defective and should have been dismissed outright for failure to state a cause of action.

The question of whether the Commission may decide cases en banc without first referring them to any of its divisions has been consistently answered in the negative since Sarmiento vs. COMELEC[10], which interpreted Section 3, Article IX(C) of the Constitution[11] as requiring all election cases to be first heard and decided by a division of the Commission, before being brought to the Commission en bancon reconsideration.  Conformably, we hold that the Commission exceeded the bounds of its jurisdiction when it took cognizance of private respondent Restor’s letter-petition at the first instance, thus rendering its May 11, 1998 Resolution void.

To the above rule, private respondents take exception by stating that the subject letter-petition posed issues which were administrative in character, and, thus, not subject to the requirement of referral to division which applies only in the Commission’s exercise of its adjudicatory or quasi-judicial functions.

In the concurring opinion of Justice Antonio in University of Nueva Caceres vs. Martinez, 56 SCRA 148, he noted that

(t)he term “administrative” connotes, or pertains, to “administration, especially management, as by managing or conducting, directing or superintending, the execution, application, or conduct of persons or things.” It does not entail an opportunity to be heard, the production and weighing of evidence, and a decision or resolution thereon.

While a “quasi-judicial function” is

a term which applies to the action, discretion, etc., of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action and to exercise discretion of a judicial nature.[12]

Thus, in Vigan Electric Light Co., Inc. vs. Public Service Commission, 10 SCRA 46,[13] we held that where the fixing of power rates, which are to apply exclusively to a particular party, is based upon a report of the General Auditing Office, and which fact is denied by the affected party, the making of such finding of fact by respondent administrative agency is a function partaking of a quasi-judicial character.

A directive by the Commission to disallow petitioner’s use of the nickname “JTV” for purposes of her candidacy, on the basis of Resolution No. 2977 [14], clearly necessitates a determination of whether petitioner is in fact not generally or popularly known as such in the locality of Occidental Mindoro.  Indubitably, since it involved the application of law or rules to an ascertained set of facts, it called for the Commission’s exercise of its adjudicatory powers and falls within the concept of an “election contest” in the sense contemplated by Section 3, Article IX(C) of the Constitution.

We cannot agree with the view advanced by private respondents that because the petition below cannot be classified as a case falling under Rules 20 to 33 of the COMELEC Rules of Procedure[15], it is not a quasi-judicial matter and may thus be dealt with firsthand by the Commission en banc.  Private respondent Restor’s letter-petition clearly asks, not only for the invalidation of “JTV” as petitioner’s authorized nickname, but also the nullification of all votes cast in that name.[16] We are hard put to treat the issue as administrative when petitioner stands to be so adversely affected by the relief asked for. That the petition below was in the form of a letter does not make the issues posed therein less substantial.   As opined by the Office of the Solicitor General in its Manifestation in Lieu of Comment, “(t)o sustain the ruling of the COMELEC is to open venues for commission of fraud, as one simply needs to write a letter to the COMELEC asking that votes for a candidate be nullified on the ground that the nickname used is inappropriate or not valid.”

The remaining issue pertains to the validity of votes cast in the name “JTV”.  In view of the fact that the election protest of private respondent Quintos is presently pending in the House of Representatives Electoral Tribunal, we resolve to leave this matter to the resolution of the said body as the sole judge of all contests respecting the election, returns and qualifications of its members.[17]

WHEREFORE, the petition is GRANTED and the COMELEC Resolutions dated May 11, 1998 and May 13, 1998, respectively, are hereby REVERSED and SET ASIDE.  No pronouncement as to costs.

SO ORDERED.

G.R. No. 135886           August 16, 1999

VICTORINO SALCEDO II, petitioner, vs.COMMISSION ON ELECTIONS and ERMELITA CACAO SALCEDO, respondents.

GONZAGA-REYES, J.:

This is a petition for Certiorari under Rule 65 of the 1997 Rules of Court of the en banc Resolution of the Commission on Elections (Comelec) dated October 6, 1998, which reversed the earlier Resolution issued by its Second Division on August 12, 1998.

From the pleadings and the annexes, the following uncontroverted facts have been established —

On February 18, 1968, Neptali P. Salcedo married Agnes Celiz, which marriage is evidenced by a certified true copy of the marriage contract issued by the Municipal Civil Registrar of Ajuy, Iloilo.1 Without his first marriage having been dissolved, Neptali P. Salcedo married private respondent Ermelita Cacao in a civil ceremony held on September 21, 1986.2 Two days later, on September 23, 1986, Ermelita Cacao contracted another marriage with a certain Jesus Aguirre, as shown by a marriage certificate filed with the Office of the Civil Registrar.3

Petitioner Victorino Salcedo II and private respondent Ermelita Cacao Salcedo both ran for the position of mayor of the municipality of Sara, Iloilo in the May 11, 1998 elections, both of them having filed their respective certificates of candidacy on March 27, 1998.4 However, on April 17, 1998, petitioner filed with the Comelec a petition5 seeking the cancellation of private respondent's certificate of candidacy on the ground that she had made a false representation therein by stating that her surname was "Salcedo." Petitioner contended that private respondent had no right to use said surname because she was not legally married to Neptali Salcedo. On May 13, 1998, private respondent was proclaimed as the duly elected mayor of Sara, Iloilo.6

In her answer, private respondent claimed that she had no information or knowledge at the time she married Neptali Salcedo that he was in fact already married; that, upon learning of his existing marriage, she encouraged her husband to take steps to annul his marriage with Agnes Celiz because the latter had abandoned their marital home since 1972 and has not been heard from since that time; that on February 16, 1998, Neptali Salcedo filed a petition for declaration of presumptive death before Branch 66 of the Regional Trial Court of Barotac Viejo, Iloilo, which was granted by the court in its April 8, 1998 decision; that Neptali Salcedo and Jesus Aguirre are one and the same person; and that since 1986 up to the present she has been using the surname "Salcedo" in all her personal, commercial and public transactions.7

On August 12, 1998, the Comelec's Second Division ruled, by a vote of 2 to 1,8 that since there is an existing valid marriage between Neptali Salcedo and Agnes Celiz, the subsequent marriage of the former with private respondent is null and void. Consequently, the use by private respondent of the surname "Salcedo" constitutes material misrepresentation and is a ground for the cancellation of her certificate of candidacy. The pertinent portion of the Resolution reads as follows —

The only issue to be resolved is whether or not the use by respondent of the surname "Salcedo" in her certificate of candidacy constitutes material misrepresentation under Section 78 in relation to Section 74 of the Omnibus Election Code.

Sec. 78 of the of the (sic) Omnibus Election Code reads:

A verified petition seeking to deny due course to or cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material misrepresentation 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.

A candidate's name or surname contained in the certificate of candidacy is required under Section 74 of the Omnibus Election Code and is a material misrepresentation.

Gleaned from the records, respondent admitted that she married Neptali Salcedo on September 21, 1986 in a civil ceremony held in Sara, Iloilo and that she married Jesus Aguirre on September 23, 1986. For the petitioner, this admission is supported by a marriage contract (attached as Annex "C" of the Petition) and a certificate of marriage (attached as Annex "D" of the petition) where the contracting parties are "Jesus Aguirre" and "Ermelita Cacao". On the other hand, respondent tries to create the impression that "Neptali Salcedo" and "Jesus Aguirre" are one and the same persons. This Commission, however, holds the view that regardless of whether Neptali Salcedo and Jesus Aguirre are the same persons, the fact remains irrefutable is that at the time respondent contracted marriage with Neptali Salcedo, the latter has a valid existing marriage with Agnes Celiz and this was sufficiently established by a marriage contract executed on February 18, 1968 and attached to the petition as Annex "E". Respondent cannot seek refuge in her bare assumption that since Agnes Celiz was declared as presumptively dead by the Regional Trial Court of Barotac Viejo, Iloilo, she was free to marry Neptali Salcedo. In point of fact and law, there was considerably NO pronouncement to the effect that the marriage of Neptali Salcedo and Agnes Celiz was annulled by the court and that Salcedo became free to marry respondent.

From all indications, it is to be fairly assumed that since there is an existing valid marriage between Neptali Salcedo and Agnes Celiz, the subsequent marriage of the former with the respondent is null and void. Consequently, the use by the respondent of the surname "Salcedo" constitutes material misrepresentation and is a ground for the cancellation of her certificate of candidacy.1âwphi1.nêt

WHEREFORE, this Commission (SECOND DIVISION) RESOLVED, as it hereby RESOLVES, to CANCEL the Certificate of Candidacy of respondent for the position of Municipal Mayor of Sara, Iloilo in the May 11, 1998 elections.9

However, in its en banc Resolution dated October 6, 1998, the Comelec overturned its previous resolution, ruling that private respondent's certificate of candidacy did not contain any material misrepresentation. It disposed of the case in this manner —

The record shows that respondent Ermelita C. Salcedo married Neptali Salcedo on September 21, 1986. Under Article 370 of the Civil Code, the respondent may use her husband's surname. Hence, there is no material misrepresentation nor usurpation of another's name.

At any rate, its has been said that the "filing of a certificate of candidacy is a technicality that should be enforced before the election, but can be disregarded after the electorate has made the choosing" (Collado vs. Alonzo, 15 SCRA 526). This rule is in consonance with the policy announced in many decisions that "the rules and regulations, for the conduct of elections, are mandatory before the elections, but when it is sought to enforce them after the elections, they are held to be directory only" (Lambonao vs. Tero, 15 SCRA 716).

Furthermore, the municipal board of canvassers proclaimed the respondent last May 13, 1998, as the duly elect mayor of the municipality of Sara, Province of Iloilo. Any defect in the respondent's certificate of candidacy should give way to the will of the electorate.

WHEREFORE, the COMMISSION resolves to GRANT the instant Motion for Reconsideration. We REVERSE the resolution (Second Division) promulgated on August 12, 1998, cancelling the certificate of candidacy of the respondent Ermelita C. Salcedo. The proclamation of Ermelita C. Salcedo, as mayor of Sara, Iloilo, remains valid, there being no legal ground to set it aside.10

This last resolution of the Comelec prompted petitioner to repair to this Court by way of a petition for certiorariunder Rule 65, claiming that public respondent's ruling was issued in grave abuse of its discretion.

Contrary to petitioner's contention, we are of the opinion that the main issue in this case is not whether or not private respondent is entitled to use a specific surname in her certificate of candidacy,11 but whether the use of such surname constitutes a material misrepresentation under section 78 of the Omnibus Election Code (the "Code") so as to justify the cancellation of her certificate of candidacy. We hold that it does not.

Every person aspiring to hold any elective public office must file a sworn certificate of candidacy.12 One of the things which should be stated therein is that the candidate is eligible for the office.13

In case there is a material misrepresentation in the certificate of candidacy, the Comelec is authorized to deny due course to or cancel such certificate upon the filing of a petition by any person pursuant to section 78 of the Code which states that —

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 misrepresentation 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.

If the petition is filed within the statutory period and the candidate is subsequently declared by final judgment to be disqualified before the election, he shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or the Comelec shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.14 The fifteen-day period in section 78 for deciding the petition is merely directory.15

As stated in the law, in order to justify the cancellation of the certificate of candidacy under section 78, it is essential that the false representation mentioned therein pertain to a material matter for the sanction imposed by this provision would affect the substantive rights of a candidate — the right to run for the elective post for which he filed the certificate of candidacy. Although the law does not specify what would be considered as a "material representation," the Court has interpreted this phrase in a line of decisions applying section 78 of the Code.

In Abella vs. Larrazabal, supra, a petition was filed with the Comelec seeking the disqualification of private respondent Larrazabal for alleged false statements in her certificate of candidacy regarding residence. The Court held that the challenge made against private respondent's claimed residence was properly classified as a proceeding under section 78, despite the fact that it was filed only on the very day of the election.16

Meanwhile, in Labo vs. Commission on Elections,17 the disqualification proceeding filed by respondent pursuant to section 78 of the Code sought to cancel the certificate of candidacy filed by petitioner Ramon Labo, who ran for mayor of Baguio City in the last May 11, 1992 elections, based on the ground that Labo made a false representation when he stated therein that he is natural-born citizen of the Philippines. The Court, speaking through Justice Abdulwahid A. Bidin, held that Labo, having failed to submit any evidence to prove his reacquisition of Philippine citizenship, is not a Filipino citizen and respondent Comelec did not commit any grave abuse of discretion in cancelling his certificate of candidacy. The Court went on to say that the possession of citizenship, being an indispensable requirement for holding public office, may not be dispensed with by the fact of having won the elections for it "strikes at the very core of petitioner Labo's qualification to assume the contested office."

A similar issue was dealt with in the Frivaldo vs. Commission on Elections cases18 wherein Frivaldo's qualification for public office was questioned in a petition filed by petitioner Paul R. Lee, praying that Frivaldo be disqualified from seeking or holding any public office or position and that his certificate of candidacy be cancelled by reason of his not yet being a citizen of the Philippines. The Court held that Frivaldo had reacquired Philippine citizenship by virtue of his repatriation under P.D. 725 and was qualified to hold the position of governor of Sorsogon.

The Court has likened a proceeding under section 78 to a quo warranto proceeding under section 253 since they both deal with the qualifications of a candidate. In the case of Aznar vs. Commission on Elections,19 wherein a petition was filed asking the Comelec to disqualify private respondent Emilio Osmena on the ground that he does not possess the requisite Filipino citizenship, the Court said —

There are two instances where a petition questioning the qualifications of a registered candidate to run for the office for which his certificate of candidacy was filed can be raised under the Omnibus Election Code (B.P. Blg. 881), to wit:

(1) Before election, pursuant to Section 78 thereof which provides that:

Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. — A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material misrepresentation 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.

and

(2) After election, pursuant to Section 253 thereof, viz.:

Sec. 253. Petition for quo warranto. — Any voter contesting the election of any Member of the Batasang Pambansa20, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines

shall file a sworn petition for quo warranto with the Commissionwithin ten days after the proclamation of the results of the election.

(emphasis supplied)

The only difference between the two proceedings is that, under section 78, the qualifications for elective office are misrepresented in the certificate of candidacy and the proceedings must be initiated before the elections, whereas a petition for quo warranto under section 253 may be brought on the basis of two grounds — (1) ineligibility or (2) disloyalty to the Republic of the Philippines, and must be initiated within ten days after the proclamation of the election results. Under section 253, a candidate is ineligible if he is disqualified to be elected to office,21 and he is disqualified if he lacks any of the qualifications for elective office.

In still another case, where the petition to disqualify petitioner was based upon an alleged false representation in the certificate of candidacy as to the candidate's age, the Court once again drew a parallel between a petition forquo warranto and a petition to cancel a certificate of candidacy when it stated that ". . . if a person qualified to file a petition to disqualify a certain candidate fails to file the petition within the 25-day period prescribed by Section 78 of the Code for whatever reasons, the elections laws do not leave him completely helpless as he has another chance to raise the disqualification of the candidate by filing a petition for quo warranto within ten (10) days from the proclamation of the results of the election, as provided under Section 253 of the Code."22

Therefore, it may be concluded that the material misrepresentation contemplated by section 78 of the Code refer to qualifications for elective office. This conclusion is strengthened by the fact that the consequences imposed upon a candidate guilty of having made a false representation in his certificate of candidacy are grave — to prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of the election laws.23 It could not have been the intention of the law to deprive a person of such a basic and substantive political right to be voted for a public office upon just any innocuous mistake.

Petitioner has made no allegations concerning private respondent's qualifications to run for the office of mayor. Aside from his contention that she made a misrepresentation in the use of the surname "Salcedo," petitioner does not claim that private respondent lacks the requisite residency, age, citizenship or any other legal qualification necessary to run for a local elective office as provided for in the Local Government Code.24 Thus, petitioner has failed to discharge the burden of proving that the misrepresentation allegedly made by private respondent in her certificate of candidacy pertains to a material matter.

Aside from the requirement of materiality, a false representation under section 78 must consist of a "deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible."25 In other words, it must be made with an intention to deceive the electorate as to one's qualifications for public office. The use of a surname, when not intended to mislead or deceive the public as to one's identity, is not within the scope of the provision.

There is absolutely no showing that the inhabitants of Sara, Iloilo were deceived by the use of such surname by private respondent. Petitioner does not allege that the electorate did not know who they were voting for when they cast their ballots in favor of "Ermelita Cacao Salcedo" or that they were fooled into voting for someone else by the use of such name. It may safely be assumed that the electorate knew who private respondent was, not only by name, but also by face and may have even been personally acquainted with her since she has been residing in the municipality of Sara, Iloilo since at least 1986.26 Bolstering this assumption is the fact that she has been living with Neptali Salcedo, the mayor of Sara for three consecutive terms, since 1970 and the latter has held her out to the public as his wife.27

Also arguing against petitioner's claim that private respondent intended to deceive the electorate is the fact that private respondent started using the surname "Salcedo" since 1986, several years before the elections. In her application for registration of her rice and corn milling business filed with the Department of Trade and Industry in 1993, private respondent used the name "Ermelita Cacao Salcedo."28 From 1987 to 1997, she also used the surname "Salcedo" in the income tax returns filed by herself and by Neptali Salcedo.29 The evidence presented by private respondent on this point, which has remained uncontested by petitioner, belie the latter's claims that private respondent merely adopted the surname "Salcedo" for purposes of improving her chances of winning in the local elections by riding on the popularity of her husband.

Thus, we hold that private respondent did not commit any material misrepresentation by the use of the surname "Salcedo" in her certificate of candidacy.

Having disposed of the major issues, we will now proceed to tackle the secondary issues raised in the petition. Petitioner claims that the following circumstances constitute grave abuse of discretion on the part of the Comelec: (1) the October 6, 1998 en banc Resolution of the Comelec, sustaining the validity of private respondent's certificate of candidacy, merely duplicated the dissenting opinion of Commissioner Desamito of the Second Division in the August 12, 1998 Resolution; (2) Chairman Pardo, the ponente of the en banc Resolution, and Commissioner Guiani; both members of the Second Division who ruled in favor of petitioner in the August 12, 1998 Resolution, reversed their positions in the en banc resolution; and (3) the en banc Resolution was promulgated on the very same day that Chairman Pardo took his oath of office as Associate Justice of the Supreme Court.

Petitioner does not indicate what legal provision or equitable principle the Comelec transgressed by the commission of these acts. We find nothing legally assailable with the Comelec's adoption in its en banc Resolution of the reasoning contained in the dissenting opinion of Commissioner Desamito; nor is the en banc Resolution rendered infirm by the mere change of position adopted by Chairman Pardo and Guiani of the Second Division. Precisely, the purpose of a motion for reconsideration is allow the adjudicator a second opportunity to review the case and to grapple with the issues therein, deciding anew a question previously raised.30 There is no legal proscription imposed upon the deciding body against adopting a position contrary to one previously taken.

Finally, the fact that the decision was promulgated on the day Chairman Pardo, the ponente of the en bancResolution, took his oath of office as Associate Justice of the Supreme Court does not give ground to question the Comelec decision for then Chairman Pardo enjoys the presumption of regularity in the performance of his official duties, a presumption which petitioner has failed to rebut. At any rate, the date of promulgation is not necessarily the date of signing.

In upholding the validity of private respondent's certificate of candidacy, we reiterate that "[t]he sanctity of the people's will must be observed at all times if our nascent democracy is to be preserved. In any challenge having the effect of reversing a democratic voice, expressed through the ballot, this Court should be ever so vigilant in finding solutions which would give effect to the will of the majority, for sound public policy dictates that all elective offices are filled by those who have received the highest number of votes cast in an election. When a challenge to a winning candidate's qualifications however becomes inevitable, the ineligibility ought to be so noxious to the Constitution that giving effect to the apparent will of the people would ultimately do harm to our democratic institutions."31 Since there appears to be no dispute as to private respondent's qualifications to hold the office of municipal mayor, the will of the electorate must prevail.

WHEREFORE, the Court hereby AFFIRMS the en banc Resolution of the Commission on Elections dated October 6, 1998 denying the petition to cancel private respondent's certificate of candidacy. No pronouncement as to costs.

[G.R. No. 147927.  February 4, 2002]

RAYMUNDO M. ADORMEO, petitioner, vs. COMMISSION ON ELECTIONS and RAMON Y. TALAGA, JR., respondents.

D E C I S I O N

QUISUMBING, J.:

Before us is a petition for certiorari, with a prayer for a writ of preliminary injunction and/or temporary restraining order, to nullify and set aside the resolution dated May 9, 2001 of public respondent Commission on Elections in Comelec SPA No. 01-055, which granted the motion for reconsideration and declared private respondent Ramon Y. Talaga, Jr., qualified to run for Mayor in Lucena City for the May 14, 2001 election.  Petitioner prays that votes cast in private respondent’s favor should not be counted; and should it happen that private respondent had been already proclaimed the winner, his proclamation should be declared null and void.

The uncontroverted facts are as follows:

Petitioner and private respondent were the only candidates who filed their certificates of candidacy for mayor of Lucena City in the May 14, 2001 elections. Private respondent was then the incumbent mayor.

Private respondent Talaga, Jr. was elected mayor in May 1992. He served the full term. Again, he was re-elected in 1995-1998. In the election of 1998, he lost to Bernard G. Tagarao. In the recall election of May 12, 2000, he again won and served the unexpired term of Tagarao until June 30, 2001.

On March 2, 2001, petitioner filed with the Office of the Provincial Election Supervisor, Lucena City a Petition to Deny Due Course to or Cancel Certificate of Candidacy and/or Disqualification of Ramon Y. Talaga, Jr., on the ground that the latter was elected and had served as city mayor for three (3) consecutive terms as follows: (1) in the election of May 1992, where he served the full term; (2) in the election of May 1995, where he again served the full term; and, (3) in the recall election of May 12, 2000, where he served only the unexpired term of Tagarao after having lost to Tagarao in the 1998 election. Petitioner contended that Talaga’s candidacy as Mayor constituted a violation of Section 8, Article X of the 1987 Constitution which provides:

Sec. 8. – The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

On March 9, 2001, private respondent responded that he was not elected City Mayor for three (3) consecutive terms but only for two (2) consecutive terms.  He pointed to his defeat in the 1998 election by Tagarao. Because of his defeat the consecutiveness of his years as mayor was interrupted, and thus his mayorship was not for three consecutive terms of three years each. Respondent added that his service from May 12, 2001 until June 30, 2001 for 13 months and eighteen (18) days was not a full term, in the contemplation of the law and the Constitution.  He cites Lonzanida vs. COMELEC , G.R. No. 135150 , 311 SCRA 602, 611 (1999), as authority to the effect that to apply disqualification under Section 8, Article X of the Constitution, two (2) conditions must concur, to wit: (a) that the official concerned has been elected for three

consecutive terms in the same local government post, and (b) that he has fully served three (3) consecutive terms.

On April 20, 2001, the COMELEC, through the First Division, found private respondent Ramon Y. Talaga, Jr. disqualified for the position of city mayor on the ground that he had already served three (3) consecutive terms, and his Certificate of Candidacy was ordered withdrawn and/or cancelled.

On April 27, 2001, private respondent filed a motion for reconsideration reiterating that “three (3) consecutive terms” means continuous service for nine (9) years and that the two (2) years service from 1998 to 2000 by Tagarao who defeated him in the election of 1998 prevented him from having three consecutive years of service. He added that Tagarao’s tenure from 1998 to 2000 could not be considered as a continuation of his mayorship.  He further alleged that the recall election was not a regular election, but a separate special election specifically to remove incompetent local officials.

On May 3, 2001, petitioner filed his Opposition to private respondent’s Motion for Reconsideration stating therein that serving the unexpired term of office is considered as one (1) term.[1] Petitioner further contended that Article 8 of the Constitution speaks of “term” and does not mention “tenure”.  The fact that private respondent was not elected in the May 1998 election to start a term that began on June 30, 1998 was of no moment, according to petitioner, and what matters is that respondent was elected to an unexpired term in the recall election which should be considered one full term from June 30, 1998 to June 30, 2001.

On May 9, 2001, the COMELEC en banc ruled in favor of private respondent Ramon Y. Talaga, Jr..  It reversed the First Division’s ruling and held that 1) respondent was not elected for three (3) consecutive terms because he did not win in the May 11, 1998 elections; 2) that he was installed only as mayor by reason of his victory in the recall elections; 3) that his victory in the recall elections was not considered a term of office and is not included in the 3-term disqualification rule, and 4) that he did not fully serve the three (3) consecutive terms, and his loss in the May 11, 1998 elections is considered an interruption in the continuity of his service as Mayor of Lucena City.

On May 19, 2001, after canvassing, private respondent was proclaimed as the duly elected Mayor of Lucena City.

Petitioner is now before this Court, raising the sole issue:

WHETHER OR NOT PUBLIC RESPONDENT COMELEC ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT ISSUED ITS RESOLUTION DATED MAY 9, 2001, DECLARING PRIVATE RESPONDENT RAMON Y. TALAGA, JR., QUALIFIED TO RUN FOR MAYOR IN LUCENA CITY FOR THE MAY 14, 2001 ELECTIONS.[2]

Stated differently, was private respondent disqualified to run for mayor of Lucena City in the May 14, 2001 elections?[3] This issue hinges on whether, as provided by the Constitution, he had already served three consecutive terms in that office.

Petitioner contends that private respondent was disqualified to run for city mayor by reason of the three-term rule because the unexpired portion of the term of office he served after winning a recall election, covering the period May 12, 2000 to June 30, 2001 is considered a full term. He posits that to interpret otherwise, private respondent would be serving four (4) consecutive terms of 10 years, in violation of Section 8, Article X of 1987 Constitution[4] and Section 43 (b) of R.A. 7160, known as the Local Government Code.

Section 43. Term of Office.—

x x x

(b) No local elective official shall serve for more than three (3) consecutive terms in the same position.  Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected.

Private respondent, in turn, maintains that his service as city mayor of Lucena is not consecutive.  He lost his bid for a second re-election in 1998 and between June 30, 1998 to May 12, 2000, during Tagarao’s incumbency, he was a private citizen, thus he had not been mayor for 3 consecutive terms.

In its comment, the COMELEC restated its position that private respondent was not elected for three (3) consecutive terms having lost his third bid in the May 11, 1998 elections, said defeat is an interruption in the continuity of service as city mayor of Lucena.

The issue before us was already addressed in Borja, Jr. vs. COMELEC, 295 SCRA 157, 169 (1998), where we held,

To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position.  Consequently, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply.  This point can be made clearer by considering the following case or situation:

x x x

Case No. 2.  Suppose B is elected mayor and, during his first term, he is twice suspended for misconduct for a total of 1 year.  If he is twice reelected after that, can he run for one more term in the next election?

Yes, because he has served only two full terms successively.

x x x

To consider C as eligible for reelection would be in accord with the understanding of the Constitutional Commission that while the people should be protected from the evils that a monopoly of political power may bring about, care should be taken that their freedom of choice is not unduly curtailed.

Likewise, in the case of Lonzanida vs. COMELEC, 311 SCRA 602, 611 (1999), we said,

This Court held that the two conditions for the application of the disqualification must concur: a) that the official concerned has been elected for three consecutive terms in the same local government post and 2) that he has fully served three consecutive terms.

Accordingly, COMELEC’s ruling that private respondent was not elected for three (3) consecutive terms should be upheld.  For nearly two years he was a private citizen.  The continuity of his mayorship was disrupted by his defeat in the 1998 elections.

Patently untenable is petitioner’s contention that COMELEC in allowing respondent Talaga, Jr. to run in the May 1998 election violates Article X, Section 8 of 1987 Constitution.[5] To bolster his case, respondent adverts to the comment of Fr. Joaquin Bernas, a Constitutional Commission member, stating that in interpreting said provision that “if one is elected representative to serve the unexpired term of another, that unexpired, no matter how short, will be considered one term for the purpose of computing the number of successive terms allowed.”[6]

As pointed out by the COMELEC en banc, Fr. Bernas’ comment is pertinent only to members of the House of Representatives. Unlike local government officials, there is no recall election provided for members of Congress.[7]

Neither can respondent’s victory in the recall election be deemed a violation of Section 8, Article X of the Constitution as “voluntary renunciation” for clearly it is not. In Lonzanida vs. COMELEC, we said:

…The second sentence of the constitutional provision under scrutiny states, “Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected.”  The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people’s choice and grant their elected official full service of a term is evident in this provision.  Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service.  The petitioner vacated his post a few months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect.  Such involuntary severance from office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral term.[8]

WHEREFORE, the instant petition is hereby DISMISSED. The resolution of public respondent Commission on Elections dated May 9, 2001, in Comelec SPA No. 01-055 is AFFIRMED. Costs against petitioner.

SO ORDERED.

[G.R. No. 154829.  December 10, 2003]

ARSENIO A. LATASA, petitioner, vs. COMMISSION ON ELECTIONS, and ROMEO SUNGA, respondents.

D E C I S I O N

AZCUNA, J.:

This is a petition for certiorari under Rule 65 of the Rules of Court which seeks to challenge the resolution issued by the First Division of the Commission on Elections (COMELEC) dated April 27, 2001 in SPA Case No. 01-059 entitled, Romeo M. Sunga, petitioner, versus Arsenio A. Latasa, respondent, and the Resolution of the COMELEC en banc denying herein petitioner’s Motion for Reconsideration.  The assailed Resolution denied due course to the certificate of candidacy of petitioner Arsenio A. Latasa, declaring him disqualified to run for mayor of Digos City, Davao del Sur Province in the May 14, 2001 elections, ordering that all votes cast in his favor shall not be counted, and if he has been proclaimed winner, declaring said proclamation null and void.

The facts are fairly simple.

Petitioner Arsenio A. Latasa, was elected mayor of the Municipality of Digos, Davao del Sur in the elections of 1992, 1995, and 1998.  During petitioner’s third term, the Municipality ofDigos was declared a component city, to be known as the City of Digos.  A plebiscite conducted on September 8, 2000 ratified Republic Act No. 8798 entitled, “An Act Converting the Municipality of Digos, Davao del Sur Province into a Component City to be known as the City of Digos” or the Charter of the City of Digos.   This event also marked the end of petitioner’s tenure as mayor of the Municipality of Digos.  However, under Section 53, Article IX of the Charter, petitioner was mandated to serve in a hold-over capacity as mayor of the new City of Digos.  Hence, he took his oath as the city mayor.

On February 28, 2001, petitioner filed his certificate of candidacy for city mayor for the May 14, 2001 elections.  He stated therein that he is eligible therefor, and likewise disclosed that he had already served for three consecutive terms as mayor of the Municipality of Digos and is now running for the first time for the position of city mayor.

On March 1, 2001, private respondent Romeo M. Sunga, also a candidate for city mayor in the said elections, filed before the COMELEC a Petition to Deny Due Course, Cancel Certificate of Candidacy and/ or For Disqualification[1] against petitioner Latasa.  Respondent Sunga alleged therein that petitioner falsely represented in his certificate of candidacy that he is eligible to run as mayor of Digos City since petitioner had already been elected and served for three consecutive terms as mayor from 1992 to 2001.

On March 5, 2001, petitioner Latasa filed his Answer,[2]  arguing that he did not make any false representation in his certificate of candidacy since he fully disclosed therein that he had served as mayor of the Municipality of Digos for three consecutive terms. Moreover, he argued that this fact does not bar him from filing a certificate of candidacy for the May 14, 2001elections since this will be the first time that he will be running for the post of city mayor.

Both parties submitted their position papers on March 19, 2001.[3]

On April 27, 2001, respondent COMELEC’s First Division issued a Resolution, the dispositive portion of which reads, as follows:

Wherefore, premises considered, the respondent’s certificate of candidacy should be cancelled for being a violation of the three (3)-term rule proscribed by the 1987 Constitution and the Local Government Code of 1991.[4]

Petitioner filed his Motion for Reconsideration dated May 4, 2001,[5]  which remained unacted upon until the day of the elections, May 14, 2001.  On May 16, 2001, private respondent Sunga filed an Ex Parte Motion for Issuance of Temporary Restraining Order Enjoining the City Board of Canvassers From Canvassing or Tabulating Respondent’s Votes, and From Proclaiming Him as the Duly Elected Mayor if He Wins the Elections.[6]  Despite this, however, petitioner Latasa was still proclaimed winner on May 17, 2001, having garnered the most number of votes. Consequently, private respondent Sunga filed, on May 27, 2001, a Supplemental Motion[7] which essentially sought the annulment of petitioner’s proclamation and the suspension of its effects.

On July 1, 2001, petitioner was sworn into and assumed his office as the newly elected mayor of Digos City.  It was only on August 27, 2002 that the COMELEC en banc issued a Resolution denying petitioner’s Motion for Reconsideration. 

Hence, this petition.

It cannot be denied that the Court has previously held in Mamba-Perez v. COMELEC [8]  that after an elective official has been proclaimed as winner of the elections, the COMELEC has no jurisdiction to pass upon his qualifications.  An opposing party’s remedies after proclamation would be to file a petition for quo warranto within ten days after the proclamation.

On the other hand, certain peculiarities in the present case reveal the fact that its very heart is something which this Court considers of paramount interest.  This Court notes from the very beginning that petitioner himself was already entertaining some doubt as to whether or not he is indeed eligible to run for city mayor in the May 14, 2001 elections.  In his certificate of candidacy, after the phrase “I am eligible”, petitioner inserted a footnote and indicated:

*Having served three (3) term[s] as municipal mayor and now running for the first time as city mayor.[9]

Time and again, this Court has held that rules of procedure are only tools designed to facilitate the attainment of justice, such that when rigid application of the rules tend to frustrate rather than promote substantial justice, this Court is empowered to suspend their operation.  We will not hesitate to set aside technicalities in favor of what is fair and just.[10]

The spirit embodied in a Constitutional provision must not be attenuated by a rigid application of procedural rules.

The present case raises a novel issue with respect to an explicit Constitutional mandate: whether or not petitioner Latasa is eligible to run as candidate for the position of mayor of the newly-created City of Digos immediately after he served for three consecutive terms as mayor of the Municipality of Digos.

As a rule, in a representative democracy, the people should be allowed freely to choose those who will govern them.  Article X, Section 8 of the Constitution is an exception to this rule, in that it limits the range of choice of the people.

Section 8.  The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms.  Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

An examination of the historical background of the subject Constitutional provision reveals that the members of the Constitutional Commission were as much concerned with preserving the freedom of choice of the people as they were with preventing the monopolization of political power.  In fact, they rejected a proposal set forth by Commissioner Edmundo Garcia that after serving three consecutive terms or nine years, there should be no further re-election for local and legislative officials.[11]  The members, instead, adopted the alternative proposal of Commissioner Christian Monsod that such officials be simply barred from running for the same position in the succeeding election following the expiration of the third consecutive term:

MR. MONSOD:          Madam President, I was reflecting on this issue earlier and I asked to speak because in this draft Constitution, we are recognizing people’s power.  We have said that now there is a new awareness, a new kind of voter, a new kind of Filipino.  And yet at the same time, we are prescreening candidates among whom they will choose.  We are saying that this 48-member Constitutional Commission has decreed that those who have served for a period of nine years are barred from running for the same position.

The argument is that there may be other positions.  But there are some people who are very skilled and good at legislation, and yet are not of a national stature to be Senators.  They may be perfectly honest, perfectly competent and with integrity.  They get voted into office at the age of 25, which is the age we provide for Congressmen.  And at 34 years old we put them into pasture.

Second, we say that we want to broaden the choices of the people.  We are talking here only of congressional or senatorial seats.  We want to broaden the people’s choice but we are making prejudgment today because we exclude a certain number of people.  We are, in effect, putting an additional qualification for office – that the officials must have not have served a total of more than a number of years in their lifetime.

Third, we are saying that by putting people to pasture, we are creating a reserve of statesmen, but the future participation of these statesmen is limited.  Their skills may be only in some areas, but we are saying that they are going to be barred from running for the same position.

Madam President, the ability and capacity of a statesman depend as well on the day-to-day honing of his skills and competence, in intellectual combat, in concern and contact with the people, and here we are saying that he is going to be barred from the same kind of public service.

I do not think it is in our place today to make such a very important and momentous decision with respect to many of our countrymen in the future who may have a lot more years ahead of them in the service of their country.

If we agree that we will make sure that these people do not set up structures that will perpetuate them, then let us give them this rest period of three years or whatever it is.  Maybe during that

time, we would even agree that their fathers or mothers or relatives of the second degree should not run.  But let us not bar them for life after serving the public for number of years.[12]

The framers of the Constitution, by including this exception, wanted to establish some safeguards against the excessive accumulation of power as a result of consecutive terms.  As Commissioner Blas Ople stated during the deliberations:

x x x I think we want to prevent future situations where, as a result of continuous service and frequent re-elections, officials from the President down to the municipal mayor tend to develop a proprietary interest in their positions and to accumulate these powers and perquisites that permit them to stay on indefinitely or to transfer these posts to members of their families in a subsequent election. x x x [13]

An elective local official, therefore, is not barred from running again in for same local government post, unless two conditions concur: 1.) that the official concerned has been elected for three consecutive terms to the same local government post, and 2.) that he has fully served three consecutive terms.[14]

In the present case, petitioner states that a city and a municipality have separate and distinct personalities.  Thus they cannot be treated as a single entity and must be accorded different treatment consistent with specific provisions of the Local Government Code.  He does not deny the fact that he has already served for three consecutive terms as municipal mayor.  However, he asserts that when Digos was converted from a municipality to a city, it attained a different juridical personality. Therefore, when he filed his certificate of candidacy for city mayor, he cannot be construed as vying for the same local government post.

For a municipality to be converted into a city, the Local Government Code provides:

SECTION 450.  Requisites for Creation. -  (a) A municipality or a cluster of barangays may be converted into a component city it has an average annual income, as certified by the Department of Finance, of at least Twenty million pesos (20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices, and if it has either of the following requisites:

(i)             a contiguous territory of at least one hundred (100) square kilometers, as certified by the Land Management Bureau; or,

(ii)            a population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the National Statistics Office.

Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein.

(b)            The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds.  The requirement on land are shall not apply where the city proposed to be created is composed of one (1) or more island.  The territory need not be contiguous if it comprises two (2) or more islands.

(c)            The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and non-recurring income.[15]

Substantial differences do exist between a municipality and a city.  For one, there is a material change in the political and economic rights of the local government unit when it is converted from a municipality to a city and undoubtedly, these changes affect the people as well.[16]  It is precisely for this reason why Section 10, Article X of the Constitution mandates that no province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, without the approval by a majority of the votes cast in a plebiscite in the political units directly affected.

As may be gleaned from the Local Government Code, the creation or conversion of a local government unit is done mainly to help assure its economic viability. Such creation or conversion is based on verified indicators:

Section 7.  Creation and Conversion. --- As a general rule, the creation of a local government unit or its conversion from one level to another shall be based on verifiable indicators or viability and projected capacity to provide services, to wit:

(a)     Income. --- It must be sufficient, based on acceptable standards, to provide for all essential government facilities and services and special functions commensurate with the size of its population, as expected of the local government unit concerned;

(b)     Population. --- It shall be determined as the total number of inhabitants within the territorial jurisdiction of the local government unit concerned; and

(c)     Land Area. --- It must be contiguous, unless it comprises two (2) or more islands or is separated by a local government unit independent of the others; properly identified by metes and bounds with technical descriptions; and sufficient to provide for such basic services and facilities to meet the requirements of its populace.

Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF), the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of Environment and Natural Resources (DENR).[17]

On the other hand, Section 2 of the Charter of the City of Digos provides:

Section 2.  The City of Digos --- The Municipality of Digos shall be converted into a component city to be known as the City of Digos, hereinafter referred to as the City, which shall comprise the present territory of the Municipality of Digos, Davao del Sur Province.  The territorial jurisdiction of the City shall be within the present metes and bounds of the Municipality of Digos. x x x

Moreover, Section 53 of the said Charter further states:

Section 53.  Officials of the City of Digos. --- The present elective officials of the Municipality of Digos shall continue to exercise their powers and functions until such a time that a new election is held and the duly-elected officials shall have already qualified and assumed their offices.  x x x.

As seen in the aforementioned provisions, this Court notes that the delineation of the metes and bounds of the City of Digos did not change even by an inch the land area previously covered by the Municipality of Digos.  This Court also notes that the elective officials of the Municipality of Digos continued to exercise their powers and functions until elections were held for the new city officials.

True, the new city acquired a new corporate existence separate and distinct from that of the municipality.  This does not mean, however, that for the purpose of applying the subject Constitutional provision, the office of the municipal mayor would now be construed as a different local government post as that of the office of the city mayor.  As stated earlier, the territorial jurisdiction of the City of Digos is the same as that of the municipality.  Consequently, the inhabitants of the municipality are the same as those in the city.  These inhabitants are the same group of voters who elected petitioner Latasa to be their municipal mayor for three consecutive terms.  These are also the same inhabitants over whom he held power and authority as their chief executive for nine years.

This Court must distinguish the present case from previous cases ruled upon this Court involving the same Constitutional provision.  

In Borja, Jr. v. COMELEC,[18] the issue therein was whether a vice-mayor who became the mayor by operation of law and who served the remainder of the mayor’s term should be considered to have served a term in that office for the purpose of the three-term limit under the Constitution.  Private respondent in that case was first elected as vice-mayor, but upon the death of the incumbent mayor, he occupied the latter’s post for the unexpired term.  He was, thereafter, elected for two more terms.  This Court therein held that when private respondent occupied the post of the mayor upon the incumbent’s death and served for the remainder of the term, he cannot be construed as having served a full term as contemplated under the subject constitutional provision.  The term served must be one “for which [the official concerned] was elected.”

It must also be noted that in Borja, the private respondent therein, before he assumed the position of mayor, first served as the vice-mayor of his local government unit.  The nature of the responsibilities and duties of the vice-mayor is wholly different from that of the mayor.  The vice-mayor does not hold office as chief executive over his local government unit.  In the present case, petitioner, upon ratification of the law converting the municipality to a city, continued to hold office as chief executive of the same territorial jurisdiction.  There were changes in the political and economic rights of Digos as local government unit, but no substantial change occurred as to petitioner’s authority as chief executive over the inhabitants of Digos.

In Lonzanida v. COMELEC,[19] petitioner was elected and served two consecutive terms as mayor from 1988 to 1995.  He then ran again for the same position in the May 1995 elections, won and discharged his duties as mayor.  However, his opponent contested his proclamation and filed an election protest before the Regional Trial Court, which ruled that there was a failure of elections and declared the position of mayor vacant.  The COMELEC affirmed this ruling and petitioner acceded to the order to vacate the post.  During the May 1998 elections, petitioner therein again filed his certificate of candidacy for mayor.  A petition to disqualify him was filed on the ground that he had already served three consecutive terms.  This Court ruled, however, that petitioner therein cannot be considered as having been duly elected to the post in the May 1995 elections, and that said petitioner did not fully serve the 1995-1998 mayoral term by reason of involuntary relinquishment of office.

In the present case, petitioner Latasa was, without a doubt, duly elected as mayor in the May 1998 elections.  Can he then be construed as having involuntarily relinquished his office by reason of the conversion of Digos from municipality to city?  This Court believes that he did involuntarily relinquish his office as municipal mayor since the said office has been deemed abolished due to the conversion.  However, the very instant he vacated his office as municipal mayor, he also assumed office as city mayor.  Unlike in Lonzanida, where petitioner therein, for even just a short period of time, stepped down from office, petitioner Latasa never ceased from acting as chief executive of the local government unit.  He never ceased from discharging his duties and responsibilities as chief executive of Digos.

In Adormeo v. COMELEC,[20]  this Court was confronted with the issue of whether or not an assumption to office through a recall election should be considered as one term in applying the three-term limit rule.  Private respondent, in that case, was elected and served for two consecutive terms as mayor.  He then ran for his third term in the May 1998 elections, but lost to his opponent.  In June 1998, his opponent faced recall proceedings and in the recall elections of May 2000, private respondent won and served for the unexpired term.  For the May 2001 elections, private respondent filed his certificate of candidacy for the office of mayor.  This was questioned on the ground that he had already served as mayor for three consecutive terms. This Court held therein that private respondent cannot be construed as having been elected and served for three consecutive terms.  His loss in the May 1998 elections was considered by this Court as an interruption in the continuity of his service as mayor.  For nearly two years, private respondent therein lived as a private citizen.  The same, however, cannot be said of petitioner Latasa in the present case.

Finally, in Socrates v. COMELEC,[21]  the principal issue was whether or not private respondent Edward M. Hagedorn was qualified to run during the recall elections.  Therein respondent Hagedorn had already served for three consecutive terms as mayor from 1992 until 2001 and did not run in the immediately following regular elections.  On July 2, 2002, the barangay officials of Puerto Princesa convened themselves into a Preparatory Recall Assembly to initiate the recall of the incumbent mayor, Victorino Dennis M. Socrates.  On August 23, 2002, respondent Hagedorn filed his certificate of candidacy for mayor in the recall election.  A petition for his disqualification was filed on the ground that he cannot run for the said post during the recall elections for he was disqualified from running for a fourth consecutive term.  This Court, however, ruled in favor of respondent Hagedorn, holding that the principle behind the three-term limit rule is to prevent consecutiveness of the service of terms, and that there was in his case a break in such consecutiveness after the end of his third term and before the recall election.

It is evident that in the abovementioned cases, there exists a rest period or a break in the service of the local elective official.  In Lonzanida, petitioner therein was a private citizen a few months before the next mayoral elections.  Similarly, in Adormeo and Socrates, the private respondents therein lived as private citizens for two years and fifteen months respectively. Indeed, the law contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit.  

This Court reiterates that the framers of the Constitution specifically included an exception to the people’s freedom to choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office.  To allow petitioner Latasa to vie for the position of city mayor after having served for three consecutive terms as a municipal mayor would obviously defeat the very intent of the framers when they wrote this exception.  Should he be allowed another three consecutive terms as mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years.  This is the very scenario sought to be avoided by the Constitution, if not abhorred by it.

Finally, respondent Sunga claims that applying the principle in Labo v. COMELEC,[22]  he should be deemed the mayoralty candidate with the highest number of votes.  On the contrary, this Court held in Labo that the disqualification of a winning candidate does not necessarily entitle the candidate with the highest number of votes to proclamation as the winner of the elections.  As an obiter, the Court merely mentioned that the rule would have been different if the electorate, fully aware in fact and in law of a candidate’s disqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast their votes in favor of the ineligible candidate.  In such case, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in

which case, the eligible candidate obtaining the next higher number of votes may be deemed elected.  The same, however, cannot be said of the present case.

This Court has consistently ruled that the fact that a plurality or a majority of the votes are cast for an ineligible candidate at a popular election, or that a candidate is later declared to be disqualified to hold office, does not entitle the candidate who garnered the second highest number of votes to be declared elected.  The same merely results in making the winning candidate’s election a nullity.[23]  In the present case, moreover, 13,650 votes were cast for private respondent Sunga as against the 25,335 votes cast for petitioner Latasa.[24]  The second placer is obviously not the choice of the people in that particular election.  In any event, a permanent vacancy in the contested office is thereby created which should be filled by succession.[25]

WHEREFORE, the petition is DISMISSED.  No pronouncement as to costs.

SO ORDERED.