ROMULO B. MACALINTAL, petitioner, vs. COMMISSION ON ELECTIONS, HON.

ALBERTO
ROMULO, in his official capacity as Executive Secretary, and HON. EMILIA T. BONCODIN,
Secretary of the Department of Budget and Management, respondents.

DECISION
AUSTRIA-MARTINEZ, J.:

Before the Court is a petition for certiorari and prohibition filed by Romulo B. Macalintal, a member of
the Philippine Bar, seeking a declaration that certain provisions of Republic Act No. 9189 (The Overseas
Absentee Voting Act of 2003)[1] suffer from constitutional infirmity. Claiming that he has actual and material
legal interest in the subject matter of this case in seeing to it that public funds are properly and lawfully
used and appropriated, petitioner filed the instant petition as a taxpayer and as a lawyer.
The Court upholds the right of petitioner to file the present petition.
R.A. No. 9189, entitled, An Act Providing for A System of Overseas Absentee Voting by Qualified
Citizens of the Philippines Abroad, Appropriating Funds Therefor, and for Other Purposes, appropriates
funds under Section 29 thereof which provides that a supplemental budget on the General Appropriations
Act of the year of its enactment into law shall provide for the necessary amount to carry out its
provisions.Taxpayers, such as herein petitioner, have the right to restrain officials from wasting public
funds through the enforcement of an unconstitutional statute. [2] The Court has held that they may assail
the validity of a law appropriating public funds [3] because expenditure of public funds by an officer of the
State for the purpose of executing an unconstitutional act constitutes a misapplication of such funds. [4]
The challenged provision of law involves a public right that affects a great number of citizens. The
Court has adopted the policy of taking jurisdiction over cases whenever the petitioner has seriously and
convincingly presented an issue of transcendental significance to the Filipino people. This has been
explicitly pronounced in Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan, [5] where
the Court held:

Objections to taxpayers suit for lack of sufficient personality standing, or interest are, however, in the main
procedural matters. Considering the importance to the public of the cases at bar, and in keeping with the Courts duty,
under the 1987 Constitution, to determine whether or not the other branches of government have kept themselves
within the limits of the Constitution and the laws and that they have not abused the discretion given to them, the
Court has brushed aside technicalities of procedure and has taken cognizance of these petitions. [6]

Indeed, in this case, the Court may set aside procedural rules as the constitutional right of suffrage of
a considerable number of Filipinos is involved.
The question of propriety of the instant petition which may appear to be visited by the vice of
prematurity as there are no ongoing proceedings in any tribunal, board or before a government official
exercising judicial, quasi-judicial or ministerial functions as required by Rule 65 of the Rules of
Court, dims in light of the importance of the constitutional issues raised by the petitioner. In Taada vs.
Angara,[7] the Court held:

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition
no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have
infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. The
question thus posed is judicial rather than political. The duty (to adjudicate) remains to assure that the supremacy of
the Constitution is upheld. Once a controversy as to the application or interpretation of constitutional provision is
raised before this Court (as in the instant case), it becomes a legal issue which the Court is bound by constitutional
mandate to decide.
In another case of paramount impact to the Filipino people, it has been expressed that it is illogical to
await the adverse consequences of the law in order to consider the controversy actual and ripe for judicial
resolution.[8] In yet another case, the Court said that:

. . . despite the inhibitions pressing upon the Court when confronted with constitutional issues, it will not hesitate to
declare a law or act invalid when it is convinced that this must be done. In arriving at this conclusion, its only
criterion will be the Constitution and God as its conscience gives it in the light to probe its meaning and discover its
purpose. Personal motives and political considerations are irrelevancies that cannot influence its decisions.
Blandishment is as ineffectual as intimidation, for all the awesome power of the Congress and Executive, the Court
will not hesitate to make the hammer fall heavily, where the acts of these departments, or of any official, betray the
peoples will as expressed in the Constitution . . .[9]

The need to consider the constitutional issues raised before the Court is further buttressed by the
fact that it is now more than fifteen years since the ratification of the 1987 Constitution requiring Congress
to provide a system for absentee voting by qualified Filipinos abroad. Thus, strong reasons of public
policy demand that the Court resolves the instant petition [10] and determine whether Congress has acted
within the limits of the Constitution or if it had gravely abused the discretion entrusted to it. [11]
The petitioner raises three principal questions:

A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of voters who are immigrants or
permanent residents in other countries by their mere act of executing an affidavit expressing their
intention to return to the Philippines, violate the residency requirement in Section 1 of Article V of the
Constitution?

B. Does Section 18.5 of the same law empowering the COMELEC to proclaim the winning candidates
for national offices and party list representatives including the President and the Vice-President violate
the constitutional mandate under Section 4, Article VII of the Constitution that the winning candidates
for President and the Vice-President shall be proclaimed as winners by Congress?

C. May Congress, through the Joint Congressional Oversight Committee created in Section 25 of Rep.
Act No. 9189, exercise the power to review, revise, amend, and approve the Implementing Rules and
Regulations that the Commission on Elections shall promulgate without violating the independence of
the COMELEC under Section 1, Article IX-A of the Constitution?

The Court will resolve the questions in seriatim.

A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of the 1987 Constitution of
the Republic of the Philippines?
Section 5(d) provides:

Sec. 5. Disqualifications. The following shall be disqualified from voting under this Act:

.........

d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon
registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual
physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration
under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to
return shall be cause for the removal of the name of the immigrant or permanent resident from the National Registry
of Absentee Voters and his/her permanent disqualification to vote in absentia.

Petitioner posits that Section 5(d) is unconstitutional because it violates Section 1, Article V of the 1987
Constitution which requires that the voter must be a resident in the Philippines for at least one year and in
the place where he proposes to vote for at least six months immediately preceding an election. Petitioner
cites the ruling of the Court in Caasi vs. Court of Appeals[12] to support his claim. In that case, the Court
held that a green card holder immigrant to the United States is deemed to have abandoned his domicile
and residence in the Philippines.
Petitioner further argues that Section 1, Article V of the Constitution does not allow provisional
registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise;
[13]
that the legislature should not be allowed to circumvent the requirement of the Constitution on the right
of suffrage by providing a condition thereon which in effect amends or alters the aforesaid residence
requirement to qualify a Filipino abroad to vote. [14] He claims that the right of suffrage should not be
granted to anyone who, on the date of the election, does not possess the qualifications provided for by
Section 1, Article V of the Constitution.
Respondent COMELEC refrained from commenting on this issue. [15]

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

SEC. 2. Declaration of Policy. It is the prime duty of the State to provide a system of honest and orderly overseas
absentee voting that upholds the secrecy and sanctity of the ballot. Towards this end, the State ensures equal
opportunity to all qualified citizens of the Philippines abroad in the exercise of this fundamental right.

SEC. 3. Definition of Terms. For purposes of this Act:

a) Absentee Voting refers to the process by which qualified citizens of the Philippines abroad, exercise their right
to vote;

. . . (Emphasis supplied)

f) Overseas Absentee Voter refers to a citizen of the Philippines who is qualified to register and vote under this
Act, not otherwise disqualified by law, who is abroad on the day of elections. (Emphasis supplied)

SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least
eighteen (18) years of age on the day of elections, may vote for president, vice-president, senators and party-list
representatives. (Emphasis supplied)

in relation to Sections 1 and 2, Article V of the Constitution which read:

SEC. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at
least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place
wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or
other substantive requirement shall be imposed on the exercise of suffrage.

SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system
for absentee voting by qualified Filipinos abroad.

. . . . . . . . . (Emphasis supplied)

Section 1, Article V of the Constitution specifically provides that suffrage may be exercised by (1) all
citizens of the Philippines, (2) not otherwise disqualified by law, (3) at least eighteen years of age, (4) who
are residents in the Philippines for at least one year and in the place where they propose to vote for at
least six months immediately preceding the election. Under Section 5(d) of R.A. No. 9189, one of those
disqualified from voting is an immigrant or permanent resident who is recognized as such in the host
country unless he/she executes an affidavit declaring that he/she shall resume actual physical permanent
residence in the Philippines not later than three years from approval of his/her registration under said Act.
Petitioner questions the rightness of the mere act of execution of an affidavit to qualify the Filipinos
abroad who are immigrants or permanent residents, to vote. He focuses solely on Section 1, Article V of
the Constitution in ascribing constitutional infirmity to Section 5(d) of R.A. No. 9189, totally ignoring the
provisions of Section 2 empowering Congress to provide a system for absentee voting by qualified
Filipinos abroad.
A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the impression that it
contravenes Section 1, Article V of the Constitution. Filipino immigrants and permanent residents
overseas are perceived as having left and abandoned the Philippines to live permanently in their host
countries and therefore, a provision in the law enfranchising those who do not possess the residency
requirement of the Constitution by the mere act of executing an affidavit expressing their intent to return to
the Philippines within a given period, risks a declaration of unconstitutionality. However, the risk is more
apparent than real.
The Constitution is the fundamental and paramount law of the nation to which all other laws must
conform and in accordance with which all private rights must be determined and all public authority
administered.[23] Laws that do not conform to the Constitution shall be stricken down for being
unconstitutional.
Generally, however, all laws are presumed to be constitutional. In Peralta vs. COMELEC, the Court
said:
. . . An act of the legislature, approved by the executive, is presumed to be within constitutional limitations. The
responsibility of upholding the Constitution rests not on the courts alone but on the legislature as well. The question
of the validity of every statute is first determined by the legislative department of the government itself. [24]

Thus, presumption of constitutionality of a law must be overcome convincingly:

. . . To declare a law unconstitutional, the repugnancy of that law to the Constitution must be clear and unequivocal,
for even if a law is aimed at the attainment of some public good, no infringement of constitutional rights is allowed.
To strike down a law there must be a clear showing that what the fundamental law condemns or prohibits, the statute
allows it to be done.[25]

As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves the Court
to take a holistic view of the pertinent provisions of both the Constitution and R.A. No. 9189. It is a basic
rule in constitutional construction that the Constitution should be construed as a whole. In Chiongbian vs.
De Leon,[26] the Court held that a constitutional provision should function to the full extent of its substance
and its terms, not by itself alone, but in conjunction with all other provisions of that great
document.Constitutional provisions are mandatory in character unless, either by express statement or by
necessary implication, a different intention is manifest. [27] The intent of the Constitution may be drawn
primarily from the language of the document itself. Should it be ambiguous, the Court may consider the
intent of its framers through their debates in the constitutional convention. [28]
R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section 2, Article V
of the Constitution that Congress shall provide a system for voting by qualified Filipinos abroad. It must be
stressed that Section 2 does not provide for the parameters of the exercise of legislative authority in
enacting said law. Hence, in the absence of restrictions, Congress is presumed to have duly exercised its
function as defined in Article VI (The Legislative Department) of the Constitution.
To put matters in their right perspective, it is necessary to dwell first on the significance of absentee
voting. The concept of absentee voting is relatively new. It is viewed thus:

The method of absentee voting has been said to be completely separable and distinct from the regular system of
voting, and to be a new and different manner of voting from that previously known, and an exception to the
customary and usual manner of voting. The right of absentee and disabled voters to cast their ballots at an election
is purely statutory; absentee voting was unknown to, and not recognized at, the common law.

Absentee voting is an outgrowth of modern social and economic conditions devised to accommodate those engaged
in military or civil life whose duties make it impracticable for them to attend their polling places on the day of
election, and the privilege of absentee voting may flow from constitutional provisions or be conferred by statutes,
existing in some jurisdictions, which provide in varying terms for the casting and reception of ballots by soldiers and
sailors or other qualified voters absent on election day from the district or precinct of their residence.

Such statutes are regarded as conferring a privilege and not a right, or an absolute right. When the legislature
chooses to grant the right by statute, it must operate with equality among all the class to which it is granted;
but statutes of this nature may be limited in their application to particular types of elections. The statutes
should be construed in the light of any constitutional provisions affecting registration and elections, and with due
regard to their texts prior to amendment and to predecessor statutes and the decisions thereunder; they should also
be construed in the light of the circumstances under which they were enacted; and so as to carry out the objects
thereof, if this can be done without doing violence to their provisions and mandates. Further, in passing on statutes
regulating absentee voting, the court should look to the whole and every part of the election laws, the intent of
the entire plan, and reasons and spirit of their adoption, and try to give effect to every portion thereof.
[29]
(Emphasis supplied)

Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same time, both a
resident and an absentee.[30] However, under our election laws and the countless pronouncements of the
Court pertaining to elections, an absentee remains attached to his residence in the Philippines as
residence is considered synonymous with domicile.
In Romualdez-Marcos,[31] the Court enunciated:

Article 50 of the Civil Code decrees that [f]or the exercise of civil rights and the fulfillment of civil obligations, the
domicile of natural persons is their place of habitual residence. In Ong vs. Republic, this court took the concept of
domicile to mean an individuals permanent home, a place to which, whenever absent for business or for pleasure,
one intends to return, and depends on facts and circumstances in the sense that they disclose intent. Based on the
foregoing, domicile includes the twin elements of the fact of residing or physical presence in a fixed place
and animus manendi, or the intention of returning there permanently.

Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the
physical presence of a person in a given area, community or country. The essential distinction between residence and
domicile in law is that residence involves the intent to leave when the purpose for which the resident has taken up
his abode ends. One may seek a place for purposes such as pleasure, business, or health. If a persons intent be to
remain, it becomes his domicile; if his intent is to leave as soon as his purpose is established it is residence. It is
thus, quite perfectly normal for an individual to have different residences in various places. However, a person can
only have a single domicile, unless, for various reasons, he successfully abandons his domicile in favor of another
domicile of choice. In Uytengsu vs. Republic, we laid this distinction quite clearly:

There is a difference between domicile and residence. Residence is used to indicate a place of abode, whether
permanent or temporary; domicile denotes a fixed permanent residence to which, when absent, one has the intention
of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile, but
domicile is residence coupled with the intention to remain for an unlimited time. A man can have but one domicile
for the same purpose at any time, but he may have numerous places of residence. His place of residence is generally
his place of domicile, but it is not by any means necessarily so since no length of residence without intention of
remaining will constitute domicile.

For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political
laws. As these concepts have evolved in our election law, what has clearly and unequivocally emerged is the fact
that residence for election purposes is used synonymously with domicile.[32] (Emphasis supplied)

Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this country, the
framers of the Constitution considered the circumstances that impelled them to require Congress to
establish a system for overseas absentee voting, thus:

MR. OPLE. With respect to Section 1, it is not clear whether the right of suffrage, which here has a residential
restriction, is not denied to citizens temporarily residing or working abroad. Based on the statistics of several
government agencies, there ought to be about two million such Filipinos at this time. Commissioner Bernas had
earlier pointed out that these provisions are really lifted from the two previous Constitutions of 1935 and 1973, with
the exception of the last paragraph. They could not therefore have foreseen at that time the phenomenon now
described as the Filipino labor force explosion overseas.

According to government data, there are now about 600,000 contract workers and employees, and although the
major portions of these expatriate communities of workers are to be found in the Middle East, they are scattered in
177 countries in the world.

In a previous hearing of the Committee on Constitutional Commissions and Agencies, the Chairman of the
Commission on Elections, Ramon Felipe, said that there was no insuperable obstacle to making effective the right of
suffrage for Filipinos overseas. Those who have adhered to their Filipino citizenship notwithstanding strong
temptations are exposed to embrace a more convenient foreign citizenship. And those who on their own or under
pressure of economic necessity here, find that they have to detach themselves from their families to work in other
countries with definite tenures of employment. Many of them are on contract employment for one, two, or three
years. They have no intention of changing their residence on a permanent basis, but are technically disqualified from
exercising the right of suffrage in their countries of destination by the residential requirement in Section 1 which
says:

Suffrage shall be exercised by all citizens of the Philippines not otherwise disqualified by law, who are eighteen
years of age or over, and who shall have resided in the Philippines for at least one year and in the place wherein they
propose to vote for at least six months preceding the election.

I, therefore, ask the Committee whether at the proper time they might entertain an amendment that will make this
exercise of the right to vote abroad for Filipino citizens an effective, rather than merely a nominal right under this
proposed Constitution.

FR. BERNAS. Certainly, the Committee will consider that. But more than just saying that, I would like to make a
comment on the meaning of residence in the Constitution because I think it is a concept that has been discussed in
various decisions of the Supreme Court, particularly in the case of Faypon vs. Quirino, a 1954 case which dealt
precisely with the meaning of residence in the Election Law. Allow me to quote:

A citizen may leave the place of his birth to look for greener pastures, as the saying goes, to improve his lot and that,
of course, includes study in other places, practice of his avocation, reengaging in business. When an election is to be
held, the citizen who left his birthplace to improve his lot may decide to return to his native town, to cast his ballot,
but for professional or business reasons, or for any other reason, he may not absent himself from the place of his
professional or business activities.

So, they are here registered as voters as he has the qualifications to be one, and is not willing to give up or lose the
opportunity to choose the officials who are to run the government especially in national elections. Despite such
registration, the animus revertendi to his home, to his domicile or residence of origin has not forsaken him.

This may be the explanation why the registration of a voter in a place other than his residence of origin has not been
deemed sufficient to consider abandonment or loss of such residence of origin.

In other words, residence in this provision refers to two residence qualifications: residence in the Philippines and
residence in the place where he will vote. As far as residence in the Philippines is concerned, the word residence
means domicile, but as far as residence in the place where he will actually cast his ballot is concerned, the meaning
seems to be different. He could have a domicile somewhere else and yet he is a resident of a place for six months
and he is allowed to vote there. So that there may be serious constitutional obstacles to absentee voting, unless the
vote of the person who is absent is a vote which will be considered as cast in the place of his domicile.

MR. OPLE. Thank you for citing the jurisprudence.

It gives me scant comfort thinking of about two million Filipinos who should enjoy the right of suffrage, at least a
substantial segment of these overseas Filipino communities. The Committee, of course, is aware that when this
Article of the Constitution explicitly and unequivocally extends the right of effective suffrage to Filipinos abroad,
this will call for a logistical exercise of global proportions. In effect, this will require budgetary and administrative
commitments on the part of the Philippine government, mainly through the COMELEC and the Ministry of Foreign
Affairs, and perhaps, a more extensive elaboration of this mechanism that will be put in place to make effective the
right to vote. Therefore, seeking shelter in some wise jurisprudence of the past may not be sufficient to meet the
demands of the right of suffrage for Filipinos abroad that I have mentioned. But I want to thank the Committee for
saying that an amendment to this effect may be entertained at the proper time. . . . . . . . . .

[33]
(Emphasis supplied)
Thus, the Constitutional Commission recognized the fact that while millions of Filipinos reside abroad
principally for economic reasons and hence they contribute in no small measure to the economic uplift of
this country, their voices are marginal insofar as the choice of this countrys leaders is concerned.
 The Constitutional Commission realized that under the laws then existing and considering the
novelty of the system of absentee voting in this jurisdiction, vesting overseas Filipinos with the right to
vote would spawn constitutional problems especially because the Constitution itself provides for the
residency requirement of voters:

MR. REGALADO. Before I act on that, may I inquire from Commissioner Monsod if the term absentee voting also
includes transient voting; meaning, those who are, let us say, studying in Manila need not go back to their places of
registration, for instance, in Mindanao, to cast their votes.

MR. MONSOD. I think our provision is for absentee voting by Filipinos abroad.

MR. REGALADO. How about those people who cannot go back to the places where they are registered?

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

Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the inapplicability
of the residency requirement in Section 1. It is precisely to avoid any problems that could impede the
implementation of its pursuit to enfranchise the largest number of qualified Filipinos who are not in the
Philippines that the Constitutional Commission explicitly mandated Congress to provide a system for
overseas absentee voting.
The discussion of the Constitutional Commission on the effect of the residency requirement
prescribed by Section 1, Article V of the Constitution on the proposed system of absentee voting for
qualified Filipinos abroad is enlightening:

MR. SUAREZ. May I just be recognized for a clarification. There are certain qualifications for the exercise of the
right of suffrage like having resided in the Philippines for at least one year and in the place where they propose to
vote for at least six months preceding the elections. What is the effect of these mandatory requirements on the matter
of the exercise of the right of suffrage by the absentee voters like Filipinos abroad?

THE PRESIDENT. Would Commissioner Monsod care to answer?

MR. MONSOD. I believe the answer was already given by Commissioner Bernas, that the domicile requirements as
well as the qualifications and disqualifications would be the same.

THE PRESIDENT. Are we leaving it to the legislature to devise the system?

FR. BERNAS. I think there is a very legitimate problem raised there.

THE PRESIDENT. Yes.

MR. BENGZON. I believe Commissioner Suarez is clarified.

FR. BERNAS. But I think it should be further clarified with regard to the residence requirement or the place where
they vote in practice; the understanding is that it is flexible. For instance, one might be a resident of Naga or
domiciled therein, but he satisfies the requirement of residence in Manila, so he is able to vote in Manila.
MR. TINGSON. Madam President, may I then suggest to the Committee to change the word Filipinos to
QUALIFIED FILIPINO VOTERS. Instead of VOTING BY FILIPINOS ABROAD, it should be QUALIFIED
FILIPINO VOTERS. If the Committee wants QUALIFIED VOTERS LIVING ABROAD, would that not satisfy the
requirement?

THE PRESIDENT. What does Commissioner Monsod say?

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

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

FR. BERNAS. QUALIFIED FILIPINOS ABROAD?

THE PRESIDENT. Does the Committee accept the amendment?

MR. REGALADO. Madam President.

THE PRESIDENT. Commissioner Regalado is recognized.

MR. REGALADO. When Commissioner Bengzon asked me to read my proposed amendment, I specifically stated
that the National Assembly shall prescribe a system which will enable qualified citizens, temporarily absent from the
Philippines, to vote. According to Commissioner Monsod, the use of the phrase absentee voting already took that
into account as its meaning. That is referring to qualified Filipino citizens temporarily abroad.

MR. MONSOD. Yes, we accepted that. I would like to say that with respect to registration we will leave it up to the
legislative assembly, for example, to require where the registration is. If it is, say, members of the diplomatic corps
who may be continuously abroad for a long time, perhaps, there can be a system of registration in the
embassies.However, we do not like to preempt the legislative assembly.

THE PRESIDENT. Just to clarify, Commissioner Monsods amendment is only to provide a system.

MR. MONSOD. Yes.

THE PRESIDENT. The Commissioner is not stating here that he wants new qualifications for these absentee voters.

MR. MONSOD. That is right. They must have the qualifications and none of the disqualifications.

THE PRESIDENT. It is just to devise a system by which they can vote.

MR. MONSOD. That is right, Madam President.[35] (Emphasis supplied)

Clearly therefrom, the intent of the Constitutional Commission is to entrust to Congress the
responsibility of devising a system of absentee voting. The qualifications of voters as stated in Section 1
shall remain except for the residency requirement. This is in fact the reason why the Constitutional
Commission opted for the term qualified Filipinos abroad with respect to the system of absentee voting
that Congress should draw up. As stressed by Commissioner Monsod, by the use of the
adjective qualifiedwith respect to Filipinos abroad, the assumption is that they have the qualifications and
none of the disqualifications to vote. In fine-tuning the provision on absentee voting, the Constitutional
Commission discussed how the system should work:
MR. SUAREZ. For clarification purposes, we just want to state for the record that in the case of qualified Filipino
citizens residing abroad and exercising their right of suffrage, they can cast their votes for the candidates in the
place where they were registered to vote in the Philippines. So as to avoid any complications, for example, if they
are registered in Angeles City, they could not vote for a mayor in Naga City.

In other words, if that qualified voter is registered in Angeles City, then he can vote only for the local and national
candidates in Angeles City. I just want to make that clear for the record.

MR. REGALADO. Madam President.

THE PRESIDENT. What does Commissioner Regalado say?
MR. REGALADO. I just want to make a note on the statement of Commissioner Suarez that this
envisions Filipinos residing abroad. The understanding in the amendment is that the
Filipino is temporarily abroad. He may not be actually residing abroad; he may just be
there on a business trip. It just so happens that the day before the elections he has to fly to
the United States, so he could not cast his vote. He is temporarily abroad, but not residing
there. He stays in a hotel for two days and comes back.This is not limited only to
Filipinos temporarily residing abroad. But as long as he is temporarily abroad on the
date of the elections, then he can fall within the prescription of Congress in that
situation.
MR. SUAREZ. I thank the Commissioner for his further clarification. Precisely, we need this
clarification on record.
MR. MONSOD. Madam President, to clarify what we mean by temporarily abroad, it need
not be on very short trips. One can be abroad on a treaty traders visa. Therefore, when
we talk about registration, it is possible that his residence is in Angeles and he would be
able to vote for the candidates in Angeles, but Congress or the Assembly may provide
the procedure for registration, like listing ones name, in a registry list in the
embassy abroad. That is still possible under the system.
FR. BERNAS. Madam President, just one clarification if Commissioner Monsod agrees with
this.
Suppose we have a situation of a child of a diplomatic officer who reaches the voting age while
living abroad and he has never registered here. Where will he register? Will he be a
registered voter of a certain locality in the Philippines?
MR. MONSOD. Yes, it is possible that the system will enable that child to comply with the
registration requirements in an embassy in the United States and his name is then entered
in the official registration book in Angeles City, for instance.
FR. BERNAS. In other words, he is not a registered voter of Los Angeles, but a registered voter
of a locality here.
MR. MONSOD. That is right. He does not have to come home to the Philippines to comply with
the registration procedure here.
FR. BERNAS. So, he does not have to come home.
MR. BENGZON. Madam President, the Floor Leader wishes to inquire if there are more
clarifications needed from the body.
Also, the Floor Leader is happy to announce that there are no more registered Commissioners to
propose amendments. So I move that we close the period of amendments.
[36]
(Emphasis supplied)
It is clear from these discussions of the members of the Constitutional Commission that they
intended to enfranchise as much as possible all Filipino citizens abroad who have not abandoned their
domicile of origin. The Commission even intended to extend to young Filipinos who reach voting age
abroad whose parents domicile of origin is in the Philippines, and consider them qualified as voters for the
first time.
It is in pursuance of that intention that the Commission provided for Section 2 immediately after the
residency requirement of Section 1. By the doctrine of necessary implication in statutory construction,
which may be applied in construing constitutional provisions, [37] the strategic location of Section 2
indicates that the Constitutional Commission provided for an exception to the actual residency
requirement of Section 1 with respect to qualified Filipinos abroad. The same Commission has in effect
declared that qualified Filipinos who are not in the Philippines may be allowed to vote even though they
do not satisfy the residency requirement in Section 1, Article V of the Constitution.
That Section 2 of Article V of the Constitution is an exception to the residency requirement found in
Section 1 of the same Article was in fact the subject of debate when Senate Bill No. 2104, which became
R.A. No. 9189, was deliberated upon on the Senate floor, thus:
Senator Arroyo. Mr. President, this bill should be looked into in relation to the constitutional
provisions. I think the sponsor and I would agree that the Constitution is supreme in any
statute that we may enact.

Let me read Section 1, Article V, of the Constitution entitled, Suffrage. It says:

Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at
least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place
wherein they propose to vote for at least six months immediately preceding the election.

Now, Mr. President, the Constitution says, who shall have resided in the Philippines. They are
permanent immigrants. They have changed residence so they are barred under the
Constitution. This is why I asked whether this committee amendment which in fact does not
alter the original text of the bill will have any effect on this?
Senator Angara. Good question, Mr. President. And this has been asked in various fora. This is
in compliance with the Constitution. One, the interpretation here of residence is
synonymous with domicile.
As the gentleman and I know, Mr. President, domicile is the intent to return to ones home. And
the fact that a Filipino may have been physically absent from the Philippines and
may be physically a resident of the United States, for example, but has a clear intent
to return to the Philippines, will make him qualified as a resident of the Philippines
under this law.
This is consistent, Mr. President, with the constitutional mandate that we that Congress must
provide a franchise to overseas Filipinos.
If we read the Constitution and the suffrage principle literally as demanding physical
presence, then there is no way we can provide for offshore voting to our
offshore kababayan, Mr. President.
Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of Article V, it reads:
The Congress shall provide a system for securing the secrecy and sanctity of the ballot as
well as a system for absentee voting by qualified Filipinos abroad.
The key to this whole exercise, Mr. President, is qualified. In other words, anything that
we may do or say in granting our compatriots abroad must be anchored on the
proposition that they are qualified. Absent the qualification, they cannot vote. And
residents (sic) is a qualification.
 I will lose votes here from permanent residents so-called green-card holders, but the
Constitution is the Constitution. We cannot compromise on this. The Senate cannot be a
party to something that would affect or impair the Constitution.
Look at what the Constitution says In the place wherein they propose to vote for at least six
months immediately preceding the election.
Mr. President, all of us here have run (sic) for office.
I live in Makati. My neighbor is Pateros where Senator Cayetano lives. We are separated only
by a creek.But one who votes in Makati cannot vote in Pateros unless he resides in
Pateros for six months. That is how restrictive our Constitution is. I am not talking even
about the Election Code. I am talking about the Constitution.
As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so. But he
must do so, make the transfer six months before the election, otherwise, he is not qualified
to vote.
That is why I am raising this point because I think we have a fundamental difference here.
Senator Angara. It is a good point to raise, Mr. President. But it is a point already well-debated
even in the constitutional commission of 1986. And the reason Section 2 of Article V
was placed immediately after the six-month/one-year residency requirement is to
demonstrate unmistakably that Section 2 which authorizes absentee voting is an
exception to the six-month/one-year residency requirement. That is the first principle,
Mr. President, that one must remember.
The second reason, Mr. President, is that under our jurisprudence and I think this is so well-
entrenched that one need not argue about it residency has been interpreted as
synonymous with domicile.
But the third more practical reason, Mr. President, is, if we follow the interpretation of the
gentleman, then it is legally and constitutionally impossible to give a franchise to
vote to overseas Filipinos who do not physically live in the country, which is quite
ridiculous because that is exactly the whole point of this exercise to enfranchise
them and empower them to vote.
[38]
(Emphasis supplied)
Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the absentee voting process, to
wit:

SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen
(18) years of age on the day of elections, may vote for president, vice-president, senators and party-list
representatives.

which does not require physical residency in the Philippines; and Section 5 of the assailed law which
enumerates those who are disqualified, to wit:

SEC. 5. Disqualifications. The following shall be disqualified from voting under this Act:

a) Those who have lost their Filipino citizenship in accordance with Philippine laws;

b) Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign
country;

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

d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon
registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual
physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration
under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to
return shall be cause for the removal of the name of the immigrant or permanent resident from the National Registry
of Absentee Voters and his/her permanent disqualification to vote in absentia.

e) Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority in the
Philippines or abroad, as verified by the Philippine embassies, consulates or foreign service establishments
concerned, unless such competent authority subsequently certifies that such person is no longer insane or
incompetent.

As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies
an immigrant orpermanent resident who is recognized as such in the host country because immigration or
permanent residence in another country implies renunciation of ones residence in his country of origin.
However, same Section allows an immigrant and permanent resident abroad to register as voter for as
long as he/she executes an affidavit to show that he/she has not abandoned his domicile in pursuance of
the constitutional intent expressed in Sections 1 and 2 of Article V that all citizens of the Philippines not
otherwise disqualified by law must be entitled to exercise the right of suffrage and, that Congress must
establish a system for absentee voting; for otherwise, if actual, physical residence in the Philippines is
required, there is no sense for the framers of the Constitution to mandate Congress to establish a system
for absentee voting.
Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or
enfranchising act. The affidavit required in Section 5(d) is not only proof of the intention of the immigrant
or permanent resident to go back and resume residency in the Philippines, but more significantly, it serves
as an explicit expression that he had not in fact abandoned his domicile of origin. Thus, it is not correct to
say that the execution of the affidavit under Section 5(d) violates the Constitution that proscribes
provisional registration or a promise by a voter to perform a condition to be qualified to vote in a political
exercise.
To repeat, the affidavit is required of immigrants and permanent residents abroad because by their
status in their host countries, they are presumed to have relinquished their intent to return to this country;
thus, without the affidavit, the presumption of abandonment of Philippine domicile shall remain.
Further perusal of the transcripts of the Senate proceedings discloses another reason why the
Senate required the execution of said affidavit. It wanted the affiant to exercise the option to return or to
express his intention to return to his domicile of origin and not to preempt that choice by legislation. Thus:
Senator Villar. Yes, we are going back.
It states that: For Filipino immigrants and those who have acquired permanent resident status
abroad, a requirement for the registration is the submission of a Sworn Declaration of
Intent to Return duly sworn before any Philippine embassy or consulate official authorized
to administer oath
Mr. President, may we know the rationale of this provision? Is the purpose of this Sworn
Declaration to include only those who have the intention of returning to be qualified to
exercise the right of suffrage? What if the Filipino immigrant has no purpose of returning?
Is he automatically disbarred from exercising this right to suffrage?
 Senator Angara. The rationale for this, Mr. President, is that we want to be expansive and
all-inclusive in this law. That as long as he is a Filipino, no matter whether he is a
green-card holder in the U.S. or not, he will be authorized to vote. But if he is already
a green-card holder, that means he has acquired permanent residency in the United
States, then he must indicate an intention to return. This is what makes for the
definition of domicile. And to acquire the vote, we thought that we would require the
immigrants and the green-card holders . . . Mr. President, the three administration senators
are leaving, maybe we may ask for a vote [Laughter].
Senator Villar. For a merienda, Mr. President.
Senator Angara. Mr. President, going back to the business at hand. The rationale for the
requirement that an immigrant or a green-card holder should file an affidavit that he will go
back to the Philippines is that, if he is already an immigrant or a green-card holder, that
means he may not return to the country any more and that contradicts the definition of
domicile under the law.
But what we are trying to do here, Mr. President, is really provide the choice to the
voter. The voter, after consulting his lawyer or after deliberation within the family, may
decide No, I think we are risking our permanent status in the United States if we file an
affidavit that we want to go back. But we want to give him the opportunity to make that
decision. We do not want to make that decision for him. [39] (Emphasis supplied)
The jurisprudential declaration in Caasi vs. Court of Appeals that green card holders are disqualified
to run for any elective office finds no application to the present case because the Caasi case did not, for
obvious reasons, consider the absentee voting rights of Filipinos who are immigrants and permanent
residents in their host countries.
In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, they may still be
considered as a qualified citizen of the Philippines abroad upon fulfillment of the requirements of
registration under the new law for the purpose of exercising their right of suffrage.
It must be emphasized that Section 5(d) does not only require an affidavit or a promise to resume
actual physical permanent residence in the Philippines not later than three years from approval of his/her
registration, the Filipinos abroad must also declare that they have not applied for citizenship in another
country. Thus, they must return to the Philippines; otherwise, their failure to return shall be cause for the
removal of their names from the National Registry of Absentee Voters and his/her permanent
disqualification to vote in absentia.
Thus, Congress crafted a process of registration by which a Filipino voter permanently residing
abroad who is at least eighteen years old, not otherwise disqualified by law, who has not relinquished
Philippine citizenship and who has not actually abandoned his/her intentions to return to his/her domicile
of origin, the Philippines, is allowed to register and vote in the Philippine embassy, consulate or other
foreign service establishments of the place which has jurisdiction over the country where he/she has
indicated his/her address for purposes of the elections, while providing for safeguards to a clean election.
Thus, Section 11 of R.A. No. 9189 provides:

SEC. 11. Procedure for Application to Vote in Absentia.

11.1. Every qualified citizen of the Philippines abroad whose application for registration has been approved,
including those previously registered under Republic Act No. 8189, shall, in every national election, file with the
officer of the embassy, consulate or other foreign service establishment authorized by the Commission, a sworn
written application to vote in a form prescribed by the Commission. The authorized officer of such embassy,
consulate or other foreign service establishment shall transmit to the Commission the said application to vote within
five (5) days from receipt thereof. The application form shall be accomplished in triplicate and submitted together
with the photocopy of his/her overseas absentee voter certificate of registration.
11.2. Every application to vote in absentia may be done personally at, or by mail to, the embassy, consulate or
foreign service establishment, which has jurisdiction over the country where he/she has indicated his/her address for
purposes of the elections.

11.3. Consular and diplomatic services rendered in connection with the overseas absentee voting processes shall be
made available at no cost to the overseas absentee voter.

Contrary to petitioners claim that Section 5(d) circumvents the Constitution, Congress enacted the
law prescribing a system of overseas absentee voting in compliance with the constitutional
mandate. Such mandate expressly requires that Congress provide a system of absentee voting that
necessarily presupposes that the qualified citizen of the Philippines abroad is not physically present in the
country. The provisions of Sections 5(d) and 11 are components of the system of overseas absentee
voting established by R.A. No. 9189. The qualified Filipino abroad who executed the affidavit is deemed
to have retained his domicile in the Philippines. He is presumed not to have lost his domicile by his
physical absence from this country. His having become an immigrant or permanent resident of his host
country does not necessarily imply an abandonment of his intention to return to his domicile of origin, the
Philippines. Therefore, under the law, he must be given the opportunity to express that he has not actually
abandoned his domicile in the Philippines by executing the affidavit required by Sections 5(d) and 8(c) of
the law.
Petitioners speculative apprehension that the implementation of Section 5(d) would affect the
credibility of the elections is insignificant as what is important is to ensure that all those who possess the
qualifications to vote on the date of the election are given the opportunity and permitted to freely do
so.The COMELEC and the Department of Foreign Affairs have enough resources and talents to ensure
the integrity and credibility of any election conducted pursuant to R.A. No. 9189.
As to the eventuality that the Filipino abroad would renege on his undertaking to return to the
Philippines, the penalty of perpetual disenfranchisement provided for by Section 5(d) would suffice to
serve as deterrence to non-compliance with his/her undertaking under the affidavit.
Petitioner argues that should a sizable number of immigrants renege on their promise to return, the
result of the elections would be affected and could even be a ground to contest the proclamation of the
winning candidates and cause further confusion and doubt on the integrity of the results of the
election.Indeed, the probability that after an immigrant has exercised the right to vote, he shall opt to
remain in his host country beyond the third year from the execution of the affidavit, is not
farfetched. However, it is not for this Court to determine the wisdom of a legislative exercise. As
expressed in Taada vs. Tuvera,[40] the Court is not called upon to rule on the wisdom of the law or to
repeal it or modify it if we find it impractical.
Congress itself was conscious of said probability and in fact, it has addressed the expected
problem.Section 5(d) itself provides for a deterrence which is that the Filipino who fails to return as
promised stands to lose his right of suffrage. Under Section 9, should a registered overseas absentee
voter fail to vote for two consecutive national elections, his name may be ordered removed from the
National Registry of Overseas Absentee Voters.
Other serious legal questions that may be raised would be: what happens to the votes cast by the
qualified voters abroad who were not able to return within three years as promised? What is the effect on
the votes cast by the non-returnees in favor of the winning candidates? The votes cast by qualified
Filipinos abroad who failed to return within three years shall not be invalidated because they were
qualified to vote on the date of the elections, but their failure to return shall be cause for the removal of
the names of the immigrants or permanent residents from the National Registry of Absentee Voters and
their permanent disqualification to vote in absentia.
In fine, considering the underlying intent of the Constitution, the Court does not find Section 5(d) of
R.A. No. 9189 as constitutionally defective.
B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same Act in contravention of
Section 4, Article VII of the Constitution?
 Section 4 of R.A. No. 9189 provides that the overseas absentee voter may vote for president, vice-
president, senators and party-list representatives.
Section 18.5 of the same Act provides:

SEC. 18. On-Site Counting and Canvassing.

.........

18. 5 The canvass of votes shall not cause the delay of the proclamation of a winning candidate if the outcome of the
election will not be affected by the results thereof. Notwithstanding the foregoing, the Commission is empowered
to order the proclamation of winning candidates despite the fact that the scheduled election has not taken place in
a particular country or countries, if the holding of elections therein has been rendered impossible by events, factors
and circumstances peculiar to such country or countries, in which events, factors and circumstances are beyond the
control or influence of the Commission. (Emphasis supplied)

Petitioner claims that the provision of Section 18.5 of R.A. No. 9189 empowering the COMELEC to
order the proclamation of winning candidates insofar as it affects the canvass of votes and proclamation
of winning candidates for president and vice-president, is unconstitutional because it violates the following
provisions of paragraph 4, Section 4 of Article VII of the Constitution:

SEC. 4 . . .

The returns of every election for President and Vice-President, duly certified by the board of canvassers of each
province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the
certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open
all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the
Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass
the votes.

The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an
equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the
Members of both Houses of the Congress, voting separately.

The Congress shall promulgate its rules for the canvassing of the certificates.

...

which gives to Congress the duty to canvass the votes and proclaim the winning candidates for president
and vice-president.
The Solicitor General asserts that this provision must be harmonized with paragraph 4, Section 4,
Article VII of the Constitution and should be taken to mean that COMELEC can only proclaim the winning
Senators and party-list representatives but not the President and Vice-President. [41]
Respondent COMELEC has no comment on the matter.
Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A. No. 9189 is far too
sweeping that it necessarily includes the proclamation of the winning candidates for the presidency and
the vice-presidency.
Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article VII of the Constitution
only insofar as said Section totally disregarded the authority given to Congress by the Constitution to
proclaim the winning candidates for the positions of president and vice-president.
In addition, the Court notes that Section 18.4 of the law, to wit:
18.4. . . . Immediately upon the completion of the canvass, the chairman of the Special Board of Canvassers shall
transmit via facsimile, electronic mail, or any other means of transmission equally safe and reliable the Certificates
of Canvass and the Statements of Votes to the Commission, . . . [Emphasis supplied]

clashes with paragraph 4, Section 4, Article VII of the Constitution which provides that the returns of every
election for President and Vice-President shall be certified by the board of canvassers to Congress.
Congress could not have allowed the COMELEC to usurp a power that constitutionally belongs to it
or, as aptly stated by petitioner, to encroach on the power of Congress to canvass the votes for president
and vice-president and the power to proclaim the winners for the said positions. The provisions of the
Constitution as the fundamental law of the land should be read as part of The Overseas Absentee Voting
Act of 2003 and hence, the canvassing of the votes and the proclamation of the winning candidates for
president and vice-president for the entire nation must remain in the hands of Congress.
C. Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1, Article IX-A of the
Constitution?
Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IX-A (Common Provisions)
of the Constitution, to wit:

Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the
Commission on Elections, and the Commission on Audit. (Emphasis supplied)

He submits that the creation of the Joint Congressional Oversight Committee with the power to review,
revise, amend and approve the Implementing Rules and Regulations promulgated by the COMELEC,
R.A. No. 9189 intrudes into the independence of the COMELEC which, as a constitutional body, is not
under the control of either the executive or legislative departments of government; that only the
COMELEC itself can promulgate rules and regulations which may be changed or revised only by the
majority of its members; and that should the rules promulgated by the COMELEC violate any law, it is the
Court that has the power to review the same via the petition of any interested party, including the
legislators.
It is only on this question that respondent COMELEC submitted its Comment. It agrees with the
petitioner that Sections 19 and 25 of R.A. No. 9189 are unconstitutional. Like the petitioner, respondent
COMELEC anchors its claim of unconstitutionality of said Sections upon Section 1, Article IX-A of the
Constitution providing for the independence of the constitutional commissions such as the COMELEC. It
asserts that its power to formulate rules and regulations has been upheld in Gallardo vs. Tabamo, Jr.
[42]
where this Court held that the power of the COMELEC to formulate rules and regulations is implicit in
its power to implement regulations under Section 2(1) of Article IX-C [43] of the Constitution. COMELEC
joins the petitioner in asserting that as an independent constitutional body, it may not be subject to
interference by any government instrumentality and that only this Court may review COMELEC rules and
only in cases of grave abuse of discretion.
The COMELEC adds, however, that another provision, vis--vis its rule-making power, to wit:

SEC. 17. Voting by Mail.

17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in not more than three (3)
countries, subject to the approval of the Congressional Oversight Committee. Voting by mail may be allowed in
countries that satisfy the following conditions:

a) Where the mailing system is fairly well-developed and secure to prevent occasion for fraud;

b) Where there exists a technically established identification system that would preclude multiple or proxy voting;
and
c) Where the system of reception and custody of mailed ballots in the embassies, consulates and other foreign
service establishments concerned are adequate and well-secured.

Thereafter, voting by mail in any country shall be allowed only upon review and approval of the Joint Congressional
Oversight Committee.

. . . . . . . . . (Emphasis supplied)

is likewise unconstitutional as it violates Section 1, Article IX-A mandating the independence of

constitutional commissions.
The Solicitor General takes exception to his prefatory statement that the constitutional challenge
must fail and agrees with the petitioner that Sections 19 and 25 are invalid and unconstitutional on the
ground that there is nothing in Article VI of the Constitution on Legislative Department that would as much
as imply that Congress has concurrent power to enforce and administer election laws with the
COMELEC; and by the principles of exclusio unius est exclusio alterius and expressum facit cessare
tacitum, the constitutionally enumerated powers of Congress circumscribe its authority to the exclusion of
all others.
The parties are unanimous in claiming that Sections 19, 25 and portions of Section 17.1 are
unconstitutional. Thus, there is no actual issue forged on this question raised by petitioner.
However, the Court finds it expedient to expound on the role of Congress through the Joint
Congressional Oversight Committee (JCOC) vis--vis the independence of the COMELEC, as a
constitutional body.
R.A. No. 9189 created the JCOC, as follows:

SEC. 25. Joint Congressional Oversight Committee. A Joint Congressional Oversight Committee is hereby created,
composed of the Chairman of the Senate Committee on Constitutional Amendments, Revision of Codes and Laws,
and seven (7) other Senators designated by the Senate President, and the Chairman of the House Committee on
Suffrage and Electoral Reforms, and seven (7) other Members of the House of Representatives designated by the
Speaker of the House of Representatives: Provided, That, of the seven (7) members to be designated by each House
of Congress, four (4) should come from the majority and the remaining three (3) from the minority.

The Joint Congressional Oversight Committee shall have the power to monitor and evaluate the
implementation of this Act. It shall review, revise, amend and approve the Implementing Rules and
Regulations promulgated by the Commission. (Emphasis supplied)

SEC. 19. Authority of the Commission to Promulgate Rules. The Commission shall issue the necessary rules and
regulations to effectively implement the provisions of this Act within sixty (60) days from the effectivity of this
Act.The Implementing Rules and Regulations shall be submitted to the Joint Congressional Oversight
Committee created by virtue of this Act for prior approval.

. . . . . . . . . (Emphasis supplied)

Composed of Senators and Members of the House of Representatives, the Joint Congressional Oversight
Committee (JCOC) is a purely legislative body. There is no question that the authority of Congress to
monitor and evaluate the implementation of R.A. No. 9189 is geared towards possible amendments or
revision of the law itself and thus, may be performed in aid of its legislation.
However, aside from its monitoring and evaluation functions, R.A. No. 9189 gives to the JCOC the
following functions: (a) to review, revise, amend and approve the Implementing Rules and Regulations
(IRR) promulgated by the COMELEC [Sections 25 and 19]; and (b) subject to the approval of the JCOC
[Section 17.1], the voting by mail in not more than three countries for the May 2004 elections and in any
country determined by COMELEC.
 The ambit of legislative power under Article VI of the Constitution is circumscribed by other
constitutional provisions. One such provision is Section 1 of Article IX-A of the 1987 Constitution ordaining
that constitutional commissions such as the COMELEC shall be independent.
Interpreting Section 1, Article X of the 1935 Constitution providing that there shall be
an independentCOMELEC, the Court has held that [w]hatever may be the nature of the functions of the
Commission on Elections, the fact is that the framers of the Constitution wanted it to be independent from
the other departments of the Government.[44] In an earlier case, the Court elucidated:

The Commission on Elections is a constitutional body. It is intended to play a distinct and important part in our
scheme of government. In the discharge of its functions, it should not be hampered with restrictions that would be
fully warranted in the case of a less responsible organization. The Commission may err, so may this court also. It
should be allowed considerable latitude in devising means and methods that will insure the accomplishment of the
great objective for which it was created free, orderly and honest elections. We may not agree fully with its choice of
means, but unless these are clearly illegal or constitute gross abuse of discretion, this court should not interfere.
Politics is a practical matter, and political questions must be dealt with realistically not from the standpoint of pure
theory. The Commission on Elections, because of its fact-finding facilities, its contacts with political strategists, and
its knowledge derived from actual experience in dealing with political controversies, is in a peculiarly advantageous
position to decide complex political questions.

[45]
(Emphasis supplied)
The Court has no general powers of supervision over COMELEC which is an independent body
except those specifically granted by the Constitution, that is, to review its decisions, orders and rulings.
[46]
In the same vein, it is not correct to hold that because of its recognized extensive legislative power to
enact election laws, Congress may intrude into the independence of the COMELEC by exercising
supervisory powers over its rule-making authority.
By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to issue the
necessary rules and regulations to effectively implement the provisions of this Act within sixty days from
the effectivity of this Act. This provision of law follows the usual procedure in drafting rules and regulations
to implement a law the legislature grants an administrative agency the authority to craft the rules and
regulations implementing the law it has enacted, in recognition of the administrative expertise of that
agency in its particular field of operation. [47] Once a law is enacted and approved, the legislative function is
deemed accomplished and complete. The legislative function may spring back to Congress relative to the
same law only if that body deems it proper to review, amend and revise the law, but certainly not to
approve, review, revise and amend the IRR of the COMELEC.
By vesting itself with the powers to approve, review, amend, and revise the IRR for The Overseas
Absentee Voting Act of 2003, Congress went beyond the scope of its constitutional authority. Congress
trampled upon the constitutional mandate of independence of the COMELEC. Under such a situation, the
Court is left with no option but to withdraw from its usual reticence in declaring a provision of law
unconstitutional.
The second sentence of the first paragraph of Section 19 stating that [t]he Implementing Rules and
Regulations shall be submitted to the Joint Congressional Oversight Committee created by virtue of this
Act for prior approval, and the second sentence of the second paragraph of Section 25 stating that [i]t
shall review, revise, amend and approve the Implementing Rules and Regulations promulgated by the
Commission, whereby Congress, in both provisions, arrogates unto itself a function not specifically vested
by the Constitution, should be stricken out of the subject statute for constitutional infirmity. Both provisions
brazenly violate the mandate on the independence of the COMELEC.
Similarly, the phrase, subject to the approval of the Congressional Oversight Committee in the first
sentence of Section 17.1 which empowers the Commission to authorize voting by mail in not more than
three countries for the May, 2004 elections; and the phrase, only upon review and approval of the Joint
Congressional Oversight Committee found in the second paragraph of the same section are
unconstitutional as they require review and approval of voting by mail in any country after the 2004
elections. Congress may not confer upon itself the authority to approve or disapprove the countries
wherein voting by mail shall be allowed, as determined by the COMELEC pursuant to the conditions
provided for in Section 17.1 of R.A. No. 9189. [48] Otherwise, Congress would overstep the bounds of its
constitutional mandate and intrude into the independence of the COMELEC.
During the deliberations, all the members of the Court agreed to adopt the separate opinion of
Justice Reynato S. Puno as part of the ponencia on the unconstitutionality of Sections 17.1, 19 and 25 of
R.A. No. 9189 insofar as they relate to the creation of and the powers given to the Joint Congressional
Oversight Committee.
WHEREFORE, the petition is partly GRANTED. The following portions of R.A. No. 9189 are declared
VOID for being UNCONSTITUTIONAL:

a) The phrase in the first sentence of the first paragraph of Section 17.1, to wit: subject to the approval of
the Joint Congressional Oversight Committee;

b) The portion of the last paragraph of Section 17.1, to wit: only upon review and approval of the Joint
Congressional Oversight Committee;

c) The second sentence of the first paragraph of Section 19, to wit: The Implementing Rules and
Regulations shall be submitted to the Joint Congressional Oversight Committee created by virtue of
this Act for prior approval; and

d) The second sentence in the second paragraph of Section 25, to wit: It shall review, revise, amend and approve
the Implementing Rules and Regulations promulgated by the Commission of the same law;

for being repugnant to Section 1, Article IX-A of the Constitution mandating the independence of
constitutional commission, such as COMELEC.
The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with respect only to the authority
given to the COMELEC to proclaim the winning candidates for the Senators and party-list representatives
but not as to the power to canvass the votes and proclaim the winning candidates for President and Vice-
President which is lodged with Congress under Section 4, Article VII of the Constitution.
The constitutionality of Section 5(d) is UPHELD.
Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said law continues to be in full
force and effect.
SO ORDERED.
Davide, Jr., C.J., and Corona, JJ., concur.
Quisumbing, J., on leave.
Tinga, J., no part.
Bellosillo, and Carpio, JJ., see concurring opinion.
Puno, Ynares-Santiago, and Callejo, Sr., JJ., see concurring and dissenting opinion.
Sandoval-Gutierrez, J., see concurring and dissenting opinion. On official leave.
Vitug, and Panganiban, JJ., see separate opinion.
Carpio-Morales, and Azcuna, JJ., see separate (concurring) opinion.

[1]
President Gloria Macapagal-Arroyo approved the law on 13 February 2003. It was published in the 16
February 2003 of Today and Daily Tribune.
[2]
PHILCONSA vs. Mathay, 124 Phil. 890 (1966); 18 SCRA 300, 306.
[3]
Id., citing PHILCONSA vs. Gimenez, 122 Phil. 894 (1965).
[4]
Sanidad vs. COMELEC, L-44640, 12 October 1976, 73 SCRA 333, 358-359 citing Pascual vs.
Secretary of Public Works, 110 Phil. 331 (1960).
[5]
G.R. No. 81311, 30 June 1988, 163 SCRA 371, 378.
[6]
Id., p. 378 cited in Tatad vs. The Secretary of the Department of Energy, 346 Phil. 321, 359 (1997).
[7]
338 Phil. 546, 574 (1997).
[8]
Separate Opinion of Kapunan, J. in Cruz vs. Secretary of Environment and Natural Resources, G.R.
No. 135385, 6 December 2000, 347 SCRA 128, 256.
[9]
Luz Farms vs. Secretary of the Department of Agrarian Reform, G.R. No. 86889, 4 December 1990,
192 SCRA 51, 58-59.
[10]
See: Gonzales vs. COMELEC, G.R. No. 27833, 18 April 1969, 27 SCRA 835.
[11]
Kilosbayan, Inc. vs. Guingona, Jr. 232 SCRA 110 (1994) and Basco vs. Phil. Amusements and Gaming
Corporation, 197 SCRA 52 (1991).
[12]
G.R. No. 88831, 8 November 1990, 191 SCRA 229.
[13]
Petition, p. 7.
[14]
Id., p. 9.
[15]
Per Comment and Memorandum filed by Atty. Jose P. Balbuena, Director IV, Law Department,
COMELEC.
[16]
199 SCRA 692, 713 (1991).
[17]
Comment, p. 9 citing Joaquin G. Bernas, Today, 5 February 2003.
[18]
318 Phil. 329 (1995); 248 SCRA 300.
[19]
96 Phil. 294 (1954).
[20]
Comment, pp. 11-12.
[21]
Caasi Case, supra.
[22]
Comment, p. 13.
[23]
Manila Prince Hotel vs. GSIS, 335 Phil. 82, 101 (1997).
[24]
L-47771, 11 March 1978, 82 SCRA 30, 55 citing People vs. Vera, 65 Phil. 56, 95 (1937).
[25]
Salas vs. Hon. Jarencio, 150-B Phil. 670, 690 (1972) citing Morfe vs. Mutuc, G.R. No. L-20387, 31
January 1968, 22 SCRA 424.
[26]
82 Phil. 771, 775 (1949).
[27]
Separate opinion of Vitug, J. in Romualdez-Marcos vs. COMELEC, supra, p. 387, citing Marcelino vs.
Cruz, Jr., L-42428, 18 March 1983, 121 SCRA 51.
[28]
Luz Farms vs. Secretary of the Department of Agrarian Reform, supra, p. 56.
[29]
29 C.J.S. 575-577.
[30]
1 WORDS AND PHRASES 264 citing Savant vs. Mercadal, 66 So. 961, 962, 136 La. 248.
[31]
318 Phil. 329 (1995); 248 SCRA 300.
[32]
Id., pp. 323-324.
[33]
II RECORD OF THE CONSTITUTIONAL COMMISSION, pp. 11-12 (19 July 1986).
[34]
Id., p. 33.
[35]
Id., pp. 34-35.
[36]
Id., pp. 35-36.
[37]
Marcelino vs. Cruz, 121 SCRA 51, 56.
[38]
TRANSCRIPTS OF SENATE PROCEEDINGS (1 October 2002), pp. 10-12.
[39]
Transcripts of Senate Proceedings (6 August 2002), pp. 30-31.
[40]
146 SCRA 446, 454 (1986) cited in Garcia vs. Corona, 321 SCRA 218 (1999) and Pagpalain Haulers,
Inc. vs. Trajano, 310 SCRA 354 (1999).
[41]
Comment, p. 15.
[42]
G.R. No. 104848, 29 January 1993, 218 SCRA 253.
[43]
SEC. 2. The Commission on Elections shall exercise the following powers and functions:
(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall.
...
[44]
Nacionalista Party vs. Bautista, 85 Phil. 101, 107 (1949).
[45]
Sumulong vs. Commission on Elections, 73 Phil. 288, 294-295 (1941), cited in Espino vs. Zaldivar, 129
Phil. 451, 474 (1967).
[46]
Nacionalista Party vs. De Vera, 85 Phil. 126, 129 (1949).
[47]
In Grego vs. COMELEC (340 Phil. 591, 606 [1997]), the Court said: The COMELEC as an
administrative agency and a specialized constitutional body charged with the enforcement and
administration of all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall, has more than enough expertise in its field that its findings or
conclusions are generally respected and even given finality.
[48]
SEC. 17. Voting by Mail.
17.1 . . . Voting by mail may be allowed in countries that satisfy the following conditions:
a) Where the mailing system is fairly well-developed and secure to prevent occasion for fraud;
b) Where there exists a technically established identification system that would preclude multiple or proxy
voting; and,
c) Where the system of reception and custody of mailed ballots in the embassies, consulates and other
foreign service establishments concerned are adequate and well-secured.

EN BANC

G.R. No. 195649 July 2, 2013

CASAN MACODE MACQUILING, PETITIONER,
vs.
COMMISSION ON ELECTIONS, ROMMEL ARNADO Y CAGOCO, AND LINOG G.
BALUA. RESPONDENTS.

RESOLUTION

SERENO, J.:

This Resolution resolves the Motion for Reconsideration filed by respondent on May 10, 2013 and the
Supplemental Motion for Reconsideration filed on May 20, 2013.

We are not unaware that the term of office of the local officials elected in the May 2010 elections has
already ended on June 30, 2010. Arnado, therefore, has successfully finished his term of office. While the
relief sought can no longer be granted, ruling on the motion for reconsideration is important as it will either
affirm the validity of Arnados election or affirm that Arnado never qualified to run for public office.

Respondent failed to advance any argument to support his plea for the reversal of this Courts Decision
dated April 16, 2013. Instead, he presented his accomplishments as the Mayor of Kauswagan, Lanao del
Norte and reiterated that he has taken the Oath of Allegiance not only twice but six times. It must be
stressed, however, that the relevant question is the efficacy of his renunciation of his foreign citizenship
and not the taking of the Oath of Allegiance to the Republic of the Philippines. Neither do his
accomplishments as mayor affect the question before this Court.

Respondent cites Section 349 of the Immigration and Naturalization Act of the United States as having
the effect of expatriation when he executed his Affidavit of Renunciation of American Citizenship on April
3, 2009 and thus claims that he was divested of his American citizenship. If indeed, respondent was
divested of all the rights of an American citizen, the fact that he was still able to use his US passport after
executing his Affidavit of Renunciation repudiates this claim.

The Court cannot take judicial notice of foreign laws, 1 which must be presented as public documents2 of a
foreign country and must be "evidenced by an official publication thereof." 3 Mere reference to a foreign
law in a pleading does not suffice for it to be considered in deciding a case.

Respondent likewise contends that this Court failed to cite any law of the United States "providing that a
person who is divested of American citizenship thru an Affidavit of Renunciation will re-acquire such
American citizenship by using a US Passport issued prior to expatriation." 4

American law does not govern in this jurisdiction. Instead, Section 40(d) of the Local Government Code
calls for application in the case before us, given the fact that at the time Arnado filed his certificate of
candidacy, he was not only a Filipino citizen but, by his own declaration, also an American citizen. It is the
application of this law and not of any foreign law that serves as the basis for Arnados disqualification to
run for any local elective position.

With all due respect to the dissent, the declared policy of Republic Act No. (RA) 9225 is that "all Philippine
citizens who become citizens of another country shall be deemed not to have lost their Philippine
citizenship under the conditions of this Act."5 This policy pertains to the reacquisition of Philippine
citizenship. Section 5(2)6 requires those who have re-acquired Philippine citizenship and who seek
elective public office, to renounce any and all foreign citizenship.

This requirement of renunciation of any and all foreign citizenship, when read together with Section 40(d)
of the Local Government Code7 which disqualifies those with dual citizenship from running for any elective
local position, indicates a policy that anyone who seeks to run for public office must be solely and
exclusively a Filipino citizen. To allow a former Filipino who reacquires Philippine citizenship to continue
using a foreign passport which indicates the recognition of a foreign state of the individual as its national
even after the Filipino has renounced his foreign citizenship, is to allow a complete disregard of this
policy.

Further, we respectfully disagree that the majority decision rules on a situation of doubt.

Indeed, there is no doubt that Section 40(d) of the Local Government Code disqualifies those with dual
citizenship from running for local elective positions.

There is likewise no doubt that the use of a passport is a positive declaration that one is a citizen of the
country which issued the passport, or that a passport proves that the country which issued it recognizes
the person named therein as its national.

It is unquestioned that Arnado is a natural born Filipino citizen, or that he acquired American citizenship
by naturalization. There is no doubt that he reacquired his Filipino citizenship by taking his Oath of
Allegiance to the Philippines and that he renounced his American citizenship. It is also indubitable that
after renouncing his American citizenship, Arnado used his U.S. passport at least six times.

If there is any remaining doubt, it is regarding the efficacy of Arnados renunciation of his American
citizenship when he subsequently used his U.S. passport. The renunciation of foreign citizenship must be
complete and unequivocal. The requirement that the renunciation must be made through an oath
emphasizes the solemn duty of the one making the oath of renunciation to remain true to what he has
sworn to. Allowing the subsequent use of a foreign passport because it is convenient for the person to do
so is rendering the oath a hollow act. It devalues the act of taking of an oath, reducing it to a mere
ceremonial formality.

The dissent states that the Court has effectively left Arnado "a man without a country".1wphi1 On the
contrary, this Court has, in fact, found Arnado to have more than one. Nowhere in the decision does it say
that Arnado is not a Filipino citizen. What the decision merely points out is that he also possessed another
citizenship at the time he filed his certificate of candidacy.

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

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

None of these dates coincide with the two other dates indicated in the certification issued by the Bureau
of Immigration showing that on 21 January 2010 and on 23 March 2010, Arnado arrived in the Philippines
using his U.S. Passport No. 057782700 which also indicated therein that his nationality is USA-American.
Adding these two travel dates to the travel record provided by the Bureau of Immigration showing that
Arnado also presented his U.S. passport four times (upon departure on 14 April 2009, upon arrival on 25
June 2009, upon departure on 29 July 2009 and upon arrival on 24 November 2009), these incidents sum
up to six.
The COMELEC En Banc concluded that "the use of the US passport was because to his knowledge, his
Philippine passport was not yet issued to him for his use." 10 This conclusion, however, is not supported by
the facts. Arnado claims that his Philippine passport was issued on 18 June 2009. The records show that
he continued to use his U.S. passport even after he already received his Philippine passport. Arnados
travel records show that he presented his U.S. passport on 24 November 2009, on 21 January 2010, and
on 23 March 2010. These facts were never refuted by Arnado.

Thus, the ruling of the COMELEC En Banc is based on a misapprehension of the facts that the use of the
U.S. passport was discontinued when Arnado obtained his Philippine passport. Arnados continued use of
his U.S. passport cannot be considered as isolated acts contrary to what the dissent wants us to believe.

It must be stressed that what is at stake here is the principle that only those who are exclusively Filipinos
are qualified to run for public office. If we allow dual citizens who wish to run for public office to renounce
their foreign citizenship and afterwards continue using their foreign passports, we are creating a special
privilege for these dual citizens, thereby effectively junking the prohibition in Section 40(d) of the Local
Government Code.

WHEREFORE, the Motion for Reconsideration and the Supplemental Motion for Reconsideration are
hereby DENIED with finality.

SO ORDERED.

Carpio, Velasco, Jr., Peralta, Bersamin, Abad, Villarama, Jr., Perez, Reyes, and Perlas-Bernabe, JJ.,
concur.
Leonardo-De Castro, Del Castillo, Mendoza, and Leonen, JJ., joins the dissent of J. Brion.
Brion, J., I dissent.

Footnotes

1
Benedicto v. CA, G.R. No. 125359, 4 September 2001, citing Vda. de Perez v. Tolete, 232 SCRA
722, 735 (1994), which in turn cited Philippine Commercial and Industrial Bank v. Escolin, 58
SCRA 266 (1974).

2
See Sec. 19, Rule 132 of the Rules of Court:

SEC. 19. Classes of Documents. For the purpose of their presentation in evidence,
documents are either public or private.

Public documents are:

(a) The written official acts, or records of the official acts of the sovereign authority, official
bodies and tribunals, and public officers, whether of the Philippines, or of a foreign
country.

3
Sec. 24, Rule 132 of the Rules of Court

SEC. 24. Proof of official record. The record of public documents referred to in
paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an
official publication thereof or by a copy attested by the officer having the legal custody of
the record, or by his deputy, and accompanied, if the record is not kept in the Philippines,
 with a certificate that such officer has the custody. If the office in which the record is kept
is in a foreign country, the certificate may be made by a secretary of the embassy or
legation, consul general, consul, vice consul, or consular agent or by any officer in the
foreign service of the Philippines stationed in the foreign country in which the record is
kept, and authenticated by the seal of his office.

4
Motion for Reconsideration, p. 2

5
Sec. 2, RA 9225.

6
Sec. 5. Civil and Political Rights and Liabilities. Those who retain or reacquire Philippine
citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant
liabilities and responsibilities under existing laws of the Philippines and the following conditions:

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

7
SECTION 40. Disqualifications. The following persons are disqualified from running for any
elective local position:

[]

(d) Those with dual citizenship;

8
Raniel v. Jochico, G.R. No. 153413, 2 March 2007, 517 SCRA 221, 227, citing Gala v. Ellice
Agro-Industrial Corporation, 463 Phil. 846, 859 (2003).

9
Id., citing Industrial Refractories Corporation of the Philippines v. Court of Appeals, 439 Phil. 36,
48 (2002).

10
Rollo, p. 66.

FIRST DIVISION
G.R. No. L-61586 May 30, 1983

ISIDRO MILLARE, petitioner,

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

Crisostomo F. Parinas for petitioner.

Alberto Benesa for respondents.

VASQUEZ, J:

Petitioner Isidro Millare ran for the position of Barangay Captain of Barangay Budac, Tayum Abra, against
private respondent Alfredo Elvea during the barangay election held on May 17, 1982. On May 10, 1982,
Elvea filed in the Municipal Circuit Court of Tayum, Abra, a petition for the exclusion and disqualification
of Millare, docketed as Barangay Election Case No. 48. The said petition sought to strike out Millare's
name from the voters' list, and to disqualify him as a candidate for the position of barangay captain of
barangay Budac on the ground that he was not an actual resident of the said barangay for at least six
months prior to the elections, as required by Section 7 of Batas Pambansa Blg. 222. At the hearing of the
said petition, Millare failed to appear and, after receiving the evidence of Elvea the respondent Municipal
Circuit Judge of Tayum, Judge Adriano Bernardino, issued an order striking out Millare's name from the
voters' list and declaring him disqualified to run as barangay captain of barangay Budac.

On May 14, 1982, Millare filed a motion for a reconsideration of the said order. The motion was set for
hearing, and in an order dated May 16, 1982, Judge Bernardino denied the, same, with the modification
that Millare's name was allowed to remain in the voters' list. Millare received a copy of the order denying
his motion for reconsideration at 3:00 o'clock in the afternoon of May 16, 1982, which was a Sunday, the
eve of election day.

Despite the declaration as to his disqualification, Millare ran just the same in the election held on May 17,
1982. It appears undisputed that he garnered more votes than Elvea His votes, however, were not
considered by the barangay board of tellers, they having been declared as stray. The barangay board of
canvassers proclaimed Elvea as the duly elected Barangay Captain of barangay Budac. He took his
oath of office as such.

Millare did not appeal the orders in Election Case No. 48 which declared him disqualified to run as
barangay captain of barangay Budac. On May 20, 1982, Millare filed with the respondent Municipal Circuit
Court Election Protest No. 49 against Elvea praying for the annulment of the proclamation of Elvea and
for a declaration that he (Millare) was the duly elected Barangay Captain of barangay Budac. At the
hearing of said election protest, Millare asked that the ballot boxes be reopened so as to show to the
court that he got more votes than Elvea. This prayer was denied. When placed on the witness stand,
Millare was not allowed to testify on the ground that he had already been disqualified as a candidate. In
his order dated June 22, 1982, Judge Bernardino dismissed the election protest for lack of merit. He
reasoned out that the election protest may not be availed of as a means of appealing the decision dated
May 16, 1982 in Election Case No. 48 which declared Millare as disqualified as a candidate and which
had already become final and executory, there having been no appeal taken from the same.

Millare appealed the order of dismissal of Election Protest No. 49 to the Court of First Instance of Tayum,
wherein it was docketed as Special Civil Case No. 1687 "For Review on certiorari on Questions of Law."
The then court of first instance, through public respondent Judge Leopoldo B. Gironella, rendered a
decision dated July 19, 1982 affirming the decision of the Municipal Circuit Court in Election Protest No.
49.

On August 16, 1982, Millare filed the instant petition which he entitled as a "Petition for Review on
certiorari on Questions of Law." He prays principally that the aforementioned decision and orders of the
respondents Judge Gironella and Judge Bernardino be nullified, and that Election Protest No. 49 be
remanded to the Municipal Circuit Court of Tayum for trial on the merits. The petition was given due
course and the parties have filed their respective memoranda.

The respondents are pinning down Millare on his failure to appeal the order of Judge Bernardino in
Election Case No. 48 declaring him disqualified to run for the position of barangay captain of barangay
Budac on the ground of non-residence. Such failure, it was reasoned out, resulted in the said order
becoming final and executory, and that by virtue thereof, Millare lacked the requisite personality to file
Election Protest No. -49. It was for this reason that Judge Bernardino denied his motion to re-open the
ballot boxes for a recanvassing of the contents of the same, and also his attempt to testify in the said
proceeding.

From a strict legal standpoint, the view that the order disqualifying Millare had become final and executory
due to his failure to appeal the same may be said to be technically correct. The law governing barangay
elections is contained in Batas Pambansa Blg. 222, otherwise known as the Barangay Election Act of
1982. Section 21 of the said law provides that "the provisions of the 1978 Election Code and the Revised
Barangay Chapter no, inconsistent herewith shall be applicable in a suppletory character to the election of
barrio officials. " Section 8 of the Revised Barangay Chapter, Republic Act No. 3590, as amended and as
adopted by Presidential Decree No. 557, provides in its last paragraph as follows:

All disputes over barangay elections shad be brought before the municipal court of the
municipality concerned; and in the determination and decision thereof, the court shall
follow as closely as possible the procedure prescribed for inferior courts in Rule 4 (now
Rule 5), Rules of Court. The decision of the municipal court shag be appealable pursuant
to the Rules of Court to the Court of First Instance whose decision shall be final on
questions of fact. (last par., See. 8, R.A. No. 3590, as amended.)

The above-quoted provision deals with "all disputes over barangay elections." It apparently includes
proceedings to disqualify a candidate, there being no other provision expressly applicable to such cases,
unlike in the case of actions for exclusion or inclusion in the voters' lists which are explicitly provided for in
the first paragraph of Section 20 of Batas Pambansa Blg. 222 and in Sections 93 to 96 of the 1978
Election Code. The pertinent provisions of the Rules of Court which have been made applicable to "all
disputes over barangay elections" require that the decision of a municipal court be appealed to the Court
of First Instance (now the Regional Trial Court) "within fifteen days after notification of the judgment
complained of." (Sec. 2, Rule 40, Rules of Court.) It is a fact that Millare did not take an appeal from the
orders issued by Judge Bernardino in Election Case No. 48.
However, We find Ourselves unable to go along with the stoically legalistic stance taken by the
respondents which not only disregards the equities involved, but also contravenes the unquestioned
policy in the interpretation of election laws and the disposition of election cases. We have repeatedly ruled
that "the purpose of election laws is to give effect to rather than frustrate, the will of the voters."
(Canceran vs. COMELEC, 107 Phil. 607; Silverio vs. Castro, 19 SCRA 520; Cauton vs. COMELEC, 19
SCRA 912; Pacis vs. COMELEC, 25 SCRA 377 )

Under the undisputed facts, Millare could not have appealed the order disqualifying him as a candidate
before the election. The order denying his motion for reconsideration or the order dated May 13, 1982 in
Election Case No. 48 was received by Millare only at 3:00 o'clock in the afternoon of May 16, 1982, a
Sunday, or only a few hours before the opening of the polling places.

However, as to whether Millare should have appealed the said order of disqualification after election day,
more particularly when his votes, which were more than those of his opponents, were not credited to him,
they having been considered stray due to the aforementioned disqualification, was not plain nor certain
enough as the proper course of action to take. The barangay board of tellers had considered the order of
his disqualification as already final and executory, for which reason they considered his votes stray. If the
order of disqualification was still appealable, as contended by the respondents, such action on the part of
the barangay board of tellers was legally unjustified and erroneous. The quandary in the mind of Millare
as to what course of action to take after Elvea was proclaimed the winner despite his having received
less votes than Millare was not helped any by the state of the law and of the applicable decisions on the
matter. As aforesaid, there is no express legal provision or pertinent jurisprudence which indicates
whether, under such a situation, Millare should have appealed the order of his disqualification, or file an
election protest. Existing provisions seemingly indicate that the appropriate step to take is to file an
election contest. The second paragraph of Section 20 of Batas Pambansa Blg. 222 provides as follows:

A sworn petition contesting the election of any barangay official shall be filed with the city
or municipal or metropolitan trial court, as the case may be, within ten days from the date
of the proclamation of the winners. The trial court shall decide the election protest within
fifteen days after the filing thereof. The decision of the municipal or city or metropolitan
trial court may be appealed within ten days from receipt of a copy thereof to the Regional
Trial Court (CFI) which shall decide within thirty days from submission, and whose
decision shall be final.

Section 191 of the 1978 Election Code, in turn, prescribes the following:

A sworn petition contesting the election of a barangay officer shall be filed with the proper
city or municipal court by any candidate for the same office who has duly filed a certificate
of candidacy, within ten days after the proclamation of the election.

In the last paragraph of Section 196 of the same Code, We find the following:

xxx xxx xxx

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

The propriety of Millare's filing a separate election contest in lieu of appealing the order of disqualification
in Election Case No. 48 could have been induced also by the need to raise issues in the election contest
other than the sole question of the alleged non-residence of Millare in Barangay Budac; such as, the
denial of due process consisting in the lack of opportunity to present evidence in his behalf, the propriety
of declaring the votes cast in his favor as stray, and the refusal of Judge Bernardino to allow the
reopening of the ballot boxes for a recanvassing of the votes. At any rate, if appeal is indeed the proper
remedy, the filing of Election Protest No. 49 on May 20, 1982, or well within the period of appeal, may be
considered as in the same nature of that remedy. Whatever procedural mis-step may have been
committed in this regard may not override the paramount consideration of upholding the sovereign will of
the people expressed through the democratic process of suffrage. Millare may not be faulted for sleeping
on his rights. He had insisted on his qualification for the position he ran for, and took determined and
seasonable steps to assert the same.

We accordingly find merit in the petitioner's complaint against the actuations of the public respondents.
The issue of the petitioner's non-residence in Barangay Budac upon which his disqualification was
predicated in the decisions and orders complained of had never been ventilated at all, it having been
buried and lost sight of in a maze of technicalities. Millare was never afforded the chance to prove that he
was an actual resident of Barangay Budac (where, according to him, he has been residing for the last
twenty years in a big house of strong materials) for at least six months prior to the elections, and as such
qualified to run for the position of Barangay Captain thereof. The least that he is entitled to is to be given
that chance, if only to give satisfaction to those who voted for him.

WHEREFORE, the petition is hereby GRANTED. The orders of Judge Bernardino in Election Case No.
48 and Election Protest No. 49 and the decision of Judge Gironella in Special Civil Case No. 1687 are
hereby ANNULLED and SET ASIDE. Election Contest No. 48 should be deemed consolidated with
Election Protest No. 49 which are hereby ordered remanded to the Municipal Circuit Trial Court of Tayum,
Abra, for further proceedings. The two cases shall be tried together, and the said court is ordered to allow
the petitioner to present evidence in his behalf to grant his motion for a reopening of the ballot boxes and
for the recanvassing of their contents and, after trial, to render judgment thereon as the evidence and the
law may warrant. Private respondent Alfredo Elvea shall pay the costs.

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Plana and Gutierrez, Jr., JJ., concur.

Relova, J., is on leave.

EN BANC

[G.R. No. L-18947. April 29, 1922. ]

BONIFACIO YSIP, Petitioner, v. MUNICIPAL COUNCIL OF CABIAO, NUEVA ECIJA,

ET AL., Respondents.

The petitioner in his own behalf.

The municipal president De Leon for Respondents.

SYLLABUS

ELECTIONS; ELECTION INSPECTORS; ACT No. 3030, SECTION 11, CONSTRUED; RIGHTS OF
THE "PARTIDO NACIONALISTA COLECTIVISTA" TO ELECTION INSPECTORS. A liberal
construction of the provisions of section 11 of Act No. 3030, is adopted so as to provide as
complete a method as possible to obtain a clean election, and so as to obtain the most
beneficial results. Pursuant to this construction, in municipalities where it is shown that the
Partido Nacionalista polled the largest number of votes at the last election, and the Partido
Democrata the next largest number of votes at said election, and where in such
municipalities, in addition to the Partido Nacionlista there has been duly organized a new
party known as the Partido Nacionalista Colectivista, one election inspector and one
substitute shall belong each to the Partido Naciolista, the Partido Nacionalista Colectivista,
and the Partido Democrata.

DECISION

MALCOLM, J. :

The issue squarely raised in this case concerns the rights of the Partido Naciolista
Colectivista to election inspectors at the approaching election.

The facts are undisputed. At the last general election in 1919, two parties, the Partido
Democrata and the Partido Naciolista, contested for supremacy in the municipality of
Cabiao, Nueva Ecija. The highest number of votes was cast for the Partido Naciolista, and
the second highest number for the Partido Democrata. Recently, however, as appears from
the record, and as matter of current political history of which the courts can take judicial
notice, the Partido Nacionalista divided into two parties, the Partido Naciolista, commonly
known as Unipersonalista, and the Partido Naciolista Colectivista; or, if this statement be
objected to by partisans of the Partido Nacionalista, a new party known as Partido
Nacionalista Colectivista, was organized. The Partido Naciolista Colectivista was inaugurated
in the municipality of Cabiao, Nueva Ecija, on February 28,1922. By exhibits presented, the
court is given to understand that in Cabiao, and, in fact, in other towns in Nueva Ecija, the
adherents of the old Nacionalista Party have gone over to the Partido Nationalista
Colectivista.

The law applicable to the facts is equally certain. A portion of section 11 of Act No. 3030 of
the Philippine Legislature, reads:jgc:chanrobles.com.ph

"Should there be in such municipality or more political parties or branches or fractions

thereof, or political groups, then two of said inspectors and two substitutes for the same
shall belong to the party which polled the largest number of votes in said municipality at
such proceeding election and the other inspector and his substitute shall belong to the
party, branch or fraction thereof, or political group which polled the next largest number of
votes at said election; and the inspectors so appointed shall be persons proposed by the
legitimate representative or representatives of such political parties, branches or fractions
thereof, or political group."cralaw virtua1aw library

When the court comes to apply the law, with reference to not only the case before it but to
a general condition of political affairs, it must be frankly admitted that difficulties are
encountered.

A strict construction of the law would necessarily result in the Nacionalista Party being
granted two inspectors in many municipalities, since no one can deny that this is "the party
which polled the largest number of votes," in such municipalities at the preceding election.
Nor can it be denied that the law contemplates be-partisan elections and only takes into
account the successful party, and the party which polled the next largest number of votes.
In certain instances, as where the Democrata Party obtains two inspectors in an election
precinct and where only one inspector remains for another party, the courts are forced to
rely on the letter of the law, and to assign the minority inspector to the Naciolista Party.
Other states of facts could be imagined, such as where the Naciolista Party might have
divided into three, four, or more branches, and which necessary would make impossible a
division of two election inspectors among the various new parties and which again would
force the courts to return to the exact terminology of the law.

A liberal construction of the law will, on the other hand, permit the Naciolista Colectivista
Party to have representation on election boards in all municipalities in which the old
Nacionalista Party polled the largest number of votes of the last election. Such interpretation
and application of the law will not do violence to it, in view of the notorious fact that the
party which won the election in many municipalities, such as Cabiao, Nueva Ecija, the
Nacionalista Party has now split its forces between the old party and a new party. Such
interpretation and application of the law would, moreover, be in accord with the underlying
purpose of the Election Law, which is to provide as complete a method as possible to obtain
a clean election.

If we must choose between a strict and literal interpretation of the law and a liberal and
reasonable interpretation of the law, if we must choose between the letter of the law which
"killeth" and the spirit of the law which "giveth life," can any one doubt what our decision
will be? We adopt that construction which will produce the most beneficial results.

We hold that, in municipalities where it is shown that the Partido Naciolista polled the
largest number of votes at the last election and the Partido Democrata the next largest
number of votes at said election, and where in such municipalities, in addition to the Partido
Nacionalista there has been duly organized a new party known as the Partido Nacionalista
Colectivista, one election inspector and substitute shall belong each to the Partido
Nacionalista, the Parido Nacionalista Colectivista, and the Partido Democrata.

As the municipal council of Cabiao, Nueva Ecija, following the circular of the Chief of the
Executive Bureau, named one election inspector for each election precinct for the Partido
Nacionalista, the Partido Nacionalista Colectivista and the Parido Democrata, the writ prayed
for must be denied, with costs against the petitioner. So ordered.

Ostrand, Johns and Romualdez, JJ., concur.

Separate Opinions

VILLAMOR, J., with whom concur ARAULLO, C.J., and AVANCENA, J., dissenting:chanrob1es
virtual 1aw library

It is scarcely necessary for us to give our reasons for disagreeing with the conclusion
reached by our worthy brethren, as some of the remarks that we offered during the
deliberation of this case embodied in the majority opinion of this special division. It will be
noted that the majority opinion, after citing the law applicable to the case, suggests two
interpretations which it calls strict and liberal. We adhere to the first not because it is strict
but because, in our judgment, it is the only one that, according to the letter and the spirit of
the law, should be given. Taking the contingency contemplated by the said provision of law,
that is, the existence in a municipality of one or more political parties, or fractions, or
branches, or groups thereof, the said law provides that two parties, or fractions thereof, or
two political groups that shall have come out victorious, or shall have polled the largest
number of votes in the last election and one to the party or fraction that obtained the next
largest number of votes this, in just acknowledgment of the will of the majorities as
expressed in the polls, and that is the reason why it requires that the inspectors of election
shall belong to parties or fractions thereof that may have won in the preceding elections,
because the election is the only means by which to determine the strength or popularity of
the political parties in the field.

In the case at bar two political parties, the Nacionalista and the Democrata, went to the
polls in the last election in the municipality of Cabiao, Nueva Ecija, and the Nacionalista
party polled more votes than the Democrata. In conformity with the express terms of the
law there cannot be any doubt that two of the inspectors must belong to the Nacionalista
Party and one to the Democrata. The fact that there appeared in the field a new political
party, called the Liberal Nacionalista or Colectivista, though formed with Nacionalista
elements but different from the Nacionalista and Democrata parties, does not affect the
matter. The rights of the victorious political parties should never be affected because of the
future reduction of its strength, by the affiliation of its members to other parties, by the
withdrawal from the party or by the formation of a new party. The law does not bother the
actual number of members of a political party but only with the result of the preceding
election as determined by the amount of votes polled. Until a political party has gone to the
polls, there is no means by which to give it the right of the appointment of an election
inspector. To concede to a new political party the right to be represented in the board of
election inspectors would be tantamount of presuming its victory in an election in which it
has never taken any part (as such political party) and this is not what the law contemplates.
The fact that the component elements of the new party have come from the party that
polled the largest number of votes in the last election is not a sound argument to uphold the
opinion of the majority, because the law does not consider the source of the political
element with which the new party is organized, but only the result of the last election which
is a self-evident fact that needs no discussion.

It is undeniable that the purpose of the Election Law is to provide a method, as complete as
possible, for obtaining a clean election; and when the law expressly provides the means for
executing a particular election Act, as for instance the appointment of inspectors of election,
it should not be construed in a manner so as to supply an alleged omission which is believed
to be oppressive.

What is the spirit of the election law in the matter of appointment of election inspectors? It
is not necessary to stretch our imagination to discover it. It is well stereo-typed in the words
used by law itself, and, that is, that two victorious political parties in the last preceding
elections, those that occupied the first and second places according to the number of votes
polled, shall be represented in the board of election inspectors in the proportion of two to
one. But now, according to the majority opinion we have three different political parties in
the said board with the special circumstance that one of the said parties did not take part in
the last preceding election.

Petitioners prayer must be granted.

EN BANC

SALVADOR D. VIOLAGO, SR.,

Petitioner,

- versus -

COMMISSION ON ELECTIONS and JOAN V. ALARILLA,

Respondents.

DECISION

PERALTA, J.:

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

The factual and procedural antecedents of the case are as follows:

Herein petitioner and private respondent were candidates for the mayoralty race during the May 10, 2010 elections
in the City of Meycauayan, Bulacan. Private respondent was proclaimed the winner.
On May 21, 2010, petitioner filed a Petition1 with the COMELEC questioning the proclamation of private
respondent on the following grounds: (1) massive vote-buying; (2) intimidation and harassment; (3) election fraud;
(4) non-appreciation by the Precinct Count Optical Scan (PCOS) machines of valid votes cast during the said
election; and, (5) irregularities due to non-observance of the guidelines set by the COMELEC.

On June 15, 2010, private respondent filed her Answer with Motion to Set for Hearing Affirmative Defenses in the
Nature of a Motion to Dismiss for Being Insufficient in Form and Substance. 2

Thereafter, on July 16, 2010, the COMELEC 2nd Division issued an Order3 setting the preliminary conference on
August 12, 2010 and directing the parties to file their Preliminary Conference Briefs at least one (1) day before the
scheduled conference.

On August 11, 2010, private respondent filed her Preliminary Conference Brief.4

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

In its assailed Order7 dated August 12, 2010, the COMELEC 2nd Division dismissed petitioners protest on the
ground that the latter belatedly filed his Brief in violation of the COMELEC rule on the filing of briefs.

On August 19, 2010, petitioner filed a Motion for Reconsideration8 with the COMELEC en banccontending that it
was only on August 16, 2010 that he received a copy of the Order of the COMELEC which set the preliminary
conference on August 12, 2010.

In its second assailed Order9 dated September 21, 2010, the COMELEC en banc denied petitioners Motion for
Reconsideration on the ground that petitioner failed to file a verified motion in violation of Section 3, Rule 19 of the
COMELEC Rules of Procedure.

Hence, the present petition based on the following grounds:

4. No notice of preliminary conference hearing was sent to petitioner before the August 12, 2010
hearing.

2. The COMELEC did not exercise sound judicial discretion when it denied the Motion for
Reconsideration.
 3. Petitioner is totally blameless and the COMELEC committed undue haste and speed in
disposing the case.

4. The denial of the MR, although within the discretion of the COMELEC, was not based on sound
judicial discretion.10

Petitioners basic contention is that the COMELEC 2nd Division and the COMELEC en banccommitted grave abuse
of discretion in dismissing his electoral protest and in denying his motion for reconsideration, respectively.

The Court finds the petition meritorious.

The COMELEC 2nd Divisions reason for dismissing petitioners election protest is the latters failure to timely file
his Preliminary Conference Brief.

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

On the basis of the abovementioned documents, the Court finds no justifiable reason why the COMELEC
2nd Division hastily dismissed petitioners election protest. There is no indication that the COMELEC 2 nd Division
made prior verification from the proper or concerned COMELEC department or official of petitioners allegation
that he did not receive a copy of the subject Order. In fact, it was only on the day following such dismissal that the
Electoral Contests Adjudication Department, through the 2nd Division Clerk, sent a letter to the Postmaster of
Meycauayan City, Bulacan requesting for a certification as to the date of receipt of the said Order stating therein that
the certification is urgently needed for the proper and appropriate disposition 13 of petitioners election protest.
Fairness and prudence dictate that the COMELEC 2nd Division should have first waited for the requested
certification before deciding whether or not to dismiss petitioners protest on technical grounds.

Petitioner should not be penalized for belatedly filing his Preliminary Conference Brief. While it may be argued that
petitioner acquired actual knowledge of the scheduled conference a day prior to the date set through means other
than the official notice sent by the COMELEC, the fact remains that, unlike his opponent, he was not given
sufficient time to thoroughly prepare for the said conference. A one-day delay, as in this case, does not justify the
outright dismissal of the protest based on technical grounds where there is no indication of intent to violate the rules
on the part of petitioner and the reason for the violation is justifiable. Thus, the COMELEC 2 nd Division committed
grave abuse of discretion in dismissing petitioners protest.

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

In Quintos v. Commission on Elections,15 this Court held that the alleged lack of verification of private respondents
Manifestation and Motion for Partial Reconsideration is merely a technicality that should not defeat the will of the
electorate. The COMELEC may liberally construe or even suspend its rules of procedure in the interest of justice,
including obtaining a speedy disposition of all matters pending before the COMELEC.16

In the same manner, this Court, in the case of Panlilio v. Commission on Elections,17 restated the prevailing principle
that the COMELECs rules of procedure for the verification of protests and certifications of non-forum shopping
should be liberally construed.

In Pacanan v. Commission on Elections,18 this Court, in clarifying the mandated liberal construction of election
laws, held thus:

x x x An election contest, unlike an ordinary civil action, is clothed with a public interest. The
purpose of an election protest is to ascertain whether the candidate proclaimed by the board of
canvassers is the lawful choice of the people. What is sought is the correction of the canvass of
votes, which was the basis of proclamation of the winning candidate. An election contest therefore
involves not only the adjudication of private and pecuniary interests of rival candidates but
paramount to their claims is the deep public concern involved and the need of dispelling the
uncertainty over the real choice of the electorate. And the court has the corresponding duty to
ascertain, by all means within its command, who is the real candidate elected by the people.

Moreover, the Comelec Rules of Procedure are subject to a liberal construction. This liberality is
for the purpose of promoting the effective and efficient implementation of the objectives of
ensuring the holding of free, orderly, honest, peaceful and credible elections and for achieving just,
expeditious and inexpensive determination and disposition of every action and proceeding brought
before the Comelec. Thus, we have declared:

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

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

In the present case, notwithstanding the fact that petitioners motion for reconsideration was not verified, the
COMELEC en banc should have considered the merits of the said motion in light of petitioners meritorious claim
that he was not given timely notice of the date set for the preliminary conference. The essence of due process is to be
afforded a reasonable opportunity to be heard and to submit any evidence in support of ones claim or defense. 22 It is
the denial of this opportunity that constitutes violation of due process of law.23 More particularly, procedural due
process demands prior notice and hearing.24 As discussed above, the fact that petitioner somehow acquired
knowledge or information of the date set for the preliminary conference by means other than the official notice sent
by the COMELEC is not an excuse to dismiss his protest, because it cannot be denied that he was not afforded
reasonable notice and time to adequately prepare for and submit his brief. This is precisely the reason why petitioner
was only able to file his Preliminary Conference Brief on the day of the conference itself. Petitioners counsel may
not likewise be blamed for failing to appear during the scheduled conference because of prior commitments and for,
instead, filing an Urgent Motion to Reset Preliminary Conference.

Hence, by denying petitioners motion for reconsideration, without taking into consideration the violation of his
right to procedural due process, the COMELEC en banc is also guilty of grave abuse of discretion.

WHEREFORE, the petition for certiorari is GRANTED. The Order of the COMELEC 2nd Division dated August
12, 2010, as well as the Order of the COMELEC en banc dated September 21, 2010, in EPC No. 2010-23
are REVERSED and SET ASIDE. Petitioners election protest is REINSTATED. The COMELEC 2nd Division is
hereby DIRECTED to continue with the proceedings in EPC No. 2010-23 and to resolve the same with dispatch.

1 Annex D to Petition, rollo, pp. 22-36.

2Annex E to Petition, id. at 59-67.

3 Annex F to Petition, id. at 77.

4Annex H to Petition, id. at 79-84.

5Annex J to Petition, id. at 88-91.

6Annex I to Petition, id. at 85.

7 Annex A to Petition, id. at 18.

8 Annex M to Petition, id. 94-98.

9 Annex B to Petition, id. at 19-20.

10Rollo, pp. 9-12.

11 Records, p. 87.

12Id. at 88.

13See Letter from Electoral Contests Adjudication Department dated August 13, 2010, id. at 80.

14Resolution No. 8804 approved by the COMELEC en banc on March 22, 2010.

15440 Phil. 1045 (2002).

16Id. at 1062-1063.

17G.R. No. 181478, July 15, 2009, 593 SCRA 139, 150.

18G.R. No. 186224, August 25, 2009, 597 SCRA 189.

19Id. at 203-204, citing Barroso v. Ampig, G.R. No. 138218, March 17, 2000, 328 SCRA 530, 541-542.

20G.R. Nos. 187958, 187961, and 187962, April 7, 2010, 617 SCRA 575, 598.

21G.R. Nos. 187966-68, April 7, 2010, 617 SCRA 575, 598.

22Octava v. Commission on Elections, G.R. No. 166105, March 22, 2007, 518 SCRA 759, 763; Gomez v. Alcantara,
G.R. No. 179556, February 13, 2009, 579 SCRA 472, 488.

23Octava v. Commission on Elections, supra, at 764.

24Namil v. Commission on Elections, 460 Phil. 751, 760 (2003), citing Sandoval v. Commission on Elections, 380
Phil. 375, 392 (2000).

EN BANC

[G.R. No. 13626. October 29, 1918. ]

THE UNITED STATES, Plaintiff-Appellee, v. ELIAS CUETO, Defendant-Appellant.

Godofredo Reyes, for Appellant.

Solicitor-General Paredes, for Appellee.

SYLLABUS

1. ELECTIONS; ELECTION LAW; PURPOSE. The primal feature of the Australian ballot
system, as adopted for the Philippines, is to allow the citizen to vote secretly for whom he
pleases, free from improper influences.

2. ID.; ID.; ELECTION INSPECTORS; DUTIES; ASSISTANCE TO DISABLED VOTERS. The

election inspector, in giving assistance to a disabled voter, has but one function to perform,
namely, the mechanical act of preparing the ballot. The exercise of any discretion as to the
selection of candidates for the voter assisted is prohibited to the marker, and the
substitution of his own for the voters choice in such selection is a flagrant violation of an
official trust.

3. ID.; ID.; ID.; ID.; ID. An inspector who fails to write upon the ballot the name or
names expressly indicated by the voter is guilty of a fraud practiced against the voter and
thus of a violation of the penal provisions of the Election Law. (U. S. v. De la Serna and
Callet [1909], 12 Phil., 672.)

4. ID.; ID.; ID.; ID. "The intent to affect the result of the election is properly presumed
when unlawful acts, which naturally or necessarily have that effect, are proved to have been
intentionally committed, or knowingly permitted, by those having charge of such elections."
(U. S. v. Carpenter [1889], 41 Fed., 330.)

5. ID.; ID.; ID.; PENALTIES. The doctrine announced in The United States v. Iturrius
([1918], 37 Phil. Rep., 762), and the decision in that case imposing the maximum penalty
on an election inspector, quoted, approved, and differentiated. Either the maximum or a
penalty approaching the maximum, should always be imposed on election officers who
violate the law.

6. ID.; ID.; ID.; ID. An election inspector who, when called upon to assist a disabled
voter, does so without the aid of another inspector, as required by law, and who disregards
the wishes of the voter in writing down the name of a candidate for office. is guilty of a
violation of the Election Law.

DECISION

MALCOLM, J. :

In the general election held on June 6, 1916, Elias Cueto, now the defendant and appellant,
was an election inspector for an election precinct in the municipality of Tiaong, Province of
Tayabas. For the position of municipal president of this municipality, two gentlemen named
Mayo and Magbiray were candidates. Toribio Briones, a qualified elector, belonged to the
Mayo party. He was given a slip containing the slate of candidates of the Mayo faction for
the different offices, such as is circulated at election time, and, with this in his possession,
entered the polling place. Being a disabled person, because of failing sight and rheumatism
in his hand, although still able when necessary to read and write, Briones secured the
assistance of Cueto to prepare his ballot. Instead, however, of copying the name of Mayo,
the candidate for municipal president found on the slip of paper, for whom Briones desired
to vote, Cueto inserted the name of Magbiray. When once outside the dark booth, Briones
noticed that his ballot contained the name of Magbiray and, on his objecting, a new ballot
with the name of Mayo was prepared for him by the election inspector.

On these facts, which we find supported by the proof, Cueto was charged with, and
convicted of, a violation of the Election Law, and sentenced to two months imprisonment
and to pay the costs. This statement, with the addition of what is hereafter said, disposes of
the sole assignment of error by the Appellant.

The Philippine Bill and subsequent Acts of Congress conceded to qualified persons the high
prerogative of suffrage. To carry out this purpose, the Election Law was carefully drafted and
enacted, and then revised by the Philippine Legislature. Its primal feature was to allow the
citizen to vote secretly for whom he pleased, free from improper influences. As was well said
in the instructive decision in Gardiner v. Romulo ([1914], 26 Phil., 521,
550):jgc:chanrobles.com.ph

"The purity of elections is one of the most important and fundamental requisites of popular
government. To banish the spectre of revenge from the minds of the timid or defenseless, to
render precarious and uncertain the bartering of votes, and lastly, to secure a fair and
honest count of the ballots cast, is the aim of the law. To accomplish these ends, Act No.
1582 was enacted. This law requires that only qualified electors shall be admitted to the
polls; that they shall vote in absolute secrecy, and that the returns shall be justly compiled
and announced. In its essential details, this law is a counterpart of the ballot laws almost
universally adopted within comparatively recent times in the United States, and is
generically called by textwriters the Australian ballot law.

x x x

". . . The central idea of the Australian ballot law, as so often expressed in the cases, is to
shroud the marking of the ballots in absolute secrecy. All the efforts to secure a free and
untrammeled expression of the electors will lead up to and depart from that point."cralaw
virtua1aw library

The accused, as already remarked, was an election inspector. To hold this office it was
necessary for him to have certain qualifications. He had to be a qualified elector of his
precinct, of good character, not convicted of an offense involving moral turpitude, and able
to read, write, and speak either English, Spanish, or the local dialect understandingly. The
accused took an oath, honestly and justly to administer his duties according to the Election
Law without prejudice or favor toward any persons candidate, party, society, or religious
sect. One of his functions was, in conjunction with another inspector (the accused, however,
violated this provision of the law by acting alone), to prepare ballots for disabled persons.
The law made it his duty, and his duty only, with another inspector, to ascertain the wishes
of the disabled voter and to prepare the ballot of the voter in proper form according to his
wishes. (See sections 417-424, 453, Administrative Code of 1917.)

The election inspector in giving assistance to a disabled voter has but one function to
perform, namely, the mechanical act of preparing the ballot. The exercise of any discretion
as to the selection of candidates for the voter assisted is prohibited to the marker, and the
substitution of his own for the voters choice in such selection is a flagrant violation of an
official trust. (Patton v. Watkins [1901], 131 Ala., 387; 90 Am. St. Rep., 43; Board v. Dill
[1910], 26 Okla., 104; Ann. Cas. [1912] B, 101; Re Prangley, 21 Ont. L. Rep., 54.) An
inspector who fails to write upon the ballot the name or names expressly indicated by the
voter is guilty of a fraud practiced against the voter and thus of a violation of the penal
provisions of the Election Law. (U. S. v. De la Serna and Callet [1909], 12 Phil., 672.)

Of course, an election officer is not responsible for a mere mistake in judgment but only for
a willful disregard of duty. All that the law requires of an election officer is the exercise of
prudence, of intelligent deliberation leading him to judgment; and when he does that,
although he does not live up to the law there is no crime, because there is no criminal
intent. (See 15 Cyc., p. 344, citing numerous cases.) But when, as in the instant case, the
election officer is given a specific duty to perform and, notwithstanding this duty,
deliberately disregards the wishes of the voter, criminal intent exists. "The color of the act
determines the complexion of the intent. In the investigation of human affairs, whether
connected with contract or crime, we are constrained to infer the motive from the act. The
intent to affect the result of the election is properly presumed when unlawful acts, which
naturally or necessarily have that effect, are proved to have been intentionally committed,
or knowingly permitted, by those having charge of such elections." (U. S. v. Carpenter
[1889], 41 Fed., 330.) The election officer, who scorns the law which he is sworn to enforce,
undermines the entire edifice of democratic institutions and is deserving of the severest
condemnation.

In a case which was decided by the first division of this court and which, because of the
doctrine enunciated in the decision, should be known to all, Mr. Justice Johnson
said:jgc:chanrobles.com.ph

"Rarely are the courts called upon to decide criminal cases which show a greater culpability
on the part of an appellant than the facts in the present case. The appellant, by his own
confession, has convicted himself of an attempt to defeat the will of the people in their
participation in the affairs of their own self-government. The people of the Philippine Islands
have been granted the right to select, by secret ballot, the men who shall make laws for
them. They have been given a right to participate directly in the form of government under
which they live. Such a right is among the most important and sacred of the rights of the
people in self-government, and one which must be most vigilantly guarded if a people
desires to maintain for themselves and their posterity a republican form of government in
which the individual may, in accordance with law, have a voice in the form of his
government. If republics are to survive and if the people are to continue to exercise the
right to govern themselves and to directly participate in the affairs of their government by
selecting their representatives by secret ballot, then the maxims of such a government must
be left to the watchful care and reverential guardianship of the people. Eternal vigilance is
the price paid by a free people for a continuance of their right to directly participate in the
affairs of their government. Designing, ambitious, corrupt, and unscrupulous politicians, if
the people are off their guard, will ingeniously and persistently encroach upon the rights of
an unwary people, and will finally undermine the very foundations of self-government and
the rights of the people. It behooves the people under a free government to prosecute to
the limit, without stint or favor, every person who attempts, in the slightest degree, to
interfere with, or who attempts to defeat, their direct participation, by secret ballot, under
the forms prescribed by law, in the affairs of their government. If nefarious practices of
officials of the government, such as is described in the complaint in the present case, are to
be continued or permitted by those in authority, and punishment is not meted out speedily
and severely upon those who rob the people of their political rights, the result is generally a
revolution in which the people again repossess themselves of the jewels of personal and
political liberty and the right to self-government, through blood and carnage.

"The defendant not only convicts himself out of his own mouth of an attempt to defeat the
will of the people of his district in their effort to choose their representatives in the
legislative branch of the government, but also violated his oath of office in which he asked
God to help him honestly and justly to administer his duties as an inspector of elections
without prejudice or favor toward any person, candidate, party, society, or religious sect,
which oath must have been taken freely or without evasion or mental reservation
whatsoever. (Section 516. Act No. 2657: section 419, Act No. 2711.) In addition to
convicting himself of an attempt to violate the rights of the people, together with the
violation of a solemn oath, he also convicts himself of the falsification of a public document,
and might be punished for the latter offense in a manner very much more severe than for
the crime for which he is being tried. (Articles 300 and 301 of the Penal Code, as amended
by Act No. 2712.)

"In consideration of all of the foregoing, we are of the opinion that the maximum penalty of
the law should be imposed. Therefore, the sentence of the lower court is hereby revoked,
and it is hereby ordered and decreed that the defendant and appellant be sentenced to be
imprisoned for a period of one year and to pay a fine of P500 and costs, and, in case of
insolvency, to suffer subsidiary imprisonment for the payment of said fine." (U. S. v. Iturrius
[1918], 37 Phil., 762.)

The law provides as a punishment for an election officer who fails to perform his official
duties, imprisonment for not less than one month nor more than one year, or by a fine of
not less than P200 nor more than P500, or both. (Section 2639, Administrative Code of
1917.) In the decision above quoted, the maximum penalty was, for good reason, imposed.
There the facts were aggravated because the election officer had manipulated and changed
the election totals. Herein, while the inner purpose of the defendant was just as bad, the
result was not as disastrous. However, believing that either the maximum, or a penalty
approaching the maximum, should always be imposed on election officers who violate the
law, we must proceed to increase the sentence imposed by the lower court so that the
defendant and appellant shall be condemned to six months imprisonment, and to pay a fine
of P250, with subsidiary imprisonment in case of insolvency, and with the costs of both
instances against him. So ordered.

Torres, Johnson, Street, Avancea and Fisher, JJ., concur.

EN BANC

[G.R. No. 154198. January 20, 2003]

PETRONILA S. RULLODA, petitioner, vs. COMMISSION ON ELECTIONS (COMELEC), ELECTION

OFFICER LUDIVICO L. ASUNCION OF SAN JACINTO, PANGASINAN; BARANGAY BOARD
OF CANVASSERS OF BRGY. STO. TOMAS, SAN JACINTO, PANGASINAN, Board of
Election Tellers of Prec. Nos. 30A/30A1, 31A, 31A1, and 32A1, and REMEGIO
PLACIDO, respondents.

DECISION
YNARES-SANTIAGO, J.:
 In the barangay elections of July 15, 2002, Romeo N. Rulloda and Remegio L. Placido were the
contending candidates for Barangay Chairman of Sto. Tomas, San Jacinto, Pangasinan. On June 22,
2002, Romeo suffered a heart attack and passed away at the Mandaluyong City Medical Center. [1]
His widow, petitioner Petronila Betty Rulloda, wrote a letter to the Commission on Elections on June
25, 2002 seeking permission to run as candidate for Barangay Chairman of Sto. Tomas in lieu of her late
husband.[2] Petitioners request was supported by the Appeal-Petition containing several signatures of
people purporting to be members of the electorate of Barangay Sto. Tomas. [3]
On July 14, 2002, Election Officer Ludivico L. Asuncion issued a directive to the Chairman and
Members of the Barangay Board of Canvassers of Sto. Tomas as follows:

Just in case the names BETTY or PETRONILA or the surname RULLODA is written on the ballot, read the same as
it is written but add the words NOT COUNTED like BETTY NOT COUNTED or RULLODA NOT COUNTED.[4]

Based on the tally of petitioners watchers who were allowed to witness the canvass of votes during
the July 15, 2002 elections, petitioner garnered 516 votes while respondent Remegio Placido received
290 votes.[5] Despite this, the Board of Canvassers proclaimed Placido as the Barangay Chairman of Sto.
Tomas.[6]
After the elections, petitioner learned that the COMELEC, acting on the separate requests of Andres
Perez Manalaysay and Petronila Rulloda to be substituted as candidates for Barangay Chairman of
Barangay La Fuente, Sta. Rosa, Nueva Ecija and Barangay Sto. Tomas, San Jacinto, Pangasinan,
respectively, issued Resolution No. 5217 dated July 13, 2002 which states:

PREMISES CONSIDERED, the Commission RESOLVED, as it hereby RESOLVES, to ADOPT the

recommendation of the Law Department as follows:

1. To deny due course the Certificates of Candidacy of ANDRES PEREZ MANALAYSAY and
PETRONILA S. RULLODA; and
2. To direct the Election Officer of Sta. Rosa, Nueva Ecija and San Jacinto, Pangasinan to
delete the name of ANDRES PEREZ MANALAYSAY, candidate for Barangay Chairman in
Barangay La Fuente, Sta. Rosa, Nueva Ecija; and the name of PETRONILA S. RULLODA,
candidate for Barangay Captain in Barangay Sto. Tomas, San Jacinto, Pangasinan.

Let the Law Department implement this resolution.

SO ORDERED.[7]

The above-quoted Resolution cited as authority the COMELECs Resolution No. 4801 dated May 23,
2002, setting forth the guidelines on the filing of certificates of candidacy in connection with the July 15,
2002 synchronized Barangay and Sangguniang Kabataan elections, more particularly Section 9 thereof
which reads:

Sec. 9. Substitution of candidates. There shall be no substitution of candidates for barangay and sangguniang
kabataan officials.[8]

Hence, petitioner filed the instant petition for certiorari, seeking to annul Section 9 of Resolution No.
4801 and Resolution No. 5217, both of the COMELEC, insofar as they prohibited petitioner from running
as substitute candidate in lieu of her deceased husband; to nullify the proclamation of respondent; and to
proclaim her as the duly elected Barangay Chairman of Sto. Tomas, San Jacinto, Pangasinan.
Private respondent Remegio Placido filed his Comment, arguing that since the barangay election is
non-partisan, substitution of candidates is not allowed. Moreover, petitioner did not file any certificate of
candidacy; hence, there was only one candidate for Barangay Chairman of Sto. Tomas, namely,
respondent Placido.[9]
Public respondent COMELEC also filed its Comment. It contends that its Resolution No. 4801 was
issued not pursuant to its quasi-judicial functions but as an incident of its inherent administrative functions
over the conduct of the barangay elections. Therefore, the same may not be the subject of review in a
petition for certiorari. Further, the COMELEC alleges that it did not commit grave abuse of discretion in
denying due course to petitioners certificate of candidacy and in proclaiming respondent considering that
he was the only candidate for Barangay Chairman of Sto. Tomas. [10]
We find merit in the petition.
At the outset, there is no dispute that petitioner garnered 516 votes while respondent got only 290
votes. Respondents did not deny this in their respective Comments.
In our jurisdiction, an election means the choice or selection of candidates to public office by popular
vote through the use of the ballot, and the elected officials which are determined through the will of the
electorate. An election is the embodiment of the popular will, the expression of the sovereign power of the
people. The winner is the candidate who has obtained a majority or plurality of valid votes cast in the
election. Sound policy dictates that public elective offices are filled by those who receive the highest
number of votes cast in the election for that office. For, in all republican forms of government the basic
idea is that no one can be declared elected and no measure can be declared carried unless he or it
receives a majority or plurality of the legal votes cast in the election. [11]
Respondents base their argument that the substitution of candidates is not allowed in barangay
elections on Section 77 of the Omnibus Elections Code, which states:

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

Private respondent argues that inasmuch as the barangay election is non-partisan, there can be no
substitution because there is no political party from which to designate the substitute. Such an
interpretation, aside from being non sequitur, ignores the purpose of election laws which is to give effect
to, rather than frustrate, the will of the voters. [12] It is a solemn duty to uphold the clear and unmistakable
mandate of the people. It is well-settled that in case of doubt, political laws must be so construed as to
give life and spirit to the popular mandate freely expressed through the ballot. [13]
Contrary to respondents claim, the absence of a specific provision governing substitution of
candidates in barangay elections can not be inferred as a prohibition against said substitution. Such a
restrictive construction cannot be read into the law where the same is not written. Indeed, there is more
reason to allow the substitution of candidates where no political parties are involved than when political
considerations or party affiliations reign, a fact that must have been subsumed by law.
Private respondent likewise contends that the votes in petitioners favor can not be counted because
she did not file any certificate of candidacy. In other words, he was the only candidate for Barangay
Chairman. His claim is refuted by the Memorandum of the COMELEC Law Department as well as the
assailed Resolution No. 5217, wherein it indubitably appears that petitioners letter-request to be allowed
to run as Barangay Chairman of Sto. Tomas in lieu of her late husband was treated as a certificate of
candidacy.[14]
 To reiterate, it was petitioner who obtained the plurality of votes in the contested
election.Technicalities and procedural niceties in election cases should not be made to stand in the way of
the true will of the electorate. Laws governing election contests must be liberally construed to the end that
the will of the people in the choice of public officials may not be defeated by mere technical objections. [15]

Election contests involve public interest, and technicalities and procedural barriers must yield if they constitute an
obstacle to the determination of the true will of the electorate in the choice of their elective officials. The Court
frowns upon any interpretation of the law that would hinder in any way not only the free and intelligent casting of
the votes in an election but also the correct ascertainment of the results.[16]

WHEREFORE, in view of the foregoing, the instant petition is GRANTED. The assailed Resolution
No. 5217 of the Commission on Elections, insofar as it denied due course to petitioners certificate of
candidacy, is declared NULL and VOID. The proclamation of respondent Remegio L. Placido as Barangay
Chairman of Sto. Tomas, San Jacinto, Pangasinan is SET ASIDE, and the Board of Canvassers of the
said Barangay is ORDERED to proclaim petitioner as the duly elected Barangay Chairman thereof.
SO ORDERED.
Bellosillo, Puno, Vitug, Mendoza, Sandoval-Gutierrez, Carpio , Austria-Martinez, Corona, Carpio-
Morales, Callejo, Sr., and Azcuna, JJ., concur.
Davide, Jr., and Quisumbing, JJ., in the result, pro hac vice only.
Panganiban, J., in the result.

[1]
Rollo, p. 46.
[2]
Ibid., p. 47.
[3]
Ibid., pp. 49-64.
[4]
Ibid., p. 67.
[5]
Ibid., pp. 68-82.
[6]
Ibid., p. 83.
[7]
Ibid., pp. 42-43.
[8]
Ibid., pp. 33-39, at 38.
[9]
Ibid., pp. 122-125.
[10]
Ibid., pp. 133-137.
[11]
Carlos v. Angeles, 346 SCRA 571, 582 [2000].
[12]
Papandayan, Jr. v. COMELEC, et al., G.R. No. 147909. April 16, 2002.
[13]
Bengson III v. House of Representatives Electoral Tribunal, et al., Concurring Opinion of Justice
Artemio V. Panganiban, 357 SCRA 545, 566 [2001]; citing Frivaldo v. COMELEC, 257 SCRA 727 [1996].
[14]
Rollo, pp. 40-43.
[15]
Carlos v. Angeles, supra., citing Benito v. COMELEC, 235 SCRA 436, 442 [1994].
[16]
OHara v. COMELEC, et al., G.R. Nos. 148941-42, March 12, 2002.
EN BANC

[G.R. No. 125416. September 26, 1996]

SUBIC BAY METROPOLITAN AUTHORITY, petitioner, vs. COMMISSION ON ELECTIONS, ENRIQUE

T. GARCIA and CATALINO A. CALIMBAS, respondents.

DECISION
PANGANIBAN, J.:

The 1987 Constitution is unique in many ways. For one thing, it institutionalized people power in law-
making. Learning from the bitter lesson of completely surrendering to Congress the sole authority to
make, amend or repeal laws, the present Constitution concurrently vested such prerogatives in the
electorate by expressly recognizing their residual and sovereign authority to ordain legislation directly
through the concepts and processes of initiative and of referendum.
In this Decision, this Court distinguishes referendum from initiative and discusses the practical and
legal implications of such differences. It also sets down some guidelines in the conduct and
implementation of these two novel and vital features of popular democracy, as well as settles some
relevant questions on jurisdiction -- all with the purpose of nurturing, protecting and promoting the
people's exercise of direct democracy.
In this action for certiorari and prohibition, petitioner seeks to nullify the respondent Commission on
Elections' Ruling dated April 17, 1996 and Resolution No. 2848 promulgated on June 27, 1996 [1] denying
petitioner's plea to stop the holding of a local initiative and referendum on the proposition to
recall Pambayang Kapasyahan Blg. 10, Serye 1993, of the Sangguniang Bayan of Morong, Bataan.

The Facts

On March 13, 1992, Congress enacted Republic Act No. 7227 (The Bases Conversion and
Development Act of 1992), which among others, provided for the creation of the Subic Special Economic
Zone, thus:

"Sec. 12. Subic Special Economic Zone. - Subject to the concurrence by resolution of the Sangguniang Panlungsod
of the City of Olongapo and the Sangguniang Bayan of the Municipalities of Subic, Morong and Hermosa, there is
hereby created a Special Economic and Free-port Zone consisting of the City of Olongapo and the Municipality of
Subic, Province of Zambales, the lands occupied by the Subic Naval Base and its contiguous extensions as
embraced, covered and defined by the 1947 Military Bases Agreement between the Philippines and the United States
of America as amended, and within the territorial jurisdiction of the Municipalities of Morong and Hermosa,
Province of Bataan, hereinafter referred to as the Subic Special Economic Zone whose metes and bounds shall be
delineated in a proclamation to be issued by the President of the Philippines. Within thirty (30) days after the
approval of this Act, each local government unit shall submit its resolution of concurrence to join the Subic Special
Economic Zone to the Office of the President. Thereafter, the President of the Philippines shall issue a proclamation
defining the metes and bounds of the zone as provided herein." (Underscoring supplied)

RA 7227 likewise created petitioner to implement the declared national policy of converting
the Subicmilitary reservation into alternative productive uses. [2] Petitioner was organized with an
authorized capital stock of P20 billion which was fully subscribed and fully paid up by the Republic of the
Philippines with, among other assets, "(a)ll lands embraced, covered and defined in Section 12 hereof, as
well as permanent improvements and fixtures upon proper inventory not otherwise alienated, conveyed,
or transferred to another government agency.[3]
On November 24, 1992, the American navy turned over the Subic military reservation to the
Philippine government. Immediately, petitioner commenced the implementation of its task, particularly the
preservation of the seaports, airports, buildings, houses and other installations left by the American navy.
In April 1993, the Sangguniang Bayan of Morong, Bataan passed a Pambayang Kapasyahan Bilang
10, Serye 1993, expressing therein its absolute concurrence, as required by said Sec. 12 of RA 7227, to
join the Subic Special Economic Zone. On September 5, 1993, the Sangguniang Bayan of
Morong submitted Pambayang Kapasyahan Bilang 10, Serye 1993 to the Office of the President.
On May 24, 1993, respondents Garcia, Calimbas and their companions filed a petition with
the Sangguniang Bayan of Morong to annul Pambayang Kapasyahan Blg. 10, Serye 1993. The petition
prayed for the following:

"I. Bawiin, nulipikahin at pawalang-bisa ang Pambayang Kapasyahan Blg. 10 Serye 1993 ng Sangguniang Bayan
para sa pag-anib ng Morong sa SSEFZ na walang kundisyon.

II. Palitan ito ng isang Pambayang kapasiyahan na aanib lamang ang Morong sa SSEFZ kung ang mga sumusunod
na kondisyones ay ipagkakaloob, ipatutupad at isasagawa para sa kapakanan at interes ng Morong at Bataan:

(A) Ibalik sa Bataan ang 'Virgin Forests' -- isang bundok na hindi nagagalaw at punong-puno ng malalaking punong-
kahoy at iba't-ibang halaman.

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

(K) Isama ang mga lupain ng Bataan na nakapaloob sa SBMA sa pagkukuenta ng salaping ipinagkaloob ng
pamahalaang national o 'Internal Revenue Allotment' (IRA) sa Morong, Hermosa at sa Lalawigan.

(D) Payagang magtatag rin ng sariling 'special economic zones' ang bawat bayan ng Morong, Hermosa at
Dinalupihan.

(E) Ibase sa laki ng kanya-kanyang lupa ang pamamahagi ng kikitain ng SBMA.

(G) Ibase rin ang alokasyon ng pagbibigay ng trabaho sa laki ng nasabing mga lupa.

(H) Pabayaang bukas ang pinto ng SBMA na nasa Morong ng 24 na oras at bukod dito sa magbukas pa ng pinto sa
hangganan naman ng Morong at Hermosa upang magkaroon ng pagkakataong umunlad rin ang mga nasabing bayan,
pati na rin ng iba pang bayan ng Bataan.

(I) Tapusin ang pagkokonkreto ng mga daang Morong-Tala-Orani at Morong-Tasig-Dinalupihan para sa kabutihan
ng mga taga-Bataan at tuloy makatulong sa pangangalaga ng mga kabundukan.

(J) Magkakaroon ng sapat na representasyon sa pamunuan ng SBMA ang Morong, Hermosa at Bataan."

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

"Sec. 122. Procedure in Local Initiative. -

xxxxxxxxx

(b) If no favorable action thereon is taken by the sanggunian concerned, the proponents, through their duly
authorized and registered representatives, may invoke their power of initiative, giving notice thereof to the
sanggunian concerned.

x x x x x x x x x."
On July 6, 1993, respondent Commission En Banc in Comelec Resolution No. 93-1623 denied the
petition for local initiative by herein private respondents on the ground that the subject thereof was merely
a resolution (pambayang kapasyahan) and not an ordinance. On July 13, 1993, public respondent
Comelec En Banc (thru Comelec Resolution no. 93-1676) further directed its Provincial Election
Supervisor to hold action on the authentication of signatures being solicited by private respondents.
On August 15, 1993, private respondents instituted a petition for certiorari and mandamus[5] before
this Court against the Commission on Elections and the Sangguniang Bayan of Morong, Bataan, to set
aside Comelec Resolution No. 93-1623 insofar as it disallowed the conduct of a local initiative to
annul Pambayang Kapasyahan Bilang 10, Serye 1993, and Comelec Resolution No. 93-1676 insofar as it
prevented the Provincial Election Supervisor of Bataan from proceeding with the authentication of the
required number of signatures in support of the initiative and the gathering of signatures.
On February 1, 1995, pursuant to Sec. 12 of RA 7227, the President of the Philippines issued
proclamation No. 532 defining the metes and bounds of the SSEZ. Said proclamation included in the
SSEZ all the lands within the former Subic Naval Base, including Grande Island and that portion of the
former naval base within the territorial jurisdiction of the Municipality of Morong.
On June 18, 1996, respondent Comelec issued Resolution No. 2845, adopting therein a "Calendar of
Activities for local referendum on certain municipal ordinance passed by the Sangguniang Bayan of
Morong, Bataan", and which indicated, among others, the scheduled referendum Day (July 27, 1996,
Saturday). On June 27, 1996, the Comelec promulgated the assailed Resolution No. 2848 providing for
"the rules and guidelines to govern the conduct of the referendum proposing to annul or
repeal Kapasyahan Blg. 10, Serye 1993 of the Sangguniang Bayan of Morong, Bataan".
On July 10, 1996, petitioner instituted the present petition for certiorari and prohibition contesting the
validity of Resolution No. 2848 and alleging, inter alia, that public respondent "is intent on proceeding with
a local initiative that proposes an amendment of a national law. x x x"

The Issues

The petition[6] presents the following "argument":

"Respondent Commission on Elections committed grave abuse of discretion amounting to lack of jurisdiction in
scheduling a local initiative which seeks the amendment of a national law."

In his Comment, private respondent Garcia claims that (1) petitioner has failed to show the existence
of an actual case or controversy; (2) x x x petitioner seeks to overturn a decision/judgment which has long
become final and executory; (3) x x x public respondent has not abused its discretion and has in fact
acted within its jurisdiction; (and) (4) x x x the concurrence of local government units is required for the
establishment of the Subic Special Economic Zone."
Private respondent Calimbas, now the incumbent Mayor of Morong, in his Reply (should be
Comment) joined petitioner's cause because "(a)fter several meetings with petitioner's Chairman and staff
and after consultation with legal counsel, respondent Calimbas discovered that the demands in the
petition for a local initiative/referendum were not legally feasible." [7]
The Solicitor General, as counsel for public respondent, identified two issues, as follows:

"1. Whether or not the Comelec can be enjoined from scheduling/conducting the local intiative proposing to annul
Pambayang Kapasyahan Blg. 10, Serye 1993 of the Sangguniang Bayan of Morong, Bataan.

2. Whether or not the Comelec committed grave abuse of discretion in denying the request of petitioner SBMA to
stop the local initiative."

On July 23, 1996, the Court heard oral argument by the parties, after which, it issued the following
resolution:

"The Court Resolved to (1) GRANT the Motion to Admit the Attached Comment filed by counsel for private
respondent Enrique T. Garcia, dated July 22, 1996 and (2) NOTE the: (a) Reply (should be comment) to the petition
for certiorari and prohibition with prayer for temporary restraining order and/or writ of preliminary injunctiom, filed
by counsel for respondent Catalino Calimbas, dated July 22, 1996; (b) Separate Comments on the petition, filed by:
(b-1) the Solicitor General for respondent Commission on Elections dated July 19, 1996 and (b-2) counsel for
private respondent Enrique T. Garcia, dated July 22, 1996 and (c) Manifestation filed by counsel for petitioner dated
July 22, 1996.

At the hearing of this case this morning, Atty. Rodolfo O. Reyes appeared and argued for petitioner Subic Bay
Metropolitan Authority (SBMA) while Atty. Sixto Brillantes for private respondent Enrique T. Garcia, and Atty.
Oscar L. Karaan for respondent Catalino Calimbas. Solicitor General Raul Goco, Assistant Solicitor General Cecilio
O. Estoesta and Solicitor Zenaida Hernandez-Perez appeared for respondent Commission on Elections with Solicitor
General Goco arguing.

Before the Court adjourned, the Court directed the counsel for both parties to INFORM this Court by Friday, July
26, 1996, whether or not Commission on Elections would push through with the initiative/referendum this Saturday,
July 27, 1996.

Thereafter, the case shall be considered SUBMITTED for resolution.

At 2:50 p.m. July 23, 1996, the Court received by facsimile transmission an Order dated also on July 23, 1996 from
the respondent Commission on Elections En Banc inter alia 'to hold in abeyance the scheduled referendum
(initiative) on July 27, 1996 pending resolution of G.R. No. 125416.' In view of this Order, the petitioner's
application for a temporary restraining order and/or writ of preliminary injunction has become moot and academic
and will thus not be passed upon by this Court at this time. Puno, J., no part due to relationship. Bellosillo, J., is on
leave."

After careful study of and judicious deliberation on the submissions and arguments of the parties, the
Court believes that the issues may be restated as follows:

(1) Whether this petition "seeks to overturn a decision/judgment which has long become final and executory";
namely G.R. No. 111230, Enrique Garcia, et al. vs. Commission on Elections, et al.;
(2) Whether the respondent Comelec committed grave abuse of discretion in promulgating and implementing its
Resolution No. 2848 which "govern(s) the conduct of the referendum proposing to annul or repeal Pambayang
Kapasyahan Blg. 10, Serye 1993 of the Sangguniang Bayan of Morong, Bataan;" and

(3) Whether the questioned local initiative covers a subject within the powers of the people of Morong to enact; i.e.,
whether such initiative "seeks the amendment of a national law."

First Issue: Bar by Final Judgment

Respondent Garcia contends that this Court had already ruled with finality in Enrique T. Garcia, et al.
vs. Commission on Elections, et. al.[8] on "the very issue raised in (the) petition: whether or not there can
be an initiative by the people of Morong, Bataan on the subject proposition -- the very same proposition, it
bears emphasizing, the submission of which to the people of Morong, Bataan is now sought to be
enjoined by petitioner x x x".
We disagree. The only issue resolved in the earlier Garcia case is whether a municipal resolution as
contra-distinguished from an ordinance may be the proper subject of an initiative and/or referendum. We
quote from our said Decision:[9]

"In light of this legal backdrop, the essential issue to be resolved in the case at bench is whether Pambayang
Kapasyahan Blg. 10, serye 1993 of the Sangguniang Bayan of Morong, Bataan is the proper subject of an initiative.
Respondents take the negative stance as they contend that under the Local Government Code of 1991 only an
ordinance can be the subject of initiative. They rely on Section 120, Chapter 2, Title XI, Book I of the Local
Government Code of 1991 which provides: 'Local Initiative Defined. -- Local initiative is the legal process whereby
the registered voters of a local government unit may directly propose, enact, or amend any ordinance.'

We reject respondent's narrow and literal reading of the above provision for it will collide with the Constitution and
will subvert the intent of the lawmakers in enacting the provisions of the Local Government of 1991 on initiative
and referendum.

The Constitution clearly includes not only ordinances but resolutions as appropriate subjects of a local
initiative.Section 32 of Article VI provides in luminous language: 'The Congress shall, as early as possible, provide
for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose
and enact laws or approve or reject any act or law or part thereof passed by the Congress, or local legislative body x
x x'. An act includes a resolution. Black defines an acts 'an expression of will or purpose . . . it may denote
something done . . . as a legislature, including not merely physical acts, but also decrees, edicts, laws,
judgement, resolves, awards and determination x x x.' It is basic that a law should be construed in harmony with and
not in violation of the Constitution. In line with this postulates, we held in In Re Guarina that if there is doubt or
uncertainly as to the meaning of the legislative, if the words or provisions are obscure, or if the enactment is fairly
susceptible of two or more construction, that interpretations will be adopted which will avoid the effect of
unconstitutionality, even though it may be necessary, for this purpose, to disregard the more usual or apparent import
of the language used.' "

Moreover, we reviewed our rollo in said G.R. No. 111230 and we found that the sole issue presented
by the pleadings was the question of "whether or not a Sangguniang Bayan Resolution can be the
subjectof a valid initiative or referendum".[10]
In the present case, petitioner is not contesting the propriety of municipal resolution as the form by
which these two new constitutional prerogatives of the people may validly exercised. What is at issue
here is whether Pambayang Kapasyahan Blg. 10, Serye 1993, as worded, is sufficient in form and
substance for submission to the people for their approval; in fine, whether the Comelec acted properly
and juridically in promulgating and implementing Resolution No. 2848.
 Second Issue: Sufficiency of Comelec Resolution No. 2848

The main issue in this case may be re-started thus: Did respondent Comelec commit grave abuse of
discretion in promulgating and implementing Resolution No. 2848?
We answer the question in the affirmative.
To begin with, the process started by private respondents was an INITIATIVE but respondent
Comelec made preparations for a REFERENDUM only. In fact, in the body of the Resolution [11] as
reproduced in the footnote below the word "referendum" is repeated at least 27 times, but "initiative" is not
mentioned at all. The Comelec labeled the exercise as a "Referendum"; the counting of votes was
entrusted to a "Referendum Committee"; the documents were called "referendum returns"; the
canvassers, "Referendum Board of Canvassers" and the ballots themselves bore the description
"referendum". To repeat, not once was the word "initiative" used in said body of Resolution No. 2848. And
yet, this exercise is unquestionably an INITIATIVE.
There are statutory and conceptual demarcations between a referendum and an initiative. In
enacting the "Initiative and Referendum Act,[12] Congress differentiated one term from the other, thus:

(a) "Initiative" is the power of the people to propose amendments to the Constitution or to propose and enact
legislations through an election called for the purpose.

There are three (3) systems of initiative, namely:

a.1. Initiative on the Constitution which refers to a petition proposing amendments to the
Constitution;
a.2. Initiative on statutes which refers to a petition proposing to enact a national legislation; and
a.3. Initiative on local legislation which refers to a petition proposing to enact a regional,
provincial, city, municipal, or barangay law, resolution or ordinance.

(b) "Indirect initiative" is exercise of initiative by the people through a proposition sent to Congress or the local
legislative body for action.

(c) "Referendum" is the power of the electorate to approve or reject a legislation through an election called for the
purpose. It may be of two classes, namely:

c.1. Referendum on statutes which refers to a petition to approve or reject an act or law, or part
thereof, passed by Congress; and
c.2. Referendum on local law which refers to a petition to approve or reject a law, resolution or
ordinance enacted by regional assemblies and local legislative bodies.
Along these statutory definitions, Justice Isagani A. Cruz [13] defines initiative as the "power of the
people to propose bills and laws, and to enact or reject them at the polls independent of the legislative
assembly." On the other hand, he explains that referendum "is the right reserved to the people to adopt or
reject any act or measure which has been passed by a legislative body and which in most cases would
without action on the part of electors become a law." The foregoing definitions, which are based on
Black's[14] and other leading American authorities, are echoed in the Local Government Code (RA 7160)
substantially as follows:

"SEC. 120. Local Initiative Defined. -- Local Initiative is the legal process whereby the registered voters of a local
government unit may directly propose, enact, or amend any ordinance.
"SEC. 126. Local Referendum Defined. -- Local referendum is the legal process whereby the registered voters of the
local government units may approve, amend or reject any ordinance enacted by the sanggunian.

The local referendum shall be held under the control and direction of the Comelec within sixty (60) days in case of
provinces and cities, forty-five (45) days in case of municipalities and thirty (30) days in case of barangays.

The Comelec shall certify and proclaim the results of the said referendum."

Prescinding from these definitions, we gather that initiative is resorted to (or initiated) by the people
directly either because the law-making body fails or refuses to enact the law, ordinance, resolution or act
that they desire or because they want to amend or modify one already existing. Under Sec. 13 of R.A.
6735, the local legislative body is given the opportunity to enact the proposal. If its refuses/neglects to do
so within thirty (30) days from its presentation, the proponents through their duly-authorized and
registered representatives may invoke their power of initiative, giving notice thereof to the local legislative
body concerned. Should the proponents be able to collect the number of signed conformities within the
period granted by said statute, the Commission on Elections "shall then set a date for the initiative (not
referendum) at which the proposition shall be submitted to the registered voters in the local government
unit concerned x x x".
On the other hand, in a local referendum, the law-making body submits to the registered voters of its
territorial jurisdiction, for approval or rejection, any ordinance or resolution which is duly enacted or
approved by such law-making authority. Said referendum shall be conducted also under the control and
direction of the Commission on Elections.[15]
In other words, while initiative is entirely the work of the electorate, referendum is begun and
consented to by the law-making body. Initiative is a process of law-making by the people themselves
without the participation and against the wishes of their elected representatives, while referendum
consists merely of the electorate approving or rejecting what has been drawn up or enacted by a
legislative body.Hence, the process and the voting in an initiative are understandably more complex than
in a referendum where expectedly the voters will simply write either "Yes" or "No" in the ballot.
[Note: While the above quoted laws variously refer to initiative and referendum as "powers" or "legal
processes", these can also be "rights", as Justice Cruz terms them, or "concepts", or "the proposal" itself
(in the case of initiative) being referred to in this Decision.]
From the above differentiation, it follows that there is need for the Comelec to supervise an initiative
more closely, its authority thereon extending not only to the counting and canvassing of votes but also to
seeing to it that the matter or act submitted to the people is in the proper form and language so it may be
easily understood and voted upon by the electorate. This is especially true where the proposed legislation
is lengthy and complicated, and should thus be broken down into several autonomous parts, each such
part to be voted upon separately. Care must also be exercised that "(n)o petition embracing more than
one subject shall be submitted to the electorate," [16] although "two or more propositions may be submitted
in an initiative".[17]
It should be noted that under Sec. 13 (c) of RA 6735, the "Secretary of Local Government or his
designated representative shall extend assistance in the formulation of the proposition."
In initiative and referendum, the Comelec exercises administration and supervision of the process
itself, akin to its powers over the conduct of elections. These law-making powers belong to the people,
hence the respondent Commission cannot control or change the substance or the content of
legislation. In the exercise of its authority, it may (in fact it should have done so already) issue relevant
and adequate guidelines and rules for the orderly exercise of these "people-power" features of our
Constitution.

Third Issue: Withdrawal of Adherence and Imposition of Conditionalities -- Ultra Vires?

 Petitioner maintains that the proposition sought to be submitted in the plebiscite,
namely, Pambayang Kapasyahan Blg. 10, Serye 1993, is ultra vires or beyond the powers of the
Sangguniang Bayan to enact,[18] stressing that under Sec. 124 (b) of RA 7160 (the Local Government
Code), "local initiative shall cover only such subjects or matters as are within the legal powers of the
sanggunians to enact." Elsewise stated, a local initiative may enact only such ordinances or resolutions
as the municipal council itself could, if it decided to so enact.[19] After the Sangguniang Bayan of Morong
and the other municipalities concerned (Olongapo, Subic and Hermosa) gave their resolutions of
concurrence, and by reason of which the SSEZ had been created, whose metes and bounds had already
been delineated by Proclamation No. 532 issued on February 1, 1995 in accordance with Section 12 of
R.A. No. 7227, the power to withdraw such concurrence and/or to substitute therefor a conditional
concurrence is no longer within the authority and competence of the Municipal Council of Morong to
legislate. Furthermore, petitioner adds, the specific conditionalities included in the questioned municipal
resolution are beyond the powers of the Council to impose. Hence, such withdrawal can no longer be
enacted or conditionalities imposed by initiative. In other words, petitioner insists, the creation of SSEZ is
now a fait accompli for the benefit of the entire nation. Thus, Morong cannot unilaterally withdraw its
concurrence or impose new conditions for such concurrence as this would effectively render nugatory the
creation by (national) law of the SSEZ and would deprive the entire nation of the benefits to be derived
therefrom. Once created, SSEZ has ceased to be a local concern. It has become a national project.
On the other hand, private respondent Garcia counters that such argument is premature and
conjectural because at this point, the resolution is just a proposal. If the people should reject it during the
referendum, then there is nothing to declare as illegal.
Deliberating on this issue, the Court agrees with private respondent Garcia that indeed, the
municipal resolution is still in the proposal stage. It is not yet an approved law. Should the people reject it,
then there would be nothing to contest and to adjudicate. It is only when the people have voted for it and it
has become an approved ordinance or resolution that rights and obligations can be enforced or
implemented thereunder. At this point, it is merely a proposal and the writ of prohibition cannot issue upon
a mere conjecture or possibility. Constitutionally speaking, courts may decide only actual controversies,
not hypothetical questions or cases.[20]
We also note that the Initiative and Referendum Act itself provides [21] that "(n)othing in this Act shall
prevent or preclude the proper courts from declaring null and void any proposition approved pursuant to
this Act x x x."
So too, the Supreme Court is basically a review court. [22] It passes upon errors of law (and
sometimes of fact, as in the case of mandatory appeals of capital offenses) of lower courts as well as
determines whether there had been grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any "branch or instrumentality" of government. In the present case, it is quite clear that the
Court has authority to review Comelec Resolution No. 2848 to determine the commission of grave abuse
of discretion. However, it does not have the same authority in regard to the proposed initiative since it has
not been promulgated or approved, or passed upon by any "branch or instrumentality" or lower court, for
that matter. The Commission on Elections itself has made no reviewable pronouncements about the
issues brought by the pleadings. The Comelec simply included verbatim the proposal in its questioned
Resolution No. 2848. Hence, there is really no decision or action made by a branch, instrumentality or
court which this Court could take cognizance of and acquire jurisdiction over, in the exercise of its review
powers.
Having said that, we are in no wise suggesting that the Comelec itself has no power to pass
upon proposed resolutions in an initiative. Quite the contrary, we are ruling that these matters are in fact
within the initiatory jurisdiction of the Commission -- to which then the herein basic questions ought to
have been addressed, and by which the same should have been decided in the first instance. In other
words, while regular courts may take jurisdiction over "approved propositions" per said Sec. 18 of R.A.
6735, the Comelec in the exercise of its quasi-judicial and administrative powers may adjudicate and pass
upon such proposals insofar as their form and language are concerned, as discussed earlier; and it may
be added, even as to content, where the proposals or parts thereof are patently and clearly outside the
"capacity of the local legislative body to enact." [23] Accordingly, the question of whether the subject of this
initiative is within the capacity of the Municipal Council of Morong to enact may be ruled upon by the
Comelec upon remand and after hearing the parties thereon.
While on the subject of capacity of the local lawmaking body, it would be fruitful for the parties and
the Comelec to plead and adjudicate, respectively, the question of whether Grande Island and the "virgin
forests" mentioned in the proposed initiative belong to the national government and thus cannot be
segregated from the Zone and "returned to Bataan" by the simple expedient of passing a municipal
resolution. We note that Sec. 13 (e) of R.A. 7227 speaks of the full subscription and payment of the P20
billion authorized capital stock of the Subic Authority by the Republic, with, aside from cash and other
assets, the "... lands, embraced, covered and defined in Section 12 hereof, ..." which includes said island
and forests. The ownership of said lands is a question of fact that may be taken up in the proper forum --
the Commission on Elections.
Another question which the parties may wish to submit to the Comelec upon remand of the initiative
is whether the proposal, assuming it is within the capacity of the Municipal Council to enact, may be
divided into several parts for purposes of voting. Item "I" is a proposal to recall, nullify and render without
effect (bawiin, nulipikahin at pawalangbisa) Municipal Resolution No. 10, Series of 1993. On the other
hand, Item "II" proposes to change or replace (palitan) said resolution with another municipal resolution of
concurrence provided certain conditions enumerated thereunder would be granted, obeyed and
implemented (ipagkakaloob, ipatutupad at isasagawa) for the benefit and interest of Morong and
Bataan.A voter may favor Item I -- i.e., he may want a total dismemberment of Morong from the Authority
-- but may not agree with any of the conditions set forth in Item II. Should the proposal then be divided
and be voted upon separately and independently?
All told, we shall not pass upon the third issue of ultra vires on the ground of prematurity.

Epilogue

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

[1]
Rollo, pp. 38-46; signed by Chairman Bernardo P. Pardo and Comms. Regalado E. Maambong,
Remedios A. Salazar-Fernando, Manolo B. Gorospe, Julio F. Desamito, Teresita Dy-Liaco Flores and
Japal M. Guiani.
[2]
Sec. 13 (a), RA 7227.
[3]
Sec. 13 (e) (1), RA 7227.
[4]
Republic Act No. 7160.
[5]
Enrique T. Garcia, et al. vs. Commission on Elections, et al., 237 SCRA 279, September 30, 1994.
[6]
p. 10; Rollo, p. 12.
[7]
Reply, p. 3.
[8]
See footnote no. 5, supra.
[9]
Supra, at pp. 290-291.
[10]
Rollo, G.R. No. 111230, p. 82 (Solicitor General's Comment). See also petitioner Garcia's
Memorandum, rollo, pp. 134-147.
[11]
For easy reference, quoted verbatim hereunder, minus the preamble or "whereas" clauses, is the text
of Resolution 2848:
NOW, THEREFORE, the Commission on Elections, by virtue of the powers vested upon it by the
Constitution, Republic Act No. 6735, Republic Act No. 7160, the Omnibus Election Code and other related
election laws, RESOLVED AS IT HEREBY RESOLVES to promulgate the following rules and guidelines
to govern the conduct of the referendum proposing to annul or repeal Kapasyahan Blg. 10, Serye 1993, of
the Sangguniang Bayan of Morong, Bataan.
SECTION 1. Supervision and control. - The Commission on Elections shall have direct control and
supervision over the conduct of the referendum.
SECTION 2. Expenses forms and paraphernalia. - The expenses in the holding of the referendum, which
shall include the printing of official ballots, referendum returns, and other forms and the procurement of
supplies and paraphernalia, as well as the per diems of the members of the Referendum committees and
overtime compensation of the members of the Board of Canvassers, shall be chargeable against the
available funds of the Commission. In case of deficiency, the Executive Director and the Director of
the Finance Services Department are directed to submit the budget thereon and to request the
Department of Budget and Management to immediately release the necessary amount.
SECTION 3. Date of referendum and voting hours. - The referendum shall be held on July 27, 1996. The
voting shall start at seven o'clock in the morning and shall end at three o'clock in the afternoon.
SECTION 4. Area of coverage. - The referendum shall be held in the entire municipality of Morong,
Bataan.
SECTION 5. Who may vote. - The qualified voters of Morong, Bataan, duly registered as such in the May
8, 1995 Congressional and Local Elections, and those who are registered in the special registration of
voters scheduled on June 29, 1996, shall be entitled to vote in the referendum. For this purpose, the
Election Officer, said municipality, shall prepare the lists of voters for the entire municipality.
SECTION 6. Precincts and polling places. - The same precincts and polling places that functioned in the
municipality of Morong, Bataan during the May 8, 1995 Congressional and Local Elections shall function
and be used in the referendum, subject to such changes under the law as the Commission may find
necessary.
SECTION 7. Official ballots. - The official ballots to be used in the referendum shall bear the heading:
"OFFICIAL BALLOT"; "REFERENDUM"; "JULY 27, 1996"; "MORONG, BATAAN"; and underneath, the
following instructions: "Fill out this ballot secretly inside the voting booth. Do not put any distinctive mark
on any part of this ballot." The following question shall be provided in the official ballots:
"DO YOU APPROVE OFTHE PROPOSITIONS CONTAINED IN THE SIGNED PETITION TO ANNUL OR
REPEAL PAMBAYANG KAPASYAHAN BLG. 10, SERYE 1993, OF THE SANGGUNIANG BAYAN OF
MORONG, BATAAN, WHICH READ AS FOLLOWS:
'I. Bawiin, nulipikahin at pawalang bisa and Pambayang Kapasyahan Blg. 10, Serye 1993 ng
Sangguniang Bayan para sa pag-anib ng Morong sa SSEZ na walang kondisyon.
II. Palitan ito ng isang Pambayang Kapasyahan na aanib lamang ang Morong sa SSEZ kung ang mga
sumusunod na kondisyones ay ipagkakaloob, ipatutupad at isasagawa para sa kapakanan at interes ng
Morong at Bataan:
(A) Ibalik sa Bataan ang "Virgin Forests" -- isang bundok na hindi nagagalaw at punong-puno ng
malalaking punong-kahoy at iba't-ibang halaman.
(B) Ihiwalay ang Grande Island sa SSEZ at ibalik ito sa Bataan.
(K) Isama ang mga lupain ng Bataan na nakapaloob sa SBMA sa pagkukuenta ng salaping ipinagkaloob
ng pamahalaang national o "Internal Revenue Allotment" (IRA) sa Morong, Hermosa at sa lalawigan.
(D) Payagang magtatag rin ng sariling "special economic zones" and bawat bayan ng Morong, Hermosa
at Dinalupihan.
(E) Ibase sa laki ng kanya-kanyang lupa ang pamamahagi ng kikitain ng SBMA.
(G) Ibase rin ang alokasyon ng pagbibigay ng trabaho sa laki ng nasabing mga lupa.
(H) Pabayaang bukas ang pinto ng SBMA na nasa Morong ng 24 na oras at bukod dito sa magbukas pa
ng pinto sa hangganan naman ng Morong at Hermosa upang magkaroon ng pagkakataong umunlad rin
ang mga nasabing bayan, pati na rin ng iba pang bayan ng Bataan.
(I) Tapusin ang pagkokontre-to ng mga daang Morong-Tala-Orani at Morong-Tasig-Dinalupihan para sa
kabutihan ng mga taga-Bataan at tuloy makatulong sa pangangalaga ng mga kabundukan.
(J) Magkaroon ng sapat na representation sa pamunuan ng SBMA ang Morong, Hermosa at Bataan.'?"
SECTION 8. Referendum Committee. - The voting and counting of votes shall be conducted in each
polling place by a Referendum Committee composed of a Chairman, a Poll Clerk, and a Third Member
who shall all be public school teachers, to be appointed by the Commission through the Election Officer of
Morong, Bataan. Each member of the Referendum Committee shall be entitled to a per diem of Two
Hundred Pesos (P200.00) for services rendered on the day of the referendum.
SECTION 9. Referendum returns and distribution of copies thereof. - The referendum returns shall be
prepared by the Referendum Committee in three (3) copies, to be distributed as follows:
(1) The first copy shall be delivered to the Referendum Board of Canvassers;
(2) The second copy shall be forwarded to the Election Records and Statistics Department of the
Commission; and
(3) The third copy shall be deposited inside ballot box.
SECTION 10. Referendum Board of Canvassers. - There is hereby created a Referendum Board of
Canvassers which shall be composed of the Provincial Election Supervisor of Bataan as Chairman; and
as Members thereof, the Municipal Treasurer and the most senior District School Supervisor or, in the
latter's absence, a principal of the school district or the elementary school.
At least five (5) days before the day of the referendum, the Chairman shall issue a written notice to the
Members of the Board that it shall convene at four o'clock in the afternoon of Referendum Day to canvass
the referendum returns. Notice of said meeting shall be posted in conspicuous places in the Municipal
Hall and other public places within the municipality.
The Board shall meet at the session hall of the Sangguniang Bayan of Morong, Bataan not later than four
o'clock in the afternoon of Referendum Day, and shall immediately canvass the referendum returns and
shall not adjourn until the canvass is completed.
SECTION 11. Preparation and distribution of copies of the referendum results. - As soon as all the returns
have been canvassed, the Board shall prepare and accomplish the Certificate of Canvass of Votes and
Proclamation in five (5) copies, supported by a Statement of Votes per Precinct, and, on the basis thereof,
shall certify and proclaim the final results.
Said copies shall be distributed as follows:
(1) The original shall, within three (3) days from proclamation, be sent to the Election Records and
Statistics Department of the Commission;
(2) The second copy shall be filed in the Office of the Provincial Election Supervisor of Bataan;
(3) The third copy shall be submitted to the Provincial Governor of Bataan;
(4) The fourth copy shall be kept in the Office of the Election Officer of Morong, Bataan;
(5) The fifth copy shall be submitted to the Municipal Mayor of Morong, Bataan.
SECTION 12. Information Campaign. - There shall be a period of information campaign which shall
commence immediately, but shall not include the day before and the day of the referendum. During this
period, The Election Officer of Morong, Bataan shall convoke barangay assemblies or "pulong-pulongs"
within the municipality. Civic, professional, religious, business, youth and any other similar organizations
may also hold public rallies or meetings to enlighten the residents therein of the issues involved.
Constructive discussions and debates shall be encouraged and the voters assured of the freedom to
voice their opinion regarding the issue.
SECTION 13. Applicability of election laws. - The pertinent provisions of Omnibus Election Code (Batas
Pambansa Blg. 881), the Electoral Reforms Law of 1987 (Republic Act No. 6646) and other related
election laws which are not inconsistent with this Resolution shall apply to this referendum.
SECTION 14. Implementation. - The Executive Director, assisted by the Deputy Executive Director for
Operations and the Directors of the Finance Services Department, Administrative Services Department
and Election and Barangay Affairs Department, shall implement this Resolution to ensure the holding of a
free, orderly, honest, peaceful and credible referendum.
SECTION 15. Effectivity. - This Resolution shall take effect on the seventh day after its publication in two
(2) daily newspapers of general circulation in the Philippines.
SECTION 16. Dissemination. - The Education and Information Department shall cause the immediate
publication of this Resolution in two (2) daily newspapers of general circulation in the Philippines and give
this Resolution the widest publicity and dissemination possible. The Executive Director shall furnish the
Secretary of the Department of Budget and Management; the Secretary of the Department of Education,
Culture and Sports; the Provincial Governor of Bataan; the Provincial Election Supervisor of Bataan; and
the Municipal Mayor, the Municipal Treasurer, the District School Supervisor, and the Election Officer, all
of Morong, Bataan, each a copy of this Resolution the widest publicity possible within the municipality.
SO ORDERED.
[12]
Sec. 3, Republic Act 6735; approved on August 4, 1989.
[13]
Philippine Political Law, 1991 edition, p. 169.
[14]
Black's Law Dictionary, 1979 edition, pp. 705 and 1152. See also Words and Phrases, Vol. 36A, 179 et
seq. and Vol. 21-A, pp. 56 et seq.; 42 Am. Jur 647 et seq.; Bouvier's Law Dictionary, Vol. I, 3rd edition,
1569.
[15]
Sec. 17, RA 6735.
[16]
Sec. 10 (a), RA 6735.
[17]
Sec. 13 (d), RA 6735.
[18]
Rollo, pp. 10, 14.
[19]
"Thus, local initiatives cannot propose the enactment of the death penalty for any crime because the
imposition of (such) penalty is not within the competence of the local sanggunian to enact." --
Pimentel, The Local Government Code of 1991, 1993 edition, p. 237.
[20]
"Judicial power has been defined in jurisprudence as 'the right to determine actual controversies
arising between adverse litigants, duly instituted in courts of proper jurisdiction' (citing Muskrats v. United
States, 219 U.S. 346 [1911). It is 'the authority to settle controversies or disputes involving rights that are
enforceable and demandable before the courts of justice or the redress of wrongs for violation of such
rights' (citing Lopez v. Roxas, 17 SCRA 756, 761 [1966]). Thus, there can be no occasion for the exercise
of judicial power unless real parties come to court for the settlement of an actual controversy and unless
the controversy is such that can be settled in a manner that binds the parties by the application of existing
laws.
"The 1987 Constitution now adds: 'Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.' x x x"
-Fr. Joaquin G. Bernas, S.J., The Constitution of the Republic of the Philippines - A Commentary,
Vol. II, 1988 edition, p. 255.
[21]
Sec. 18, RA 6735.
[22]
Andres R. Narvasa C.J., Handbook on the Courts and the Criminal Justice System, 1996 Ed., p. 5.
[23]
Cf. Sec. 12, RA 6735.
[24]
42 Am. Jr. 2d, p. 653.
[25]
Bernas, op. cit., Vol. II, at p. 68.
[26]
R.A. 7160, See Book I, Title Nine, Chapter 2.
[27]
Garcia vs, Commission on Elections, et al., supra, at p. 288.

EN BANC

[G.R. No. 140560. May 4, 2000]

JOVITO O. CLAUDIO, petitioner, vs. COMMISSION ON ELECTIONS, DEPARTMENT OF BUDGET

AND MANAGEMENT, COMMISSION ON AUDIT and RICHARD ADVINCULA, respondents.

[G.R. No. 140714. May 4, 2000]

PREPARATORY RECALL ASSEMBLY OF PASAY CITY, herein represented by its Chairman,

RICHARD ADVINCULA, petitioner, vs. THE COMMISSION ON ELECTIONS, DEPARTMENT OF
BUDGET AND MANAGEMENT, COMMISSION ON AUDIT and HON. JOVITO O.
CLAUDIO, respondents.

DECISION

MENDOZA, J.: Calrky

These are petitions arising from the proceedings initiated by the Preparatory Recall Assembly of Pasay
City (PRA) in the Commission on Elections in E.M. No. 99-005 entitled IN THE MATTER OF THE
PREPARATORY RECALL ASSEMBLY RESOLUTION NO. 01, S-1999 ADOPTED ON 29 MAY 1999 FOR
THE RECALL OF MAYOR JOVITO CLAUDIO OF PASAY CITY. G.R. No. 140560 is a petition
for certiorariand prohibition, seeking the nullification of the resolution,[1] dated October 18, 1999, of the
COMELEC giving due course to the petition for the recall of petitioner Jovito O. Claudio as mayor of
Pasay City. On the other hand, G.R. No. 140714 is a petition for mandamus filed by the PRA, represented
by its Chair, Richard Advincula, to compel the COMELEC to set the date for the holding of recall elections
in Pasay City pursuant to the aforecited resolution of the COMELEC.

The facts are as follows:

Jovito O. Claudio, petitioner in G.R. No. 140560, was the duly elected mayor of Pasay City in the May 11,
1998 elections. He assumed office on July 1, 1998.

Sometime during the second week of May 1999, the chairs of several barangays in Pasay City gathered
to discuss the possibility of filing a petition for recall against Mayor Claudio for loss of confidence. On May
19, 1999, at the residence of barangay chair Benjamin Lim, Jr. in Barangay 11, Zone 4, Pasay City,
several barangay chairs formed an ad hoc committee for the purpose of convening the PRA. Richard
Advincula, private respondent in G.R. No. 140560 and petitioner in G.R. No. 140714, was designated
chair.

On May 29, 1999, 1,073 members of the PRA composed of barangay chairs, kagawads, and
sangguniang kabataan chairs of Pasay City, adopted Resolution No. 01, S-1999, entitled RESOLUTION
TO INITIATE THE RECALL OF JOVITO O. CLAUDIO AS MAYOR OF PASAY CITY FOR LOSS OF
CONFIDENCE. In a letter dated June 29, 1999, Advincula, as chair of the PRA, invited the Mayor, Vice-
Mayor, Station Commander, and thirteen (13) Councilors of Pasay City to witness the formal submission
to the Office of the Election Officer on July 2, 1999 of the petition for recall. Mesm

As scheduled, the petition for recall was filed on July 2, 1999, accompanied by an affidavit of service of
the petition on the Office of the City Mayor. Pursuant to the rules of the COMELEC, copies of the petition
were posted on the bulletin boards of the local COMELEC office, the City Hall, the Police Department, the
public market at Libertad St. and Taft Avenue, and at the entrance of the Sta. Clara Church on P. Burgos
St., all in Pasay City. Subsequently, a verification of the authenticity of the signatures on the resolution
was conducted by Ligaya Salayon, the election officer for Pasay City designated by the COMELEC.

Oppositions to the petition were filed by petitioner Jovito O. Claudio, Rev. Ronald Langub, and Roberto L.
Angeles, alleging procedural and substantive defects in the petition, to wit: (1) the signatures affixed to
the resolution were actually meant to show attendance at the PRA meeting; (2) most of the signatories
were only representatives of the parties concerned who were sent there merely to observe the
proceedings; (3) the convening of the PRA took place within the one-year prohibited period; (4) the
election case,[2] filed by Wenceslao Trinidad in this Court, seeking the annulment of the proclamation of
petitioner Claudio as mayor of Pasay City, should first be decided before recall proceedings against
petitioner could be filed; and (5) the recall resolution failed to obtain the majority of all the members of the
PRA, considering that 10 were actually double entries, 14 were not duly accredited members of the
barangays, 40 sangguniang kabataan officials had withdrawn their support, and 60 barangay chairs
executed affidavits of retraction.Slx

In its resolution of October 18, 1999, the COMELEC granted the petition for recall and dismissed the
oppositions against it. On the issue of whether the PRA was constituted by a majority of its members, the
COMELEC held that the 1,073 members who attended the May 29, 1999 meeting were more than
necessary to constitute the PRA, considering that its records showed the total membership of the PRA
was 1,790, while the statistics of the Department of Interior and Local Government (DILG) showed that
the total membership of the PRA was 1,876. In either case, since only a majority is required to constitute
the PRA, clearly, a majority had been obtained in support of the recall resolution. Based on the verification
made by election officer Ligaya Salayon, the COMELEC found the signatures of 958 members of the PRA
sufficient. On whether the pendency of the case questioning the proclamation of petitioner was a
prejudicial question which must first be decided before any recall election could be held, the COMELEC
ruled that it was not and that petitioner was merely using the pendency of the case to delay the recall
proceedings. Finally, on whether the petition for recall violated the bar on recall within one year from the
elective official's assumption of office, the COMELEC ruled in the negative, holding that recall is a process
which starts with the filing of the petition for recall. Since the petition was filed on July 2, 1999, exactly one
year and a day after petitioner Claudio's assumption of office, it was held that the petition was filed on
time.

Hence, these petitions. Oral arguments were held in these cases in Baguio City on April 4, 2000, after
which the Court, by the vote of 8 to 6 of its members, [3] resolved to dismiss the petition in G.R. No.
140560 for lack of showing that the COMELEC committed a grave abuse of discretion. On the other hand,
the Court unanimously dismissed the petition in G.R. No. 140714 on the ground that the issue raised
therein had become moot and academic.

We now proceed to explain the grounds for our resolution.

In its Resolution No. 3121, dated March 9, 2000, the COMELEC set the date of the recall elections in
Pasay City on April 15, 2000. Consequently, the petition for mandamus in G.R. No. 140714 to compel the
COMELEC to fix a date for the recall elections in Pasay City is no longer tenable. We are thus left with
only petitioner Claudio's action for certiorari and prohibition.

The bone of contention in this case is 74 of the Local Government Code (LCG) [4] which provides: Scslx
 Limitations on Recall. - (a) Any elective local official may be the subject of a recall
election only once during his term of office for loss of confidence.

(b) No recall shall take place within one (1) year from the date of the official's assumption
to office or one (1) year immediately preceding a regular local election.

As defined at the hearing of these cases on April 4, 2000, the issues are:

WHETHER, under Section 74 of the Local Government Code of 1991 (R.A. No. 7160) ...

A. The word "recall" in paragraph (b) covers a process which includes the convening of
the Preparatory Recall Assembly and its approval of the recall resolution.

B. The term "regular local election" in the last clause of paragraph (b) includes the
election period for that regular election or simply the date of such election.

(1)

On Whether the Word "Recall" in Paragraph (b) of 74 of the Local

Government Code Includes the Convening of the Preparatory Recall
Assembly and the Filing by it of a Recall Resolution

Petitioner contends that the term "recall" in 74(b) refers to a process, in contrast to the term "recall
election" found in 74(a), which obviously refers to an election. He claims that "when several barangay
chairmen met and convened on May 19, 1999 and unanimously resolved to initiate the recall, followed by
the taking of votes by the PRA on May 29, 1999 for the purpose of adopting a resolution to initiate the
recall of Jovito Claudio as Mayor of Pasay City for loss of confidence, the process of recall began" and,
since May 29, 1999 was less than a year after he had assumed office, the PRA was illegally convened
and all proceedings held thereafter, including the filing of the recall petition on July 2, 1999, were null and
void. Slxsc

The COMELEC, on the other hand, maintains that the process of recall starts with the filing of the petition
for recall and ends with the conduct of the recall election, and that, since the petition for recall in this case
was filed on July 2, 1999, exactly one year and a day after petitioner's assumption of office, the recall was
validly initiated outside the one-year prohibited period.

Both petitioner Claudio and the COMELEC thus agree that the term "recall" as used in 74 refers to a
process. They disagree only as to when the process starts for purposes of the one-year limitation in
paragraph (b) of 74.

We can agree that recall is a process which begins with the convening of the preparatory, recall assembly
or the gathering of the signatures at least 25% of the registered voters of a local government unit, and
then proceeds to the filing of a recall resolution or petition with the COMELEC, the verification of such
resolution or petition, the fixing of the date of the recall election, and the holding of the election on the
scheduled date.[5] However, as used in paragraph (b) of 74, "recall" refers to the election itself by means
of which voters decide whether they should retain their local official or elect his replacement. Several
reasons can be cited in support of this conclusion.

First, 74 deals with restrictions on the power of recall. It is in fact entitled "Limitations on Recall." On the
other hand, 69 provides that "the power of recall ...shall be exercised by the registered voters of a local
government unit to which the local elective official belongs." Since the power vested on the electorate is
not the power to initiate recall proceedings [6] but the power to elect an official into office, the limitations in
74 cannot be deemed to apply to the entire recall proceedings. In other words, the term "recall" in
paragraph (b) refers only to the recall election, excluding the convening of the PRA and the filing of a
petition for recall with the COMELEC, or the gathering of the signatures of at least 25 % of the voters for a
petition for recall.

Thus, there may be several PRAs held (as in the case of Bataan Province in 1993) or petitions for recall
filed with the COMELEC - there is no legal limit on the number of times such processes may be resorted
to. These are merely preliminary steps for the purpose of initiating a recall. The limitations in 74 apply only
to the exercise of the power of recall which is vested in the registered voters. It is this - and not merely,
the preliminary steps required to be taken to initiate a recall - which paragraph (b) of 74 seeks to limit by
providing that no recall shall take place within one year from the date of assumption of office of an
elective local official.

Indeed, this is the thrust of the ruling in Garcia v. COMELEC[7] where two objections were raised against
the legality of PRAs: (1) that even the power to initiate recall proceedings is the sole prerogative of the
electorate which cannot be delegated to PRAs, and (2) that by vesting this power in a PRA, the law in
effect unconstitutionally authorizes it to shorten the term of office of incumbent elective local officials. Both
objections were dismissed on the ground that the holding of a PRA is not the recall itself. With respect to
the first objection, it was held that it is the power to recall and not the power to initiate recall that the
Constitution gave to the people. With respect to the second objection, it was held that a recall resolution
"merely sets the stage for the official concerned before the tribunal of the people so he can justify why he
should be allowed to continue in office. [But until] the people render their sovereign judgment, the official
concerned remains in office . . . ." Sdaadsc

If these preliminary proceedings do not produce a decision by the electorate on whether the local official
concerned continues to enjoy the confidence of the people, then, the prohibition in paragraph (b) against
the holding of a recall, except one year after the official's assumption of office, cannot apply to such
proceedings.

The second reason why the term "recall" in paragraph (b) refers to recall election is to be found in the
purpose of the limitation itself. There are two limitations in paragraph (b) on the holding of recalls: (1) that
no recall shall take place within one year from the date of assumption of office of the official concerned,
and (2) that no recall shall take place within one year immediately preceding a regular local election.

The purpose of the first limitation is to provide a reasonable basis for judging the performance of an
elective local official. In the Bower case[8] cited by this Court in Angobung v. COMELEC,[9] it was held that
"The only logical reason which we can ascribe for requiring the electors to wait one year
before petitioning for a recall election is to prevent premature action on their part in voting to remove a
newly elected official before having had sufficient time to evaluate the soundness of his policies and
decisions." The one-year limitation was reckoned as of the filing of a petition for recall because the
Municipal Code involved in that case expressly provided that "no removal petition shall be filed against
any officer or until he has actually held office for at least twelve months." But however the period of
prohibition is determined, the principle announced is that the purpose of the limitation is to provide a
reasonable basis for evaluating the performance of an elective local official. Hence, in this case, as long
as the election is held outside the one-year period, the preliminary proceedings to initiate a recall can be
held even before the end of the first year in office of a local official.

It cannot be argued that to allow recall proceedings to be initiated before the official concerned has been
in office for one-year would be to allow him to be judged without sufficient basis. As already stated, it is
not the holding of PRA nor the adoption of recall resolutions that produces a judgment on the
performance of the official concerned; it is the vote of the electorate in the Election that does. Therefore,
as long as the recall election is not held before the official concerned has completed one year in office, he
will not be judged on his performance prematurely. Rtcspped
Third, to construe the term "recall" in paragraph (b) as including the convening of the PRA for the purpose
of discussing the performance in office of elective local officials would be to unduly restrict the
constitutional right of speech and of assembly of its members. The people cannot just be asked on the
day of the election to decide on the performance of their officials. The crystallization and formation of an
informed public opinion takes time. To hold, therefore, that the first limitation in paragraph (b) includes the
holding of assemblies for the exchange of ideas and opinions among citizens is to unduly curtail one of
the most cherished rights in a free society. Indeed, it is wrong to assume that such assemblies will always
eventuate in a recall election. To the contrary, they may result in the expression of confidence in the
incumbent.

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

In any event, it is argued that the judgments of PRAs are not "as politically unassailable as recalls
initiated directly by the people." Justice Puno cites the "embarrassing repudiation by the people of
[Kaloocan City's] Preparatory Recall Assembly" when, instead of ousting Mayor Rey Malonzo, they
reelected him.

Two points may be made against this argument.

One is that it is no disparagement of the PRA that in the ensuing election the local official whose recall is
sought is actually reelected. Laws converting municipalities into cities and providing for the holding of
plebiscites during which the question of cityhood is submitted to the people for their approval are not
always approved by the people. Yet, no one can say that Congress is not a good judge of the will of the
voters in the locality. In the case of recall elections in Kaloocan City, had it been shown that the PRA was
resorted to only because those behind the move to oust the incumbent mayor failed to obtain the
signatures of 25% of the voters of that city to a petition for his recall, there may be some plausibility for
the claim that PRAs are not as good a gauge of the people's will as are the 25 % of the voters.

Indeed, recalls initiated directly by 25% of the registered voters of a local government unit cannot be more
representative of the sentiments of the people than those initiated by PRAs whose members represent
the entire electorate in the local government unit. Voters who directly initiate recalls are just as vulnerable
to political maneuverings or manipulations as are those composing PRAs. Korte

The other point regarding Justice Punos claim is that the question here is not whether recalls initiated by
25% of the voters are better. The issue is whether the one-year period of limitation in paragraph (b)
includes the convening of the PRA. Given that question, will convening the PRA outside this period make
it any more representative of the people, as the petition filed by 25 % of the registered voters is claimed to
be?

To sum up, the term "recall" in paragraph (b) refers to the recall election and not to the preliminary
proceedings to initiate recall -

1. Because 74 speaks of limitations on "recall" which, according to 69, is a power which shall be
exercised by the registered voters of a local government unit. Since the voters do not exercise such right
except in an election, it is clear that the initiation of recall proceedings is not prohibited within the one-year
period provided in paragraph (b);

2. Because the purpose of the first limitation in paragraph (b) is to provide voters a sufficient basis for
judging an elective local official, and final judging is not done until the day of the election; and

3. Because to construe the limitation in paragraph (b) as including the initiation of recall proceedings
would unduly curtail freedom of speech and of assembly guaranteed in the Constitution.

As the recall election in Pasay City is set on April 15, 2000, more than one year after petitioner assumed
office as mayor of that city, we hold that there is no bar to its holding on that date.

(2)

On Whether the Phrase "Regular Local Election" in the Same

Paragraph (b) of 74 of the Local Government Code includes the
Election Period for that Regular Election or Simply the Date of Such
Election

Petitioner contends, however, that the date set by the COMELEC for the recall election is within the
second period of prohibition in paragraph (b). He argues that the phrase "regular local elections" in
paragraph (b) does not only mean "the day of the regular local election" which, for the year 2001 is May
14, but the election period as well, which is normally at least forty five (45) days immediately before the
day of the election. Hence, he contends that beginning March 30, 2000, no recall election may be
held. Sclaw

This contention is untenable.

The law is unambiguous in providing that "[n]o recall shall take place within . . . one (1) year immediately
preceding a regular local election." Had Congress intended this limitation to refer to the campaign period,
which period is defined in the Omnibus Election Code, [10] it could have expressly said so.

Moreover, petitioner's interpretation would severely limit the period during which a recall election may be
held. Actually, because no recall election may be held until one year after the assumption of office of an
elective local official, presumably on June 30 following his election, the free period is only the period from
July 1 of the following year to about the middle of May of the succeeding year. This is a period of only
nine months and 15 days, more or less. To construe the second limitation in paragraph (b) as including
the campaign period would reduce this period to eight months. Such an interpretation must be rejected,
because it would devitalize the right of recall which is designed to make local government units" more
responsive and accountable." Sclex

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

To recapitulate the discussion in parts 1 and 2, 74 imposes limitations on the holding of recall elections.
First, paragraph (a) prohibits the holding of such election more than once during the term of office of an
elective local official. Second, paragraph (b) prohibits the holding of such election within one year from the
date the official assumed office. And third, paragraph (b) prohibits the holding of a recall election within
one year immediately preceding a regular local election. As succinctly stated in Paras v. COMELEC,
[12]
"[p]aragraph (b) construed together with paragraph (a) merely designates the period when such
elective local official may be subject to recall election, that is, during the second year of office."

(3)

On Whether the Recall RESOLUTION was Signed by a Majority of

the PRA and Duly Verified

Petitioner alleges other grounds for seeking the annulment of the resolution of the COMELEC ordering
the holding of a recall election. He contends that a majority of the signatures of the members of the PRA
was not obtained because 74 members did not really sign the recall resolution. According to petitioner, the
74merely signed their names on pages 94-104 of the resolution to signify their attendance and not their
concurrence. Petitioner claims that this is shown by the word "Attendance" written by hand at the top of
the page on which the signatures of the 74 begin.

This contention has no basis. To be sure, this claim is being raised for the first time in this case. It was not
raised before the COMELEC, in which the claim made by petitioner was that some of the names in the
petition were double entries, that some members had withdrawn their support for the petition, and that
Wenceslao Trinidad's pending election protest was a prejudicial question which must first be resolved
before the petition for recall could be given due course. The order of the COMELEC embodying the
stipulations of the parties and defining the issues to be resolved does not include the issue now being
raised by petitioner. Xlaw

Although the word "Attendance" appears at the top of the page, it is apparent that it was written by
mistake because it was crossed out by two parallel lines drawn across it. Apparently, it was mistaken for
the attendance sheet which is a separate document. It is absurd to believe that the 74 members of the
PRA who signed the recall resolution signified their attendance at the meeting twice. It is more probable to
believe that they signed pages 94-104 to signify their concurrence in the recall resolution of which the
pages in question are part.

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

WHEREFORE, G.R. No. 140560 is DISMISSED for lack of merit, while the petition in G.R. No. 140714 is
DISMISSED for having been rendered moot and academic.

SO ORDERED. MENDOZA, J

Davide, Jr., C.J., Bellosillo, Quisumbing, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.

Melo, and Purisima, JJ., on leave.

Puno, J., see dissenting opinion.

Vitug, J., reiterate his separate opinion in the resolution of 5 Apr. 2000.

Kapunan, J., see attached separate and dissenting opinion.

Panganiban, J., joined the dissents of JJ. Puno and Kapunan. Xsc

Pardo, and De Leon, Jr., JJ., join the dissent of J. Puno.

[1]
Per Commissioner Manolo B. Gorospe, and concurred in by Commissioner Harriet O. Demetriou. Commissioner
Julio F. Desamito was on leave.
[2]
The case has since been decided by being dismissed. See Trinidad v. COMELEC, G.R. No. 134657, Dec. 15,
1999.
[3]
Davide, Jr., C.J., and Bellosillo, Vitug, Mendoza, Quisumbing, Buena, Reyes, and Ynares-Santiago, JJ. Voted to
dismiss the petition. Puno, Kapunan, Panganiban, Purisima, Pardo, and De Leon, Jr., JJ., dissented and voted to
grant the petitions. Melo, J., who was in Manila for the funeral of his brother, took no part.
[4]
R.A. No. 7160.

[5]
Thus, the Local Government Code provides:

SEC. 70. Initiation of the Recall Process. (a) Recall may be initiated by a preparatory recall assembly or by the
registered voters of the local government unit to which the local elective official subject to such recall belongs.

(b) There shall be a preparatory recall assembly in every province, city, district, and municipality which shall be
composed of the following: Slxmis

(1)......provincial level. All mayors, vice mayors, and sangguniang members of the municipalities and component
cities;

(2)......City level. All punong barangay and sangguniang barangay members in the city;

(3)......Legislative District level. In cases where the sangguniang panlalawigan members are elected by district, all
elective municipal officials in the district; and in cases where sangguniang panlungsod members are elected by
district, all elective barangay officials in the district; and

(4)......Municipal level. All punong barangay and sangguniang barangay members in the municipality.

(c) A majority of all the preparatory recall assembly members may convene in session in a public place and initiate a
recall proceeding against any elective official in the local government unit concerned. Recall of provincial, city, or
municipal officials shall be validly initiated through a resolution adopted by a majority of all the members of the
preparatory recall assembly concerned during its session called for the purpose.

(d) Recall of any elective provincial, city, municipal, or barangay official may also be validly initiated upon petition
of at least twenty-five percent (25%) of the total number of registered voters in the local government unit concerned
during the election in which the local official sought to be recalled was elected.

(1)......A written petition for recall duly signed before the election register or his representative and in the presence
of a representative, of the petitioner and a representative of the official sought to be recalled, and in a public place in
the province, city, municipality, or barangay, as the case may be, shall be filed with the Comelec through its office in
the local government unit concerned. The Comelec or its duly authorized representative shall cause the publication
of the petition in a public and conspicuous place for a period of not less than ten (10) days nor more than twenty (20)
days, for the purpose of verifying the authenticity and genuineness of the petition and the required percentage of
voters.

(2)......Upon the lapse of the aforesaid period, the Comelec or its duly authorized representative shall announce the
acceptance of candidates to the position and thereafter prepare the list of candidates which shall include the name of
the official sought to be recalled. Missdaa
SEC. 71. Election on Recall. Upon the filing of a valid resolution or petition for recall with the appropriate local
office of the Comelec, the Commission or its duly authorized representative shall set the date of the election on
recall, which shall not be later than thirty (30) days after the filing of the resolution or petition for recall in the case
of the barangay, city, or municipal officials, and forty-five (45) days in the case of provincial officials. The official
or officials sought to be recalled shall automatically be considered as duly registered candidate or candidates to the
pertinent positions and, like other candidates, shall be entitled to be voted upon.
[6]
Such power is vested in the PRA or in at least 25% of the registered voters. 70(c)(d)
[7]
227 SCRA 100 (1993)
[8]
In re Bower 41 Ill. 777, 242 N.E. 2d 252 (1968)
[9]
269 SCRA 245, 256 (1997)

[10]
The Omnibus Election Code, 3, provides:

The campaign periods are hereby fixed as follows:

(a)......For President, Vice President and Senators, ninety (90) days before the day of the election; and

(b)......For Members of the House of Representatives and elective provincial, city and municipal officials, forty-five
(45) days before the day of the election.
[11]
Id.
[12]
264 SCRA 48, 54 (1996)

EN BANC

G.R. No. L-47771 March 11, 1978

PEDRO G. PERALTA, petitioner,

vs.
HON. COMMISSION ON ELECTIONS, HON. NATIONAL TREASURER, and KILUSANG BAGONG
LIPUNAN, respondents.

G.R. No. L-47803 March 11, 1978

JUAN T. DAVID, petitioner,

vs.
COMMISSION ON ELECTIONS (COMELEC); LEONARDO B. PEREZ, Chairman-COMELEC;
VENANCIO S. DUQUE, FLORES A. BAYOT, CASIMIRO R. MADARANG, VENANCIO L. YANEZA,
Commissioners-COMELEC; JAIME LAYA, Budget Commissioner; and GREGORIO G. MENDOZA,
National Treasurer, respondents.

G.R. No. L-47816 March 11, 1978

YOUTH DEMOCRATIC MOVEMENT, RAMON PAGUIRIGAN, and ALFREDO SALAPANTAN,

JR., petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.
G.R. No. L-47767 March 11, 1978

IN THE MATTER OF PETITION FOR THE DECLARATION OF CERTAIN PROVISIONS OF THE

ELECTION CODE OF 1978 AS UNCONSTITUTIONAL. GUALBERTO J. DE LA LLANA, petitioner.

G.R. No. L-47791 March 11, 1978

B. ASUNCION BUENAFE, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

G.R. No. L-47827 March 11, 1978

REYNALDO T. FAJARDO, petitioner,

vs.
COMMISSION ON ELECTIONS, JAIME LAYA, as the BUDGET COMMISSIONER, GREGORIO G.
MENDOZA, as the NATIONAL TREASURER, KILUSANG BAGONG LIPUNAN, and LAKAS NG
BAYAN, respondents.

Pedro G. Peralta in his own behalf.

Nemesio C. Garcia, Jr., Rodrigo H. Melchor, Dante, S. David, Julie David-Feliciano & Juan T. David for
petitioner Juan T. David.

Raul M. Gonzalez & Associates for petitioners Youth Democractic Movement, et al.

Gualberto J. de la Llana in his own behalf.

B. Asuncion Buenafe in his own behalf

Binay Cueva, Fernandez & Associates for petitioner Reynaldo T. Fajardo.

Tolentino Law Office for respondent Kilusang Bagong Lipunan.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Vicente V. Mendoza and Assistant
Solicitor General Reynato S. Puno for Commission of Elections (COMELEC).

ANTONIO, J.:

These six (6) consolidated petitions pose for the determination of this Court the constitutionality of specific
provisions of the 1978 Election Code (Presidential Decree No. 1269).

The first issue posed for resolution is: Whether or not the voting system provided for in Sections 140 and
155, subparagraphs 26 to 28, of the 1978 Election Code, granting to the voter the option to vote either for
individual candidates by filling in the proper spaces in the ballot the names of candidates he desires to
elect, or to vote for all the candidates of a political party, group or aggrupation by simply waiting in the
space provided for in the ballot the name of the political party, group or aggrupation, violates Section 1 of
Article IV and Section 9(1) of article XII-C of the Constitution.

The specific provisions of the 1978 Election Code which are assailed as being in violation of the equal
protection clause are the following:

SEC. 140. Manner of preparing the ballot. The voter upon receiving his folded ballot
shall forthwith proceed to one of the empty voting booths and shall there fill his ballot by
writing in the proper space for each office the name of the candidate for whom he desires
to vote: Provided, That in the election of regional representatives to the interim Batasang
Pambansa, the voter may choose to vote for individual candidates by filling in the proper
spaces of the ballot the names of candidates he desires to elect, but if for any reason he
chooses to vote for all the candidates of a political party, group or aggrupation, by writing
in the space provided for in the ballot the name of the political party, group or
aggrupation: Provided further, That the ballots for the election of regional representatives
to the interim Batasang Pambansa shall be prepared by the Commission in such manner
that the voter may vote for the straight ticket of a political party, group or aggrupation or
for individual candidates, and for this purpose, the ticket of a regularly organized political
party, group or aggrupation as certified under oath by their respective directorates or duly
authorized representatives as wen as candidates not belonging to any particular political
party, group or aggrupation, shall be printed in the upper portion of said ballots in a
manner which does not give undue advantage to any political party, group or aggrupation
or candidate, and there shall also be a column containing blank spaces for the names of
such candidates which spaces are to be filled by the voter who does not desire to vote for
a straight ticket: Provided, finally, That a candidate may be in the ticket of only one
political party, group or aggrupation; if he is included in the ticket of more than one
political party, group or aggrupation presenting different sets of candidates, he shall
immediately inform the Commission as to which ticket he chooses to be included, and if
he fails to do so, he shall cease to be considered to belong to any ticket. The following
notice shall be printed on the ballot: "If you want to vote for all the official candidates of a
political party, group or aggrupation to the exclusion of all other candidates, write the
name of such political party, group or aggrupation in the space indicated. It shag then be
unnecessary for you to write the names of Candidates you vote for. On the other hand, if
you want to vote for candidates belonging to different parties, groups or aggrupations
and/or for individual candidates, write in the respective blank spaces the names of the
candidates you vote for and the names written by you in the respective blank spaces in
the ballot shall then be considered as validly voted for.

xxx xxx xxx

SEC. 155. Rules for the appreciation of ballots. In the reading and appreciation of
ballots, the committee shall observe the following rules:

xxx xxx xxx

 26. If a voter has written in the proper space of the ballot the name of a political party,
group or aggrupation which has nominated official candidates, a vote shall be counted for
each of the official candidates of such party, group or aggrupation.

27. If a voter has written in the proper space of the ballot the name of a political party,
group or aggrupation which has nominated official candidates and the names of
individual candidates belonging to the ticket of the same political party, group or
aggrupation in the spaces provided therefor, a vote shall be counted for each of the
official candidates of such party, group or aggrupation and the votes for the individual
candidates written on the ballot shall be considered as stray votes.

28. If a voter has written in the proper space of his ballot the name of a political party,
group or aggrupation which has nominated official candidates and the names of
individual candidates not belonging to the ticket of the same political party, group or
aggrupation in the spaces provided therefor, an of the votes indicated in the ballot shall
be considered as stray votes and shall not be counted. Provided, however, That if the
number of candidates nominated by the political party, group or aggrupation written by
the voter in the ballot is less than the number of seats to be filled in the election and the
voter also writes the names of individual candidates in the spaces provided therefor not
belonging to the ticket of the political party, group or aggrupation he has written in the
ballot, the ballot shall be counted as votes in favor of the candidates of the political party,
group or aggrupation concerned and the individual candidates whose names were firstly
written by the voter in the spaces provided therefor, until the authorized number of seats
is fined.

The system which allows straight party voting is not unique in the Philippine experience. As early as 1941,
the Second National Assembly of the Philippines enacted Commonwealth Act No. 666, entitled "An Act to
Provide for the First Election for President and Vice-President of the Philippines, Senators, and Members
of the House of Representatives, Under the Constitution and the Amendments Thereof." Said
Commonwealth Act enabled the voter to vote for individual candidates or for a straight party ticket by
writing either the names of the candidates of his choice or of the political party he favored on designated
blank spaces on the ballot. 1

While the original Election Code, Commonwealth Act No. 357, dated August 22, 1938, did not carry
provisions for optional straight party voting, 2 the system was, however, substantially reinstituted in
Republic Act No. 180, or the Revised Election Code, enacted on June 21, 1947. 3 The only im portent
difference introduced was that in appreciating ballots on which the voter had written both the name of a
political party and the names of candidates not members of said party, Republic Act No. 180 provided that
the individual candidates whose names were written shall be considered voted for, 4whereas
Commonwealth Act No. 666 provided that the vote shall be counted in favor of the political party. 5

Likewise, it should be noted that in other jurisdictions, ballots providing for optional straight party voting
have been accepted as a standard form, in addition to the "office-block" ballots in which all candidates for
each office grouped together. Among the different states of the United States, for example, the following
has been observed:

The party-column ballot, used in about 30 states, is sometimes called the Indiana-type
ballot because the Indiana law of 1889 has served as a model for other states. In most
 states using the party column ballot, it is possible to vote for the candidates of a single
party for all offices by making a single cross in the circle at the head of the column
containing the party's candidates. In some states, the party emblem is carried at the top
of its column, a feature which, in less literate days, was of some utility in guiding the voter
to the right column on the ballot. To vote a split ticket on a party-column ballot usually
requires the recording of a choice for each office, path the voter will presumably hesitate
to follow when he has the alternative of making a single crossmark. Professional party
workers generally favor the use of the party-column ballot because it encourages straight
ticket voting. ...

In contrast with the party-column ballot is the office-block ballot, or, as it is sometimes
called by virtue of its origin, the Massachussetts ballot. Names of all candidates, by
whatever party nominated, for each office are grouped together on the office-block ballot,
usually with an indication alongside each name of the party affiliation. The supposition is
that the voter will be compelled to consider separately the candidates for each ballot, in
contrast with the encouragement given to straight-ticket voting by the party column ballot.
Pennsylvania uses a variation of the office-block ballot: the candidates are grouped
according to office but provision is made for straight-ticket voting by a single mark. 6

Election laws providing for the Indiana-type ballot, as aforementioned, have been held constitutional as
against the contention that they interfere with the freedom and equality of elections. Thus, in Oughton, et
al. v. Black, et al., 7assailed as unconstitutional was a statutory proviso which required that ballots should
be printed with the following instructions: "To vote a straight party ticket, mark a cross (x) in the square
opposite the name of the party of your choice, in the first column. a crossmark in the square opposite the
name of any candidate indicates a vote for that candidate."

It was contended that such provision interferes with the freedom and equality of elections, and authorizes
a method of voting for political parties and not 'or men. It was alleged that the special privilege given to
straight ticket voters and denied to others injured appellants, who, as candidates, were opposed by other
candidates who can much more easily be voted for. In resolving such question and declaring the law
valid, the Supreme Court of Pennsylvania held that the "free and equal exercises of the elective franchise
by every elector is not impaired by the statute, but simply regulated. The regulation is for the convenience
of the electors. The constitutionality of the law is not to be tested by the fact that one voter can cast his
ballot by making one mark while another may be required to make two or more to express his will. When
each has been afforded the opportunity and been provided with reasonable facilities to vote, the
Constitution, and lies in the sound discretion of the Legislature." 8

The Pennsylvania Court further emphasized that elections are equal when the vote of every candidate is
equal in its influence on the result, to the vote of every candidate; when each ballot is as effective as
every other ballot. 9

To the same effect is the holding in Ritchie v. Richards, which sustained the validity of a statute containing
a similar provisional. 10

At any rate, voting by party has been accepted in various states as a form of democratic electoral
process. In Israel, for example, where the election system is one of proportional representation in which
each political party presents a list of candidates to the citizenry, the voter selects a party, not a candidate,
and each party is then represented in the Knesset in proportion to its strength on the polls. The head of
the largest party is asked to form a government. 11 In France, on the other hand, under the electoral law of
October 5, 1946, providing for the selection of National Assembly members, a list system of proportional
representation was set up, whereby each electoral area elected several candidates in proportion to its
voting strength. The voter was required to vote only for one party list; he could not split his vote among
several candidates on different party lists, but could depart from the order of preference set up by the
party. Commissioners then count the ballots for each party list and distribute the total number of seats
among the different successful parties. 12 In Italy and West Germany, party voting is likewise in practice,
and proportional representation seats are distributed on the basis of the number of votes received by the
successful parties.

Petitioners in the cases at bar invoke the constitutional mandate that no person shag be denied the equal
protection of the laws (Article IV, Section 1) and the provision that "bona fide candidates for any public
office shall be free from any form of harassment or discrimination" (Article XII-C, Section 9[l]). The word
"discrmination" in the latter provision should be construed in relation to the equal protection clause and in
the manner and degree in which it is taken therein, since said provision "is in line with the provision of the
Bill of Rights that no 'person shall be denied the equal protection of the laws' ". 13

The main objection of petitioners against the optional straight party' voting provided for in the Code is that
an independent candidate would be discriminated against because by merely writing on his ballot the
name of a political party, a voter would have voted for all the candidates of that party, an advantage which
the independent candidate does not enjoy. In effect, it discontended that the candidate who is not a party
member is deprived of the equal protection of the laws, as provided in Section 1 of Article IV, in relation to
Section 9 of Article XII, of the Constitution.

The equal protection clause does not forbid all legal classifications. What is proscribes is a classification
which is arbitrary and unreasonable. It is not violated by a reasonable classification based upon
substantial distinctions, where the classification is germane to the purpose of the law and applies equally
to all those belonging to the same class. 14 The equal protection clause is not infringed by legislation
which applies only to those persons falling within a specified class, if it applies alike to all persons within
such class, and reasonable grounds exist for making a distinction between those who fall within the class
and those who do not. 15 There is, of course, no concise or easy answer as to what an arbitrary
classification is. No definite rule has been or can be laid down on the basis of which such question may
be resolved. The determination must be made in accordance with the facts presented by the particular
case. The general rule, which is well-settled by the authorities, is that a classification, to be valid, must
rest upon material differences between the persons, activities or things included and those excluded.'
There must, in other words, be a basis for distinction. Furthermore, such classification must be germane
and pertinent to the purpose of the law. And, finally, the basis of classification must, in general, be so
drawn that those who stand in substantially the same position with respect to the law are treated alike. It
is, however, conceded that it is almost impossible in some matters to foresee and provide for every
imaginable and exceptional case. Exactness in division is impossible and never looked for in applying the
legal test. All that is required is that there must be, in general, some reasonable basis on general lines for
the division. 16

Classification which has some reasonable basis does not offend the equal protection clause merely
because it is not made with mathematical nicety. 17

In the cases at bar, the assailed classification springs from the alleged differential treatment afforded to
candidates who are party members as against those who run as independents. It must be emphasized in
the election law must carry the burden of showing that it does not rest upon a reasonable basis, but is
essentially arbitrary. 18 The factual foundation to demonstrate invalidity must be established by the litigant
challenging its constitutionality. 19 These principles are predicated upon the presumption in favor of
constitutionality.

This has to be so because of "the fundamental criteria in cases of this nature that all reasonable doubts
should be resolved in favor of the constitutionality of a statute. An act of the legislature, approved by the
executive, is presumed to be within constitutional limitations. The responsibility of upholding the
Constitution rests not on the courts alone but on the legislature as well. The question of the validity of
every statute is first determined by the legislative department of the government itself. 20

Thus, to justify the nullification of a law, there must be "a clear and unequivocal breach of the
Constitution, not a doubtful and argumentative implication." 21 There is practical unanimity among the
courts in the pronouncement "that laws shag not be declared invalid unless the conflict with the
Constitution is clear beyond a reasonable doubt. 22

We shall now test the validity of petitioners' arguments on the basis of these principles.

In the challenged provision of the electoral law, unlike the previous block- voting statutes, all the names of
the candidates, whether of parties, groups or independent candidates, are printed on the ballot. Before he
prepares his ballot, the voter will be able to read all the names of the candidates. No candidate will
receive more than one vote, whether he is voted individually or as a candidate of a party group or
aggrupation. The voter is free to vote for the individual candidates or to vote by party, group or
aggrupation. The choice is His. No one can compel him to do otherwise. In the case of candidates, the
decision on whether to run as an independent candidate or to join a political party, group or aggrupation is
left entirely to their discretion. Certainly, before filing his certificate of candidacy, a candidate is aware of
the advantages under the law accruing to candidates of a political party or group. If he wishes to avail
hihiself of such alleged advantages as an official candidate of a party, he is free to do so by joining a
political party group or aggrupation. In other words, the choice is his. In making his decision, it must be
assumed that the candidate had carefully weighed and considered the relative advantages and
disavantages of either alternative. So long as the application of the rule depends on his voluntary action
or decision, he cannot, after exercising his discretion, claim that he was the victim of discrimination.

In the ordinary course of things, those who join or become members of associations, such as political
parties or any other lawful groups or organizations, necessarily enjoy certain benefits and privileges which
are incident to, or are consequences of such membership. Freedom of association has been enshrined in
the Constitution to enable individuals to join others of like persuasion to pursue common objectives and to
engage in lawful activities. Membership in associations is considered as an extension of individual
freedom. Effective advocacy of both public and private views or opinions is undeniably enhanced by
group association. Freedom to engage in associations for the advancement of beliefs and Ideas is,
therefore, an inseparable aspect of the liberty guaranteed by the fundamental law. Therefore, if, as an
incident of joining a political party, group or aggrupation, the candidate is given certain privileges, this is
constitutionally Permissible. Thus, under the provisions of the previous election laws, only the parties who
polled the largest and the next largest number of votes in the last preceding presidential elections were
entitled to representation in the Board of Election Inspectors. 23 Independent candidates had no
representation in the Board; and yet it was never contended that the independent candidates were denied
the equal protection of the laws.
The official candidates of an organized political party may be distinguished from an independent
candidate. The former are bound by the party's rules. They owe loyalty to the party, its tenets, its policies,
its platform and programmes of government. To the electorate, they represent the party, its principles,
ideals and objectives. This is not true of an independent candidate. If the electoral law has bias in favor of
political parties, it is because political parties constitute a basic element of the democractic institutional
apparatus. Government derives its strength from the support, activity or passive, of a coalition of elements
of society. In modern nines the political party has become the instrument for the organization of societies.
This is predicated on the doctrine that government exists with the consent of the governed. Political
parties per. form an "essential function in the management of succession to power, as well as in the
process of obtaining popular consent to the course of public policy. They amass sufficient support to
buttress the authority of governments; or, on the contrary, they attract or organize discontent and
dissatisfaction sufficient to oust the government. In either case they perform the function of the articulation
of the interests and aspirations of a substantial segment of the citizenry, usually in ways contended to be
promotive of the national weal." 24

The Constitution establishes a parliamentary system of government. Such a system implies the existence
of responsible political parties with distinct programmes of government.

The parliamentary system works best when party distinctions are well defined by differences in principle.
As observed by a noted authority on political law, under a parliamentary system; "the maintenance and
development party system becomes not only necessary but indispensable for the enforcement of the idea
and the rule of government responsibility and accountability to the people in the political management of
the country." 25 Indeed, the extent to which political parties can become effective instruments of self-
government depends, in the final analysis, on the degree of the citizens' competence in politics and their
willingness to contribute political resources to the parties.

It is also contended that the system of optional straight party voting is anathema to free, orderly and
honest elections or that it encourages laziness or political irresponsibility. These are objections that go to
the wisdom of the statute. It is well to remember that this Court does not pass upon questions of wisdom
or expediency of legislation. We have reiterated in a previous case that: "It is ... settled ... that only
congressional power or competence, not the wisdom of the action taken, may be the basis for declaring a
statute invalid." 26 This notwithstanding, We deem it necessary, for the information of everyone concerned,
to explain why such fears, in a growing climate of political maturity and social responsibility appear
conjectural.

There are no data to show that the system herein assailed was the proximate cause of all the frauds in
the 1941, 1947 and 1949 elections. Besides, all procedures or manners of voting are susceptible to fraud.
The important thing to consider is that the 1978 Election Code is replete with new provisions designed to
guarantee the sanctity and secrecy of the people's vote.

As demonstrated in the experience of other democratic states, such a system has its advantages. It may
enable deserving young candidates but without adequate financial resources of their own to win,
with party support, in countrywide or regional elections. Since candidates of a party or group may pool
their resources, it will tend to make elections less expensive. As this system of voting favors the strongly
organized parties or groups, it tends to prevent the proliferation of political parties or groups. It thus
results in the formation of stable and responsible political parties. On the part of the electorate, such a
system of voting facilitates the exercise of their right of suffrage. It enables the laborer, the farmer and the
voter of ordinary education to vote with greater facility for all the official candidates of the party of his
choice. It thus broadens the ways and means by which the sovereign will can be expressed.

Nor could it be true, as petitioners contend, that a system which allows straight ticket voting encourages
laziness and political irresponsibility. While there may be those who may be moved to vote straight party
by reason of lack of interest, nevertheless, there are still those sufficiently interested to cast an intelligent
vote. It has been observed that in a straight ticket the motivated voter is more likely to organize his ballot
in a highly structure pattern. His motivation may derive from an interest in parties, candidates, or issues or
any combination of those. As observed by a survey research group: "Motivated straight ticket voting
appears to reflect an intention on the part of the voter to accomplish his political purpose as fully as
possible. Such a voter does not scatter his choices casually, he has a political direction in mind and he
implements it through the choice of one party or the other on the ballot. The more highly motivated he is
toward this political objective, the less willing he is to dilute his vote by crossing party lines." 27

II

The second issue before Us is: Whether or not the provisions of Sections 11, 12 and 14 of the 1978
Election Code, which authorize the elections of the members of the interim Batasang Pambansa by
regions, violate Section 2 of Article VIII of the Constitution which provides that the members of the
National Assembly shall be apportioned among the provinces, representative districts and cities.

Assailed as unconstitutional are the following provisions of the 1978 Election Code:

SEC. 11. Composition. The interim Batasang Pambansa shall be composed of the
incumbent President of the Philippines, representatives elected from the different regions
of the nation, those who shag not be less than eighteen years of age elected by their
respective sectors, and those chosen by the incumbent President from the members of
the Cabinet."

SEC. 12. Apportionment of regional representatives. There shall be 160 regional

representatives to the interim Batasang Pambansa apportioned among the thirteen
regions of the nation in accordance with the number of their respective inhabitants and on
the basis of a uniform and progressive ratio ... :

xxx xxx xxx

The foregoing apportionment shall be not considered a precedent in connection with the
re-apportionment of representative districts for the regular National Assembly under
Section 2, Article VIII and Section 6, Article XVI I of the Constitution.

Notwithstanding the foregoing provisions, the number of regional representative for any
region shall not be less than the number of representative districts therein existing at the
time of the ratification of the Constitution. There are also allotted two additional seats for
regional representatives to Region IV in view of inhabitants, such as students, in the
region not taken into account in the 1975 census.

SEC. 14. Voting by region. Each region shall be entitled to such number of regional
representatives as are allotted to it in Section 12 of Article II hereof. All candidates for
 region representatives shall be voted upon at large by the registered voters of their
respective regions. The candidates receiving the highest number of votes from the entire
region shall be declared elected.

The constitutional provision relied upon is Section 2 of Article VIII, which provides:

SEC. 2. The National Assembly shall be composed of as many Members as may be

provided by law to be apportioned among the provinces, representative districts and
cities in accordance with the number of their respective inhabitants and on the basis of a
uniform and progressive ratio. Each district shall Comprise, as far as practicable,
contiguous, compact, and adjacent territory. Representative districts or provinces already
created or existing at the time of the ratification of this Constitution shag have at least one
Member each.

In resolving the issue, the provisions of Amendment No. 1 to the Constitution, which took effect on
October 27, 1976, should be considered and not, as pointed out by petitioner Juan T. David, those of
Section 2 of Article VIII of the Constitution, which deal with the composition of the regular National
Assembly.

It should be recalled that under the term of the Transitory Provisions of the Constitution, 28 the
membership of the interim National Assembly would consists of the Incumbent President and Vice-
President, the Senators and the Representatives of the old Congress and the Delegates to the
Constitutional Convention who have opted to serve therein. The Filipino people rejected the convening of
the interim National Assembly, and for a perfectly justifiable reason.

By September of 1976, the consensus had emerged for a referendum partaking of the character of a
plebiscite which would be held to establish the solid foundation for the next step towards normalizing the
political process. By the will of the people, as expressed overwhelmingly in the plebiscite of October 15
and 16, 1976, Amendments Nos. 1 to 9 were approved, abolishing the interim National Assembly and
creating in its stead an interim Batasang Pambansa. T was intended as a preparatory and experimental
step toward the establishment of full parliamentary government as provided for in the Constitution.

Amendment No. 1 provides:

1. There shall be, in lieu of the interim National Assembly, an interim Batasang
Pambansa, Members of the interim Batasang Pambansa, which shall not be more than
120, unless otherwise provided by law, shall include the incumbent President of the
Philippines, representatives elected from the different regions of the nation, those who
shall not be less than eighteen years of age elected by their respective sectors, and
those chosen by the incumbent President from the Members of the Cabinet. Regional
representatives shall be apportioned among the regions in accordance with the number
of their respective inhabitants and on the basis of a uniform and progressive ratio, while
the sectors shall be determined by law. The number of representatives from each region
or sector and the manner of their election shall be prescribed and regulated by
law. (Emphasis supplied.)

The provisions of the Above Amendment are clear. Instead of providing that representation in
the interim Batasang Pambansa shall be by representative districts, it specifically provides that; (1) the
representatives shall be elected from the different regions of the nation; and (2) the "Regional
representatives shall be apportioned among the regions in accordance with the number of their respective
inhabitants and on the basis of a uniform and progressive ratio while the sector shall be determined by
law. " No mention whatsoever is made of 4 provinces, representative districts and cities". Where the intent
is to relate to the regular National Assembly, the Constitution made it clear and manifest, as indicated in
Amendment No. 2 of the Constitution. 29 It is significant to note that nowhere in the said amendment is it
provided that the members of the interim Batasang Pambansa shall be apportioned among the
representative districts, in the same manner as the regular National Assembly. The clear import and intent
of the Constitutional Amendment is, therefore, the election of the representatives from the different
regions of the nation, and such regional representatives shall be alloted or distributed among the regions
in accordance with the number of their respective inhabitants and on the basis of a uniform and
progressive ratio. Neither does the Amendment provide that the members of the interim Batasang
Pambansa "shall be elected by the qualified electors in their respective district for term of six years ..." as
provided in Section 3[l] of Article VIII of the Constitution. To hold that Section 3[l] of Article VIII is
applicable to the interim Batasang Pambansa would lead to the conclusion that the members of the
Batasan shall have a term of six years, which is of course inconsistent with its transitory character. That
the interim Batasang Pambansa is a distinct and special body, which, by reason of its transitory nature
should be governed by specifically formulated rules, is apparent from the constitutional amendment which
created it. Thus, its membership "shall not be more than 120, unless otherwise provided by law. "
Furthermore, it "shall include the incumbent President of the Philippines, representatives elected from the
different regions of the nation, those who shall not be less than eighteen years of age elected by their
respective sectors, and those chosen by the incumbent President from the Members of the Cabinet." The
regular National Assembly, on the other hand, is limited in its membership to representatives to be
apportioned among the provinces, representative districts and cities. By reason of its provisional
character, the interim Batasang Pambansa has to be more flexible, both in its representation and the
manner of election of its members. There is no denying the fact that as wide a range of representation as
possible is required in order to hasten the nation's return to normalcy. It is for t reason that sectors are
given adequate representation 30 and are considered as "national aggrupations. " Elections of sectoral
representatives are specially provided for in the 1978 Election Code. 31 It should be emphasized that the
regular National Assembly is distinct and different in composition, powers and manner of elections of its
members from the interim Batasang Pambansa is to function during the period of transition while the
regular National Assembly is to operate upon the restoration of normalcy.

The composition of the interim Batasang Pambansa is indeed experimental. It is an experiment in size,
form and distribution of constituencies in the hope of securing a legislature most truly representative of
the views of the electorate. It would, therefore, be ludicrous to confine the members of such body within
the strictures of the representative districts of the regular National Assembly. The fear of petitioner Juan T.
David that several representative districts will be deprived of representation misconstrues the concept of
regional elections. The representatives are to be elected by the voters of the entire region. They will
represent the whole region and not merely its integral provinces, districts or cities. Moreover, Section 12
of the Code ensures that there shall be sufficient representatives for each region by providing that "the
number of regional representatives for any region shall not be less than the number of representative
districts therein existing at the time of the ratification of the Constitution."

III

The following two issues raised by petitioners are interrelated and must be jointly discussed herein. They
are:
 (a) Whether or not the Kilusang Bagong Lipunan (KBL) and the Lakas ng Bayan
(LABAN) may be registered and accredited as political parties under Section 8 of Article
XII-C of the Constitution, so that their respective candidates for membership in the
interim Batasang Pambansa may be voted for as a group under the 1978 Election
Code; and

(b) Whether or not members of a political party in the l971 elections may run under the
ticket sponsored by any other party, group or aggrupation, considering the provisions of
Section 10 of Article XII-C of the Constitution which prohibition candidates for any
elective public office from changing party affiliation within six months s immediately
preceding or following an election

The resolution of the foregoing issues calls for the determination of the constitutionality of Section 199 of
the 1978 Election Code, questioned by petitioners. Said section provides:

SEC. 199. Registration of political parties. Pending the promulgation of rules and
regulations to govern the registration and accreditation of political parties by the
Commission in accordance with Article XII[C] of the Constitution, the registration with the
Commission previous to 1972 of the Nacionalista Party, Liberal Party, Citizens' Party, and
other national parties shall be deemed to continue and they may, upon notice to the
Commission through their respective presidents or duly authorized representatives,
amend or change their names, constitutions, by-laws, or other organizational papers,
platfor, officers and members, and shag be entitled to nominate and support their
respective candidates for representatives in the interim Batasang Pambansa. Similarly,
any other group of persons pursuing the same political Ideals in government may register
with the Commission and be entitled to the same rights and privileges.

Invoked by petitioner are Sections 8 and 10 of Article XII-C of the Constitution, which provide:

SEC. 8. A political party shall be entitled to accreditation by the Commission if, in the
immediately preceding election, such party has obtained at least the third highest number
of votes cast in the constituency to which it seeks accreditation. No religious sect shall be
registered as political party, and no political party which seeks to achieve its goals
through violence or subversion shall be entitled to accreditation.

SEC. 10. No elective public officer may change political party affiliation during term of
office, and no candidate for any elective public office may change political party affiliation
within six months immediately preceding g or following an election.

It should be recalled that the object of the afore-quoted provisions of the Constitution was to develop a
third party and break the heretofore dominant hold on the political system by the two major political
parties which have been in existence since the birth of the republic. These two major parties were
considered as "in fact a one party system with two factions openly disagreeing on fringe issues but tacitly
united by one common aim: alternate monopoly of power through a pattern of patronage politics." 32 The
framers of the Constitution examined the weaknesses of the party system and saw the need "for
discarding the old party system as a political farce that has been largely responsible for many of the
country's ills ...". 33 They envisioned, therefore, a new era in Philippine politics, where elections were to be
decided on issues rather than on personalities, and where the electoral process was to be free, less
expensive government depends on an organized and vigorous citizenry. Such can only exist if citizens
can increase their effectiveness in politics by modernizing and using political parties to set the general
directions of public policy and to influence the specific decisions of public institutions that affect their daily
lives.

It was intended, however, that some of these provisions would not operate during the interim period.
Thus, from the wording of Section 8, it is obvious that said section is incapable of application during the
first election because it states that no political party shall be entitled to accreditation unless in the
immediately preceding election, it obtained at least the third highest number of votes cast in the
constituency to which it seeks accreditation. That there cannot be any accreditation during the first
election under the 1973 Constitution is evident from the sponsorship speech of the proponent of t
constitutional provision. 34

Although their members are united by common policies and principles of government and apparently
impelled by the same political Ideals, neither the Kilusang Bagong Lipunan (KBL) nor the Lakas ng Bayan
(LABAN) professes to be a political party in the sense of a stable organization with a degree of
permanence, imposing strict discipline among the members, and with a party platform drafted and ratified
in a party convention. It does not follow, however, that the KBL and LABAN are not political parties, in a
generic sense, since a political party has been generally defined as "an association of voters believing in
certain principles of government, formed to urge the adoption and execution of such principles in
governmental affairs through officers of like belief." 35. Political parties "result from the voluntary
association of electors, and do not exist by operation of law. The element of time is not essential to the
formation of a legal party; it may spring into existence from the exigencies of a particular election, and
with no intention of continuing after the exigency has passed." 36 As a matter of fact, it is only the Kilusang
Bagong Lipunan (KBL) and the Lakas ng Bayan (LABAN) that have polarized the major differences on
vital public issues affecting the nation. And, during t first election in t period of transition when, obviously,
no political party can be accredited, does the Constitution, in Article XII-C, Sections 2[5] and 8
limit registration to political parties as strictly understood by withholding it from aggrupations of persons
pursuing the same political Ideals of government as provided in Section 199 of the 1978 Election Code? It
clearly does not. The listing of political parties appears to have a dual aspect
registration and accreditation Registration is a means by which the government is enabled to supervise
and regulate the activities of various elements participating in an election.

It would appear from Section 8 of Article XII-C that the only groups which cannot be registered are: (a)
religious groups or sects; and (b) those political parties or groups who seek "to achieve its goals through
violence and subversion". Accreditation is the means by which the registration requirement is made
effective by conferring benefits to registered political parties. The condition for accreditation, aside from
those mentioned, is that the political party must have obtained, in the immediately preceding election, at
least "the third highest number of votes cast in the constituency to which it seeks accreditation. " The
Constitution, however, does not state what are the effects of accreditation. There is, therefore, necessity
for legislation. Moreover, to construe the term "political party" restrictively would delimit the supervisory
authority of the Commission on Elections. More specifically, it would exempt aggrupations or other
political groups from certain requirements. Under Section 199, the 1978 Election Code allows the
registration of aggrupations or groups of persons "pursuing the same political Ideals in government";
consequently, they are subjected to the regulation of propaganda materials (Sec. 41) and the limitation of
expenses for candidates (Sec. 52).
From another point of view, a narrow construction may discourage the robust exercise of the right of
association guaranteed by the Bill of Rights, which at t stage of our political tory appears, necessary.

The facts that the coming polls will be the first that we shall hold since the proclamation of martial law on
September 21, 1972 makes it an event of no ordinary significance. "The Filipino society has outgrown its
age of innocence. Today the acts of Filipino politicians must be judged by more mature standards and the
test of national allegiance has become more strict and more demanding, even more binding." 37 By t
election, we shall inaugurate a new stage in our political life, and commence our fateful transition from
crisis government to a parliamentary system.

But as President Ferdinand E. Marcos has significantly observed:

... this step, I repeat, is no mere restoration of electoral processes and representative
government. The coming elections would be a perilous exercise indeed if they would
merely return us to elections and representative institutions as we had known them in the
past, and compromise what had taken us so much time and effort to construct over the
last five years.

What we envision in t initiative is the permanence and continuity of the refor that we have
launched under the aegis of crisis government. We envision in it the full emergence of a
new political order that will give life and sustenance to our national vision of a new
society. And it will have permanence and continuity because by the grace of suffrage and
representative government, we shag thereby attain a formal mechanism for the exercise
of participation and involvement by our people in nation-building and national
development. 38

It is, therefore, necessary at t stage to encourage the emergence or growth of political parties that will
truly reflect the opinions and aspirations of our people. The right of individuals to form associations as
guaranteed by the fundamental law, includes the freedom to associate or refrain from association. 39 In
accord with t constitutional precept, it is recognized that no man is compelled by law to become a member
of a political party, or, after having become such, to remain a member. 40

The existence of responsible political parties with distinct programs of government is essential to the
effectiveness of a parliamentary system of government. It is in recognition of t fact that Section 199 of the
1978 Election Code allows or sanctions the registration of groups of persons "pursuing the same political
ideals in government" with the Commission on Elections. Moreover, to what extent the rights of organized
political parties should be regulated by law is a matter of public policy to be determined by the lawmaker
a matter which does not concern the courts. 41

T brings us to the next point raised by petitioners, namely, that under Section 10 of Article XII-C of the
Constitution, no candidate for elective office may change party affiliation within six months immediately
preceding or following an election. In the cases at bar, We understand that no candidate voluntarily
changed party affiliation. On the contrary, the claim that the KBL and the LABAN are not political parties"
is based partly on the fact that the candidates running under their banners have retained their party
affiliation. Section 10 is a statement of a basic principle against political opportunism. To begin with, no
legislation has been enacted to implement t constitutional prohibition. Indeed, it is difficult to conceive how
the courts may apply the prohibition, in all the varied facts and circutances under which it may be invoked,
without the aid of supplementary legislation. For instance, the provision in question states that no elective
public officer may change political party affiliation during term of office. Suppose an elected representative
in the legislature, belonging to one party, shall always vote and side with another political party. Will he be
considered a "turncoat" even if he does not formally change party affiliation? Suppose it be decided that
he is a "turncoat". What sanctions should be adopted? Should he be suspended or ousted from the
legislature?

When one turns to political candidates, the same questions as to what should be considered "political
opportunism" or "turncoatism" will be encountered. But the problem of procedure for hearing and deciding
infringements of the prohibition or the determination of the appropriate sanction becomes more acute. Is
the sanction to be found in the refusal by the Commission on Elections to register the party or group, or in
the denial of certificate of candidacy, or are there other ways? Should political parties be prevented from
"adopting" candidates? Or from forming coalitions?

All of these are questions of policy, in resolving winch many immensurable factors have to be considered.
The afore-cited constitutional provisions are commands to the legislature to enact laws to carry out the
constitutional purpose. They are, therefore, addressed initially to the lawmaking department of the
government. It is not part of the judicial department to deal with such questions without their authoritative
solutions by the legislative department. It may be relevant to emphasize here that the jurisdiction of t
Court is "limited to cases and controversies, presented in such form, with adverse litigants, that the
judicial power is capable of acting upon them, and pronouncing and carrying into effect a judgment
between the parties, and does not extend to the determination of abstract questions or issues framed for
the purpose of invoking the advice of the court without real parties or a real case." 42

In any event, We cannot perceive how such constitutional prohibition could be applied in t first election.
Precisely, the overriding constitutional purpose is to remove the dominant hold of the two major political
parties and encourage the formation of new political parties. The intention is not to rebuild old party
coalitions but to define new political means and instruments, within the parties or beyond them, that will
allow the Filipino people to express their deeper concerns and aspirations through popular government.

IV

The fourth issue is: whether or not the forty-five-day period of campaign prescribed in the 1978 Election
Code violates the Constitution because. (a) it was decreed by the President and not by the Commission
on Elections as provided by Section 6 of Article XII-C; and (b) the period should cover at least ninety (90)
days.

Petitioners question the constitutionality of Section 4 of the 1978 Election Code, which provides:

SEC. 4. Election and campaign periods. The election period shall be fixed by the
Commission on Elections in accordance with Section 6, Article XII-C of the Constitution.
The period of campaign shall not be more than forty- five days immediately preceding the
election, excluding the day before and the day of the election: Provided, That for the
election of representatives to the interim Batasang Pambansa, the period of campaign
shall commence on February 17, 1978 except that no election campaign or partisan
political activity may be conducted on March 23 and 24, 1978.

In support of the allegation of unconstitutionality, petitioners rely on Section 6 of Article XII-C of the
Constitution, thus:
 SEC. 6. Unless otherwise fixed by the Commission in special cases, the election period
shall commence ninety days before the day of election and shall end thirty days
thereafter.

At the outset, it should be considered that Amendment No. 1 provides that the "number of representatives
from each region and the manner of their election shall be prescribed and regulated by law " (emphasis
supplied). Under Amendment No. 5, "the incumbent President shall continue to exercise legislative
powers until martial law shall have been lifted." The power conferred by these Amendment upon the
lawmaker necessarily included the authority to prescribe the date and procedure for the holding of such
elections. It should be borne in mind that the forthcoming election for members in the interim Batasang
Pambansa will be a special election during a regime of martial law. It is, therefore, an election in a state of
emergency. The exigencies of the situation require that it be governed by special rules. At t point, the
objective is to hasten the normalization of government and, at the same time, to ensure that the nation is
not exposed to the same critical proble that necessitated the declaration of martial law. In conferring upon
the incumbent President the authority to determine the date of the election, those who drafted the
Amendments must have realized that it is only the incumbent President who has the authority and the
means of obtaining, through the various facilities in the civil and military agencies of the government,
information on the peace and order condition of the country, and to determine the period within which an
electoral campaign may be adequately conducted in all the regions of the nation. Thus, the 1978 Election
Code was formulated to meet a special need, and t is emphasized by the fact that the Code itself limits its
application. 43

Even assuming that it should be the Commission on Elections that should fix the period for campaign, the
constitutional mandate is complied with by the fact that the Commission on Elections has adopted and is
enforcing the period fixed in Section 4, Article I of the 1978 Election Code.

At any rate, insofar as objections to the fixing of the campaign period for elections in general are
concerned, it is apparent that there is a distinction between the ter "election period" and "campaign
period". Thus, Section 4, Article I of the 1978 Election Code provides that the "election period shag be
fixed by the Commission on Elections in accordance with Section 6, Article XII (C) of the Constitution."
The "campaign period", however, has been fixed so that "it shall not be more than forty-five days
immediately preceding the election: Provided, That for the election of representatives to
the interim Batasang Pambansa, the period of campaign shag commence on February 17, 1978 except
that no election campaign or partisan political activity may be conducted on March 23 and 24, 1978." The
distinction is further made apparent by the fact that the "election period" under Section 5 of Article XII-C of
the Constitution extends even beyond the day of the election itself, while the "campaign period", by
reason of its nature and purpose, must necessarily be before the elections are held. There is, therefore,
no conflict with the constitutional provision.

At t juncture, it may be relevant to note the efforts of the Commission on Elections to give more substance
and meaning to the intent and spirit of the Constitution and the 1978 Election Code by giving the same
practicable opportunities to candidates, groups or parties involved in the April 7, 1978 interim Batasang
Pambansa elections. Thus, in Resolution No. 1289, the COMELEC removed the so-called undue
advantage which the Nacionalista Party and the Kilusang Bagong Lipunan (KBL) had over the Lakas ng
Bayan (LABAN) in ter of authorized election expenses, appointment of election watchers and use of print
and broadcast media. T circutance, contrary to the clai of petitioners, shows that the Commission on
Elections, as a constitutional body charged with the enforcement and administration of all laws relative to
the conduct of elections, and with broad powers, functions and duties under the 1973 Constitution, can
give candidates, irrespective of parties, equal opportunities under equal circutances.

WHEREFORE, in view of the foregoing, the instant petitions are hereby DISMISSED, without costs.

Castro, C.J., Makasiar, Aquino, Concepcion, Jr., Santos, Fernandez, and Guerrero, JJ., concur.

FERNANDO, J., concurring and dissenting:

It is a reassuring feature of the martial law regime in the Philippines that t Court had repeatedly
entertained suits challenging the validity of presidential decrees raised in appropriate legal
proceedings. 1 It is a role it had never shunned. There is thus adherence to the path of constitutionalism,
both in normal times and under crisis conditions. Even during this period of emergency, parties had come
to this Tribunal whenever, in their opinion, the executive act assailed was tainted by the vice of nullity.
They did complain, and they were heard. In that way, this Court manifested fealty to the basic tenet of
constitutionalism. For there is no issue so basic that it cannot be settled within the constitutional
framework. Courts, in the language of Chief Justice Concepcion, "have, not only jurisdiction to pass upon
[such questions] but also the duty to do so, which cannot be evaded without violating the fundamental law
and paving the way to its eventual destruction." 2 Judicial review is thus the dominant constitutional
concept to assure that the Constitution remains supreme. It is an awesome power, to be sure, but
reasons of delicacy as well as the courtesy due a coordinate branch do not suffice to ward off judicial
intervention in proper cases. More specifically, this Tribunal cannot avoid the responsibility thrust upon it
to vindicate the rights safeguarded by the Constitution.

It is undeniable that the function of judicial review exists not because courts can initiate the governmental
action to be taken, but because thereafter the duty to pass upon its validity, whenever raised in an
appropriate case, is theirs to perform. The trust reposed in them is not to formulate policy but to determine
its legality as tested by the Constitution. The function entrusted to them is to decide, assuming that a suit
satisfies the requisites for an inquiry into a constitutional issue, whether there is a failure to abide by the
fundamental law. If so, the outcome should not be in doubt. Care is to be taken though that the
transgression alleged did in fact occur. The challenge may be insubstantial and the argument adduced
inconclusive. It may come from parties resolved to transfer the site of conflict from the political arena to
the judicial forum. That is not to be encouraged. Certainly, there must always be an awareness of the
scope of the power to adjudicate. It goes no further than to assure obedience to and respect for the
mandates of the Constitution. The limits imposed on the exercise of executive and legislative power must
be observes The function of judicial review is intended to serve that Purpose It does not extend to an
unwarranted intrusion into that broad and legitimate sphere of discretion enjoyed by the political branches
to determine the policies to be pursued. This Court should ever be on the alert lest, without design or
intent, it oversteps the boundary of judicial competence. Judicial activism may become judicial
exuberance As was so well put by Justice Malcolm. "Just as the Supreme Court, as the guardian of
constitutional rights, should not sanction usurpations by any other department of the government, so
should it as strictly confine its own sphere of influence to the powers expressly or by implication conferred
on it by the Organic Act." 3

Justice Laurel in the landmark case of Angara v. Electoral Commission, 4 decided eight months to the day
from the effectivity of the 1935 Constitution, put the matter in language notable for its impact, sweep, and
enduring vitality. Thus: "The Constitution is a definition of the powers of government. Who is to determine
the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality
of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries,
it does not assert any superiority over the other departments, it does not in reality nullify or invalidate an
act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution
to determine conflicting clai of authority under the Constitution and to establish for the par ties in an actual
controversy the rights which that instrument and guarantees to them. This is in truth all that is involved in
what is termed 'judicial supremacy' which properly is the power of judicial review under the Constitution.
Even then, t power of judicial review is limited to actual cast and controversies to ex after full opportunity
of argument by the parties, and limited further to the constitutional question raised or the very lis
mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to
sterile conclusions unrelated to actualities. Narrowed as its function is in t manner, the judiciary does not
pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the
presumption of constitutionality to legislative enactments, not only because the legislature is presumed to
abide by the Constitution but because the judiciary in the determination of actual cases and controversies
must reflect the wisdom and justice of the people as expressed through their representatives in the
executive and legislative departments of the government." 5 Such a principle was earlier given expression,
in words both lucid and emphatic, by Justice Malcolm: "If there is probable basis for sustaining the
conclusion reached, [legislative] findings are not subject to judicial review. Debatable questions are for the
legislature to decide. The courts do not sit to resolve the merits of conflicting theories." 6

In that perspective and with such pronouncements of undoubted clarity, force, and authority coming from
eminent constitutionalists, the conclusion reached by the Court commends itself for approval. Nor is t
merely to pay heed to precepts fundamental in character. The principles set forth above were not only
characterized by their responsiveness to the questions involved in such litigations but were also
impressed with a validity which transcended the issues raised on those occasions. As it was then, so
should it be now. While the judicial process does not take place in a social void, there are doctrines that
are of the essence of the function of judicial review. The doubts that come to mind from an objective
appraisal of the challenged provisions of the 1978 Election Code do not suffice then to call for a
declaration of nullity.

It is true that as to the optional block voting scheme, it may be said that the strictures of recent tory had
been glossed over. To the extent, however, that it will undoubtedly be of great help to the unlettered and
untutored who, as citizens, are entitled to participate in the democratic process, without impairing the
freedom of choice in view of its not being compulsory, it cannot be said to be infected with the virus of
invalidity. This is, of course, on the assumption that electoral frauds will be avoided. Moreover, insofar as
the optional block voting scheme is a valid response to a compelling state interest, favoring as it does the
growth and stability of political parties, petitioners who are independent candidates were unable to sustain
the burden of proving that there is a denial of due process or of equal protection. 7 What added difficulty to
their task was the rather tenuous character of their plea, premised as it is on their mere assertion that the
challenged provision on the block voting scheme is void on its face. Thus they had to overcome the
presumption of validity accorded a legislative or executive act. This they failed to do.

Nor should nagging doubts prevail against the overriding consideration that thereby, the electorate is
afforded the opportunity of choosing their representatives in a legislative body, even of
an interim character. That is to pay homage to the fundamental principle of the Philippines being a
republican state, with sovereignty residing in the people. 8 As was so well emphasized by justice Laurel
in Moya v. Del Fierro: 9 "As long as popular government is an end to be achieved and safeguarded,
suffrage, whatever may be the modality and form devised, must continue to be the means by which the
great reservoir of power must be emptied into the receptacular agencies wrought by the people through
their Constitution in the interest of good government and the common weal Republicanism, in so far as it
implies the adoption of a representative type of government, necessarily points to the enfranced citizen as
a particle of popular sovereignty and as the ultimate source of the established authority." 10

There is this added reinforcement to the conclusion reached by the Court. The forthcoming election is a
major step toward the eagerly-awaited restoration of full civilian rule. There is thus a closer approximation
to the Willoughby concept 11 that martial law merely confers on the Executive the competence to call on
the armed forces to assist him in the faithful execution of the laws, primarily the maintenance of peace
and order, leaving unimpaired the full exercise of legislative and judicial powers by the other departments
and thus maintaining civilian supremacy. Moreover, the existence of an interim Batasang Pambansa
would be in consonance with the pronouncement of Justice Black in Duncan v. Kahanamoku 12 that even
during such emergency period, legislatures and courts remain indispensable to the existence of a
republican state. 13 I am thus persuaded to yield conformity to the able, exhaustive,. and learned opinion
of Justice Antonio, except for the inclusion of the rule on appreciation of ballots found in paragraph 28 of
Section 155 of the 1978 Election Code, which, to my mind, raises a serious constitutional question. For as
it stands, there appears to be an undue intrusion in the freedom of choice implicit in the right of suffrage if
an elector's preference for individual candidates would not be accorded recognition solely due to the fact
that at the same time ballot likewise indicates voting for the slate of another party or aggrupation. In such
a ease, it is my view that what should be disregarded is the vote for such other party or aggrupation and
the vote for the individual candidates counted. To that extent, I am unable to yield entire concurrence.

1. Solicitor General Estelito P. Mendoza, 14 in raising the question of standing of petitioners, relied on a
well-settled doctrine concerning the procedural standards that must be met for the function of judicial
review to come into play. "The unchallenged rule," according to Justice Laurel, in the equally leading case
of People v. Vera, 15 "is that the person who impugns the validity of a statute must have a personal and
substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of
its'enforcement." 16 There was a reiteration of t doctrine in Pascual v. Secretary of Public Works, 17 with t
modification in the opinion of Chief Justice Concepcion: "Yet, there are many decisions nullifying, at the
instance of taxpayers, laws providing for the disbursement of public funds, upon the theory that 'the
expenditure of public funds by an office of the State for the purpose of administering an unconstitutional
act constitutes a misapplication of such funds,' which may be enjoined at the request of a
taxpayer." 18 Thus was the concept of a taxpayer's suit given the imprimatur of approval by this Court. It
does not mean, however, that in each and every instance where such an exception is invoked, this
Tribunal is left with no alternative except to hear the parties. Tan v. Macapagal" 19 clarified matters thus:
"Moreover, as far as taxpayer's suit is concerned, tills Court is not devoid of discretion as to whether or
not it should be entertained." 20 Solicitor General Mendoza was on solid ground therefore when he raised
as one of defenses that taxpayer's suits as such do not necessarily call for the exercise of the function of
judicial review. Fortunately for petitioner all of them could show an interest Personal and substantial. Two
petitions were filed by registered voter, 21 two others, by registered candidates for the interim Batasang
Pambansa; 22 and the last two, one by "a political and civil aggrupation" and the other by a former
delegate to the 1971 Constitutional Convention who was also the Chairman of the Committee on Political
Parties. 23It only remains to be added that there apparently is a tendency in recent American decisions to
retreat from the liberal rule as to standing announced in the 1968 decision of Flast v. Cohen. 24 There is
no automatic reversion, however, to the rather rigid rule of Mellon v. Frothingham, 25 a 1923 decision. After
a recent careful and analytical study of the trend discernible in cases heard the last two or three years by
the American Supreme Court, 26 Professor Tushnet came to t conclusion: "Decisions on questions of
standing are concealed decisions on the merits of the underlying constitutional claim. The Court finds
standing when it wishes to sustain a chum on the merits and denies standing when the claim would be
rejected were the merits reached." 27

2. Certainly, a voter whose right of suffrage 28 is allegedly impaired by the optional block voting scheme is
entitled to judicial redress. The "enfranced citizen," to refer anew to Justice Laurel's opinion in Moya v.
Del Fierro, 29 is "a particle of popular sovereignty and [is] the ultimate source of the established
authority." 30 Such a thought was given expression by Chief Justice Concepcion in Ozamis v. Zosa 31 in
words with a similar ring, characterizing the right to vote as "an attribute of sovereignty." 32 It follows then,
to quote from Pungutan v. Abubakar, 33, that it is "a constitutional guarantee of the utmost significance. It
is a right without which the principle of sovereignty residing in the people becomes nugatory." 34 It is thus
evident that petitioners who are registered voters cannot be denied the right to be heard. This Court is
committed to such a principle. 35 So it is under American law where a denial of the right to vote could even
be made the basis for a money claim. That was the ruling in the leading case of Nixon v. Herndon, 36 the
opinion being penned by the illustrious Justice Holmes: "The objection that the subject-matter of the suit
is political is little more than a play upon words. Of course, the petition concerns political action, but it
alleges and seeks to recover for private damage. That private damage may be caused by such political
action, and may be recovered for in a suit at law, hardly has been doubted for over two hundred years,
since Ashby v. White, and has been recognized by this court." 37 Chief Justice Warren, in Wesberry v.
Sanders, 38 was quite eloquent when he spoke on the matter: "No right is more precious in a free country
than that of having a voice in the election of those who make the laws under which, as good citizens, we
must live. Other rights, even the most basic, are illusory if the right to vote is undermined." 39 possible
objection based on standing can be raised either when the suit is instituted by a candidate for public
office 40 as well as a political party or aggrupation. 41 Concerning as constitutional convention delegate,
there had been no previous decisions on the matter. By analogy, however, inasmuch as members of the
legislative body both in the Philippines 42 and in the United States 43 could file actions to assail the validity
of a challenged legislation or even a resolution of the Constitutional Convention, a delegate or former
delegate is entitled to the same privilege.

3. It is unthinkable then for this Court not to inquire into any allegation of constitutional infirmity imputed to
a provision of the Election Code that would emasculate the right to vote. Five of the six petitions assailed
the options block voting scheme with unwonted severity, but the denunciation fell far short of overcoming
the presumption of validity. To be more specific, three of the petitioners, Pedro G. Peralta, 44 B. Asuncion
Buenafe, 45 and Juan T. David, 46 did manifest grave concern as to its possible adverse effects on their
candidacies, the first two stressing their running as independents. The censure that came from the Youth
Democratic Movement 47 was peripheral to its main submission. That leaves only petitioner De la
Llana, 48 who filed a suit for declaratory relief treated by this Court as an action for prohibition,
distinguished, if that is the appropriate term, by condensing the matter in four pages. Ostensibly, it is an
attack on the optional block voting scheme, yet, instead of stressing the right to vote, it would premise its
plea on the ground that no party could be accredited by the Conunission on Elections and subsequently
no party could be voted for in the coming elections, referring to Article XII C, Section 2, paragraph 5 and
Section 8 of the same Article. 49 All that was stated by him as to the optional block voting is that it "win
result to (sic) the commission of gross electoral frauds and malpractices and the election win only be a
farcical political exercise and a death blow to our democratic system." 50 What other conclusion can there
be from such a bare assertion except that it is decidedly unpersuasive? It assumes what must be shown.
There is nothing axiomatic about conclusion. It cannot just be taken for granted. There see to be lack of
awareness of the rudimentary concept in constitutional law that there being a presumption of validity, the
necessity for evidence to rebut it is unavoidable, unless the statute or decree is void on its face. 51 Without
developing further how the right to vote of an elector, who is given the freedom of choice between casting
ballot for individual candidates or for the favored party or aggrupation, had been infringed, it may be a
rash assumption to affirm categorically that "the election win only be a farcical political exercise and a
death blow to our democratic system." tory need not repeat itself. Precisely, measures to avoid abuses in
the utilization of a device neutral in character and on its face not infected with the vice of nullity could be
taken. It does not suffice to link past agonies with present hopes. Let me not be misunderstood. The
desirability of any block voting provision, even if optional, is not by any means suggested. An that is set
forth here is that respect for the deeply-rooted principle of according the, presumption of constitutionality
to a legislative act or a presidential decree cautions against sustaining the plea of petitioner De la Llana.
There was a dismal failure to sustain the burden incumbent upon him to demonstrate invalidity. The
thirteen-page petition of the Youth Democratic Movement 52 is distinguished by a more conscientious and
diligent appraisal of the constitutional issues. Its major thrust, however, is on the limitation of the election
period, arousing the fear on the part of petitioner that the balloting would not reflect the true popular will.
There is, however, t stray comment bearing on the optional block voting provision: "And t will be worse
confounded by the introduction of the infamous block voting scheme which millions of our voters do not
understand. Even intelligent professionals are confused. The result will be countless (sic) of stray ballots
and a defeat of popular will." 53 Such a rather curt summary invites a similar appraisal. Clearly, the
presumption of validity has not been overcome.

4. Petitioner Peralta was rather vehement in contending that the optional block voting scheme is violative
of t provision of the Constitution: Bona fide candidates for any public office shall be free from any form of
harassment and discrimination." 54 He sought the shelter of its protection for hielf and other independent
candidates who, according to him, would be thus made to suffer if the assailed provision is not nullified.
Essentially, in ter of individual rights, he would raise a due process and equal protection question. 55

5. First, as to the due process aspect. It is undoubted that if the optional block voting scheme, in the
language of Cardozo, would outrun the bounds of reason and result in sheer oppression, it offends
against such a guarantee. An executive or legislative act must satisfy the rational basis test. It is equally
undoubted that with such a provision an advantage is afforded party candidates. Does that stamp it with
invalidity? The answer is in the negative. The importance of political parties or political aggrupations to a
republican state, especially so for a parliamentary system, calls for such a response. On that point, there
is t Categorical declaration by Schattschneider: "The rise of political parties is indubitably one of the
principal distinguishing marks of modern government. The parties, in fact, have played a major role
as makers of governments, more especially they have been the makers of democratic government. it
should be stated flatly at the outset that t volume is devoted to the thesis that the political parties created
democracy and that modern democracy is unthinkable save in ter of the parties. As a matter of fact, the
condition of the parties is the best possible evidence of the nature of any regime." 56 It is, to quote him
anew, "first of all an organized attempt to get power." 57 As observed by Truman: "Whatever else it may be
or may not be, the political party in the United States most commonly is a device for mobilizing votes,
preferably a majority of votes." 58 As a vote mobilizer he stated further, "a party must be an 'alliance of
interests' to use Herring's phrase." 59 It is through a political party then that the shifting desires and
pressure intensities of the various groups that compose the electorate may be ascertained. This is not to
say though that it does not reflect the deep clash of forces within the community, but the crucial element
in their campaign for votes, to repeat, is the drive for power. "The single purpose," to quote from Friedrich,
"[is] victory." 60 Thus it has to be responsive to the needs and outlook of the elector. At times, it may be
unavoidable that; there be compromises with both political principles and doctrinal symmetry. Nor is that
necessarily undesirable for that could minimize the sharpness of conflicts which, with leaders of
undeviating rigidity in their approach to political proble, could have caused an undue strain in the body
politic. Through a political party, the feelings of the electorate about their own tangled proble and
institutions may be canalized and thus be clarified. Likewise, it serves as a source of resiliency and
cohesion. The party system, according to Lerner, "has given American democracy a rough kind of
politically functioning unity without the social cast that the unity of a single-party totalitarian system would
have involved." 61 What was said by the eminent British political scientist Laski is equally relevant.
According to subject to a small number of exceptions, members are not elected "to Parliament for
exceptional beauty of character, or distinction of mind; they have been returned there to support a party to
which their supporters hope will win enough seats to be able to form a government under the Premiership
of its leader." 62 He elucidated further. "No doubt the party system s we know it, has a special pathology of
its own. It is hostile to the independent member; it makes the rise of new parties a difficult matter; it a
general vote of confidence in men rather than a mandate upon measures; and once it has brought the
new House of Commons into being, the character, of its party pattern gives both the House and the
electorate a government which party discipline will usually maintain in office for a period pretty close to
the five years set as its legal term by the Parliament Act of 1911." 63 It cannot be said, therefore, that the
added advantage afforded parties or aggrupations by the optional block voting device is an infringement
of the due process guarantee. Whatever deficiencies may be attributed to it cannot go so far as to warrant
the conclusion that thereby the rational basis test for governmental action had been disregarded.

6. Now as to the equal protection question. It is undoubted that independent candidates are at a
disadvantage under an optional block voting scheme. Does that in itself justify a finding that it suffers from
the corrosion of constitutional infirmity? The answer, if due regard be had to the authoritative and
controlling doctrines, is in the negative. The teaching of our decisions is plain and unmistakable. It is too
clear to be misread. So it has been from People v. Vera, 64 the second landmark opinion in constitutional
law of Justice Laurel to Felwa v. Salas, 65 cited in the opinion of Justice Antonio. The ponencia of Chief
Justice Concepcion in Felwa is a succinct but comprehensive statement of the matter. Thus: "It is well
settled that the equal protection clause applies only to persons or things identically situated and does not
bar a reasonable classification of the subjects of legislation, and that a classification is reasonable where:
(1) it is based upon substantial distinctions which make real differences; (2) these are germane to the
purpose of the law; (3) the classification applies, not only to present conditions, but also to future
conditions which are substantially identical to those of the present; and (4) the classification applies
equally to all those who belong to the same class." 66 It is of interest to note that the applicable
constitutional law doctrine in Malaysia is not dissimilar. So it is apparent in the masterly opinion of Lord
President Tun Sufian of the Federal Court of Malaysia, promulgated in 1977, in Datuk Haji Harun bin Haji
Idris v. Public Prosecutor. Like our Constitution the federal charter of Malaysia has an equality
provision. 67 As was made clear by the Lord President, it is not absolute but qualified. 68 As in the
Philippines, such a guarantee "applies to both substantive and procedural law" but "envisages that there
may be lawful discrimination based on classification." 69 That the formulation of Justice Laurel in People v.
Vera as to when there is a reasonable classification applies as well in Malaysia is evident from t portion of
the opinion citing the Shri Ram Krishma Dalmia decision of the Indian Supreme Court to the effect that a
discriminatory law is good law as long as there is reasonable and possible classification which "is founded
on an intelligible differential which distinguishes persons that are grouped together from others left out of
the group; and the differential a rational relation to the object sought to be achieved by the law in
question. The classification may be founded on different bases such as geographical, or according to
objects or occupations and the like. What is necessary is that there must be a nexus between the basis of
classification and the object of the law in question." 70 Succinctly put, to quote anew from People v.
Vera, what is condemned is invidious discrimination.

A recent decision, J. M. Tuason and Co., Inc. v. Land Tenure Administration, 71 has t relevant excerpt: "To
assure that the general welfare be promoted, which is the end of law, a regulatory measure may cut into
the rights to liberty and property. Those adversely affected may, under such circutances, invoke the equal
protection clause only if they can show that the governmental act assailed, far from being inspired by the
attainment of the common weal was prompted by the spirit of hostility, or at the very least, discrimination
that finds no support in reason. It suffices then that the laws operate equally and uniformly on all persons
under similar circutances or that all persons must be treated in the same manner, the conditions not being
different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference
cannot be snowed. For the principle is that equal protection and security shall be given to every person
under circutances which, if not Identical are analogous. If law be looked upon in ter of burden or charges,
those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in
the group equally binding on the rest." 72

7. Petitioner Peralta's contention that there was an infringement of the equal protection clause is thus
devoid of support in law. The optional block voting scheme, it cannot be too strongly emphasized, is one
of the means of strengthening a party government which is a valid state objective. To the extent,
therefore, that independent candidates may be placed in a less favorable category, it is not a suspect
classification to which the rigid scrutiny test applies. 73 This Court is not called upon then to nullify such a
provision. Such a conclusion follows from another avenue of approach. In Aglipay v. Ruiz, 74 a 1937
decision of major importance, Justice Laurel as ponente rejected the contention that the issuance of
postage stamps referring to Manila as the Seat of the XXXIII International Eucharistic Congress was
violative of the constitutional provision against the use of public money or property for the use, benefit, or
support of any sect or church or system of religion. 75

He explained why: "What is emphasized is not the Eucharistic Congress itself but Manila, the capital of
the Philippines, as the seat of that congress. It is obvious that while the issuance and sale of the stamps
in question may be said to be inseparably linked with an even of a religious character, the resulting
propaganda, if any, received by the Roman Catholic Church, was not the aim and purpose of the
Goverment. We are of the opinion that the government should not be embarrassed in its activities simply
because of incidental results, more or less religious in character, if the purpose had in view is one which
could legitimately be undertaken by appropriate legislation. 76 So in this case, in the emphatic language of
Justice Laurel: "The main purpose should not be frustrated by its subordination to mere incidental results
not contemplated." 77 If the independent candidates are to be prejudiced by the adoption of the optional
block voting scheme, the resulting harm to their candidacy is attributable to their decision to run as such.
There is nothing to prevent them from joining a party or aggrupation and hoping to be nominated as
candidates. Any adversity suffered by them comes under the heading of a self-inflicted wound.

Petitioner Peralta, undeterred, would seek to lend a semblance of deceptive plausibility by the assertion
that in the Vera Opinion of Justice Laurel, a law may be considered bad not only when it actually denies
but also when it permits inequality. There is a grave misapprehension on part. People v. Vera declared
unconstitutional the former Probation Act 78 in view of the fact that its Section 11 would leave its
applicability the appropriation by the Provincial Board of the salary of the probation officers. Since the Act
was intended to operate equally in the Philippines, there certainly would be inequality if certain provinces
failed to make the necessary appropriation As the purpose was for an enactment nationwide in operation,
all provinces belong to the same class. To assert in the light of such undoubted statutory objective that a
similar kind of inequality may be attributed to the optional block voting scheme that would thus favor
political parties or aggrupations is to flounder in the mire of elusive analogy. For in the challenged
provision, as in the cases of usury laws making a distinction between debtors and creditors, the Recto
Installment Sales Law making a distinction between vendors and vendees, and in labor legislation making
a distinction between management and the workingmen, the statute treates a separate class in a much
more favorable manner without thereby incurring the vice of offending against the equal protection clause.
So it is in the case of the assailed optional block voting scheme. The denunciatory favor in which the
contention was made is thus unpersuasive. It cannot stand the test of scrutiny, not to mention the fact that
the element of hyperbole was clearly apparent. The assertion that there is a denial of equal protection
thus falls to the ground.

8. The questions raised in the David, the Youth Democratic Movement, and the Fajardo petitions, all of
which bore evidence of considerable thought and reflection, with one of them characterized by objectivity
seeming to melt away under the fierce fire of intense indignation, were squarely met and, to my mind,
satisfactorily resolved, in the opinion of Justice Antonio. Nothing remains to be added except to point out
that in the first two, with petitioner David being hielf a candidate in the forthcoming elections and petitioner
Youth Democratic Movement being a political aggrupation with intent to present, so its petition stated, a
complete ticket for the Metro Manila region, 79 it would appear that the doctrine of estoppel, which
admittedly is not to be applied indiscriminately, enters into the picture and constitutes a bar, although not
insurmountable, to the grant of the relief prayed for. 80 It is perhaps understandable why the Fajardo
petition appears to be less than fully aware of the implications of the doctrine of primary jurisdiction and
ripeness of the constitutional question raised to call for adjudication, since petitioner is not a member of
the bar. 81 It may likewise be stated that considering the tensions of our days and the crisis of our times, it
may be a counsel of wisdom not to anticipate the serious constitutional law proble that would arise under
situations where only a tentative judgment is dictated by prudence. This is a decade of transition and, as
pointed out in the opinion of justice Antonio, there is a great deal of allowable latitude for experimentation.
It is only when there is a clear denial of a constitutional right evident on the face of a statute or decree that
even in the absence of any evidentiary proof, it wig be time, to borrow from the language of Justice
Laurel, "to make the hammer of [judicial review] fall, and heavily, but not until then." 82 To my mind, that
stage had not been reached in the last three petitions.

9. It is quite obvious then that t separate opinion is essentially and almost wholly one of concurrence. If
there is a dissent, it is submitted ex abundante cautela. As was made plain at the outset, it is not to an
explicit ruling but merely the reference to Section 155 paragraph 28 of the Election Code that precluded,
on my part, an agreement full and entire. The opinion of the Court set forth as the first issue: "Whether or
not the voting system provided for in Sections 140 and 155, sub-paragraphs 26 to 28 of the 1978 Election
Code, granting to the voter the option to vote either for individual candidates by filling in the proper spaces
in the ballot the names of candidates he desires to elect, or to vote for all the candidates of a political
party, group or aggrupation by simply writing in the space provided for in the ballot the name of the
political party, group or aggrupation, violates Section 1 of Article IV and Section 9(1) of Article XII-C of the
Constitution." 83 Then the aforesaid provision was quoted in full: "Sec. 155, par. 28: If a voter has written
in the proper space of ballot the name of a political party, group or aggrupation which has nominated
official candidates and the names of individual candidates not belonging to the ticket of the same political
party, group or aggrupation in the spaces provided therefor, all of the votes indicated in the ballot shall be
considered as stray votes and shall not be counted: ..." 84 Reference was likewise made to Section 4 of
Commonwealth Act No. 666 which provided. "(g) If a voter had voted for the straight ticket of a political
party and at the same time had written on one or more blank spaces of the ballot the names of candidates
of other party or parties or of independent candidates, said names shall be deemed as not written and the
vote shall be counted as cast for each and every one of the official candidates of the party voted for in the
ballot." 85 It is that rule in the appreciation of ballots that to my mind is free from any unconstitutional taint.
The will of the voter expressed in a manner free from doubt was given force and effect. This is not the
case with paragraph 28 of Section 155 of the Election Code. After such a categorical expression of will to
vote for specified candidates whose names he had taken the trouble to write, I am unable to accept any
implication in the opinion of the Court that just because he had also made use of the optional block voting
scheme, a statutory provision setting at naught will as to such candidates individually singled out could be
viewed as free from any constitutional deficiency. I would not want then to be placed on record as having
failed to express my conviction on the matter. Hence, this brief dissent.
A few more words. Solicitor General Mendoza in the course of oral argument observed that two of the
most eminent constitutionalists who sat on t bench, Jose P. Laurel and Claro M. Recto, while undoubtedly
cognizant of the abuses to which block voting could give rise and did suffer as a consequence, did not
challenge its validity in an appropriate case or Proceeding. Their failure to do so is, to my mind,
impressed with significance considering that in the post World War II period, until they died, they had
participated as counsel de parte or as amici curiae or had been consulted on major constitutional law
cases. 86 They were, to follow Thomas Reed Powell, silently vocal on the matter. It would seem that for
them such a question had more of a policy rather than a legal connotation, thus appropriately belonging to
the political branches. It is to stress anew that it is primarily on that ground, with full reliance on the
authoritative pronouncements in the aforecited cases of Angara, Pasay Transportation, and Lorenzo, the
opinions coming from the pens of Justices Laurel and Malcolm, that I am persuaded to concur in the
dismissal of these petitions. So I am led to conclude because, for me, there was no clear showing of
invalidity based on the impairment of the right of suffrage or the denial of due process and equal pro.
protection guarantees. The presumption of validity accorded a legislative act or executive decree was not
therefor overcome. Stress must equally be made on what was said before that the dismissal of these
petitions, especially those impugning the validity of the optional block voting scheme, cannot be construed
as an admission of its desirability. That is a matter the cognizance of which belongs to the other branches.
Nor is it to deny that, as unfortunately happened in the past, it could be perverted from its legitimate use
and could be a source of electoral frauds. As early as 1816, Justice Story, in the oficited case of Martin v.
Hunter's Lessee, 87 characterized an argument "from the possibility of an abuse" as "unsatisfactory." 88 He
emphasized: "It is always a doubtful course, to argue against the use or existence of a power, from the
possibility of its abuse." 89 T excerpt from an opinion of Justice Cardozo in Willia v. Baltimore 90 is equally
relevant: "The judicial function is exhausted with the discovery that the relation between means and end
is not wholly vain and fanciful, an illusory pretence. Within the field where men of reason may reasonably
differ, the legislature [or the executive] must have its
way." 91

At any rate, there is solace in the thought that outside of the 1978 Election Code being applicable only for
t year's poll there are built-in provisions therein to guard against the perpetration of electoral misdeeds.
Moreover, it is to the interest of the present Administration that every effort should be made to avoid such
evil practices. If it fails, its achievements would stand discredited and the New Society itself condemned.
There must be a true expression of the popular will, which, thereafter, must be obeyed. So both
constitutionalism and democracy mandate.

TEEHANKEE, J., dissenting:

I. I dissent from the majority's dismissal of the petition on the fundamental ground in consonance with my
stand in earlier cases 1 that the so-called October 27, 1976 amendments to the 1973 Constitution which
sought to crate the Interim Batasang Pambansa in lieu of the interim National Assembly provided for in
Article XVII of the 1973 Constitution were constitutionally void and invalid since the constituent power to
propose constitutional amendments during the transition period (between enforcement of the 1973
Constitution and election and assumption of office of the members of the regular National Assembly) is
expressly vested in the interim National Assembly (not in the incumbent President) and the only way to
fulfill the express mandate of the Constitution in proposing and effecting any constitutional amendments is
the convening of the interim National Assembly to exercise the constituent power to propose
amendments.
This was not done, although it is universally recognized that the Constitution is a "superior paramount law,
unchangeable by ordinary means" 2 but only by the particular mode and manner therein prescribed for
otherwise "there will not be stability in our constitutional system and necessarily no stability in our
government." 3

But with the majority vote in Sanidad, supra the proposed amendments were proclaimed as ratified and in
fun force and effect as of October 27, 1976 under Presidential Proclamtion No. 1595. And elections have
been called for April 7, 1978 under Presidential Decree No. 1296 (1978 Election Code) for electing the
members of the Interim Batasang Pambansa with greatly diluted powers and functions compared to those
of the interim National Assembly. (Thus, contrary to the very tenets of the parliamentary system the
Interim Batasang Pambansa which is shorn of the interim and regular Assembly's power to ratify treaties,
cannot elect the Prime Minister nor replace the incumbent President as Prime Minister who may however
dissolve the Batasan at any time 4 and who shall continue to exercise legislative powers until martial law
shall have been lifted." 5 The President (Prime Minister) is further empowered to "issue the necessary
decrees, orders, or letters of instructions, which shag form part of the law of the land "whenever the
Interim Batasang Pambansa or the regular National Assembly "fails or is unable to act adequately on any
matter for any reason that in judgment requires immediate action." 6

II. We are thus confronted with the reality of the scheduled April 7, 1978 election of Interim Batasang
Pambansa members and the merits of the petitions at bar which in the main assail the validity and
constitutionality of the so-called "optional block voting" system now resurrected in Presidential Decree No.
1296 for the said elections and pray that respondent Comelec be enjoined from implementing the same
citing the Comelec's own position papers in the Batasan Bayan's last session on January 27, 1978 that
"block voting would only make a mockery of the elections, that it is associated with electoral frauds and
malpractices, that adopting it would seemingly insured political advantage to the candidates of the
administration and, therefore, the credibility of the election would be impaired because of it." 7

I vote for the granting of the petitions and for the outlawing of the block voting scheme on the following
grounds.

1. The block voting scheme offends the due process and equal protection clauses of the Constitution and
is furthermore proscribed by the express injunction of the new provision in Article XII, section 9 (1) of the
1973 Constitution that "Bona fide candidates for any public office shall be free from any form of
harassment and discrimination."

Petitioner Peralta as an independent La Union candidate complains with reason that he is unfairly
discriminated against and prejudiced by the block voting scheme in that "there are three ways to vote for
a KIBALI [Kilusang ng Bagong Lipunan] candidate: (1) by writing name, (2) by writing KIBALI and (3) by
writing NACIONALISTA, on the ballot. On the other hand, there is but one way to vote for an independent,
like petitioner, only by writing name." 8Actually, the arbitrary and oppressive edge given the KBL candidate
against an independent candidate amounts to 6 to 1 for judicial notice may be taken of the ballot subject
of the petition in Case L-47883 entitled "Lakas ng Bayan (Laban) vs. Comelec" complaining against the
double listing of KBL candidates in Metro Manila where the Comelec recognizes three additional ways of
voting for a KBL candidate viz by writing (4) KBL (5) NP (for Nacionalista Party) or (6) just a plain N unless
enjoined by the Court in said pending case. Said petitioner further aptly observes that "under martial law
where the freedom, privileges and immunities of the citizens are curtailed or suspended, the evils of block
voting are enhanced to a hundredfold." 9
2. Historically, it may be noted that block voting was repudiated by the people through Congress which
abolished block voting in 1951 and never reinstituted the same. As observed by the former Senator Jovito
Salonga, "(B)lock voting was used after the Second World War in two elections. In the 1947 elections, the
administration almost wiped out the opposition. In the 1949 elections, through the use of block voting,
massive frauds were committed and facilitated by the party in power. The two great oppositionists at the
time, Jose P. Laurel and Claro M. Recto who headed the senatorial slate and the men who ran with
them, became easy victi of block voting. So great was the indignation of the people that Congress had to
abolish the optional block voting scheme in March, 1951. ... Block voting makes it easy for fake ballots to
be used with maximum effect. Twenty-one names of candidates in Metro Manila need not be written out,
only the name of the political party or group. Block voting makes it easy to verify whether the voter who
has been bribed will vote according to previous understanding. If he finishes accomplishing ballot in, let
us say, five seconds, the one assigned to watch him can readily conclude that the voter complied with
part of the bargain. One who writes out 21 names on ballot cannot finish the task in five seconds." 10

When taken against the backdrop of 5- years of martial law and its restraints without any political activity
so much so that the main opposition party, the Liberal Party, has been urged in vain to take part in the
elections and the government's ticket of KBL candidates throughout the country are all but unopposed "in
an awesome display of power" with only three reported "quixotic" pockets of opposition in Metro Manila,
Region V (Bicolandia) and Region VII (Central Visayas), 11 the "invidious discrimination" that is inflicted by
,the block voting scheme upon the opposition and independent candidates calls for judicial protection of
their constitutionally protected rights of due process and equal protection. This is all the more so since the
block voting scheme that has been revived is closer to the pre-war scheme (under Commonwealth Act
666) of practically compulsory straight party balloting whereby the writing of the name of the party
now cancels and invalidates the written names of the candidate(s) not member(s) of said
party 12 (whereas in the prewar scheme, the writing of the party's name prevailed over the individual
candidates as distinguished from the postwar scheme in 1947 and 1949 (under Rep. Act 180) which
provided that the in. individual candidates' names as written prevailed over the party's. 13 It has thus been
noted that "since the administration slate has more advantages than the opposition, it assumes a heavier
burden in being fair." 14

3. The majority's thesis that "in other jurisdictions ballots providing for optional straight party voting have
been accepted as a standard form" 15 and that there is reasonable basis for favoring official candidates
against independent candidates who are free to avail of such advantages "by joining a political party,
group or aggrupation" 16 with the observation that block voting "favors the strongly organized parties or
groups and tends to prevent the proliferation of political parties or groups" 17 may hold true for other times,
places and climes but y not in the context of the present martial law situation and the Philippine
experience.

It is a matter of daily comment in the press that the government's KBL slate is running practically
unopposed and there certainly is no proliferation of parties or groups to even watch out for. Independent
candidates under such circutances will not find it easy to follow the majority's solution that they become
official candidates of non-existent or non- participating political parties or groups. Most importantly, aside
from the people's repudiation of block voting since 1951, and 1973 Constitution has in effect outlawed the
inherent discrimination in block voting against independent candidates through its new provision that bona
fide candidates "shall be free from any form of harassment and discrimination."

This new provision which is not found in the Constitution of other states and jurisdictions manifestly
constricts the classifications heretofore permitted in the application of the general equal protection clause
by specifically providing that in elections for any public office, bona fide candidates may not be subjected
to any form of discrimination (such as that of block voting) which might otherwise have been permissible
against independent candidates.

Petitioner Reynaldo T. Fajardo who was chairman of the Committee on Political Parties in the 1971
Constitutional Convention submitted committee's printed report which bears out contention that block
voting was outlawed by t new Constitutional provision. The Committee's explanatory note on the draft of
said provision (which was adopted practically verbatim save that protection against harassment was
added) further emphasized that t provision is to be understood as having special reference to unaffiliated
or partyless bona fide candidates. Extending to them the equal protection of the law is but a matter of
elementary justice. If the State guarantees equal protection to groups of individuals, such as political
parties, it is but logical that the same protection be made available to individuals, separately, without
discrimination in any form.

4. The basic consideration is the principle of due process and equal protection of the laws as enshrined in
the very first clause of the Bill of Rights which negates state power or that of the party in power to act in
an arbitrary or oppressive manner and stands as the embodiment of the sporting idea of fair play and the
guaranty of justice. In all this,U.S. Chief Justice Erl Warren had well stressed that it is the spirit and not
the form of law that makes justice alive.

The late Justice Jose P. Laurel (hielf a victim of block voting in the 1949 elections 18 had earlier enjoined
us that "(R)epublicanism, in so far as it implies the adoption of a representative type of government,
necessarily points to the enfranced citizen as a particle of popular sovereignty and as the ultimate source
of the established authority. He has a voice in Government and whenever possible it is the solemn duty of
the judiciary, when caged upon to act in justifiable cases, to give it efficacy and not to stifle or frustrate
it." 19

It was in t same spirit that U.S. Chief Justice Earl Warren in formulating the "one man, one vote" formula
as the constitutional rule to be followed in the reapportionment of representation in State
legislatures 20 held in upholding plaintiffs' contention that they were denied "equal suffrage in free and
equal elections ... and the equal protection of the laws", that "... (E)specially since the right to exercise the
france in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged
infringement of the right of citizens to vote must be carefully and meticulously scrutinized ..." and "a denial
of constitutionally protected rights demands judicial protection; our oath and our office require no less of
us. ... To the extent that a citizen's right to vote is debased, he is that much less a citizen. "

5. Finally, petitioner Juan T. David has raised the prejudicial questions that since P.D. 1269, the 1978
Election Code, has not yet been published in the Official Gazette (as per certification dated February 16,
1978 of the Government Printing Office 21) the provisions thereof particularly those imposing penal
sanctions may not be enforced until after the lapse of 15 days from publications in the Official Gazette
and that block voting as therein provided may not be enforced because the Election Code of 1971 (which
does not provide for block voting) should be deemed as still in force and as not having been legally
repealed.

This has sound basis under the pertinent laws, Article 2 of the Civil Code which provides that "Laws shall
take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is
otherwise provided ... "and Section 11 of the Revised Administrative Code which likewise requires that
"(W)hen laws take effect. A statute passed by the Philippine Legislature (National Assembly) shall, in
the absence of special provision, take effect at the beginning of the fifteenth day after the completion of
the publication of the statute in the Official Gazette, the date of issue being excluded. For the purpose of
fixing such date the Gazette is conclusively presumed to be published on the day indicated therein as the
date of issue.

The Court held through then Chief Justice Ricardo Paras in People vs. de Dios 22 that "it is an elementary
rule of fair play and justice that a reasonable opportunity to be informed must be afforded to the people
who are commanded to obey before they can be punished for its violation" citing the general principle
enunciated in an earlier case 23 that "before the public is bound by its contents, especially its penal
provisions, a law, regulation or circular must first be published and the people officially and specially
informed of said contents and its penalties."

Such legal requirement of publication in the Official Gazette for the effectivity of laws is vital and
indispensable and may not be waved away with the contention that copies of the election decree have
been published and distributed or the people advised thereof through the newspapers. In a time of
proliferating decrees, orders and letters of instructions which all form part of the law of the land, the
requirements of due process and of the Rules of Law demand that the Official Gazette as the official
government reporsitory promulgate and publish the texts of all such decrees, orders and instructions so
that the people may know where to obtain their official and specific contents.

MUOZ PALMA, J., dissenting:

The Constitution shall be the bedrock of our Republic.

(From the Speech of President Ferdinand E. Marcos at the opening of the 1971
Constitution Convention, June 1, 1971)

La Constitution, ... es la ley de la paternidad y de los afectos del poder creador, que rige
la en sus diversos ordenes. Obra del pueblo, y no de un partido, ha de ser, por tanto, la
Constitution para que el pueblo deba amarla y defenderla y los governantes respetarla y
cumplirla. ... *

(From the Speech of President Claro M. Recto at the opening of the 1934 Constitutional
Convention, July 30, 1934; emphasis supplied)

The Malolos Constitution "is the most glorious expression of the noble aspirations of the Filipino a mirror
of their culture and a clear proof before the world of their capacity to govern themselves.

(From the Speech of President Emilio Aguinaldo, Proclamation of the Malolos

Constitution, January 21, 1899)

It was in the spirit of the transcendental principles enunciated in the foregoing statements and of similarly
inspired pronouncements, too many to be quoted, of our forbears and leaders of thought and of
government of the past, that I wrote my dissenting Opinion in Sanidad, et al. v. COMELEC, et al., L-
44640, October 12, 1976, and the accompanying cases.
What was challenged in Sanidad was the constitutionality of Presidential Decree Nos. 991 and 1033
which called for a referendum-plebiscite on October 16, 1976, on certain proposed constitutional
amendments, one of which was to substitute the interim National Assembly with an Interim Batasang
Pambansa. I expressed there the opinion that the incumbent President did not have constituent powers,
that is, the power to propose amendments to the 1973 Constitution, and that if there was need of
amending the Constitution the amendatory process provided for in Art. XVI, Section 1 (1) and (2), or Art.
XVII, Section 15, of the 1973 Constitution, was to be followed. I said:

xxx xxx xxx

l. That sovereignty resides in the people and all government authority emanates from
them is a fundamental, basic principle of government which cannot be disputed, but when
the people have opted to govern theelves under the mantle of a written Constitution each
and every citizen , from the highest to the lowliest, has the sacred duty to respect and
obey the Charter they have so ordained.

xxx xxx xxx

The Filipino people,, wanting to ensure to theelves a democratic republican form of

government, have promulgated a Constitution whereby the power to govern theelves has
been entrusted to and distributed among three branches of government; they have also
mandated in clear and unmistakable ter the method by which provisions in their
fundamental Charter may be amended or g done so, the people are bound by these
constitutional limitations. For while there is no surrender or abdication of the people's
ultimate authority to amend, revised, or adopt a new Constitution, sound reason demands
that they keep theelves within the procedural bounds of the existing fundamental law. (73
SCRA 455, 456)

My view in Sanidad was reiterated by me in Dela Llana v. COMELEC et al., L-47245, and Hidalgo v.
COMELEC, et al., L-47239, December 9, 1977. The issue was on the validity of another national
referendum for December 17, 1977, which referred to the 1976 amendments Nos. 3 and 7 of the
Constitution. In these two cases, I stated that inasmuch as amendments Nos. 3 and 7 were not validly
proposed and ratified, Presidential Decree No. 1229 which implements said amendments is nun and void.

The cases now before Us raise legal questions which center on the election of representatives to
the Interim Batasang Pambansa. Without necessity of giving my views on the different issues raised in
these petitions, I vote to declare as unconstitutional the challenged portions of "The 1978 Election Code"
as they are without constitutional basis, conformably to my opinion in Sanidad that the Interim Batasang
Pambansa is not validly constituted and suffers from a basic constitutional infirmty.

I strongly reiterate here what I wrote in Sanidad that the only possible measure that can lead our country
and people to a "condition of normalcy" is the lifting and ending of the state of martial rule and the
implementation of the Transitory Provisions of the 1973 Constitution for the convening of the Interim
National Assembly in order that the latter may carry out the objectives for its creation as decreed in the
1973 Constitution. (supra. p. 46.)
EN BANC

G.R. No. L-42300 January 31, 1936

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
AMADEO CORRAL, defendant-appellant.

Generoso, Pelayo, Castillo, Braganza, Chavez, Doromal, Diaz and Capili for appellant.
Office of the Solicitor General Hilado for appellee.

ABAD SANTOS, J.:

Appellant was charged having voted illegally at the general elections held on June 5, 1934. After due trial,
he was convicted on the ground that he had voted while laboring under a legal disqualification. The
judgment of conviction was based on section 2642, in connection with section 432. of the Revised
Administrative Code.

Said Section 432 reads as follows:

The following persons shall be disqualified from voting:

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

(b) Any person who has violated an oath of allegiance taken by him to the United States.

(c) Insane of feeble-minded persons.

(d) Deaf-mutes who cannot read and write.

(e) Electors registered under subsection (c) of the next proceeding section who, after failing to
make sworn statement to the satisfaction of the board of inspectors at any of its two meetings for
registration and revision, that they are incapacitated for preparing their ballots due to permanent
physical disability, present themselves at the hour of voting as incapacitated, irrespective of
whether such incapacity be real or feigned.

And section 2642 provides:

Whoever at any election votes or attempts to vote knowing that he is not entitled so to do, ... shall
be punished by imprisonment for not less than one month nor more than one year and by a fine
of not less than one hundred pesos nor more than one thousand pesos, and in all cases by
deprivation of the right of suffrage and disqualification from public office for a period of not more
than four years.

It is undisputed that appellant was sentenced by final judgment of this court promulgated on March 3,
1910,1 to suffer eight years and one day of presidio mayor. No evidence was presented to show that prior
to June 5, 1934, he had been granted a plenary pardon. It is likewise undisputed that at the general
elections held on June 5, 1934, the voted in election precinct No. 18 of the municipality of Davao,
Province of Davao.
The modern conception of the suffrage is that voting is a function of government. The right to vote is not a
natural right but is a right created by law. Suffrage is a privilege granted by the State to such persons or
classes as are most likely to exercise it for the public good. In the early stages of the evolution of the
representative system of government, the exercise of the right of suffrage was limited to a small portion of
the inhabitants. But with the spread of democratic ideas, the enjoyment of the franchise in the modern
states has come to embrace the mass of the audit classes of persons are excluded from the franchise.
Among the the generally excluded classes are minors idiots, paupers, and convicts.

The right of the State to deprive persons to the right of suffrage by reason of their having been convicted
of crime, is beyond question. "The manifest purpose of such restrictions upon this right is to preserve the
purity of elections. The presumption is that one rendered infamous by conviction of felony, or other base
offense indicative of moral turpitude, is unfit to exercise the privilege of suffrage or to hold office. The
exclusion must for this reason be adjudged a mere disqualification, imposed for protection and not for
punishment, the withholding of a privilege and not the denial of a personal right. (9 R.C.L., 1042.)

Upon the facts established in this case, it seems clear that the appellant was not entitled to vote on June
5 1934, because of section 432 of the Revised Administrative Code which disqualified from voting any
person who, since the 13th day of August, 1898, had been sentenced by final judgment to offer not less
than eighteen months of imprisonment, such disability not having been removed by plenary pardon. As
above stated, the appellant had been sentenced by final judgment to suffer eight years and one day
of presidio mayor, and had not been granted a plenary pardon.

Counsel for the appellant contend that inasmuch as the latter voted in 1928 his offense had already
prescribed, and he could no longer be prosecuted for illegal voting at the general election held on June 5,
1934. This contention is clearly without merit. The disqualification for crime imposed under section 432 of
the Revised Administrative Code having once attached on the appellant and not having been
subsequently removed by a plenary pardon, continued and rendered it illegal for the appellant to vote at
the general elections of 1934.

Neither is there any merit in the contention advanced by counsel for the appellant that the disqualification
imposed on the latter must be considered as having been removed at the expiration of his sentence. This
claim is based upon an erroneous theory of the nature of the disqualification. It regards it as a punishment
when, as already indicated, the correct view is that it is imposed, "for protection and not for punishment,.
the withholding of a prvilege and not the denial of a personal right." Judicial interpretation and long
established administrative practice are against such a view.

The judgment appealed from is affirmed with costs against the appellant. So ordered.

Villa-Real, Vickers, Imperial, Butte, and Goddard, JJ., concur.

Separate Opinions

AVANCEA, C.J., dissenting:

The appealed judgment affirmed by the majority members of this court sentences the appellant for having
voted in the general election held on June 5, 1934, in the municipality of Davao, Province of Davao, being
disqualified from voting. The appellant, in my opinion, was not disqualified from voting.

The appellant was sentenced to the penalty of eight years and one day of prision mayor in the year 1910.
This penalty carried with it, as an accessory, disqualification from the right of suffrage during the term of
the sentence. He began to serve his sentence on April 11, 1910. He was granted a conditional pardon on
July 31, 1913. Inasmuch as the accessory penalty of disqualification from the right of suffrage was not
expressly remitted in this pardon, it is understood that he complied with and extinguished this part of the
sentence on April 12, 1918. Therefore, under the penalty imposed upon the appellant, he was not
disqualified from voting in 1934.

The majority, however bases its decision on section 432 of the administrative Code which reads:

The following persons shall be disqualified from voting:

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

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

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

It cannot be said to harmonize these provisions, that the disqualification from the right of suffrage should
be imposed only when the penalty of imprisonment imposed therein less than eighteen months because it
is expressly required that both penalties be imposed in all cases.

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

I am of the opinion that this anomaly can be avoided only by interpreting section 432 in the sense that the
disqualification referred to therein is merely during the term of the sentence.

RECTO, J.:

I concur in this dissenting opinion of Chief Justice Avancea.

I hereby certify that Hon. George A. Malcolm, Associate Justice, participated in this decision and voted to
affirm the judgment. AVANCEA, C.J.
Footnotes

1
U.S. vs. Corral, 15 Phil., 383.

EN BANC

[G.R. No. 134696. July 31, 2000]

TOMAS T. BANAGA, JR., petitioner, vs. COMMISSION ON ELECTIONS and FLORENCIO M.

BERNABE, JR., respondents.

DECISION
QUISUMBING, J.:

This special civil action for certiorari seeks to annul the en banc resolution of public respondent
Commission on Elections promulgated on June 29, 1998, in a COMELEC special action case, SPA No.
98-383.
The factual antecedents of this case are as follows:
Petitioner and private respondent were the candidates for vice-mayor of the City of Paraaque in the
May 11, 1998 election. On May 19, 1998, the city board of canvassers proclaimed private respondent,
Florencio M. Bernabe, Jr., the winner for having garnered a total of Seventy One Thousand Nine Hundred
Seventy Seven (71,977) votes of the total votes cast for the vice-mayoralty position. On the other hand,
petitioner, Tomas T. Banaga, Jr., received the second highest number of votes for the said position, with
Sixty Eight Thousand Nine Hundred Seventy (68,970) of the total votes cast. Thus, the difference
between the votes received by the private respondent and the petitioner is three thousand seven (3,007)
votes.
Dissatisfied, petitioner filed with the COMELEC on May 29, 1998, an action denominated as Petition
to Declare Failure of Elections and/or For Annulment of Elections,[1] alleging that:

3. xxx the local elections for the office of Vice-Mayor in the City of Paraaque, Metro Manila, held on 11
May 1998, amounts to a denigration of the expression of the true will of the people, as it was tainted with
widespread election anomalies which constitutes election fraud. The local elections for the position of
Vice-Mayor in the City of Paraaque, Metro Manila, was replete with election offenses, specifically vote
buying and flying voters being allowed to vote. Moreover, during the canvassing of votes before the Board
of Canvasser, numerous Election Returns were discovered to contain glaring discrepancies and are
replete with blatant omissions, not to mention the fact that numerous election returns appeared to be
tampered with. All told, it is readily apparent that the portion of the Election Returns pertaining to the
position of Vice-Mayor in the City of Paraaque, appear to be altered, falsified or fabricated.

4. The will of the legitimate voters of the City of Paraaque were denigrated during the 11 May 1998
election as a consequence of the fact that an indeterminable number of flying voters were allowed to vote.

xxx
5. The 11 May 1998 elections for local officials in the City of Paraaque has likewise been marred by
massive vote buying. To cite but one example, in Precinct Nos. 111-112 at the Tambo Elementary School
in the City of Paraaque, a certain Dennis Sambilay Agayan (Agayan) was arrested for voting in
substitution of registered voter Ramon Vizcarra. Agayan admitted before SPO1 Alberto V. Parena that he
was paid One Hundred Fifty Pesos (P150.00) to vote at precincts No. 111-112 and use the name Ramon
Vizcarra.As proof of the foregoing, attached hereto as Annex E is the Information dated 11 May 1998 filed
against Agayan.

The magnitude of the vote buying in the 11 May 1998 local elections in the City of Paraaque, is such that
the voters involved number in the thousands. Evidence in this regard shall be presented in the proper
time.

6. Also, there have been several instances where purported voters were depositing more than one (1)
ballot inside the ballot box. As evidence thereof, attached hereto as Annex F is the Affidavit of a certain
Rosemarie Pascua of Barangay Baclaran, City of Paraaque.

7. The foregoing incidents alone actually suffices to establish that a failure of elections should be declared
on the ground that the will of the electorate of the City of Paraaque has been denigrated. The elections for
the office of the Vice-Mayor in the City of Paraaque, on 11 May 1998 cannot be considered as reflective of
the true will of the electorate. However, the anomalies do not stop there.

8. In addition to the foregoing, during the canvassing of votes before the Board of Canvassers, it was
discovered that numerous election returns contain glaring discrepancies and are replete with blatant
omissions, not to mention the fact that several election returns appeared to be tampered with or appear to
be fabricated. The Honorable Commission should seriously consider these anomalies specially on
account of the fact that the lead of the respondent over the petitioner is a mere Three Thousand Seven
(3,007) votes.

xxx

9. Moreover, several Election Returns are found to have glaring discrepancies which may materially alter
the results of the election for the office of Vice-Mayor in the City of Paraaque.

xxx

10. Finally, what seriously casts doubt on the legitimacy of the elections for the office of the Vice-Mayor in
the City of Paraaque is the fact that the results thereof are statistically improbable. A case in point is
precinct number 483 where petitioner shockingly is supposed to have received zero (0) votes. Petitioner
is the incumbent Vice-Mayor of the City of Paraaque. It is, thus, impossible that he will receive zero (0)
votes in any given precinct.[2]

Petitioner asked the COMELEC for the following reliefs:

1. After trial, judgment be rendered as follows:

1.1 Declaring a failure of elections, or declaring the annulment of the elections, for the office of the Vice-
Mayor in the City of Paraaque, Metro Manila;

1.2. Annulling the proclamation of the respondent as the elected Vice-Mayor of the City of Paraaque,
Metro Manila, during the 11 May 1998 elections; and

1.3. Declaring that special elections should be held for the office of Vice-Mayor in the City of Paraaque,
Metro Manila.
2. Alternatively, in the remote event that the Honorable Commission does not render judgment as
aforesaid, an order be issued to the Treasurer of the City of Paraaque to bring and present before this
Honorable Commission on or before the day of the hearing of the Election Protest, the ballot boxes,
copies of the registry lists, election returns, the minutes of election in all precincts, and the other
documents used in the local elections for the Office of the Vice-Mayor held on 11 May 1998 in the said
City, for the Honorable Commission to re-examine and revise the same; and

3. After due trial judgment be rendered as follows:

3.1. The election of respondent FLORENCIO M. BERNABE, JR., for the office of Vice-Mayor in the City of
Paraaque, Metro Manila be annulled;

3.2. The petitioner, TOMAS T. BANAGA, JR., be adjudged as the duly elected Vice-Mayor in the City of
Paraaque, during the 11 May 1998 local elections; and

3.3. The expenses, costs and damages incurred in these proceedings be assessed against the
respondent.

Other just and equitable reliefs are likewise prayed for.[3]

On June 29, 1998, the COMELEC dismissed petitioners suit. It held that the grounds relied upon by
petitioner do not fall under any of the instances enumerated in Section 6 of the Omnibus Election
Code.The election tribunal concluded that based on the allegations of the petition, it is clear that an
election took place and that it did not result in a failure to elect. [4]
Considering that a motion for reconsideration of a COMELEC en banc ruling is prohibited, except in
a case involving an election offense, [5] and aggrieved by the COMELECs dismissal of his suit, petitioner
timely filed the instant petition for certiorari with this Court.
Before us, petitioner now claims that the COMELEC committed grave abuse of discretion amounting
to lack or excess of jurisdiction when it dismissed his petition motu propio without any basis whatsoever
and without giving him the benefit of a hearing. He contends that:
I

THE PETITION DATED 28 MAY 1998 IS ESSENTIALLY AN ELECTION PROTEST. HENCE, THE
COMELEC COULD NOT LEGALLY DISMISS THE ENTIRE PETITION MERELY ON THE GROUND
THAT THERE WAS ALLEGEDLY NO FAILURE OF ELECTION IN THE CITY OF PARANAQUE
DURING THE 11 MAY 1998 ELECTIONS.

II

THE AUTHORITY RELIED UPON BY THE COMELEC AS BASIS FOR THE DISMISSAL OF THE
PETITION DATED 28 MAY 1998, THAT OF EDWIN SAR[D]EA, ET. AL. V. COMELEC, ET. AL.,
AND MITMUG V. COMELEC, ARE NOT APPLICABLE TO THE CASE AT BAR CONSIDERING
THAT ASIDE FROM BEING AN ELECTION PROTEST, THE SAID PETITION SEEKS THE
ANNULMENT OF AN ELECTION PURSUANT TO THE DOCTRINE LAID DOWN BY THE
HONORABLE SUPREME COURT IN LOONG V. COMELEC.[6]

Clearly, the issue for our resolution is whether or not public respondent acted with grave abuse of
discretion in dismissing petitioners petition, in the light of petitioners foregoing contentions.
While petitioner may have intended to institute an election protest by praying that said action may
also be considered an election protest, in our view, petitioners action is a petition to declare a failure of
elections or annul election results. It is not an election protest.
 First, his petition before the COMELEC was instituted pursuant to Section 4 of Republic Act No. 7166
in relation to Section 6 of the Omnibus Election Code. Section 4 of RA 7166 refers to postponement,
failure of election and special elections[7] while Section 6 of the Omnibus Election Code relates to failure
of election. It is simply captioned as Petition to Declare Failure of Elections and/or For Annulment of
Elections.
Second, an election protest is an ordinary action while a petition to declare a failure of elections is a
special action under the 1993 COMELEC Rules of Procedure as amended. An election protest is
governed by Rule 20 on ordinary actions, while a petition to declare failure of elections is covered by Rule
26 under special actions.
In this case, petitioner filed his petition as a special action and paid the corresponding fee
therefor.Thus, the petition was docketed as SPA-98-383. This conforms to petitioners categorization of his
petition as one to declare a failure of elections or annul election results. In contrast, an election protest is
assigned a docket number starting with EPC, meaning election protest case.
Third, petitioner did not comply with the requirements for filing an election protest. He failed to pay
the required filing fee and cash deposits for an election protest. Failure to pay filing fees will not vest the
election tribunal jurisdiction over the case. Such procedural lapse on the part of a petitioner would clearly
warrant the outright dismissal of his action.
Fourth, an en banc decision of COMELEC in an ordinary action becomes final and executory after
thirty (30) days from its promulgation, while an en banc decision in a special action becomes final and
executory after five (5) days from promulgation, unless restrained by the Supreme Court. [8] For that
reason, a petition cannot be treated as both an election protest and a petition to declare failure of
elections.
Fifth, the allegations in the petition decisively determine its nature. Petitioner alleged that the local
elections for the office of vice-mayor in Paraaque City held on May 11, 1998, denigrates the true will of
the people as it was marred with widespread anomalies on account of vote buying, flying voters and
glaring discrepancies in the election returns. He averred that those incidents warrant the declaration of a
failure of elections.[9]
Given these circumstances, public respondent cannot be said to have gravely erred in treating
petitioners action as a petition to declare failure of elections or to annul election results.
The COMELECs authority to declare a failure of elections is provided in our election laws. Section 4
of RA 7166 provides that the COMELEC sitting en banc by a majority vote of its members may decide,
among others, the declaration of failure of election and the calling of special election as provided in
Section 6 of the Omnibus Election Code. Said Section 6, in turn, provides as follows:

Section 6. Failure of Elections. --- If, on account of force majeure, violence, terrorism, fraud or other
analogous causes the election in any polling place has not been held on the date fixed, or had been
suspended before the hour fixed by law for the closing of the voting, or after the voting and during the
preparation and the transmission of the election returns or in the custody or canvass thereof, such
election results in a failure to elect, and in any of such cases the failure or suspension of election would
affect the result of the election, the Commission shall, on the basis of verified petition by any interested
party and after due notice and hearing, call for the holding or continuation of the election not held,
suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not
held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of
the cause of such postponement or suspension of the election or failure to elect.

There are three instances where a failure of election may be declared, namely, (a) the election in any
polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud
or other analogous causes; (b) the election in any polling place has been suspended before the hour fixed
by law for the closing of the voting on account of force majeure, violence, terrorism, fraud or other
analogous causes; or (c) after the voting and during the preparation and transmission of the election
returns or in the custody or canvass thereof, such election results in a failure to elect on account of force
majeure, violence, terrorism, fraud or other analogous causes. In these instances, there is a resulting
failure to elect. This is obvious in the first two scenarios, where the election was not held and where the
election was suspended.As to the third scenario, where the preparation and the transmission of the
election returns give rise to the consequence of failure to elect must as aforesaid, is interpreted to mean
that nobody emerged as a winner.[10]
Before the COMELEC can act on a verified petition seeking to declare a failure of election two
conditions must concur, namely (1) no voting took place in the precinct or precincts on the date fixed by
law, or even if there was voting, the election resulted in a failure to elect; and (2) the votes not cast would
have affected the result of the election. [11] Note that the cause of such failure of election could only be any
of the following: force majeure, violence, terrorism, fraud or other analogous causes.
We have painstakingly examined the petition filed by petitioner Banaga before the COMELEC. But
we found that petitioner did not allege at all that elections were either not held or suspended. Neither did
he aver that although there was voting, nobody was elected. On the contrary, he conceded that an
election took place for the office of vice-mayor of Paraaque City, and that private respondent was, in fact,
proclaimed elected to that post. While petitioner contends that the election was tainted with widespread
anomalies, it must be noted that to warrant a declaration of failure of election the commission of fraud
must be such that it prevented or suspended the holding of an election, or marred fatally the preparation
and transmission, custody and canvass of the election returns. These essential facts ought to have been
alleged clearly by the petitioner below, but he did not.
In Mitmug vs. COMELEC,[12] petitioner instituted with the COMELEC an action to declare failure of
election in forty-nine precincts where less than a quarter of the electorate were able to cast their votes. He
also lodged an election protest with the Regional Trial Court disputing the result of the election in all
precincts in his municipality. The COMELEC denied motu propio and without due notice and hearing the
petition to declare failure of election despite petitioners argument that he has meritorious grounds in
support thereto, that is, massive disenfranchisement of voters due to terrorism. On review, we ruled that
the COMELEC did not gravely abuse its discretion in denying the petition. It was not proven that no actual
voting took place. Neither was it shown that even if there was voting, the results thereon would be
tantamount to failure to elect. Considering that there is no concurrence of the conditions seeking to
declare failure of election, there is no longer need to receive evidence on alleged election irregularities.
In Sardea vs. COMELEC,[13] all election materials and paraphernalia with the municipal board of
canvassers were destroyed by the sympathizers of the losing mayoralty candidate. The board then
decided to use the copies of election returns furnished to the municipal trial court. Petitioner therein filed a
petition to stop the proceedings of the board of canvassers on the ground that it had no authority to use
said election returns obtained from the municipal trial court. The petition was denied. Next, he filed a
petition assailing the composition of the board of canvassers. Despite that petition, the board of
canvassers proclaimed the winning candidates. Later on, petitioner filed a petition to declare a failure of
election alleging that the attendant facts would justify declaration of such failure. On review, we ruled that
petitioners first two actions involved pre-proclamation controversies which can no longer be entertained
after the winning candidates have been proclaimed. Regarding the petition to declare a failure of election,
we held that the destruction and loss of copies of election returns intended for the municipal board of
canvassers on account of violence is not one of the causes that would warrant the declaration of failure of
election. The reason is that voting actually took place as scheduled and other valid election returns still
existed. Moreover, the destruction or loss did not affect the result of the election. We also declared that
there is failure of elections only when the will of the electorate has been muted and cannot be
ascertained.If the will of the people is determinable, the same must as far as possible be respected.
These aforecited cases are instructive in the resolution of the present case because they involve
similar actions and issues. No error could be attributed to public respondent for its reliance on these
precedents.
In Loong vs. Comelec,[14] the petition for annulment of election results or to declare failure of
elections in Parang, Sulu, on the ground of statistical improbability and massive fraud was granted by the
COMELEC.[15] Even before the technical examination of election documents was conducted, the
COMELEC already observed badges of fraud just by looking at the election results in
Parang.Nevertheless, the COMELEC dismissed the petition for annulment of election results or to declare
failure of elections in the municipalities of Tapul, Panglima Estino, Pata, Siasi and Kalinggalang
Calauag. The COMELEC dismissed the latter action on ground of untimeliness of the petition, despite a
finding that the same badges of fraud evident from the results of the election based on the certificates of
canvass of votes in Parang, are also evident in the election results of the five mentioned
municipalities. We ruled that COMELEC committed grave abuse of discretion in dismissing the petition as
there is no law which provides for a reglementary period to file annulment of elections when there is yet
no proclamation. The election resulted in a failure to elect on account of fraud. Accordingly, we ordered
the COMELEC to reinstate the aforesaid petition. Those circumstances, however, are not present in this
case, so that reliance on Loong by petitioner Banaga is misplaced.
Petitioner argues that the COMELEC should not have treated his prayer for annulment of elections
as a prayer for declaration of failure of elections. [16] This argument is plainly gratuitous as well as
immaterial.A prayer to declare failure of elections and a prayer to annul the election results for vice mayor
in this case are actually of the same nature. Whether an action is for declaration of failure of elections or
for annulment of election results, based on allegations of fraud, terrorism, violence or analogous cause,
the Omnibus Election Code denominates them similarly.[17] No positive gain will accrue to petitioners
cause by making a distinction without a difference.
Finally, petitioner claims that public respondent gravely abused its discretion when it dismissed his
petition motu propio. However, the fact that a verified petition has been filed does not mean that a hearing
on the case should first be held before COMELEC can act on it. The petition to declare a failure of
election and/or to annul election results must show on its face that the conditions necessary to declare a
failure to elect are present. In their absence, the petition must be denied outright. [18] Public respondent
had no recourse but to dismiss petition. Nor may petitioner now complain of denial of due process, on this
score, for his failure to properly file an election protest. The COMELEC can only rule on what was filed
before it. It committed no grave abuse of discretion in dismissing his petition to declare failure of elections
and/or for annulment of elections for being groundless, hence without merit.
WHEREFORE, the instant petition is DISMISSED. The assailed RESOLUTION of public respondent
is AFFIRMED. Costs against petitioner.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Purisima, Buena, Gonzaga-
Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Bellosillo, J., on official leave.
Pardo, J., no part.

[1]
The Petition is dated May 28, 1998.
[2]
Rollo, pp. 38-49.
[3]
Id. at 49-51.
[4]
Id. at 29-30.
[5]
Section 1 (d), Rule 13, 1993 COMELEC Rules of Procedure, as amended.
[6]
Rollo, p. 10.
[7]
Republic Act 7166, Section 4. Postponement, Failure of Election and Special Elections.--- The postponement,
declaration of failure of election and the calling of special elections as provided in Sections 5, 6 and 7 of the
Omnibus Election Code shall be decided by the Commission sitting en banc by a majority vote of its members. The
cause for the declaration of a failure of election may occur before or after the casting of votes or on the day of
election. xxx
[8]
COMELEC Rules of Procedure, Rule 18, Section 13 (a), (b).
[9]
Rollo, pp. 39-43.
[10]
Typoco vs. COMELEC, GR-136191, November 29, 1999, p. 9.
[11]
Mitmug vs. COMELEC, 230 SCRA 54, 60 (1994).
[12]
Mitmug vs. COMELEC, 230 SCRA 54 (1994).
[13]
Sardea vs. COMELEC, 225 SCRA 374 (1993).
[14]
257 SCRA 1 (1996).
[15]
Id. at 31-32.
[16]
Rollo, p. 20.
[17]
Loong vs. COMELEC, 257 SCRA 1, 16, 23 (1996).
[18]
Mitmug vs. COMELEC, 230 SCRA 54, 61 (1994).