Laws on Suffrage
EN BANC
[G.R. No. 150605. December 10, 2002]
EUFROCINO M. CODILLA, SR., petitioner, vs. HON. JOSE DE VENECIA,
ROBERTO P. NAZARENO, in their official capacities as Speaker and
Secretary-General of the House of Representatives, respectively, and
MA. VICTORIA L. LOCSIN, respondents.
DECISION
PUNO, J.:
In a democracy, the first self-evident principle is that he who has been rejected
by the people cannot represent the people. Respondent Ma. Victoria L. Locsin lost to
petitioner Eufrocino M. Codilla, Sr. by 17,903 votes in the May 14, 2001 elections as
Representative of the 4th legislative district of Leyte. The most sophisticated legal
alchemy cannot justify her insistence that she should continue governing the people
of Leyte against their will. The enforcement of the sovereign will of the people is not
subject to the discretion of any official of the land.
This is a Petition for Mandamus and Quo Warranto directed against
respondents Speaker Jose De Venecia and Secretary-General Roberto P. Nazareno
of the House of Representatives to compel them to implement the decision of the
Commission on Elections en banc by (a) administering the oath of office to petitioner
as the duly-elected Representative of the 4th legislative district of Leyte, and (b)
registering the name of the petitioner in the Roll of Members of the House of
Representatives, and against respondent Ma. Victoria L. Locsin for usurping,
intruding into, and unlawfully holding and exercising the said public office on the basis
of a void proclamation.
The facts are uncontroverted. Petitioner and respondent Locsin were candidates
for the position of Representative of the 4 th legislative district of Leyte during the May
14, 2001 elections. At that time, petitioner was the Mayor of Ormoc City while
respondent Locsin was the sitting Representative of the 4 th legislative district of
Leyte. On May 8, 2001, one Josephine de la Cruz, a registered voter of Kananga,
Leyte, filed directly with the COMELEC main office a Petition for
Disqualification[1] against the petitioner for indirectly soliciting votes from the
registered voters of Kananga and Matag-ob, Leyte, in violation of Section 68 (a) of the
Omnibus Election Code. It was alleged that the petitioner used the equipments and
vehicles owned by the City Government of Ormoc to extract, haul and distribute
gravel and sand to the residents of Kananga and Matag-ob, Leyte, for the purpose of
inducing, influencing or corrupting them to vote for him. Attached to the petition are
the (a) Affidavits of Basilio Bates,[2] Danilo D. Maglasang,[3] Cesar A. Laurente;[4] (b)
Joint Affidavit of Agripino C. Alferez and Rogelio T. Salvera;[5] (c) Extract Records
from the Police Blotter executed by Police Superintendent Elson G. Pecho; [6] and (d)
Photographs showing government dump trucks, haulers and surfacers and portions of
public roads allegedly filled-in and surfaced through the intercession of the
respondent.[7] The case was docketed as SPA No. 01-208 and assigned to the
COMELECs Second Division.
On May 10, 2001, the COMELEC Second Division issued an Order delegating
the hearing and reception of evidence on the disqualification case to the Office of the
Regional Director of Region VIII. [8] On May 11, 2001, the COMELEC Second Division
sent a telegram informing the petitioner that a disqualification case was filed against
him and that the petition was remanded to the Regional Election Director for
investigation.[9]
At the time of the elections on May 14, 2001, the Regional Election Director
had yet to hear the disqualification case. Consequently, petitioner was included in
the list of candidates for district representative and was voted for. The initial results
showed that petitioner was the winning candidate.
On May 16, 2001, before the counting could be finished, respondent Locsin
joined as intervenor in SPA No. 128 and filed a Most Urgent Motion to Suspend
Proclamation of Respondent [herein petitioner] with the COMELEC Second
Division.[10] Respondent Locsin alleged that the evidence on record against
respondent is very strong and unless rebutted remains. She urged the Commission to
set the hearing of the disqualification case and prayed for the suspension of the
proclamation of the respondent so as not to render the present disqualification case
moot and academic. A copy of the Motion was allegedly served on petitioner by
registered mail but no registry receipt was attached thereto.[11]
On May 18, 2001, respondent Locsin filed a Second Most Urgent Motion to
Suspend Proclamation of Respondent stating there is clear and convincing
evidence showing that the respondent is undoubtedly guilty of the charges against
him and this remains unrebutted by the respondent. A copy of the Motion was sent to
the petitioner and the corresponding registry receipt was attached to the pleading.
[12]
 The records, however, do not show the date the petitioner received the motion.
On the same day, May 18, 2001, the COMELEC Second Division issued
an Ex-Parte Order[13] directing the Provincial Board of Canvassers of Leyte to
suspend the proclamation of petitioner in case he obtains the highest number of votes
by reason of the seriousness of the allegations in the petition for disqualification. [14] It
also directed the Regional Election Director to speed up the reception of evidence
and to forward immediately the complete records together with its recommendation to
the Office of the Clerk of the Commission. [15] As a result, petitioner was not
proclaimed as winner even though the final election results showed that he garnered
71,350 votes as against respondent Locsins 53,447 votes.[16]
At the time that the COMELEC Second Division issued its Order suspending his
proclamation, the petitioner has yet to be summoned to answer the petition for
disqualification. Neither has said petition been set for hearing. It was only on May 24,
2001 that petitioner was able to file an Answer to the petition for his disqualification
with the Regional Election Director, alleging that: (a) he has not received the
summons together with the copy of the petition; (b) he became aware of the matter
only by virtue of the telegram sent by the COMELEC Second Division informing him
that a petition was filed against him and that the Regional Election Director was
directed to investigate and receive evidence therewith; and (c) he obtained a copy of
the petition from the COMELEC Regional Office No. 8 at his own instance.
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 Laws on Suffrage
[17]
 Petitioner further alleged that the maintenance, repair and rehabilitation of
barangay roads in the municipalities of Matag-ob and Kananga were undertaken
without his authority, participation or directive as City Mayor of Ormoc. He attached in
his Answer the following: (a) Affidavit of Alex B. Borinaga; [18] (b) Copy of the Excerpt
from the Minutes of the Regular Session of Barangay Monterico;[19] (c) Affidavit of
Wilfredo A. Fiel;[20] (d) Supplemental Affidavit of Wilfredo A. Fiel; [21] and (e) Affidavit of
Arnel Y. Padayao.[22]
On May 25, 2001, petitioner filed a Motion to Lift Order of Suspension,
[23]
 alleging that (a) he did not receive a copy of the Motion to Suspend his
Proclamation and hence, was denied the right to rebut and refute the allegations in
the Motion; (b) that he did not receive a copy of the summons on the petition for
disqualification and after personally obtaining a copy of the petition, filed the requisite
answer only on May 24, 2001; and (c) that he received the telegraph Order of the
COMELEC Second Division suspending his proclamation only on May 22, 2001. He
attached documentary evidence in support of his Motion to Lift the Suspension of his
proclamation, and requested the setting of a hearing on his Motion.[24]
On May 30, 2001, an oral argument was conducted on the petitioners Motion
and the parties were ordered to submit their respective memoranda. [25] On June 4,
2001, petitioner submitted his Memorandum[26] in support of his Motion assailing the
suspension of his proclamation on the grounds that: (a) he was not afforded due
process; (b) the order has no legal and factual basis; and (c) evidence of his guilt is
patently inexistent for the purpose of suspending his proclamation. He prayed that his
proclamation as winning congressional candidate be expediently made, even while
the disqualification case against him continue upon due notice and hearing. He
attached the following additional evidence in his Memorandum: (a) Copy of
certification issued by PNP Senior Inspector Benjamin T. Gorre;[27] (b) Certification
issued by Elena S. Aviles, City Budget Officer;[28] (c) Copy of certification issued by
Wilfredo A. Fiel, City Engineer of Ormoc;[29] (d) Joint Affidavit of Antonio Patenio and
Pepito Restituto;[30] and (e) Affidavits of Demetrio Brion, [31] Igmedio Rita[32] and
Gerardo Monteza.[33] Respondent Locsins memorandum also contained additional
affidavits of his witnesses.[34]
Petitioners Motion to Lift the Order of Suspension, however, was not
resolved. Instead, on June 14, 2001, the COMELEC Second Division promulgated
its Resolution[35] in SPA No. 01-208 which found the petitioner guilty of indirect
solicitation of votes and ordered his disqualification. It directed the immediate
proclamation of the candidate who garnered the highest number of votes xxx. A
copy of said Resolution was sent by fax to the counsel of petitioner in Cebu City in
the afternoon of the following day.[36]
By virtue of the said Resolution, the votes cast for petitioner, totaling 71,350,
were declared stray even before said Resolution could gain finality. On June 15,
2001, respondent Locsin was proclaimed as the duly elected Representative of the
4th legislative district of Leyte by the Provincial Board of Canvassers of Leyte. It
issued a Certificate of Canvass of Votes and Proclamation of the Winning Candidates
for Member of the House of Representatives stating that MA. VICTORIA
LARRAZABAL LOCSIN obtained a total of FIFTY THREE THOUSAND FOUR
HUNDRED FORTY SEVEN (53,447) votes representing the highest number of
votes legally cast in the legislative district for said office. [37] Respondent Locsin took
her oath of office on June 18, 2001 and assumed office on June 30, 2001.
On June 20, 2001, petitioner seasonably filed with the COMELEC en banc a
Motion for Reconsideration[38] from the June 14, 2001 Resolution of the COMELEC
Second Division which ordered his disqualification, as well as an Addendum to the
Motion for Reconsideration.[39] Petitioner alleged in his Motion for Reconsideration
that the COMELEC Second Division erred: (1) in disqualifying petitioner on the
basis solely of the dubious declaration of the witnesses for respondent Locsin; (2) in
adopting in toto the allegations of the witnesses for respondent Locsin; and (3) in
promulgating the resolution in violation of its own rules of procedure and in directing
therein the immediate proclamation of the second highest vote getter. Respondent
Locsin and her co-petitioner in SPA No. 01-208 filed a joint Opposition to the Motion
for Reconsideration.[40]
On June 21, 2001, petitioner filed with the COMELEC en banc a Petition for
Declaration of Nullity of Proclamation,[41] docketed as SPC No. 01-324, assailing
the validity of the proclamation of respondent Locsin who garnered only the second
highest number of votes. Respondent Locsin filed her Answer alleging that: (1) the
Commission lost jurisdiction to hear and decide the case because of the proclamation
of Locsin and that any question on the election, returns, and qualification of Locsin
can only be taken cognizance of by the House of Representatives Electoral Tribunal
(HRET); (2) the case should be filed and heard in the first instance by a Division of
the Commission and not directly by the Commission en banc; and (3) the
proclamation of Locsin was valid because she received the highest number of valid
votes cast, the votes of Codilla being stray.
On June 28, 2001, petitioner filed an Urgent Manifestation[42] stating that he
was deprived of a fair hearing on the disqualification case because while the
documentary evidence adduced in his Memorandum was in support of his
Motion for the lifting of the suspension of his proclamation, the COMELEC
Second Division instead ruled on the main disqualification case. In consonance
with his prayer that a full-dress hearing be conducted on the disqualification case, he
submitted Affidavits of additional witnesses [43] which he claims would refute and
substantially belie the allegations of petitioners/intervenors witnesses. A Reply,
[44]
 Rejoinder[45] and Sur-Rejoinder[46] were respectively filed by the parties.
Consequently, the motion for reconsideration in SPA No. 01-208 and the petition for
declaration of nullity in SPC No. 01-324 were submitted for resolution.
From the records, it appears that initially, a Resolution penned by Commissioner
Rufino S.B. Javier, dated July 24, 2001, was submitted to the Office of the Chairman,
dismissing the petition for declaration of nullity for lack of jurisdiction and denying the
motion for reconsideration filed by petitioner Codilla. [47] Commissioners Florentino A.
Tuason, Jr. and Resurreccion Z. Borra submitted their respective dissenting
opinions[48] to the Javier resolution. It bears emphasis that Commissioner Tuason, Jr.
was the ponente of the Resolution of the COMELEC Second Division which ordered
the disqualification of petitioner but after considering the additional evidence
presented by the latter, he concluded that the totality of the evidence was clearly in
petitioners favor. Equally worth mentioning is the fact that Commissioner Ralph C.
Lantion, who was the Presiding Commissioner of the Second Division, also dissented
and voted to grant Codillas motion for reconsideration on the ground that [T]he people
of Leyte have spoken and I respect the electorates will. x x x. [49]
On August 29, 2001, then COMELEC Chairman Alfredo L. Benipayo issued a
Vote and Opinion and Summary of Votes reversing the resolution of the Second
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 Laws on Suffrage
Division and declaring the proclamation of respondent Locsin as null and
void. The dispositive portion reads:
JUDGMENT
WHEREFORE, in view of all the foregoing considerations, I concur with
Commissioner Resurreccion Z. Borra, Commissioner Florentino A. Tuason, Jr. and
Commissioner Ralph C. Lantion, in SPA No. 01-208, to GRANT the motion for
reconsideration and to REVERSE the resolution of the Commission (Second Division)
promulgated on June 1, 2001, disqualifying Codilla; and subsequently, in SPC No.
01-324, to GRANT the petition of Eufrocino M. Codilla, Sr., and declare as null and
void the proclamation of losing candidate Locsin.
Accordingly:
1. On the Motion for Reconsideration of the disqualification resolution against Codilla,
promulgated by the Commission (Second Division) on June 14, 2001 (SPA No. 01-
208), I vote:
(a) to GRANT the Motion for Reconsideration of respondent-
movant Eufrocino M. Codilla, Sr., and to REVERSE the
Resolution of the Commission (Second Division)
promulgated on June 14, 2001, for insufficiency of
evidence;
(b) to lift the order of suspension of proclamation of petitioner
Codilla, issued by the Commission (Second Division) on
May 18, 2001, having been issued without hearing and
without any finding that the evidence of guilt of petitioner
Codilla is strong and, thus, null and void;
(c) to nullify the order contained in the Resolution of the
Commission (Second Division) promulgated on June 14,
2001, for (t)he immediate proclamation of the candidate
who garnered the highest number of votes, to the
exclusion of respondent and the concurrent order for the
Provincial Board of Canvasser (sic) of Leyte to
immediately reconvene and thereafter proclaim forthwith
the candidate who obtained the highest number of votes
counting out the Respondent the same being violative of
election laws, established jurisprudence, and resolutions
of the Commission;
(d) to nullify the ruling contained in the Resolution of the
Commission (Second Division) promulgated o June 14,
2001, that the votes of respondent Codilla are considered
stray and invalid said ruling being issued on the basis of
an inapplicable decision, and contrary to established
jurisprudence;
(e) to order the Provincial Board of Canvassers of Leyte, upon
the finality of this resolution, to reconvene and proclaim
petitioner Codilla as the winning candidate for
Representative of the Fourth Legislative district of Leyte to
comply with its ministerial duty to proclaim the candidate
who garnered the highest number of votes in the elections
for that position; and
(f) to order intervenor-oppositor Locsin, upon the finality of
this resolution, to vacate the office of Representative of
the House of Representatives representing the Fourth
legislative district of Leyte and, for this purpose, to inform
the House of Representatives through the Honorable
Speaker of this resolution for its attention and guidance;
and
2. On the petition for Declaration of Nullity of proclamation of respondent Ma. Victoria
L. Locsin (SPC No. 01-324), I vote:
(a) to GRANT the petition of Eufrocino M. Codilla, Sr., and
declare as null and void the proclamation of losing
candidate Locsin, the proclamation being violative of
election laws, established jurisprudence, and resolutions
of the Commission on Elections;
(b) to lift the order of suspension of proclamation of petitioner
Codilla, issued by the Commission (Second Division) on
May 18, 2001, in SPA No. 01-208, having been issued
without hearing and without any finding that the evidence
of guilt of petitioner Codilla is strong and, thus, null and
void;
(c) to nullify the order contained in the Resolution of the
Commission (Second Division) promulgated on June 14,
2001, in SPA No. 01-208, for (t)he immediate
proclamation of the candidate who garnered the highest
number of votes, to the exclusion of respondent and the
concurrent order for the provincial Board of Canvasser
(sic) of Leyte to immediately reconvene and thereafter
proclaim forthwith the candidate who obtained the highest
number of votes counting out the Respondent the same
being violative of election laws, established jurisprudence,
and resolutions of the Commission;
(d) to nullify the ruling contained in the Resolution of the
Commission (Second Division) promulgated on June 14,
2001, in SPA No. 01-208, that the votes of respondent
Codilla are considered stray and invalid said ruling being
issued on the basis of an inapplicable decision, and
contrary to established jurisprudence;
(e) to order the provincial Board of Canvassers of Leyte, upon
the finality of this resolution, to reconvene and proclaim
petitioner Codilla as the winning candidate for
Representative of the Fourth legislative district of Leyte he
(sic) having garnered the highest number of votes in the
elections for the position; and
(f) to order respondent Locsin, upon the finality of this
resolution, to vacate the office of Representative of the
House of Representatives representing the Fourth
Legislative district of Leyte and, for this purpose, to inform
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 Laws on Suffrage
the House of Representatives through the Honorable
Speaker of this resolution for its attention and guidance.
Summary of Votes
Considering the FOUR (4) VOTES of the Chairman and Commissioners Resurreccion
Z. Borra, Florentino A. Tuason, Jr., and Ralph C. Lantion, to grant the Motion for
Reconsideration of Codilla and reverse the disqualification Resolution of the
Commission (Second Division) in SPA No. 01-208, promulgated on June 14, 2001,
and as an inevitable consequence, in voting to grant the petition for declaration of
nullity of the proclamation of Ma. Victoria L. Locsin in SPC No. 01-324, the
verdict/opinion of the Chairman and the three (3) Commissioners taken together now
stands, as it is, the MAJORITY DECISION of the Commission En Banc in both cases;
and the Resolutionsubmitted by three (3) Commissioners, namely, Commissioner
Rufino S.B. Javier, Commissioner Luzviminda G. Tancangco, and Commissioner
Mehol K. Sadain, is considered, as it is, the MINORITY DECISION of the Commission
En Banc in both cases.
The MAJORTIY DECISION was arrived at after proper consultation with those who
joined the majority. The Chairman and the three (3) Commissioners comprising the
majority decided that no one will be assigned to write a Majority Decision. Instead,
each one will write his own separate opinion. Commissioners Borra, Tuason, Jr. and
the undersigned Chairman submitted separate opinions. Commissioner Lantion wrote
an explanation on his vote.[50]
The aforequoted judgment was adopted in a Vote of Adoption signed by
Commissioners Ralph C. Lantion, Resurreccion Z. Borra and Florentino A. Tuason,
Jr.[51]
Respondent Locsin did not appeal from this decision annulling her
proclamation. Instead, she filed a Comment and Manifestation[52] with the
COMELEC en banc questioning the procedure and the manner by which the decision
was issued. In addition, respondent Locsin requested and was issued an opinion by
House of Representatives Executive Director and Chief Legal Counsel Leonardo B.
Palicte III declaring that the COMELEC has no jurisdiction to nullify the proclamation
of respondent Locsin after she had taken her oath and assumed office since it is the
HRET which is the sole judge of election, returns and qualifications of Members of the
House.[53] Relying on this opinion, respondent Locsin submitted a written privileged
speech to the House during its regular session on September 4, 2001, where she
declared that she will not only disregard but will openly defy and disobey the
COMELEC en banc resolution ordering her to vacate her position.[54]
On September 6, 2001, the COMELEC en banc issued an Order[55] constituting
the members of the Provincial Board of Canvassers of Leyte to implement the
aforesaid decision. It likewise ordered the Board to reconvene and proclaim the
candidate who obtained the highest number of votes in the district, as the duly-
elected Representative of the Fourth Legislative district of Leyte, and accordingly
issue a Certificate of Canvass and Proclamation of Winning Candidate for Member of
the House of Representatives x x x, based on the city/municipal certificates of
canvass submitted beforehand to the previous Provincial Board of Canvassers of
Leyte x x x.
On September 12, 2001, petitioner Codilla was proclaimed by the Provincial
Board of Canvassers as the duly-elected Representative of the 4th legislative
district of Leyte, having obtained a total of 71,350 votes representing the highest
number of votes cast in the district. [56] On the same day, petitioner took his oath of
office before Executive Judge Fortunito L. Madrona of the Regional Trial Court of
Ormoc City.[57]
On September 14, 2001, petitioner wrote the House of Representatives, thru
respondent Speaker De Venecia, informing the House of the August 29, 2001
COMELEC en banc  resolution annulling the proclamation of respondent Locsin, and
proclaiming him as the duly-elected Representative of the 4 th legislative district of
Leyte.[58] Petitioner also served notice that I am assuming the duties and
responsibilities as Representative of the fourth legislative district of Leyte to which
position I have been lawfully elected and proclaimed. On behalf of my constituents, I
therefore expect that all rights and privileges intended for the position of
Representative of the fourth legislative district of Leyte be accorded to me, including
all physical facilities and staff support. On the basis of this letter, a
Memorandum[59] dated October 8, 2001 was issued by Legal Affairs Deputy
Secretary-General Gaudencio A. Mendoza, Jr., for Speaker De Venecia, stating that
there is no legal obstacle to complying with the duly promulgated and now final and
executory COMELEC Decision of August 29, 2001 x x x.
These notwithstanding, and despite receipt by the House of Representatives of
a copy of the COMELEC en banc resolution on September 20, 2001,[60] no action was
taken by the House on the letter-appeal of petitioner. Hence, petitioner sought the
assistance of his party, LAKAS-NUCD-UMDP, which sent a letter [61] addressed to
respondent Speaker De Venecia, dated October 25, 2001, and signed by Party
President Teofisto T. Guingona, Jr., Secretary-General Heherson T. Alvarez, and
Region VIII Party Chairman Sergio Antonio F. Apostol, requesting the House of
Representatives to act decisively on the matter in order that petitioner can avail of
whatever remedy is available should their action remain unfavorable or otherwise
undecisive.
In response, Speaker De Venecia sent a letter [62] dated October 30, 2001,
stating that:
We recognize the finality of the COMELEC decision and we are inclined to sustain
it. However, Rep. Locsin has officially notified the HOUSE in her privilege speech,
inserted in the HOUSE Journal dated September 4, 2001, that she shall openly defy
and disobey the COMELEC ruling. This ultimately means that implementing the
decision would result in the spectacle of having two (2) legislators occupying the
same congressional seat, a legal situation, the only consideration, that effectively
deters the HOUSEs liberty to take action.
In this light, the accepted wisdom is that the implementation of the COMELEC
decision is a matter that can be best, and with finality, adjudicated by the
Supreme Court, which, hopefully, shall act on it most expeditiously. (emphases
supplied)
Hence, the present petition for mandamus and quo warranto.
Petitioner submits that by virtue of the resolution of the COMELEC en
banc which has become final and executory for failure of respondent Locsin to appeal
therefrom, it has become the ministerial duty: (1) of the Speaker of the House of
Representatives, as its Administrative Head and Presiding Officer, to implement the
said resolution of the COMELEC en banc  by installing him as the duly-elected
Representative of the 4th legislative district of Leyte; and (2) of the Secretary-General,
as official custodian of the records of the House, to formally register his name in the
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Roll of Members of the House and delete the name of respondent Locsin
therefrom. Petitioner further contends that respondent Locsin has been usurping and
unlawfully holding the public office of Representative of the 4 th legislative district of
Leyte considering that her premature proclamation has been declared null and void
by the COMELEC en banc. He alleges that the action or inaction of public
respondents has deprived him of his lawful right to assume the office of
Representative of the 4th legislative district of Leyte.
In his Comment,[63] public respondent Speaker De Venecia alleged that
mandamus will not lie to compel the implementation of the COMELEC decision which
is not merely a ministerial duty but one which requires the exercise of discretion by
the Speaker of the House considering that: (1) it affects the membership of the
House; and (2) there is nothing in the Rules of the House of Representatives which
imposes a duty on the House Speaker to implement a COMELEC decision that
unseats an incumbent House member.
In his Comment,[64] public respondent Secretary-General Nazareno alleged that
in reading the name of respondent Locsin during the roll call, and in allowing her to
take her oath before the Speaker-elect and sit as Member of the House during the
Joint Session of Congress, he was merely performing official acts in compliance with
the opinions[65]rendered by House of Representatives Chief Counsel and Executive
Director Leonardo C. Palicte III stating that the COMELEC has no jurisdiction to
declare the proclamation of respondent Locsin as null and void since it is the HRET
which is the sole judge of all election, returns and qualifications of Members of the
House. He also contends that the determination of who will sit as Member of the
House of Representatives is not a ministerial function and cannot, thus, be compelled
by mandamus.
Respondent Locsin, in her Comment,[66] alleged that the Supreme Court has no
original jurisdiction over an action for quo warranto involving a member of the House
of Representatives for under Section 17, Article VI of the Constitution it is the HRET
which is the sole judge of all contests relating to the election, returns and
qualifications of Members of the House of Representatives. She likewise asserts that
this Court cannot issue the writ of mandamus against a co-equal legislative
department without grossly violating the principle of separation of powers. She
contends that the act of recognizing who should be seated as a bona fide member of
the House of Representatives is not a ministerial function but a legislative prerogative,
the performance of which cannot be compelled by mandamus. Moreover, the prayer
for a writ of mandamus cannot be directed against the Speaker and Secretary-
General because they do not have the authority to enforce and implement the
resolution of the COMELEC.
Additionally, respondent Locsin urges that the resolution of the COMELEC en
banc is null and void for lack of jurisdiction. First, it should have dismissed the case
pending before it after her proclamation and after she had taken her oath of
office. Jurisdiction then was vested in the HRET to unseat and remove a Member of
the House of Representatives. Second, the petition for declaration of nullity is clearly
a pre-proclamation controversy and the COMELEC en banc has no original
jurisdiction to hear and decide a pre-proclamation controversy. It must first be heard
by a COMELEC Division. Third, the questioned decision is actually a hodge-podge
decision because of the peculiar manner in which the COMELEC disposed of the
case.
Finally, respondent Locsin asserts that the matter of her qualification and
eligibility has been categorically affirmed by the HRET when it dismissed the quo
warranto case filed against her, docketed as HRET Case No. 01-043,
entitled Paciano Travero vs. Ma. Victoria Locsin, on the ground that the allegations
stated therein are not proper grounds for a petition for quo warranto against a
Member of the House of Representatives under section 253 of the Omnibus Election
Code and Rule 17 of the HRET Rules, and that the petition was filed late.[67]
In his Reply,[68] petitioner asserts that the remedy of respondent Locsin from the
COMELEC decision was to file a petition for certiorari with the Supreme Court, not to
seek an opinion from the Chief Legal Counsel of the House of Representatives; that
the HRET has no jurisdiction over a petition for declaration of nullity of proclamation
which is based not on ineligibility or disloyalty, but by reason that the candidate
proclaimed as winner did not obtain the highest number of votes; that the petition for
annulment of proclamation is a pre-proclamation controversy and, hence, falls within
the exclusive jurisdiction of the COMELEC pursuant to section 242 of B.P. Blg.
881[69] and section 3, Article IX (C) of the Constitution; that respondent Speaker De
Venecia himself recognizes the finality of the COMELEC decision but has decided to
refer the matter to the Supreme Court for adjudication; that the enforcement and
implementation of a final decision of the COMELEC involves a ministerial act and
does not encroach on the legislative power of Congress; and that the power to
determine who will sit as Member of the House does not involve an exercise of
legislative power but is vested in the sovereign will of the electorate.
The core issues in this case are: (a) whether the proclamation of respondent
Locsin by the COMELEC Second Division is valid; (b) whether said proclamation
divested the COMELEC en banc  of jurisdiction to review its validity; and (c) assuming
the invalidity of said proclamation, whether it is the ministerial duty of the public
respondents to recognize petitioner Codilla, Sr. as the legally elected Representative
of the 4th legislative district of Leyte vice respondent Locsin.
I
Whether the proclamation of respondent Locsin is valid.
After carefully reviewing the records of this case, we find that the proclamation
of respondent Locsin is null and void for the following reasons:
First. The petitioner was denied due process during the entire proceedings
leading to the proclamation of respondent Locsin.
COMELEC Resolution Nos. 3402[70] sets the procedure for disqualification cases
pursuant to section 68 of the Omnibus Election Code, viz:
C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC. 68
OF THE OMNIBUS ELECTION CODE AND PETITION TO
DISQUALIFY FOR LACK OF QUALIFICATIONS OR POSSESSING
SAME GROUNDS FOR DISQUALIFICATION
(1) The verified petition to disqualify a candidate pursuant to Sec. 68 of the
Omnibus Election Code and the verified petition to disqualify a
candidate for lack of qualifications or possessing same grounds for
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disqualification, may be filed any day after the last day for filing of
certificates of candidacy but not later than the date of proclamation.
(2) The petition to disqualify a candidate pursuant to Sec. 68 of the
Omnibus Election Code shall be filed in ten (10) legible copies by any
citizen of voting age, or duly registered political party, organization or
coalition of political parties against any candidate who in an action or
protest in which he is a party is declared by final decision of a
competent court guilty of, or found by the Commission of:
2.a having given money or other material consideration to influence,
induce or corrupt the voters or public officials performing
electoral functions;
2.b having committed acts of terrorism to enhance his candidacy;
2.c having spent in his election campaign an amount in excess of that
allowed by the Omnibus Election Code;
2.d having solicited, received or made any contribution prohibited
under Sections 89, 95, 96, 97 and 104 of the Omnibus Election
Code;
2.e having violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v, and cc, sub-paragraph 6 of the Omnibus
Election Code, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office.
x x x x x x x x x
(4) Upon payment of the filing fee of P1,000.00 and legal research fee of
P20.00, the offices concerned shall docket the petition and assign to it
a docket number which must be consecutive, according to the order of
receipt and must bear the year and prefixed as SPA with the
corresponding initial of the name of the office, i.e. SPA (RED) No. C01-
001; SPA (PES) No. C01-001;
(5) Within three (3) days from filing of the petitions, the offices concerned
shall issue summons to the respondent candidate together with a copy
of the petition and its enclosures, if any;
(6) The respondent shall be given three (3) days from receipt of summons
within which to file his verified answer (not a motion to dismiss) to the
petition in ten (10) legible copies, serving a copy thereof upon the
petitioner. Grounds for Motion to Dismiss may be raised as an
affirmative defense;
(7) The proceeding shall be summary in nature. In lieu of the testimonies,
the parties shall submit their affidavits or counter-affidavits and other
documentary evidences including their position paper;
(8) The hearing must be completed within ten (10) days from the date of
the filing of the answer. The hearing officer concerned shall submit to
the Clerk of the Commission through the fastest means of
communication, his findings, reports and recommendations within five
(5) days from the completion of the hearing and reception of evidence
together with the complete records of the case;
(9) Upon receipt of the records of the case of the findings, reports and
recommendation of the hearing officer concerned, the Clerk of the
Commission shall immediately docket the case consecutively and
calendar the same for raffle to a division;
(10) The division to whom the case is raffled, shall after consultation,
assign the same to a member who shall pen the decision, within five
(5) days from the date of consultation.
Resolution No. 3402 clearly requires the COMELEC, through the Regional
Election Director, to issue summons to the respondent candidate together with a copy
of the petition and its enclosures, if any, within three (3) days from the filing of the
petition for disqualification. Undoubtedly, this is to afford the respondent candidate the
opportunity to answer the allegations in the petition and hear his side. To ensure
compliance with this requirement, the COMELEC Rules of Procedure requires the
return of the summons together with the proof of service to the Clerk of Court of the
COMELEC when service has been completed, viz:
Rule 14. Summons
x x x x x x x x x
Section 5. Return.- When the service has been completed by personal service, the
server shall give notice thereof, by registered mail, to the protestant or his counsel
and shall return the summons to the Clerk of Court concerned who issued it,
accompanied with the proof of service.
Section 6. Proof of Service.- Proof of service of summons shall be made in the
manner provided for in the Rules of Court in the Philippines.
Thereafter, hearings, to be completed within ten (10) days from the filing of the
Answer, must be conducted. The hearing officer is required to submit to the Clerk of
the Commission his findings, reports and recommendations within five (5) days from
the completion of the hearing and reception of evidence together with the complete
records of the case.
(a) Petitioner was not notified of the petition for his disqualification
through the service of summons nor of the Motions to suspend
his proclamation.
The records of the case do not show that summons was served on the
petitioner. They do not contain a copy of the summons allegedly served on the
petitioner and its corresponding proof of service. Furthermore, private respondent
never rebutted petitioners repeated assertion that he was not properly notified of the
petition for his disqualification because he never received summons. [71] Petitioner
claims that prior to receiving a telegraphed Order from the COMELEC Second
Division on May 22, 2001, directing the District Board of Canvassers to suspend his
proclamation, he was never summoned nor furnished a copy of the petition for his
disqualification. He was able to obtain a copy of the petition and the May 22 Order of
the COMELEC Second Division by personally going to the COMELEC Regional
Office on May 23, 2001. Thus, he was able to file his Answer to the disqualification
case only on May 24, 2001.
More, the proclamation of the petitioner was suspended in gross violation of
section 72 of the Omnibus Election Code which provides:
Sec. 72. Effects of disqualification cases and priority.- The Commission and the
courts shall give priority to cases of disqualification by reason of violation of this
Act to the end that a final decision shall be rendered not later than seven days
before the election in which the disqualification is sought.
Any candidate who has been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. Nevertheless, if for any
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 Laws on Suffrage
reason, a candidate is not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning number of votes in
such election, his violation of the provisions of the preceding sections shall not
prevent his proclamation and assumption to office. (emphases supplied)
In the instant case, petitioner has not been disqualified by final judgment when
the elections were conducted on May 14, 2001. The Regional Election Director has
yet to conduct hearing on the petition for his disqualification. After the elections,
petitioner was voted in office by a wide margin of 17,903. On May 16, 2001, however,
respondent Locsin filed a Most Urgent Motion for the suspension of petitioners
proclamation. The Most Urgent Motion contained a statement to the effect that a copy
was served to the petitioner through registered mail. The records reveal that no
registry receipt was attached to prove such service. [72] This violates COMELEC Rules
of Procedure requiring notice and service of the motion to all parties, viz:
Section 4. Notice.- Notice of a motion shall be served by the movant to all parties
concerned, at least three (3) days before the hearing thereof, together with a copy of
the motion. For good cause shown, the motion may be heard on shorter notice,
especially on matters which the Commission or the Division may dispose of on its
own motion.
The notice shall be directed to the parties concerned and shall state the time and
place of the hearing of the motion.
Section 5. Proof of Service.- No motion shall be acted upon by the Commission
without proof of service of notice thereof, except when the Commission or a Division
is satisfied that the rights of the adverse party or parties are not affected.
Respondents Most Urgent Motion does not fall under the exceptions to notice
and service of motions. First, the suspension of proclamation of a winning candidate
is not a matter which the COMELEC Second Division can dispose of motu proprio.
Section 6 of R.A. No. 6646 [73] requires that the suspension must be upon motion by
the complainant or any intervenor, viz:
Section 6. Effect of Disqualification Case.- Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him shall
not be counted. If for any reason, a candidate is not declared by final judgment before
an election to be disqualified and he is voted for and receives the winning number of
votes in such election, the Court or Commission (COMELEC) shall continue with
the trial or hearing of the action, inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate whenever the evidence of
his guilt is strong. (emphases supplied)
Second, the right of an adverse party, in this case, the petitioner, is clearly
affected. Given the lack of service of the Most Urgent Motion to the petitioner, said
Motion is a mere scrap of paper.[74] It cannot be acted upon by the COMELEC Second
Division.
On May 18, 2001 at exactly 5:00 p.m., [75] respondent Locsin filed a Second Most
Urgent Motion for the suspension of petitioners proclamation. Petitioner was served a
copy of the Second Motion again by registered mail. A registry receipt [76] was attached
evidencing service of the Second Most Urgent Motion to the petitioner but it does not
appear when the petitioner received a copy thereof. That same day, the COMELEC
Second Division issued an Order suspending the proclamation of petitioner. Clearly,
the petitioner was not given any opportunity to contest the allegations contained in the
petition for disqualification. The Order was issued on the very same day the Second
Most Urgent Motion was filed. The petitioner could not have received the Second
Most Urgent Motion, let alone answer the same on time as he was served a copy
thereof by registered mail.
Under section 6 of R.A. No. 6646, the COMELEC can suspend proclamation
only when evidence of the winning candidates guilt is strong. In the case at bar, the
COMELEC Second Division did not make any specific finding that evidence of
petitioners guilt is strong. Its only basis in suspending the proclamation of the
petitioner is the seriousness of the allegations in the petition for disqualification.
Pertinent portion of the Order reads:
Without giving due course to the petition xxx the Commission (2 nd Division), pursuant
to Section 72 of the Omnibus Election Code in relation to Section 6, Republic Act No.
6646 xxx and considering the serious allegations in the petition, hereby directs
the Provincial Board of Canvassers of Leyte to suspend the proclamation of
respondent, if winning, until further orders.[77] (emphases supplied)
We hold that absent any finding that the evidence on the guilt of the petitioner is
strong, the COMELEC Second Division gravely abused its power when it suspended
his proclamation.
(b) The COMELEC Second Division did not give ample opportunity to
the petitioner to adduce evidence in support of his defense in the
petition for his disqualification.
All throughout the proceeding, no hearing was conducted on the petition for
disqualification in gross violation of section 6 of R.A. No. 6646 which specifically
enjoins the COMELEC to continue with the trial or hearing of the action, inquiry,
or protest. This is also in violation of COMELEC Resolution No. 3402 requiring the
Regional Election Director to complete the hearing and reception of
evidence within ten (10) days from the filing of the Answer, and to submit his findings,
reports, and recommendations within the five (5) days from completion of the hearing
and the reception of evidence.
Petitioner filed a Motion to Lift the Order of Suspension of his proclamation
on May 25, 2001. Although an oral argument on this Motion was held, and the parties
were allowed to file their respective memoranda, the Motion was not acted upon.
Instead, the COMELEC Second Division issued a Resolution on the petition for
disqualification against the petitioner. It was based on the following evidence: (a) the
affidavits attached to the Petition for Disqualification; (b) the affidavits attached to the
Answer; and (c) the respective memoranda of the parties.
On this score, it bears emphasis that the hearing for Motion to Lift the Order of
Suspension cannot be substituted for the hearing in the disqualification case.
Although intrinsically linked, it is not to be supposed that the evidence of the parties in
the main disqualification case are the same as those in the Motion to Lift the Order of
Suspension.The parties may have other evidence which they may deem proper to
present only on the hearing for the disqualification case. Also, there may be evidence
which are unavailable during the hearing for the Motion to Lift the Order of
Suspension but which may be available during the hearing for the disqualification
case.
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 Laws on Suffrage
In the case at bar, petitioner asserts that he submitted his Memorandum merely
to support his Motion to Lift the Order of Suspension. It was not intended to answer
and refute the disqualification case against him. This submission was sustained by
the COMELEC en banc. Hence, the members of the COMELEC en banc concluded,
upon consideration of the additional affidavits attached in his Urgent Manifestation,
that the evidence to disqualify the petitioner was insufficient. More specifically,
the ponente of the challenged Resolution of the COMELEC Second Division held:
Indeed, I find from the records that the May 30, 2001 hearing of the COMELEC
(Second Division) concerns only the incident relating to the Motion to Lift Order of
Suspension of Proclamation. It also appears that the order for the submission of the
parties respective memoranda was in lieu of the parties oral argument on the motion.
This would explain the fact that Codillas Memorandum refers mainly to the validity of
the issuance of the order of suspension of proclamation. There is, however, no record
of any hearing on the urgent motion for the suspension of proclamation. Indeed, it
was only upon the filing of the Urgent Manifestation by Codilla that the
Members of the Commission (Second Division) and other Members of the
Commission en banc had the opportunity to consider Codillas affidavits. This
time, Codilla was able to present his side, thus, completing the presentation of
evidentiary documents from both sides.[78] (emphases supplied)
Indeed, careful reading of the petitioners Memorandum shows that he confined
his arguments in support of his Motion to Lift the Order of Suspension. In said
Memorandum, petitioner raised the following issues: (a) he was utterly deprived of
procedural due process, and consequently, the order suspending his proclamation is
null and void; (b) the said order of suspension of proclamation has no legal and
factual basis; and (c) evidence of guilt on his part is patently inexistent for the purpose
of directing the suspension of his proclamation. [79] He urged the COMELEC Second
Division to conduct a full dress hearing on the main disqualification case should the
suspension be lifted.[80]
(c) the Resolution of the COMELEC Second Division disqualifying the
petitioner is not based on substantial evidence.
The Resolution of the COMELEC Second Division cannot be considered to be
based on substantial evidence. It relied merely on affidavits of witnesses attached to
the petition for disqualification. As stressed, the COMELEC Second Division gave
credence to the affidavits without hearing the affiants. In reversing said Resolution,
the COMELEC en banc correctly observed:
Lacking evidence of Codilla, the Commission (Second Division) made its decisions
based mainly on the allegation of the petitioner and the supporting affidavits. With this
lopsided evidence at hand, the result was predictable. The Commission (Second
Division) had no choice. Codilla was disqualified.[81]
Worse, the Resolution of the COMELEC Second Division, even without the
evidence coming from the petitioner, failed to prove the gravamen of the offense for
which he was charged.[82]
Petitioner allegedly violated section 68 (a) of the Omnibus Election Code which
reads:
Section 68. Disqualifications.- Any candidate who, in action or protest in which he is a
party is declared by final decision of a competent court guilty of, or found by the
Commission of having (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing official functions, xxx shall
be disqualified from continuing as candidate, or if he has been elected, from holding
office
To be disqualified under the above-quoted provision, the following elements
must be proved: (a) the candidate, personally or through his instructions, must have
given money or other material consideration; and (b) the act of giving money or other
material consideration must be for the purpose of influencing, inducing, or corrupting
the voters or public officials performing electoral functions.
In the case at bar, the petition for disqualification alleged that (a) petitioner
ordered the extraction, hauling and distribution of gravel and sand, and (b) his
purpose was to induce and influence the voters of Kananga and Matag-ob, Leyte to
vote for him. Pertinent portion of the petition reads:
[T]he respondent [herein petitioner], within the election period, took advantage of his
current elective position as City Mayor of Ormoc City by illegally and unlawfully using
during the prohibited period, public equipments and vehicles belonging to and owned
by the City Government of Ormoc City in extracting, hauling and distributing gravel
and sand to the residents and voters of the Municipalities of Kananga and Matag-ob
Leyte, well within the territorial limits of the 4 th Congressional District of Leyte, which
acts were executed without period, and clearly for the illicit purpose of unduly
inducing or directly corrupting various voters of Kananga and Matag-ob, within the
4th legislative district of Leyte, for the precise purpose of inducing and influencing the
voters/beneficiaries of Kananga and Matag-ob, Leyte to cast their votes for said
respondent.[83]
The affidavits relied upon by the COMELEC Second Division failed to prove
these allegations. For instance, Cesar A. Laurente merely stated that he saw three (3)
ten-wheeler dump trucks and a Hyundai Payloader with the markings Ormoc City
Government extracting and hauling sand and gravel from the riverbed adjacent to the
property owned by the Codilla family.[84]
Agripino C. Alferez and Rogelio T. Sulvera in their Joint Affidavit merely stated
that they saw white trucks owned by the City Government of Ormoc dumping gravel
and sand on the road of Purok 6, San Vicente, Matag-ob, Leyte. A payloader then
scattered the sand and gravel unloaded by the white trucks.[85]
On the other hand, Danilo D. Maglasang, a temporary employee of the City
Government of Ormoc assigned to check and record the delivery of sand and gravel
for the different barangays in Ormoc, stated as follows:
3. That on April 20, 2001, I was ordered by Engr. Arnel Padayo, an employee of the
City Engineering Office, Ormoc City to go to Tagaytay, Kangga (sic), Leyte as that will
be the source of the sand and gravel. I inquired why we had to go to Kananga but
Engr. Padayao said that its not a problem as it was Mayor Eufrocino M. Codilla, Sr.
who ordered this and the property is owned by the family of Mayor Codilla. We were
to deliver sand and gravel to whoever requests from Mayor Codilla.[86]
Similarly, the Affidavit of Basilio Bates cannot prove the offense charged against
the petitioner. He alleged that on April 18, 2001, a white truck with the marking City
Government of Ormoc came to his lot at Montebello, Kananga, Leyte and unloaded
mixed sand and that the driver of the truck told him to vote for Codilla as
a (sic)congressman during election.[87] His statement is hearsay. He has no personal
knowledge of the supposed order of the petitioner to distribute gravel and sand for the
purpose of inducing the voters to vote for him. The same could be said about the
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 Laws on Suffrage
affidavits of Randy T. Merin,[88] Alfredo C. De la Pea,[89] Miguel P. Pandac,[90] Paquito
Bregeldo, Cristeta Alferez , Glicerio Rios, [91] Romulo Alkuino, Sr.,[92] Abner Casas,
[93]
 Rita Trangia,[94] and Judith Erispe[95] attached to respondent Locsins Memorandum
on the Motion to Lift the Suspension of Proclamation.
Also valueless are the affidavits of other witnesses[96] of respondent Locsin, all
similarly worded, which alleged that the petitioner ordered the repair of the road in
Purok 6, Barangay San Vicente, Matag-ob, Leyte and the flattening of the area where
the cockfights were to be held. These allegations are extraneous to the charge in the
petition for disqualification. More importantly, these allegations do not constitute a
ground to disqualify the petitioner based on section 68 of the Omnibus Election Code.
To be sure, the petition for disqualification also ascribed other election offenses
against the petitioner, particularly section 261 of the Omnibus Election Code, viz:
Section 261. Prohibited Acts.- The following shall be guilty of an election offense:
(a) Vote-buying and vote-selling.- (1) Any person who gives, offers or
promises money or anything of value, gives or promises any office or
employment, franchise or grant, public or private, or make or offers to
make an expenditure, directly or indirectly, or cause an expenditure to
be made to any person, association, corporation, entity or community
in order to induce anyone or the public in general, to vote for or against
any candidate or withhold his vote in the election, or to vote for or
against any aspirant for the nomination or choice of a candidate in a
convention or similar selection process of a political party.
x x x x x x x x x
(o) Use of public funds, money deposited in trust, equipment,  facilities
owned or controlled by the government for an election campaign.- Any
person who uses under any guise whatsoever directly or indirectly, xxx
(3) any equipment, vehicle, facility, apparatus, or paraphernalia owned
by the government or by its political subdivisions, agencies including
government-owned or controlled corporations, or by the Armed Forces
of the Philippines for any election campaign or for any partisan political
activity x x x.
However, the jurisdiction of the COMELEC to disqualify candidates is limited to
those enumerated in section 68 of the Omnibus Election Code. All other election
offenses are beyond the ambit of COMELEC jurisdiction.[97] They are criminal and not
administrative in nature. Pursuant to sections 265 and 268 of the Omnibus Election
Code, the power of the COMELEC is confined to the conduct of preliminary
investigation on the alleged election offenses for the purpose of prosecuting the
alleged offenders before the regular courts of justice, viz:
Section 265. Prosecution.- The Commission shall, through its duly authorized legal
officers, have the exclusive power to conduct preliminary investigation of all election
offenses punishable under this Code, and to prosecute the same. The Commission
may avail of the assistance of other prosecuting arms of the government: Provided,
however, That in the event that the Commission fails to act on any complaint within
four months from his filing, the complainant may file the complaint with the office of
the fiscal or with the Ministry of Justice for proper investigation and prosecution, if
warranted.
x x x x x x x x x
Section 268. Jurisdiction.- The regional trial court shall have the exclusive original
jurisdiction to try and decide any criminal action or proceeding for violation of this
Code, except those relating to the offense of failure to register or failure to vote which
shall be under the jurisdictions of metropolitan or municipal trial courts. From the
decision of the courts, appeal will lie as in other criminal cases.
The COMELEC Second Division grievously erred when it decided the
disqualification case based on section 261 (a) and (o), and not on section 68 of the
Omnibus Election Code.
(d) Exclusion of the votes in favor of the petitioner and the
proclamation of respondent Locsin was done with undue haste.
The COMELEC Second Division ordered the exclusion of the votes cast in favor
of the petitioner, and the proclamation of the respondent Locsin, without affording the
petitioner the opportunity to challenge the same. In the morning of June 15, 2001, the
Provincial Board of Canvassers convened, and on the strength of the said Resolution
excluding the votes received by the petitioner, certified that respondent Locsin
received the highest number of votes. On this basis, respondent Locsin was
proclaimed.
Records reveal that the petitioner received notice of the Resolution of the
COMELEC Second Division only through his counsel via a facsimile message in the
afternoon of June 15, 2001[98] when everything was already fait accompli.
Undoubtedly, he was not able to contest the issuance of the Certificate of Canvass
and the proclamation of respondent Locsin. This is plain and simple denial of due
process.
The essence of due process is the opportunity to be heard. When a party is
deprived of that basic fairness, any decision by any tribunal in prejudice of his rights is
void.
Second. The votes cast in favor of the petitioner cannot be considered
stray and respondent cannot be validly proclaimed on that basis.
The Resolution of the COMELEC Second Division in SPA No. 01-208 contains
two dispositions: (1) it ruled that the petitioner was disqualified as a candidate for the
position of Congressman of the Fourth District of Leyte; and (2) it ordered the
immediate proclamation of the candidate who garnered the highest number of votes,
to the exclusion of the respondent [herein petitioner].
As previously stated, the disqualification of the petitioner is null and void for
being violative of due process and for want of substantial factual basis. Even
assuming, however, that the petitioner was validly disqualified, it is still improper for
the COMELEC Second Division to order the immediate exclusion of votes cast for the
petitioner as stray, and on this basis, proclaim the respondent as having garnered the
next highest number of votes.
(a) The order of disqualification is not yet final, hence, the votes cast
in favor of the petitioner cannot be considered stray.
Section 6 of R.A. No. 6646 and section 72 of the Omnibus Election Code require
a final judgment before the election for the votes of a disqualified candidate to be
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 Laws on Suffrage
considered stray. Hence, when a candidate has not yet been disqualified by final
judgment during the election day and was voted for, the votes cast in his favor
cannot be declared stray. To do so would amount to disenfranchising the electorate in
whom sovereignty resides.[99] For in voting for a candidate who has not been
disqualified by final judgment during the election day, the people voted for him bona
fide, without any intention to misapply their franchise, and in the honest belief that the
candidate was then qualified to be the person to whom they would entrust the
exercise of the powers of government.[100]
This principle applies with greater force in the case at bar considering that
the petitioner has not been declared by final judgment to be disqualified not
only before but even after the elections. The Resolution of the COMELEC Second
Division disqualifying the petitioner did not attain finality, and hence, could not be
executed, because of the timely filing of a Motion for Reconsideration. Section 13,
Rule 18 of the COMELEC Rules of Procedure on Finality of Decisions and
Resolutions reads:
Sec. 13. Finality of Decisions or Resolutions.- (a) In ordinary actions, special
proceedings, provisional remedies and special reliefs, a decision or resolution of the
Commission en banc shall become final and executory after thirty (30) days from its
promulgation.
(b) In Special Actions and Special Cases a decision or resolution of the
Commission en banc shall become final and executory after five (5) days in
Special Actions and Special Cases and after fifteen (15) days in all other
proceedings, following their promulgation.
(c) Unless a motion for reconsideration is seasonably filed, a decision or
resolution of a Division shall become final and executory after the
lapse of five (5) days in Special Actions and Special Cases and after
fifteen (15) days in all other actions or proceedings, following its
promulgation. (emphasis supplied)
In this wise, COMELEC Resolution No. 4116, [101] issued in relation to the finality
of resolutions or decisions in disqualification cases, provides:
This pertains to the finality of decisions or resolutions of the Commission en banc or
division, particularly on Special Actions (Disqualification Cases).
Special Action cases refer to the following:
(a) Petition to deny due course to a certificate of candidacy;
(b) Petition to declare a candidate as a nuisance candidate;
(c) Petition to disqualify a candidate; and
(d) Petition to postpone or suspend an election.
Considering the foregoing and in order to guide field officials on the finality of
decisions or resolutions on special action cases (disqualification cases) the
Commission, RESOLVES, as it is hereby RESOLVED, as follows:
(1) the decision or resolution of the En Banc of the Commission on
disqualification cases shall become final and executory after five (5)
days from its promulgation unless restrained by the Supreme Court;
(2) the decision or resolution of a Division on disqualification cases shall
become final and executory after the lapse of five (5) days unless a
motion for reconsideration is seasonably filed;
(3) where the ground for disqualification case is by reason of non-
residence, citizenship, violation of election laws and other analogous
cases and on the day of the election the resolution has not become
final and executory the BEI shall tally and count the votes for such
disqualified candidate;
(4) the decision or resolution of the En Banc on nuisance candidates,
particularly whether the nuisance candidate has the same name as the
bona fide candidate shall be immediately executory;
(5) the decision or resolution of a DIVISION on nuisance candidate,
particularly where the nuisance candidate has the same name as the
bona fide candidate shall be immediately executory after the lapse of
five (5) days unless a motion for reconsideration is seasonably filed. In
which case, the votes cast shall not be considered stray but shall be
counted and tallied for the bona fide candidate.
All resolutions, orders and rules inconsistent herewith are hereby modified or
repealed.
Considering the timely filing of a Motion for Reconsideration, the COMELEC
Second Division gravely abused its discretion in ordering the immediate
disqualification of the petitioner and ordering the exclusion of the votes cast in his
favor. Section 2, Rule 19 of the COMELEC Rules of Procedure is very clear that a
timely Motion for Reconsideration shall suspend the execution or implementation of
the resolution, viz:
Section 2. Period for filing Motion for Reconsideration.- A motion to reconsider a
decision, resolution, order, or ruling of a Division shall be filed within five (5) days from
the promulgation thereof. Such motion, if not pro forma, suspends the execution
or implementation of the decision, resolution, order or ruling. (emphases
supplied)
(b) Respondent Locsin, as a mere second placer, cannot be proclaimed.
More brazen is the proclamation of respondent Locsin which violates the settled
doctrine that the candidate who obtains the second highest number of votes may not
be proclaimed winner in case the winning candidate is disqualified. [102] In every
election, the peoples choice is the paramount consideration and their expressed will
must at all times be given effect. When the majority speaks and elects into office a
candidate by giving him the highest number of votes cast in the election for the office,
no one can be declared elected in his place. [103] In Domino v. COMELEC,[104] this
Court ruled, viz:
It would be extremely repugnant to the basic concept of the constitutionally
guaranteed right to suffrage if a candidate who has not acquired the majority or
plurality of votes is proclaimed winner and imposed as representative of a
constituency, the majority of which have positively declared through their ballots that
they do not choose him. To simplistically assume that the second placer would have
received that (sic) other votes would be to substitute our judgment for the mind of the
voters. He could not be considered the first among the qualified candidates because
in a field which excludes the qualified candidate, the conditions would have
substantially changed.
x x x x x x x x x
The effect of a decision declaring a person ineligible to hold an office is only that the
election fails entirely, that the wreath of victory cannot be transferred from the
disqualified winner to the repudiated loser because the law then as now only
authorizes a declaration in favor of the person who has obtained a plurality of votes,
and does not entitle the candidate receiving the next highest number of votes to be
declared elected. In such case, the electors have failed to make a choice and the
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 Laws on Suffrage
election is a nullity. To allow the defeated and repudiated candidate to take over the
elective position despite his rejection by the electorate is to disenfranchise the
electorate without any fault on their part and to undermine the importance and
meaning of democracy and the peoples right to elect officials of their choice.[105]
Respondent Locsin proffers a distinction between a disqualification based on
personal circumstances such as age, residence or citizenship and disqualification
based on election offenses. She contends that the election of candidates later
disqualified based on election offenses like those enumerated in section 68 of the
Omnibus Election Code should be invalidated because they violate the very essence
of suffrage and as such, the votes cast in his favor should not be considered.[106]
This contention is without merit. In the recent case of Trinidad v. COMELEC,
[107]
 this Court ruled that the effect of a judgment disqualifying a candidate, after
winning the election, based on personal circumstances or section 68 of the Omnibus
Election Code is the same: the second placer could not take the place of the
disqualified winner.
II
Whether the proclamation of respondent Locsin divested the COMELEC en
banc of jurisdiction to review its validity.
Respondent Locsin submits that the COMELEC en banc has no jurisdiction to
annul her proclamation. She maintains that the COMELEC en banc  was been
divested of jurisdiction to review the validity of her proclamation because she has
become a member of the House of Representatives. Thus, she contends that the
proper forum to question her membership to the House of Representatives is the
House of Representative Electoral Tribunal (HRET).
We find no merit in these contentions.
First. The validity of the respondents proclamation was a core issue in the
Motion for Reconsideration seasonably filed by the petitioner.
In his timely Motion for Reconsideration with the COMELEC en banc, petitioner
argued that the COMELEC Second Division erred thus:
(1) in disqualifying petitioner on the basis solely of the dubious declaration
of the witnesses for respondent Locsin;
(2) in adopting in toto the allegations of the witnesses for respondent
Locsin; and
(3) in promulgating the resolution in violation of its own rules of
procedure and in directing therein the immediate proclamation of
the second highest vote getter. (emphases supplied)
In support of his third assignment of error, petitioner argued that the Second
Divisions directive for the immediate proclamation of the second highest vote-getter is
premature considering that the Resolution has yet to become final and executory.
[108]
 Clearly, the validity of respondent Locsins proclamation was made a central issue
in the Motion for Reconsideration seasonably filed by the petitioner. Without doubt,
the COMELEC en banc has the jurisdiction to rule on the issue.
The fact that the Petition for Nullity of Proclamation was filed directly with the
COMELEC en banc is of no moment. Even without said Petition, the COMELEC en
banc could still rule on the nullity of respondents proclamation because it was
properly raised in the Motion for Reconsideration.
Section 3, Article IX-C of the 1987 Constitution empowers the COMELEC en
banc to review, on motion for reconsideration, decisions or resolutions decided by a
division, viz:
Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to expedite disposition of election cases,
including pre-proclamation controversies. All such election cases shall be heard and
decided in division, provided that motions for reconsideration of decision shall be
decided by the Commission en banc.
Pursuant to this Constitutional mandate, the COMELEC Rules of Procedure
provides:
Rule 19. Motions for Reconsideration.-
Section 1. Grounds for Motion for Reconsideration.- A motion for reconsideration may
be filed on the grounds that the evidence is insufficient to justify the decision, order or
ruling, or that the said decision, order or ruling is contrary to law.
Section 2. Period for filing Motion for Reconsideration.- A motion to reconsider a
decision, resolution, order, or ruling of a Division shall be filed within five (5) days from
the promulgation thereof. Such motion, if not pro forma, suspends the execution
or implementation of the decision, resolution, order or ruling.
Section 3. Form and Contents of Motion for Reconsideration.- The motion shall be
verified and shall point out specifically the findings or conclusions of the decision,
resolution, order or ruling which are not supported by the evidence or which are
contrary to law, making express reference to the testimonial or documentary evidence
or to the provisions of law alleged to be contrary to such findings or resolutions.
Section 4. Effect of Motion for Reconsideration on Period to Appeal.- A motion to
reconsider a decision, resolution, order or ruling when not pro forma, suspends the
running of the period to elevate the matter to the Supreme Court.
Section 5. How Motion for Reconsideration Disposed Of.- Upon the filing of a motion
to reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court
concerned shall, within twenty-four (24) hours from the filing thereof, notify the
Presiding Commissioner. The latter shall within two (2) days thereafter certify the
case to the Commission en banc.
Section 6. Duty of the Clerk of Court of the Commission to set Motion for
Hearing.- The Clerk of Court concerned shall calendar the motion for reconsideration
for the resolution of the Commission en banc within ten (10) days from the
certification thereof. (emphases supplied)
Since the petitioner seasonably filed a Motion for Reconsideration of the Order
of the Second Division suspending his proclamation and disqualifying him, the
COMELEC en banc was not divested of its jurisdiction to review the validity of the
said Order of the Second Division. The said Order of the Second Division was yet
unenforceable as it has not attained finality; the timely filing of the motion for
reconsideration suspends its execution. It cannot, thus, be used as the basis for the
assumption in office of the respondent as the duly elected Representative of the
4th legislative district of Leyte.
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 Laws on Suffrage
Second. It is the House of Representatives Electoral Tribunal (HRET)
which has no jurisdiction in the instant case.
Respondent contends that having been proclaimed and having taken oath as
representative of the 4th legislative district of Leyte, any question relative to her
election and eligibility should be brought before the HRET pursuant to section 17 of
Article VI of the 1987 Constitution.[109]
We reject respondents contention.
(a) The issue on the validity of the Resolution of the COMELEC
Second Division has not yet been resolved by the COMELEC en
banc.
To stress again, at the time of the proclamation of respondent Locsin, the
validity of the Resolution of the COMELEC Second Division was seasonably
challenged by the petitioner in his Motion for Reconsideration. The issue was still
within the exclusive jurisdiction of the COMELEC en banc to resolve. Hence, the
HRET cannot assume jurisdiction over the matter.
In Puzon vs. Cua,[110] even the HRET ruled that the doctrinal ruling that once a
proclamation has been made and a candidate-elect has assumed office, it is this
Tribunal that has jurisdiction over an election contest involving members of the House
of Representatives, could not have been immediately applicable due to the issue
regarding the validity of the very COMELEC pronouncements themselves. This
is because the HRET has no jurisdiction to review resolutions or decisions of the
COMELEC, whether issued by a division or en banc.
(b) The instant case does not involve the election and qualification of
respondent Locsin.
Respondent Locsin maintains that the proper recourse of the petitioner is to file
a petition for quo warranto with the HRET.
A petition for quo warranto may be filed only on the grounds of ineligibility and
disloyalty to the Republic of the Philippines.[111] In the case at bar, neither the eligibility
of the respondent Locsin nor her loyalty to the Republic of the Philippines is in
question. There is no issue that she was qualified to run, and if she won, to assume
office.
A petition for quo warranto in the HRET is directed against one who has been
duly elected and proclaimed for having obtained the highest number of votes but
whose eligibility is in question at the time of such proclamation. It is evident that
respondent Locsin cannot be the subject of quo warranto proceeding in the HRET.
She lost the elections to the petitioner by a wide margin. Her proclamation was a
patent nullity. Her premature assumption to office as Representative of the
4th legislative district of Leyte was void from the beginning. It is the height of absurdity
for the respondent, as a loser, to tell petitioner Codilla, Sr., the winner, to unseat her
via a quo warranto proceeding.
III
Whether it is the ministerial duty of the public respondents to
recognize petitioner Codilla, Sr. as the legally elected Representative
of the 4th legislative district of Leyte vice respondent Locsin.
Under Rule 65, section 3 of the 1997 Rules of Civil Procedure, any person may
file a verified petition for mandamus when any tribunal, corporation, board, officer or
person unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes
another from the use and enjoyment of a right or office to which such other is entitled,
and there is no other plain, speedy and adequate remedy in the ordinary course of
law.[112] For a petition for mandamus to prosper, it must be shown that the subject of
the petition for mandamus is a ministerial act or duty, and not purely
discretionary on the part of the board, officer or person, and that the petitioner has a
well-defined, clear and certain right to warrant the grant thereof.
The distinction between a ministerial and discretionary act is well delineated. A
purely ministerial act or duty is one which an officer or tribunal performs in a given
state of facts, in a prescribed manner, in obedience to the mandate of a legal
authority, without regard to or the exercise of his own judgment upon the propriety or
impropriety of the act done. If the law imposes a duty upon a public officer and gives
him the right to decide how or when the duty shall be performed, such duty is
discretionary and not ministerial. The duty is ministerial only when the discharge of
the same requires neither the exercise of official discretion or judgment.[113]
In the case at bar, the administration of oath and the registration of the petitioner
in the Roll of Members of the House of Representatives representing the
4th legislative district of Leyte is no longer a matter of discretion on the part of the
public respondents. The facts are settled and beyond dispute: petitioner garnered
71,350 votes as against respondent Locsin who only got 53, 447 votes in the May 14,
2001 elections. The COMELEC Second Division initially ordered the proclamation of
respondent Locsin; on Motion for Reconsideration the COMELEC en banc set aside
the order of its Second Division and ordered the proclamation of the petitioner. The
Decision of the COMELEC en banchas not been challenged before this Court by
respondent Locsin and said Decision has become final and executory.
In sum, the issue of who is the rightful Representative of the 4 th legislative
district of Leyte has been finally settled by the COMELEC en banc, the constitutional
body with jurisdiction on the matter. The rule of law demands that its Decision be
obeyed by all officials of the land. There is no alternative to the rule of law
except the reign of chaos and confusion.
IN VIEW WHEREOF, the Petition for Mandamus is granted. Public Speaker of
the House of Representatives shall administer the oath of petitioner EUFROCINO M.
CODILLA, SR., as the duly-elected Representative of the 4 th legislative district of
Leyte. Public respondent Secretary-General shall likewise register the name of the
petitioner in the Roll of Members of the House of Representatives after he has taken
his oath of office. This decision shall be immediately executory.
SO ORDERED.
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EN BANC
 
MARIA LAARNI L. CAYETANO,  
Petitioner,  
   
 
 
 
 
 
 
 
- versus -
 
 
 
 
 
 
 
 
THE COMMISSION ON ELECTIONS and DANTE O.
TINGA,
Respondents.
x-----------------------------------------------------------------------------------------x
 
 
RESOLUTION
 
NACHURA, J.:
 
Before us is a petition for certiorari under Rule 64, in relation to Rule 65 of the Rules
of Court, assailing the Orders issued by public respondent Commission on Elections
(COMELEC), through its Second Division, dated August 23, 2010 [1] and September 7,
2010,[2] respectively. The two Orders were issued in relation to the election protest,
docketed as EPC No. 2010-44, filed by private respondent Dante O. Tinga against
petitioner Maria Laarni Cayetano.
 
In the automated national and local elections held on May 10, 2010, petitioner and
private respondent were candidates for the position of Mayor of Taguig City.
Petitioner was proclaimed the winner thereof on May 12, 2010, receiving a total of
Ninety-Five Thousand Eight Hundred Sixty-Five (95,865) votes as against the Ninety-
Three Thousand Four Hundred Forty-Five (93,445) votes received by private
respondent.
 
On May 24, 2010, private respondent filed an Election Protest against
petitioner before the COMELEC. Private respondents protest listed election frauds
and irregularities allegedly committed by petitioner, which translated to the latters
ostensible win as Mayor of Taguig City. On the whole, private respondent claims that
he is the actual winner of the mayoralty elections in Taguig City.
Laws on Suffrage
 
Posthaste, petitioner filed her Answer with Counter-Protest and Counterclaim on June
G.R. No. 193846 7, 2010. Petitioner raised, among others, the affirmative defense of insufficiency in
  form and content of the Election Protest and prayed for the immediate dismissal
Present: thereof.
CORONA, C.J.,  
CARPIO, On July 1, 2010, the COMELEC held a preliminary conference and issued an Order
CARPIO MORALES, granting private respondent a period within which to file the appropriate responsive
VELASCO, JR., pleading to the Answer of petitioner. The COMELEC likewise stated that it will rule on
NACHURA, the affirmative defenses raised by petitioner.
LEONARDO-DE CASTRO,
BRION,
PERALTA, As previously adverted to, the COMELEC issued the assailed Preliminary Conference
BERSAMIN, Order dated August 23, 2010, finding the protest filed by private respondent and
DEL CASTILLO, counter-protest filed by petitioner to be sufficient in form and substance. Effectively,
ABAD, the COMELEC denied petitioners affirmative defense of insufficiency in form and
VILLARAMA, JR., substance of the protest filed by private respondent. The Order reads:
PEREZ,  
MENDOZA, and WHEREFORE, finding the instant protest and the counter-protest to
SERENO, JJ. be sufficient in form and substance, the Commission (Second
  Division) hereby:
Promulgated:  
  1. DIRECTS [private respondent] to make a cash deposit [of] ONE
April 12, 2011 MILLION SIX HUNDRED NINE THOUSAND FIVE HUNDRED
PESOS (P1,609,500.00) to defray the expenses for the recount of
the ballots as well as for other incidental expenses relative thereto
pertaining to the 217 clustered protested precincts composed
of 1,073 established precinct[s] at the rate of P1,500.00 for each
precinct as required in Section 2 Rule II of COMELEC Resolution
No. 8804 payable in three (3) equal installments every twenty (20)
days starting within five (5) days from receipt hereof.
2. DIRECTS [petitioner] to make a cash deposit of TWO MILLION
EIGHT HUNDRED ELEVEN THOUSAND PESOS
(P2,811,000.00) to defray the expenses for the recount of the
ballots as well as for other incidental expenses relative thereto
pertaining to the 380 protested clustered precinct[s] composed
of 1,874 established precincts at the rate of P1,500.00 for each
precinct as required in Section 2[,] Rule II of COMELEC Resolution
No. 8804 payable in three (3) equal installments every twenty (20)
days starting within five (5) days from receipt hereof.
 
3. DIRECTS the City Election Officer (EO) of Taguig City, to gather
and collect the subject contested ballot boxes containing the
ballots, and their keys from the City Treasurer of Taguig City and to
deliver the same to ECAD, COMELEC, Intramuros, Manila, within
fifteen (15) days from receipt of the ballot boxes from said
Treasurer with prior notice to herein parties who may wish to send
their respective duly authorized representatives to accompany the
same, observing strict measures to protect the safety and integrity
of the ballot boxes;
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 Laws on Suffrage
 
4. DIRECTS [private respondent] and [petitioner] to provide for the
needed vehicle/s to the EO for the gathering and transportation of
the subject contested ballot boxes. All expenses for the retrieval
and transportation of the said ballot boxes shall be borne by both
[private respondent] and [petitioner];
 
5. AUTHORIZES the City Election Officer to secure a sufficient
number of security personnel either from the PNP or the AFP in
connection with the afore-directed gathering and transportation of
the subject ballot boxes;
 
6. DIRECTS [private respondent] to shoulder the travel expenses,
per diems and necessary allowance of the COMELEC personnel,
which include the PES and at most two (2) support staff, and the
PNP/AFP personnel acting as security; and
 
7. DIRECTS the herein parties to shoulder the travelling expenses
of their respective counsels and watchers.
 
8. DIRECTS [private respondent] in the protest proper and
[petitioner] in the counter protest to bear the expenses for the rental
of the Precinct Count Optical System (PCOS) machine that will be
used for the authentication of the ballots as well as the payment for
the information Technology Expert (IT Expert) who will assist in the
authentication of the ballots, unless they are both willing to stipulate
on the authenticity of the said ballots cast in connection with the
May 10, 2010 National and Local Elections. DIRECTS further that
in case [private respondent] agree[s] to stipulate on the authenticity
of the ballots and [petitioner] raises the issue of authenticity,
[petitioner] shall be the one to bear the fee for the rent of the PCOS
machine as well as the service of the IT Expert.
 
9. DIRECTS the parties to file a manifestation whether they intend
to secure photocopies of the contested ballots within a non-
extendible period of five (5) days from receipt of this Order. No
belated request for the photocopying of ballots shall be entertained
by this Commission (Second Division). The photocopying shall be
done simultaneous with the recount of the ballots considering that
the ballot box storage area is no longer near the recount room.
 
The pertinent Order for the constitution of Recount Committees and
the schedule of recount shall be issued after the arrival of the
subject ballot boxes and after the required cash deposits shall have
been paid by [private respondent].
 
The Preliminary Conference is hereby ordered terminated. The
parties are given three (3) days from receipt hereof to file their
comment, suggestions or corrections, if any, to this Preliminary
Conference Order. After the lapse of said period, no more
comment, suggestion or correction shall be entertained, and this
Preliminary Conference Order shall thereafter be valid and binding
upon the parties.[3]
 
 
Thereafter, on August 31, 2010, petitioner filed a Motion for Reconsideration of the
Preliminary Conference Order relative to the denial of her affirmative defenses.
Private respondent filed a Comment and Opposition thereto. Consequently, the
COMELEC issued the second assailed Order dated September 7, 2010, denying
petitioners Motion for Reconsideration.
 
Hence, this petition for certiorari positing the singular issue of whether the COMELEC
committed grave abuse of discretion amounting to lack or excess of jurisdiction in
refusing to dismiss the protest of private respondent for insufficiency in form and
content.
 
Not unexpectedly, private respondent refutes the allegations of petitioner and raises
the procedural infirmity in the instant petition, i.e., the power of this Court to review
decisions of the COMELEC under Section 3,[4] Article IX-C of the Constitution,
pursuant to the leading case of Repol v. COMELEC.[5] Private respondent likewise
counters that the petition fails to demonstrate grave abuse of discretion.
 
Adamantly, petitioner insists that the case at bar differs from Repol since the herein
assailed Orders constituted a final order of the COMELEC (Second Division) on that
particular issue. Moreover, petitioner maintains that the
COMELEC patently committed grave abuse of discretion.
 
We cannot subscribe to petitioners proposition. The landmark case of Repol, as
affirmed in the subsequent cases of Soriano, Jr. v. COMELEC[6] and Blanco v.
COMELEC,[7] leaves no room for equivocation.
 
Reviewing well-settled jurisprudence on the power of this Court to review an order,
whether final or interlocutory, or final resolution of a division of the
COMELEC, Soriano definitively ruled, thus:
In the 2004 case of Repol v. Commission on Elections, the
Court cited Ambil and held that this Court has no power to
review via  certiorari  an interlocutory order or even a final resolution
of a division of the COMELEC. However, the Court held that an
exception to this rule applies where the commission of grave abuse
of discretion is apparent on its face. In Repol, what was assailed
was a status quo ante Order without any time limit, and more than
20 days had lapsed since its issuance without the COMELEC First
Division issuing a writ of preliminary injunction. The Court held that
the status quo ante Order of the COMELEC First Division was
actually a temporary restraining order because it ordered Repol to
cease and desist from assuming the position of municipal mayor of
Pagsanghan, Samar and directed Ceracas to assume the post in
the meantime. Since the status quo ante Order, which was qualified
by the phrase until further orders from this Commission, had a
lifespan of more than 20 days, this Order clearly violates the rule
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 Laws on Suffrage
that a temporary restraining order has an effective period of only 20
days and automatically expires upon the COMELECs denial of
preliminary injunction. The Court held:
 
Only final orders of the COMELEC in Division may be
raised before the COMELEC en banc. Section 3, Article IX-C of the
1987 Constitution mandates that only motions for reconsideration
of  final decisions shall be decided by the COMELEC en banc, thus:
SEC. 3. The Commission on Elections may sit en banc or in two
divisions, and shall promulgate its rules of procedure in order to
expedite disposition of election cases, including pre-proclamation
controversies. All such election cases shall be heard and decided
in Division, provided that motions for reconsideration of decisions
shall be decided by the Commission en banc. (Emphasis supplied.)
Under this constitutional provision, the COMELEC en banc shall
decide motions for reconsideration only of "decisions" of a Division,
meaning those acts having a  final character. Clearly, the
assailed status quo ante Order, being interlocutory, should first be
resolved by the COMELEC First Division via a motion for
reconsideration.
Furthermore, the present controversy does not fall under any of the
instances over which the COMELEC en banc can take cognizance
of the case. Section 2, Rule 3 of the 1993 COMELEC Rules of
Procedure provides:
SEC. 2. The Commission En Banc. The Commission shall sit en
banc in cases hereinafter specifically provided, or in pre-
proclamation cases upon a vote of a majority of the members of the
Commission, or in all other cases where a division is not authorized
to act, or where, upon a unanimous vote of all the Members of a
Division, an interlocutory matter or issue relative to an action or
proceeding before it is decided to be referred to the Commission en
banc.
The present case is not one of the cases specifically
provided under the COMELEC Rules of Procedure in which the
COMELEC may sit en banc. Neither is this case one where a
division is not authorized to act nor a case where the members of
the First Division unanimously voted to refer the issue to the
COMELEC en banc. Thus, the COMELECen banc is not even the
proper forum where Repol may bring the assailed interlocutory
Order for resolution.
We held in Ambil, Jr. v. Commission on Elections that
 
Under the existing Constitutional scheme, a party to an
election case within the jurisdiction of the COMELEC in division
[cannot] dispense with the filing of a motion for reconsideration of a
decision, resolution or final order of the Division of the Commission
on Elections because the case would not reach the Comelec  en
banc without such motion for reconsideration having been filed x x
x.
Repol went directly to the Supreme Court from an interlocutory
order of the COMELEC First Division. Section 7, Article IX of the
1987 Constitution prescribes the power of the Supreme Court to
review decisions of the COMELEC, as follows:
Section 7. Each commission shall decide by a majority vote of all its
members any case or matter brought before it within sixty days
from the date of its submission for decision or resolution. A case or
matter is deemed submitted for decision or resolution upon the filing
of the last pleading, brief, or memorandum required by the rules of
the commission or by the commission itself. Unless otherwise
provided by this constitution or by law, any decision, order, or ruling
of each commission may be brought to the Supreme Court on
certiorari by the aggrieved party within thirty days from receipt of a
copy thereof.
We have interpreted this constitutional provision to mean final
orders, rulings and decisions of the COMELEC rendered in the
exercise of its adjudicatory or quasi-judicial powers.The decision
must be a final decision or resolution of the COMELEC en
banc. The Supreme Court has no power to review via  certiorari
an interlocutory order or even a final resolution of a Division of
the COMELEC. Failure to abide by this procedural requirement
constitutes a ground for dismissal of the petition. (Emphasis
supplied.)
 
However, this rule is not ironclad. In ABS-CBN Broadcasting
Corporation v. COMELEC, we stated
 
This Court, however, has ruled in the past that this procedural
requirement [of filing a motion for reconsideration] may be glossed
over to prevent a miscarriage of justice, when the issue involves the
principle of social justice or the protection of labor, when the
decision or resolution sought to be set aside is a nullity, or when the
need for relief is extremely urgent and certiorari is the only
adequate and speedy remedy available.
The Court further pointed out in ABS-CBN that an exception was
warranted under the peculiar circumstances of the case since there
was hardly enough opportunity to move for a reconsideration and to
obtain a swift resolution in time for the 11 May 1998 elections. The
same can be said in Repol's case. We rule that direct resort to this
Court through a special civil action for certiorari is justified under the
circumstances obtaining in the present case. (Emphasis supplied)
 
xxxx
 
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 Laws on Suffrage
The general rule is that a decision or an order of a COMELEC this Court through a special civil action for certiorari. In short, the final order of the
Division cannot be elevated directly to this Court through a special COMELEC (Second Division) denying the affirmative defenses of petitioner cannot be
civil action for certiorari. Furthermore, a motion to reconsider a questioned before this Court even via a petition for certiorari.
decision, resolution, order, or ruling of a COMELEC Division shall  
be elevated to the COMELEC En Banc. However, a motion to True, the aforestated rule admits of exceptions as when the issuance of the assailed
reconsider an interlocutory order of a COMELEC Division shall be interlocutory order is a patent nullity because of the absence of jurisdiction to issue
resolved by the division which issued the interlocutory order, except the same.[9] Unfortunately for petitioner, none of the circumstances permitting an
when all the members of the division decide to refer the matter to exception to the rule occurs in this instance.
the COMELEC En Banc.  
Finally, certiorari will not lie in this case.
Thus, in general, interlocutory orders of a COMELEC Division  
are not appealable, nor can they be proper subject of a petition The issuance of a special writ of certiorari has two prerequisites: (1) a tribunal, board,
for certiorari. To rule otherwise would not only delay the or officer exercising judicial or quasi-judicial functions has acted without or in excess
disposition of cases but would also unnecessarily clog the Court of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess
docket and unduly burden the Court. This does not mean that the of jurisdiction; and (2) there is no appeal, or any plain, speedy, and adequate remedy
aggrieved party is without recourse if a COMELEC Division in the ordinary course of law.[10]
denies the motion for reconsideration. The aggrieved party can
still assign as error the interlocutory order if in the course of
the proceedings he decides to appeal the main case to the Although it is not the duty of the Court to point petitioner, or all litigants for that matter,
COMELEC En Banc. The exception enunciated to the appropriate remedy which she should have taken, we refer her to the cue found
in Kho and Repol is when the interlocutory order of a COMELEC in Soriano, i.e., [t]he aggrieved party can still assign as error the interlocutory
Division is a patent nullity because of absence of jurisdiction to order if in the course of the proceedings he decides to appeal the main case to
issue the interlocutory order, as where a COMELEC Division issued the COMELEC En Banc. In addition, the protest filed by private respondent and the
a temporary restraining order without a time limit, which is counter-protest filed by petitioner remain pending before the COMELEC, which
the Repol case, or where a COMELEC Division admitted an answer should afford petitioner ample opportunity to ventilate her grievances. Thereafter, the
with counter-protest which was filed beyond the reglementary COMELEC should decide these cases with dispatch.
period, which is the Kho case.  
  WHEREFORE, the petition is DISMISSED. Costs against petitioner.
This Court has already ruled in Reyes v. RTC of Oriental  
Mindoro, that "it is the decision, order or ruling of the SO ORDERED.
COMELEC En Banc that, in accordance with Section 7, Art. IX-  
A of the Constitution, may be brought to the Supreme Court on
certiorari." The exception provided in Kho and Repol is unavailing
in this case because unlike in  Kho and Repol, the assailed
interlocutory orders of the COMELEC First Division in this case are
not a patent nullity. The assailed orders in this case involve the
interpretation of the COMELEC Rules of Procedure. Neither will
the  Rosal case apply because in that case the petition for certiorari
questioning the interlocutory orders of the COMELEC Second
Division and the petition for certiorari and prohibition assailing the
Resolution of the COMELEC En Banc on the main case were
already consolidated.[8]
 
Plainly, from the foregoing, the Court has no jurisdiction to review an order,
whether final or interlocutory, even a final resolution of a division of the COMELEC.
Stated otherwise, the Court can only review via certiorari a decision, order, or ruling of
the COMELEC en banc in accordance with Section 7, Article IX-A of the Constitution.
 
Petitioners assertion that circumstances prevailing herein are different from the
factual milieu attendant in Repol has no merit. As stated in Soriano, the general rule
is that a decision or an order of a COMELEC Division cannot be elevated directly to

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 Laws on Suffrage
EN BANC WHEREFORE, the Tribunal DECLARES respondent
Danilo Ramon S. Fernandez ineligible for the Office of
PRESENTATIVE DANILO RAMON S. G. R. No. 187478 Representative of [the] First District of Laguna for lack of residence
RNANDEZ, in the district and [ORDERS] him to vacate his office.
itioner,  
Present: As soon as this Resolution becomes final and executory,
let notices be sent to the President of the Philippines, the House of
PUNO, C.J., Representatives through the Speaker, and the Commission on
CARPIO, Audit through its Chairman, pursuant to Rule 96 of the 2004 Rules
CORONA, of the House of Representatives Electoral Tribunal.
CARPIO MORALES,  
VELASCO, JR., No pronouncement as to costs.
ersus - NACHURA,  
LEONARDO-DE CASTRO, SO ORDERED.[2]
BRION,  
PERALTA, On December 22, 2008, petitioner Danilo Ramon S. Fernandez (petitioner)
BERSAMIN, filed a Motion for Reconsideration of the above-quoted Decision. The HRET, in the
DEL CASTILLO, questioned Resolution, found petitioners Motion to be bereft of new issues/
ABAD, and arguments that [had] not been appropriately resolved[3] in the Decision.
VILLARAMA, JR., JJ.  
USE OF REPRESENTATIVES ELECTORAL Promulgated: Petitioner thus applied for relief to this Court, claiming that the questioned
BUNAL AND JESUS L. VICENTE, Decision and Resolution should be declared null and void for having been
spondents. December 21, 2009 respectively issued with grave abuse of discretion amounting to lack of or in excess of
jurisdiction, and praying for the issuance of a writ of prohibition to enjoin and prohibit
the HRET from implementing the questioned Decision and Resolution.[4]
 
The antecedent facts are clear and undisputed.
 
Petitioner filed for candidacy as Representative of the First Legislative
District of the Province of Laguna in the May 14, 2007 elections. In his Certificate of
Candidacy (COC), he indicated his complete/exact address as No. 13 Maharlika St.,
Villa Toledo Subdivision, Barangay Balibago, Sta. Rosa City, Laguna (alleged Sta.
Rosa residence).[5]
 
Private respondent Jesus L. Vicente (private respondent) filed a Petition to
x--------------------------------------------------------------------------------------------x Deny Due Course to and/or Cancel Certificate of Candidacy and Petition for
  Disqualification before the Office of the Provincial Election Supervisor of Laguna. This
DECISION was forwarded to the Commission on Elections (COMELEC) and docketed therein
  as SPA No. 07-046 (PES). Private respondent sought the cancellation of petitioners
LEONARDO-DE CASTRO, J.: COC and the latters disqualification as a candidate on the ground of an alleged
  material misrepresentation in his COC regarding his place of residence, because
This petition for certiorari and prohibition filed under Rule 65 of the Rules of Court during past elections, he had declared Pagsanjan, Laguna as his address, and
stems from the Decision[1] in HRET CASE No. 07-034 for quo Pagsanjan was located in the Fourth Legislative District of
warrantoentitled Jesus L. Vicente v. Danilo Ramon S. Fernandez promulgated by the Province of Laguna. Private respondent likewise claimed that petitioner
the House of Representatives Electoral Tribunal (HRET) on December 16, 2008 as maintained another house in Cabuyao, Laguna, which was also outside the First
well asMinute Resolution No. 09-080 promulgated on April 30, 2009, likewise issued District.[6] The COMELEC (First Division) dismissed said petition for lack of merit.[7]
by the HRET, denying petitioners Motion for Reconsideration.  
  Petitioner was proclaimed as the duly elected Representative of the First
The dispositive portion of the questioned Decision reads as follows: District of Laguna on June 27, 2007, having garnered a total of 95,927 votes,
  winning by a margin of 35,000 votes over the nearest candidate.[8]
 

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 Laws on Suffrage
On July 5, 2007, private respondent filed a petition for quo warranto before
the HRET, docketed as HRET CASE No. 07-034, praying that petitioner be declared
ineligible to hold office as a Member of the House of Representatives representing
the First Legislative District of the Province of Laguna, and that petitioners election
and proclamation be annulled and declared null and void.[9]
Private respondents main ground for the quo warranto petition was that
petitioner lacked the required one-year residency requirement provided under Article
VI, Section 6 of the 1987 Constitution. In support of his petition, private respondent
argued that petitioner falsely declared under oath: (1) his alleged Sta. Rosa
residence; (2) the period of his residence in the legislative district before May 14,
2007, which he indicated as one year and two months; and (3) his eligibility for the
office where he was seeking to be elected. Private respondent presented the
testimony of a certain Atty. Noel T. Tiampong, who stated that petitioner is not from
the alleged Sta. Rosa residence but a resident of Barangay Pulo, Cabuyao, Laguna;
as well as the respective testimonies of Barangay Balibago Health Workers who
attested that they rarely, if ever, saw respondent in the leased premises at the alleged
Sta. Rosa residence; and other witnesses who testified that contrary to the
misrepresentations of petitioner, he is not a resident of the alleged Sta. Rosa
residence. A witness testified that petitioner attempted to coerce some of the other
witnesses to recant their declarations and change their affidavits. Finally, private
respondent presented as witness the lawyer who notarized the Contract of Lease
dated March 8, 2007 between petitioner as lessee and Bienvenido G. Asuncion as
lessor.[10]
 
Petitioner, as respondent in HRET Case No. 07-034, presented as his
witnesses residents of Villa de Toledo who testified that they had seen respondent
and his family residing in their locality, as well as Bienvenido G. Asuncion who
testified that petitioner is the lessee in Unit No. 13 Block 1 Lot I, Maharlika St., Villa de
Toledo Subdivision, Brgy. Balibago, Sta. Rosa City, Laguna. Petitioner likewise
presented Mr. Joseph Wade, President of South Point Homeowners Association of
Cabuyao, Laguna, as well as Engr. Larry E. Castro (Castro), who testified that since
February 2006 up to the present, petitioner had no longer been residing in his
property located at Block 28, Lot 18, South Point Subdivision, Cabuyao, Laguna, and
that said property was being offered for sale and temporarily being used by Castro,
together with some security men of petitioner and employees of Rafters Music
Lounge owned by petitioner.[11] Petitioner testified that he had been a resident of Sta.
Rosa even before February 2006; that he owned property in another Sta. Rosa
subdivision (Bel-Air); that he and his wife had put up a business therein, the
RAFTERS restaurant/ bar; and that he had prior residence in another place also at
Sta. Rosa as early as 2001.[12]
Since the HRET ruled in favor of private respondent, this petition was filed
before us.
 
In petitioners assignment of errors, he alleges that the HRET grievously
erred and committed grave abuse of discretion:
 
1.     In not placing on the quo warranto petitioner Jesus L. Vicente the
burden of proving that then respondent (now petitioner) Fernandez
is not a qualified candidate for Representative of the First District of
the Province of Laguna;
 
2.     When it disregarded the ruling of a co-equal tribunal in SPA No.
07-046;
3.     When it added a property qualification to a Member of Congress;
 
4.     When it determined that the petitioner failed to comply with the one
(1) year residency requirement based on the contract of lease;
 
5.     When it completely disregarded the testimonies of material
witnesses;
 
6.     When it failed to consider the intent of the petitioner to transfer
domicile based on the totality of the evidence adduced; and
 
7.     When it failed to find the petitioner in HRET Case No. 07-034 guilty
of forum-shopping.[13]
 
On the first assignment of error, petitioner questions the following
pronouncement of the HRET in its decision:
 
In the case before us, petitioner has clearly asserted, and
respondent does not deny, that his domicile of origin is Pagsanjan
in the Fourth District of Laguna. Hence, the burden is now on
respondent to prove that he has abandoned his domicile of origin,
or since his birth, where he formerly ran for provincial Board
Member of Laguna in 1998, for Vice-Governor of Laguna in 2001
and for Governor of Laguna in 2004. In all his Certificates of
Candidacy when he ran for these positions, he indicated under oath
that his domicile or permanent residence was in Pagsanjan in the
Fourth District of Laguna, not in the First District where he later ran
in the last elections.[14]
 
Petitioner contends that it is a basic evidentiary rule that the burden of proof
is on he who alleges, and he who relies on such an allegation as his cause of action
should prove the same.[15] Since private respondent is the party alleging that petitioner
is not eligible for his position, it is therefore incumbent on the former, who filed
the quo warranto case before the HRET, to prove such allegation. He cites in support
of his contention Sec. 1, Rule 131 of the Rules of Court, to wit:
SECTION 1. Burden of proof  . Burden of proof is the duty
of a party to present evidence on the facts in issue necessary to
establish his claim or defense by the amount of evidence required
by law.
 
Petitioner avers that private respondent failed to establish his claim and to
adduce evidence sufficient to overcome petitioners eligibility to be a candidate for
Representative of the First District of Laguna.
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 Laws on Suffrage
On the second assignment of error, petitioner submits that the HRET should have
been guided and/or cautioned by the COMELECs dispositions in SPA No. 07-046,
wherein he was adjudged as qualified to run for the position of Congressman of the
First District of Laguna by an agency tasked by law and the Constitution to ascertain
the qualifications of candidates before election. Petitioner claims that the HRET
should have respected the findings of the COMELEC and should have discreetly
denied the petition.
 
On the third assignment of error, petitioner argues that under Article V, Section 1, of
the 1987 Constitution, any citizen of the Philippines who is a qualified voter may
likewise, if so qualified under the appertaining law and the constitution, be able to run
and be voted for as a candidate for public office. Said provision reads:
 
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. No literacy, property, or other substantive requirement
shall be imposed on the exercise of suffrage.
 
Petitioner alleges that in the questioned Decision, the HRET added a new
qualification requirement for candidates seeking election to the position of Member of
the House of Representatives, and that is, they must be real property owners in the
legislative district where they seek election.
 
On the fourth assignment of error, petitioner addresses private respondents
arguments against the contract of lease that he presented as part of the proof of his
compliance with the residency requirement. Petitioner asserts that the nomenclature
used by contracting parties to describe a contract does not determine its nature, but
the decisive factor is the intention of the parties to a contract as shown by their
conduct, words, actions, and deeds prior to, during and after executing the
agreement.[16] Petitioner claims that he has presented ample proof of his residency in
terms of evidence more numerous and bearing more weight and credibility than those
of private respondent. He proceeds to highlight some of the evidence he offered in
the quo warranto case that allegedly prove that his transfer of residence and intention
to reside in Sta. Rosa were proven by his stay in Villa de Toledo, to wit: (1) even
earlier than 2006, he had purchased a house and lot in Bel-Air Subdivision in Sta.
Rosa which he rented out because he was not yet staying there at that time; (2) he
sent his children to schools in Sta. Rosa as early as 2002; and (3) he and his wife
established a restaurant business there in 2003. Petitioner contends that when he
and his family moved to Sta. Rosa by initially renting a townhouse in Villa de Toledo,
it cannot be said that he did this only in order to run for election in the First Legislative
District.[17]
 
As regards the alleged infirmities characterizing the execution of the contract of lease
and the renewal of said contract of lease, petitioner contends that these are not
material since the lessor, Bienvenido Asuncion, affirmed his stay in his townhouse;
the neighbors and other barangay personalities confirmed his and his familys stay in
their area; and petitioner has continued actual residence in Sta. Rosa from early 2006
to the present. Petitioner claims that all these prove that he had effectively changed
his residence and could therefore likewise transfer his voters registration from
Pagsanjan to Sta. Rosa under Sec. 12 of R.A. No. 8189. [18] Petitioner also alleges that
he had become qualified to seek elective office in his new place of residence and
registration as a voter.
 
To further prove that he has made Sta. Rosa his domicile of choice from early 2006 to
the present, petitioner points out that he and his wife had purchased a lot in the same
area, Villa de Toledo, on April 21, 2007, built a house thereon, and moved in said
house with their family.
 
Regarding the non-notarization of the contract of lease raised by private respondent,
petitioner avers that this does not necessarily nullify nor render the parties transaction
void ab initio.[19]
 
On the fifth assignment of error, petitioner alleges that the HRET relied on private
respondents witnesses in negating petitioners claim that he had validly resided at the
alleged Sta. Rosa residence for more than one year and two months prior to the May
14, 2007 elections, and did not touch on the testimonies of his witnesses. The
questioned Decision pointed out petitioners alleged non-appearance in the day-to-day
activities of the Homeowners Association and considered this as failure to prove that
he is a resident of Villa de Toledo, without considering the fact that private respondent
failed to discharge the burden of proof in support of his indictment against petitioner.
 
On the sixth assignment of error, petitioner claims that the questioned Decision was
arrived at based on the perceived weakness of his evidence and arguments as
respondent, instead of the strength of private respondents own evidence and
arguments in his quo warranto petition.
 
On the seventh and last assignment of error, petitioner alleges that the matters raised
in HRET Case No. 07-034 were no different from the ones raised by private
respondent before the COMELEC in SPA No. 07-046 (PES); thus, private
respondents petition should have been dismissed by the HRET for forum-shopping.
 
In his Comment dated June 22, 2009, private respondent summarized the issues
raised in petitioners assignment of errors into two: (1) those that involve the issue of
conflict of jurisdiction between the HRET and the COMELEC respecting the eligibility,
qualification/s or disqualification of elective public officials; and (2) those that involve
factual and evidentiary matters designed as supposed errors.[20]
 
Regarding the first issue, private respondent contends that the 1987 Constitution is
most equivocal in declaring that the HRET is the sole judge of all contests relating to
the election, returns and qualifications of Members of the House of Representatives,
under the following provision:
 
Art. VI, SECTION 17. The Senate and the House of
Representatives shall each have an Electoral Tribunal which shall
be the sole judge of all contests relating to the election, returns, and
qualifications of their respective Members.
 
Private respondent alleges that the above constitutional provision was
adopted by the HRET in its Rules, which read:
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 Laws on Suffrage
 
THE 1998 RULES OF THE HOUSE OF REPRESENTATIVES
ELECTORAL TRIBUNAL
The House of Representatives Electoral Tribunal hereby
adopts and promulgates the following Rules governing its
proceedings as the sole judge of all contests relating to the election,
returns and qualifications of Members of the House of
Representatives, pursuant to Section 17, Article VI of the
Constitution.
 
xxx xxx xxx
 
RULE 17
Quo Warranto
A verified petition for quo warranto contesting the election
of a Member of the House of Representatives on the ground of
ineligibility or of disloyalty to the Republic of the Philippines shall be
filed by any voter within ten (10) days after the proclamation of the
winner. The party filing the petition shall be designated as the
petitioner while the adverse party shall be known as the
respondent.
The rule on verification provided in Section 16 hereof shall
apply to petitions for quo warranto.
xxx xxx xxx
Private respondent concludes from the above that petitioner had no legal
basis to claim that the HRET, when reference to the qualification/s of Members of the
House of Representatives is concerned, is co-equal to the COMELEC, such that the
HRET cannot disregard any ruling of COMELEC respecting the matter of eligibility
and qualification of a member of the House of Representatives. The truth is the other
way around, because the COMELEC is subservient to the HRET when the dispute or
contest at issue refers to the eligibility and/or qualification of a Member of the House
of Representatives. A petition for quo warranto is within the exclusive jurisdiction of
the HRET as sole judge, and cannot be considered forum shopping even if another
body may have passed upon in administrative or quasi-judicial proceedings the issue
of the Members qualification while the Member was still a candidate. There is forum-
shopping only where two cases involve the same parties and the same cause of
action. The two cases here are distinct and dissimilar in their nature and character.
Anent the second issue, private respondent contends that petitioner raised errors of
judgment, mistakes in the factual findings, and/or flaws in the evidence appreciation,
which are appropriate on appeal, but not in a petition for certiorari which is a special
civil action, where the only allowable ground in order to prosper is grave abuse of
discretion amounting to lack or in excess of jurisdiction.
 
For its part, public respondent HRET, through the Solicitor General, filed a Comment
dated July 14, 2009, arguing that it did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction when it held that petitioner failed to comply
with the one year residency requirement under Section 6, Article VI of the 1987
Constitution.[21]
 
The HRET avers that the questioned Decision is supported by factual and legal basis,
for it found that the original and extended contracts of lease presented by petitioner
were defective and fabricated, as it contained several apparent, if not visible,
deficiencies as to form, i.e.[,] it being not notarized; the absence of witnesses, the
intercalations thereat especially on the term/period of the alleged lease; the absence
of respondents participation therein and some others pointed out in the petition.
[22]
 The Decision states that even if the contract of lease was valid and legitimate, a
fixed period of one year negates the concept of permanency that would suffice to
prove abandonment of respondents previous residence or domicile at Pagsanjan. The
Decision further reads as follows:
Respondents connection to the First District of Laguna is an
alleged lease agreement of a townhouse unit in the area. The
intention not to establish a permanent home in the First District of
Laguna is evident in his leasing a townhouse unit instead of
buying one. The short length of time he claims to be a resident of
the First District of Laguna (and the fact that his domicile of
origin is Pagsanjan, Laguna is not within the First District of
Laguna) indicate that his sole purpose in transferring his physical
residence is not to acquire a new residence or domicile but only
to qualify as a candidate for Representative of the First District of
Laguna.[23]
xxx xxx xxx
Exhibit 3 is the very document that was produced and
presented by respondent to attest that while the original contract,
replete with infirmities, as only for one year expiring even before the
May 14, 2007 elections, here now comes the renewed Contract of
Lease, signed by respondent himself, no longer his wife, immaculately
perfect on its face, now notarized and properly witnessed, and even
the terms and conditions thereof undeniably clear and explicit, with the
added feature of a prolonged 2-year period of lease that will go well
beyond the May 14, 2007 elections.
We cannot however, simply accept the renewed Contract of
Lease (Exhibit 3) on its face. In fact, as succinctly pointed out by
petitioner, the renewed Contract of Lease suffers from a more
grievous infirmity.
x x x As respondents brother-in-law, Atty. Macalalag is
prohibited from notarizing a document that involves the respondent.[24]
Page | 20
 Laws on Suffrage
xxx xxx xxx
 
But the lack of notarial authentication does not even
constitute the main defect of [Exhibit 3]. The surfacing of Exhibit 3 very
late in the day cannot but lead to the conclusion that the same was a
mere afterthought. x x x[25]
 
xxx xxx xxx
 
We have to emphasize that the initial one-year lease contract
expired on February 27, 2007, and as such, standing alone, the same
cannot prove and will not establish the declared one-year and two
months prior residence eligibility requirement of respondent, unless it
is shown that the expired lease agreement was extended or renewed
beyond the May 14, 2007 elections, and, more importantly,
accompanied by a copy of the claimed existing renewed lease
agreement. x x x[26]
 
xxx xxx xxx
By the unexplained delay in the production and presentation
of Exhibit 3, respondents residence qualifications suffered a fatal
blow. For it can no longer be denied that respondents claimed
residence at the alleged townhouse unit in Sta. Rosa for one year and
two months prior to the May 14, 2007 election is not only most
doubtful, but also negates the concept of permanency that would
suffice to prove abandonment of respondents previous residence or
domicile at Pagsanjan.[27]
Furthermore, the HRET alleges that, as it found in the questioned Decision,
the witnesses presented who were residents of Sta. Rosa, Laguna were consistent
and credible in disputing petitioners alleged physical presence at any given time in
said place. Among these witnesses were three Barangay Health Workers, one of
whom, Rowena Dineros, submitted an affidavit that her job required her to frequently
go around Villa de Toledo, knocking on every household door to inquire about its
occupants, and not once did she see petitioner at the alleged Sta. Rosa
residence. The HRET claims that this testimony was corroborated by another
Barangay Health Worker (BHW), Jeanet Cabingas, who stated in her affidavit that
every time she accompanied her niece, who was petitioners goddaughter, to request
a favor from petitioner, the latter would ask them to return to his house in Cabuyao,
Laguna, even if she was a resident of Sta. Rosa. [28] The Solicitor General quotes the
following portion from the questioned Decision:
What appears very evident from this is that respondent has
absolutely not the slightest intention to reside in Sta. Rosa
permanently.
This ineluctably confirms that respondent has not
developed animus manendi over the latter place, Sta. Rosa[,] and
that he has not actually abandoned his old domicile of origin in
Pagsanjan.[29]
As for the third BHW witness, Flocerfina Torres, the HRET gives credence to
her testimony that she conducted a household census in Villa de Toledo every three
months, but not once had she seen petitioner in the alleged Sta. Rosa residence, and
that she was advised by petitioner to proceed to his house in Cabuyao, Laguna when
she had attempted to solicit from petitioner at his Rafters establishment because it
was near her residence in Sta. Rosa. From the foregoing testimonies, the HRET
found in the questioned Decision that:
 
The uniform testimony of our 3 BHW witnesses disputing the
physical presence of the respondent at his claimed Toledo address
during all the time that they were performing their routine duties at
that community, and which encompassed the period of 1 year and 2
months before the May 14, 2007 election, revealed that he was not
staying in Sta. Rosa.[30]
 
The HRET likewise contends that the fact that petitioner registered as a voter in Sta.
Rosa does not prove that he is a resident thereat, given that a voter is required to
reside in the place wherein he proposes to vote only for six months preceding the
election.
The HRET avers that this Court had explained the importance of property ownership
in Aquino v. COMELEC, et al.[31] and finds no merit in petitioners insistence that the
will of the electorate attests to his residence in Sta. Rosa because, the HRET further
avers, [a] disqualified candidate cannot assume office.[32]
 
The HRET likewise contends that the purpose of the residency requirement
is to ensure that the person elected is familiar with the needs and problems of his
constituency.
 
The issues for determination are: (1) whether the HRET had jurisdiction over the
case; and (2) whether petitioner sufficiently complied with the one-year residency
requirement to be a Member of the House of Representatives, as provided in the
1987 Constitution.
 
The first issue is procedural and involves the jurisdiction of the HRET vis--vis that of
the COMELEC in cases involving the qualification of Members of the House of
Representatives. Petitioner suggests that the matters raised in HRET Case No. 07-
034 were already passed upon by the COMELEC in SPA No. 07-046 (PES), thus the
HRET should have dismissed the case for forum-shopping.
 
We do not agree. The 1987 Constitution explicitly provides under Article VI, Section
17 thereof that the HRET and the Senate Electoral Tribunal (SET) shall be the sole
judges of all contests relating to the election, returns, and qualifications of their
respective members. The authority conferred upon the Electoral Tribunal is full, clear
and complete. The use of the word sole emphasizes the exclusivity of the jurisdiction
of these Tribunals,[33] which is conferred upon the HRET and the SET after elections
and the proclamation of the winning candidates. A candidate who has not been
proclaimed and who has not taken his oath of office cannot be said to be a member of
the House of Representatives. [34]
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 Laws on Suffrage
 
Thus, private respondent correctly pointed out that a petition for quo
warranto is within the exclusive jurisdiction of the HRET, and cannot be considered
forum shopping even if, as in this case, the COMELEC had already passed upon in
administrative or quasi-judicial proceedings the issue of the qualification of the
Member of the House of Representatives while the latter was still a candidate.
 
Anent the second issue pertaining to petitioners compliance with the residency
requirement for Members of the House of Representatives, after studying the
evidence submitted by the parties, we find for petitioner, taking into account our ruling
in Frivaldo v. COMELEC,[35] which reads in part:
 
This Court has time and again liberally and equitably
construed the electoral laws of our country to give fullest
effect to the manifest will of our people, for in case of doubt,
political laws must be interpreted to give life and spirit to the
popular mandate freely expressed through the
ballot. Otherwise stated, legal niceties and technicalities cannot
stand in the way of the sovereign will. xxx (Emphasis supplied)
 
For the foregoing reason, the Court must exercise utmost caution before disqualifying
a winning candidate, shown to be the clear choice of the constituents that he wishes
to represent in Congress.
 
The qualifications of a member of the House of Representatives are found in Article
VI, Section 6 of the Constitution, which provides:
 
Section 6. No person shall be a Member of the House of
Representatives unless he is a natural-born citizen of the
Philippines and, on the day of the election, is at least twenty-five
years of age, able to read and write, and, except the party-list
representatives, a registered voter in the district in which he shall
be elected, and a resident thereof for a period of not less than
one year immediately preceding the day of the
election. (Emphasis supplied)
 
We find the interpretation of the HRET of the residency requirement under the
Constitution to be overly restrictive and unwarranted under the factual circumstances
of this case.
 
The evidence presented by private respondent before the HRET hardly suffices to
prove that petitioner failed to comply with the one-year residency requirement under
the Constitution. Private respondents documentary evidence  to disqualify petitioner
mainly consisted of (a) petitioners certificates of candidacy (COCs) for various
positions in 1998, 2001 and 2004, which all indicated his residence as Pagsanjan,
Laguna within the Fourth District of said province; (b) his application for a drivers
license in August 2005 that indicated Pagsanjan, Laguna as his residence; and (c)
the statement in his COCs including his 2007 COC for Congressman for the First
District of Laguna that his place of birth was Pagsanjan, Laguna.
The only thing these pieces of documentary evidence prove is that petitioners
domicile of origin was Pagsanjan, Laguna and it remained his domicile up to 2005, at
the latest. On the other hand, what petitioner asserted in his 2007 COC is that he had
been a resident of Sta. Rosa, Laguna in the First District of Laguna as of February
2006 and respondents evidence failed contradict that claim.
If it is true that petitioner and his family had been living in Sta. Rosa, Laguna as of
February 2006 with the intent to reside therein permanently, that would more than
fulfill the requirement that petitioner be a resident of the district where he was a
candidate for at least one year before election day, which in this case was May 14,
2007.
 
In order to buttress his claim that he and his family actually resided in Sta. Rosa,
Laguna beginning at least in February 2006, petitioners evidence included, among
others: (a) original and extended lease contracts for a townhouse in Villa de Toledo,
Barangay Balibago, Sta. Rosa, Laguna; (b) certification issued by the President of the
Villa de Toledo Homeowners Association, Inc, that petitioner has been a resident of
said Subdivision since February 2006; (c) affidavits of petitioners neighbors in Villa de
Toledo attesting that petitioner has been a resident of said subdivision since February
2006; (d) certification of the barangay chairman of Barangay Balibago, Sta. Rosa,
Laguna that petitioner is a resident of Villa de Toledo within the said barangay; (e)
certificates of attendance of petitioners children in schools located in Sta. Rosa,
Laguna since 2005; and (f) DTI certificates of business issued in the name of
petitioner and his wife to show that they own and operate businesses in Sta. Rosa,
Laguna since 2003.
 
The fact that a few barangay health workers attested that they had failed to see
petitioner whenever they allegedly made the rounds in Villa de Toledo is of no
moment, especially considering that there were witnesses (including petitioners
neighbors in Villa de Toledo) that were in turn presented by petitioner to prove that he
was actually a resident of Villa de Toledo, in the address he stated in his COC. The
law does not require a person to be in his home twenty-four (24) hours a day, seven
days a week, in order to fulfill the residency requirement. It may be that whenever
these health workers do their rounds petitioner was out of the house to attend to his
own employment or business. It is not amiss to note that even these barangay health
workers, with the exception of one, confirm seeing petitioners wife at the address
stated in petitioners 2007 COC. Indeed, these health workers testimonies do not
conclusively prove that petitioner did not in fact reside in Villa de Toledo for at least
the year before election day.
 
Neither do we find anything wrong if petitioner sometimes transacted business or
received visitors in his Cabuyao house, instead of the alleged Sta. Rosa residence,
as there is nothing in the residency requirement for candidates that prohibits them
from owning property and exercising their rights of ownership thereto in other places
aside from the address they had indicated as their place of residence in their COC.
 
As regards the weight to be given the contract of lease vis--vis  petitioners previous
COCs, we find Perez v. COMELEC[36] to be instructive in this case, and quote the
pertinent portions of the decision below:
 
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In the case at bar, the COMELEC found that private Moreover, as this Court said in Romualdez-Marcos
respondent changed his residence from Gattaran to Tuguegarao, the v. COMELEC:
capital of Cagayan, in July 1990 on the basis of the following: (1) the
 
affidavit of Engineer Alfredo Ablaza, the owner of the residential
apartment at 13-E Magallanes St., Tuguegarao, Cagayan, where It is the fact of residence, not a statement in a certificate
private respondent had lived in 1990; (2) the contract of lease of candidacy, which ought to be decisive in determining
between private respondent, as lessee, and Tomas T. Decena, as whether or not an individual has satisfied the constitution's
lessor, of a residential apartment at Kamias St., Tanza, Tuguegarao, residency qualification requirement. The said statement
Cagayan, for the period July 1, 1995 to June 30, 1996; (3) the becomes material only when there is or appears to be a
marriage certificate, dated January 18, 1998, between private deliberate attempt to mislead, misinform, or hide a fact which
respondent and Lerma Dumaguit; (4) the certificate of live birth of would otherwise render a candidate ineligible.
private respondent's second daughter; and (5) various letters
 
addressed to private respondent and his family, which all show that
private respondent was a resident of Tuguegarao, Cagayan for at In this case, although private respondent declared in his
least one (1) year immediately preceding the elections on May 11, certificates of candidacy prior to the May 11, 1998 elections that he
1998. was a resident of Gattaran, Cagayan, the fact is that he was actually
a resident of the Third District not just for one (1) year prior to the
 
May 11, 1998 elections but for more than seven (7) years since July
There is thus substantial evidence supporting the finding that 1990. His claim that he had been a resident of Tuguegarao since
private respondent had been a resident of the Third District of July 1990 is credible considering that he was governor from
Cagayan and there is nothing in the record to detract from the merit 1988 to 1998 and, therefore, it would be convenient for him to
of this factual finding. maintain his residence in Tuguegarao, which is the capital of the
province of Cagayan.
 
 
Petitioner contends that the fact that private respondent was a
resident of Gattaran, at least until June 22, 1997, is shown by the As always, the polestar of adjudication in cases of this nature
following documentary evidence in the record, to wit: (1) his is Gallego v.  Vera, in which this Court held: "[W]hen the evidence
certificates of candidacy for governor of Cagayan in the 1988, 1992 on the alleged lack of residence qualification is weak or
and 1995 elections; (2) his voter's registration records, the latest of inconclusive and it clearly appears, as in the instant case, that
which was made on June 22, 1997; and (3) the fact that private the purpose of the law would not be thwarted by upholding the
respondent voted in Gattaran, Cagayan, in the elections of 1987, right to the office, the will of the electorate should be
1988, 1992 and 1995. respected." In this case, considering the purpose of the residency
requirement, i.e., to ensure that the person elected is familiar with the
 
needs and problems of his constituency, there can be no doubt that
The contention is without merit. The fact that a person is private respondent is qualified, having been governor of the entire
registered as a voter in one district is not proof that he is not province of Cagayan for ten years immediately before his election as
domiciled in another district. Thus, in Faypon v.  Quirino, this Court Representative of that province's Third District.[37]
held that the registration of a voter in a place other than his residence
Thus, in the case above, the Court found that the affidavit of the lessor and
of origin is not sufficient to consider him to have abandoned or lost
the contract of lease were sufficient proof that private respondent therein had
his residence.
changed his residence. In the case now before us, although private respondent raised
  alleged formal defects in the contract of lease, the lessor himself testified that as far
as he was concerned, he and petitioner had a valid contract and he confirmed that
Nor is it of much importance that in his certificates of
petitioner and his family are the occupants of the leased premises.
candidacy for provincial governor in the elections of 1988, 1992,
 
and 1995, private respondent stated that he was a resident of
Petitioner correctly pointed out that the lack of proper notarization does not
Gattaran. Under the law, what is required for the election of
necessarily nullify nor render the parties transaction void ab initio. In Mallari v.
governor is residency in the province, not in any district or
Alsol, we found a contract of lease to be valid despite the non-appearance of one of
municipality, one year before the election.
the parties before a notary public, and ruled in this wise:
   
Notarization converts a private document into a public
document. However, the non-appearance of the parties before the

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notary public who notarized the document does not necessarily
nullify nor render the parties' transaction void ab initio. Thus:
. . . Article 1358 of the New Civil Code on the
necessity of a public document is only for convenience,
not for validity or enforceability. Failure to follow the
proper form does not invalidate a contract. Where a
contract is not in the form prescribed by law, the parties
can merely compel each other to observe that form,
once the contract has been perfected. This is
consistent with the basic principle that contracts are
obligatory in whatever form they may have been
entered into, provided all essential requisites are
present.
Hence, the Lease Contract is valid despite Mayor
Perez's failure to appear before the notary public. [38]
 
The HRET puts undue emphasis on the fact that petitioner is only leasing a
townhouse in Sta. Rosa while he owns houses in Pagsanjan and Cabuyao. His
ownership of properties in other places has been taken to mean that petitioner did not
intend to make Sta. Rosa his permanent residence or that he had not abandoned his
domicile of origin.
 
Although it is true that the latest acquired abode is not necessarily the domicile of
choice of a candidate, there is nothing in the Constitution or our election laws which
require a congressional candidate to sell a previously acquired home in one district
and buy a new one in the place where he seeks to run in order to qualify for a
congressional seat in that other district. Neither do we see the fact that petitioner was
only leasing a residence in Sta. Rosa at the time of his candidacy as a barrier for him
to run in that district. Certainly, the Constitution does not require a congressional
candidate to be a property owner in the district where he seeks to run but only that
he resides in that district for at least a year prior to election day. To use ownership of
property in the district as the determinative indicium of permanence of domicile or
residence implies that only the landed can establish compliance with the residency
requirement. This Court would be, in effect, imposing a property requirement to the
right to hold public office, which property requirement would be unconstitutional.
 
This case must be distinguished from Aquino v. COMELEC[39] and Domino v.
COMELEC,[40] where the disqualified candidate was shown to be merely leasing a
residence in the place where he sought to run for office. In Aquino  and Domino, there
appeared to be no other material reason for the candidate to lease residential
property in the place where he filed his COC, except to fulfill the residency
requirement under election laws.
 
In the case at bar, there are real and substantial reasons for petitioner to establish
Sta. Rosa as his domicile of choice and abandon his domicile of origin and/or any
other previous domicile. To begin with, petitioner and his wife have owned and
operated businesses in Sta. Rosa since 2003. Their children have attended schools
in Sta. Rosa at least since 2005. Although ownership of property should never be
considered a requirement for any candidacy, petitioner had sufficiently confirmed his
intention to permanently reside in Sta. Rosa by purchasing residential properties in
that city even prior to the May 2007 election, as evidenced by certificates of title
issued in the name of petitioner and his wife. One of these properties is a residence in
Bel-Air, Sta. Rosa which petitioner acquired even before 2006 but which petitioner
had been leasing out. He claims that he rented out this property because prior to
2006 he had not decided to permanently reside in Sta. Rosa. This could explain why
in early 2006 petitioner had to rent a townhouse in Villa de Toledo his Bel-Air
residence was occupied by a tenant. The relatively short period of the lease was also
adequately explained by petitioner they rented a townhouse while they were in the
process of building their own house in Sta. Rosa. True enough, petitioner and his
spouse subsequently purchased a lot also in Villa de Toledo in April 2007, about a
month before election day, where they have constructed a home for their familys use
as a residence. In all, petitioner had adequately shown that his transfer of residence
to Sta. Rosa was bona fide and was not merely for complying with the residency
requirement under election laws.
 
It was incumbent upon private respondent to prove his assertion that petitioner is
indeed disqualified from holding his congressional seat. Private respondents burden
of proof was not only to establish that petitioners domicile of origin is different from
Sta. Rosa but also that petitioners domicile for the one year prior to election day
continued to be Pagsanjan, Laguna which was petitioners domicile of origin or that
petitioner had chosen a domicile other than Sta. Rosa, Laguna for that same period.In
other words, to prove petitioners disqualification, the relevant period is the one year
period prior to election day. It would be absurd to rule that the petitioner in a quo
warranto suit only needs to prove that the candidate had some other previous
domicile, regardless of how remote in time from election day that previous domicile
was established, and then the candidate would already have the burden to prove
abandonment of that previous domicile. It is the burden of the petitioner in a quo
warranto case to first prove the very fact of disqualification before the candidate
should even be called upon to defend himself with countervailing evidence.
 
In our considered view, private respondent failed to discharge his burden of proof.
Petitioners COCs for previous elections and his 2005 application for a drivers license
only proved that his domicile of origin was Pagsanjan, Laguna and it remained to be
so up to 2005. Affidavits/testimonies of respondents witnesses, at most, tended to
prove that petitioner was on several instances found in his house in Cabuyao,
Laguna, which was not even his domicile of origin. Cabuyao, Laguna is in
the Second District of Laguna while petitioners domicile of origin, Pagsanjan, is in
the Fourth District of Laguna. Based on private respondents own documentary
submissions, Cabuyao was never even stated as a domicile or residence in any of the
petitioners COCs. Moreover, owning an abode in Cabuyao where petitioner is
occasionally found did not prove that Cabuyao is petitioners real domicile. Indeed,
disregarding Cabuyao as petitioners domicile would be consistent with the
established principle that physical presence in a place sans the intent to permanently
reside therein is insufficient to establish domicile. Neither did private respondents
submissions refute petitioners evidence that since February 2006 petitioner has
chosen Sta. Rosa as his domicile.
 
To summarize, private respondents own evidence did not categorically establish
where petitioners domicile is nor did said evidence conclusively prove that for the year
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 Laws on Suffrage
prior to the May 14, 2007 petitioner had a domicile other than where he actually
resided, i.e. Sta. Rosa, Laguna. To be sure, Gallego v. Vera[41] decreed that:
 
We might add that the manifest intent of the law in fixing a
residence qualification is to exclude a stranger or newcomer,
unacquainted with the conditions and needs of a community and
not identified with the latter, from an elective office to serve that
community; and when the evidence on the alleged lack of
residence qualification is weak or inconclusive and it clearly
appears, as in the instant case, that the purpose of the law
would not be thwarted by upholding the right to the office, the
will of the electorate should be respected. xxx xxx xxx
(Emphasis supplied)
Frivaldo[42] likewise prescribed that:
 
xxx xxx xxx To successfully challenge a winning candidate's
qualifications, the petitioner must clearly demonstrate that the
ineligibility is so patently antagonistic to constitutional and
legal principles that overriding such ineligibility and thereby
giving effect to the apparent will of the people, would
ultimately create greater prejudiceto the very democratic
institutions and juristic traditions that our Constitution and laws so
zealously protect and promote. xxx xxx xxx (Emphasis supplied)
 
In Torayno,[43] the Court had the occasion to say that:
 
The Constitution and the law requires residence as a qualification
for seeking and holding elective public office, in order to give
candidates the opportunity to be familiar with the needs, difficulties,
aspirations, potentials for growth and all matters vital to the welfare
of their constituencies; likewise, it enables the electorate to
evaluate the office seekers' qualifications and fitness for the job
they aspire for. xxx xxx xxx
 
Recently, in Japzon v. COMELEC,[44] the Court, citing Papandayan, Jr. v. COMELEC,
[45]
 said:
 
In Papandayan, Jr. v. Commission on Elections, the Court
provided a summation of the different principles and concepts in
jurisprudence relating to the residency qualification for elective local
officials. Pertinent portions of the ratio in  Papandayan  are reproduced
below:
Our decisions have applied certain tests and concepts
in resolving the issue of whether or not a candidate has
complied with the residency requirement for elective positions.
The principle of animus revertendi has been used to determine
whether a candidate has an "intention to return" to the place
where he seeks to be elected. Corollary to this is a
determination whether there has been an "abandonment" of his
former residence which signifies an intention to depart
therefrom. In Caasi v. Court of Appeals, this Court set aside
the appealed orders of the COMELEC and the Court of
Appeals and annulled the election of the respondent as
Municipal Mayor of Bolinao, Pangasinan on the ground that
respondent's immigration to the United States in 1984
constituted an abandonment of his domicile and residence in
the Philippines. Being a green card holder, which was proof
that he was a permanent resident or immigrant of the United
States, and in the absence of any waiver of his status as such
before he ran for election on January 18, 1988, respondent
was held to be disqualified under 68 of the Omnibus Election
Code of the Philippines (Batas Pambansa Blg. 881).
In Co v. Electoral Tribunal of the House of
Representatives, respondent Jose Ong, Jr. was proclaimed the
duly elected representative of the 2nd District of Northern
Samar. The House of Representatives Electoral Tribunal
(HRET) upheld his election against claims that he was not a
natural born Filipino citizen and a resident of Laoang, Northern
Samar. In sustaining the ruling of the HRET, this Court,
citing  Faypon v. Quirino, applied the concept of animus
revertendi or "intent to return", stating that his absence from his
residence in order to pursue studies or practice his profession
as a certified public accountant in Manila or his registration as
a voter other than in the place where he was elected did not
constitute loss of residence. The fact that respondent made
periodical journeys to his home province in Laoag revealed that
he always had animus revertendi.
In Abella v. Commission on Elections and Larrazabal v.
Commission on Elections, it was explained that the
determination of a person's legal residence or domicile largely
depends upon the intention that may be inferred from his acts,
activities, and utterances. In that case, petitioner Adelina
Larrazabal, who had obtained the highest number of votes in
the local elections of February 1, 1988 and who had thus been
proclaimed as the duly elected governor, was disqualified by
the COMELEC for lack of residence and registration
qualifications, not being a resident nor a registered voter
of Kananga, Leyte. The COMELEC ruled that the attempt of
petitioner Larrazabal to change her residence one year before
the election by registering at Kananga, Leyte to qualify her to
run for the position of governor of the province of Leyte was
proof that she considered herself a resident of Ormoc City.
This Court affirmed the ruling of the COMELEC and held that
petitioner Larrazabal had established her residence
in Ormoc City, not in Kananga, Leyte, from 1975 up to the time
that she ran for the position of Provincial Governor of Leyte on
February 1, 1988. There was no evidence to show that she and
her husband maintained separate residences,  i.e., she
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 Laws on Suffrage
at Kananga, Leyte and her husband at Ormoc City. The fact  
that she occasionally visited Kananga, Leyte through the years Simply put, petitioner could not be considered a stranger to the community which he
did not signify an intention to continue her residence after sought to represent and that evil that the residency requirement was designed to
leaving that place. prevent is not present in this case.
 
In Romualdez v. RTC, Br.  7, Tacloban City, the Court We take this occasion to reiterate our ruling in Sinaca v. Mula,[46] to wit:
held that "domicile" and "residence" are synonymous. The term  
"residence", as used in the election law, imports not only an [When] a candidate has received popular mandate,
intention to reside in a fixed place but also personal presence overwhelmingly and clearly expressed, all possible doubts should be
in that place, coupled with conduct indicative of such intention. resolved in favor of the candidate's eligibility for to rule otherwise is to
"Domicile" denotes a fixed permanent residence to which when defeat the will of the people. Above and beyond all, the determination
absent for business or pleasure, or for like reasons, one of the true will of the electorate should be paramount. It is their voice,
intends to return. In that case, petitioner Philip G. Romualdez not ours or of anyone else, that must prevail. This, in essence, is the
established his residence during the early 1980's in Barangay democracy we continue to hold sacred.
Malbog, Tolosa, Leyte. It was held that the sudden departure  
from the country of petitioner, because of the EDSA People's WHEREFORE, premises considered, the petition is hereby GRANTED. The decision
Power Revolution of 1986, to go into self-exile in the United of the HRET in HRET CASE No. 07-034 promulgated on December 16, 2008, and
States until favorable conditions had been established, was not its Minute Resolution No. 09-080 promulgated on April 30, 2009 in the same case,
voluntary so as to constitute an abandonment of residence. are hereby REVERSED AND SET ASIDE.
The Court explained that in order to acquire a new domicile by SO ORDERED.
choice, there must concur (1) residence or bodily presence in  
the new locality, (2) an intention to remain there, and (3) an  
intention to abandon the old domicile. There must be animus
manendi coupled with animus non revertendi. The purpose to
remain in or at the domicile of choice must be for an indefinite
period of time; the change of residence must be voluntary; and
the residence at the place chosen for the new domicile must be
actual.

Ultimately, the Court recapitulates in  Papandayan, Jr. that it is

the fact of residence that is the decisive factor in determining whether
or not an individual has satisfied the residency qualification
requirement.

 
We do not doubt that the residency requirement is a means to prevent a
stranger or newcomer from holding office on the assumption that such stranger or
newcomer would be insufficiently acquainted with the needs of his prospective
constituents. However, it is appropriate to point out at this juncture that aside from
petitioners actual, physical presence in Sta. Rosa for more than a year prior to
election day, he has demonstrated that he has substantial ties to Sta. Rosa and the
First District of Laguna for an even longer period than that. Petitioner has business
interests in Sta. Rosa comprised of restaurants and a residential property for
lease.Petitioner has two children studying in Sta. Rosa schools even before
2006. These circumstances provided petitioner with material reasons to frequently
visit the area and eventually take up residence in the said district. Significantly,
petitioner previously served as Board Member and Vice-Governor for
the Province of Laguna, of which the First District and Sta. Rosa are a part. It stands
to reason that in his previous elected positions petitioner has acquired knowledge of
the needs and aspirations of the residents of the First District who were among his
constituents.

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EN BANC
G.R. No. 195649               April 16, 2013
CASAN MACODE MAQUILING, Petitioner, 
vs.
COMMISSION ON ELECTIONS, ROMMEL ARNADO y CAGOCO, LINOG G.
BALUA, Respondents.
DECISION
SERENO, CJ.:
THE CASE
This is a Petition for Certiorari ender Rule 64 in conjunction with Rule 65 of the Rules
of Court to review the Resolutions of the Commission on Elections (COMELEC). The
Resolution1 in SPA No. 10-1 09(DC) of the COMELEC First Division dated 5 October
201 0 is being assailed for applying Section 44 of the Local Government Code while
the Resolution2 of the COMELEC En Banc dated 2 February 2011 is being
questioned for finding that respondent Rommel Arnado y Cagoco (respondent
Arnado/Arnado) is solely a Filipino citizen qualified to run for public office despite his
continued use of a U.S. passport.
FACTS
Respondent Arnado is a natural born Filipino citizen. 3 However, as a consequence of
his subsequent naturalization as a citizen of the United States of America, he lost his
Filipino citizenship. Arnado applied for repatriation under Republic Act (R.A.) No.
9225 before the Consulate General of the Philippines in San Franciso, USA and took
the Oath of Allegiance to the Republic of the Philippines on 10 July 2008. 4 On the
same day an Order of Approval of his Citizenship Retention and Re-acquisition was
issued in his favor.5
The aforementioned Oath of Allegiance states:
I, Rommel Cagoco Arnado, solemnly swear that I will support and defend the
Constitution of the Republic of the Philippines and obey the laws and legal orders
promulgated by the duly constituted authorities of the Philippines and I hereby declare
that I recognize and accept the supreme authority of the Philippines and will maintain
true faith and allegiance thereto; and that I impose this obligation upon myself
voluntarily without mental reservation or purpose of evasion.6
On 3 April 2009 Arnado again took his Oath of Allegiance to the Republic and
executed an Affidavit of Renunciation of his foreign citizenship, which states:
I, Rommel Cagoco Arnado, do solemnly swear that I absolutely and perpetually
renounce all allegiance and fidelity to the UNITED STATES OF AMERICA of which I
am a citizen, and I divest myself of full employment of all civil and political rights and
privileges of the United States of America.
I solemnly swear that all the foregoing statement is true and correct to the best of my
knowledge and belief.7
On 30 November 2009, Arnado filed his Certificate of Candidacy for Mayor of
Kauswagan, Lanao del Norte, which contains, among others, the following
statements:
I am a natural born Filipino citizen / naturalized Filipino citizen.
I am not a permanent resident of, or immigrant to, a foreign country.
I am eligible for the office I seek to be elected to.
I will support and defend the Constitution of the Republic of the Philippines and will
maintain true faith and allegiance thereto. I will obey the laws, legal orders and
decrees promulgated by the duly constituted authorities.
I impose this obligation upon myself voluntarily without mental reservation or purpose
of evasion.8
On 28 April 2010, respondent Linog C. Balua (Balua), another mayoralty candidate,
filed a petition to disqualify Arnado and/or to cancel his certificate of candidacy for
municipal mayor of Kauswagan, Lanao del Norte in connection with the 10 May 2010
local and national elections.9
Respondent Balua contended that Arnado is not a resident of Kauswagan, Lanao del
Norte and that he is a foreigner, attaching thereto a certification issued by the Bureau
of Immigration dated 23 April 2010 indicating the nationality of Arnado as "USA-
American."10To further bolster his claim of Arnado’s US citizenship, Balua presented
in his Memorandum a computer-generated travel record 11 dated 03 December 2009
indicating that Arnado has been using his US Passport No. 057782700 in entering
and departing the Philippines. The said record shows that Arnado left the country on
14 April 2009 and returned on 25 June 2009, and again departed on 29 July 2009,
arriving back in the Philippines on 24 November 2009.
Balua likewise presented a certification from the Bureau of Immigration dated 23 April
2010, certifying that the name "Arnado, Rommel Cagoco" appears in the available
Computer Database/Passenger manifest/IBM listing on file as of 21 April 2010, with
the following pertinent travel records:
DATE OF Arrival : 01/12/2010
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 Laws on Suffrage
NATIONALITY : USA-AMERICAN
PASSPORT : 057782700
DATE OF Arrival : 03/23/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 05778270012
On 30 April 2010, the COMELEC (First Division) issued an Order13 requiring the
respondent to personally file his answer and memorandum within three (3) days from
receipt thereof.
After Arnado failed to answer the petition, Balua moved to declare him in default and
to present evidence ex-parte.
Neither motion was acted upon, having been overtaken by the 2010 elections where
Arnado garnered the highest number of votes and was subsequently proclaimed as
the winning candidate for Mayor of Kauswagan, Lanao del Norte.
It was only after his proclamation that Arnado filed his verified answer, submitting the
following documents as evidence:14
1. Affidavit of Renunciation and Oath of Allegiance to the Republic of the
Philippines dated 03 April 2009;
2. Joint-Affidavit dated 31 May 2010 of Engr. Virgil Seno, Virginia Branzuela,
Leoncio Daligdig, and Jessy Corpin, all neighbors of Arnado, attesting that
Arnado is a long-time resident of Kauswagan and that he has been
conspicuously and continuously residing in his family’s ancestral house in
Kauswagan;
3. Certification from the Punong Barangay of Poblacion, Kauswagan, Lanao
del Norte dated 03 June 2010 stating that Arnado is a bona fide resident of
his barangay and that Arnado went to the United States in 1985 to work and
returned to the Philippines in 2009;
4. Certification dated 31 May 2010 from the Municipal Local Government
Operations Office of Kauswagan stating that Dr. Maximo P. Arnado, Sr.
served as Mayor of Kauswagan, from January 1964 to June 1974 and from
15 February 1979 to 15 April 1986; and
5. Voter Certification issued by the Election Officer of Kauswagan certifying
that Arnado has been a registered voter of Kauswagan since 03 April 2009.
THE RULING OF THE COMELEC FIRST DIVISION
Instead of treating the Petition as an action for the cancellation of a certificate of
candidacy based on misrepresentation,15 the COMELEC First Division considered it
as one for disqualification. Balua’s contention that Arnado is a resident of the United
States was dismissed upon the finding that "Balua failed to present any evidence to
support his contention,"16 whereas the First Division still could "not conclude that
Arnado failed to meet the one-year residency requirement under the Local
Government Code."17
In the matter of the issue of citizenship, however, the First Division disagreed with
Arnado’s claim that he is a Filipino citizen.18
We find that although Arnado appears to have substantially complied with the
requirements of R.A. No. 9225, Arnado’s act of consistently using his US passport
after renouncing his US citizenship on 03 April 2009 effectively negated his Affidavit
of Renunciation.
xxxx
Arnado’s continued use of his US passport is a strong indication that Arnado had no
real intention to renounce his US citizenship and that he only executed an Affidavit of
Renunciation to enable him to run for office. We cannot turn a blind eye to the glaring
inconsistency between Arnado’s unexplained use of a US passport six times and his
claim that he re-acquired his Philippine citizenship and renounced his US citizenship.
As noted by the Supreme Court in the Yu case, "a passport is defined as an official
document of identity and nationality issued to a person intending to travel or sojourn
in foreign countries." Surely, one who truly divested himself of US citizenship would
not continue to avail of privileges reserved solely for US nationals.19
The dispositive portion of the Resolution rendered by the COMELEC
First Division reads:
WHEREFORE, in view of the foregoing, the petition for disqualification and/or to
cancel the certificate of candidacy of Rommel C. Arnado is hereby GRANTED.
Rommel C. Arnado’s proclamation as the winning candidate for Municipal Mayor of
Kauswagan, Lanao del Nore is hereby ANNULLED. Let the order of succession under
Section 44 of the Local Government Code of 1991 take effect.20
The Motion for Reconsideration and
the Motion for Intervention
Arnado sought reconsideration of the resolution before the COMELEC En Banc on
the ground that "the evidence is insufficient to justify the Resolution and that the said
Resolution is contrary to law."21 He raised the following contentions:22
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1. The finding that he is not a Filipino citizen is not supported by the
evidence consisting of his Oath of Allegiance and the Affidavit of
Renunciation, which show that he has substantially complied with the
requirements of R.A. No. 9225;
2. The use of his US passport subsequent to his renunciation of his
American citizenship is not tantamount to a repudiation of his Filipino
citizenship, as he did not perform any act to swear allegiance to a country
other than the Philippines;
3. He used his US passport only because he was not informed of the
issuance of his Philippine passport, and that he used his Philippine passport
after he obtained it;
4. Balua’s petition to cancel the certificate of candidacy of Arnado was filed
out of time, and the First Division’s treatment of the petition as one for
disqualification constitutes grave abuse of discretion amounting to excess of
jurisdiction;23
5. He is undoubtedly the people’s choice as indicated by his winning the
elections;
6. His proclamation as the winning candidate ousted the COMELEC from
jurisdiction over the case; and
7. The proper remedy to question his citizenship is through a petition for quo
warranto, which should have been filed within ten days from his
proclamation.
Petitioner Casan Macode Maquiling (Maquiling), another candidate for mayor of
Kauswagan, and who garnered the second highest number of votes in the 2010
elections, intervened in the case and filed before the COMELEC En Banc a Motion for
Reconsideration together with an Opposition to Arnado’s Amended Motion for
Reconsideration. Maquiling argued that while the First Division correctly disqualified
Arnado, the order of succession under Section 44 of the Local Government Code is
not applicable in this case. Consequently, he claimed that the cancellation of
Arnado’s candidacy and the nullification of his proclamation, Maquiling, as the
legitimate candidate who obtained the highest number of lawful votes, should be
proclaimed as the winner.
Maquiling simultaneously filed his Memorandum with his Motion for Intervention and
his Motion for Reconsideration. Arnado opposed all motions filed by Maquiling,
claiming that intervention is prohibited after a decision has already been rendered,
and that as a second-placer, Maquiling undoubtedly lost the elections and thus does
not stand to be prejudiced or benefitted by the final adjudication of the case.
RULING OF THE COMELEC EN BANC
In its Resolution of 02 February 2011, the COMELEC En Banc held that under
Section 6 of Republic Act No. 6646, the Commission "shall continue with the trial and
hearing of the action, inquiry or protest even after the proclamation of the candidate
whose qualifications for office is questioned."
As to Maquiling’s intervention, the COMELEC En Banc also cited Section 6 of R.A.
No. 6646 which allows intervention in proceedings for disqualification even after
elections if no final judgment has been rendered, but went on further to say that
Maquiling, as the second placer, would not be prejudiced by the outcome of the case
as it agrees with the dispositive portion of the Resolution of the First Division allowing
the order of succession under Section 44 of the Local Government Code to take
effect.
The COMELEC En Banc agreed with the treatment by the First Division of the petition
as one for disqualification, and ruled that the petition was filed well within the period
prescribed by law,24 having been filed on 28 April 2010, which is not later than 11 May
2010, the date of proclamation.
However, the COMELEC En Banc reversed and set aside the ruling of the First
Division and granted Arnado’s Motion for Reconsideration, on the following premises:
First:
By renouncing his US citizenship as imposed by R.A. No. 9225, the respondent
embraced his Philippine citizenship as though he never became a citizen of another
country. It was at that time, April 3, 2009, that the respondent became a pure
Philippine Citizen again.
xxxx
The use of a US passport … does not operate to revert back his status as a dual
citizen prior to his renunciation as there is no law saying such. More succinctly, the
use of a US passport does not operate to "un-renounce" what he has earlier on
renounced. The First Division’s reliance in the case of In Re: Petition for Habeas
Corpus of Willy Yu v. Defensor-Santiago, et al. is misplaced. The petitioner in the said
case is a naturalized citizen who, after taking his oath as a naturalized Filipino,
applied for the renewal of his Portuguese passport. Strict policy is maintained in the
conduct of citizens who are not natural born, who acquire their citizenship by choice,
thus discarding their original citizenship. The Philippine State expects strict conduct of
allegiance to those who choose to be its citizens. In the present case, respondent is
not a naturalized citizen but a natural born citizen who chose greener pastures by
working abroad and then decided to repatriate to supposedly help in the progress of
Kauswagan. He did not apply for a US passport after his renunciation. Thus the
mentioned case is not on all fours with the case at bar.
xxxx
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The respondent presented a plausible explanation as to the use of his US passport.
Although he applied for a Philippine passport, the passport was only issued on June
18, 2009. However, he was not notified of the issuance of his Philippine passport so
that he was actually able to get it about three (3) months later. Yet as soon as he was
in possession of his Philippine passport, the respondent already used the same in his
subsequent travels abroad. This fact is proven by the respondent’s submission of a
certified true copy of his passport showing that he used the same for his travels on
the following dates: January 31, 2010, April 16, 2010, May 20, 2010, January 12,
2010, March 31, 2010 and June 4, 2010. This then shows that the use of the US
passport was because to his knowledge, his Philippine passport was not yet issued to
him for his use. As probably pressing needs might be undertaken, the respondent
used whatever is within his control during that time.25
In his Separate Concurring Opinion, COMELEC Chairman Sixto Brillantes cited that
the use of foreign passport is not one of the grounds provided for under Section 1 of
Commonwealth Act No. 63 through which Philippine citizenship may be lost.
"The application of the more assimilative principle of continuity of citizenship is more
appropriate in this case. Under said principle, once a person becomes a citizen, either
by birth or naturalization, it is assumed that he desires to continue to be a citizen, and
this assumption stands until he voluntarily denationalizes or expatriates himself. Thus,
in the instant case respondent after reacquiring his Philippine citizenship should be
presumed to have remained a Filipino despite his use of his American passport in the
absence of clear, unequivocal and competent proof of expatriation. Accordingly, all
doubts should be resolved in favor of retention of citizenship."26
On the other hand, Commissioner Rene V. Sarmiento dissented, thus:
violate the principle of vox populi suprema est lex because the application of the
constitutional and statutory provisions on disqualification is not a matter of popularity.
To apply it is to breath[e] life to the sovereign will of the people who expressed it
when they ratified the Constitution and when they elected their representatives who
enacted the law.27
THE PETITION BEFORE THE COURT
Maquiling filed the instant petition questioning the propriety of declaring Arnado
qualified to run for public office despite his continued use of a US passport, and
praying that Maquiling be proclaimed as the winner in the 2010 mayoralty race in
Kauswagan, Lanao del Norte.
Ascribing both grave abuse of discretion and reversible error on the part of the
COMELEC En Banc for ruling that Arnado is a Filipino citizen despite his continued
use of a US passport, Maquiling now seeks to reverse the finding of the COMELEC
En Banc that Arnado is qualified to run for public office.
Corollary to his plea to reverse the ruling of the COMELEC En Banc or to affirm the
First Division’s disqualification of Arnado, Maquiling also seeks the review of the
applicability of Section 44 of the Local Government Code, claiming that the
COMELEC committed reversible error in ruling that "the succession of the vice mayor
in case the respondent is disqualified is in order."
There are three questions posed by the parties before this Court which will be
addressed seriatim as the subsequent questions hinge on the result of the first.

Respondent evidently failed to prove that he truly and wholeheartedly abandoned his
allegiance to the United States. The latter’s continued use of his US passport and
enjoyment of all the privileges of a US citizen despite his previous renunciation of the
afore-mentioned citizenship runs contrary to his declaration that he chose to retain
only his Philippine citizenship. Respondent’s submission with the twin requirements
was obviously only for the purpose of complying with the requirements for running for
the mayoralty post in connection with the May 10, 2010 Automated National and
Local Elections.
The first question is whether or not intervention is allowed in a disqualification case.
The second question is whether or not the use of a foreign passport after renouncing
foreign citizenship amounts to undoing a renunciation earlier made.
A better framing of the question though should be whether or not the use of a foreign
passport after renouncing foreign citizenship affects one’s qualifications to run for
public office.

Qualifications for elective office, such as citizenship, are continuing requirements; The third question is whether or not the rule on succession in the Local Government
once any of them is lost during his incumbency, title to the office itself is deemed Code is applicable to this case.
forfeited. If a candidate is not a citizen at the time he ran for office or if he lost his
citizenship after his election to office, he is disqualified to serve as such. Neither does
the fact that respondent obtained the plurality of votes for the mayoralty post cure the OUR RULING
latter’s failure to comply with the qualification requirements regarding his citizenship.
Intervention of a rival candidate in a
Since a disqualified candidate is no candidate at all in the eyes of the law, his having disqualification case is proper when
received the highest number of votes does not validate his election. It has been held there has not yet been any
that where a petition for disqualification was filed before election against a candidate proclamation of the winner.
but was adversely resolved against him after election, his having obtained the highest
number of votes did not make his election valid. His ouster from office does not

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Petitioner Casan Macode Maquiling intervened at the stage when respondent Arnado
filed a Motion for Reconsideration of the First Division Resolution before the
COMELEC En Banc. As the candidate who garnered the second highest number of
votes, Maquiling contends that he has an interest in the disqualification case filed
against Arnado, considering that in the event the latter is disqualified, the votes cast
for him should be considered stray and the second-placer should be proclaimed as
the winner in the elections.
It must be emphasized that while the original petition before the COMELEC is one for
cancellation of the certificate of candidacy and / or disqualification, the COMELEC
First Division and the COMELEC En Banc correctly treated the petition as one for
disqualification.
The effect of a disqualification case is enunciated in Section 6 of R.A. No. 6646:
Sec. 6. Effect of Disqualification Case. - Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him shall
not be counted. If for any reason a candidate is not declared by final judgment before
an election to be disqualified and he is voted for and receives the winning number of
votes in such election, the Court or Commission shall continue with the trial and
hearing of the action, inquiry, or protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is strong.
Mercado v. Manzano28
clarified the right of intervention in a disqualification case. In that case, the Court said:
That petitioner had a right to intervene at that stage of the proceedings for the
disqualification against private respondent is clear from Section 6 of R.A. No. 6646,
otherwise known as the Electoral Reforms Law of 1987, which provides: Any
candidate who has been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such election, the Court
or Commission shall continue with the trial and hearing of the action, inquiry, or
protest and, upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such candidate
whenever the evidence of guilt is strong. Under this provision, intervention may be
allowed in proceedings for disqualification even after election if there has yet been no
final judgment rendered.29
Clearly then, Maquiling has the right to intervene in the case. The fact that the
COMELEC En Banc has already ruled that Maquiling has not shown that the
requisites for the exemption to the second-placer rule set forth in Sinsuat v.
COMELEC30 are present and therefore would not be prejudiced by the outcome of the
case, does not deprive Maquiling of the right to elevate the matter before this Court.
Arnado’s claim that the main case has attained finality as the original petitioner and
respondents therein have not appealed the decision of the COMELEC En Banc,
cannot be sustained. The elevation of the case by the intervenor prevents it from
attaining finality. It is only after this Court has ruled upon the issues raised in this
instant petition that the disqualification case originally filed by Balua against Arnado
will attain finality.
The use of foreign passport after renouncing one’s foreign citizenship is a
positive and voluntary act of representation as to one’s nationality and
citizenship; it does not divest Filipino citizenship regained by repatriation but it
recants the Oath of Renunciation required to qualify one to run for an elective
position.
Section 5(2) of The Citizenship Retention and Re-acquisition Act of 2003 provides:
Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full
civil and political rights and be subject to all attendant liabilities and responsibilities
under existing laws of the Philippines and the following conditions:
xxxx
(2)Those seeking elective public in the Philippines shall meet the qualification for
holding such public office as required by the Constitution and existing laws and, at the
time of the filing of the certificate of candidacy, make a personal and sworn
renunciation of any and all foreign before any public officer authorized to administer
an oath.
x x x31
Rommel Arnado took all the necessary steps to qualify to run for a public office. He
took the Oath of Allegiance and renounced his foreign citizenship. There is no
question that after performing these twin requirements required under Section 5(2) of
R.A. No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003, he
became eligible to run for public office.
Indeed, Arnado took the Oath of Allegiance not just only once but twice: first, on 10
July 2008 when he applied for repatriation before the Consulate General of the
Philippines in San Francisco, USA, and again on 03 April 2009 simultaneous with the
execution of his Affidavit of Renunciation. By taking the Oath of Allegiance to the
Republic, Arnado re-acquired his Philippine citizenship. At the time, however, he
likewise possessed American citizenship. Arnado had therefore become a dual
citizen.
After reacquiring his Philippine citizenship, Arnado renounced his American
citizenship by executing an Affidavit of Renunciation, thus completing the
requirements for eligibility to run for public office.
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By renouncing his foreign citizenship, he was deemed to be solely a Filipino citizen,
regardless of the effect of such renunciation under the laws of the foreign country.32
However, this legal presumption does not operate permanently and is open to attack
when, after renouncing the foreign citizenship, the citizen performs positive acts
showing his continued possession of a foreign citizenship.33
Arnado himself subjected the issue of his citizenship to attack when, after renouncing
his foreign citizenship, he continued to use his US passport to travel in and out of the
country before filing his certificate of candidacy on 30 November 2009. The pivotal
question to determine is whether he was solely and exclusively a Filipino citizen at the
time he filed his certificate of candidacy, thereby rendering him eligible to run for
public office.
Between 03 April 2009, the date he renounced his foreign citizenship, and 30
November 2009, the date he filed his COC, he used his US passport four times,
actions that run counter to the affidavit of renunciation he had earlier executed. By
using his foreign passport, Arnado positively and voluntarily represented himself as
an American, in effect declaring before immigration authorities of both countries that
he is an American citizen, with all attendant rights and privileges granted by the
United States of America.
The renunciation of foreign citizenship is not a hollow oath that can simply be
professed at any time, only to be violated the next day. It requires an absolute and
perpetual renunciation of the foreign citizenship and a full divestment of all civil and
political rights granted by the foreign country which granted the citizenship.
Mercado v. Manzano34 already hinted at this situation when the Court declared:
His declarations will be taken upon the faith that he will fulfill his undertaking made
under oath. Should he betray that trust, there are enough sanctions for declaring the
loss of his Philippine citizenship through expatriation in appropriate proceedings. In
Yu v. Defensor-Santiago, we sustained the denial of entry into the country of
petitioner on the ground that, after taking his oath as a naturalized citizen, he applied
for the renewal of his Portuguese passport and declared in commercial documents
executed abroad that he was a Portuguese national. A similar sanction can be taken
against anyone who, in electing Philippine citizenship, renounces his foreign
nationality, but subsequently does some act constituting renunciation of his Philippine
citizenship.
While the act of using a foreign passport is not one of the acts enumerated in
Commonwealth Act No. 63 constituting renunciation and loss of Philippine
citizenship,35 it is nevertheless an act which repudiates the very oath of renunciation
required for a former Filipino citizen who is also a citizen of another country to be
qualified to run for a local elective position.
When Arnado used his US passport on 14 April 2009, or just eleven days after he
renounced his American citizenship, he recanted his Oath of Renunciation 36 that he
"absolutely and perpetually renounce(s) all allegiance and fidelity to the UNITED
STATES OF AMERICA"37 and that he "divest(s) himself of full employment of all civil
and political rights and privileges of the United States of America."38
We agree with the COMELEC En Banc that such act of using a foreign passport does
not divest Arnado of his Filipino citizenship, which he acquired by repatriation.
However, by representing himself as an American citizen, Arnado voluntarily and
effectively reverted to his earlier status as a dual citizen. Such reversion was not
retroactive; it took place the instant Arnado represented himself as an American
citizen by using his US passport.
This act of using a foreign passport after renouncing one’s foreign citizenship is fatal
to Arnado’s bid for public office, as it effectively imposed on him a disqualification to
run for an elective local position.
Arnado’s category of dual citizenship is that by which foreign citizenship is acquired
through a positive act of applying for naturalization. This is distinct from those
considered dual citizens by virtue of birth, who are not required by law to take the
oath of renunciation as the mere filing of the certificate of candidacy already carries
with it an implied renunciation of foreign citizenship. 39 Dual citizens by naturalization,
on the other hand, are required to take not only the Oath of Allegiance to the Republic
of the Philippines but also to personally renounce foreign citizenship in order to
qualify as a candidate for public office.
By the time he filed his certificate of candidacy on 30 November 2009, Arnado was a
dual citizen enjoying the rights and privileges of Filipino and American citizenship. He
was qualified to vote, but by the express disqualification under Section 40(d) of the
Local Government Code,40 he was not qualified to run for a local elective position.
In effect, Arnado was solely and exclusively a Filipino citizen only for a period of
eleven days, or from 3 April 2009 until 14 April 2009, on which date he first used his
American passport after renouncing his American citizenship.
This Court has previously ruled that:
Qualifications for public office are continuing requirements and must be possessed
not only at the time of appointment or election or assumption of office but during the
officer's entire tenure. Once any of the required qualifications is lost, his title may be
seasonably challenged. x x x.41
The citizenship requirement for elective public office is a continuing one. It must be
possessed not just at the time of the renunciation of the foreign citizenship but
continuously. Any act which violates the oath of renunciation opens the citizenship
issue to attack.
We agree with the pronouncement of the COMELEC First Division that "Arnado’s act
of consistently using his US passport effectively negated his "Affidavit of
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 Laws on Suffrage
Renunciation."42 This does not mean, that he failed to comply with the twin
requirements under R.A. No. 9225, for he in fact did.
It was after complying with the requirements that he performed positive acts which
effectively disqualified him from running for an elective public office pursuant to
Section 40(d) of the Local Government Code of 1991.
The purpose of the Local Government Code in disqualifying dual citizens from
running for any elective public office would be thwarted if we were to allow a person
who has earlier renounced his foreign citizenship, but who subsequently represents
himself as a foreign citizen, to hold any public office.
Arnado justifies the continued use of his US passport with the explanation that he was
not notified of the issuance of his Philippine passport on 18 June 2009, as a result of
which he was only able to obtain his Philippine passport three (3) months later.43
The COMELEC En Banc differentiated Arnado from Willy Yu, the Portuguese national
who sought naturalization as a Filipino citizen and later applied for the renewal of his
Portuguese passport. That Arnado did not apply for a US passport after his
renunciation does not make his use of a US passport less of an act that violated the
Oath of Renunciation he took. It was still a positive act of representation as a US
citizen before the immigration officials of this country.
The COMELEC, in ruling favorably for Arnado, stated "Yet, as soon as he was in
possession of his Philippine passport, the respondent already used the same in his
subsequent travels abroad."44 We cannot agree with the COMELEC. Three months
from June is September. If indeed, Arnado used his Philippine passport as soon as
he was in possession of it, he would not have used his US passport on 24 November
2009.
Besides, Arnado’s subsequent use of his Philippine passport does not correct the fact
that after he renounced his foreign citizenship and prior to filing his certificate of
candidacy, he used his US passport. In the same way that the use of his foreign
passport does not undo his Oath of Renunciation, his subsequent use of his
Philippine passport does not undo his earlier use of his US passport.
Citizenship is not a matter of convenience. It is a badge of identity that comes with
attendant civil and political rights accorded by the state to its citizens. It likewise
demands the concomitant duty to maintain allegiance to one’s flag and country. While
those who acquire dual citizenship by choice are afforded the right of suffrage, those
who seek election or appointment to public office are required to renounce their
foreign citizenship to be deserving of the public trust. Holding public office demands
full and undivided allegiance to the Republic and to no other.
We therefore hold that Arnado, by using his US passport after renouncing his
American citizenship, has recanted the same Oath of Renunciation he took. Section
40(d) of the Local Government Code applies to his situation. He is disqualified not
only from holding the public office but even from becoming a candidate in the May
2010 elections.
We now resolve the next issue.
Resolving the third issue necessitates revisiting Topacio v. Paredes 45 which is the
jurisprudential spring of the principle that a second-placer cannot be proclaimed as
the winner in an election contest. This doctrine must be re-examined and its
soundness once again put to the test to address the ever-recurring issue that a
second-placer who loses to an ineligible candidate cannot be proclaimed as the
winner in the elections.
The Facts of the case are as follows:
On June 4, 1912, a general election was held in the town of Imus, Province of Cavite,
to fill the office of municipal president. The petitioner, Felipe Topacio, and the
respondent, Maximo Abad, were opposing candidates for that office. Topacio
received 430 votes, and Abad 281. Abad contested the election upon the sole ground
that Topacio was ineligible in that he was reelected the second time to the office of
the municipal president on June 4, 1912, without the four years required by Act No.
2045 having intervened.46
Abad thus questioned the eligibility of To p a c i o on the basis of a statutory
prohibition for seeking a second re-election absent the four year interruption.
The often-quoted phrase in Topacio v. Paredes is that "the wreath of victory cannot
be transferred from an ineligible candidate to any other candidate when the sole
question is the eligibility of the one receiving a plurality of the legally cast ballots."47
This phrase is not even the ratio decidendi; it is a mere obiter dictum. The Court was
comparing "the effect of a decision that a candidate is not entitled to the office
because of fraud or irregularities in the elections x x x with that produced by declaring
a person ineligible to hold such an office."
The complete sentence where the phrase is found is part of a comparison and
contrast between the two situations, thus:
Again, the effect of a decision that a candidate is not entitled to the office because of
fraud or irregularities in the elections is quite different from that produced by declaring
a person ineligible to hold such an office. In the former case the court, after an
examination of the ballots may find that some other person than the candidate
declared to have received a plurality by the board of canvassers actually received the
greater number of votes, in which case the court issues its mandamus to the board of
canvassers to correct the returns accordingly; or it may find that the manner of
holding the election and the returns are so tainted with fraud or illegality that it cannot
be determined who received a plurality of the legally cast ballots. In the latter case, no
question as to the correctness of the returns or the manner of casting and counting
the ballots is before the deciding power, and generally the only result can be that the
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 Laws on Suffrage
election fails entirely. In the former, we have a contest in the strict sense of the word,
because of the opposing parties are striving for supremacy. If it be found that the
successful candidate (according to the board of canvassers) obtained a plurality in an
illegal manner, and that another candidate was the real victor, the former must retire
in favor of the latter. In the other case, there is not, strictly speaking, a contest, as the
wreath of victory cannot be transferred from an ineligible candidate to any other
candidate when the sole question is the eligibility of the one receiving a plurality of the
legally cast ballots. In the one case the question is as to who received a plurality of
the legally cast ballots; in the other, the question is confined to the personal character
and circumstances of a single individual.48 (Emphasis supplied)
Note that the sentence where the phrase is found starts with "In the other case, there
is not, strictly speaking, a contest" in contrast to the earlier statement, "In the former,
we have a contest in the strict sense of the word, because of the opposing parties are
striving for supremacy."
The Court in Topacio v. Paredes cannot be said to have held that "the wreath of
victory cannot be transferred from an ineligible candidate to any other candidate when
the sole question is the eligibility of the one receiving a plurality of the legally cast
ballots."
A proper reading of the case reveals that the ruling therein is that since the Court of
First Instance is without jurisdiction to try a disqualification case based on the
eligibility of the person who obtained the highest number of votes in the election, its
jurisdiction being confined "to determine which of the contestants has been duly
elected" the judge exceeded his jurisdiction when he "declared that no one had been
legally elected president of the municipality of Imus at the general election held in that
town on 4 June 1912" where "the only question raised was whether or not Topacio
was eligible to be elected and to hold the office of municipal president."
The Court did not rule that Topacio was disqualified and that Abad as the second
placer cannot be proclaimed in his stead. The Court therein ruled:
For the foregoing reasons, we are of the opinion and so hold that the respondent
judge exceeded his jurisdiction in declaring in those proceedings that no one was
elected municipal president of the municipality of Imus at the last general election;
and that said order and all subsequent proceedings based thereon are null and void
and of no effect; and, although this decision is rendered on respondents' answer to
the order to show cause, unless respondents raised some new and additional issues,
let judgment be entered accordingly in 5 days, without costs. So ordered.49
On closer scrutiny, the phrase relied upon by a host of decisions does not even have
a legal basis to stand on. It was a mere pronouncement of the Court comparing one
process with another and explaining the effects thereof. As an independent
statement, it is even illogical.
Let us examine the statement:
"x x x the wreath of victory cannot be transferred from an ineligible candidate to any
other candidate when the sole question is the eligibility of the one receiving a plurality
of the legally cast ballots."
What prevents the transfer of the wreath of victory from the ineligible candidate to
another candidate?
When the issue being decided upon by the Court is the eligibility of the one receiving
a plurality of the legally cast ballots and ineligibility is thereafter established, what
stops the Court from adjudging another eligible candidate who received the next
highest number of votes as the winner and bestowing upon him that "wreath?"
An ineligible candidate who receives the highest number of votes is a wrongful
winner. By express legal mandate, he could not even have been a candidate in the
first place, but by virtue of the lack of material time or any other intervening
circumstances, his ineligibility might not have been passed upon prior to election
date. Consequently, he may have had the opportunity to hold himself out to the
electorate as a legitimate and duly qualified candidate. However, notwithstanding the
outcome of the elections, his ineligibility as a candidate remains unchanged.
Ineligibility does not only pertain to his qualifications as a candidate but necessarily
affects his right to hold public office. The number of ballots cast in his favor cannot
cure the defect of failure to qualify with the substantive legal requirements of eligibility
to run for public office.
The popular vote does not cure the
ineligibility of a candidate.
The ballot cannot override the constitutional and statutory requirements for
qualifications and disqualifications of candidates. When the law requires certain
qualifications to be possessed or that certain disqualifications be not possessed by
persons desiring to serve as elective public officials, those qualifications must be met
before one even becomes a candidate. When a person who is not qualified is voted
for and eventually garners the highest number of votes, even the will of the electorate
expressed through the ballot cannot cure the defect in the qualifications of the
candidate. To rule otherwise is to trample upon and rent asunder the very law that
sets forth the qualifications and disqualifications of candidates. We might as well write
off our election laws if the voice of the electorate is the sole determinant of who
should be proclaimed worthy to occupy elective positions in our republic.
This has been, in fact, already laid down by the Court in Frivaldo v.
COMELEC50 when we pronounced:
x x x. The fact that he was elected by the people of Sorsogon does not excuse this
patent violation of the salutary rule limiting public office and employment only to the
citizens of this country. The qualifications prescribed for elective office cannot be
erased by the electorate alone.
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 Laws on Suffrage
The will of the people as expressed through the ballot cannot cure the vice of
ineligibility, especially if they mistakenly believed, as in this case, that the candidate
was qualified. Obviously, this rule requires strict application when the deficiency is
lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he
must owe his total loyalty to this country only, abjuring and renouncing all fealty and
fidelity to any other state.51 (Emphasis supplied)
This issue has also been jurisprudentially clarified in Velasco v. COMELEC 52 where
the Court ruled that the ruling in Quizon and Saya-ang cannot be interpreted without
qualifications lest "Election victory x x x becomes a magic formula to bypass election
eligibility requirements."53
We have ruled in the past that a candidate’s victory in the election may be considered
a sufficient basis to rule in favor of the candidate sought to be disqualified if the main
issue involves defects in the candidate’s certificate of candidacy. We said that while
provisions relating to certificates of candidacy are mandatory in terms, it is an
established rule of interpretation as regards election laws, that mandatory provisions
requiring certain steps before elections will be construed as directory after the
elections, to give effect to the will of the people. We so ruled in Quizon v. COMELEC
and Saya-ang v. COMELEC:
The present case perhaps presents the proper time and opportunity to fine-tune our
above ruling. We say this with the realization that a blanket and unqualified reading
and application of this ruling can be fraught with dangerous significance for the rule of
law and the integrity of our elections. For one, such blanket/unqualified reading may
provide a way around the law that effectively negates election requirements aimed at
providing the electorate with the basic information to make an informed choice about
a candidate’s eligibility and fitness for office.
The first requirement that may fall when an unqualified reading is made is Section 39
of the LGC which specifies the basic qualifications of local government officials.
Equally susceptive of being rendered toothless is Section 74 of the OEC that sets out
what should be stated in a COC. Section 78 may likewise be emasculated as mere
delay in the resolution of the petition to cancel or deny due course to a COC can
render a Section 78 petition useless if a candidate with false COC data wins. To state
the obvious, candidates may risk falsifying their COC qualifications if they know that
an election victory will cure any defect that their COCs may have. Election victory
then becomes a magic formula to bypass election eligibility requirements. (Citations
omitted)
What will stop an otherwise disqualified individual from filing a seemingly valid COC,
concealing any disqualification, and employing every strategy to delay any
disqualification case filed against him so he can submit himself to the electorate and
win, if winning the election will guarantee a disregard of constitutional and statutory
provisions on qualifications and disqualifications of candidates?
It is imperative to safeguard the expression of the sovereign voice through the ballot
by ensuring that its exercise respects the rule of law. To allow the sovereign voice
spoken through the ballot to trump constitutional and statutory provisions on
qualifications and disqualifications of candidates is not democracy or republicanism. It
is electoral anarchy. When set rules are disregarded and only the electorate’s voice
spoken through the ballot is made to matter in the end, it precisely serves as an open
invitation for electoral anarchy to set in.1âwphi1
Maquiling is not a second-placer as
he obtained the highest number of
votes from among the qualified
candidates.
With Arnado’s disqualification, Maquiling then becomes the winner in the election as
he obtained the highest number of votes from among the qualified candidates.
We have ruled in the recent cases of Aratea v. COMELEC 54 and Jalosjos v.
COMELEC55 that a void COC cannot produce any legal effect.
Thus, the votes cast in favor of the ineligible candidate are not considered at all in
determining the winner of an election.
Even when the votes for the ineligible candidate are disregarded, the will of the
electorate is still respected, and even more so. The votes cast in favor of an ineligible
candidate do not constitute the sole and total expression of the sovereign voice. The
votes cast in favor of eligible and legitimate candidates form part of that voice and
must also be respected.
As in any contest, elections are governed by rules that determine the qualifications
and disqualifications of those who are allowed to participate as players. When there
are participants who turn out to be ineligible, their victory is voided and the laurel is
awarded to the next in rank who does not possess any of the disqualifications nor
lacks any of the qualifications set in the rules to be eligible as candidates.
There is no need to apply the rule cited in Labo v. COMELEC 56 that when the voters
are well aware within the realm of notoriety of a candidate’s disqualification and still
cast their votes in favor said candidate, then the eligible candidate obtaining the next
higher number of votes may be deemed elected. That rule is also a mere obiter that
further complicated the rules affecting qualified candidates who placed second to
ineligible ones.
The electorate’s awareness of the candidate’s disqualification is not a prerequisite for
the disqualification to attach to the candidate. The very existence of a disqualifying
circumstance makes the candidate ineligible. Knowledge by the electorate of a
candidate’s disqualification is not necessary before a qualified candidate who placed
second to a disqualified one can be proclaimed as the winner. The second-placer in
the vote count is actually the first-placer among the qualified candidates.
That the disqualified candidate has already been proclaimed and has assumed office
is of no moment. The subsequent disqualification based on a substantive ground that
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 Laws on Suffrage
existed prior to the filing of the certificate of candidacy voids not only the COC but Arnado being a non-candidate, the votes cast in his favor should not have been
also the proclamation. counted. This leaves Maquiling as the qualified candidate who obtained the highest
number of votes. Therefore, the rule on succession under the Local Government
Section 6 of R.A. No. 6646 provides: Code will not apply.

Section 6. Effect of Disqualification Case. - Any candidate who has been declared by WHEREFORE, premises considered, the Petition is GRANTED. The Resolution of
final judgment to be disqualified shall not be voted for, and the votes cast for him shall the COMELEC En Bane dated 2 February 2011 is hereby ANNULLED and SET
not be counted. If for any reason a candidate is not declared by final judgment before ASIDE. Respondent ROMMEL ARNADO y CAGOCO is disqualified from running for
an election to be disqualified and he is voted for and receives the winning number of any local elective position. CASAN MACODE MAQUILING is hereby DECLARED the
votes in such election, the Court or Commission shall continue with the trial and duly elected Mayor of Kauswagan, Lanao del Norte in the 10 May 2010 elections.
hearing of the action, inquiry, or protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order the suspension of the This Decision is immediately executory.
proclamation of such candidate whenever the evidence of his guilt is strong.
Let a copy of this Decision be served personally upon the parties and the
There was no chance for Arnado’s proclamation to be suspended under this rule Commission on Elections.
because Arnado failed to file his answer to the petition seeking his disqualification.
Arnado only filed his Answer on 15 June 2010, long after the elections and after he No pronouncement as to costs.
was already proclaimed as the winner.
SO ORDERED.
The disqualifying circumstance surrounding Arnado’s candidacy involves his
citizenship. It does not involve the commission of election offenses as provided for in
the first sentence of Section 68 of the Omnibus Election Code, the effect of which is to
disqualify the individual from continuing as a candidate, or if he has already been
elected, from holding the office.

The disqualifying circumstance affecting Arnado is his citizenship. As earlier

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

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

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

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

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 Laws on Suffrage

EN BANC
On October 5, 2010, the Comelec First Division issued a Resolution holding that
G.R. No. 210164, August 18, 2015 Arnado's continued use of his US passport effectively negated his April 3, 2009
Affidavit of Renunciation. Thus, he was disqualified to run for public office for failure to
comply with the requirements of RA 9225. The Comelec First Division accordingly
ROMMEL C. ARNADO, Petitioner, v. COMMISSION ON ELECTIONS AND nullified his proclamation and held that the rule on succession should be followed.
FLORANTE CAPITAN, Respondents.
Arnado moved for reconsideration. In the meantime, Casan Macode Maquiling
DECISION (Maquiling), another mayoralty candidate who garnered the second highest number of
votes, intervened in the case. He argued that the Comelec First Division erred in
DEL CASTILLO, J.: applying the rule on succession.

On February 2, 2011, the Comelec En Banc rendered a Resolution reversing the

Only natural-born Filipinos who owe total and undivided allegiance to the Republic of ruling of the Comelec First Division. It held that Arnado's use of his US passport did
the Philippines could run for and hold elective public office. not operate to revert his status to dual citizenship. The Comelec En Banc found merit
in Arnado's explanation that he continued to use his US passport because he did not
Before this Court is a Petition for Certiorari1 filed under Rule 64 in relation to Rule 65 yet know that he had been issued a Philippine passport at the time of the relevant
of the Rules of Court assailing the Per Curiam Resolution2 dated December 9, 2013 foreign trips. The Comelec En Banc further noted that, after receiving his Philippine
of respondent Commission on Elections (Comelec) En Banc in SPA No. 13-309 (DC), passport, Arnado used the same for his subsequent trips.
which affirmed the Resolution3 dated September 6, 2013 of the Comelec Second
Division. The Comelec, relying on our ruling in Maquiling v. Commission on Maquiling then sought recourse to this Court by filing a petition docketed as G.R No.
Elections,4 disqualified petitioner Rommel C. Arnado (Arnado) from running in the 195649.
May 13, 2013 elections, set aside his proclamation as elected mayor of Kauswagan,
Lanao del Norte, and declared respondent Florante T. Capitan (Capitan) as the duly While G.R No. 195649 was pending, the period for the filing of CoCs for local elective
elected mayor of said municipality. officials for the May 13, 2013 elections officially began. On October 1, 2012, Arnado
filed his CoC6 for the same position. Respondent Capitan also filed his CoC for the
Factual Antecedents mayoralty post of Kauswagan.

Petitioner Arnado is a natural-born Filipino citizen who lost his Philippine citizenship
after he was naturalized as citizen of the United States of America (USA).
Subsequently, and in preparation for his plans to run for public office in the
Philippines, Arnado applied for repatriation under Republic Act No. 92255 (RA 9225)
before the Consul General of the Philippines in San Franciso, USA. He took an Oath
of Allegiance to the Republic of the Philippines on July 10, 2008 and, on even date,
an Order of Approval of Citizenship Retention and Re acquisition was issued in his
favor. On April 3, 2009, Arnado executed an Affidavit of Renunciation of his foreign
citizenship.
On November 30, 2009, Arnado filed his Certificate of Candidacy (CoC) for the
mayoralty post of Kauswagan, Lanao del Norte for the May 10, 2010 national and
local elections.
Linog C. Balua (Balua), another mayoralty candidate, however, filed a petition to
disqualify Arnado and/or to cancel his CoC on the ground, among others, that Arnado
remained a US citizen because he continued to use his US passport for entry to and
exit from the Philippines after executing aforesaid Affidavit of Renunciation.
While Balua's petition remained pending, the May 10, 2010 elections proceeded
where Arnado garnered the highest number of votes for the mayoralty post of
Kauswagan. He was proclaimed the winning candidate.
On April 16, 2013, this Court rendered its Decision in Maquiling. Voting 10-5, it
annulled and set aside the Comelec En Banc's February 2, 2011 Resolution,
disqualified Arnado from running for elective position, and declared Maquiling as the
duly elected mayor of Kauswagan, Lanao Del Norte in the May 10, 2010 elections. In
so ruling, the majority of the Members of the Court opined that in his subsequent use
of his US passport, Arnado effectively disavowed or recalled his April 3, 2009 Affidavit
of Renunciation. Thus:ChanRoblesvirtualLawlibrary
We agree with the pronouncement of the COMELEC First Division that "Arnado's act
of consistently using his US passport effectively negated his "Affidavit of
Renunciation." Tills does not mean that he failed to comply with the twin requirements
under R.A. No. 9225, for he in fact did. It was after complying with the requirements
that he perfonned positive acts which effectively disqualified him from running for an
elective public office pursuant to Section 40(d) of the Local Government Code of
1991. 
The purpose of the Local Government Code in disqualifying dual citizens from
running for any elective public office would be thwarted if we were to allow a person
who has earlier renounced his foreign citizenship, but who subsequently represents
himself as a foreign citizen, to hold any public office.
x x x x

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 Laws on Suffrage
WHEREFORE, premises considered, the instant Petition is granted. Respondent
We therefore hold that Arnado, by using his US passport after renouncing his Rommel Cagoco Arnado is disqualified from running in the 13 May 2013 National and
American citizenship, has recanted the same Oath of Renunciation he took. Section Local Elections.
40(d) of the Local Government Code applies to his situation. He is disqualified not
only from holding the public office but even from becoming a candidate in the May SO ORDERED.11
2010 elections.7
Ruling of the Comelec En Banc
The issuance of this Court's April 16, 2013 Decision sets the stage for the present
Aggrieved, Arnado filed a Verified Motion for Reconsideration. 12 He argued that the
controversy.
Comelec Second Division erred in applying Maquiling claiming that the said case is
not on all fours with the present controversy; that Capitan's Petition was filed beyond
On May 9, 2013 or shortly after the Court issued its Decision in Maquiling, Arnado
the 25-day reglementary period reckoned from the filing of the CoC sought to be
executed an Affidavit Affirming Rommel C. Arnado's "Affidavit of Renunciation Dated
cancelled; and, that the Comelec must uphold the sovereign will of the people of
April3, 2009."8cralawrednad
Kauswagan who expressed, thru the ballots, their overwhelming support for him as
their mayor. Arnado prayed that the Comelec Second Division's September 6, 2013
The following day or on May 10, 2013, Capitan, Arnado's lone rival for the mayoralty
Resolution be reversed and that he be declared as eligible to run for mayor
post, filed a Petition9 seeking to disqualify him from running for municipal mayor of
ofKauswagan.
Kauswagan and/or to cancel his CoC based on the ruling of this Court in Maquiling.
The case was docketed as SPA No. 13-309 (DC) and was raffled to the Comelec's
On December 9, 2013, the Comelec En Banc affirmed the ruling of the Comelec
Second Division. The resolution of said petition was, however, overtaken by the May
Second Division. It accordingly annulled the proclamation of Arnado and declared
13, 2013 elections where Arnado garnered 8,902 votes (84% of the total votes cast)
Capitan as the duly elected mayor of Kauswagan. The dispositive portion of the
while Capitan obtained 1,707 (16% of the total votes cast) votes only.
Comelec En Banc's Resolution reads:ChanRoblesvirtualLawlibrary
On May 14, 2013, Arnado was proclaimed as the winning candidate.
WHEREFORE, premises considered, the instant motion for reconsideration is hereby
Unfazed, Capitan filed another Petition10 this time seeking to nullify Arnado's DISMISSED. The Proclamation of Private Respondent Rommel C. Arnado as the duly
proclamation. He argued that with the April 16, 2013 Decision of this Court elected mayor of Kauswagan, Lanao del Norte is hereby ANNULLED and SET
in Maquiling, there is no doubt that Arnado is disqualified from running for any local ASIDE. FLORANTE T. CAPITAN is hereby DECLARED the duly elected Mayor of
elective office. Hence, Arnado's proclamation is void and without any legal effect. Kauswagan, Lanao del Norte inthe May 13, 2013 Elections.

Ruling of the Comelec Second Division SO ORDERED.13

On September 6, 2013, the Comelec Second Division promulgated a Resolution
granting the petition in SPA No. 13-309 (DC) and disqualify Arnado from running in
the May 13, 2013 elections. Following Maquiling, it ratiocinated that at the time he
filed his CoC on October 1, 2012, Arnado still failed to comply with the requirement of
RA 9225 of making a personal and sworn renunciation of any and all foreign
citizenship. While he executed the April 3, 2009 Affidavit of Renunciation, the same
was deemed withdrawn or recalled when he subsequently traveled abroad using his
US passport, as held in Maquiling.
The Comelec Second Division also noted that Arnado failed to execute another
Affidavit of Renunciation for purposes of the May 13, 2013 elections. While a May 9,
2013 Affidavit Affirming Rommel C. Arnado's "Affidavit of Renunciation dated April 3,
2009" was submitted in evidence, the same would not suffice because it should have
been executed on or before the filing of the CoC on October 1, 2012.
The dispositive portion of the Comelec Second Division's Resolution
reads:ChanRoblesvirtualLawlibrary
Hence, on December 16, 2013 Arnado filed the instant Petition with ancillary prayer
for injunctive relief to maintain the status quo ante. On December
26, 2013, Arnado filed an Urgent Motion for Issuance of Status Quo Ante Order or
Temporary Restraining Order14 in view of the issuance by the Comelec En Banc of a
Writ of Execution to implement its December 9, 2013 Resolution.
On January 14, 2014, this Court issued a Resolution15 requiring the respondents to
file their respective comments on the petition. In the same Resolution, this Court
granted Arnado's ancillary relief for temporary restraining order.
Capitan thus filed an Urgent Motion to Lift and/or Dissolve Temporary Restraining
Order dated January 14, 2014,16 contending that the acts sought to be restrained by
Arnado are already  fait accompli. He alleged that the Comelec En Banc had already
issued a Writ of Execution17 and pursuant thereto a Special Municipal Board of
Canvassers was convened. It proclaimed him to be the duly elected mayor of
Kauswagan and on January 2, 2014 he took his oath of office. Since then, he has
assumed and performed the duties and functions of his office.

In a Resolution18 dated February 25, 2014, this Court ordered the issuance of a

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 Laws on Suffrage
Status Quo Ante Order directing the parties to allow Arnado to continue performing Commissioner Elias R. Yusoph (Commissioner Yusoph) to participate in the review of
his functions as mayor of Kauswagan pending resolution of this case. the Decision he penned for the Second Division. Furthermore, the Comelec En
Banc committed grave abuse of discretion when it disqualified him from running in the
Issues May 13, 2013 elections, thereby disenfranchising 84% of the voters of Kauswagan
who all voted for him.
In support of his Petition, Arnado raises the following
issues:ChanRoblesvirtualLawlibrary Finally, Arnado avers that further inquiry and examination of the notarial register of his
former counsel, Atty. Thomas Dean M. Quijano, revealed that he executed an
I Affidavit of Renunciation with Oath of Allegiance20 on November 30, 2009. Hence, at
the time he filed his CoC on October 1, 2012, he is a citizen of the Philippines who
WHETHER x x x THE COMELEC EN BANC AND 2 ND DIVISION VIOLATED does not owe allegiance to any other country and, therefore, is qualified to run for
PROCEDURAL DUE PROCESS AND COMMITTED GRAVE ABUSE OF mayor of Kauswagan in the May 13, 2013 elections.
DISCRETION IN FAILING TO DISMISS THE PETITIONS OF RESPONDENT
CAPITAN ON THE GROUND OF FORUM-SHOPPING AND/OR LATE FILING, ETC. Our Ruling

II The Petition is devoid of merit.

WHETHER x x x THE COMELEC EN BANC VIOLATED DUE PROCESS AND Petition for certiorari is limited to the 
COMMITTED GRAVE ABUSE OF DISCRETION BY ALLOWING COM. ELIAS determination of whether the respondent
YUSOPH TO REVIEW THE DECISION HE WROTE FOR THE 2 ND DIVISION. tribunal acted with grave abuse of discretion
amounting to lack or excess of jurisdiction.
III
In a petition for certiorari under Rule 64 in relation to Rule 65 of the Rules of Court,
the primordial issue to be resolved is whether the respondent tribunal committed
WHETHER x x x THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION
grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the
IN DISENFRANCHISING 84% OF THE VOTERS OF KAUSWAGAN IN THE MAY
assailed resolution. And as a matter of policy, this Court will not interfere with the
2013 ELECTIONS.
resolutions of the Comelec unless it is shown that it had committed grave abuse of
discretion.21 Thus, in the absence of grave abuse of discretion, a Rule 64 petition will
IV not prosper. Jurisprudence, on the other hand, defines grave abuse of discretion as
the "capricious and whimsical exercise of judgment as is equivalent to lack of
WHETHER x x x THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION jurisdiction."22 "Mere abuse of discretion is not enough; it must be grave." 23  Grave
IN DISQUALIFYING PETITIONER WHO HAS FULLY COMPLIED WITH THE abuse of discretion has likewise been defined as an act done contrary to the
REQUIREMENTS OF RA 9225 BEFORE THE FILING OF HIS COC ON OCTOBER Constitution, the law or jurisprudence.24cralawrednad
1, 2012.19
In this case, and as will be discussed below, there is no showing that the Comelec En
Arnado claims that the Comelec committed grave abuse of discretion and violated his Banc acted capriciously or whimsically in issuing its December 9, 2013 Resolution.
right to procedural due process in not dismissing Capitan's Petition in SPA No. 13- Neither did it act contrary to law or jurisprudence.
309 (DC). He avers that Capitan is guilty of forum-shopping because the latter
subsequently filed a similar case docketed as SPC No. 13-019. In addition, SPA No. Arnado's allegations that Capitan
13-309 (DC) was filed beyond the 25-day prescriptive period reckoned from the time violated the rule against forumshopping 
of the filing of his CoC on October 1, 2012. and that the latter's petition in
SPA No.13-309(DC) was filed late,
Arnado likewise claims that the proceeding before the Comelec is peppered with unsubstantiated and erroneous.
procedural infirmities. He asserts that the Comelec violated its own rules in deciding
SPA No. 13-309 (DC) without first resolving Capitan's motion to consolidate; that SPA There is forum-shopping when two or more actions or proceedings, founded on the
No. 13-309 (DC) was not set for trial and no hearing for the reception of evidence was same cause, are instituted by a party on the supposition that one or the other court
ever conducted; and, that the Comelec did not follow its own rules requiring the would make a favorable disposition.25cralawred It exists when the elements of litis
issuance of a notice of promulgation of resolutions. pendentia are present or where a final judgment in one case will amount to res
judicata in the other.26 Thus, there is forum-shopping when in both actions there exist:
Arnado further claims that the Comelec En Banc not only committed grave abuse of (1) identity of parties, or at least such parties as would represent the same interests in
discretion but also violated his constitutional right to due process when it allowed both actions; (2) identity of rights asserted and relief prayed for, the relief being

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 Laws on Suffrage
founded on the same facts; and (3) the identity of the two preceding particulars is
such that any judgment rendered in the other action will, regardless of which party is
successful, amount to res judicata in the action under consideration.27cralawrednad
Here, Arnado failed to substantiate his claim of forum-shopping. He merely made a
general averment that in resolving the petitions of Capitan in SPA No. 13-309 (OC)
and SPC No. 13-019, the Comelec En Banc, as well as its Second Division, failed to
comply with this Court's Revised Circular No. 28-91,28without demonstrating how
forum-shopping was supposed to be present. He has not shown that the petitions in
SPA No. 13-309 (DC) and SPC No. 13-019 involved the same parties, issues, and
reliefs. In fact, Arnado did not even bother to submit to this Court a copy of the
Petition in SPC No. 13-019 (annulment of proclamation case). As the party insisting
that Capitan committed forum-shopping, Arnado bears the burden of establishing the
same. After all, it is settled that he who alleges has the burden of proving it; mere
allegation is not sufficient.29cralawrednad
substantiation. In the first place, Arnado has not attached a copy of said motion to his
petition. This alone is sufficient ground for the dismissal of his Rule 64 Petition, filed in
relation to Rule 65 of the Rules of Court, for not being accompanied by pleadings and
documents relevant and pertinent thereto.35 Also, it was Capitan who filed the motion
for consolidation. Not being the movant, Arnado is not in a position to question the
alleged inaction of the Comelec on said motion. And even assuming that he has, by
filing a Verified Motion for Reconsideration with the Comelec En Banc and
subsequently appealing to this Court despite the still unresolved motion for
consolidation, Arnado effectively abandoned said motion for consolidation. In Cayago
v. Hon. Lina,36it was held that once a party elevates the case before the appellate
tribunal, the appellant is deemed to have abandoned the unresolved motion which
remains pending with the tribunal of origin. "[I]t is not right for a party who has
affirmed and invoked the jurisdiction of a court in a particular matter to secure an
affirmative relief, to afterwards make a volte face and deny that same
jurisdiction."37cralawrednad

Besides, and as correctly observed by the Solicitor General, the parties in SPA No.
13-309 (DC) and SPC No. 13-019 are not the same. In the first case, the parties are
only Capitan and Arnado. In the second case, the Municipal Board of Canvassers of
Kauswagan, Lanao del Norte is impleaded as respondent. There is also dissimilitude
in the reliefs sought. The former case sought to disqualify Arnado and/or to cancel his
CoC while the latter case prayed for the annulment of Arnado's proclamation as
mayor of Kauswagan.
With regard to the alleged tardiness in the filing of Capitan's Petition in SPA No. 13-
309 (DC), it appears that Arnado either failed to grasp the import of Capitan's
allegations therein or he made a deliberate partial misrepresentation in stating that
the same is one for cancellation of CoC. A copy30 thereof annexed to Arnado's herein
petition states that it is a petition "to disqualify and/or cancel the certificate of
candidacy" of Arnado. The allegations therein state in no uncertain terms that it is one
for disqualification based on Arnado's failure to comply with the requisites of RA 9225
and on the ruling of this Court in Maquiling. Thus, the Comelec Second Division
appropriately treated it as a petition for disqualification with the alternative prayer to
cancel Arnado's CoC. It is elementary that the nature of the action is determined by
the allegations in the petition.31cralawrednad
Under Section 3, Rule 25 of the Comelec Rules of Procedure, 32 a petition for
disqualification should be filed "any day after the last day for filing of certificates of
candidacy but not later than the date of proclamation." Here, Arnado was proclaimed
as the winning candidate on May 14, 2013. 33 Thus, the petition in SPA No. 13-309
(DC) was seasonably filed on May 10, 2013. 34cralawrednad
In any case, under Section 9, Rule 3 of the Comelec Rules of Procedure,
consolidation is only permissive. It is not mandatory. Section 9
reads:ChanRoblesvirtualLawlibrary
Sec. 9. Consolidation of Cases.- When an action or proceeding involves a question of
law and fact which is similar to or common with that of another action or proceeding,
the same may be consolidated with the action or proceeding bearing the lower docket
number.
In Muñoz v. Comelec,38 this Court accentuated "that the term 'may' is indicative of a
mere possibility, an opportunity or an option. The grantee of that opportunity is vested
with a right or faculty which he has the option to exercise. If he chooses to exercise
the right, he must comply with the conditions attached thereto, which in this case
require that the cases to be consolidated must involve similar questions of law and
fact."39 In this case, the consolidation of SPA No. 13-309 (DC) and SPC No. 13-019
does not appear to be necessary. As earlier mentioned, said cases do not even
involve the same parties and reliefs sought. Hence, no grave abuse of discretion can
be attributed to the Comelec in not consolidating them.
Arnado's protestation that the Comelec violated its own rules when it decided SPA
No. 13-309 (DC) without setting it for trial likewise deserves scant consideration.  The
proceedings in a special action for disqualification of candidates under Rule 25 of the
Comelec Rules of Procedure are summary in nature where a trial type proceeding
may be dispensed with.40  In Diangka v. Comelec,41 this Court held
that:ChanRoblesvirtualLawlibrary

The other procedural lapses allegedly Again, our ingrained jurisprudence is that technical rules of evidence should not be
committed by the Comelec are likewise  rigorously applied in administrative proceedings specially where the law calls for the
unsubstantiated. Assuming the allegations of  proceeding to be summary in character. Pursuant to Section 4, Rule 25 of the 1993
Arnado to be true, the Comelec did not commit COMELEC Rules of Procedure, petitions for disqualifications are subject to summary
grave abuse of discretion amounting to lack or hearings. In relation thereto, Section 3, Rule 17 of the said Rules provides that it
excess of jurisdiction. remains in the sound discretion of the COMELEC whether clarification questions are
to be asked the witnesses-affiants, and whether the adverse party is to be granted
Arnado's claim that the Comelec gravely abused its discretion in deciding SPA No. opportunity to cross-examine said witnesses affiants. Furthermore, when the
13-309 (DC) without first resolving Capitan's motion to consolidate likewise lacks COMELEC en banc reviews and evaluates a party's petition, or as in the case at bar,

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 Laws on Suffrage
a party's answer and the supporting papers attached thereto, the same is tantamount renunciation of any and all foreign citizenship before any public officer authorized to
to a fair "hearing" of his case.42 administer an oath;

Arnado's claim that the Comelec En Banc In the case at bench, the Comelec Second Division, as affirmed by the Comelec En
committed grave abuse of discretion and violated  Banc, ruled that Arnado failed to comply with the second requisite of Section 5 (2) of
his right to due process in allowing Commissioner RA 9225 because, as held in Maquiling v. Commission on Elections,47 his April 3,
Yusoph to participate in the deliberation of the assailed 2009 Affidavit of Renunciation was deemed withdrawn when he used his US passport
Comelec En Banc Resolution is likewise bereft of after executing said affidavit. Consequently, at the time he filed his CoC on October 1,
substantiation. 2012 for purposes of the May 13, 2013 elections, Arnado had yet to comply with said
second requirement. The Comelec also noted that while Arnado submitted an affidavit
Arnado's claim that Commissioner Yusoph penned both the September 6, 2013 dated May 9, 2013, affirming his April 3, 2009 Affidavit of Renunciation, the same
Resolution of the Comelec Second Division and the December 9, 2013 Resolution of would not suffice for having been belatedly executed.
the Comelec  En Banc is not correct. While Commissioner Yusoph, together with
Commissioners Maria Gracia Cielo M. Padaca and Luie Tito F. Guia, signed said The Comelec En Banc did not err, nor did it commit grave abuse of discretion, in
Resolution, there is nothing therein which would indicate that Commissioner Yusoph upholding the Resolution of the Comelec Second Division disqualifying Arnado from
was the writer or the ponente of said Resolution. The September 6, 2013 Resolution running for public office. It is worth noting that the reason for Arnado's disqualification
of the Comelec Second Division does not state who the ponente is. The same goes to run for public office during the 2010 elections — being a candidate without total
true with the questioned December 9, 2013 Per Curiam Resolution43 of the and undivided allegiance to the Republic of the Philippines - still subsisted when he
Comelec En Banc. As a per curiam resolution, it was arrived at by the Comelec En filed his CoC for the 2013 elections on October 1, 2012. The Comelec En
Banc as a whole and without any particular ponente. Hence, we need not belabor Banc merely adhered to the ruling of this Court in Maquiling lest it would be
Arnado's claim of denial of due process as his basis therefor lacks factual moorings. committing grave abuse of discretion had it departed therefrom.

Arnado has not yet satisfied the twin  Moreover, it cannot be validly argued that Arnado should be given the opportunity to
requirements of Section 5(2) of RA 9225 at correct the deficiency in his qualification because at the time this Court promulgated
the time he filed his CoC for the May 13, 2013 its Decision in Maquiling on April 16, 2013, the period for filing the CoC for local
elections; subsequent compliance does not suffice. elective office had already lapsed. Or, as Justice Arturo D. Brion puts it in his
Dissenting Opinion, "[t]o the extent that Arnado was denied the chance to submit a
Under Section 4(d) of the Local Government Code, a person with "dual citizenship" is replacement oath of renunciation in 2013, then there was an unfair and abusive
disqualified from running for any elective local position.  In Mercado v. anzano,44 it denial of opportunity equivalent to grave abuse of discretion." Besides, shortly after
was clarified that the phrase "dual citizenship" in said Section 4(d) must be learning of the Court's April 16, 2013 ruling in Maquiling or on May 9, 2013, Arnado
understood as referring to "dual allegiance.''45 Subsequent, Congress enacted RA substantially complied therewith by executing an affidavit affirming his April3, 2009
9225 allowing natural-born citizens of the Philippines who have lost their Philippine Affidavit of Renunciation.
citizenship by reason of their naturalization abroad to reacquire Philippine citizenship
and to enjoy full civil and political rights upon compliance with the requirements of the The ruling in Maquiling is indeed novel in the sense that it was the first case dealing
law. They may now run for public office in the Philippines provided that they: (1) meet with the effect of the use of a foreign passport on the qualification to run for public
the qualifications for holding such public office as required by the Constitution and office of a natural-born Filipino citizen who was naturalized abroad and subsequently
existing laws; and, (2) make a personal and sworn renunciation of any and all foreign availed of the privileges under RA 9225. It was settled in that case that the use of a
citizenships before any public officer authorized to administer an oath46 prior to or at foreign passport amounts to repudiation or recantation of the oath of renunciation.
the time of filing of their CoC. Thus:ChanRoblesvirtualLawlibrary Yet, despite the issue being novel and of first impression, plus the fact that Arnado
could not have divined the possible adverse consequences of using his US passport,
Section 5. Civil and Political Rights and Liabilities- Those who retain or re-acquire the Court in Maquiling did not act with leniency or benevolence towards Arnado.
Philippine citizenship under this Act shall enjoy full civil and political rights and be Voting 10-5, the Court ruled that matters dealing with qualifications for public elective
subject to all attendant liabilities and responsibilities under existing laws of the office must be strictly complied with. Otherwise stated, the Court in Maquiling did not
Philippines and the following conditions:ChanRoblesvirtualLawlibrary consider the novelty of the issue as to excuse Arnado from strictly complying with the
eligibility requirements to run for public office or to simply allow him to correct the
x x x x deficiency in his qualification by submitting another oath of renunciation. Thus, it is
with more reason that in this case, we should similarly require strict compliance with
(2) Those seeking elective public office in the Philippines shall meet the qualification the qualifications to run for local elective office.
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 The circumstances surrounding the qualification of Arnado to run for public office
during the May 10, 2010 and May 13, 2013 elections, to reiterate for emphasis, are

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 Laws on Suffrage
the same. Arnado's use of his US passport in 2009 invalidated his oath of
renunciation resulting in his disqualification to run for mayor of Kauswagan in the
2010 elections. Since then and up to the time he filed his CoC for the 2013 elections,
Arnado had not cured the defect in his qualification. Maquiling, therefore, is binding
on and applicable to this case following the salutary doctrine of stare decisis et non
quieta movere, which means to adhere to precedents, and not to unsettle things
which are established.48 Under the doctrine, "[w]hen the court has once laid down a
principle of law as applicable to a certain state of facts, it will adhere to that principle
and apply it to all future cases where facts are substantially the same." 49 It enjoins
adherence to judicial precedents and bars relitigation of the same
issue.50cralawrednad
It may not be amiss to add that as early as 2010, the year when Balua filed a petition
to disqualify him, Arnado has gotten wind that the use of his US passport might pose
a problem to his candidacy. In other words, when Arnado filed his CoC on October 1,
2012, he was not totally unaware that the use of his US passport after he had
executed the Affidavit of Renunciation might have an impact on his qualification and
candidacy. In fact, at that time, Maquiling had already reached this Court. But despite
the petitions filed against him questioning his qualification to run for public office in
2010, Arnado filed his CoC on October 1, 2012 unmindful of any possible legal
setbacks in his candidacy for the 2013 elections and without executing another
Affidavit of Renunciation. In short, the argument that Arnado should be given the
opportunity to correct the deficiency in his CoC since Maquiling was promulgated after
the lapse of the period for filing a CoC for the 2013 elections, is totally bereft of merit.
Consistent with our April 16, 2013 ruling in Maquiling, Arnado should be made to face
the consequences of his inaction since he could have remedied it at the time he filed
his CoC on October 1, 2012 or even before that. There is no law prohibiting him from
executing an Affidavit of Renunciation every election period if only to avert possible
questions about his qualifications.
The alleged November 30, 2009
Affidavit of Renunciation with Oath of
Allegiance cannot be given any
probative weight.
As to the alleged recently discovered November 30, 2009 Affidavit of Renunciation
with Oath of Allegiance, the same is highly suspect. As correctly pointed out by the
Solicitor General, the original or certified true copy thereof was not presented. In
addition, such crucial evidence sufficient to alter the outcome of the case was never
presented before the Comelec much less in the Maquiling case.  Curiously, it only
surfaced for the first time in this petition. In Jacot v. Dal,51 this Court disallowed the
belated presentation of similar evidence on due process considerations.
Thus:ChanRoblesvirtualLawlibrary
As a rule, no question will be entertained on appeal unless it has been raised in the
proceedings below. Points of law, theories, issues and arguments not brought to the
attention of the lower court, administrative agency or quasi- judicial body need not be
considered by a reviewing court, as they cannot be raised for the first time at that late
stage. Basic considerations of fairness and due process impel this rule. Courts have
neither the time nor the resources to accommodate parties who chose to go to trial
haphazardly.
Likewise, this Court does not countenance the late submission of evidence. Petitioner
should have offered the Affidavit dated 7 February 2007 during the proceedings
before the COMELEC.
Section 1 of Rule 43 of the COMELEC Rules of Procedure provides that "In the
absence of any applicable provisions of these Rules, the pertinent provisions of the
Rules of Court in the Philippines shall be applicable by analogy or in suppletory
character and effect." Section 34 of Rule 132 of the Revised Rules of Court
categorically enjoins the admission of evidence not formally
presented:cralawlawlibrary
SEC. 34. Offer of evidence.- The court shall consider no evidence which has not been
formally offered. The purpose for which the evidence is offered must be specified.
Since the said Affidavit was not formally offered before the COMELEC, respondent
had no opportunity to examine and controvert it. To admit this document would be
contrary to due process. Additionally, the piecemeal presentation of evidence is not in
accord with orderly justice.52
Moreover, in Maquiling it was mentioned that Arnado used his US passport on
January 12, 2010 and March 23, 2010. Thus:ChanRoblesvirtualLawlibrary
Balua likewise presented a certification from the Bureau of Immigration dated 23 April
201 0, certifying that the name "Arnado, Rommel Cagoco" appears in the available
Computer Database/Passenger manifest/IBM listing on file as of 21 April 2010, with
the following pertinent travel records:ChanRoblesvirtualLawlibrary
DATE OF:01/12/2010
Arrival
NATIONALITY :USA-AMERICAN
PASSPORT :057782700
DATE OF:03/23/2010
Arrival
NATIONALITY :USA-AMERICAN
PASSPORT :05778270053
Despite the existence of such statement in  Maquiling, We are puzzled why Arnado
never bothered to correct or refute it. He neither alleged nor presented evidence in
this petition to prove that he did not travel abroad on those dates using his US
passport.
Justice Marvic M.V.F. Leonen, however, dissents and maintains the same position he
had taken in Maquiling that Arnado's use of his US passport in 2009 is an isolated act
justified by the circumstances at that time. At any rate, Arnado started to use his
Philippine passport in his travels abroad beginning December 11, 2009 and
thenceforth. This, according to J. Leonen, is borne out by Arnado's Philippine
passport.
With due respect to my esteemed colleague, it appears that J. Leonen is not only
reviving an issue that had already been settled with finality in the Maquiling case, but
he is also going beyond the issues raised in this petition. To reiterate for clarity,
Arnado's argument in this case-that he is qualified to run for mayor as he has satisfied
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 Laws on Suffrage
the requirements of Sec. 5(2) of RA 9225 relative to the May 13, 2013 elections- is
premised only on the alleged newly discovered November 30, 2009 Affidavit. Nothing
more. He does not claim in this case that his use of US passport in his travel abroad
in 2009 is an isolated act, as J. Leonen insists. In Vazquez v. De Borja,54 it was held
that courts do not have jurisdiction over issues neither raised in the pleading nor tried
with the express or implied consent of the parties. They cannot render judgment
based on issues that have never been raised before them. Equally settled is the rule
that "points of law, theories, issues, and arguments not brought to the attention of the
lower [tribunal] need not be, and ordinarily will not be, considered by a reviewing
court, as these cannot be raised for the first time at such late stage. Basic
considerations of due process underlie this rule." 55 The same goes true with J. Brion's
theory that what was cancelled by virtue of Maquiling was only the April 3, 2009
Affidavit of Renunciation where Arnado expressly renounced any foreign citizenship;
not the July 10, 2008 Oath of Allegiance which carried with it an implied abdication of
foreign citizenship. For J. Brion, "[t]he requirement of an express renunciation x x x
does not negate the effect of, or make any less real, the prior implicit renunciation of
citizenship and allegiance made upon taking the oath of allegiance." Again, this was
never raised in this petition. At any rate, the execution of an Oath of Allegiance is
required by Section 356 of RA 9225. For those who avail themselves of RA 9225 and
intend to run for public office, Section 5(2) thereof provides the additional requirement
of making a personal and sworn renunciation of any and all foreign citizenships prior
to or at the time of filing of their CoC. Definitely, the provisions of Section 5(2) are not
useless or meaningless surplusage. When the law expressly requires an explicit
renunciation, an implicit one would be insufficient. Furthermore, even assuming that
Arnado's 2008 implied renunciation is sufficient, the same has also been negated by
his use of his US passport in 2009, following the ruling in Maquiling.
Otherwise, we would give more weight to an implied renunciation than to an express
one specifically required by law.
Besides, the Decision of this Court in Maquiling holding that Arnado's use of his US
passport effectively recanted his Affidavit of Renunciation has already become final
and immutable. We can no longer resurrect in this case the issues that have already
been resolved there with fmality.
In maintaining that Arnado used his Philippine passport in travelling abroad in the first
quarter of 2010, J. Leonen relies on the copy thereof attached to the rollo of
the Maquiling case. But said copy of Arnado's Philippine passport57 is a mere
"CERTIFIED TRUE COPY FROM THE MACIDNE COPY ON FILE" as attested to by
Rosario P. Palacio, Records Officer Ill of the Comelec. 58 This is clearly stamped on
aforesaid copy of Arnado's Philippine passport. A machine copy or photocopy is a
mere secondary evidence.59 As such, it cannot be admitted in evidence until and
unless the offeror has proven the due execution and the subsequent loss or
unavailability of the original.60 In this case, however, Arnado's Philippine passport is
not missing. Thus, said photocopy of Arnado's Philippine passport cannot sway us to
depart from the uncontroverted certification of the Bureau ofimmigration that Arnado
used his US passport on January 12, 2010 and March 23, 2010. Consequently, even
assuming that the recently discovered November 30, 2009 Affidavit of Renunciation
with Oath of Allegiance is true and authentic, Arnado once more performed positive
acts on January 12, 2010 and March 23, 2010, which effectively negated the alleged
November 30, 2009 Affidavit resulting in his disqualification to run for an elective
public office.
Landslide election victory cannot
override eligibility requirements.
In Maquiling, this Court emphasized that popular vote does not cure the ineligibility of
a candidate. Thus, while in this case Arnado won by landslide majority during the
2013 elections, garnering 84% of the total votes cast, the same "cannot override the
constitutional and statutory requirements for qualifications and
disqualifications."61 In Velasco v. Comelec,62 this Court pronounced that election
victory cannot be used as a magic formula to bypass election eligibility requirements;
otherwise, certain provisions of laws pertaining to elections will become toothless.
One of which is Section 39 of the Local Government Code of 1991, which specifies
the basic positive qualifications of local government officials. If in Velasco the Court
ruled that popular vote cannot override the required qualifications under Section
39,63a fortiori, there is no reason why the Court should not follow the same policy
when it comes to disqualifications enumerated under Section 4064 of the same law.
After all, "[t]he qualifications set out in [Section 39] are roughly half of the
requirements for election to local public offices. The other half is contained in the
succeeding section which lays down the circumstances that disqualify local
candidates."65cralawrednad
Finally, this case is strikingly similar to the case of Lopez v. Comelec.66 In that case,
petitioner Lopez was also a natural-born Filipino who lost his Philippine citizenship
after he became a naturalized US citizen. He later reacquired his Philippine
citizenship by virtue of RA 9225. Thereafter, Lopez filed his candidacy for Chairman
of Barangay Bagacay, San Dionisio, Iloilo in the
synchronized Barangay and Sangguniang Kabataan Elections held on October 29,
2007 without first making a personal and sworn renunciation of his foreign citizenship.
In spite of the fact that Lopez won in the elections, this Court still affmned the
Resolution of the Comelec disqualifying Lopez as a candidate for a local elective
position for his failure to comply with the requirements of Section 5(2) of RA 9225.
Thus:ChanRoblesvirtualLawlibrary
While it is true that petitioner won the elections, took his oath and began to discharge
the functions of Barangay Chairman, his victory cannot cure the defect of his
candidacy. Garnering the most number of votes does not validate the election of a
disqualified candidate because the application of the constitutional and statutory
provisions on disqualification is not a matter of popularity.67
In fine, this Court finds no grave abuse of discretion on the part of the Comelec  En
Banc in sustaining the Resolution of the Comelec Second Division disqualifying
Arnado from running in the May 13, 2013 elections and in accordingly setting aside
his proclamation as elected mayor of Kauswagan, Lanao del Norte and proclaiming
Capitan as the duly elected mayor of said municipality.
WHEREFORE, the instant Petition is hereby DISMISSED and the assailed Comelec
Resolutions are AFFIRMED. The Status Quo Ante Order issued by this Court
is LIFTED.
SO ORDERED.chanrobles virtuallawlibrary

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Laws on Suffrage

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 Laws on Suffrage

G.R. No. 217012, March 01, 2016 b) Respondent Tañada was a resident of Parañaque where he was enrolled as a
voter from 2009 until 4 June 2012, when he transferred his Voter's Registration to
WIGBERTO "TOBY" R. TAÑADA, JR., Petitioner, v. HOUSE OF Gumaca, Quezon; and
REPRESENTATIVES ELECTORAL TRIBUNAL, ANGELINA "HELEN" D. TAN,
AND ALVIN JOHN S. TAÑADA, Respondents. c) Respondent Tañada's own tweets and entries in Facebook are bereft of any
political plans or activities which betray his true intentions to run as Member of the
4th District of Gumaca, Quezon.
DECISION On April 25, 2013, the COMELEC En Banc denied Wigberto's motion for
reconsideration in SPA No. 13-057, but granted his motion for reconsideration in SPA
CARPIO, J.: No. 13-056, decreeing thusly:
chanRoblesvirtualLawlibrary
The Case WHEREFORE, premises considered, the Motion for Reconsideration dated 18
February 2013 is PARTIALLY GRANTED. The Motion for Reconsideration for SPA
G.R. No. 217012 is a petition for certiorari1 assailing the Resolutions promulgated on No. 13-057 (DC) is DENIED for LACK OF MERIT. However, the Motion for
25 September 20142 and 22 January 20153 by the House of Representatives Reconsideration for SPA No. 13-056 (DC) is GRANTED. Accordingly, Respondent
Electoral Tribunal (HRET) in HRET Case No. 13-018 (EP). The HRET dismissed Alvin John S. Tañada's Certificate of Candidacy for the position of Member of the
Wigberto "Toby" R. Tañada, Jr.'s (Wigberto) election protest ad cautelam on two House of Representatives for the 4th District of the Province of Quezon is hereby
grounds: for being insufficient in form and substance, and for lack of jurisdiction to CANCELLED.
pronounce and declare Alvin John S. Tañada (Alvin John) as a nuisance candidate. On May 7, 2013, Wigberto sought the reconsideration of the denial of his petition in
SPA Case No. 13-057 to urge the declaration of Alvin John as a nuisance candidate
on the basis of newly discovered evidence.
The Facts
For the May 13, 2013 National and Local Elections, the name of candidate Alvin John
The HRET recited the facts as follows: remained in the ballots. After the canvass of the votes, the following results indicated
chanRoblesvirtualLawlibrary that Tan was the winning candidate, to wit:
Culled from the records and the submissions of the parties herein, as well as from the chanRoblesvirtualLawlibrary
ruling of the Supreme Court in Tañada, Jr. v. Commission on Elections, et al., [G.R.
Nos. 207199-200, 22 October 2013, 708 SCRA 188] are the factual antecedents Tan 84,782  
relevant to this resolution. Tañada, Wigberto 80,698  

For the position of Representative of the Fourth Legislative District of the Province of Tañada, Alvin John 7,038  
Quezon contested in the National and Local Elections of 2013, three candidates filed On May 16, 2013, Wigberto filed with the Quezon Provincial Board of Canvassers
their respective Certificates of Candidacy (CoC), namely: Wigberto R. Tañada, Jr. (Quezon PBOC) his PETITION TO CORRECT MANIFEST ERRORS IN THE
(Wigberto) of the Liberal Party; Angelina D. Tan (Tan) of the Nationalist People's CERTIFICATES OF CANVASS FOR THE POSITION OF MEMBER OF THE HOUSE
Coalition [(NPC)]; and Alvin John S. Tañada (Alvin John) of the Lapiang OF REPRESENTATIVES, 4TH DISTRICT QUEZON with URGENT MOTION TO
Manggagawa. In October 2012, Wigberto filed twin petitions in the Commission on SUSPEND CANVASS AND/OR PROCLAMATION FOR THE SAID POSITION,
Elections (COMELEC) to seek the cancellation of Alvin John's CoC (docketed as SPA whereby he prayed that the COMELEC direct the Quezon PBOC to consolidate in his
No. 13-056), and to declare Alvin John a nuisance candidate (docketed as SPA No. favor the votes canvassed for Alvin John, and to proclaim the candidate with the
13-0357). The petitions were eventually consolidated. highest number of votes as the winner.

On January 29, 2013, the COMELEC First Division dismissed the consolidated The Quezon PBOC denied Wigberto's motion to have the votes garnered by Alvin
petitions for their lack of merit. John credited in his favor on the same date of May 16, 2013, holding that the votes of
Alvin John could not be counted in favor of Wigberto because the cancellation of the
Wigberto duly filed his motion for reconsideration of the dismissal of his petitioners former's CoC had been on the basis of his material misrepresentations under Section
[sic], alleging the following grounds, to wit: 78 of the Omnibus Election Code, not on being a nuisance candidate under Section
chanRoblesvirtualLawlibrary 69 of Omnibus Election Code. The Quezon PBOC then proclaimed Tan as the
a) Assuming Respondent Tañada resided in Purok 3, Barangay Progreso, Gumaca, winning candidate.
Quezon for a period of thirteen (13) years, the said period was long ago. Presently,
Respondent Tañada failed to comply with the one-year residency requirement. On May 21, 2013, Wigberto filed a SUPPLEMENT TO THE PETITION WITH
ADDITIONAL PRAYER FOR ANNULMENT OF PROCLAMATION, whereby he

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 Laws on Suffrage
reiterated his prayer to be declared as the winning candidate for the position of sabotage the candidacy of herein Protestant, and the inclusion of Alvin John's name
Representative of the Fourth District of Quezon by consolidating the votes received in the ballot despite the cancellation of his certificate of candidacy, Protestant is
by Alvin John with the votes he garnered. hereby protesting the miscounting and mistabulation of the votes cast for him as votes
for Alvin John in the ten (10) Municipal Board of Canvassers of the Fourth District of
On May 27, 2013, Wigberto brought in the Supreme Court his AD Quezon and the Provincial Board of Canvassers of Quezon as follows: x x x.
CAUTELAM PETITION FOR CERTIORARI, MANDAMUS AND PROHIBITION with Meanwhile, on June 28, 2013, the COMELEC Second Division favorably acted on the
URGENT MOTION FOR THE ISSUANCE OF A STATUS QUO ANTE ORDER to motion to annul the proclamation of Tan, and annulled the proclamation, and directed
assail the COMELEC En Banc's Resolution promulgated on April 25, 2013 declaring the Quezon PBOC to credit the 7,038 votes of Alvin John to Wigberto, and to declare
Alvin John not a nuisance candidate, docketed as G.R. Nos. 207199-200, thereby the winner after the re-computation of the votes. While Wigberto's petition
imploring the Supreme Court to declare Alvin John as a nuisance candidate, and to for certiorari was still pending in the Supreme Court, the COMELEC En Banc affirmed
order the COMELEC to credit the votes received by Alvin John in his favor. the action of the COMELEC Second Division annulling Tan's proclamation. However,
Tan had by then taken her oath and assumed office past noon time of June 30, 2013,
On May 30, 2013, Wigberto filed [with] this Tribunal this election protest ad cautela, thereby rendering the adverse resolution on her proclamation moot.
pertinently alleging as follows:
chanRoblesvirtualLawlibrary On October 22, 2013, the Supreme Court promulgated its resolution in G.R. Nos.
13. The fraud perpetrated upon herein Protestant in the fielding of Alvin John Tañada 207199-200 dismissing Wigberto's AD CAUTELAM PETITION FOR CERTIORARI,
as a nuisance candidate consists of the following: MANDAMUS AND PROHIBITION with URGENT MOTION FOR THE ISSUANCE OF
chanRoblesvirtualLawlibrary A STATUS QUO ANTE ORDER, viz:
a. The lawyers who turned out to be counsels for Protestee collaborated, in varying chanRoblesvirtualLawlibrary
degrees and at various times, in support of the nuisance candidate Alvin John Case law states that the proclamation of a congressional candidate following the
Tañada, in a case of an otherwise patent conflict of interest, unless their client election divests the COMELEC of jurisdiction over disputes relating to the election,
Protestee in the first place was precisely the sponsor of the candidacy of Alvin John returns, and qualifications of the proclaimed representative in favor of the HRET. The
as a nuisance candidate in order to confuse and mislead the voters into voting for phrase "election, returns and qualifications" refers to all matters affecting the validity
Alvin John instead of herein Protestant, to wit: x x x. of the contestee's title. In particular, the term "election" refers to the conduct of the
polls, including the listing of voters, the holding of the electoral campaign, and the
b. As found by the Comelec En Banc in SPA 13-056, Alvin John Tañada "is not a casting and counting of the votes; "returns" refers to the canvass of the returns and
resident of and/or never resided" in the Fourth District of Quezon, and that he had the the proclamation of winners, including questions concerning the composition of the
"intent to mislead, misinform, or deceive the electorate" since he is a resident of board of canvassers and the authenticity of the election returns; and "qualifications"
Parañaque City, and therefore disqualified from running for any elective post in the refers to matters that could be raised in quo warranto proceeding against the
Fourth District of Quezon. x x x. proclaimed winner, such as his disloyalty or ineligibility or the inadequacy of his COC.

d. Alvin John Tañada was never seen campaigning in the Fourth District of Quezon
Province, nor did he have any posters in the common poster areas. Neither did he
attend any campaign rally or candidate's forum. To top it all, he did not even bother to
vote in the May 13, 2013 Elections.
e. An avid user of social media such as Facebook and Twitter, Alvin John Tañada
never made a single post or tweet to his friends, relatives or associates in said media
about his political plans of the fact that he was running as Congressman. Such
palpable silence, if not secrecy, on one's candidacy is a trademark attitude of
nuisance candidates. They make themselves publicly scarce and difficult to track
down, when the very nature of a candidacy precisely seeks nourishment from
widespread publicity and maximum exposure.
f. The fraudulent fielding of Alvin John Tañada as a nuisance candidate resulted in
7,038 votes for the one and only bona fide candidate with the surname "Tañada,"
Wigberto "Toby" Tañada, [Jr.,] whose certificate of candidacy, in the first place, had
already been ordered cancelled by the Comelec in its April 25, 2013 consolidated
Resolution in SPA 13-056 and 13-057. x x x.
22. Because of the perpetration of fraud upon herein Protestant through the malicious
and intentional fielding of a nuisance candidate in the person of Alvin John Tañada to
In the foregoing light, considering that Angelina had already been proclaimed as
Member of the House of Representatives for the 4 th District of Quezon Province on
May 16, 2013, as she has in fact taken her oath and assumed office past noon time of
June 30, 2013, the Court is now without jurisdiction to resolve the case at bar. As they
stand, the issues concerning the conduct of the canvass and the resulting
proclamation of Angelina as herein discussed are matters which fall under the scope
of the terms "election" and "returns" as above-stated and hence, properly fall under
the HRET's sole jurisdiction.
WHEREFORE, the petition is DISMISSED. 
SO ORDERED.
Thereafter, the Tribunal directed Tan to submit her responsive pleading to the
election contest.
In compliance, Tan filed her verified answer with special and affirmative defenses and
counter-protest, praying that the Tribunal dismiss the election protest pursuant to
Rule 16 in relation to Rule 21 of The 2011 Rules of the House of Representatives
Electoral Tribunal(2011 HRET Rules) for being grossly deficient in form and
substance under the law, and considering further that Wigberto was guilty of forum

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 Laws on Suffrage
shopping.
In his reply and answer to the counter-protest, Wigberto insisted that the Supreme
Court had already declared in G.R. Nos. 207199-200 that the Tribunal had exclusive
jurisdiction to determine whether or not Alvin John was a nuisance candidate, and
whether or not crediting the votes garnered by Alvin John to Wigberto constituted an
election contest.
On February 11, 2014, Tan filed her comment with motion to dismiss and/or set the
case for preliminary hearing or oral argument.
On February 27, 2014, the Tribunal granted Tan's motion to set the oral arguments,
and held oral arguments on March 13, 2014.4ChanRoblesVirtualawlibrary
The HRET's Ruling
The HRET promulgated the assailed Resolution on 25 September 2014.
The HRET held that Wigberto did not commit forum-shopping. Wigberto sought
exclusive relief from the HRET for his electoral protest in the belief that it was the
proper forum for his predicament. He did not go to the HRET to look for a friendly
forum to obtain a favorable result.
However, the HRET held that Wigberto's election protest was insufficient in form and
substance. The HRET found that Wigberto's election protest failed to allege the facts
to support a valid election protest as required by Rule 16 of the 2011 HRET Rules.
Although the pleading was captioned as an election protest, its contents were more
appropriate for a petition to annul Tan's proclamation. The HRET further stated that
the material fraud in an election protest must be of an "intrinsic nature as to which the
protestant was caught off his guard," and not extrinsic, or "one that he could have
effectively prevented after the filing of Alvin John's CoC but still during the campaign
period."
Rep. Ilagan stated that Wigberto's election protest is sufficient in form and substance.
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. Wigberto was not
raising matters of irregularities in the counting of votes at the precinct level, so there
was no need to cite the specific precincts in the protest filed before the HRET. Rep.
Ilagan further stated that the principle of liberal interpretation and application of the
HRET Rules is consistent with the HRET's constitutional duty to ensure that the will of
the electorate is not defeated.
Rep. Ilagan declared that the HRET has jurisdiction to determine whether Tan
committed fraud by fielding Alvin John, and whether Alvin John is a nuisance
candidate. The jurisdiction of the HRET in the adjudication of election contests is
intended to be full, complete and unimpaired. The facts and circumstances of the
case, that is, the limitations in the procedures of the computerized elections that led to
the non-deletion of Alvin John's name in the ballots despite the cancellation of his
certificate of candidacy, the refusal of the COMELEC to declare Alvin John a
nuisance candidate, and the eventual decision of the COMELEC to annul Tan's
proclamation and credit Alvin John's votes to Wigberto, show that the electorate's will
was not realized.
Finally, Rep. Ilagan concurred with the Resolution that Wigberto did not commit
forum-shopping. Even if Wigberto instituted actions before different institutions, the
actions had different causes of action.
Wigberto filed his Motion for Reconsideration of the HRET's Resolution on 3
November 2014. He raised the following grounds: (1) the jurisdiction of the HRET in
election protests is defined by the Constitution, the law and jurisprudence, and cannot
be arbitrarily limited by the HRET; (2) the opening of ballot boxes and the revision of
ballots are not essential to an election protest; and (3) the HRET cannot refuse the
exercise of its jurisdiction over the fraud committed by a protestee on the ground that
it has no power to reverse a COMELEC ruling on a nuisance candidate.

Finally, the HRET ruled that it has no jurisdiction to declare that Alvin John was a The HRET denied Wigberto's Motion for Reconsideration in its Resolution dated 22
nuisance candidate. The HRET relied on Section 17, Article VI of the 1987 January 2015.
Constitution and Rule 15 of the 2011 HRET Rules to declare that its power to judge
election contests is limited to Members of the House of Representatives. Alvin John, Wigberto filed the present Petition for Certiorari on 18 March 2015.
admittedly, is not a Member of the House of Representatives.
The Issues
The dispositive portion of the HRET's Resolution reads:
chanRoblesvirtualLawlibrary Wigberto enumerated the following grounds warranting allowance of his petition:
WHEREFORE, the election protest ad cautela of protestant WIGBERTO "TOBY" R. chanRoblesvirtualLawlibrary
TAÑADA, JR. is DISMISSED for being insufficient in form and in substance, and for
lack of jurisdiction to pronounce and declare Alvin John S. Tañada as a nuisance
1. Public respondent HRET gravely abused its discretion, amounting to lack or
candidate.
excess of jurisdiction, when it whimsically, capriciously, and arbitrarily limited
its own jurisdiction in election protests as defined by the Constitution, the
No pronouncement as to costs. 
law, and jurisprudence.
SO ORDERED.5ChanRoblesVirtualawlibrary
Representative Luzviminda C. Ilagan (Rep. Ilagan) of Gabriela Women's Party wrote 2. Public respondent HRET gravely abused its discretion, amounting to lack or
a Concurring and Dissenting Opinion. excess of jurisdiction, when it whimsically, capriciously, and arbitrarily

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 Laws on Suffrage
declared that an election protest is limited to the opening of ballot boxes and
the revision of ballots.
3. Public respondent HRET gravely abused its discretion, amounting to lack or
excess of jurisdiction, when it whimsically, capriciously, and arbitrarily
declared that it cannot look into the fraudulent fielding of a nuisance
candidate as perpetrated by herein private respondent, because it has no
power to review, modify, or reverse the factual finding of the COMELEC en
nuisance candidates.6
The Court's Ruling
The petition has no merit. We affirm the Resolutions of the HRET. 
Wigberto's Procedural Errors
In G.R. Nos. 207199-200, this Court narrated the following events:
chanRoblesvirtualLawlibrary
In a Resolution dated January 29, 2013, the COMELEC First Division dismissed both
petitions for lack of merit. On Wigberto's motion for reconsideration, the COMELEC
En Banc, in a Resolution dated April 25, 2013, upheld the COMELEC First
Division's ruling in SPA No. 13-057 (DC) that Alvin John was not a nuisance
candidate as defined under Section 69 of Batas Pambansa Bilang 881, as amended,
otherwise known as the "Omnibus Election Code of the Philippines" (OEC). However,
in SPA No. 13-056 (DC), it granted the motion for reconsideration and cancelled Alvin
John's CoC for having committed false material representations concerning his
residency in accordance with Section 78 of the OEC.
On May 15, 2013, Wigberto filed a 2nd Motion for Partial Reconsideration of the
COMELEC En Banc's ruling in SPA No. 13-057 (DC) on the ground of newly
discovered evidence. He alleged that Alvin John's candidacy was not bona
fide because: (a) Alvin John was merely forced by his father to file his CoC; (b) he
had no election paraphernalia posted in official COMELEC posting areas in several
barangays of Gumaca, Quezon Province; (c) he did not even vote during the May 13,
2013 National Elections; and (d) his legal representation appeared to have been in
collusion with the lawyers of Angelina.
On May 15 and 16, 2013, Wigberto filed with the COMELEC En Banc an
Extremely Urgent Motion to Admit Additional and Newly Discovered Evidence
and to Urgently Resolve Motion for Reconsideration and an Urgent
Manifestation and Supplemental thereto. These motions, however, remained un-
acted upon until the filing of the present petition before the Court on May 27,
2013. Thus, in order to avoid charges of forum-shopping, said motions were
withdrawn by Wigberto.7ChanRoblesVirtualawlibrary
Wigberto committed several fatal procedural errors.
First, Wigberto filed a prohibited pleading: a motion for reconsideration of a resolution
of the COMELEC En Banc. Section 1(d), Rule 13 of the COMELEC Rules of
Procedure specifically prohibits the filing of a "motion for reconsideration of an en
bane ruling, resolution, order or decision except in election offense cases."
Consequently, the COMELEC En Banc ruling became final and
executory,8 precluding Wigberto from raising again in any other forum Alvin John's
nuisance candidacy as an issue.
Second, Wigberto filed his petition beyond the period provided by the COMELEC
Rules of Procedure. The COMELEC En Banc promulgated its resolution on Alvin
John's alleged nuisance candidacy on 25 April 2013. Wigberto filed his petition in
G.R. Nos. 207199-200 before this Court on 27 May 2013. By this date, the
COMELEC En Banc's resolution on Alvin John's alleged nuisance candidacy was
already final and executory. Section 3, Rule 37 of the COMELEC Rules of Procedure
provides:
chanRoblesvirtualLawlibrary
Section 3. Decisions Final After Five Days. - Decisions in pre-proclamation cases and
petitions to deny due course to or cancel certificates of candidacy, to declare a
candidate as nuisance candidate or to disqualify a candidate, and to postpone or
suspend elections shall become final and executory after the lapse of five (5) days
from their promulgation, unless restrained by the Supreme Court.
What Wigberto should have done was to file a petition for certiorari with this Court
within five days from promulgation of the 25 April 2013 resolution of the COMELEC
En Banc. Wigberto failed to timely assail before this Court through a petition
for certiorari the COMELEC En Banc resolution declaring that Alvin John was not a
nuisance candidate.
The HRET's Exercise of its Jurisdiction
The HRET did not commit any grave abuse of discretion in declaring that it has no
jurisdiction to determine whether Alvin John was a nuisance candidate. If Wigberto
timely filed a petition before this Court within the period allotted for special actions
and questioned Alvin John's nuisance candidacy, then it is proper for this Court to
assume jurisdiction and rule on the matter. As things stand, the COMELEC En Banc's
ruling on Alvin John's nuisance candidacy had long become final and executory.
To our mind, it appears that Wigberto's petition challenging Alvin John's nuisance
candidacy filed before the HRET, and now before this Court, is a mere afterthought. It
was only after Angelina was proclaimed a winner that Wigberto renewed his zeal in
pursuing Alvin John's alleged nuisance candidacy. It is not enough for Wigberto to
have Alvin John's COC cancelled, because the effect of such cancellation only leads
to stray votes.9 Alvin John must also be declared a nuisance candidate, because only
then will Alvin John's votes be credited to Wigberto.10
Wigberto further argues that this Court directed him to seek resolution regarding Alvin
John's purported nuisance candidacy before the HRET. This is inaccurate. We
directed Wigberto to the HRET to question the conduct of the canvass and Tan's
proclamation. We stated thus:
chanRoblesvirtualLawlibrary
In the foregoing light, considering that Angelina had already been proclaimed as
Member of the House of Representatives for the 4 th District of Quezon Province on
May 16, 2013, as she has in fact taken her oath and assumed office past noon time of
June 30, 2013, the Court is now without jurisdiction to resolve the case at bar. As they
stand, the issues concerning the conduct of the canvass and the resulting
proclamation of Angelina as herein discussed are matters which fall under the scope
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 Laws on Suffrage
of the terms "election" and "returns" as above-stated and hence, properly fall under
the HRET's sole jurisdiction.11ChanRoblesVirtualawlibrary
WHEREFORE, we DISMISS the petition and AFFIRM the assailed Resolutions
promulgated on 25 September 2014 and 22 January 2015 by the House of
Representatives Electoral Tribunal in HRET Case No. 13-018 (EP).

SO ORDERED.cralawlawlibrary

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 Laws on Suffrage
MARY GRACE NATIVIDAD S POE- LLAMANZARES vs.
COMELEC,et al.
GR Nos. 221697 , GR No. 221698-700
March 8,2016
Perez, J.:
FACTS:
In her COC for Presidency on the May 2016 elections, Grace Poe declared that she is
a natural-born citizen of the Philippines and that her residence up to day before May
9, 2016 would be 10 years and 11 months counted from May 24, 2005.
Grace Poe  was born in 1968., found as newborn infant in Jaro,Iloilo and was legally
adopted by RONALD ALLAN KELLY POE (FPJ) and JESUS SONORA POE (SUSAN
ROCES) in 1974. She immigrated to the US in 1991 after her marriage to Theodore
Llamanzares who was then based at the US. Grace Poe then became a naturalized
American citizen in 2001.
On December 2004, he returned to the Philippines due to his father’s deteriorating
medical condition, who then eventually demice on February 3,2005. She then quitted
her job in the US to be with her grieving mother and finally went home for good to the
Philippines on MAY 24, 2005.
On JULY 18, 2006, the BI granted her petition declaring that she had reacquired her
Filipino citizenship under RA 9225. She registered as a voter and obtained a new
Philippine Passport.
In 2010, before assuming her post as appointes Chairperson of the MTRCB , she
renounced her American citizenship to satisfy the RA 9225 requirements as to
Reacquistion of Filipino Citizenship. From then on, she stopped using her American
passport.
Petitions were filed before the COMELEC to deny or cancel her candidacy on the
ground particularly among others, that she cannot be considered a natural born
Filipino citizen since she was a FOUNDLING and that her bioligical parents cannot be
proved as Filipinos. The Comelec en banc  cancelled her candidacy on the ground
that she is in want of citizenship and residence requirements and that she committed
misrepresentation in her COC.
On CERTIORARI, the SUPREME COURT, reversed the ruling and held a vote of 9-6
that POE is qualified as candidate for Presidency.
ISSUES:
(1) Whether or not Grace Poe- Llamanzares is a natural- born Filipino citizen
(2) Whether or not Poe satisfies the 10-year residency requirement.
HELD:
YES. GRACE POE is considerably a natural-born Filipino Citizen. For that, she
satisfied the constitutional reqt that only natural-born Filipinos may run for Presidency.
(1) there is high probability that Poe’s parents are Filipinos, as being shown in her
physical features which are typical of Filipinos, aside from the fact that she was found
as an infant in Jaro, Iloilo, a municipality wherein there is 99% probability that
residents there are Filipinos, consequently providing 99% chance that Poe’s bilogical
parents are Filipinos. Said probability and circumstancial evidence are admissible
under Rule 128, Sec 4 of the Rules on Evidence.
(2) The SC pronounced that FOUNDLINGS are as a class, natural born- citizens as
based on the deliberations of the 1935 Constitutional Convention, wherein though its
enumeration is silent as to foundlings, there is no restrictive language either to
definitely exclude the foundlings to be natural born citizens.
(3) That Foundlings are automatically conferred with the natural-born citizenship as to
the country where they are being found, as covered and supported by the UN
Convention Law.
As to the residency issue, Grace Poe satisfied the 10-year residency because she
satisfied the requirements of ANIMUS MANENDI (intent to remain permanently)
coupled with ANIMUS NON REVERTENDI  (intent of not returning to US) in acquiring
a new domicile in the Philippines. Starting May 24,2005, upon returning to the
Philippines, Grace Poe presented overwhelming evidence of her actual stay and
intent to abandon permanently her domicile in the US, coupled with her eventual
application to reacquire Filipino Citizenship under RA 9225. Hence, her candidacy for
Presidency was granted by the SC.
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 Laws on Suffrage

EN BANC In addition, the COMELEC Second Division ruled that Diambrang, who only obtained
the second highest number of votes in the elections, could not be declared as the
G.R. No. 201809, October 11, 2016 winning candidate even if Patad was disqualified.

The dispositive portion of the Resolution reads:ChanRoblesVirtualawlibrary

H. SOHRIA PASAGI DIAMBRANG, Petitioner, v. COMMISSION ON ELECTIONS WHEREFORE, premises considered, the petition is hereby GRANTED. The
AND H. HAMIM SARIP PATAD, Respondent. proclamation of private respondent H. Sohria Diambrang is ANNULLED. A writ of
Preliminary Mandatory Injunction is issued commanding the BBOC of Barangay
DECISION Kaludan, Nunungan, Lanao del Norte to convene anew and to PROCLAIM petitioner
H. Hamim Sarip Patad as the winning Punong Barangay thereat. The Law
CARPIO, ACTING  C.J.:** Department is directed to file the necessary charge against the members of the
BBOC for arrogating unto themselves the power to disqualify a candidate.

The Case SO ORDERED.3chanroblesvirtuallawlibrary

Diambrang filed a motion for reconsideration.
Before the Court is a petition for certiorari1 assailing the Resolution of the Commission
on Elections (COMELEC) En Banc promulgated on 30 January 2012 in SPC No. 10- The Decision of the COMELEC En Banc
079 (BRGY).
In its Resolution promulgated on 30 January 2012, 4 the COMELEC En Banc annulled
The Antecedent Facts the proclamation of Diambrang and ordered the first ranked Barangay Kagawad of
Barangay Kaludan to succeed as the new Punong Barangay.
Petitioner H. Sohria Pasagi Diambrang (Diambrang) and respondent H. Hamim Sarip
Patad (Patad) were candidates for Punong Barangay of Barangay Kaludan, The COMELEC En Banc affirmed its 14 November 2011 Resolution overturning the
Nunungan, Lanao del Norte in the 25 October 2010 Barangay Elections. Patad COMELEC First Division’s Resolution of 14 January 2011 in SPA No. 10-144
obtained 183 votes while Diambrang obtained 78 votes. However, the Barangay (BRGY). In its 14 November 2011 Resolution, the COMELEC En Banc granted the
Board of Canvassers (BBOC) proclaimed Diambrang as the duly elected Punong Petition to Disqualify and/or Deny Due Course to the Certificate of Candidacy of
Barangay based on the assumption that Patad was disqualified for being a fugitive Patad on the ground that he is a fugitive from justice and thus disqualified from
from justice. The BBOC’s assumption was, in turn, based on the recommendation of running for public office.
the Provincial Election Supervisor that was not yet final and executory because the
COMELEC had not issued any ruling on the matter. The COMELEC En Banc ruled that despite Patad’s disqualification, Diambrang, who
garnered the next highest number of votes, could not be proclaimed as the elected
Patad filed a petition to annul Diambrang’s proclamation. The case was docketed as Punong Barangay. Having lost the elections, Diambrang is not entitled to be declared
SPC No. 10-079 (BRGY). Neither Diambrang nor any of the members of the BBOC of elected. Instead, the COMELEC En Banc ruled that the vacant position should be
Barangay Kaludan, Nunungan, Lanao del Norte filed their comment on the petition. filled by the first ranked Kagawad pursuant to Section 44(b) of the Local Government
Code.5chanrobleslaw
The Decision of the COMELEC Second Division
The dispositive portion of the COMELEC En Banc’s Resolution
In its Resolution2 promulgated on 11 August 2011, the COMELEC Second Division reads:ChanRoblesVirtualawlibrary
annulled Diambrang’s proclamation. The COMELEC Second Division ruled that the WHEREFORE, premises considered, the Commission hereby RESOLVES to ANNUL
BBOC of Barangay Kaludan, Nunungan, Lanao del Norte gravely abused its the proclamation of H. Sohria P. Diambrang. In view of the permanent vacancy in the
discretion amounting to lack of jurisdiction in proclaiming Diambrang as the duly Office of the Punong Barangay, the proclaimed first ranked Barangay Kagawad of
elected Punong Barangay based solely on the recommendation of the Provincial Barangay Kaludan, Nunungan, Lanao del Norte is hereby ORDERED to succeed as
Election Supervisor. The COMELEC Second Division ruled that the members of the the new Punong Barangay pursuant to Section 44 of the Local Government Code.
BBOC should have been aware that the Provincial Election Supervisor, Joseph
Hamilton M. Cuevas (Cuevas), merely conducted a preliminary investigation of the SO ORDERED.6chanroblesvirtuallawlibrary
case and his recommendation was subject to review by the COMELEC. The Hence, Diambrang’s recourse to this Court.
COMELEC Second Division noted that the recommendation of Cuevas to disqualify
Patad was overturned by the COMELEC First Division in its Resolution dated 14 The Issue
January 2011 in SPA No. 10-144 (BRGY).

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 Laws on Suffrage
The only issue that we need to resolve here is whether Diambrang can be proclaimed
as the elected Punong Barangay in view of Patad’s disqualification.
The Ruling of this Court
This case has been rendered moot by the election of a new Punong Barangay of
Barangay Kaludan, Nunungan, Lanao del Norte during the 28 October 2013
Barangay Elections.7 The case had been overtaken by events due to Patad’s failure
to file his comment on the petition as well as the repeated failure of the Postmaster of
Lanao del Norte to respond to the Court’s query whether Patad received the
Resolution requiring him to file his comment. In a letter dated 18 January 2016, the
Judicial Records Office8 requested for the assistance of the Postmaster General and
CEO of Manila to determine the date of delivery of the letter under Registry Receipt
No. 9206 addressed to Patad.9 The request was forwarded to the Office of Area VIII
Director of Central Mindanao.10 On 11 August 2016, Eduardo M. Juliata, Sr.,
LC/ACTG Postmaster of Philippine Postal Corporation, Central Mindanao Area VIII
issued a certification that the registered letter was received in good order by SB
Samsodin Guindo on 30 July 2012.11 In a Resolution dated 30 August 2016, the Court
resolved to dispense with the filing of Patad’s comment on the
petition.12chanrobleslaw
We reiterate the Court’s prevailing rulings on the matter of disqualification of a
candidate and its effect on the second-placer in an election.
The assailed Decision of the COMELEC En Banc was promulgated on 30 January
2012. The COMELEC En Banc ruled that Diambrang, as a second placer, could not
be declared as the duly-elected winner despite Patad’s disqualification.
On 9 October 2012, this Court promulgated its ruling in Jalosjos, Jr. v. Commission
on Elections13 where the Court held:ChanRoblesVirtualawlibrary
Decisions of this Court holding that the second-placer cannot be proclaimed winner if
the first-placer is disqualified or declared ineligible should be limited to situations
where the certificate of candidacy of the first-placer was valid at the time of filing but
subsequently had to be cancelled because of a violation of law that took effect, or a
legal impediment that took effect, after the filing of the certificate of candidacy. If the
certificate of candidacy is void ab initio, then legally the person who filed such void
certificate of candidacy was never a candidate in the elections at any time. All votes
for such non-candidate are stray votes and should not be counted. Thus, such non-
candidate can never be a first-placer in the elections. If a certificate of candidacy
void ab initio is cancelled on the day, or before the day, of the election, prevailing
jurisprudence holds that all votes for that candidate are stray votes. If a certificate of
candidacy void ab initio is cancelled one day or more after the elections, all votes for
such candidate should also be stray votes because the certificate of candidacy is void
from the very beginning. This is the more equitable and logical approach on the effect
of the cancellation of a certificate of candidacy that is void ab initio. Otherwise, a
certificate of candidacy void ab initio can operate to defeat one or more valid
certificates of candidacy for the same position.14chanroblesvirtuallawlibrary
In Aratea v. Commission on Elections,15 we ruled that whether the certificate of
candidacy is cancelled before or after the elections is immaterial because a
cancellation on the ground that the candidate was ineligible or not qualified to run
means he was never a candidate from the very beginning.
In Maquiling v. Commission on Elections,16 the Court revisited its previous ruling that
the second-placer cannot be proclaimed as a winner in an election contest. This
Court held in Maquiling:ChanRoblesVirtualawlibrary
We have ruled in the recent cases of Aratea v. COMELEC and Jalosjos v.
COMELEC that a void COC cannot produce any legal effect.
Thus, the votes cast in favor of the ineligible candidate are not considered at all in
determining the winner of an election.
Even when the votes for the ineligible candidate are disregarded, the will of the
electorate is still respected, and even more so. The votes cast in favor of an ineligible
candidate do not constitute the sole and total expression of the sovereign voice. The
votes cast in favor of eligible and legitimate candidates form part of that voice and
must also be respected.
As in any contest, elections are governed by rules that determine the qualifications
and disqualifications of those who are allowed to participate as players. When there
are participants who turn out to be ineligible, their victory is voided and the laurel is
awarded to the next in rank who does not possess any of the disqualifications nor
lacks any of the qualifications set in the rules to be eligible as candidates.
There is no need to apply the rule cited in Labo v. COMELEC that when the voters
are well aware within the realm of notoriety of a candidate's disqualification and still
cast their votes in favor said candidate, then the eligible candidate obtaining the next
higher number of votes may be deemed elected. That rule is also a mere obiter that
further complicated the rules affecting qualified candidates who placed second to
ineligible ones.
The electorate's awareness of the candidate's disqualification is not a prerequisite for
the disqualification to attach to the candidate. The very existence of a disqualifying
circumstance makes the candidate ineligible. Knowledge by the electorate of a
candidate's disqualification is not necessary before a qualified candidate who placed
second to a disqualified one can be proclaimed as the winner. The second-placer in
the vote count is actually the first-placer among the qualified candidates.
That the disqualified candidate has already been proclaimed and has assumed office
is of no moment. The subsequent disqualification based on a substantive ground that
existed prior to the filing of the certificate of candidacy voids not only the COC but
also the proclamation.17chanroblesvirtuallawlibrary
Clearly, the prevailing ruling is that if the certificate of candidacy is void ab initio, the
candidate is not considered a candidate from the very beginning even if his certificate
of candidacy was cancelled after the elections.
Patad's disqualification arose from his being a fugitive from justice. It does not matter
that the disqualification case against him was finally decided by the COMELEC En
Banc only on 14 November 2011. Patad's certificate of candidacy was void ab initio.
As such, Diambrang, being the first-placer among the qualified candidates, should
have been proclaimed as the dulyelected Punong Barangay of Barangay Kaludan,
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 Laws on Suffrage
Nunungan, Lanao del Norte. However, due to supervening events as we previously of the Ombudsman (OMB) in OMB-L-A-08-0401-G, and allied cases. 13
discussed, Diambrang can no longer hold office.
On December 17, 2013, the COMELEC Second Division issued an Order 14 directing
WHEREFORE, we DISMISS the petition for being moot and academic. petitioner to file his answer.

SO ORDERED.chanRoblesvirtualLawlibrary In his Verified Answer cum  Memorandum15 dated February 24, 2014, petitioner

averred that the petition should be dismissed, considering that: (a) while the petition
prayed for his disqualification, it partakes the nature of a petition to deny due course
EN BANC to or cancel CoC under Section 78 16 of the Omnibus Election Code of the Philippines
(OEC),17 and combining these two distinct and separate actions in one petition is a
ground for the dismissal of the petition 18 pursuant to the COMELEC Rules of
G.R. No. 227158, April 18, 2017 Procedure19 (COMELEC Rules); (b) the COMELEC Law Department is not a proper
party to a petition for disqualification, and cannot initiate such case motu proprio;  20 
JOSEPH C. DIMAPILIS, Petitioner, v. COMMISSION ON ELECTIONS, Respondent. and (c) the Regional Trial Court of Angeles City, Branch 58 (RTC of Angeles City) had
permanently enjoined the implementation of the aforesaid OMB Consolidated
DECISION Decision in a November 8, 2013 Resolution 21 in Civil Case No. 15325, grounded on
the condonation doctrine.22

PERLAS-BERNABE, J.:
Before the Court is a petition for certiorari1 with urgent prayer for the issuance of a
Temporary Restraining Order and/or a Status Quo Ante Order and/or a Writ of
Preliminary Injunction, assailing the Resolutions dated April 11, 2016 2 and August 31,
20163 of respondent Commission on Elections (COMELEC) in SPA No. 13-436
(BRGY) (MP), which cancelled the Certificate of Candidacy (CoC) filed by petitioner
Joseph C. Dimapilis (petitioner) for the position of Punong Barangay of Barangay
Pulung Maragul, Angeles City (Brgy. Pulung Maragul) for the October 28, 2013
Barangay Elections (2013 Barangay Elections), annulled his proclamation as the
winner, and directed the Barangay Board of Canvassers to reconvene and proclaim
the qualified candidate who obtained the highest number of votes as the duly-elected
official for the said post.
The Facts
The COMELEC Law Department countered petitioner's averments, maintaining that it
has the authority to file motu proprio cases, and reiterating its earlier arguments. 23
On the other hand, the OMB submitted its Comment 24 on April 8, 2014, averring that
the OMB rulings had attained finality as early as May 28, 2010 for failure of petitioner
to timely appeal to the Court of Appeals (CA), rendering him disqualified from running
for any elective position.25
The COMELEC Second Division Ruling
In a Resolution26 dated April 11, 2016, the COMELEC Second Division granted the
petition, and cancelled petitioner's CoC, annulled his proclamation as the winner, and
directed the Barangay Board of Canvassers to reconvene and proclaim the qualified
candidate who garnered the highest number of votes as the duly-elected Punong
Barangay of Brgy. Pulung Maragul.27

Petitioner was elected as Punong Barangay  of Brgy. Pulung Maragul in the October
2010 Barangay Elections. He ran for re-election for the same position in the 2013
Barangay Elections, and filed his CoC4on October 11, 2013, declaring under oath that
he is "eligible for the office [he seeks] to be elected to." Ultimately, he won in the said
elections and was proclaimed as the duly elected Punong Barangay  of Brgy. Pulung
Maragul on October 29, 2013.5
On even date, the COMELEC Law Department filed a Petition for
Disqualification6 against petitioner pursuant to Section 40 (b) 7 of Republic Act No.
7160,8 otherwise known as the "Local Government Code of 1991" (LGC). It claimed
that petitioner was barred from running in an election9 since he was suffering from the
accessory penalty of perpetual disqualification to hold public office as a consequence
of his dismissal from service10 as then Kagawad  of Brgy. Pulung Maragul, after being
found  guilty, along with others, of the administrative offense of Grave Misconduct, in
a Consolidated Decision11 dated June 23, 2009 (OMB Consolidated Decision) and an
Order12 dated November 10, 2009 (collectively, OMB rulings) rendered by the Office
It treated the petition as one for cancellation of CoC pursuant to Section 78 of the
OEC, notwithstanding that it was captioned as a "Petition for Disqualification" under
Section 40 (b) of the LGC, holding that the nature of the petition is not determined by
the caption given to it by the parties, but is based on the allegations it presented. 28 It
ruled that petitioner committed material misrepresentation in solemnly avowing that
he was eligible to run for the office he seeks to be elected to, when he was actually
suffering from perpetual disqualification to hold public office by virtue of a final
judgment dismissing him from service. 29
The COMELEC Second Division likewise upheld its Law Department's authority to
initiate motu proprio the Petition for Disqualifcation as being subsumed under the
COMELEC's Constitutional mandate to enforce and administer laws relating to the
conduct of elections.30
Finally, it rejected petitioner's invocation of the condonation doctrine as
jurisprudentially established in Aguinaldo v. Santos31 since the same had already

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been abandoned in the 2015 case of Carpio Morales v. Binay, Jr. (Carpio
Morales).32 It ruled that the doctrine cannot apply to petitioner, who was clearly
established to be suffering from perpetual disqualification to hold public office, which
rendered him ineligible, voided his CoC from the beginning, and barred his re-
election.33 Consequently, it declared petitioner to be not a candidate at all in the 2013
Barangay Elections; hence, the votes cast in his favor should not be counted. 34
Petitioner moved for reconsideration,35 maintaining that: (a) the petition should have
been outrightly dismissed as the same is a combination of a disqualification case and
a petition to deny due course to or cancel CoC, which is proscribed by the COMELEC
Rules;36(b) he was not dismissed or removed from service since the CA had
permanently enjoined the execution of the OMB Consolidated Decision in a
December 17, 2009 Decision37 in CA-G.R. SP No. 109986, which was affirmed by this
Court in its Resolution38 dated August 2, 2010 in G.R. No. 192325; 39(c) the RTC of
Angeles City, Branch 60 had already dismissed the criminal case against him that
was anchored on the same basis as the administrative cases before the OMB, in a
November 20, 2015 Order40 in Criminal Case No. 09-5047;41and (d) petitioner's re-
election as Punong Barangay of Brgy. Pulung Maragul in the 2013 Barangay
Elections operated as a condonation of his alleged misconduct.42
The COMELEC En Banc Ruling
In a Resolution43 dated August 31, 2016, the COMELEC En Banc denied petitioner's
motion for reconsideration and affirmed the ruling of its Second Division. It explained
that petitioner's reliance on the aforesaid CA Decision and RTC Order was misplaced,
observing that: (a) the evident intent of the CA Decision was only to enjoin the
implementation of the OMB Consolidated Decision, while petitioner's motion for
reconsideration was pending, and not thereafter;44 and (b) absolution from a criminal
charge is not a bar to an administrative prosecution and vice versa.45
Hence, this petition.
The Issues Before the Court
The essential issue for the Court's resolution is whether or not the COMELEC gravely
abused its discretion in cancelling petitioner's CoC.
The Court's Ruling
The petition is without merit.
I. Petitioner's perpetual disqualification to hold public office is a material fact
involving eligibility.
A CoC is a formal requirement for eligibility to public office. 46 Section 74 of the OEC
provides that the CoC of the person filing it shall state, among others, that he is
eligible for the office he seeks to run, and that the facts stated therein are true to the
best of his knowledge. To be "eligible" relates to the capacity of holding, as well as
that of being elected to an office. 47 Conversely, "ineligibility" has been defined as a
"disqualification or legal incapacity to be elected to an office or appointed to a
particular position."48 In this relation, a person intending to run for public office
must not only possess the required qualifications for the position for which be
or she intends to run, but must also possess none of the grounds for
disqualification under the law.49
In this case, petitioner had been found guilty of Grave Misconduct by a final judgment,
and punished with dismissal from service with all its accessory penalties, including
perpetual disqualification from holding public office.50 Verily, perpetual
disqualification to bold public office is a material fact involving eligibility 51 which
rendered petitioner's CoC void from the start since he was not eligible to run for any
public office at the time he filed the same.
II. The COMELEC has the duty to motu proprio  bar from running for public
office those suffering from perpetual disqualification to hold public office.
Under Section 2 (1), Article IX (C) of the 1987 Constitution, the COMELEC has the
duty to "[e]nforce and administer all laws and regulations relative to the conduct of an
election x x x." The Court had previously ruled that the COMELEC has the legal
duty to cancel the CoC of anyone suffering from the accessory penalty of
perpetual disqualification to hold public office, albeit, arising from a criminal
conviction.52 Considering, however, that Section 52 (a), Rule 10 of the Revised Rules
on Administrative Cases in the Civil Service similarly imposes the penalty of perpetual
disqualification from holding public office as an accessory to the penalty of dismissal
from service, the Court sees no reason why the ratiocination enunciated in such
earlier criminal case should not apply here, viz.:
Even without a petition under either x x x Section 78 of the Omnibus Election Code, or
under Section 40 of the Local Government Code, the COMELEC is under a legal
duty to cancel the certificate of candidacy of anyone suffering from the
accessory penalty of perpetual special disqualification to run for public office
by virtue of a final judgment of conviction. The final judgment of conviction is notice
to the COMELEC of the disqualification of the convict from running for public office.
The law itself bars the convict from running for public office, and the disqualification is
part of the final judgment of conviction. The final judgment of the court is addressed
not only to the Executive branch, but also to other government agencies tasked to
implement the final judgment under the law.
Whether or not the COMELEC is expressly mentioned in the judgment to
implement the disqualification, it is assumed that the portion of the final
judgment on disqualification to run for elective public office is addressed to the
COMELEC because under the Constitution the COMELEC is duty bound to
"[e]nforce and administer all laws and regulations relative to the conduct of an
election." The disqualification of a convict to run for public office under the Revised
Penal Code, as affirmed by final judgment of a competent court, is part of the
enforcement and administration of "all laws" relating to the conduct of elections.
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To allow the COMELEC to wait for a person to file a petition to cancel the certificate of
candidacy of one suffering from perpetual special disqualification will result in the
anomaly that these cases so grotesquely exemplify. Despite a prior perpetual special
disqualification, Jalosjos was elected and served twice as mayor. The COMELEC will
be grossly remiss in its constitutional duty to "enforce and administer all laws"
relating to the conduct of elections if it does not motu proprio bar from running
for public office those suffering from perpetual special disqualification by virtue
of a final judgment.53 (Emphases and underscoring supplied)
In Romeo G. Jalosjos v. COMELEC54(Jalosjos), the Court had illumined that while the
denial of due course to and/or cancellation of one's CoC generally necessitates the
exercise of the COMELEC's quasi-judicial functions commenced through a petition
based on either Sections 12 or 78 of the OEC, or Section 40 of the LGC, when
the grounds therefor are rendered conclusive on account of final and executorv
judgments, as in this case, such exercise falls within the COMELEC's
administrative functions.55 To note, the choice as to which action to commence
belongs to the petitioner:
What is indisputably clear is that the false material representation of Jalosjos is a
ground for a petition under Section 78. However, since the false material
representation arises from a crime penalized by prisión mayor, a petition under
Section 12 of the Omnibus Election Code or Section 40 of the Local Government
Code can also be properly filed. The petitioner has a choice whether to anchor his
petition on Section 12 or Section 78 of the Omnibus Election Code, or on Section 40
of the Local Government Code. The law expressly provides multiple remedies and the
choice of which remedy to adopt belongs to the petitioner.56
As petitioner's disqualification to run for public office pursuant to the final and
executory OMB rulings dismissing him from service now stands beyond dispute, it is
incumbent upon the COMELEC to cancel petitioner's CoC as a matter of
course, else it be remiss in fulfilling its Constitutional duty to enforce and administer
all laws and regulations relative to the conduct of an election.
Accordingly, the Court finds no merit to petitioner's claim 57 of denial of due process
because even though the special circumstance extant herein calls for the outright
cancellation of his CoC in the exercise of the COMELEC's administrative function, it
even allowed him to submit his Verified Answer cum Memorandum to explain his
side, and to file a motion for reconsideration from its resolution.
III. Petitioner's re-election as Punong Barangav  of Brgy. Pulung Maragul in the
2013 Barangay Elections cannot operate as a condonation of his alleged
misconduct.
In Carpio Morales,  the Court abandoned the "condonation doctrine," explaining that
"[e]lection is not a mode of condoning an administrative offense, and there is simply
no constitutional or statutory basis in our jurisdiction to support the notion that an
official elected for a different term is fully absolved of any administrative liability
arising from an offense done during a prior term. 58
Although Carpio Morales  clarified that such abandonment should be prospectively
applied59 (thus, treating the condonation doctrine as "good law" when the
COMELEC's petition was commenced on October 29, 2013, and when petitioner filed
his Verified Answer cum  Memorandum invoking the same), the parameters for the
operation of such doctrine simply do not obtain in petitioner's favor.
Prior to Carpio Morales, the Court, in the 1996 case of Reyes v.
COMELEC60  (Reyes), had illumined that the rationale in the Aguinaldo cases61 was
hinged on the expiration of the term of office during which the misconduct was
committed before a decision could be rendered in the administrative case seeking the
candidate's removal. As such, his or her re-election bars removal for said misconduct
since removal cannot extend beyond the term when the misconduct was
committed.62Reyes likewise noted that the Aguinaldo cases involved a misconduct
committed prior to the enactment of the LGC, and there was no existing provision
similar to Section 40 (b), disqualifying a person from running for any elective local
position as a consequence of his removal from office as a result of an administrative
case.63 Thus, it rejected petitioner's invocation of the condonation doctrine, holding
that:
Second. The next question is whether the reelection of petitioner rendered the
administrative charges against him moot and academic. Petitioner invokes the ruling
in Aguinaldo v. COMELEC [(see supra note 31)], in which it was held that a public
official could not be removed for misconduct committed during a prior term and that
his reelection operated as a condonation of the officer's previous misconduct to the
extent of cutting off the right to remove him therefor. But that was because in that
case, before the petition questioning the validity of the administrative decision
removing petitioner could be decided, the term of office during which the
alleged misconduct was committed expired. Removal cannot extend beyond
the term during which the alleged misconduct was committed. If a public
official is not removed before his term of office expires, he can no longer be
removed if he is thereafter reelected for another term. This is the rationale for the
ruling in the two Aguinaldo cases.
The case at bar is the very opposite of those cases. Here, although petitioner Reyes
brought an action to question the decision in the administrative case, the temporary
restraining order issued in the action he brought lapsed, with the result that the
decision was served on petitioner and it thereafter became final on April 3,
1995, because petitioner failed to appeal to the Office of the President. He was
thus validly removed from office and, pursuant to Section 40 (b) of the Local
Government Code, he was disqualified from running for reelection.
It is noteworthy that at the time the Aguinaldo cases were decided there was no
provision similar to Section 40 (b) which disqualifies any person from running for any
elective position on the ground that he has been removed as a result of an
administrative case. The Local Government Code of 1991 x x x could not be given
retroactive effect. x x x.64
x x x x (Emphases supplied; citations omitted)
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In this case, the OMB rulings dismissing petitioner for Grave Misconduct had already
attained finality on May 28, 2010, which date was even prior to his first election as
Punong Barangay of Brgy. Pulung Maragul in the October 2010 Barangay Elections.
As above-stated, "[t]he penalty of dismissal [from service] shall carry with it that of
cancellation of eligibility, forfeiture of retirement benefits, and the perpetual
disqualification for re-employment in the government service, unless otherwise
provided in the decision."65 Although the principal penalty of dismissal appears to
have not been effectively implemented (since petitioner was even able to run and win
for two [2] consecutive elections), the corresponding accessory penalty of perpetual
disqualification from holding public office had already rendered him ineligible to run
for any elective local position. Bearing the same sense as its criminal law
counterpart,66the term perpetual in this administrative penalty should likewise connote
a lifetime restriction and is not dependent on the term of any principal penalty. It is
undisputable that this accessory penalty sprung from the same final OMB rulings, and
therefore had already attached and consequently, remained effective at the time
petitioner filed his CoC on October 11, 2013 and his later re-election in 2013.
Therefore, petitioner could not have been validly re-elected so as to avail of the
condonation doctrine, unlike in other cases where the condonation doctrine was
successfully invoked67 by virtue of re-elections which overtook and thus, rendered
moot and academic pending administrative cases.
IV. With the cancellation of his CoC, petitioner is deemed to have not been a
candidate in the 2013 Barangay Elections, and all his votes are to be
considered stray votes.
is of no moment. The subsequent disqualification based on a substantive ground that
existed prior to the filing of the certificate of candidacy voids not only the COC but
also the proclamation.74 (Emphasis supplied)
In light of the cancellation of petitioner's CoC due to ineligibility existing at the time of
filing, he was never a valid candidate for the position of Punong Barangay of Brgy.
Pulung Maragul in the 2013 Barangay Elections, and the votes cast for him are
considered stray votes. Thus, the qualified candidate for the said post who received
the highest number of valid votes shall be proclaimed the winner. 75
It is likewise imperative for the eligible candidate who garnered the highest number of
votes to assume the office. In Svetlana P. Jalosjos v. COMELEC,76 the Court
explained:
There is another more compelling reason why the eligible candidate who garnered
the highest number of votes must assume the office. The ineligible candidate who
was proclaimed and who already assumed office is a de facto  officer by virtue of the
ineligibility.
The rule on succession in Section 44 of the Local Government Code cannot apply in
instances when a de facto officer is ousted from office and the de jure  officer takes
over. The ouster of a de facto officer cannot create a permanent vacancy as
contemplated in the Local Government Code. There is no vacancy to speak of as
the de jure officer, the rightful winner in the elections, has the legal right to assume
the position.77

WHEREFORE, the petition is DISMISSED. The Resolutions dated April 11, 2016 and

A person whose CoC had been cancelled is deemed to have not been a candidate at
August 31, 2016 of respondent the Commission on Elections in SPA No. 13-436
all because his CoC is considered void ab initio, and thus, cannot give rise to a valid
(BRGY) (MP) are hereby AFFIRMED.Petitioner Joseph C. Dimapilis is ORDERED to
candidacy and necessarily to valid votes.68 The cancellation of the CoC essentially
cease and desist from discharging the functions of the Punong Barangay of Barangay
renders the votes cast for him or her as stray votes, 69and are not considered in
Pulung Maragul, Angeles City.
determining the winner of an election.70 This would necessarily invalidate his
proclamation71 and entitle the qualified candidate receiving the highest number of
SO ORDERED.
votes to the position.72 Apropos is the Court's ruling in Maquiling v. COMELEC,73 to
wit:

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

x x x x

x x x The second-placer in the vote count is actually the first-placer among the
qualified candidates.

That the disqualified candidate has already been proclaimed and has assumed office

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EN BANC
G.R. No. 181613               November 25, 2009
ROSALINDA A. PENERA, Petitioner, 
vs.
COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, Respondents.
RESOLUTION
CARPIO, J.:
We grant Rosalinda A. Penera’s (Penera) motion for reconsideration of this Court’s
Decision of 11 September 2009 (Decision).
The assailed Decision dismissed Penera’s petition and affirmed the Resolution dated
30 July 2008 of the COMELEC En Banc as well as the Resolution dated 24 July 2007
of the COMELEC Second Division. The Decision disqualified Penera from running for
the office of Mayor in Sta. Monica, Surigao del Norte and declared that the Vice-
Mayor should succeed Penera.
In support of her motion for reconsideration, Penera submits the following arguments:
1. Penera was not yet a candidate at the time of the incident under Section
11 of RA 8436 as amended by Section 13 of RA 9369.
2. The petition for disqualification failed to submit convincing and substantial
evidence against Penera for violation of Section 80 of the Omnibus Election
Code.
3. Penera never admitted the allegations of the petition for disqualification
and has consistently disputed the charge of premature campaigning.
4. The admission that Penera participated in a motorcade is not the same as
admitting she engaged in premature election campaigning.
Section 79(a) of the Omnibus Election Code defines a "candidate" as "any person
aspiring for or seeking an elective public office, who has filed a certificate of
candidacy x x x." The second sentence, third paragraph, Section 15 of RA 8436, as
amended by Section 13 of RA 9369, provides that "[a]ny person who files his
certificate of candidacy within [the period for filing] shall only be considered as a
candidate at the start of the campaign period for which he filed his certificate of
candidacy." The immediately succeeding proviso in the same third paragraph states
that "unlawful acts or omissions applicable to a candidate shall take effect only upon
the start of the aforesaid campaign period." These two provisions determine the
resolution of this case.
The Decision states that "[w]hen the campaign period starts and [the person who filed
his certificate of candidacy] proceeds with his/her candidacy, his/her intent turning into
actuality, we can already consider his/her acts, after the filing of his/her COC and
prior to the campaign period, as the promotion of his/her election as a candidate,
hence, constituting premature campaigning, for which he/she may be disqualified."1
Under the Decision, a candidate may already be liable for premature campaigning
after the filing of the certificate of candidacy but even before the start of the campaign
period. From the filing of the certificate of candidacy, even long before the start of the
campaign period, the Decision considers the partisan political acts of a person so
filing a certificate of candidacy "as the promotion of his/her election as a candidate."
Thus, such person can be disqualified for premature campaigning for acts done
before the start of the campaign period. In short, the Decision considers a person who
files a certificate of candidacy already a "candidate" even before the start of the
campaign period. lawphil
The assailed Decision is contrary to the clear intent and letter of the law.
The Decision reverses Lanot v. COMELEC, 2 which held that a person who files a
certificate of candidacy is not a candidate until the start of the campaign period.
In Lanot, this Court explained:
Thus, the essential elements for violation of Section 80 of the Omnibus Election Code
are: (1) a person engages in an election campaign or partisan political activity; (2) the
act is designed to promote the election or defeat of a particular candidate or
candidates; (3) the act is done outside the campaign period.
The second element requires the existence of a "candidate." Under Section 79(a), a
candidate is one who "has filed a certificate of candidacy" to an elective public office.
Unless one has filed his certificate of candidacy, he is not a "candidate." The third
element requires that the campaign period has not started when the election
campaign or partisan political activity is committed.
Assuming that all candidates to a public office file their certificates of candidacy on the
last day, which under Section 75 of the Omnibus Election Code is the day before the
start of the campaign period, then no one can be prosecuted for violation of Section
80 for acts done prior to such last day. Before such last day, there is no "particular
candidate or candidates" to campaign for or against. On the day immediately after the
last day of filing, the campaign period starts and Section 80 ceases to apply since
Section 80 covers only acts done "outside" the campaign period.
Thus, if all candidates file their certificates of candidacy on the last day, Section 80
may only apply to acts done on such last day, which is before the start of the
campaign period and after at least one candidate has filed his certificate of candidacy.
This is perhaps the reason why those running for elective public office usually file their
certificates of candidacy on the last day or close to the last day.
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There is no dispute that Eusebio’s acts of election campaigning or partisan political
activities were committed outside of the campaign period. The only question is
whether Eusebio, who filed his certificate of candidacy on 29 December 2003, was a
"candidate" when he committed those acts before the start of the campaign period on
24 March 2004.
Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of
certificates of candidacy to 120 days before election day. Thus, the original deadline
was moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The crucial
question is: did this change in the deadline for filing the certificate of candidacy make
one who filed his certificate of candidacy before 2 January 2004 immediately liable for
violation of Section 80 if he engaged in election campaign or partisan political
activities prior to the start of the campaign period on 24 March 2004?
Section 11 of RA 8436 provides:
SECTION 11. Official Ballot. – The Commission shall prescribe the size and form of
the official ballot which shall contain the titles of the positions to be filled and/or the
propositions to be voted upon in an initiative, referendum or plebiscite. Under each
position, the names of candidates shall be arranged alphabetically by surname and
uniformly printed using the same type size. A fixed space where the chairman of the
Board of Election Inspectors shall affix his/her signature to authenticate the official
ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of candidacy/petition for
registration/ manifestation to participate in the election shall not be later than one
hundred twenty (120) days before the elections: Provided, That, any elective official,
whether national or local, running for any office other than the one which he/she is
holding in a permanent capacity, except for president and vice-president, shall be
deemed resigned only upon the start of the campaign period corresponding to the
position for which he/she is running: Provided, further, That, unlawful acts or
omissions applicable to a candidate shall take effect upon the start of the aforesaid
campaign period: Provided, finally, That, for purposes of the May 11, 1998 elections,
the deadline for filing of the certificate of candidacy for the positions of President,
Vice-President, Senators and candidates under the party-list system as well as
petitions for registration and/or manifestation to participate in the party-list system
shall be on February 9, 1998 while the deadline for the filing of certificate of
candidacy for other positions shall be on March 27, 1998.
The official ballots shall be printed by the National Printing Office and/or the Bangko
Sentral ng Pilipinas at the price comparable with that of private printers under proper
security measures which the Commission shall adopt. The Commission may contract
the services of private printers upon certification by the National Printing
Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements.
Accredited political parties and deputized citizens’ arms of the Commission may
assign watchers in the printing, storage and distribution of official ballots.
To prevent the use of fake ballots, the Commission through the Committee shall
ensure that the serial number on the ballot stub shall be printed in magnetic ink that
shall be easily detectable by inexpensive hardware and shall be impossible to
reproduce on a photocopying machine, and that identification marks, magnetic strips,
bar codes and other technical and security markings, are provided on the ballot.
The official ballots shall be printed and distributed to each city/municipality at the rate
of one (1) ballot for every registered voter with a provision of additional four (4) ballots
per precinct.
Under Section 11 of RA 8436, the only purpose for the early filing of certificates of
candidacy is to give ample time for the printing of official ballots. This is clear from the
following deliberations of the Bicameral Conference Committee:
SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the
same[,] uniform for local and national officials?
THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the
present periods.
SENATOR GONZALES. But the moment one files a certificate of candidacy, he’s
already a candidate, and there are many prohibited acts on the part of candidate.
THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .
SENATOR GONZALES. And you cannot say that the campaign period has not yet
began (sic).
THE CHAIRMAN (REP. TANJUATCO). If we don’t provide that the filing of the
certificate will not bring about one’s being a candidate.
SENATOR GONZALES. If that’s a fact, the law cannot change a fact.
THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the
certificate of candidacy will not result in that official vacating his position, we can also
provide that insofar he is concerned, election period or his being a candidate will not
yet commence. Because here, the reason why we are doing an early filing is to afford
enough time to prepare this machine readable ballots.
So, with the manifestations from the Commission on Elections, Mr. Chairman, the
House Panel will withdraw its proposal and will agree to the 120-day period provided
in the Senate version.
THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.
xxxx
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 Laws on Suffrage
SENATOR GONZALES. How about prohibition against campaigning or doing partisan
acts which apply immediately upon being a candidate?
THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is
just to afford the Comelec enough time to print the ballots, this provision does not
intend to change the campaign periods as presently, or rather election periods as
presently fixed by existing law.
THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other
prohibition.
THE CHAIRMAN (REP. TANJUATCO). That’s right.
THE ACTING CHAIRMAN (SEN. FERNAN). Okay.
THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no
conflict anymore because we are talking about the 120-day period before election as
the last day of filing a certificate of candidacy, election period starts 120 days also. So
that is election period already. But he will still not be considered as a candidate.
Thus, because of the early deadline of 2 January 2004 for purposes of printing of
official ballots, Eusebio filed his certificate of candidacy on 29 December 2003.
Congress, however, never intended the filing of a certificate of candidacy before 2
January 2004 to make the person filing to become immediately a "candidate" for
purposes other than the printing of ballots. This legislative intent prevents the
immediate application of Section 80 of the Omnibus Election Code to those filing to
meet the early deadline. The clear intention of Congress was to preserve the "election
periods as x x x fixed by existing law" prior to RA 8436 and that one who files to meet
the early deadline "will still not be considered as a candidate." 3 (Emphasis in the
original)
Lanot was decided on the ground that one who files a certificate of candidacy is not a
candidate until the start of the campaign period. This ground was based on the
deliberations of the legislators who explained the intent of the provisions of RA 8436,
which laid the legal framework for an automated election system. There was no
express provision in the original RA 8436 stating that one who files a certificate of
candidacy is not a candidate until the start of the campaign period.
When Congress amended RA 8436, Congress decided to expressly incorporate the
Lanot doctrine into law, realizing that Lanot merely relied on the deliberations of
Congress in holding that —
The clear intention of Congress was to preserve the "election periods as x x x fixed by
existing law" prior to RA 8436 and that one who files to meet the early deadline "will
still not be considered as a candidate."4 (Emphasis supplied)
Congress wanted to insure that no person filing a certificate of candidacy under the
early deadline required by the automated election system would be disqualified or
penalized for any partisan political act done before the start of the campaign period.
Thus, in enacting RA 9369, Congress expressly wrote the Lanot doctrine into the
second sentence, third paragraph of the amended Section 15 of RA 8436, thus:
xxx
For this purpose, the Commission shall set the deadline for the filing of certificate of
candidacy/petition for registration/manifestation to participate in the election. Any
person who files his certificate of candidacy within this period shall only be considered
as a candidate at the start of the campaign period for which he filed his certificate of
candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall
take effect only upon the start of the aforesaid campaign period: Provided, finally,
That any person holding a public appointive office or position, including active
members of the armed forces, and officers and employees in government-owned or
-controlled corporations, shall be considered ipso facto resigned from his/her office
and must vacate the same at the start of the day of the filing of his/her certificate of
candidacy. (Boldfacing and underlining supplied)
Congress elevated the Lanot doctrine into a statute by specifically inserting it as the
second sentence of the third paragraph of the amended Section 15 of RA 8436,
which cannot be annulled by this Court except on the sole ground of its
unconstitutionality. The Decision cannot reverse Lanot without repealing this second
sentence, because to reverse Lanot would mean repealing this second sentence.
The assailed Decision, however, in reversing Lanot does not claim that this second
sentence or any portion of Section 15 of RA 8436, as amended by RA 9369, is
unconstitutional. In fact, the Decision considers the entire Section 15 good law. Thus,
the Decision is self-contradictory — reversing Lanot but maintaining the
constitutionality of the second sentence, which embodies the Lanot doctrine. In so
doing, the Decision is irreconcilably in conflict with the clear intent and letter of the
second sentence, third paragraph, Section 15 of RA 8436, as amended by RA 9369.
In enacting RA 9369, Congress even further clarified the first proviso in the third
paragraph of Section 15 of RA 8436. The original provision in RA 8436 states —
x x x Provided, further, That, unlawful acts or omissions applicable to a candidate
shall take effect upon the start of the aforesaid campaign period, x x x.
In RA 9369, Congress inserted the word "only" so that the first proviso now reads —
x x x Provided, That, unlawful acts or omissions applicable to a candidate shall take
effect only upon the start of the aforesaid campaign period x x x. (Emphasis supplied)
Thus, Congress not only reiterated but also strengthened its mandatory directive that
election offenses can be committed by a candidate "only" upon the start of the
campaign period. This clearly means that before the start of the campaign period,
such election offenses cannot be so committed.
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 Laws on Suffrage
When the applicable provisions of RA 8436, as amended by RA 9369, are read
together, these provisions of law do not consider Penera a candidate for purposes
other than the printing of ballots, until the start of the campaign period. There is
absolutely no room for any other interpretation.
We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio:
x x x The definition of a "candidate" in Section 79(a) of the Omnibus Election Code
should be read together with the amended Section 15 of RA 8436. A "‘candidate’
refers to any person aspiring for or seeking an elective public office, who has filed a
certificate of candidacy by himself or through an accredited political party,
aggroupment or coalition of parties." However, it is no longer enough to merely file a
certificate of candidacy for a person to be considered a candidate because "any
person who files his certificate of candidacy within [the filing] period shall only be
considered a candidate at the start of the campaign period for which he filed his
certificate of candidacy." Any person may thus file a certificate of candidacy on any
day within the prescribed period for filing a certificate of candidacy yet that person
shall be considered a candidate, for purposes of determining one’s possible violations
of election laws, only during the campaign period. Indeed, there is no "election
campaign" or "partisan political activity" designed to promote the election or defeat of
a particular candidate or candidates to public office simply because there is no
"candidate" to speak of prior to the start of the campaign period. Therefore, despite
the filing of her certificate of candidacy, the law does not consider Penera a candidate
at the time of the questioned motorcade which was conducted a day before the start
of the campaign period. x x x
The campaign period for local officials began on 30 March 2007 and ended on 12
May 2007. Penera filed her certificate of candidacy on 29 March 2007. Penera was
thus a candidate on 29 March 2009 only for purposes of printing the ballots. On 29
March 2007, the law still did not consider Penera a candidate for purposes other than
the printing of ballots. Acts committed by Penera prior to 30 March 2007, the date
when she became a "candidate," even if constituting election campaigning or partisan
political activities, are not punishable under Section 80 of the Omnibus Election Code.
Such acts are within the realm of a citizen’s protected freedom of expression. Acts
committed by Penera within the campaign period are not covered by Section 80 as
Section 80 punishes only acts outside the campaign period.5
The assailed Decision gives a specious reason in explaining away the first proviso in
the third paragraph, the amended Section 15 of RA 8436 that election offenses
applicable to candidates take effect only upon the start of the campaign period. The
Decision states that:
x x x [T]he line in Section 15 of Republic Act No. 8436, as amended, which provides
that "any unlawful act or omission applicable to a candidate shall take effect only
upon the start of the campaign period," does not mean that the acts constituting
premature campaigning can only be committed, for which the offender may be
disqualified, during the campaign period. Contrary to the pronouncement in the
dissent, nowhere in said proviso was it stated that campaigning before the start of the
campaign period is lawful, such that the offender may freely carry out the same with
impunity.
As previously established, a person, after filing his/her COC but prior to his/her
becoming a candidate (thus, prior to the start of the campaign period), can already
commit the acts described under Section 79(b) of the Omnibus Election Code as
election campaign or partisan political activity, However, only after said person
officially becomes a candidate, at the beginning of the campaign period, can said acts
be given effect as premature campaigning under Section 80 of the Omnibus Election
Code. Only after said person officially becomes a candidate, at the start of the
campaign period, can his/her disqualification be sought for acts constituting
premature campaigning. Obviously, it is only at the start of the campaign period, when
the person officially becomes a candidate, that the undue and iniquitous advantages
of his/her prior acts, constituting premature campaigning, shall accrue to his/her
benefit. Compared to the other candidates who are only about to begin their election
campaign, a candidate who had previously engaged in premature campaigning
already enjoys an unfair headstart in promoting his/her candidacy. 6(Emphasis
supplied)
It is a basic principle of law that any act is lawful unless expressly declared unlawful
by law. This is specially true to expression or speech, which Congress cannot outlaw
except on very narrow grounds involving clear, present and imminent danger to the
State. The mere fact that the law does not declare an act unlawful ipso facto means
that the act is lawful. Thus, there is no need for Congress to declare in Section 15 of
RA 8436, as amended by RA 9369, that political partisan activities before the start of
the campaign period are lawful. It is sufficient for Congress to state that "any unlawful
act or omission applicable to a candidate shall take effect only upon the start of the
campaign period." The only inescapable and logical result is that the same acts, if
done before the start of the campaign period, are lawful.
In layman’s language, this means that a candidate is liable for an election offense
only for acts done during the campaign period, not before. The law is clear as daylight
— any election offense that may be committed by a candidate under any election law
cannot be committed before the start of the campaign period. In ruling that Penera is
liable for premature campaigning for partisan political acts before the start of the
campaigning, the assailed Decision ignores the clear and express provision of the
law.
The Decision rationalizes that a candidate who commits premature campaigning can
be disqualified or prosecuted only after the start of the campaign period. This is not
what the law says. What the law says is "any unlawful act or omission applicable to a
candidate shall take effect only upon the start of the campaign period." The plain
meaning of this provision is that the effective date when partisan political acts become
unlawful as to a candidate is when the campaign period starts. Before the start of the
campaign period, the same partisan political acts are lawful.
The law does not state, as the assailed Decision asserts, that partisan political acts
done by a candidate before the campaign period are unlawful, but may be prosecuted
only upon the start of the campaign period. Neither does the law state that partisan
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 Laws on Suffrage
political acts done by a candidate before the campaign period are temporarily lawful,
but becomes unlawful upon the start of the campaign period. This is clearly not the
language of the law. Besides, such a law as envisioned in the Decision, which defines
a criminal act and curtails freedom of expression and speech, would be void for
vagueness.

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

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

WHEREFORE, we GRANT petitioner Rosalinda A. Penera’s Motion for

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

SO ORDERED.

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EN BANC Businessworld sponsored the second phase of presidential debate in the Visayas on
20 March 2016; ABS-CBN and Manila Bulletin will sponsor the presidential debate to
G.R. No. 222702, April 05, 2016 be held in Luzon on 24 April 2016; and the lone vice-presidential debate will be
sponsored by CNN, Business Mirror, and petitioner on 10 April 2016. Petitioner
alleged that the draft MOA permitted online streaming, provided proper attribution is
RAPPLER, INC., Petitioner, v. ANDRES D. BAUTISTA, Respondent. given the Lead Network.

RESOLUTION On 12 January 2016, petitioner was informed that the MOA signing was scheduled
the following day. Upon petitioner's request, the draft MOA was emailed to petitioner
CARPIO, J.: on the evening of 12 January 2016. Petitioner communicated with respondent its
concerns regarding certain provisions of the MOA particularly regarding online
streaming and the imposition of a maximum limit of two minutes of debate excerpts
Petitioner Rappler, Inc. (petitioner) filed a petition for certiorari and prohibition against for news reporting. Respondent assured petitioner that its concerns will be addressed
Andres D. Bautista (respondent), in his capacity as Chairman of the Commission on afterwards, but it has to sign the MOA because time was of the essence. On 13
Elections (COMELEC). The petition seeks to nullify Part VI (C), paragraph 19 and January 2016, petitioner, along with other media networks and entities, executed the
Part VI (D), paragraph 20 of the Memorandum of Agreement (MOA) on the 2016 MOA with the KBP and the COMELEC for the conduct of the three presidential
presidential and vice-presidential debates, for being executed without or in excess of debates and one vice-presidential debate. Petitioner alleged that it made several
jurisdiction or with grave abuse of discretion amounting to lack or excess of communications with respondent and the COMELEC Commissioners regarding its
jurisdiction and for violating the fundamental rights of petitioner protected under the concerns on some of the MOA provisions, but petitioner received no response.
Constitution. The MOA, signed on 13 January 2016, was executed by the COMELEC Hence, this petition.
through its Chairman, respondent Bautista, and the Kapisanan ng mga Brodkaster ng
Pilipinas (KBP), and the various media networks, namely: ABS-CBN Corporation, In this petition for certiorari and prohibition, petitioner prays for the Court to render
GMA Network, Inc., Nine Media Corporation, TV5 Network, Inc., Philstar Daily, Inc., judgment:
Philippine Daily Inquirer, Inc., Manila Bulletin Publishing Corporation, Philippine
Business Daily Mirror Publishing, Inc., and petitioner. Under the MOA, the KBP was a. Declaring null and void, for being unconstitutional, pertinent parts of the
designated as Debate Coordinator while ABS-CBN, GMA, Nine Media, and TV5, Memorandum of Agreement that violate the rights of the Petitioner, specifically Part VI
together with their respective print media partners were designated as Lead (C), paragraph 19 and Part VI (D), paragraph 20 [of the MOA];
Networks.
b. Prohibiting the Respondent from implementing specifically Part VI (C), paragraph
Petitioner alleged that on 21 September 2015, respondent called for a meeting with 19 and Part VI (D), paragraph 20 of the MOA;
various media outlets to discuss the "PiliPinas 2016 Debates," for presidential and
vice-presidential candidates, which the COMELEC was organizing.1 Respondent c. Pending resolution of this case, issuing a Preliminary Injunction enjoining the
showed a presentation explaining the framework of the debates, in which there will be Respondent from implementing Part VI (C), paragraph 19 and Part VI (D), paragraph
three presidential debates and one vice presidential debate. Respondent proposed 20 of the MOA; and
that petitioner and Google, Inc. be in charge of online and social media engagement.
Respondent announced during the meeting that KBP will coordinate with all media d. Pending resolution of this case, issuing a Preliminary Mandatory Injunction
entities regarding the organization and conduct of the debates. requiring the Respondent to ensure an unimpaired and equal access to all mass
media, online or traditional, to all the Debates.2
On 22 September 2015, petitioner sent a proposed draft for broadcast pool guidelines
to COMELEC and the KBP. A broadcast pool has a common audio and video feed of
the debates, and the cost will be apportioned among those needing access to the Part VI (C), paragraph 19 and Part VI (D), paragraph 20 of the MOA read:
same. KBP informed petitioner that the proposal will be discussed in the next
meeting. VI
ROLES AND RESPONSIBILITIES OF THE LEAD NETWORKS
On 19 October 2015, another meeting was held at the COMELEC office to discuss a
draft MOA on the debates. In the draft, petitioner and Google's participation were x x x x
dropped in favor of the online outlets owned by the Lead Networks. After the meeting,
the representatives of the Lead Networks drew lots to determine who will host each C. ONLINE STREAMING
leg of the debates. GMA and its partner Philippine Daily Inquirer sponsored the first
presidential debate in Mindanao on 21 February 2016; TV5, Philippine Star, and x x x x

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 Laws on Suffrage
19. Subject to copyright conditions or separate negotiations with the Lead Networks,
allow the debates they have produced to be shown or streamed on other websites;
D. NEWS REPORTING AND FAIR USE
20. Allow a maximum of two minutes of excerpt from the debates they have produced
to be used for news reporting or fair use by other media or entities as allowed by the
copyright law: Provided, that the use of excerpts longer than two minutes shall be
subject to the consent of the Lead Network concerned;3
Respondent argues that the petition should be dismissed for its procedural defects. In
several cases, this Court has acted liberally and set aside procedural lapses in cases
involving transcendental issues of public interest,4 especially when time constraint is a
factor to be considered, as in this case. As held in GMA Network, Inc. v. Commission
on Elections:5
Respondent claims that  certiorari  and prohibition are not the proper remedies that
petitioners have taken to question the assailed Resolution of the COMELEC.
Technically, respondent may have a point. However, considering the very important
and pivotal issues raised, and the limited time, such technicality should not deter the
Court from having to make the final and definitive pronouncement that everyone else
depends for enlightenment and guidance. "[T]his Court has in the past seen fit to step
in and resolve petitions despite their being the subject of an improper remedy, in view
of the public importance of the issues raised therein.6
The urgency to resolve this case is apparent considering that the televised debates
have already started and only two of the scheduled four national debates remain to
be staged.7 And considering the importance of the debates in informing the electorate
of the positions of the presidential and vice-presidential candidates on vital issues
affecting the nation, this case falls under the exception laid down in GMA Network,
Inc. v. Commission on Elections.
Petitioner is a signatory to the MOA. In fact, the sole vice-presidential debate, to be
held in Manila on 10 April 2016, will be sponsored by CNN Philippines (owned and
operated by Nine Media Corporation) and its partners Business Mirror and petitioner.
Petitioner, however, is alleging that it is being discriminated particularly as regards the
MOA provisions on live audio broadcast via online streaming. Petitioner argues that
the MOA grants radio stations the right to simultaneously broadcast live the audio of
the debates, even if the radio stations are not obliged to perform any obligation under
the MOA. Yet, this right to broadcast by live streaming online the audio of the debates
is denied petitioner and other online media entities, which also have the capacity to
live stream the audio of the debates. Petitioner insists that it signed the MOA
believing in good faith the issues it has raised will be resolved by the COMELEC.
The provisions on Live Broadcast and Online Streaming under the MOA read:
VI  supplied)
ROLES AND RESPONSIBILITIES OF THE LEAD NETWORKS
x x x x
B1. LIVE BROADCAST
10. Broadcast the debates produced by the Lead Networks in their respective
television stations and other news media platforms;
11. Provide a live feed of the debate to other radio stations, other than those of the
Lead Network's, for simultaneous broadcast;
12. Provide a live feed of the debates produced by them to radio stations not
belonging to any of the Lead Networks for simultaneous broadcast;
x x x x
C. ONLINE STREAMING
17. Live broadcast the debates produced by the Lead Networks on their respective
web sites and social media sites for free viewing by the public;
18. Maintain a copy of the debate produced by the Lead Network on its on-line site(s)
for free viewing by the public during the period of elections or longer;
19. Subject to copyright conditions or separate negotiations with the Lead
Networks, allow the debates they have produced to be shown or streamed on
other websites;8 (Boldfacing and underscoring supplied)
Petitioner's demand to exercise the right to live stream the debates is a contractual
right of petitioner under the MOA. Under Part VI (C), paragraph 19 of the MOA, the
Lead Networks are expressly mandated to "allow the debates they have produced
to be shown or streamed on other websites," but "subject to copyright
conditions or separate negotiations with the Lead Networks." The use of the
word "or" means that compliance with the "copyright conditions" is sufficient for
petitioner to exercise its right to live stream the debates in its website.
The "copyright conditions" refer to the limitations on copyright as provided under
Section 184.1(c) of the Intellectual Property Code (IPC), thus:
SEC. 184. Limitations on Copyright. - 184.1 Notwithstanding the provisions of
Chapter V, the following acts shall not constitute infringement of copyright:
x x x x
(c) The reproduction or communication to the public by mass media of articles
on current political, social, economic, scientific or religious topic, lectures, addresses
and other works of the same nature, which are delivered in public if such use is
for information purposes and has not been expressly reserved;  Provided,  That
the source is clearly indicated; (Sec. 11, P.D. No. 49) (Boldfacing and underscoring
Under this provision, the debates fall under "addresses and other works of the
same nature." Thus, the copyright conditions for the debates are: (1) the
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 Laws on Suffrage
reproduction or communication to the public by mass media of the debates is qualifications and track record, platforms and programs, and their answers to
for information purposes; (2) the debates have not been expressly reserved by significant issues of national concern."10 The political nature of the national debates
the Lead Networks (copyright holders); and (3) the source is clearly indicated. and the public's interest in the wide availability of the information for the voters'
education certainly justify allowing the debates to be shown or streamed in other
Condition 1 is complied because the live streaming by petitioner is obviously for websites for wider dissemination, in accordance with the MOA.
information purposes. Condition 2 is also complied because Part VI (C), paragraph 19
of the MOA expressly "allow[s] the debates x x x to be shown or streamed on Therefore, the debates should be allowed to be live streamed on other websites,
other websites," including petitioner's website. This means that the "reproduction or including petitioner's, as expressly mandated in Part VI (C), paragraph 19 of the
communication (of the debates) to the public by mass media x x x has not been MOA. The respondent, as representative of the COMELEC which provides over-all
expressly reserved" or withheld. Condition 3 is complied by clearly indicating and supervision under the MOA, including the power to "resolve issues that may arise
acknowledging that the source of the debates is one or more of the Lead Networks. among the parties involved in the organization of the debates," 11 should be directed
by this Court to implement Part VI (C), paragraph 19 of the MOA, which allows the
Part VI (C), paragraph 19 of the MOA, which expressly allows the debates produced debates to be shown or live streamed unaltered on petitioner's and other websites
by the Lead Networks to be shown or streamed on other websites, clearly means subject to the copyright condition that the source is clearly indicated.chanrobleslaw
that the Lead Networks have not "expressly reserved" or withheld the use of
the debate audio for online streaming. In short, the MOA expressly allows the live WHEREFORE, we PARTIALLY GRANT the petition. Respondent Andres D.
streaming of the debates subject only to compliance with the "copyright conditions." Bautista, as Chairman of the COMELEC, is directed to implement Part VI (C),
Once petitioner complies with the copyright conditions, petitioner can exercise the paragraph 19 of the MOA, which allows the debates to be shown or live streamed
right to live stream the audio of the debates as expressly allowed by the MOA. unaltered on petitioner's and other websites subject to the copyright condition that the
source is clearly indicated. Due to the time constraint, this Resolution is immediately
Under the MOA, the Lead Networks are mandated to promote the debates for executory.
maximum audience.9 The MOA recognizes the public function of the debates and
the need for the widest possible dissemination of the debates. The MOA has SO ORDERED.cralawlawlibrary
not reserved or withheld the reproduction of the debates to the public but has
in fact expressly allowed the reproduction of the debates "subject to copyright
conditions." Thus, petitioner may live stream the debate in its entirety by complying
with the "copyright conditions," including the condition that "the source is clearly
indicated" and that there will be no alteration, which means that the streaming will
include the proprietary graphics used by the Lead Networks. If petitioner opts for a
clean feed without the proprietary graphics used by the Lead Networks, in order for
petitioner to layer its own proprietary graphics and text on the same, then petitioner
will have to negotiate separately with the Lead Networks. Similarly, if petitioner wants
to alter the debate audio by deleting the advertisements, petitioner will also have to
negotiate with the Lead Networks.

Once the conditions imposed under Section 184.1(c) of the IPC are complied with, the
information - in this case the live audio of the debates -now forms part of the public
domain. There is now freedom of the press to report or publicly disseminate the live
audio of the debates. In fact, the MOA recognizes the right of other mass media
entities, not parties to the MOA, to reproduce the debates subject only to the same
copyright conditions. The freedom of the press to report and disseminate the live
audio of the debates, subject to compliance with Section 184.1(c) of the IPC, can no
longer be infringed or subject to prior restraint. Such freedom of the press to report
and disseminate the live audio of the debates is now protected and guaranteed under
Section 4, Article III of the Constitution, which provides that "[N]o law shall be passed
abridging the freedom x x x of the press."

The presidential and vice-presidential debates are held primarily for the benefit of the
electorate to assist the electorate in making informed choices on election day.
Through the conduct of the national debates among presidential and vice-presidential
candidates, the electorate will have the "opportunity to be informed of the candidates'

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 Laws on Suffrage
En Banc
March 28, 2017
G.R. No. 227155
JOEL T. MATURAN, Petitioner  November 2015.
vs
COMMISSION ON ELECTIONS AND ALLAN PATIÑO, Respondents
DECISION
BERSAMIN, J.:
The penalty of perpetual disqualification to hold public office may be properly imposed
on a candidate for public office who repeatedly fails to submit his Statement of
Contributions and Expenditures (SOCE) pursuant to Section 14 of Republic Act No.
7166.1 The penalty does not amount to the cruel, degrading and inhuman punishment
proscribed by the Bill of Rights.
The Case
Assailed by petition for certiorari are the resolutions dated June 6, 20162 and
September 8, 20163 promulgated by the Commission on Elections (COMELEC)
respectively imposing upon the petitioner the penalty of perpetual disqualification from
holding public office due to his repeated failure to submit his SOCE pursuant to
Section 14 of R.A. No. 7166, and denying his motion for reconsideration.
Antecedents
On October 16, 2015, the petitioner filed his certificate of candidacy for the position of
Provincial Governor of Basilan to be contested in the 2016 National and Local
Elections. Allan Patiño, claiming to be a registered voter of Basilan, filed a petition for
the disqualification of the petitioner on the ground that based on the list issued by the
COMELEC Campaign Finance Officer the latter had failed to file his SOCE
corresponding to the 2010 and 2013 elections.4
The petitioner opposed the petition for his disqualification by arguing that the petition
had been rendered moot on account of his withdrawal from the mayoralty race during
the 2013 elections; and that, consequently, he could only be held accountable for the
failure to file his SOCE corresponding to the 2010 elections when he ran for Provincial
Governor of Basilan, and for which he had already paid a fine of ₱l5,000.00.5
On June 6, 2016, the COMELEC First Division issued the first assailed resolution
finding merit in the petition for his disqualification, and declaring the petitioner
disqualified to hold public office, to wit:
In this case, Patiño alleged in his petition that Maturan violated Section 14 of R.A. No.
7166 because he failed to file his SOCE for the 2010 and 2013 elections based on
the List of Candidates Subject to Perpetual Disqualification posted by the
Commission's Campaign Finance Officer ("CFO"). Upon verification from the CFO,
Maturan in fact does not have a SOCE on record for the 2010 elections. Accordingly,
per COMELEC Resolution No. 15-0495, an administrative fine in the amount of Php
15,000.00 was imposed upon him. Maturan admitted that he paid said fine on 23
Likewise, for his 2013 candidacy, Maturan does not have a SOCE on record with the
CFO. Maturan argued that by virtue of the withdrawal of his candidacy on 12 May
2013, just a day before the elections, he is not required to file his SOCE.
Again, in the case of Pilar vs. COMELEC,  the Supreme Court elucidated that:
Petitioner argues that he cannot be held liable for failure to file a statement of
contributions and expenditures because he was a 'non-candidate,' having withdrawn
his certificate of candidacy three days after its filing. Petitioner posits that "it is ... clear
from the law that the candidate must have entered the political contest, and should
have either won or lost." (citation omitted)
Petitioner's argument is without merit.
Section 14 of R.A. No. 7166 states that "every candidate" has the obligation to file his
statement of contributions and expenditures.
xxxx
In the case at bench, as the law does not make any distinction or qualification as to
whether the candidate pursued his candidacy or withdrew the same, the term "every
candidate" must be deemed to refer not only to a candidate who pursued his
campaign, but also to one who withdrew his candidacy.
The COMELEC, the body tasked with the enforcement and administration of all laws
and regulations relative to the conduct of an election, plebiscite, initiative, referendum,
and recall (citation omitted), issued Resolution No. 2348 in implementation or
interpretation of the provisions of Republic Act No. 7166 on election contributions and
expenditures. Section 13 of Resolution No. 23488 categorically refers to "all
candidates who filed their certificates of candidacy."
Furthermore, Section 14 of the law uses the word "shall." As a general rule, the use of
the word "shall" in a statute implies that the statute is mandatory, and imposes a duty
which may be enforced, particularly if public policy is in favor of this meaning or where
public interest is involved. We apply the general rule. (citations omitted)
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 Laws on Suffrage
Accordingly, the Commission (First Division) finds that Maturan likewise failed to file
his SOCE within thirty (30) days after the 13 May 2013 elections for which he filed his
candidacy for Mayor of Ungkaya Pukan, Basilan. Clearly, Maturan did not file his
SOCE twice - in 2010 and 2013 elections - in violation of Section 14 of R.A. No. 7166.
WHEREFORE, premises considered, the Commission (First
Division)  RESOLVED, as it hereby RESOLVES, to GRANT the instant
petition, JOEL T. MATURAN is hereby declared PERPETUALLY DISQUALIFIED TO
HOLD PUBLIC OFFICE.
xxxx
SO ORDERED.6
Aggrieved, the petitioner appealed to the COMELEC En Banc,  which denied his
appeal on September 8, 2016.
Issues
The petitioner submits the following issues for our consideration:
I Except candidates for elective barangay office, failure to file the statements or reports
WHETHER OR NOT THE PUBLIC RESPONDENT HONORABLE COMMISSION
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION WHEN IT DECLARED THAT PETITIONER MA TURAN
IS PERPETUALLY DISQUALIFIED TO HOLD PUBLIC OFFICE
II
WHETHER OR NOT THE PUBLIC RESPONDENT HONORABLE COMMISSION
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION WHEN IT FAILED TO DISMISS THE PETITION FOR
DISQUALIFICATION FOR BEING MOOT AND ACADEMIC
III
WHETHER OR NOT THE IMPOSITION OF PERPETUAL DISQUALIFICATION TO
HOLD PUBLIC OFFICE FOR THOSE WHO FAILED TO FILE THEIR SOCE MORE
THAN ONCE IS GRAVELY EXCESSIVE AND DISPROPORTIONATE 7
Ruling of the Court
We dismiss the petition for certiorari  for its lack of merit.
The Court, not being a trier of facts, only steps in when there is a showing that the
COMELEC committed grave abuse of discretion amounting to lack or excess of
jurisdiction.8 As long as there is a case or controversy involving demandable rights
and an exercise of power allegedly committed in grave abuse of discretion, the Court
is duty-bound to determine whether that power was exercised capriciously, arbitrarily,
whimsically, or without basis under the law or the Constitution. Should the Court find
the COMELEC to have deviated from its mandate, it shall also be our duty to redirect
the COMELEC's course along constitutional channels.9
The petitioner's allegation of grave abuse of discretion on the part of the COMELEC
for imposing upon him the penalty of perpetual disqualification to hold public office is
hollow. In imposing the penalty, the COMELEC clearly acted within the bounds of its
jurisdiction in view of the clear language of Section 14 of R.A. No. 7166, viz.:
Section 14. Statement of Contributions and Expenditures: Effect of Failure to File
Statement. - Every candidate and treasurer of the political party shall, within thirty
(30) days after the day of the election, file in duplicate with the offices of the
Commission the full, true and itemized statement of all contributions and expenditures
in connection with the election.
xxxx
in connection with electoral contributions and expenditures are required herein shall
constitute an administrative offense for which the offenders shall be liable to pay an
administrative fine ranging from One thousand pesos (₱l,000.00) to Thirty thousand
pesos (₱30,000.00), in the discretion of the Commission.
The fine shall be paid within thirty (30) days from receipt of notice of such failure;
otherwise, it shall be enforceable by a writ of execution issued by the Commission
against the properties of the offender.
xxxx
For the commission of a second or subsequent offense under this section, the
administrative fine shall be from Two thousand pesos (₱2,000.00) to Sixty thousand
pesos (₱60,000.00), in the discretion of the Commission. In addition, the offender
shall be subject to perpetual disqualification to hold public office. (Bold underscoring
is supplied for emphasis)
Nonetheless, the petitioner submits that he only failed to submit his SOCE once, in
2010. He pleads good faith because he thought that he was no longer required to
submit his SOCE for the 2013 elections because of his having withdrawn from the
mayoral race in that year.
His plea of good faith is undeserving of consideration.
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The petitioner should have paid heed to the 1995 ruling in Pilar v. Commission of
Elections,10 which the COMELEC properly cited in its assailed resolution. Based
on Pilar,  every candidate, including one who meanwhile withdraws his candidacy, is
required to file his SOCE by Section 14 of R.A. No. 7166. Accordingly, the petitioner
could not invoke good faith on the basis of his having withdrawn his candidacy a day
before the 2013 elections.
Still, in a final attempt to evade liability, the petitioner describes the penalty of
perpetual disqualification as excessive, harsh and cruel, and, consequently,
unconstitutional pursuant to Section 19(1), Article III of the 1987 Constitution, which
pertinently provides:
Section 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. x x x .
He contends that the failure to file the SOCE is an offense far less grave than the
serious crimes under the Revised Penal Code and the grave offenses under the civil
service laws. Accordingly, equating the non-filing of the SOCE with the latter offenses
is irrational and unwarranted.
The petitioner's contention does not impress.
We have always deferred to the wisdom of Congress in enacting a law. We can only
enforce a statute like R.A. No. 7166 unless there is a clear showing that it
contravenes the Constitution. The petitioner has not demonstrated herein how R.A.
No. 7166 could have transgressed the Constitution. On the contrary, a review of R.A.
No. 7166 convincingly indicates that perpetual disqualification from public office has
been prescribed as a penalty for the repeated failure to file the SOCE and does not
constitute cruel, degrading and inhuman punishment.
We have already settled that the constitutional proscription under the Bill of Rights
extends only to situations of extreme corporeal or psychological punishment that
strips the individual of his humanity. The proscription is aimed more at the form or
character of the punishment rather than at its severity, as the Court has elucidated
in Lim v. People,11 to wit:
Settled is the rule that a punishment authorized by statute is not cruel, degrading or
disproportionate to the nature of the offense unless it is flagrantly and plainly
oppressive and wholly disproportionate to the nature of the offense as to shock the
moral sense of the community. It takes more than merely being harsh, excessive, out
of proportion or severe for a penalty to be obnoxious to the Constitution. Based on
this principle, the Court has consistently overruled contentions of the defense that the
penalty of fine or imprisonment authorized by the statute involved is cruel and
degrading.
In People vs. Tongko, this Court held that the prohibition against cruel and unusual
punishment is generally aimed at the form or character of the punishment rather than
its severity in respect of its duration or amount, and applies to punishments which
never existed in America or which public sentiment regards as cruel or obsolete. This
refers, for instance, to those inflicted at the whipping post or in the pillory, to burning
at the stake, breaking on the wheel, disemboweling and the like. The fact that the
penalty is severe provides insufficient basis to declare a law unconstitutional and
does not, by that circumstance alone, make it cruel and inhuman. (Bold underscoring
is supplied for emphasis)
Moreover, that Congress has deemed fit to impose the penalty of perpetual
disqualification on candidates who repeatedly failed to file their SOCEs cannot be the
subject of judicial inquiry. Congress has the absolute discretion to penalize by law
with perpetual disqualification from holding public office in addition to administrative
fines the seekers of public office who fail more than once to file their SOCEs. Such
penalty is intended to underscore the need to file the SOCE as another means of
ensuring the sanctity of the electoral process.
In certiorari, the petitioner carries the burden of proving not merely reversible error,
but grave abuse of discretion amounting to lack or excess of jurisdiction, on the part
of the public respondent for its issuance of the impugned resolutions. 12 Grave abuse
of discretion  is committed "when there is a capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction, such as where the power is exercised
in an arbitrary or despotic manner by reason of passion or personal hostility, and it
must be so patent and gross as to amount to an evasion of positive duty or to a virtual
refusal to perform the duty enjoined or to act at all in contemplation of law." 13 Alas, not
only did the petitioner fail to discharge his burden, he also succeeded in making it
evident that the COMELEC did not gravely abuse its discretion in imposing on the
petitioner the penalty of perpetual disqualification from holding public office due to his
repeated violation of Section 14 of R.A. No. 7166.
ACCORDINGLY, the Court DISMISSES the petition for certiorari for lack of merit;
and DIRECTS the petitioner to pay the costs of suit.
SO ORDERED.
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EN BANC MCOCs was conducted by the SPBOC-Maguindanao from 25 to 26 June 2007 at

Shariff Aguak, Maguindanao. Although PES Bedol and the Chairpersons of the
G.R. No. 178413             March 13, 2008 Municipal Boards of Canvassers of Maguindanao (MBOCs-Maguindanao) were
present during the canvass proceedings before the SPBOC-Maguindanao, the
candidates’ legal counsels were not allowed to ask them any questions. Due to the
AQUILINO L. PIMENTEL III, petitioner,  consistent denial by the SPBOC-Maguindanao of the repeated and persistent motions
vs. made by Pimentel’s counsel to propound questions to PES Bedol and the
THE COMMISSION ON ELECTIONS EN BANC SITTING AS THE NATIONAL Chairpersons of the MBOCs-Maguindanao regarding the due execution and
BOARD OF CANVASSERS, THE SPECIAL PROVINCIAL BOARD OF authenticity of the Maguindanao MCOCs, Pimentel’s counsel manifested her
CANVASSERS FOR MAGUINDANAO CHAIRED BY ATTY. EMILIO S. SANTOS, continuing objection to the canvassing of the said MCOCs. In particular, Pimentel’s
and JUAN MIGUEL F. ZUBIRI, respondents. counsel objected to the Maguindanao MCOCs because:

DECISION a) the proceedings were illegal;

CHICO-NAZARIO, J.: b) the MCOCs were palpably manufactured;

On 4 July 2007, petitioner Aquilino L. Pimentel III (Pimentel) filed the present Petition c) the results reflected in the MCOCs were statistically improbable;
for Certiorari and Mandamus(with Urgent Prayer for Temporary Restraining Order
and/or Status Quo Ante Order).1
d) there is no basis for saying the MCOCs were authentic because there
were no other available copies for comparison purposes;
The Petition stemmed from the 14 May 2007 national elections for 12 senatorial
posts. At the time of filing of the Petition, around two months after the said elections,
the 11 candidates with the highest number of votes had already been officially e) in most of the MCOCs[,] no watcher signed;
proclaimed and had taken their oaths of office as Senators. With other candidates
conceding, the only remaining contenders for the twelfth and final senatorial post f) there was no evidence or indication that the copy 2 MCOCs had been
were Pimentel and private respondent Juan Miguel F. Zubiri (Zubiri). Public posted as intended by law;
respondent Commission on Elections (COMELEC) en banc, acting as the National
Board of Canvassers (NBC), continued to conduct canvass proceedings so as to g) the serial numbers of the MCOCs are not clearly stamped;
determine the twelfth and last Senator-elect in the 14 May 2007 elections.
h) copy 2 of the MCOCs cannot be used for canvass;
Pimentel assailed the proceedings before the NBC and its constituted Special
Provincial Board of Canvassers for Maguindanao (SPBOC-Maguindanao) in which
the Provincial and Municipal Certificates of Canvass (PCOC and MCOCs) from the i) that the MCOCs are therefore, improper, unworthy and unfit for canvass;
province of Maguindanao were respectively canvassed.
j) that the manner the "re-canvassing" which was being done where the
The SPBOC-Maguindanao was created because the canvass proceedings held parties are not allowed to ask questions was patently illegal; and
before the original Provincial Board of Canvassers for Maguindanao (PBOC-
Maguindanao), chaired by Provincial Election Supervisor (PES) Lintang Bedol, were k) that it has not been established that the other copies of the MCOCs have
marred by irregularities, and the PCOC (Bedol PCOC) and other electoral documents been lost.2
submitted by the said PBOC-Maguindanao were tainted with fraud and statistical
improbabilities. Hence, the Bedol PCOC was excluded from the national canvass then All of the foregoing observations, manifestations, and objections made by Pimentel’s
being conducted by the NBC. counsel, as well as those made by the other candidates’ counsels, were simply noted
by the SPBOC-Maguindanao without specific action thereon.
Task Force Maguindanao, headed by COMELEC Chairman Benjamin S. Abalos, Sr.
and Commissioner Nicodemo T. Ferrer, retrieved and collected 21 MCOCs from the On 29 June 2007, the SPBOC-Maguindanao submitted to the NBC the second PCOC
municipalities of Maguindanao, mostly copy 2, or the copy intended to be posted on for Maguindanao. In the proceedings before the NBC, Pimentel’s counsel reiterated
the wall. The SPBOC-Maguindanao was then tasked to re-canvass the MCOCs her request to propound questions to PES Bedol and the Chairpersons of the
submitted by Task Force Maguindanao. The re-canvassing of the Maguindanao

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MBOCs-Maguindanao and the SPBOC-Maguindanao. The NBC, however, refused to
grant her request. Pimentel’s counsel thereafter moved for the exclusion of the
second Maguindanao PCOC from the canvass, maintaining that the said PCOC did
not reflect the true results of the elections because it was based on the manufactured
Maguindanao MCOCs, the authenticity and due execution of which had not been duly
established. The motion to exclude made by Pimentel’s counsel was once again
denied by the NBC, and she was ordered to sit down or she would be forcibly evicted
from the session hall. The second Maguindanao PCOC was thus included in the
canvass proceedings conducted by the NBC and, resultantly, Pimentel’s lead over
Zubiri was significantly reduced from 133,000 votes to only 4,000 votes.
Pimentel averred that said canvass proceedings were conducted by the NBC and
SPBOC-Maguindanao in violation of his constitutional rights to substantive and
procedural due process and equal protection of the laws, and in obvious partiality to
Zubiri. Pimentel thus filed the Petition at bar on 4 July 2007, anchored on the
following grounds:
I. The petitioner [Pimentel] was denied his right to due process of law when
the respondent SPBOC and the respondent NBC adopted an
unconstitutional procedure which disallowed the petitioner [Pimentel] the
opportunity to raise questions on the COCs subject of the canvass.
II. The petitioner [Pimentel] was denied his right to equal protection of the
law when the respondent SPBOC and the respondent NBC
unconstitutionally adopted a procedure of "no questions" in the canvass of
COCs from Maguindanao, different from the procedure adopted in the
canvass of COCs from other provinces/areas.
III. The respondent NBC acted with manifest grave abuse of discretion when
it refused to exercise its broad, plenary powers in fully or accurately
ascertaining due execution, authenticity and fitness for the canvass of the
MCOCs collected by the Comelec in the exercise of such broad plenary
powers. It violated its own rules when it deprived petitioner [Pimentel] of the
right to ventilate and prove his objections to the Maguindanao COCs.3
Pimentel seeks from this Court the following remedies:
1. Forthwith ISSUE A TEMPORARY RESTRAINING ORDER enjoining the
respondent Commission on Elections en banc sitting as the National Board
of Canvassers for Senators for the May 14, 2007 elections ("NBC") from
proceeding with any proclamation (of the twelfth and last winner of the May
14, 2007 Elections for Senators) based on the on-going senatorial canvass
which includes the new/second Provincial Certificate of Canvass of
Maguindanao, until further orders from this Court, or, in the alternative, in the
event that the proclamation of Respondent Zubiri is made before the
application for a TRO is acted upon, ISSUE A STATUS QUO ANTE
ORDER requiring the parties to observe the status quo at the time of the
filing of the Petition, in order to maintain and preserve the situation of the
parties at the time of the filing of this Petition, so as not to render the issues
raised in this Petition moot and academic;
2. After proper proceedings, RENDER JUDGMENT: (a) ANNULLING AND
SETTING ASIDE for being unconstitutional and illegal the proceedings and
acts of respondent Commission on Elections en banc sitting as the National
Board of Canvassers for Senators for the May 14, 2007 elections ("NBC") of
including, on June 29, 2007, in the national canvass of votes for Senators
the results from the Province of Maguindanao as reflected in its new/second
Provincial Certificate of Canvass as well as the proceedings and acts of the
respondent Special Provincial Board of Canvassers for Maguindanao
("SPBOC") in canvassing or "re-canvassing" the collected MCOCs, on June
25, 26 and 27, 2007, leading to the preparation of the new/second PCOC for
Maguindanao, and (b) COMPELLING or ORDERING respondent NBC and
its deputy, the SPBOC, to perform their ministerial constitutional duty of fully
determining the due execution and authenticity of the MCOCs, including, but
not limited to, allowing petitioner [Pimentel] to substantiate his claim of
manufactured results and propound questions to the officers concerned,
primarily, the Chairpersons of the former PBOC and SPBOC of
Maguindanao and the Chairpersons of the Municipal Boards of Canvassers
of Maguindanao.
Petitioner [Pimentel] also prays for other reliefs, just and equitable, under the
premises.4
Pursuant to the Resolution5 dated 10 July 2007 issued by this Court, Zubiri filed his
Comment6 on the Petition at bar on 12 July 2007; while the NBC and SPBOC-
Maguindano, chaired by Atty. Emilio S. Santos, filed their joint Comment7 on even
date. The respondents Zubiri, NBC, and SPBOC-Maguindanao collectively sought the
denial of Pimentel’s application for Temporary Restraining Order (TRO) and/or Status
Quo Ante Order and the dismissal of the instant Petition.
Pimentel’s prayer for the issuance of a TRO and/or Status Quo Ante Order was set
for oral arguments on 13 July 2007. After hearing the parties’ oral arguments, the
Court voted seven for the grant and seven for the denial of Pimentel’s prayer for the
issuance of a TRO and/or Status Quo Ante Order; thus, said prayer was deemed
denied for failure to garner the required majority vote. The parties were then directed
to submit their respective Memoranda, after which, the case would be deemed
submitted for resolution.8 All the parties complied, with Zubiri submitting his
Memorandum9 on 31 July 2007; Pimentel,10 on 1 August 2007; and the NBC and
SPBOC-Maguindanao,11 on 10 August 2007.
In the meantime, without any TRO and/or Status Quo Ante Order from the Court, the
canvass proceedings before the NBC continued, and by 14 July 2007, Zubiri (with
11,004,099 votes) and Pimentel (with 10,984,807 votes) were respectively ranked as
the twelfth and thirteenth Senatorial candidates with the highest number of votes in
the 14 May 2007 elections. Since the NBC found that the remaining uncanvassed
certificates of canvass would no longer materially affect Zubiri’s lead of 19,292 votes
over Pimentel, it issued Resolution No. NBC 07-67,12 dated 14 July 2007, proclaiming
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Zubiri as the twelfth duly elected Senator of the Philippines in the 14 May 2007
elections, to serve for a term of six years beginning 30 June 2007 in accordance with
the provisions of the Constitution.
On 19 July 2007, Zubiri filed with this Court a Manifestation with Motion to
Dismiss.13 Zubiri sought the dismissal of the Petition at bar arguing that, in
consideration of his proclamation pursuant to Resolution No. NBC 07-67 and his
formal assumption of office on 16 July 2007, controversies involving his election and
qualification as a Senator are now within the exclusive jurisdiction of the Senate
Electoral Tribunal (SET).
Zubiri further informed the Court through a Manifestation, 14 dated 16 August 2007,
that Pimentel filed an Election Protest (Ex Abudante Ad Cautelam) before the SET on
30 July 2007, docketed as SET Case No. 001-07, to which Zubiri filed his Answer Ad
Cautelam (With Special Affirmative Defenses, Counter-Protest and Petition for a
Preliminary Hearing on the Affirmative Defenses) on 13 August 2007. In his election
protest, Pimentel prays, among other remedies, for the annulment of Zubiri’s
proclamation as the twelfth winning Senator in the 14 May 2007 elections. Zubiri
called the attention of the Court to the "glaring reality" that with G.R. No. 178413
before this Court and SET Case No. 001-07 before the SET, "there are now two
cases involving the same parties with practically the same issues and similar
remedies sought filed before the two (2) separate courts/tribunals." Zubiri also pointed
out Pimentel’s ostensible failure to inform this Court of his institution of SET Case No.
001-07 and the subsequent developments therein.
On 23 August 2007, Pimentel filed before this Court his Comment/Opposition (to
Private Respondent’s Manifestation with Motion to Dismiss).15 Pimentel alleged that
Zubiri’s Motion to Dismiss solely relied on Aggabao v. Commission on
Elections.16 However, Pimentel argued that Aggabao cannot be applied to the instant
Petition because of the difference in the factual backgrounds of the two cases.
In Aggabao, therein petitioner Aggabao filed his Petition before this Court after the
proclamation of therein private respondent Miranda as Congressman for the Fourth
District of Isabela; while in the present case, Pimentel already filed his Petition before
this Court prior to the proclamation of Zubiri as Senator. Moreover, Pimentel asserted
that his Petition questioned not Zubiri’s proclamation, but the conduct of the canvass
proceedings before the NBC and SPBOC-Maguindanao. He maintained that his case
was one of first impression and no existing jurisprudence could be used as precedent
for its summary dismissal. Pimentel then reiterated his arguments in his Memorandum
that Sections 37 and 38 of Republic Act No. 9369,17 amending Sections 30 and 15 of
Republic Act No. 7166,18 respectively, significantly affected and changed the nature of
canvass proceedings, the nature of the duty of canvassing boards, and the extent of
allowable pre-proclamation controversies in Senatorial elections. Based on the
foregoing, Pimentel prayed for the denial of Zubiri’s Motion to Dismiss.
After a close scrutiny of the allegations, arguments, and evidence presented by all the
parties before this Court, this Court rules to dismiss the present Petition.
Pre-proclamation controversy/case
A pre-proclamation controversy has been defined by Batas Pambansa Blg. 881,
otherwise known as the Omnibus Election Code of the Philippines, as follows:
SEC. 241. Definition. – A pre-proclamation controversy is any question
pertaining to or affecting the proceeding of the board of canvassers which
may be raised by any candidate or by any registered political party or
coalition of political parties before the board or directly with the Commission,
or any matter raised under Sections 233, 234, 235 and 236 in relation to the
preparation, transmission, receipt, custody and appearance of the election
returns.
Under Republic Act No. 7166, providing for synchronized national and local elections,
pre-proclamation controversies refer to matters relating to the preparation,
transmission, receipt, custody and appearance of election returns and certificates of
canvass.19
Essentially reiterating Section 243 of the Omnibus Election Code, but adding the
reference to the certificates of canvass, COMELEC Resolution No. 7859, dated 17
April 2007, identified the issues that may be subject of a pre-proclamation
controversy, to wit:
SEC. 37. Issues that may be raised in pre-proclamation controversy. – The
following shall be proper issues that may be raised in a pre-proclamation
controversy:
1) Illegal composition or proceedings of the Board of Canvassers;
2) The canvassed election returns/certificates of canvass are incomplete,
contain material defects, appear to be tampered with or falsified, or contain
discrepancies in the same returns/certificates or in the other authentic copies
thereof as mentioned in Sections 233, 234, 235 and 236 of the Omnibus
Election Code;
3) The election returns/certificates of canvass were prepared under duress,
threats, coercion, or intimidation, or they are obviously manufactured or not
authentic; and
4) When substitute or fraudulent election return/certificates of canvass were
canvassed, the results of which materially affected the standing of the
aggrieved candidate or candidates.
Pre-proclamation cases to resolve pre-proclamation controversies are allowed in local
elections. According to Section 16 of Republic Act No. 7166:
SEC. 16. Pre-proclamation Cases Involving Provincial, City and Municipal
Offices. – Pre-proclamation cases involving provincial, city and municipal
officer shall be allowed and shall be governed by Sections 17, 18, 19, 20, 21
and 22 hereof.
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All pre-proclamation cases pending before the Commission shall be deemed
terminated at the beginning of the term of the office involved and the rulings
of the boards of canvassers concerned shall be deemed affirmed, without
prejudice to the filing of a regular election protest by the aggrieved party.
However, proceedings may continue when on the basis of the evidence thus
far presented, the Commission determines that the petition appears
meritorious and accordingly issues an order for the proceeding to continue or
when an appropriate order has been issued by the Supreme Court in a
petition for certiorari.
SEC. 17. Pre-proclamation Controversies: How Commenced. – Questions
affecting the composition or proceedings of the board of canvassers may be
initiated in the board or directly with the Commission. However, matters
raised under Sections 233, 234, 235 and 236 of the Omnibus Election Code
in relation to the preparation, transmission, receipt, custody and appreciation
of the election returns, and the certificates of canvass shall be brought in the
first instance before the board of canvassers only.
However, as to elections for President, Vice-President, Senators, and Members of the
House of Representatives, pre-proclamation cases are prohibited. Section 15 of
Republic Act No. 7166, prior to its amendment, read:
SEC. 15. Pre-proclamation Cases Not Allowed in Elections for President,
Vice-President, Senator, and Member of the House of Representatives. –
For purposes of the elections for President, Vice-President, Senator, and
Member of the House of Representatives, no pre-proclamation cases shall
be allowed on matters relating to the preparation, transmission, receipt,
custody and appreciation of the election returns or the certificates of
canvass, as the case may be. However, this does not preclude the authority
of the appropriate canvassing body motu propio or upon written complaint of
an interested person to correct manifest errors in the certificate of canvass or
election returns before it.
Questions affecting the composition or proceedings of the board of
canvassers may be initiated in the board or directly with the Commission in
accordance with Section 19 hereof.
Any objection on the election returns before the city or municipal board of
canvassers, or on the municipal certificates of canvass before the provincial
board of canvassers or district boards of canvassers in Metro Manila Area,
shall be specifically noted in the minutes of their respective proceedings.
As Section 15 of Republic Act No. 7166 was then worded, it would appear
that any pre-proclamation case relating to the preparation, transmission, receipt,
custody and appreciation of election returns or certificates of canvass, was prohibited
in elections for President, Vice-President, Senators and Members of the House of
Representatives. The prohibition aims to avoid delay in the proclamation of the winner
in the election, which delay might result in a vacuum in these sensitive posts.
Proceedings which may delay the proclamation of the winning candidate beyond the
date20 set for the beginning of his term of office must be avoided, considering that the
effect of said delay is, in the case of national offices for which there is no hold over, to
leave the office without any incumbent.21
The law, nonetheless, recognizes an exception and allows the canvassing body motu
proprio or an interested person to file a written complaint for the correction of manifest
errors in the election returns or certificates of canvass even in elections for President,
Vice-President, Senators and Members of the House of Representatives, for the
simple reason that the correction of manifest error will not prolong the process of
canvassing nor delay the proclamation of the winner in the election.22 To be manifest,
the errors must appear on the face of the certificates of canvass or election returns
sought to be corrected and/or objections thereto must have been made before the
board of canvassers and specifically noted in the minutes of their respective
proceedings.23 The law likewise permits pre-proclamation cases in elections for
President, Vice-President, Senators and Members of the House of Representatives,
when these cases question the composition or proceedings of the board of
canvassers before the board itself or the COMELEC, since such cases do not directly
relate to the certificate of canvass or election returns.
Section 15 of Republic Act No. 7166, after the amendment introduced by Republic Act
No. 9369, now reads:
SEC. 15. Pre-proclamation Cases in Elections for President, Vice-President,
Senator, and Member of the House of Representatives. – For purposes of
the elections for president, vice-president, senator, and member of the
House of Representatives, no pre-proclamation cases shall be allowed on
matters relating to the preparation, transmission, receipt, custody and
appreciation of election returns or the certificates of canvass, as the case
may be, except as provided for in Section 30 hereof. However, this does
not preclude the authority of the appropriate canvassing body motu propio or
upon written complaint of an interested person to correct manifest errors in
the certificate of canvass or election returns before it.
Questions affecting the composition or proceedings of the board of
canvassers may be initiated in the board or directly with the Commission in
accordance with Section 19 hereof.
Any objection on the election returns before the city or municipal board of
canvassers, or on the municipal certificates of canvass before the provincial
board of canvassers or district board of canvassers in Metro Manila Area,
shall be specifically noticed in the minutes of their respective proceedings.
(Emphasis supplied.)
Republic Act No. 9369 significantly amended Section 15 of Republic Act No. 7166 by
adding an excepting phrase to the general prohibition against pre-proclamation
controversies in elections for President, Vice-President, Senators and Members of the
House of Representatives. According to the amended Section 15, no pre-
proclamation cases on matters relating to the preparation, transmission, receipt,
custody and appreciation of election returns or the certificates of canvass shall be
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allowed in elections for President, Vice-President, Senators and Members of the
House of Representatives, except as provided by Section 30 of the same statute.
Section 30 of Republic Act No. 7166, which was likewise amended by Republic Act
No. 9369, provides:
SEC. 30. Congress as the National Board of Canvassers for the Election of
President and Vice President:  The Commission en banc as the National
Board of Canvassers for the election of senators :Determination of
Authenticity and Due Execution of Certificates of Canvass. – Congress and
the Commission en banc shall determine the authenticity and due
execution of the certificate of canvass for president and vice-president and
senators, respectively, as accomplished and transmitted to it by the local
board of canvassers, on a showing that: (1) each certificate of canvass was
executed, signed and thumbmarked by the chairman and members of the
board of canvassers and transmitted or caused to be transmitted to
Congress by them; (2) each certificate of canvass contains the names of all
of the candidates for president and vice-president or senator, as the case
may be, and their corresponding votes in words and figures; (3) there exists
no discrepancy in other authentic copies of the certificates of canvass or in
any of its supporting documents such as statement of votes by
city/municipality/by precinct or discrepancy in the votes of any candidate
in words and figures in the certificate; and (4) there exists no discrepancy
in the votes of any candidate in words and figures in the certificate of
canvass against the aggregate number of votes appearing in the
election returns of precincts covered by the certificate of canvass:
Provided, That certified print copies of election returns or certificates
of canvass may be used for the purpose of verifying the existence of
the discrepancy.
When the certificate of canvass, duly certified by the board of canvassers of
each province, city or district, appears to be incomplete the Senate
President or the Chairman of the Commission, as the case may beshall
require the board of canvassers concerned to transmit by personal delivery
the election returns from polling places that were not included in the
certificate of canvass and supporting statements. Said election returns shall
be submitted by personal delivery within two (2) days from receipt of notice.
When it appears that any certificate of canvass or supporting statement of
votes by city/municipality or by precinct bears erasures or alterations
which may cast doubt as to the veracity of the number of votes stated herein
and may affect the result of the election, upon request of the presidential,
vice-presidential or senatorial candidate concerned or his party,
Congress or the Commission en banc, as the case may be, shall, for the
sole purpose of verifying the actual number of votes cast for President and
Vice-President or senator, count the votes as they appear in the copies of
the election returns submitted to it.
In case of any discrepancy, incompleteness, erasure or alteration as
mentioned above, the procedure on pre-proclamation controversies
shall be adopted and applied as provided in Sections 17, 18, 19 and 20 .
Any person who presents in evidence a simulated copy of an election
return, certificate of canvass or statement of votes, or a printed copy of
an election return, certificate of canvass or statement of votes bearing
a simulated certification or a simulated image, shall be guilty of an
election offense and shall be penalized in accordance with Batas
Pambansa Blg. 881. (Emphasis supplied.)
The highlighted portions in the afore-quoted section identify the amendments
introduced by Republic Act No. 9369, specifically: (1) the duty to determine the
authenticity and due execution of certificates of canvass is now imposed, not only on
Congress acting as the NBC for the election for President and Vice-President, but
also on COMELEC en banc acting as the NBC for the election for Senators; (2) the
third criterion for the determination of the authenticity and due execution of the
certificates of canvass requires the absence of discrepancy in comparison not only
with other authentic copies of the said certificates, but also with the supporting
documents, such as the statements of votes; (3) a fourth criterion for the
determination of the authenticity and due execution of the certificates of canvass was
added, mandating the absence of discrepancy between the number of votes of a
candidate in a certificate when compared with the aggregate number of votes
appearing in the election returns of the precincts covered by the same certificate; (4)
pursuant to the exception now provided in Section 15 of Republic Act No. 7166, as
amended by Republic Act No. 9369, permissible pre-proclamation cases shall adopt
and apply the procedure provided in Sections 17 to 20 of the same statute; and (5)
the use of a simulated copy of an election return, certificate of canvass, or statement
of vote, or a printed copy of said election documents bearing a simulated certification
or image shall be penalized as an election offense.
Indeed, this Court recognizes that by virtue of the amendments introduced by
Republic Act No. 9369 to Sections 15 and 30 of Republic Act No. 7166, pre-
proclamation cases involving the authenticity and due execution of certificates of
canvass are now allowed in elections for President, Vice-President, and Senators.
The intention of Congress to treat a case falling under Section 30 of Republic Act No.
7166, as amended by Republic Act No. 9369, as a pre-proclamation case is apparent
in the fourth paragraph of the said provision which adopts and applies to such a case
the same procedure provided under Sections 17,24 18,25 1926 and 2027 of Republic Act
No. 7166 on pre-proclamation controversies.
In sum, in elections for President, Vice-President, Senators and Members of the
House of Representatives, the general rule still is that pre-proclamation cases on
matters relating to the preparation, transmission, receipt, custody and appreciation of
election returns or certificates of canvass are still prohibited. As with other general
rules, there are recognized exceptions to the prohibition, namely: (1) correction of
manifest errors; (2) questions affecting the composition or proceedings of the board of
canvassers; and (3) determination of the authenticity and due execution of certificates
of canvass as provided in Section 30 of Republic Act No. 7166, as amended by
Republic Act No. 9369.
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The Petition at bar
Pimentel’s objections to the Maguindanao MCOCs delve into "matters relating to the
preparation, transmission, receipt, custody and appreciation" of the said MCOCs by
the SPBOC-Maguindanao. He suspects the authenticity and due execution of the
Maguindanao MCOCs used by the SPBOC-Maguindanao in its canvass, which were
mostly copy 2 or the copy for the wall,28 because of the supposed mysterious
circumstances surrounding the loss or unavailability of any other copy of the said
MCOCs. He decries the denial by the SPBOC-Maguindanao and the NBC of the
opportunity to question PES Bedol and the Chairpersons of the MBOCs-
Maguindanao on "where did that copy 2 come from, what was the basis, when was it
accomplished, how was it posted x x x";29 and to substantiate his claim that the
Maguindanao MCOCs are palpably manufactured and are not fit for canvass.30 He is
raising issues related to the tampering with, falsification of, or discrepancies in the
Maguindanao MCOCs, which are properly the subject of a pre-proclamation
controversy.31
Pimentel insists that the SPBOC-Maguindanao and the NBC should hear his
observations, accept his evidence, and rule on his objections to the Maguindanao
MCOCs in what would undeniably be a pre-proclamation case. Ultimately, what
Pimentel seeks is that his pre-proclamation case be given due course by the boards
of canvassers.
Respondents contend that Pimentel cannot initiate and pursue a pre-proclamation
case before the SPBOC-Maguindanao or the NBC, since such a case is prohibited in
elections for Senators. Pimentel, however, argues that his pre-proclamation case is
an exception to the prohibition pursuant to Section 30, in relation to Section 15, of
Republic Act No. 7166, as amended by Republic Act No. 9369.
This Court rules for the respondents.
Proceedings before the SPBOC-Maguindanao
The SPBOC-Maguindanao, in the conduct of its canvass proceedings, properly
refused to allow Pimentel to contest the Maguindanao MCOCs at that stage by
questioning PES Bedol and the Chairpersons of the MBOCs-Maguindanao and
presenting evidence to prove the alleged manufactured nature of the said MCOCs, for
such would be tantamount to a pre-proclamation case still prohibited by Section 15 of
Republic Act No. 7166, even after its amendment by Republic Act No. 9369.
The SPBOC-Maguindanao, as its name suggests, was constituted to be of the same
stature and to perform the same function as the PBOC-Maguindano: to canvass the
Maguindanao MCOCs and prepare the Maguindanao PCOC to be submitted to the
NBC. Undeniably, the SPBOC-Maguindanao is not Congress nor COMELEC en
banc acting as the NBC, specifically charged by Section 30 of Republic Act No.
7166, as amended by Republic Act No. 9369, with the duty to determine the
authenticity and due execution of the certificates of canvass submitted to it in
accordance with the four given criteria. There is no ambiguity in the said provision,
at least, as to whom it imposes the duty, namely: (1) Congress as the NBC for the
election for President and Vice-President; and (2) COMELEC en banc as the NBC for
the election for Senators. This is a case where the law is clear. It speaks in a
language that is categorical. It is quite explicit; it is too plain to be misread. No
interpretation is needed. All that is called for is to apply the statutory command.32
Even if there is still a need for this Court to construe Section 30 of Republic Act No.
7166, as amended by Republic Act No. 9369, it still cannot extend the scope of said
provision to local boards of canvassers. A pre-proclamation case under Section 30 is
allowed only as an exception to the prohibition under Section 15 of Republic Act No.
7166, as amended by Republic Act No. 9369. According to the rules of statutory
construction, exceptions, as a general rule, are strictly, but reasonably construed;
they extend only so far as their language fairly warrants, and all doubts should be
resolved in favor of the general provisions rather than the exception. Where a general
rule is established by statute with exceptions, the court will not curtail the former nor
add to the latter by implication.33 A maxim of recognized practicality is the rule that the
expressed exception or exemption excludes others. Exceptio firmat regulim in
casibus non exceptis. The express mention of exceptions operates to exclude other
exceptions; conversely, those which are not within the enumerated exceptions are
deemed included in the general rule.34 And, in this case, the exception applies
only to Congress or the COMELEC en banc acting as the NBC, and not to local
boards of canvassers who must still be deemed covered by the prohibition on
pre-proclamation controversies.
It is also significant to note that Section 15 of Republic Act No. 7166, as amended by
Republic Act No. 9369, prohibits pre-proclamation cases in elections for President,
Vice-President, Senators, and Members of the House of Representatives;
while Section 30 of the same statute, as amended, refers only to elections
for President, Vice-President and Senators. The intent of the Legislature to confine
the application of Section 30 of Republic Act No. 7166, as amended by Republic Act
No. 9369, only to Congress or the COMELEC en banc acting as the NBC thus
becomes even more evident, considering that the said provision does not apply to
elections for Members of the House of Representatives. It must be borne in mind that
only the votes for national elective positions such as the President, Vice-President,
and Senators are canvassed by the NBC. The canvassing of votes for local elective
positions, including those for Members of the House of Representatives, end with the
local boards of canvassers. Therefore, it would be contrary to the legislative intent to
extend Section 30 of Republic Act No. 7166, as amended by Republic Act No. 9369,
even to the canvass proceedings before local boards of canvassers.
This Court can only conclude that the canvass proceedings before local boards of
canvassers in elections for Senators are unaffected by the amendment of Republic
Act No. 7166 by Republic Act No. 9369. They still remain administrative and summary
in nature, so as to guard against the paralyzation of canvassing and proclamation
proceedings that would lead to a vacuum in so important and sensitive office as that
of Senator of the Republic.35
For the same reasons stated in the preceding paragraphs, the four criteria
enumerated by Section 30 of Republic Act No. 7166, as amended by Republic Act
No. 9369, are not mandatory on local boards of canvassers in their determination of
authenticity and due execution of the certificates of canvass submitted to them. It is
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already well-settled that the local boards of canvassers, as well as the SPBOC-
Maguindanao in this case, may proceed with the canvassing of the election returns or
certificates of canvass for as long as they appear to be authentic and duly
accomplished on their face.36
Boards of canvassers are ad hoc bodies that exist only for the interim task of
canvassing election returns. They do not have the facilities, the time and even the
competence to hear, examine and decide on alleged election irregularities, unlike
regular courts or the COMELEC itself or the electoral tribunals (Presidential, Senate,
and House), which are regular agencies of government tasked and equipped for the
purpose. While this Court has time and again expressed its abhorrence of the
nefarious "grab the proclamation and prolong the protest" strategy of some
candidates, nonetheless, it recognizes the very limited jurisdiction of MBOCs and
PBOCs. Unless Pimentel is able to show cogently and clearly his entitlement to the
summary exclusion of clearly unacceptable certificates of canvass, this Court must
uphold the constitutional and legal presumption of regularity in the performance of
official functions and authenticity of official documents.37
The burden is upon Pimentel to establish that the Maguindanao MCOCs are
manufactured, and that it is evident on the face thereof. Pimentel’s insistence on
being allowed to propound questions to PES Bedol and the Chairpersons of the
MBOCs-Maguindanao and SPBOC-Maguindanao reveals that, although he has his
suspicions, he has yet no actual evidence that the Maguindanao MCOCs were indeed
manufactured.
Moreover, Pimentel’s main objection to the Maguindanao MCOCs used in the
canvass by the SPBOC-Maguindanao is that they are mostly copy 2 or the copy
intended to be posted on the wall. According to Section 43 of COMELEC Resolution
No. 7859, dated 17 April 2007, the MBOCs must transmit copy 1 of the MCOCs to the
PBOC for use in the provincial canvassing of votes. The SPBOC-Maguindanao was
compelled to use copy 2 of the Maguindanao MCOCs in the absence of copy 1
thereof. The fact that copy 2 of the Maguindanao MCOCs was not the copy meant for
the PBOC-Maguindanao does not necessarily mean that copy 2 of the said MCOCs
was manufactured, falsified or tampered with. All the seven copies of the MCOCs
required to be prepared by the MBOCs should be considered duplicate
originals.38 Just like copy 1 of the MCOCs, copy 2 should be afforded the presumption
of authenticity as an official document prepared by the MBOCs-Maguindanao in the
regular performance of their official functions. Copy 2 is no less authentic than all the
other copies of the MCOCs although it may be more susceptible to manufacture,
falsification, or tampering. If the manufacture, falsification, or tampering of copy 2 of
the MCOCs is not apparent on its face, the burden to prove the same falls on the
candidate making the allegation in a regular election protest. At least as far as the
proceedings before the local boards of canvassers are concerned, this Court’s ruling
in Pangarungan v. Commission on Elections39 still holds true: it is not required that all
the other copies of the election returns or certificates of canvass be taken into
account and compared with one another before one of them, determined to be
authentic, may be used or included in the canvass.
The SPBOC-Maguindanao determined that copy 2 of the Maguindanao MCOCs is
authentic and duly executed on its face, while Pimentel insists otherwise. This issue
involves the appreciation of copy 2 of the Maguindanao MCOCs by the SPBOC-
Maguindanao, the proper subject of a pre-proclamation controversy, which, as this
Court already declared, is still prohibited in proceedings before local boards of
canvassers for elections for Senators.
The resolution of the issues raised by Pimentel as to the irregularities and suspicious
circumstances surrounding the Maguindanao MCOCs, which appear prima
facie regular on their face, compels or necessitates the piercing of the veil of the said
MCOCs. These issues, however, are more appropriate in a regular election protest,
wherein the parties may litigate all the legal and factual issues raised by them in as
much detail as they may deem necessary or appropriate.40
Proceedings before the COMELEC en banc acting as the NBC for elections for
Senators
Similarly, the COMELEC en banc acting as the NBC for the election for Senators, did
not violate Section 30 of Republic Act No. 7166, as amended by Republic Act No.
9369, when it denied Pimentel’s request to question PES Bedol and the Chairpersons
of the MBOCs-Maguindanao and SPBOC-Maguindanao, and his subsequent motion
to exclude the second Maguindanao PCOC.
As already declared by this Court, the NBC has the duty to determine the authenticity
and due execution of the certificates of canvass submitted to it in accordance with the
four criteria enumerated in Section 30 of Republic Act No. 7166, as amended by
Republic Act No. 9369. It has not been established to the satisfaction of this Court
that the NBC failed to comply with its duty under said provision.
Pimentel asserts that in the absence of all the other copies of the Maguindanao
MCOCs, except copy 2, there is no way to apply the third criterion under Section 30 of
Republic Act No. 7166, as amended by Republic Act No. 9369. According to this
criterion for authenticity and due execution of a certificate of canvass, there must exist
no discrepancy in other authentic copies of the certificate or in any of its supporting
documents such as the statement of votes by city/municipality/precinct and no
discrepancy in the votes of any candidate in words and figures in the certificate.
Pimentel posits that without any other copies available for comparison, then copy 2 of
the Maguindanao MCOCs cannot be deemed authentic and duly executed.
While it is true that having only one copy of the certificate of canvass may raise
problems as to the determination by the NBC of its authenticity and due execution
since there are no other copies to compare it with, such is not the situation in the
Petition at bar.
According to Section 30 of Republic Act No. 7166, as amended by Republic Act No.
9369, Congress and the COMELEC en banc, acting as the NBC, shall determine the
authenticity and due execution of the certificates of canvass for President, Vice-
President and Senators, respectively, as accomplished and transmitted to them by
the local boards of canvassers. For the province of Maguindanao, it is the PBOC
which transmits the PCOC to the NBC. For the 14 May 2007 senatorial elections, the
NBC excluded from the national canvass the Bedol PCOC submitted by the PBOC-
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Maguindanao after it found the same to be tainted by irregularities and statistical
improbabilities. Thereafter, the SPBOC-Maguindanao was created, which re-
canvassed the Maguindanao MCOCs and prepared and submitted to the NBC the
second Maguindanao PCOC.
Hence, the four criteria enumerated in Section 30 of Republic Act No. 7166, as
amended by Republic Act No. 9369, must be applied by the NBC to the second
Maguindanao PCOC. The authenticity and due execution of the Maguindanao
MCOCs, which had already been determined by the SPBOC-Maguindanao, are no
longer in issue before the NBC. To allow Pimentel to revive again before the NBC the
issue of authenticity and due execution of the Maguindanao MCOCs after a
determination thereof by the SPBOC-Maguindanao is like granting him an appeal, a
remedy which is without any statutory or regulatory basis.
The SPBOC-Maguindanao prepared all seven copies of the second Maguindanao
PCOC. It properly submitted the first copy to the NBC for national canvassing of the
votes for Senators. All the six other copies are in existence and have been distributed
to the intended recipients. There is no allegation or proof that there is a discrepancy
among the seven authentic copies of the second Maguindanao PCOC. Neither is it
shown that the second Maguindanao PCOC contains any discrepancy when
compared with its supporting documents. It would thus appear to this Court that the
second Maguindanao PCOC passed the third criterion for its authenticity and due
execution as provided in Section 30 of Republic Act No. 7166, as amended by
Republic Act No. 9369. As for the three other criteria, there is no sufficient allegation,
much less proof, that the NBC did not apply them to the second Maguindanao PCOC
or that the second Maguindanao PCOC actually failed to meet any of them.
Given the foregoing, there is indeed no merit in Pimentel’s request before the NBC to
still question PES Bedol and the Chairpersons of the MBOCs-Maguindanao and
SPBOC-Maguindanao regarding the Maguindanao MCOCs. There is also no reason
to exclude the second Maguindanao PCOC from the national canvass of votes for
Senators after its authenticity and due execution had been determined by the NBC in
accordance with the criteria provided by the law.
Due process and equal protection of the law
Pimentel alleges that the proceedings before the NBC and the SPBOC-Maguindanao
disallowing him from asking certain election officials, such as PES Bedol and the
Chairpersons of the MBOCs-Maguindanao and SPBOC-Maguindanao, questions
regarding the Maguindanao PCOC and MCOCs, deprived him of his right to due
process.
In City of Manila v. Hon. Laguio, Jr.,41 this Court already provided a discourse on due
process, to wit:
The constitutional safeguard of due process is embodied in the fiat "(N)o
person shall be deprived of life, liberty or property without due process of law
x x x."
There is no controlling and precise definition of due process. It furnishes
though a standard to which governmental action should conform in order
that deprivation of life, liberty or property, in each appropriate case, be valid.
This standard is aptly described as a responsiveness to the supremacy of
reason, obedience to the dictates of justice, and as such it is a limitation
upon the exercise of the police power.
The purpose of the guaranty is to prevent governmental encroachment
against the life, liberty and property of individuals; to secure the individual
from the arbitrary exercise of the powers of the government, unrestrained by
the established principles of private rights and distributive justice; to protect
property from confiscation by legislative enactments, from seizure, forfeiture,
and destruction without a trial and conviction by the ordinary mode of judicial
procedure; and to secure to all persons equal and impartial justice and the
benefit of the general law.
The guaranty serves as a protection against arbitrary regulation, and private
corporations and partnerships are "persons" within the scope of the guaranty
insofar as their property is concerned.
This clause has been interpreted as imposing two separate limits on
government, usually called "procedural due process" and "substantive due
process."
Procedural due process, as the phrase implies, refers to the procedures that
the government must follow before it deprives a person of life, liberty, or
property. Classic procedural due process issues are concerned with what
kind of notice and what form of hearing the government must provide when it
takes a particular action.
Substantive due process, as that phrase connotes, asks whether the
government has an adequate reason for taking away a person’s life, liberty,
or property. In other words, substantive due process looks to whether there
is a sufficient justification for the government’s action. Case law in the United
States (U.S.) tells us that whether there is such a justification depends very
much on the level of scrutiny used. For example, if a law is in an area where
only rational basis review is applied, substantive due process is met so long
as the law is rationally related to a legitimate government purpose. But if it is
an area where strict scrutiny is used, such as for protecting fundamental
rights, then the government will meet substantive due process only if it can
prove that the law is necessary to achieve a compelling government
purpose.
This Court finds Pimentel’s argument of deprivation of due process problematic since
he has not established what he is being deprived of: life, liberty, or property. He was a
candidate in the senatorial elections. At the time he filed the instant Petition, he might
have been leading in the canvassing of votes, yet the canvass proceedings were still
ongoing, and no winner for the twelfth and last senatorial post had been proclaimed.
May he already claim a right to the elective post prior to the termination of the
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canvass proceedings and his proclamation as winner, and may such a right be
considered a property right which he cannot be deprived of without due process?
These were clearly substantial and weighty issues which Pimentel did not address.
Unfortunately, this Court cannot argue and settle them for him.
Pimentel only made a sweeping claim that in the canvass proceedings of the
Maguindanao votes before the NBC and the SPBOC-Maguindanao, he was deprived
of his constitutional right to due process, both procedural and substantive. After going
over his allegations, however, and the definition of substantive due process, this
Court finds that Pimentel cannot invoke denial of substantive due process because he
is not assailing any law, which, arbitrarily or without sufficient justification, supposedly
deprived him of life, liberty, or property.
At most, Pimentel can claim that he was denied procedural due process when he was
not allowed by the NBC and the SPBOC-Maguindanao to propound questions to
certain election officials. But even on this point, Pimentel fails to convince this Court.
Asking election officials questions and confronting them with evidence are not part of
the canvass proceedings. There is no statute or regulation expressly providing for
such a procedure.
Any objection or manifestation concerning a certificate of canvass before the NBC, as
well as any contest involving the inclusion or exclusion of an election return or
certificate of canvass before a local board of canvassers, must be orally submitted to
the Chairperson of the NBC or the local board of canvassers, as the case may be.
Simultaneous with the oral submission, the party concerned must submit his written
objection, manifestation, or contest in the form required. The objection, manifestation,
or contest shall also be recorded in the minutes of the canvass. In the event that the
NBC or local board of canvassers shall determine that there is a proper case for the
objection, manifestation, or contest submitted, it shall automatically defer the canvass
of the assailed election return or certificate of canvass. Within 24 hours from the
submission of the objection, manifestation, or contest, the party concerned shall
submit his evidence which shall be attached to his written objection, manifestation, or
contest. Within the same 24-hour period, any party may file a written and verified
opposition to the objection, manifestation, or contest. Upon receipt of the evidence,
the NBC or the local board of canvassers shall take up the assailed election return or
certificate of canvass, and after considering the objection, manifestation or contest,
together with the opposition thereto and the evidences submitted, shall summarily
and immediately rule thereon.42
The afore-described procedure does not provide any party the opportunity to question
and confront election officials and other witnesses. It may have been allowed on
occasion by the boards of canvassers, but it does not necessarily ripen into a legally
demandable right. Again, canvass proceedings are administrative and summary in
nature. As for local boards of canvassers, in elections for Senators, they only need to
determine the authenticity and due execution of the election returns or certificates of
canvass on the face thereof. As for the COMELEC en banc, acting as the NBC, the
determination of the authenticity and due execution of the certificates of canvass shall
be limited only to those submitted before it by the local boards of canvassers and in
accordance with the criteria provided in Section 30 of Republic Act No. 7166, as
amended by Republic Act No. 9369. The limitations on the powers and duties of the
boards of canvassers are meant to avoid any delay in the proclamation of the elected
official. Issues whose resolution would require the presentation and examination of
witnesses are more properly raised in a regular election protest.
And as a final observation on the matter of due process, this Court notes that
although Pimentel was not able to propound questions to the election officials
involved in the preparation and canvassing of the Maguindanao MCOCs and PCOC,
he was still able, through his counsel, to state his observations, manifestations, and
objections regarding the said certificates, which were duly noted. 43 He may not have
received the response or action that he wanted with respect to his observations,
manifestations, and objections, but Pimentel cannot deny that these were heard and
presented in the canvass proceedings. Pimentel further admitted that he did not
submit his written observations, manifestations, and objections as the rules of
procedure before the NBC and the local boards of canvassers require.44 He cannot
now decry that his observations, manifestations, and objections were not given due
course when he himself failed to comply with the procedure governing the same.
Equally baseless is Pimentel’s averment that his right to equal protection of the laws
was violated when the NBC and the SPBOC-Maguindanao adopted a procedure of
"no questions" in the canvass of the Maguindanao MCOCs, different from the
procedure adopted in the canvass of the certificates of canvass from other
provinces/areas. Article III, Section 1 of the 1987 Constitution guarantees that no
person shall be denied equal protection of the laws. According to a long line of
decisions, equal protection simply requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and responsibilities imposed.
Similar subjects, in other words, should not be treated differently, so as to give undue
favor to some and unjustly discriminate against others. 45According to Pimentel, he
was deprived of equal protection of the laws when he was not allowed to question the
election officials involved in the canvass proceedings for Maguindanao, although he
was allowed to do so for other provinces or districts. In support of his claim, Pimentel
compared his own experiences in the canvass proceedings for different provinces or
districts. This Court, however, finds Pimentel’s assessment misplaced. What would
have been essential for Pimentel to allege and prove was that other senatorial
candidates were allowed during the canvass proceedings to question the election
officials involved in the preparation and canvassing of the Maguindanao MCOCs and
PCOC, while he was not; and that the other senatorial candidates were given undue
favor, while he was the only one unjustly discriminated against. It seems apparent to
this Court that the position of the SPBOC-Maguindanao and the NBC not to allow,
during the canvass proceedings, the questioning of election officials involved in the
preparation and canvassing of the Maguindanao MCOCs and PCOC, was consistent
for all senatorial candidates. Hence, petitioner was similarly situated with all the other
senatorial candidates and they were all treated alike insofar as the canvass
proceedings for Maguindanao were concerned.
Electoral protest before the Senate Electoral Tribunal (SET)
Pimentel’s Petition is for Certiorari and Mandamus, both governed by Rule 65 of the
Rules of Court.
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A special civil action for certiorari may be filed under the following circumstances:
SECTION 1. Petition for certiorari. – When any tribunal, board or officer
exercising judicial or quasi-judicial functions has acted without or in excess
of its or his jurisdiction, or with grave abuse of discretion amounting to lack
or excess of jurisdiction, and there is no appeal, or any plain, speedy, and
adequate remedy in the ordinary course of law, a person aggrieved thereby
may file a verified petition in the proper court, alleging the facts with certainty
and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such incidental
reliefs as law and justice may require.
In a special civil action for certiorari, the burden is on the part of petitioner to prove
not merely reversible error, but grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of the public respondent issuing the impugned order. Grave
abuse of discretion means a capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction. Mere abuse of discretion is not enough, it must be so
grave as when the power is exercised in an arbitrary or despotic manner by reason of
passion or personal hostility, and must be so patent and so gross as to amount to an
evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act
at all in contemplation of law.46
The extraordinary remedy of mandamus, on the other hand, may be availed of under
the conditions provided below:
RULE 65, SECTION 3. Petition for mandamus. – When any tribunal,
corporation, board, officer or person unlawfully neglects the performance of
an act which the law specifically enjoins as a duty resulting from an office,
trust, or station, or unlawfully excludes another from the use and enjoyment
of a right or office to which such other is entitled, and there is no other plain,
speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court, alleging the
facts with certainty and praying that judgment be rendered commanding the
respondent, immediately or at some other time to be specified by the court,
to do the act required to be done to protect the rights of the petitioner, and to
pay the damages sustained by the petitioner by reason of the wrongful acts
of the respondent.
The writ of mandamus shall be issued only if the legal right to be enforced is well
defined, clear and certain. It lies only to compel an officer to perform a ministerial
duty, not a discretionary one. The duty is ministerial only when its discharge requires
neither the exercise of official discretion nor judgment.47
To avail of both special civil actions, there must be no other plain, speedy and
adequate remedy in the ordinary course of law available to the petitioner, and in this,
Pimentel’s Petition falters.
It must be kept in mind that Zubiri was proclaimed the twelfth Senator-elect in the 14
May 2007 elections on 14 July 2007, and that he formally assumed office on 16 July
2007. In accordance with this Court’s ruling in Aggabao, Pimentel’s Petition must be
dismissed, for his recourse lies, not with this Court, but with the SET.
This Court elucidated in Aggabao48 that:
Article VI, Section 17 of the 1987 Constitution provides:
Sec. 17. The Senate and the House of Representatives shall each have an
Electoral Tribunal which shall be the sole judge of all contests relating to the
election, returns, and qualifications of their respective Members. Each
Electoral Tribunal shall be composed of nine Members, three of whom shall
be Justices of the Supreme Court to be designated by the Chief Justice, and
the remaining six shall be Members of the Senate or the House of
Representatives, as the case may be, who shall be chosen on the basis of
proportional representation from the political parties and the parties or
organization registered under the party-list system represented therein. The
senior Justice in the Electoral Tribunal shall be its Chairman.
In Pangilinan v. Commission on Elections we ruled that:
The Senate and the House of Representatives now have their
respective Electoral Tribunals which are the "sole judge of all
contests relating to the election, returns, and qualifications of their
respective Members, thereby divesting the Commission on
Elections of its jurisdiction under the 1973 Constitution over election
cases pertaining to the election of the Members of the Batasang
Pambansa (Congress). It follows that the COMELEC is now bereft
of jurisdiction to hear and decide pre-proclamation controversies
against members of the House of Representatives as well as of the
Senate.
The HRET has sole and exclusive jurisdiction over all contests relative to the
election, returns, and qualifications of members of the House of
Representatives. Thus, once a winning candidate has been proclaimed,
taken his oath, and assumed office as a Member of the House of
Representatives, COMELEC’s jurisdiction over election contests relating to
his election, returns, and qualifications ends, and the HRET’s own
jurisdiction begins.
It is undisputed that Miranda has already been proclaimed, taken his oath
and assumed office on June 14, 2004. As such, petitioner’s recourse would
have been to file an electoral protest before the HRET. His remedy is not this
petition for certiorari. Thus:
Finally, the private respondent Feliciano Belmonte, Jr. has already
been proclaimed as the winner in the congressional elections in the
fourth district of Quezon City. He has taken his oath of office and
assumed his duties as representative; hence, the remedy open to
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the petitioner was to have filed an electoral protest with the
Electoral Tribunal of the House of Representatives.
The allegation that Miranda’s proclamation is null and void ab initio does not
divest the HRET of its jurisdiction. Thus:
(I)n an electoral contest where the validity of the proclamation of a
winning candidate who has taken his oath of office and assumed
his post as Congressman is raised, that issue is best addressed to
the HRET. The reason for this ruling is self-evident, for it avoids
duplicity of proceedings and a clash of jurisdiction between
constitutional bodies, with due regard to the people’s mandate.
In Lazatin v. Commission on Elections we ruled that, upon proclamation of
the winning candidate and despite its alleged invalidity, the COMELEC is
divested of its jurisdiction to hear the protest. Thus:
The petition is impressed with merit because the petitioner has
been proclaimed winner of the Congressional elections in the first
district of Pampanga, has taken his oath of office as such, and
assumed his duties as Congressman. For this Court to take
cognizance of the electoral protest against him would be to usurp
the functions of the House Electoral Tribunal. The alleged invalidity
of the proclamation (which has been previously ordered by the
COMELEC itself) despite alleged irregularities in connection
therewith, and despite the pendency of the protests of the rival
candidates, is a matter that is also addressed, considering the
premises, to the sound judgment of the Electoral Tribunal.
In this case, certiorari will not lie considering that there is an available and
adequate remedy in the ordinary course of law for the purpose of annulling
or modifying the proceedings before the COMELEC. After the proclamation,
petitioner’s remedy was an electoral protest before the HRET. The resolution
of the issues presented in this petition is best addressed to the sound
judgment and discretion of the electoral tribunal.
The afore-quoted pronouncements are likewise applicable to the Petition at bar, with
the references therein to the jurisdiction of the House of Representatives Electoral
Tribunal over election protests involving members of the House of Representatives
also being true for the SET as regards election protests involving Senators.
In Chavez v. Commission on Elections,49 this Court similarly ruled that the word "sole"
in Article VI, Section 17 of the 1987 Constitution underscores the exclusivity of the
electoral tribunals' jurisdiction over election contests relating to their respective
members. It is therefore crystal clear that this Court has no jurisdiction to entertain a
petition for certiorari and mandamus on matters which may be threshed out in an
election contest. It is the SET which has exclusive jurisdiction to act on the complaint
of Pimentel involving, as it does, a contest relating to the election of Zubiri, now a
member of the Senate.
Pimentel attempts to bring his case outside the jurisprudential precedent set by
Aggabao, but to no avail.
That Pimentel filed the present Petition prior to Zubiri’s proclamation is insignificant.
Since Pimentel’s prayer for a TRO and/or Status Quo Ante Order had been denied,
Zubiri was proclaimed the twelfth winning Senator in the 2007 Senatorial Elections.
Pimentel further claims that he is not challenging Zubiri’s proclamation, but rather the
conduct of the proceedings before the NBC and the SPBOC-Maguindanao. This is
just a roundabout argument. Pimentel cannot deny that he assails the canvass
proceedings because he believes that the annulment and setting aside thereof would
result in his winning as the twelfth Senator in the 14 May 2007 elections; and if he is
the rightful winner, then logically and necessarily, Zubiri’s proclamation must also be
annulled and set aside.
Finally, while Section 15, in relation to Section 30, of Republic Act No. 7166, as
amended by Republic Act No. 9369, did introduce an additional exception to the
prohibition against pre-proclamation controversies in elections for President, Vice-
President, and Senators, this Court has already established in the preceding
discussion that Pimentel cannot invoke the same in his Petition. The provisions in
question did not materially change the nature of canvass proceedings before the
boards of canvassers, which still remain summary and administrative in nature for the
purpose of canvassing the votes and determining the elected official with as little
delay as possible and in time for the commencement of the new term of office.
This Court deems it necessary to stress that attempts to delay the canvass
proceedings, except for the permissible pre-proclamation controversies, must be
shunned. Grounds which are proper for electoral protests should not be allowed to
delay the proclamation of the winners.50 It may well be true that public policy may
occasionally permit the occurrence of "grab the proclamation and prolong the protest"
situations; that public policy, however, balances the possibility of such situations
against the shortening of the period during which no winners are proclaimed, a period
commonly fraught with tension and danger for the public at large. For those who
disagree with that public policy, the appropriate recourse is not to ask this Court to
abandon case law, which merely interprets faithfully existing statutory norms, to
engage in judicial legislation and in effect to rewrite portions of the Omnibus Election
Code. The appropriate recourse is, of course, to the Legislative Department of the
Government and to ask that Department to strike a new and different equilibrium in
the balancing of the public interests at stake.51
IN VIEW OF THE FOREGOING, the present Petition for Certiorari and Mandamus is
hereby DISMISSED. No costs.
SO ORDERED.
Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-
Morales, Azcuna, Tinga, Velasco, Jr., Nachura, Reyes, Leonardo-de Castro,
JJ., concur.
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EN BANC
[G.R. Nos. 141952-53. April 20, 2001]
RODOLFO DUMAYAS, JR., petitioner, vs. COMMISSION ON ELECTIONS, THE
MUNICIPAL BOARD OF CANVASSERS OF THE MUNICIPALITY OF
CARLES, PROVINCE OF ILOILO and FELIPE BERNAL,
JR., respondents.
DECISION
QUISUMBING, J.:
In this special civil action, petitioner Rodolfo Dumayas, Jr., seeks to nullify the
Resolution promulgated March 2, 2000 by the Commission on Elections
(COMELEC) en banc, reversing that of the Second Division dated August 4, 1998,
which annulled the petitioners proclamation as Municipal Mayor of Carles, Iloilo.
The antecedent facts of the case, as found by the COMELEC en banc, are as
follows:
Petitioner Dumayas, Jr. and respondent Bernal, Jr. were rival candidates for the
position of mayor in Carles, Iloilo last 11 May 1998 synchronized elections.
During the canvassing on 13 May 1998, election returns for precincts nos. 61A, 62A,
and 63A/64A all of Barangay Pantalan were protested for inclusion in the canvass
before the Municipal Board of Canvassers (MBC for brevity) by petitioner-appellant
Dumayas Jr. The grounds relied upon for their exclusion are all the same- that
is, violation of Secs. 234, 235, 236 of the Omnibus Election Code and other election
laws; acts of terrorism, intimidation, coercion, and similar acts prohibited by law.
Appellant Dumayas, Jr. submitted his evidence to the Board of Canvassers on 14
May 1998 which consist of (a) the joint affidavits executed by LAMMP watchers for
precinct 61A: Teresita Oblido, Reyland de la Rosa, and Armando Flores [signed by
Oblido and Flores only]; (b) affidavit of petitioners supporter Virgilisa Capao; (c) joint
affidavit of precinct 63A - watcher Nona Dichosa and precinct 62A - watcher Daniel
Carmona; (d) blotter report dated 12 May 1998 of Carles PNP, Iloilo; and (d)
corroborating affidavit of LAMMP supporter Honorato Gallardo.
All the affidavits submitted by petitioner contain similar attestations such as: certain
local baranggay (sic) officials were inside the polling place during the casting and
counting of votes, or acted as watcher of respondent; SPO3 Gilbert Sorongon who
was in shorts and t-shirt armed with an armalite roamed around and inside the polling
places; a CVO in uniform was roaming precinct 63A; the presence of the public
officials posed threat and intimidation driving most of the watchers of other political
parties away; the BEIs were so intimidated and coerced that no election return was
prepared simultaneous with the tallying; the election returns were prepared under
duress; the voters were coerced to vote for certain favored candidates especially
herein respondent; petitioners watchers were made to sign or affix their thumbmarks
on the already prepared election returns; in precinct 63A/64A, the voting ended at
almost 9:00 P.M. without the BEI members writing the names of such voters.
Petitioner also submitted a certification issued by PO3 Tito Billones, Desk Officer of
PNP Carles representing the blotter report (extracted from the police log book) which
states that on 12 May 1998, Virgilisa Capao reported to the Police Station of Carles,
Iloilo that PO3 Sorongon and Brgy. Capt. Mahilum entered Precinct 63A with (sic) the
company of other CVO and Brgy. Kagawad during election. And that these people
gravely intimidated the voters by telling them the names of the candidates they should
vote for. It also states that PO3 Sorongon was not in his prescribed uniform when
seen with hand grenades hanging on his neck and carrying an armalite roaming
inside and outside the polling place.
On the other hand, respondent Bernal, Jr. in vehemently denying the allegations of
petitioner, submitted joint affidavits of the members of the different Boards of Election
Inspectors for precinct nos. 61A, 62A and 63A/64A.
xxx
All the supplemental affidavits of the different BEIs categorically declared that the
elections in their respective precincts starting from the start of the voting to its closing,
to the counting of votes and to the preparation and submission of election
returns were peaceful, clean, orderly and no acts of terrorism, intimidation, coercion
and similar acts prohibited by law was (sic) exerted on anybody including the voters
and members of the BEIs. They all attested that the incidents alleged by petitioners
watchers did not happen. The alleged terrorism, coercion, or violation of election laws
like the opening of ballots and reading the votes allegedly done by certain public
officials like SPO3 Sorongon, Nody Mahilum, Anonia Barrios, Telesforo Gallardo and
others are not true, the truth being that these people were only inside the polling
place to exercise their right of suffrage. They also vehemently denied that the election
returns were not simultaneously prepared with the tallying and counting of votes.
They stressed that as public school teachers, they cannot risk their future and career
and will not allow or tolerate anybody to make a mockery of the electoral process to
(sic) which they were duly sworn to uphold.
Nody Mahilum and PO3 Gilbert Sorongon also executed a joint affidavit denying the
accusations of Dumayas, Jr. and his watchers stating therein that they only entered
their respective precinct-polling place in order to exercise their right of suffrage and
that the election in the three precincts of Barangay Pantalan was orderly, peaceful,
and honest which (sic) truly reflects the will of the electorate.
x x x[1]
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 Laws on Suffrage
In the afternoon of May 14, 1998, the Municipal Board of Canvassers denied
petitioners objection to the inclusion of the contested returns and proceeded with the
canvass. The results of the voting were as follows:
DUMAYAS BERNAL
CONTESTED PRECINCTS
Prec. 61A 44 117
Prec. 62A 43 114
Prec. 63A/64A (clustered) 54 159
Uncontested prec[incts] total 7, 636 7, 514
Over all total 7,777 7, 904[2]
Petitioner filed a Notice of Appeal before the MBC on May 15, 1998. The appeal
was given due course by the COMELEC Second Division [3] which rendered a
resolution dated August 4, 1998, disposing as follows:
WHEREFORE, finding the preparation of the contested election returns to be tainted
with irregularities, this Commission (SECOND DIVISION) RESOLVED, as it hereby
RESOLVES, to EXCLUDE Election Return No. 3000976 from Precinct No. 61-A;
Election Return No. 3000977 from Precinct No. 62-A; and Election return No.
3000978 from Precinct Nos. 63-A/64-A (clustered).
Respondent Mun(i)cipal Board of Canvassers is hereby directed to RECONVENE and
FINISH the canvass of the remaining or uncontested returns and thereafter,
PROCLAIM the winning mayoralty candidate of Carles, Iloilo.
SO ORDERED.[4]
On August 10, 1998, private respondent Felipe Bernal, Jr., filed a motion for
reconsideration of the above-cited resolution with the COMELEC en banc.
On August 12, 1998, an order certifying that the motion for reconsideration and
records of the case were elevated to the COMELEC en banc was signed by
Commissioner Julio F. Desamito and issued by the Clerk of the Commission.
Pending resolution of the motion for reconsideration and pursuant to the
resolution of the COMELEC Second Division, Election Officer Rolando Dalen set the
reconvening of the MBC on August 13, 1998, for the continuation of canvass
proceedings and proclamation of winning candidates for Vice-Mayor and Municipal
Councilors of Carles, Iloilo. No winner for the position of Mayor was proclaimed since
private respondent was able to present a copy of his motion for reconsideration
before the MBC. The MBC then reset the date for reconvening of the board on August
17, 1998, after confirming by phone with COMELEC-Manila that a motion for
reconsideration was indeed filed by private respondent. Thereafter, the MBC ruled
that proclamation of the winning candidate for Mayor would proceed on August 17,
1998 unless private respondent could present a certification from the COMELEC that
the motion for reconsideration was elevated to the COMELEC en banc.
On August 17, 1998, despite presentation of the August 12, 1998 order,
petitioner was proclaimed winner of the election after excluding from the canvass the
election returns from the three contested precincts in accordance with the COMELEC
Second Division Resolution. The MBC, with its Vice-Chairman dissenting, justified its
act by reasoning that it did not receive an official copy of the order directing the
elevation of the case to the banc.
The following day, private respondent immediately filed an urgent motion to
declare void ab initio the proclamation of petitioner on the ground that the resolution
of the COMELEC Second Division was not yet final and executory. For his part,
petitioner opposed both the motion for reconsideration and motion to declare void ab
initio his proclamation as Mayor of Carles, asserting that private respondent failed to
show palpable errors to warrant reconsideration of said resolution and maintaining, at
the same time, that his proclamation was legal since respondent failed to produce the
certification required by the MBC.
Meanwhile, on August 25, 1998, the duly-proclaimed Vice-Mayor Arnold Betita
filed an action for quo warranto[5] against petitioner before the Regional Trial Court of
Iloilo, Branch 66.Docketed as Spl. Civil Action No. 98-141, said petition included
respondent Bernal as one of the petitioners together with Vice-Mayor Betita.
On September 18, 1998, petitioner filed before the COMELEC en banc a motion
to expunge respondent Bernals motion for reconsideration and motion to declare
petitioners proclamation void ab initio, on the ground that respondent Bernal should
be deemed to have abandoned said motions by the filing of Spl. Civil Action No. 98-
141 which, according to petitioner, is a formal election protest via quo
warranto brought before the regular courts.
In a resolution dated August 24, 1999 but promulgated on March 2, 2000, the
COMELEC en banc denied petitioners motion to expunge, thus:
WHEREFORE, premises considered, the Resolution of the Second Division is hereby
REVERSED and SET ASIDE and the proclamation of Rodolfo Dumayas, Jr. is hereby
ANNULLED. A new Municipal Board of Canvassers of Carles, Iloilo is hereby
constituted with the following members: Atty. Nelia Aureus, Chairman; Atty. Rosel
Abad, Vice-Chairman; and Atty. Manuel Lucero, Third Member -- all of Election
Contests and Adjudication Department of the Commission. They are directed to
convene at Session Hall of the COMELEC -- Main Office, Manila on the tenth (10th)
day from the date of promulgation of this Resolution with notice to the parties. The
new board of canvassers shall complete the canvassing of all the returns and
proceed with the proclamation of the true winner for the position of mayor of Carles,
Iloilo. Petitioner Rodolfo Dumayas, Jr. is hereby directed to cease and desist from
performing the functions of the office of mayor of Carles, Iloilo. Election Officer
Rolando Dalen is hereby directed to bring to the Commissions Main Office the
election returns of Carles, Iloilo which need to be canvassed and the other election
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 Laws on Suffrage
documents necessary for the canvassing and proclamation and turn them over to the
new board of canvassers.
The Law Department is directed to investigate the election offense allegedly
committed by PO3 Gilbert Sorongon on election day.
Let the Deputy Executive Director for Operations of the Commission implement this
Resolution with dispatch giving a copy thereof to the Secretary of the Department of
Interior and Local Government.
SO ORDERED.[6]
On March 13, 2000, respondent Bernal, Jr. was proclaimed by the newly-
constituted Municipal Board of Canvassers as the duly-elected Mayor of the
Municipality of Carles, thereby unseating petitioner Dumayas.
Hence, this instant special civil action where he alleges that:
A. RESPONDENT COMMISSION ERRED IN NOT HOLDING THAT,
PRIVATE RESPONDENT FELIPE BERNAL JR. IS DEEMED TO
HAVE ABANDONED HIS MOTION FOR RECONSIDERATION
BEFORE THE COMMISSION ON ELECTION EN BANC
CONSIDERING THAT PRIVATE RESPONDENT, TOGETHER WITH
ARNOLD BETITA FILED AN ELECTION CASE THRU A QUO
WARRANTO, BEFORE THE REGIONAL TRIAL COURT OF ILOILO
BRANCH 66, DOCKETED AS CASE NO. 98-141.
B. RESPONDENT COMMISSION ERRED IN UPHOLDING THE
INCLUSION FOR CANVASS THE THREE ELECTION RETURNS FOR
PRECINCT NOS. 61-A, 62-A, and 63-A/64-A (CLUSTERED) BY THE
MUNICIPAL BOARD OF CANVASSERS OF CARLES, ILOILO
NOTWITHSTANDING THE FACT THAT THERE IS CLEAR AND
SUFFICIENT EVIDENCE TO SHOW THAT THE ELECTION
RETURNS FOR THESE THREE PRECINCT(S) WERE PREPARED
UNDER DURESS AND NOT PREPARED SIMULTANEOUSLY WITH
THE COUNTING OF VOTES.
C. THE RESOLUTION PROMULGATED ON MARCH 2, 2000 IS ILLEGAL
AS IT WAS VIOLATIVE OF ARTICLE IX (A) SECTION 7 OF THE
CONSTITUTION CONSIDERING THAT ONLY FOUR
COMMISSIONERS VOTED TO REVERSE THE RESOLUTION
DATED AUGUST 4, 1998 OF THE SECOND DIVISION COMMISSION
ON ELECTION AND THAT, TWO COMMISSIONER(S) HAVE
ALREADY RETIRED, AT THE TIME OF THE PROMULGATION. [7]
The following are the issues to be resolved: (1) Should respondent Bernal, who
was named as petitioner in the quo warranto proceedings commenced before the
regular court, be deemed to have abandoned the motions he had filed with
respondent Commission? (2) Did the COMELEC err in ordering the inclusion of the
contested election returns in the canvassing of ballots? (3) In view of the retirement of
Commissioners Gorospe and Guiani before the date of the promulgation of the
assailed resolution on March 2, 2000, should said resolution be deemed null and void
for being violative of Article IX-A, Section 7 of the 1987 Constitution?
We shall first discuss the third issue. Petitioner claims that March 2, 2000
Resolution of the COMELEC is void because Commissioners Manolo Gorospe and
Japal Guiani have already retired on the date of its promulgation, even if they had
participated earlier in the deliberations of the case and signed the resolution dated
August 24, 1999. Petitioner submits that this defect invalidated the entire decision of
the Commission and that accordingly, a new vote should be taken to settle the matter.
In Jamil vs. Commission on Elections,[8] we held that a decision becomes
binding only after its promulgation. If at the time it is promulgated, a judge or member
of the collegiate court who had earlier signed or registered his vote has vacated
office, his vote on the decision must automatically be withdrawn or cancelled.
Accordingly, the votes of Commissioners Gorospe and Guiani should merely be
considered as withdrawn for the reason that their retirement preceded the resolutions
promulgation. The effect of the withdrawal of their votes would be as if they had not
signed the resolution at all and only the votes of the remaining commissioners would
be properly considered for the purpose of deciding the controversy.
However, unless the withdrawal of the votes would materially affect the result
insofar as votes for or against a party is concerned, we find no reason for declaring
the decision a nullity. In the present case, with the cancellation of the votes of retired
Commissioners Gorospe and Guiani, the remaining votes among the four incumbent
commissioners at the time of the resolutions promulgation would still be 3 to 1 in favor
of respondent. Noteworthy, these remaining Commissioners still constituted a
quorum. In our view, the defect cited by petitioner does not affect the substance or
validity of respondent Commissions disposition of the controversy. The nullification of
the challenged resolution, in our view, would merely prolong the proceedings
unnecessarily.
Now, regarding the first issue raised by petitioner. Did respondent Bernal
effectively abandon his pending motions before the COMELEC en banc by the filing
of Spl. Civil Action No. 98-141? Petitioners contention that Bernal did appears to us
untenable.
As a general rule, the filing of an election protest or a petition for quo
warranto precludes the subsequent filing of a pre-proclamation controversy or
amounts to the abandonment of one earlier filed, thus depriving the COMELEC of the
authority to inquire into and pass upon the title of the protestee or the validity of his
proclamation. The reason for this rule is that once the competent tribunal has
acquired jurisdiction of an election protest or a petition for quo warranto, all questions
relative thereto will have to be decided in the case itself and not in another
proceeding, so as to prevent confusion and conflict of authority.[9]
Nevertheless, the general rule is not absolute. It admits of certain exceptions, as
where: (a) the board of canvassers was improperly constituted; (b) quo warranto was
not the proper remedy; (c) what was filed was not really a petition for quo warranto or
an election protest but a petition to annul a proclamation; (d) the filing of a quo
warranto petition or an election protest was expressly made without prejudice to the
pre-proclamation controversy or was made ad cautelam; and (e) the proclamation
was null and void.[10]
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An examination of the petition filed primarily by Vice-Mayor Betita with the
Regional Trial Court of Iloilo City reveals that it is neither a quo warranto petition
under the Omnibus Election Code nor an election protest. In Samad vs.
COMELEC[11], we explained that a petition for quo warranto under the Omnibus
Election Code raises in issue the disloyalty or ineligibility of the winning candidate. It
is a proceeding to unseat the respondent from office but not necessarily to install the
petitioner in his place. An election protest is a contest between the defeated and
winning candidates on the ground of frauds or irregularities in the casting and
counting of the ballots, or in the preparation of the returns. It raises the question of
who actually obtained the plurality of the legal votes and therefore is entitled to hold
the office.
The allegations contained in Betitas petition before the regular court do not
present any proper issue for either an election protest or a quo warranto case under
the Omnibus Election Code.Spl. Civil Action No. 98-141 appears to be in the nature of
an action for usurpation of public office brought by Betita to assert his right to the
position of Mayor pursuant to the rules on succession of local government officials
contained in the Local Government Code.[12] Although said petition is also
denominated as a quo warranto petition under Rule 66 of the Rules of Court, it is
different in nature from the quo warranto provided for in the Omnibus Election Code
where the only issue proper for determination is either disloyalty or ineligibility of
respondent therein.Neither can it be considered as an election protest since what was
put forth as an issue in said petition was petitioners alleged unlawful assumption of
the office of Mayor by virtue of his alleged illegal proclamation as the winning
candidate in the election.
A closer look at the specific allegations in the petition disclose that Spl. Civil
Action No. 98-141 is actually an action for the annulment of petitioners proclamation
on the ground of illegality and prematurity. This conclusion is consistent with the rule
that the nature of the action is determined by the averments in the complaint or
petition[13] and not the title or caption thereof. The material stipulations of the petition
substantially state:
13. That when the Board of Canvassers convened in the afternoon and
despite the submission of the copy of the order certifying the Motion for
Reconsideration to the COMELEC En Banc and in violation of the
Comelec Rules and Procedure and due to the threat received by the
Board, Mr. Dalen, the Chairman of the Board and Mr. Serafin Provido,
Jr. signed the Certificate of Proclamation proclaiming respondent as
winner of the elections for Mayor. Mr. Deony Cabaobao did not signed
(sic) the said Certificate of Proclamation as he dissented to (sic) the
decision to proclaim respondent;
14. The proclamation, therefore, of respondent is illegal and null and void
from the very beginning for it was done in violation of law and under
duress. The affidavit of Mr. Serafin Provido, Jr. a member of the Board
of Canvassers showing duress is hereto attached as Annex C;
15. On account of the illegal proclamation of the respondent said
proclamation does not vest any right or authority for him to sit as Mayor
of the town of Carles thus when he sits as such Mayor he usurps,
intrudes into, and unlawfully holds and exercise(s) a public office
without authority;
16. The authority to act as mayor for and in the absence of the duly
proclaimed mayor is vested on petitioner Betita pursuant to law;
17. That the continued unlawful exercise by the respondent of the position
of mayor of the town of Carles will cause great and irreparable damage
to the petitioners, particularly petitioner Betita, who pursuant to law is
entitled to act as Mayor of the town of Carles and the people of Carles
who pays his salaries unless he be restrained or enjoined from sitiing
(sic) as such Mayor;
x x x [14]
Thus, respondent Commission did not err, much less abuse its discretion, when
it refused to consider as abandoned Bernals motion for reconsideration and urgent
motion to declare petitioners proclamation as void ab initio. Note that under the
allegations cited above, the determination of Betitas right would ultimately hinge on
the validity of petitioners proclamation in the first place. To repeat, the quo
warranto petition brought by Vice-Mayor Betita is a petition to annul petitioners
proclamation over which COMELEC exercises original exclusive
jurisdiction.Consequently, it could not be deemed as a proper remedy in favor of
respondent Bernal, Jr. even if his name was included in the title of said petition.
We now consider whether the MBCs proclamation of petitioner Dumayas as the
winning candidate in the 1998 mayoralty election is null and void. For where a
proclamation is null and void, it is no proclamation at all such that the proclaimed
candidates assumption of office cannot deprive the COMELEC of the power to
declare such nullity and annul the proclamation.[15]
Although petitioners proclamation was undertaken pursuant to the resolution of
the COMELECs Second Division, it appears plain to us that the latter grievously erred
in ordering the exclusion of the contested returns from Precincts 61A, 62A and
63A/64A (clustered). On this score, the Comelec en banc correctly reversed the
Second Division by holding that petitioner Dumayas failed to justify the exclusion of
said returns on the ground of duress, intimidation, threat or coercion. We note that the
only evidence submitted by petitioner to prove said irregularities were self-serving
affidavits executed by his watchers and supporters. Aside from the fact that these
allegations were countered by opposing affidavits made by the members of the
Boards of Election Inspectors who are presumed to have regularly performed their
duties[16] and who categorically denied the allegations, the election returns were also
observed to be genuine, clean, signed and/or thumbmarked by the proper officials
and watchers.[17]
Well-entrenched is the rule that findings of fact by the COMELEC or any other
administrative agency exercising particular expertise in its field of endeavor, are
binding on this Court.[18] In a pre-proclamation controversy, the board of canvassers
and the COMELEC are not required to look beyond or behind the election returns
which are on their face regular and authentic. Where a party seeks to raise issues the
resolution of which would necessitate the COMELEC to pierce the veil of election
returns which are prima facie regular, the proper remedy is a regular election protest,
not a pre-proclamation controversy.[19]
In the present case, petitioner barely alleged that the preparation of said returns
was attended by threats, duress, intimidation or coercion without offering any proof,
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other than the affidavits mentioned above, that these had affected the regularity or
genuineness of the contested returns. Absent any evidence appearing on the face of
the returns that they are indeed spurious, manufactured or tampered with, the
election irregularities cited by petitioner would require the reception of
evidence aliunde which cannot be done in a pre-proclamation controversy such as
the one initiated by petitioner. Returns can not be excluded on mere allegation that
the returns are manufactured or fictitious when the returns, on their face, appear
regular and without any physical signs of tampering, alteration or other similar vice. If
there had been sham voting or minimal voting which was made to appear as normal
through falsification of the election returns, such grounds are properly cognizable in
an election protest and not in a pre-proclamation controversy.[20]
In sum, we hold that the COMELEC en banc did not commit grave abuse of
discretion in reversing the ruling of its Second Division. The appeal brought by
petitioner from the order of inclusion issued by the MBC should have been dismissed
by that Division right away, since the grounds for exclusion relied upon by petitioner
are not proper in a pre-proclamation case, which is summary in nature.
WHEREFORE, the instant petition is DISMISSED for lack of merit, public
respondent having committed no grave abuse of discretion. Its challenged resolution
dated August 24, 1999 is AFFIRMED. Costs against petitioner.
SO ORDERED.

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EN BANC CHICO-NAZARIO,
 
GARCIA,
MAYOR NOEL E. ROSAL, G.R. No. 168253
VELASCO, JR. and
Petitioner,
NACHURA, JJ.
 
 
- v e r s u s -
COMMISSION ON ELECTIONS
 
and MICHAEL VICTOR IMPERIAL,
COMMISSION ON ELECTIONS,
Respondents. Promulgated:
Second Division, and MICHAEL
 
VICTOR IMPERIAL,
March 16, 2007
Respondents.
 
x- - - - - - - - - - - - - - - - - - - - - - - - x
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
 
DECISION
MAYOR NOEL E. ROSAL, G.R. No. 172741  

Petitioner, CORONA, J.:

Present:  

PUNO, C.J., Petitioner Noel E. Rosal and private respondent Michael Victor C. Imperial
were candidates for mayor of Legaspi City in the May 10, 2004 elections. After the
QUISUMBING, counting and canvassing of votes, petitioner was proclaimed as the duly elected
mayor of Legaspi City, having received 44,792 votes over private respondents 33,747
YNARES-SANTIAGO, and thereby winning by a margin of 11,045 votes.

SANDOVAL-GUTIERREZ,  

CARPIO, On May 24, 2004, private respondent instituted a petition to annul the proclamation,
[1]
 assailing the canvass of election returns in the 520 precincts that had functioned
AUSTRIA-MARTINEZ, during the election. On July 6, 2004, the case was superseded by an election protest
filed by private respondent with the Commission on Elections (Comelec) contesting
- v e r s u s - CORONA, the results of the election in all 520 precincts on the grounds of miscounting,
misreading and misappreciation of votes, substitute voting, disenfranchisement of
CARPIO MORALES, voters, substitution and padding of votes, and other alleged irregularities. The protest
was docketed as EPC No. 2004-61 and raffled to the Second Division of the
CALLEJO, SR.,* Comelec.

AZCUNA,  

TINGA,

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After an initial hearing on private respondents protest and petitioners answer, the
Second Division issued on November 17, 2004 an order directing the collection of the
ballot boxes from the contested precincts and their delivery to the Comelec. On
December 16, 2004, private respondent filed a manifestation[2] apprising the Second
Division of the fact that out of the 520 ballot boxes retrieved for delivery to the
Comelec, 95 had no plastic seals, 346 had broken plastic seals and only 79 remained
intact with whole plastic seals and padlocks.
Revision of the contested ballots commenced in mid-January of 2005[3] and concluded
on February 2, 2005. The revision report indicated a reduction in petitioners vote
count from 44,792 votes to 39,752 and an increase in that of private respondent from
22,474 to 39,184 votes. Shortly thereafter, petitioner filed a motion for technical
examination of contested ballots on the ground that thousands of ballots revised by
the revision committees were actually spurious ballots that had been stuffed inside
the ballot boxes sometime after the counting of votes but before the revision
proceedings. The Second Division denied the motion.
 
After the revision, the case was set for hearing on February 24, 2005. In that hearing,
private respondent manifested that he would no longer present testimonial evidence
and merely asked for time to pre-mark his documentary evidence. On March 9, 2005,
private respondent filed his formal offer of evidence, thereby resting his case and
signaling petitioners turn to present evidence in his defense.
On March 17, 2005, the first hearing set for the presentation of his evidence,
petitioner was directed to pre-mark his exhibits and formalize his intention to have his
witnesses subpoenaed. Accordingly, petitioner filed on April 11, 2005 a motion for
issuance of subpoena duces tecum and ad testificandum to witnesses whose
testimonies would allegedly prove that a significant number of the revised ballots
were not the same ballots that had been read and counted by the Board of Election
Inspectors (BEI) during the election.
In an order dated April 25, 2005,[4] the Second Division ruled that the
testimonies of the proposed witnesses were unnecessary inasmuch as the Comelec
had the authority and wherewithal to determine by itself the ballots authenticity and,
for that reason, denied the motion and directed petitioner to file forthwith his formal
offer of evidence.
 
Asserting his right to present evidence in his defense, petitioner filed on May
6, 2005 a motion for reconsideration of the April 25, 2005 order. In an order dated
May 12, 2005, the Second Division denied the motion.
On June 4, 2005, petitioner filed an Ad Cautela (sic)  Offer of Protestees
Evidence[5] as a precautionary measure against the foreclosure of his right to comply
with the Second Divisions April 25, 2005 order. Petitioners evidence included: (1)
provincial election supervisor Serranos report that, at the time he took custody of the
ballot boxes, their security seals bore signs of having been tampered with and (2) the
affidavits of 157 BEI chairpersons who swore to the effect that the authenticating
signatures on certain ballots[6] identified and enumerated in their affidavits (that is,
signatures purporting to be theirs) were clear forgeries.
On June 15, 2005, petitioner filed in this Court a petition for certiorari [7] under
Rule 65 of the Rules of Court (docketed as G.R. No. 1628253) assailing the April 25
and May 12, 2005 orders of the Comelecs Second Division for having been rendered
with grave abuse of discretion. Petitioner complained, in substance, that the Second
Division had, by these orders, denied him due process by effectively depriving him of
a reasonable opportunity to substantiate with competent evidence his contention that
the revised ballots were not the same ballots cast and counted during the elections,
meaning, the revised ballots were planted inside the ballot boxes after the counting of
votes (in place of the genuine ones) pursuant to a fraudulent scheme to manufacture
grounds for a successful election protest.
 
Meanwhile, the Second Division continued with the proceedings and,
following the submission of the parties memoranda, considered EPC No. 2004-61
submitted for resolution.
In a resolution[8] dated January 23, 2006, the Second Division then
composed of only two sitting members, namely, Presiding Commissioner Mehol
Sadain (now retired) and Commissioner Florentino Tuason, Jr. declared private
respondent Imperial the winning candidate for mayor of Legaspi City and ordered
petitioner Rosal to vacate said office and turn it over peacefully to private respondent.
 
Commissioner Sadain, who wrote the main opinion, relied on the election
return count only in precincts the ballot boxes of which were found to contain fake
ballots notwithstanding petitioners assertion that genuine but otherwise invalid ballots
might have been switched with the ones actually cast in the elections. These
numbered a mere 129 precincts. For the rest, he examined, appreciated and counted
the ballots themselves, invalidating in the process over 14,000 ballots cast for
petitioner for having been written by two persons or for being in groups written by one
hand. Commissioner Sadain ended up crediting private respondent with 32,660 valid
votes over 30,517 for petitioner.
Commissioner Tuason filed a separate concurring opinion[9] manifesting
disagreement with Commissioner Sadains appreciation of certain ballots but arriving
at the same practical result.
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On January 30, 2006, petitioner filed a motion for reconsideration of the
Second Divisions resolution. The motion was denied by the Comelec en banc  in a
resolution dated May 29, 2006.[10] In due time, petitioner came to this Court with a
petition for certiorari and prohibition assailing the Comelec en banc resolution. The
case was docketed as G.R. No. 172741 and consolidated with G.R. No. 168253.[11]
INTERLOCUTORY ORDERS
AND RULE 65
 
 
 
Before focusing on the merits of this case, the Court sees fit to address a
procedural concern with respect to G.R. No. 168253. Private respondent has
persistently thrust upon us the proposition that the April 25, 2005 order subject of the
petition in G.R. No. 168253, being, as it is, an interlocutory order rendered by a
division of the Comelec, cannot be assailed by means of a special civil action for
certiorari, as only final orders of the Comelec en banc can be brought to the Supreme
Court by that mode.
We disagree. Section 1, Rule 65 of the Rules of Court, which governs petitions for
certiorari, provides that:
 
When any tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction, and there is no appeal, or any plain, speedy,
and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of such tribunal,
board or officer, and granting such incidental reliefs as law and
justice may require.
 
xxx xxx xxx
Under the foregoing provision, one may resort to a special civil action for
certiorari under three conditions:
(1)              the petition must be directed against a tribunal, board or officer
exercising judicial or quasi-judicial functions;
(2)              the tribunal, board or officer has acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction; and
(3)              there is no plain, speedy and adequate remedy in the ordinary
course of law.
 
Other than these three, the Supreme Courts jurisdiction over petitions for
certiorari has no preset boundaries. Any  act by an officer or entity exercising judicial
or quasi-judicial functions, if done without or in excess of jurisdiction or with grave
abuse of discretion, may be assailed by means of a special civil action for certiorari
when no appeal or any other plain, speedy and adequate remedy in the ordinary
course of law is available. In other words, no judicial or quasi-judicial act or order is
excluded a priori from the ambit of the Supreme Courts power to correct through the
writ of certiorari. It is therefore incorrect to say that interlocutory orders issued by a
division of the Comelec, or by any judicial or quasi-judicial body for that matter, are
beyond the reach of this Court.
 
That the Supreme Court has jurisdiction over petitions for certiorari assailing
interlocutory orders rendered by a Comelec division from which no recourse to the
Comelec en banc could be had was, in fact, acknowledged in Kho v. Commission on
Elections.[12] In that case, Kho, an election protestant, filed a petition for certiorari in
the Supreme Court questioning the Comelec First Divisions interlocutory orders
relating to the admission of his opponents belatedly filed answer.
 
One of the issues in Kho was whether the controversial orders should have
first been referred to the Comelec en banc. Citing Section 5(c), Rule 3 of the Comelec
Rules of Procedure which states that:
 
[a]ny motion to reconsider a decision, resolution, order or ruling of a
Division shall be resolved by the Commission en banc except
motions on interlocutory orders of the division which shall be
resolved by the division which issued the order
this Court ruled that the authority to resolve such incidental matters fell on the division
itself. The Court went on to say that:
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 Laws on Suffrage
 
where the Commission in division committed grave abuse of
discretion or acted without or in excess of jurisdiction in issuing
interlocutory orders relative to an action pending before it and the
controversy did not fall under any of the instances mentioned in
Section 2, Rule 3 of the COMELEC Rules of Procedure [which
enumerates the cases in which the Comelec may sit en banc],
[13]
 the remedy of the aggrieved party is not to refer the controversy
to the Commission en banc as this is not permissible under its
present rules but to elevate it to this Court via a petition for certiorari
under Rule 65 of the Rules of Court.[14]
 
In fine, Kho tells us that an interlocutory order of a Comelec division should
be challenged at the first instance through a proper motion, such as a motion for
reconsideration, filed with the division that rendered the order. If that fails and no
other plain, speedy and adequate remedy (such as recourse to the Comelec en banc)
is available, the party aggrieved by the interlocutory order may elevate the matter to
the Supreme Court by means of a petition for certiorari on the ground that the order
was issued without or in excess of jurisdiction or with grave abuse of discretion.
 
Private respondent asserts, however, that Kho has been superseded by the
more recent case of Repol v. Commission on Elections[15] from which he cites the
dictum that:
 
[t]he Supreme Court has no power to review via certiorari an
interlocutory order or even a final resolution of a Division of the
COMELEC. Failure to abide by this procedural requirement
constitutes a ground for dismissal of the action.[16]
Again, we disagree.
There is no contradiction between Kho and Repol that calls for the
application of the doctrine that a later judgment supersedes a prior one in case of
inconsistency. In Repol, the petitioner went directly to the Supreme Court from an
interlocutory order of the Comelec First Division without first filing a motion for
reconsideration with said division. That was properly a cause for concern inasmuch
as failure to move for reconsideration of the act or order before challenging it through
a petition for certiorari often constitutes a ground for dismissal for non-compliance
with the condition in Rule 65: that resort to certiorari should be justified by the
unavailability of an appeal or any other plain, speedy and adequate remedy in the
ordinary course of law. In the end, however, the Court in Repol applied the ruling
in ABS-CBN Broadcasting Corporation v. COMELEC[17] that an exception to the
procedural requirement of filing a motion for reconsideration was warranted since
there was hardly enough time to move for reconsideration and obtain a swift
resolution in time for the impending elections.
 
A sensible reading of our decision shows that Repol was not a negation or
repudiation of this Courts jurisdiction over petitions for certiorari from interlocutory
orders rendered by a Comelec division. Had it been so, then we would have
dismissed the petition on the ground that it was beyond our jurisdiction. Rather, this
Court in Repol merely applied the rule that a petition for certiorari must be justified by
the absence of a plain, speedy and adequate remedy in the ordinary course of law;
we said that the rule had been satisfied inasmuch as a motion for reconsideration was
not a plain, speedy and adequate remedy under the circumstances.
 
Repol therefore merely serves as a reminder that, in a petition for certiorari
from an interlocutory order, the petitioner bears the burden of showing that the
remedy of appeal taken after a judgment or final order (as opposed to an interlocutory
one) has been rendered will not afford adequate and expeditious relief,[18] as it is often
the better practice for a party aggrieved by an interlocutory order to continue with the
case in due course and, in the event of an adverse decision, appeal from it and
include the interlocutory order as one of the errors to be corrected by the reviewing
body.
 
In this instance, petitioner filed a motion for reconsideration of the Second
Divisions order. When that failed, no other speedy and adequate remedy against the
unpardonable vices attending the Second Divisions treatment of the election protest
was left to him except recourse to this Court under Rule 65. Under the circumstances,
he was without the shadow of a doubt justified in taking it.
 
 
 
ELECTION PROTEST AND
BALLOTS AS EVIDENCE
 
It will be recalled that the Second Division had been apprised of the ballot
boxes impaired condition even prior to the commencement of the revision
proceedings. This notwithstanding, it brushed aside petitioners protestations that he
was the victim of an ingenious post-election fraud involving infiltration of the ballot
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 Laws on Suffrage
boxes and the clever switching of ballots actually cast with invalid ones to ensure his before the ballots found in a box can be used to set aside the returns, the court (or
defeat in the election protest. The division ruled that: the Comelec as the case may be) must be sure that it has before it the same ballots
deposited by the voters.[23]
 
 
mere allegations cannot suffice to convince this Commission that
switching of ballots has occurred, absent any positive and direct PROCEDURE TO ADDRESS
evidence in the form of fake ballots themselves being found among
genuine ballots. Regardless of any technical examination that may POST-ELECTION FRAUD
have been conducted or testimonial evidence presented, as
emphatically moved by the protestee but denied by the  
Commission, the best proof of the alleged substitution of ballots is
the ballots themselves. And the process by which this proof is  
established is by way of an evaluation of the ballots by the
Commission itself during its appreciation of the revised ballots.[19]  

 
On the basis of this reasoning, the Second Division proceeded with an
appreciation and recount of the ballots from over 300 precincts and set aside the
physical count of the revised ballots in favor of the election returns only in precincts
the ballot boxes of which were found to contain spurious ballots.
In view of the facts of this case, the Court cannot but hold that the Second
Division adopted a manifestly unreasonable procedure, one totally unfit to address
the single most vital threshold question in an election protest, namely, whether the
ballots found in the ballot boxes during the revision proceedings were the same
ballots that were cast and counted in the elections.
 
How, then, can one establish that the ballots sought to be revised are the
same ballots cast by the voters during the elections? Obviously, the proof cannot be
supplied by an examination of the ballots themselves, their identity being the very fact
in dispute. Answers may be found in abundance in the early case of Cailles v.
Gomez[24] in which the following doctrines were quoted with favor:
In an election contest the ballots cast by the voters is the primary
and best evidence of the intention of the voters, but the burden of
proof is on the contestor to show that the ballots have been
preserved in the manner provided by law and have not been
tampered with, and the fact that the ballots have been in the
custody of the proper officers from the time of the canvass to the
time of the recount is only prima facie and not conclusive proof of
their integrity.

The purpose of an election protest is to ascertain whether the candidate  

proclaimed elected by the board of canvassers is the true and lawful choice of the
electorate.[20] Such a proceeding is usually instituted on the theory that the election
returns, which are deemed prima facie to be true reports of how the electorate voted
on election day[21] and which serve as the basis for proclaiming the winning candidate,
do not accurately reflect the true will of the voters due to alleged irregularities that
attended the counting of ballots. In a protest prosecuted on such a theory, the
protestant ordinarily prays that the official count as reflected in the election returns be
set aside in favor of a revision and recount of the ballots, the results of which should
be made to prevail over those reflected in the returns pursuant to the doctrine that in
an election contest where what is involved is the number of votes of each candidate,
the best and most conclusive evidence are the ballots themselves.[22]
In an election contest the rule that as between the ballots and the
canvass of them, the ballots control, has no application where the
ballots have been tampered with. The court must be sure that it has
before it the identical and unaltered ballots deposited by the voters
before they become controlling as against the certificate of the
election officers of the result of the canvass.
 
xxx xxx xxx

   

It should never be forgotten, though, that the superior status of the ballots as
evidence of how the electorate voted presupposes that these were the very same
ballots actually cast and counted in the elections. Thus, it has been held that

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 Laws on Suffrage
Where an official count has been made, it is better evidence of who
was elected than the ballots, unless he who discredits the count
shows affirmatively that the ballots have been preserved with a care
which precludes the opportunity of tampering and all suspicion of
change, abstraction or substitution.
 
The law is well settled that the burden of proof is on the plaintiff,
when he seeks to introduce the ballots to overturn the official count,
to show affirmatively that the ballots have not been tampered with,
and that they are the genuine ballots cast by the voters.
 
In an action to contest the right of a party to an office to which he
has been declared elected, the returns of the election boards
should be received as prima facie true. In order to overcome this
evidence by a recount of the ballots cast at the election, the
contestant must affirmatively prove that the ballots have not been
tampered with, and that they remained in the same condition as
they were when delivered to the proper custody by the judges of
election. If it appear to the satisfaction of the court that the ballots
have not been tampered with, it should adopt the result as shown
by the recount, and not as returned by the election board.
xxx xxx xxx
The principles of law and the rules of evidence governing cases
such as this have been so often declared that a review of the many
authorities is unnecessary. Those curious or interested in pursuing
the subject will find in the reporter's notes, preceding, many
instructive cases collated by the industry of counsel. Suffice it here
to say that, while the ballots are the best evidence of the manner in
which the electors have voted, being silent witnesses which can
neither err nor lie, they are the best evidence only when their
integrity can be satisfactorily established. One who relies, therefore,
upon overcoming the prima facie correctness of the official canvass
by a resort to the ballots must first show that the ballots, as
presented to the court, are intact and genuine. Where a mode of
preservation is enjoined by the statute proof must be made of a
substantial compliance with the requirements of that mode. But
such requirements are construed as directory merely, the object
looked to being the preservation inviolate of the ballots. If this is
established it would be manifestly unjust to reject them merely
because the precise mode of reaching it had not been followed.
So, too, when a substantial compliance with the provisions of the
statute has been shown, the burden of proof shifts to the contestee
of establishing that, notwithstanding this compliance, the ballots
have in fact been tampered with, or that they have been exposed
under such circumstances that a violation of them might have taken
place. But this proof is not made by a naked showing that it was
possible for one to have molested them. The law cannot guard
against a mere possibility, and no judgment of any of its courts is
ever rendered upon one.
 
The probative value of the result of the return made by the board of
inspectors is a question already settled at various times by the
courts of the United States. In the case of Oakes vs. Finlay, the
following doctrine was laid:
 
The returns of an election board, when legally
and properly authenticated, are not only
conclusive upon the board of canvassing officers,
but are also prima facie evidence of the number
of votes cast, in a proceeding to contest the
election; and the burden of proof is upon the
person who assails the correctness of these
returns.
In the case of Stafford vs. Sheppard, the court said:
 
Certificates of the result of an election, made by
the commissioners at the precincts, are prima
facie evidence of the result of the election. The
ballots, if identified as the same cast, are primary
and higher evidence; but, in order to continue the
ballots as controlling evidence, it must appear
that they have been preserved in the manner and
by the officers prescribed by the statute, and that,
while in such custody, they have not been
changed or tampered with. (internal citations
omitted)[25]
 
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We summarize the foregoing doctrines: (1) the ballots cannot be used to
overturn the official count as reflected in the election returns unless it is first shown
affirmatively that the ballots have been preserved with a care which precludes the
opportunity of tampering and all suspicion of change, abstraction or substitution; (2)
the burden of proving that the integrity of the ballots has been preserved in such a
manner is on the protestant; (3) where a mode of preserving the ballots is enjoined by
law, proof must be made of such substantial compliance with the requirements of that
mode as would provide assurance that the ballots have been kept inviolate
notwithstanding slight deviations from the precise mode of achieving that end; (4) it is
only when the protestant has shown substantial compliance with the provisions of law
on the preservation of ballots that the burden of proving actual tampering or the
likelihood thereof shifts to the protestee and (5) only if it appears to the satisfaction of
the court or Comelec that the integrity of the ballots has been preserved should it
adopt the result as shown by the recount and not as reflected in the election returns.
Our election laws are not lacking in provisions for the safekeeping and
preservation of the ballots. Among these are Sections 160, 217, 219 and 220 of the
Omnibus Election Code[26] which provide:
 
SECTION 160. Ballot boxes. (a) There shall be in each polling
place on the day of the voting a ballot box one side of which shall
be transparent which shall be set in a manner visible to the voting
public containing two compartments, namely, the compartment for
valid ballots which is indicated by an interior cover painted white
and the compartment for spoiled ballots which is indicated by an
interior cover painted red. The boxes shall be uniform throughout
the Philippines and shall be solidly constructed and shall be closed
with three different locks as well as three numbered security locks
and such other safety devices as the Commission may prescribe in
such a way that they can not be opened except by means of three
distinct keys and by destroying such safety devices.
 
(b) In case of the destruction or disappearance of any ballot box on
election day, the board of election inspectors shall immediately
report it to the city or municipal treasurer who shall furnish another
box or receptacle as equally adequate as possible. The election
registrar shall report the incident and the delivery of a new ballot
box by the fastest means of communication on the same day to the
Commission and to the provincial election supervisor.
 
SECTION 217. Delivery of the ballot boxes, keys and election
supplies and documents. Upon the termination of the counting of
votes, the board of election inspectors shall place in the
compartment for valid ballots, the envelopes for used ballots
hereinbefore referred to, the unused ballots, the tally board or
sheet, a copy of the election returns, and the minutes of its
proceedings, and then shall lock the ballot box with three padlocks
and such safety devices as the Commission may prescribe.
Immediately after the box is locked, the three keys of the padlocks
shall be placed in three separate envelopes and shall be sealed
and signed by all the members of the board of election inspectors.
The authorized representatives of the Commission shall forthwith
take delivery of said envelopes, signing a receipt therefor, and
deliver without delay one envelope to the provincial treasurer,
another to the provincial fiscal and the other to the provincial
election supervisor.
The ballot box, all supplies of the board of election inspectors and
all pertinent papers and documents shall immediately be delivered
by the board of election inspectors and the watchers to the city or
municipal treasurer who shall keep his office open all night on the
day of election if necessary for this purpose, and shall provide the
necessary facilities for said delivery at the expense of the city or
municipality. The book of voters shall be returned to the election
registrar who shall keep it under his custody. The treasurer and the
election registrar, as the case may be, shall on the day after the
election require the members of the board of election inspectors
who failed to send the objects referred to herein to deliver the same
to him immediately and acknowledge receipt thereof in detail.
 
SECTION 219. Preservation of the ballot boxes, their keys and
disposition of their contents. (a) The provincial election
supervisor, the provincial treasurer and the provincial fiscal shall
keep the envelope containing the keys in their possession intact
during the period of three months following the election. Upon the
lapse of this period, unless the Commission has ordered otherwise,
the provincial election supervisor and the provincial fiscal shall
deliver to the provincial treasurer the envelope containing the keys
under their custody.
 
(b) The city and municipal treasurer shall keep the ballot boxes
under their responsibility for three months and stored unopened in a
secure place, unless the Commission orders otherwise whenever
said ballot boxes are needed in any political exercise which might
be called within the said period, provided these are not involved in
any election contest or official investigation, or the Commission or
other competent authority shall demand them sooner or shall order
their preservation for a longer time in connection with any pending
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contest or investigation. However, upon showing by any candidate
that the boxes will be in danger of being violated if kept in the
possession of such officials, the Commission may order them kept
by any other official whom it may designate. Upon the lapse of said
time and if there should be no order to the contrary, the
Commission may authorize the city and municipal treasurer in the
presence of its representative to open the boxes and burn their
contents, except the copy of the minutes of the voting and the
election returns deposited therein which they shall take and keep.
 
(c) In case of calamity or fortuitous event such as fire, flood, storm,
or other similar calamities which may actually cause damage to the
ballot boxes and/or their contents, the Commission may authorize
the opening of said ballot boxes to salvage the ballots and other
contents by placing them in other ballot boxes, taking such other
precautionary measures as may be necessary to preserve such
documents.
SECTION 220. Documents and articles omitted or erroneously
placed inside the ballot box. If after the delivery of the keys of the
ballot box to the proper authorities, the board of election inspectors
shall discover that some documents or articles required to be
placed in the ballot box were not placed therein, the board of
election inspectors, instead of opening the ballot box in order to
place therein said documents or articles, shall deliver the same to
the Commission or its duly authorized representatives. In no
instance shall the ballot box be reopened to place therein or take
out therefrom any document or article except to retrieve copies of
the election returns which will be needed in any canvass and in
such excepted instances, the members of the board of election
inspectors and watchers of the candidates shall be notified of the
time and place of the opening of said ballot box: Provided, however,
That if there are other copies of the election returns outside of the
ballot box which can be used in canvass, such copies of the
election returns shall be used in said canvass and the opening of
the ballot box to retrieve copies of the election returns placed
therein shall then be dispensed with.
Additional safeguards were provided for in Comelec Resolution No. 6667
(General Instructions for the Boards of Election Inspectors on the Casting and
Counting of Votes in Connection with the May 10, 2004 National and Local Elections)
which laid down the following directives:
 
Section 50. Disposition of ballot boxes, keys, election returns and
other documents. - Upon the termination of the counting of votes
and the announcement of the results of the election in the precinct,
the BEI shall:
a.                   Place the following documents inside the
compartment of the ballot box for valid ballots.
 
1.      Envelope containing used/counted official ballots;
2.      Envelope containing excess/marked/spoiled/half of torn
unused official ballots;
3.      Envelope containing the copy of the election returns for
the ballot box;
4.      Envelope containing one copy of the Minutes of Voting
and Counting of Votes (copy for the ballot box);
5.      Tally Board; and
6.      Stubs of used pads of official ballots.
 
b.                  Close the inner compartments of the ballot box, lock
them with one (1) self-locking fixed-length seal and then
lock the outer cover with the (3) padlocks and one (1) self-
locking fixed-length seal. The three keys to the padlocks
shall be placed in separate envelopes which shall be
sealed and signed by all members of the BEI;
c.                   Deliver the ballot box to the city or municipal
treasurer. In case the ballot box delivered by the BEI was
not locked and/or sealed, the treasurer shall lock and/or
seal the ballot box. The treasurer shall include such fact,
including the serial number of the self-locking fixed-length
seal used, in his report to the Commission;
d.                  Deliver to the Election Officer:
xxx xxx xxx
 
5.      Three (3) envelopes, each containing a key to a padlock
of the ballot box which shall be delivered, under proper receipt,
by the election officer to the provincial election supervisor, the
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provincial prosecutor and the provincial treasurer. In the case
of cities whose voters do not vote for provincial officials, and
municipalities in the National Capital Region, the election
officer shall retain one envelope and distribute the two other
envelopes to the city/municipal prosecutor and city/municipal
treasurer, as the case may be.
 
xxx xxx xxx
 
The ballot box, all supplies of the BEI and all pertinent papers and
documents shall immediately be delivered by the BEI, accompanied
by watchers, to the city/municipal treasurer. For this purpose, the
city/municipal treasurer shall, if necessary, keep his office open all
night on the day of the election and shall provide the necessary
facilities for said delivery at the expense of the city/municipality.
Section 52. Omission or erroneous inclusion of documents in ballot
box. - If after locking the ballot box, the BEI discovers that some
documents or articles required to be placed in the ballot box were
not placed therein, the BEI, instead of opening the ballot box in
order to place therein said documents or articles, shall deliver the
same to the election officer. In no instance shall the ballot box be
reopened to place therein or to take out therefrom any document or
article except in proper cases and with prior written authority of the
Commission, or its duly authorized official, to retrieve copies of the
election returns which will be needed in any canvass. In such
instance, the members of the BEI and the watchers shall be notified
of the time and place of the opening of said ballot box. However, if
there are other copies of the election returns outside of the ballot
box which can be used in the canvass, such copies of the election
returns shall be used in said canvass and the opening of the ballot
box to retrieve copies of the election returns placed therein shall
then be dispensed with.
 
In case the BEI fails to place the envelope containing the counted
ballots inside the ballot box, the election officer shall, with notice to
parties, deposit said envelopes in a separate ballot box which shall
be properly sealed, padlocked and stored in a safe place in his
office. Said ballot boxes shall remain sealed unless otherwise
ordered by the Commission.
 
 
As made abundantly clear by the foregoing provisions, the mode of
preserving the ballots in this jurisdiction is for these to be stored safely in sealed and
padlocked ballot boxes which, once closed, shall remain unopened unless otherwise
ordered by the Comelec in cases allowed by law. The integrity of the ballots and
therefore their probative value, as evidence of the voters will, are contingent on the
integrity of the ballot boxes in which they were stored. Thus, it is incumbent on the
protestant to prove, at the very least, that the safety features meant to preserve the
integrity of the ballot boxes and their contents were installed and that these remained
in place up to the time of their delivery to the Comelec for the revision proceedings. If
such substantial compliance with these safety measures is shown as would preclude
a reasonable opportunity of tampering with the ballot boxes contents, the burden
shifts to the protestee to prove that actual tampering took place. If the protestee fails
to discharge this burden, the court or the Comelec, as the case may be, may proceed
on the assumption that the ballots have retained their integrity and still constitute the
best evidence of the election results. However, where a ballot box is found in such a
condition as would raise a reasonable suspicion that unauthorized persons could
have gained unlawful access to its contents, no evidentiary value can be given to the
ballots in it and the official count reflected in the election return must be upheld as the
better and more reliable account of how and for whom the electorate voted.
 
The procedure adopted by the Second Division was a complete inverse of
the one outlined above and was contrary to reason. There was complete arbitrariness
on its part.
 
First, there was no indication at all that it ever considered the condition of the
ballot boxes at the time they were delivered to the Comelec for revision. We find this
rather puzzling, considering that it had been apprised of such information even before
revision and even its own Rules of Procedure on election protests requires the
revision committee to make a statement of the condition in which the ballot boxes and
their contents were found upon the opening of the same [27] in recognition of the vital
significance of such facts.
 
Second, it placed the burden of proving actual tampering of the ballots on
petitioner herein (the protestee below) notwithstanding private respondents previous
manifestation that most of the ballot boxes bore overt signs of tampering [28] and only
79 ballot boxes were found intact.
 
Third, instead of diligently examining whether the ballot boxes were
preserved with such care as to preclude any reasonable opportunity for tampering
with their contents, the Second Division made the probative value of the revised
ballots dependent solely on whether spurious ballots were found among them. It
failed to recognize that, in view of reports that the ballot boxes had been tampered
with and allegations that their contents had been switched with genuine but invalid
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ballots, the question of whether the revised ballots could be relied on as the same shall exclude from the recount the ballots from these precincts and
ones cast and counted during the elections could not obviously be settled by an shall rely instead on the official count stated in the election returns.
examination of the ballots themselves. Clearly, the time when these were deposited in
the ballot boxes a detail of utmost importance could not possibly have been  
determined by that means.
The status quo ante order issued by this Court on June 7, 2006 is, for all
  intents and purposes consistent with this decision, hereby MAINTAINED.

These errors on the part of the Second Division were infinitely far from  
harmless; the proper legal procedure could have made a substantial difference in the
result of the election protest and most certainly could have led to a better SO ORDERED.
approximation of the true will of the electorate. This, in the final analysis, is what
election protests are all about.

Under the circumstances, the question as to who between the parties was
duly elected to the office of mayor cannot be settled without further proceedings in the
Comelec. In keeping with the precepts laid down in this decision, the Comelec must
first ascertain, after due hearing, whether it has before it the same ballots cast and
counted in the elections. For this purpose, it must determine: (1) which ballot boxes
sufficiently retained their integrity as to justify the conclusion that the ballots contained
therein could be relied on as better evidence than the election returns and (2) which
ballot boxes were in such a condition as would afford a reasonable opportunity for
unauthorized persons to gain unlawful access to their contents. In the latter case, the
ballots must be held to have lost all probative value and cannot be used to set aside
the official count reflected in the election returns.

WHEREFORE, the petitions are GRANTED. The April 25 and May 12, 2005

orders and the January 23, 2006 resolution of the Commission on Elections Second
Division and the May 29, 2006 resolution of the Commission on Elections en banc in
EPC No. 2004-61 are hereby declared NULL and VOID. The Commission on
Elections is hereby DIRECTED to determine, with utmost dispatch and all due regard
for the parties right to be heard, the true result of the 2004 elections for mayor of
Legaspi City. To this end, it shall:

(1)              identify the precincts the ballot boxes of which were found intact
with complete and undamaged seals and padlocks or were
otherwise preserved with such substantial compliance with statutory
safety measures as to preclude a reasonable opportunity for
tampering with their contents. The ballots from these precincts shall
be deemed to have retained their integrity in the absence of
evidence to the contrary and the Commission on Elections may
consider them in the recount.

(2)              ascertain the precincts the ballot boxes of which were found in

such a condition as would afford a reasonable opportunity for
unlawful access to their contents. The Commission on Elections

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EN BANC
[G.R. No. 157957. September 18, 2003]
CHARITO NAVAROSA, petitioner, vs. COMMISSION ON ELECTIONS,
HONORABLE DEAN R. TELAN, as Presiding Judge, Regional Trial
Court, Branch 9, Kalibo, Aklan and ROGER M. ESTO, respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for certiorari of the Commission on Elections (COMELEC) En
Banc Resolution dated 15 April 2003 denying petitioner Charito Navarosas motion for
reconsideration of the COMELEC Second Division Resolution[1] dated 28 November
2002. The COMELEC Second Division Resolution ordered the execution pending
appeal of the Decision[2] of the Regional Trial Court, Branch 9, Kalibo, Aklan,
proclaiming respondent Roger M. Esto winner in the mayoralty race in the 14 May
2001 elections.
The Facts
Petitioner Charito Navarosa (petitioner Navarosa) and respondent Roger M.
Esto (respondent Esto) were candidates for mayor of Libacao, Aklan in the 14 May
2001 elections. On 17 May 2001, the COMELEC Municipal Board of Canvassers of
Libacao proclaimed petitioner Navarosa as the duly elected mayor, with a winning
margin of three (3) votes over respondent Esto.[3]
Claiming that irregularities marred the canvassing of ballots in several precincts,
respondent Esto filed an election protest docketed as Election Case No. 129 (election
protest) in the Regional Trial Court, Branch 9, Kalibo, Aklan (trial court). Petitioner
Navarosa, who also claimed that canvassing irregularities prejudiced her, filed a
counter-protest in the same case.
On 4 March 2002, after revision of the contested ballots, the trial court rendered
judgment in favor of respondent Esto. The trial court found that respondent Esto
obtained 4,595 votes over petitioner Navarosas 4,553 votes. Thus, the trial court
declared respondent Esto the elected mayor of Libacao by a margin of 42 votes and
annulled the earlier proclamation of petitioner Navarosa. The trial court also ordered
petitioner Navarosa to pay respondent Esto actual damages and attorneys fees. The
dispositive portion of the decision provides:
WHEREFORE, judgment is hereby rendered:
a) Declaring the Proclamation of xxx protestee [Navarosa] as the duly
elected Mayor of Libacao, Aklan and the Certificate of Canvass of
Votes and the Proclamation of the Winning Candidates for
Municipal Offices, dated May 17, 2001, as null and void;
b) Declaring the protestant, Roger M. Esto, as the duly elected Municipal
Mayor of Libacao, Aklan in the May 14, 2001 election;
c) Ordering the protestee [Navarosa] to pay the sum of P14,215.00 as
actual and compensatory damages, and the amount of P50,000.00
as and for attorneys fees, plus the cost of suit.[4]
Petitioner Navarosa appealed the trial courts ruling to the COMELEC (EAC
Case No. A-9-2002). Respondent Esto, on the other hand, filed with the trial court a
motion for execution of the judgment pending petitioner Navarosas appeal. Petitioner
Navarosa opposed respondent Estos motion. In the alternative, petitioner Navarosa
offered to file a supersedeas bond to stay execution pending appeal, should the trial
court grant respondent Estos motion.
In its Order of 22 March 2002 (Order), the trial court granted respondent Estos
motion subject to the filing of a P300,000 bond. However, in the same order, the trial
court also granted petitioner Navarosas prayer to stay the execution pending appeal,
upon filing a P600,000 supersedeas bond. The Order reads:
The Supreme Court has explicitly recognized and given approval to execution of
judgments pending appeal in election cases, filed under existing election laws. In
these cases, the immediate execution was made in accordance with Sec. 2, Rule 39
of the Rules of Court (Ramas et al. vs. COMELEC, et al., G.R. No. 130831,
2/10/98). There is, therefore, no question now that execution pending appeal may be
granted.
xxx
[T]he grant of execution would give substance and meaning to the peoples mandate
specially since the court has established protestants right to the office (Lindo vs.
COMELEC cited in the Ramas case); more than 10 months or nearly 1/3 of the 3-year
term for Mayor had already lapsed (Gutierrez vs. COMELEC, G.R. 126298, 3-25-97;
Tobon Uy vs. COMELEC also cited in the Ramas case). These are two good reasons
to justify execution of the decision pending appeal.
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[P]rotestee [Navarosa] however, prays in the alternative, that should execution
pending appeal be granted, the same be stayed upon his [sic] filing of supersedeas
bond to be fixed by the court under Sec. 3, Rule 39, 1997 Rules of Civil Procedure.
Unlike Sec. 2, Rule 39 where the grant of execution pending appeal is conditioned
upon the presence of the good and valid reason for its grant, Sec. 3, Rule 39 does not
provide for any condition precedent before the discretionary execution of Rule 2 may
be stayed. All that it requires is that a sufficient supersedeas bond must be approved
by the court conditioned upon the performance of the judgment allowed to be
executed in case it shall be finally sustained in whole or in part. Under this section,
therefore, the filing of a supersedeas bond sufficient in amount is enough to stay the
execution granted under Sec. 2.
Moreover, the margin of 42 votes in the instant case is not so big, overwhelming or
insurmountable as to be practically beyond or improbable of being overturned by the
higher courts. xxx
WHEREFORE, in view of the foregoing[,] the court finds that the protestant, Roger M.
Esto is entitled to the execution of the decision dated March 4, 2002, pending appeal,
upon the filing of a bond which covers the salary and emoluments of the office of the
Municipal Mayor of Libacao, Aklan and or the payment of all damages in the amount
of P300,000.00, Philippine Currency, in cash, surety bond or real property with
assessed value in said amount to be filed on or before April 3, 2002, furnishing copy
thereof to the protestee or his duly authorized representative.
The protestee, Charito Navarosa, considering that the margin is not so
insurmountable as to be beyond reversal by the higher court[,] is hereby allowed to
stay the execution of the decision of March 4, 2002 pending appeal, by filing a
supersedeas bond in double the amount posted by the protestant, on or before April
3, 2002, furnishing copy thereof the protestant or his duly authorized representative.[5]
Both petitioner Navarosa and respondent Esto sought reconsideration of the
Order but the trial court denied their motions on 5 April 2002.
Respondent Esto filed a petition for certiorari with the COMELEC against the
Order. In her memorandum to the petition, petitioner Navarosa raised for the first time
the issue of the trial courts failure to acquire jurisdiction over the election protest
because of respondent Estos failure to pay the COMELEC filing fee.
The Ruling of the COMELEC
In its Resolution dated 28 November 2002 (Resolution), the COMELEC Second
Division affirmed the trial courts Order granting execution pending appeal and nullified
the stay of the execution. The Second Division also found that respondent Esto duly
paid the COMELEC filing fee. The Resolution reads:
Going now to the main issue at hand, did respondent judge gravely abuse his
discretion and/or exceed his jurisdiction when he stayed the immediate execution of
his decision on a finding of good reasons he made in his questioned Order of March
22, 2002 by allowing in the same Order the filing of a supersedeas bond double the
amount posted by petitioner?
The answer is yes.
It is [for] the Commission on Elections, in the exercise of its appellate jurisdiction to
issue the extraordinary writs of certiorari, prohibition, mandamus and injunction over
all contests involving elective municipal officials decided by the trial courts of general
jurisdiction elevated on appeal, and not the trial court, that may order the stay or
restrain the immediate execution of the decision pending appeal granted by the trial
court of general jurisdiction in an election contest. Except when the trial court
reversed itself in a motion for reconsideration of its order granting immediate
execution, it cannot later on stay or restrain the execution thereof in the guise of
allowing the losing party to file a supersedeas bond. The issue before the trial court
where a motion for execution pending appeal is filed is to determine whether or not
there are good reasons to justify the immediate execution pending appeal. The issue
is not whether x x x there are good reasons to stay the immediate execution of the
decision pending appeal.
The trial court, by granting the immediate execution of the March 4, 2002 decision,
recognized that the good reasons cited in the questioned Order constitute superior
circumstances demanding urgency that will outweigh the injuries or damages to the
adverse party if the decision is reversed. By declaring that petitioner Esto is the duly
elected Mayor of Libacao, Aklan, the trial court gave substance and meaning to the
peoples mandate as expressed in the ballot, especially since it has established
petitioner Estos right to the office. The trial court cannot indirectly reverse its
substantial finding of good reasons by a rule of procedure which does not strictly
apply in election protest cases when it allowed the filing of a supersedeas bond under
Section 3, Rule 39 of the 1997 Rules of Civil Procedure. To allow the application of
the said procedural relief would defeat the right of the winning candidate in an
election protest to hold the public office by virtue of the peoples mandate expressed
through the ballot and to perform the functions of the said public office.
xxx
It is interesting to note that instead of expounding on the propriety of the supersedeas
bond to stay the execution of a judgment in an election protest case, private
respondent raised for the first time in his [sic] memorandum the issue of lack of
jurisdiction of the trial court over the instant election protest for the alleged failure of
petitioner Esto to pay the filing fee of P300.00 required under Section 9, Rule 35 of
the COMELEC Rules of Procedure. However, the records of Election Case No. 129 of
the RTC of Kalibo, Aklan, Branch 9 showed otherwise. The Official Receipts issued
by the RTC of Kalibo, Aklan shows [sic] that petitioners paid a total of P515.00 filing
fees in Election Case No. 129 by specifically stating therein [F]iling Fee in Election
Case No. 129. At the time of filing the election protest, petitioner specified that the
payment made was to cover the COMELEC filing fee for the election protest. Upon
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assessment, petitioner paid not only the amount of P300.00 required under Section 9,
Rule 35 of the COMELEC Rules of Procedure, but a total sum of P515.00 as filing
fees. While it is true that the issue of jurisdiction may be raised anytime, even on
appeal, the same is of no moment now.[6]
Petitioner Navarosa sought reconsideration of this ruling but the COMELEC En
Banc denied her motion on 15 April 2003.
Hence, this petition.
On 10 June 2003, the Court required the parties to maintain the status
quo pending resolution of this petition.
The Issues
Petitioner Navarosa raises the following issues:
1. WHETHER PUBLIC RESPONDENT COMELEC EN BANC ACTED
WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION WHEN IT AFFIRMED THE 28
NOVEMBER 2002 RESOLUTION OF THE COMELEC SECOND
DIVISION FOR FAILURE TO RULE ON THE BASIC ISSUE OF
LACK OF JURISDICTION OF THE COURT A QUO OVER
RESPONDENT ESTOS ELECTION PROTEST FOR NON-
PAYMENT OF THE MANDATORY COMELEC FILING FEE
OF P300.00.
2. WHETHER PUBLIC RESPONDENT COMELEC EN BANC ACTED
WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION WHEN IT AFFIRMED THE 28
NOVEMBER 2002 RESOLUTION OF THE COMELEC SECOND
DIVISION DESPITE THE FACT THAT THERE WERE NO GOOD
REASONS TO EXECUTE THE 4 MARCH 2002 DECISION OF
THE TRIAL COURT.
3. WHETHER PUBLIC RESPONDENT COMELEC EN BANC ACTED
WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION WHEN IT AFFIRMED THE 28
NOVEMBER 2002 RESOLUTION OF THE COMELEC SECOND
DIVISION WHEN THE LATTER RULED THAT THE TRIAL COURT
HAD NO POWER TO ORDER THE STAY OF EXECUTION OF ITS
4 MARCH 2002 DECISION PENDING APPEAL IN AN ELECTION
CONTEST, BECAUSE SECTION 3, RULE 39 OF THE REVISED
RULES OF COURT DOES NOT APPLY TO ELECTION CASES.[7]
The Ruling of the Court
The petition has no merit.
The Trial Court Acquired Jurisdiction Over
Election Case No. 129
Petitioner Navarosa contends that the trial court did not acquire jurisdiction over
the election protest because of respondent Estos failure to pay the COMELEC filing
fee under Rule 35, Section 9 of the COMELEC Rules of Procedure (Section 9).
Procedurally, petitioner Navarosa should not have raised this jurisdictional issue in
this petition which involves only the ancillary issue of whether to allow execution of
the trial courts decision pending appeal. Nevertheless, as the question of the trial
courts jurisdiction also affects its authority to issue ancillary orders such as its Order
of 22 March 2002 subject of this petition, we have resolved to pass upon this issue.
Section 9 provides:
Filing Fee.  No protest, counter-protest, or protest-in-intervention shall be given due
course without the payment of a filing fee in the amount of three hundred pesos
(P300.00) for each interest.
Each interest shall further pay the legal research fee as required by law.
Respondent Esto must pay this filing fee before the trial court can exercise its
jurisdiction over the election protest. [8] The COMELEC filing fee, to distinguish from
the other mandatory fees under Rule 141 of the Rules of Court, as amended, is
credited to the Courts General Fund.[9]
Petitioner Navarosa claims that although the receipts issued by the trial court
show that respondent Esto paid P515 as filing and other fees, only P100 was credited
to the General Fund. The rest of what respondent Esto paid accrued to the Judiciary
Development Fund (P400), the Legal Research Fund (P10) and the Victims
Compensation Fund (P5).[10] Consequently, respondent Esto paid only P100 of
the P300 COMELEC filing fee, for which reason the trial court did not acquire
jurisdiction over the election protest.Petitioner Navarosa also claimed that the Second
Division did not rule on this issue.
Contrary to petitioner Navarosas claim, the COMELEC Second Division did rule
on the issue of respondent Estos non-payment of the full amount of the COMELEC
filing fee. The Second Division held that the P515 fees respondent Esto paid already
covered the P300 COMELEC filing fee.
However, based on the trial courts Election Fees Form for Election Case No.
129,[11] of the total amount of P515 respondent Esto paid, only P100 was indeed
credited to the General Fund. Consequently, respondent Esto only paid P100 of the
required P300 COMELEC filing fee.
In an earlier ruling,[12] the Court held that an election protest is not dismissible if
the protestant, relying on the trial courts assessment, pays only a portion [13] of the
COMELEC filing fee. However, in Miranda v. Castillo,[14]  the Court,
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reiterating Loyola v. Commission on Elections,[15] held that it would no longer
tolerate any mistake in the payment of the full amount of filing fees for election cases
filed after the promulgation of the Loyola decision on March 25, 1997. Nevertheless,
our rulings in Miranda and Loyola are inapplicable to the present case.
At no time did petitioner Navarosa ever raise the issue of respondent Estos
incomplete payment of the COMELEC filing fee during the full-blown trial of the
election protest. Petitioner Navarosa actively participated in the proceedings below by
filing her Answer, presenting her evidence, and later, seeking a stay of execution by
filing a supersedeas bond. Not only this, she even invoked the trial courts jurisdiction
by filing a counter-protest against respondent Esto in which she must have prayed for
affirmative reliefs.[16]
Petitioner Navarosa raised the issue of incomplete payment of the COMELEC
filing fee only in her memorandum to respondent Estos petition before the COMELEC
Second Division. Petitioner Navarosas conduct estops her from claiming, at such late
stage, that the trial court did not after all acquire jurisdiction over the election protest.
Although a party cannot waive jurisdictional issues and may raise them at any stage
of the proceedings, estoppel may bar a party from raising such issues.
[17]
 In Pantranco North Express v. Court of Appeals,[18] this Court applied the
doctrine of estoppel against a party who also belatedly raised the issue of insufficient
payment of filing fees to question the courts exercise of jurisdiction over the case. We
held:
The petitioner raised the issue regarding jurisdiction for the first time in its Brief filed
with public respondent [Court of Appeals] x x x After vigorously participating in all
stages of the case before the trial court and even invoking the trial courts authority in
order to ask for affirmative relief, the petitioner is effectively barred by estoppel from
challenging the trial courts jurisdiction.
Indeed, in Miranda and Loyola, as in every other case[19] where we sustained
the dismissal of the election protest for lack or incomplete payment of the COMELEC
filing fee, the protestee timely raised the non-payment in a motion to dismiss. Before
any revision of the contested ballots, the protestee filed a petition
for certiorari questioning the trial courts jurisdiction before the COMELEC and
eventually before this Court. In contrast, in the instant case, petitioner Navarosa did
not raise the incomplete payment of the COMELEC filing fee in a motion to dismiss.
Consequently, the trial court proceeded with the revision of the contested ballots and
subsequently rendered judgment on the election protest. Petitioner Navarosa raised
for the first time the incomplete payment of the COMELEC filing fee in her
memorandum before the COMELEC Second Division.
Thus, estoppel has set in precluding petitioner Navarosa from questioning the
incomplete payment of the COMELEC filing fee, and in effect assailing the exercise of
jurisdiction by the trial court over the election protest. The law vests in the trial court
jurisdiction over election protests although the exercise of such jurisdiction requires
the payment of docket and filing fees by the party invoking the trial courts jurisdiction.
[20]
 Estoppel now prevents petitioner Navarosa from questioning the trial courts
exercise of such jurisdiction, which the law and not any act of the parties has
conferred on the trial court. At this stage, the remedy for respondent Estos incomplete
payment is for him to pay the P200 deficiency in the COMELEC filing fee.[21] It is
highly unjust to the electorate of Libacao, Aklan, after the trial court has completed
revision of the contested ballots, to dismiss the election protest and forever foreclose
the determination of the true winner of the election for a mere P200 deficiency in the
COMELEC filing fee. We repeat that:
[E]lection contests involve public interest, and technicalities and procedural barriers
should not be allowed to stand if they constitute an obstacle to the determination of
the true will of the electorate in the choice of their elective officials. And also settled is
the rule that 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. In an election case the court has an imperative duty to ascertain
by all means within its command who is the real candidate elected by the electorate.
[22]
Good Reasons Exist to Grant Execution
Pending Appeal in this Case
To grant execution pending appeal in election protest cases, the following
requisites must concur: (1) there must be a motion by the prevailing party with notice
to the adverse party; (2) there must be good reasons for the execution pending
appeal; and (3) the order granting execution pending appeal must state the good
reasons.[23] Petitioner Navarosa concedes respondent Estos compliance with the first
and third requisites. What she contests is the trial courts finding that there are good
reasons to order discretionary execution of its decision.
In Ramas v. Commission on Elections,[24] the Court, after reviewing pertinent
jurisprudence, summarized the circumstances qualifying as good reasons justifying
execution pending appeal, thus:
In a nutshell, the following constitute good reasons, and a combination of two or more
of them will suffice to grant execution pending appeal: (1) the public interest involved
or the will of the electorate; (2) the shortness of the remaining portion of the term of
the contested office; and (3) the length of time that the election contest has been
pending.
The trial court in the present case, relying on cases[25] reviewed
in Ramas, invoked two good reasons to justify its order allowing execution pending
appeal. First, the order will give substance and meaning to the peoples
mandate. Second, more than 10 months or nearly 1/3 of the 3-year term of the office
in question had already lapsed. The COMELEC found these good reasons
sufficient. Being consistent with Ramas, we find no grave abuse of discretion in the
ruling of the trial court or of the COMELEC.
Petitioner Navarosas invocation of Camlian v. Commission on Elections[26]  is
unavailing. In Camlian, the COMELEC ruled that circumstances such as public
interest in the true outcome of the elections[;] that the protestee illegally manufactured
votes[;] and that the appeal was interposed for delay do not suffice to justify execution
pending appeal. On appeal, we sustained the COMELEC, noting that not every
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invocation of public interest with x x x reference to the will of the electorate can be
appreciated as a good reason especially so if the same appears to be self-serving
and has not been clearly established. The Court further pointed out that the protestant
failed to substantiate his claim that the appeal is dilatory as it in fact assails the trial
courts ruling. These circumstances are absent in the present case,
precluding Camlians application.
Section 3 of Rule 39 Not Applicable
To Election Protest Cases
Unlike the Election Code of 1971,[27] which expressly provided for execution
pending appeal of trial courts rulings in election protests, the present election laws are
silent on such remedy. Nevertheless, Section 2, Rule 39 (Section 2) of the Rules of
Court (now 1997 Rules of Civil Procedure) applies in suppletory character to election
cases, thus allowing execution pending appeal in the discretion of the court. As
explained in Ramas:
The Omnibus Election Code of the Philippines (B.P. Blg. 881) and the other election
laws do not specifically provide for execution pending appeal of judgment in election
cases, unlike the Election Code of 1971 whose Section 218 made express reference
to the Rules of Court on execution pending appeal; xxx
The failure of the extant election laws to reproduce Section 218 of the Election Code
of 1971 does not mean that execution of judgment pending appeal is no longer
available in election cases. In election contests involving elective municipal officials,
which are cognizable by courts of general jurisdiction; and those involving elective
barangay officials, which are cognizable by courts of limited jurisdiction, execution of
judgment pending appeal under Section 2 of Rule 39 of the Rules of Court are
permissible pursuant to Rule 143 of the Rules of Court, which is now Section 4, Rule
1 of the 1997 Rules of Civil Procedure. This Section 4 provides:
SEC 4. In what cases not applicable.- These Rules shall not apply to election cases,
land registration, cadastral, naturalization and insolvency proceedings, and other
cases not herein provided for, except by analogy or in a suppletory character and
whenever practicable and convenient.
As to election cases involving regional, provincial, and city officials, which fall within
the exclusive original jurisdiction of the COMELEC, Section 3 of Article IX-C of the
Constitution vests the COMELEC with the authority to promulgate its rules of
procedure in order to expedite disposition of election cases, including pre-
proclamation controversies. Additionally, Section 52(c), Article VII of the Omnibus
Election Code empowers the COMELEC to promulgate rules and regulations
implementing the provisions of the Code or other laws which it is required to enforce
and administer. Accordingly, the COMELEC promulgated the COMELEC Rules of
Procedure. Section 1 of Rule 41 thereof expressly provides that [i]n the absence of
any applicable provision in [said] Rules, the pertinent provisions of the Rules of Court
in the Philippines shall be applicable by analogy or in a suppletory character and
effect.[28]
In the earlier case of Gahol v. Riodique,[29] the Court explained the legislative
intent behind the enactment of Section 218 of the Election Code of 1971. In Gahol,
the Court gave an additional justification for allowing execution pending appeal of
decisions of trial courts, thus:
xxx [T]his innovative provision is the product of the bad experience of the people
under the previous election laws. Public policy underlies it. xxx [S]omething had to be
done to strike the death blow at the pernicious grab-the-proclamation-prolong-the-
protest technique often, if not invariably, resorted to by unscrupulous politicians who
would render nugatory the peoples verdict against them and persist in continuing in
an office they very well know they have no legitimate right to hold. xxx [T]o uphold the
theory of Protestee that the very nature of the matter in dispute in election contests,
the holding of a public office and the performance of its functions, makes gravely
doubtful the propriety of an execution pending appeal, what with the possible placing
of the corresponding powers of government in the hands of one who might ultimately
turn out not to be really entitled to the position, is to negate the unquestionable and
patent intent of the legislature to give as much recognition to the worth of a trial
judges decision as that which is initially ascribed by the law to the proclamation by the
board of canvassers. Why should the proclamation by the board of canvassers suffice
as basis of the right to assume office, subject to future contingencies attendant to a
protest, and not the decision of a court of justice?  Indeed, when it is considered that
the board of canvassers is composed of persons who are less technically prepared to
make an accurate appreciation of the ballots, apart from their being more apt to yield
extraneous considerations, that the board must act summarily, practically [racing]
against time, while, on the other hand, the judge has the benefit of all the evidence
the parties can offer and of admittedly better technical preparation and background,
apart from his being allowed ample time for conscientious study and mature
deliberation before rendering judgment, one cannot but perceive the wisdom of
allowing the immediate execution of decisions in election cases adverse to the
protestees, notwithstanding the perfection and pendency of appeals therefrom, as
long as there are, in the sound discretion of the court, good reasons therefor.
(Emphasis supplied)
Thus, a primordial public interest to obviate a hollow victory for the duly elected
candidate as determined by the trial court lies behind the present rule giving
suppletory application to Section 2. Only a more compelling contrary policy
consideration can prevent the suppletory application of Section 2. In insisting that the
simple expedient of posting a supersedeas bond can stay execution pending appeal,
petitioner Navarosa neither claims nor offers a more compelling contrary policy
consideration. Instead, she merely contends that Section 3 of Rule 39 (Section 3)
applies also in a suppletory character because its Siamese twin [30] provision, Section
2, is already being so applied. Such simplistic reasoning both ignores and negates
the public interest underlying Section 2s application. We cannot countenance such
argument.
Furthermore, a supersedeas bond under Section 3 cannot fully protect the
interests of the prevailing party in election protest cases. Section 3 provides:
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Stay of discretionary execution. Discretionary execution issued under the preceding
section may be stayed upon approval by the proper court of a sufficient bond, filed by
the party against whom it is directed, conditioned upon the performance of the
judgment or order allowed to be executed in case it shall be finally sustained in whole
or in part. The bond thus given may be proceeded against on motion with notice to
the surety. (Emphasis supplied)
A supersedeas bond secures the performance of the judgment or order
appealed from in case of its affirmation.[31] Section 3 finds application in ordinary civil
actions where the interest of the prevailing party is capable of pecuniary estimation,
and consequently, of protection, through the filing of a supersedeas bond. Thus, the
penultimate sentence of Section 3 states: [T]he bond thus given may be proceeded
against on motion with notice to the surety. Consequently, it finds no application in
election protest cases where judgments invariably include orders which are not
capable of pecuniary estimation such as the right to hold office and perform its
functions. As well observed by the COMELEC Second Division in its Resolution in the
instant case:
to lack of jurisdiction, or arbitrary and despotic exercise of power because of passion
or personal hostility. The grave abuse of discretion must be so patent and gross as to
amount to an evasion or refusal to perform a duty enjoined by law.[33] This does not
obtain in the present case.
WHEREFORE, we DISMISS the instant petition. The Resolution dated 28
November 2002 of the COMELEC Second Division, and the Resolution dated 15 April
2003 of the COMELEC En Banc, are AFFIRMED. The status quo  order dated 10
June 2003 is LIFTED and the COMELEC is directed to cause the implementation of
the Decision of the Regional Trial Court of Kalibo, Aklan, Branch 9, in Election Case
No. 129, without prejudice to any judgment the COMELEC may render in EAC Case
No. A-9-2002. Moreover, respondent Roger M. Esto shall pay immediately the P200
deficiency in the COMELEC filing fee.
SO ORDERED.

The supersedeas bond, as used under Section 3, Rule 39 of the 1997 Rules of Civil
Procedure, refers to a bond, either in cash or a surety bond, filed by the losing party
in an ordinary civil action to secure the performance or to satisfy the judgment
appealed from in case it is affirmed on appeal in favor of the prevailing party. A
supersedeas bond is filed purposely for the performance of the judgment appealed
from in case it is affirmed by the appellate court. On the assumption that the filing of
the supersedeas bond applies in an election protest case, the practical considerations
of the matter dictate that it cannot secure the performance of or satisfy the judgment
rendered in an election protest which basically involves the right to hold a public office
and the performance of its functions in accordance with the mandate of the law,
except insofar as the monetary award provided in the special order. By allowing the
filing of a supersedeas bond to stay the execution of a judgment in an election protest
declaring the protestant, as in the case of petitioner herein, as the winning candidate
who is entitled to the right to hold and perform the functions of the contested public
office, would render the judgment in an election protest illusory. xxx While the
supersedeas bond ensures that the appealed decision if affirmed is satisfied, in an
election protest case, such bond, in the event the appealed case is affirmed and the
execution pending appeal is proven to be meritorious, cannot adequately answer for
the deprivation of a duly elected candidate of his post, and his constituents of their
leader of choice, such deprivation being unquantifiable.[32] (Emphasis added)

As applied to the present case, the supersedeas bond petitioner Navarosa filed
can only answer for that portion of the trial courts ruling ordering her to pay to
respondent Esto actual damages, attorneys fees and the cost of the suit. It cannot
secure execution of that portion proclaiming respondent Esto duly elected mayor of
Libacao, Aklan by popular will of the electorate and authorizing him to assume the
office. This anomalous situation defeats the very purpose for the filing of the
supersedeas bond in the first place.
In sum, the Court holds that the COMELEC did not commit grave abuse of
discretion in ordering execution pending appeal of the trial courts decision. Grave
abuse of discretion implies capricious and whimsical exercise of judgment amounting

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EN BANC
G.R. Nos. 211789-90               March 17, 2015
DR. REY B. AQUINO, Petitioner,  corresponding allowances.
vs.
COMMISSION ON ELECTIONS, Respondent.
DECISION
BRION, J.:
We resolve in this petition for certiorari and prohibition 1 the challenge to the October
19, 20122 and February 18, 20143 resolutions of respondent Commission on Elections
(COMELEC) sitting En Banc, in E.O. Case No. 10-003 and E.O. Case No. 10-008.
The October 19, 2012 resolution, among others, directed the COMELEC’s Law
Department to file the appropriate information against petitioner Dr. Rey B. Aquinofor
violation of COMELEC Resolution No. 87374 in relation to Section 261(h) of the Batas
Pambansa Blg. 881 (BP 881) (the Omnibus Election Code of the Philippines).The
February 18, 2014 resolution, in turn, affirmed in toto the October 19, 2012 resolution.
The Factual Antecedents
On January 8, 2010, Aquino, as President and Chief Executive Officer of the
Philippine Health Insurance Corporation (PHIC),issued PhilHealth Special Order No.
16, Series of 2010 (reassignment order)5 directing the reassignment of several PHIC
officers and employees.
The pertinent portion of PhilHealth SO No. 16-20106 reads:
08 January 2010
SPECIAL ORDER
No. 16, s. 2010
Subject: Re-Assignment of PhilHealth Officials
In the interest of the service and further enhance organizational efficiency and
synergy, the following PhilHealth officials and personnel are hereby re-assigned to
the offices opposite their names. This is also being made to strengthen PhilHealth’s
organizational capability by providing opportunities to its key personnel for
professional growth and development in strategic management, which is imperative in
view of the impending vacancies in crucial 3rd level positions.
xxxx
By virtue of this Order, the above named officers are bound to perform all the duties
and functions required in their respective assignments and shall receive the
This Order shall take effect immediately.
DR. REY B. AQUINO
President and CEO
On the same date, Aquino released the reassignment order, via the PHIC’s intranet
service, to all PHIC officers and employees, including the following: (1)
Dennis Adre, PHIC Regional Vice-President (VP); (2) Masiding Alonto,PHIC
Regional VP; and (3) Khaliquzzaman M. Macabato, PHIC Assistant Regional VP.
On January 11, 2010, Aquino issued an Advisory implementing the reassignment
order. The Advisory directed these officers to, among others, "report to their new
regional assignments; or to the central office; or to other areas, as the case may be,
not later than five (5) working days from the date of issuance of the reassignment
order or January 15, 2010 for officers transferred, reassigned or designated to
various posts located in the central office; and/or ten (10) working days from the
ADVISORY or January 22, 2010, in the case of those reassigned or transferred from
a regional office to another or from the central office to a regional office and vice
versa."7 In view of the reassignment order and its directive, Dean Rudyard A. Avila III,
consultant to the Chairman of the Board of PHIC and former Secretary of the PHIC
Board of Directors, filed before the COMELEC on January 18, 2010, a complaint
against Aquino and Melinda C. Mercado, PHIC Officer-in-Charge, Executive VPand
Chief Operating Officer, for violation of COMELEC Resolution No. 8737in relation to
Section 261(h) of BP 881. The case was docketed as E.O. Case No. 10-003.
On February 1, 2010, Adre, Alonto and Macabato, along with Romeo D. Albertoand
Johnny Y. Sychua (PHIC Regional VPs) likewise filed before the COMELEC a similar
complaint for violation of Resolution No. 8737 in relation to Section 261(h) of BP 881
against Tito M. Mendiola, PHIC Senior VP for Operations Sector, and Ruben John A.
Basa, PHIC Group VP for Corporate Affairs. The case was docketed as E.O. Case
No. 10-008.
E.O. Case No. 10-003 and E.O. Case No. 10-008 were subsequently consolidated
(consolidated COMELEC complaints).
Meanwhile, Aquino wrote the COMELEC a letter dated January 11, 2010,8 asking for
a "categorical declaration that the issuance of and transition to the respective office
designations of concerned officers x x x is beyond the purview of COMELEC
Resolution No. 8737 x x x." He posited that the reassignment order is beyond the
coverage of this COMELEC resolution as he issued it on January 8,2010, or prior to
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the start of the election period that began on January 11, 2010. Aquino reiterated this
request in his letter dated February 26, 2010.9
On March 29, 2010, Aquino filed a petition 10 before the COMELEC reiterating his
request and maintaining that PhilHealth SO No. 16-2010 is beyond the coverage of
Resolution No. 8737. This case was docketed as E.M. Case No. 10-018.
The assailed COMELEC resolutions
1. The October 19, 2012 resolution11
The COMELEC directed its Law Department to file the appropriate information
against Aquino for violation of Resolution No. 8737 in relation to Section 261(h) of BP
881; it dismissed, for lack of merit, the complaint against Mercado, Mendiola, and
Basa.
The COMELEC declared that Aquino violated Section 261(h) of BP 881 when he
directed the transfer/reassignment of the PHIC officers and employees within the
declared election period without its prior approval. It pointed out that Section 261(h)
considers an election offense for "any public official who makes or causes the
transfer or detail whatever of any public officer or employee in the civil service x x x
within the election period except upon prior approval of the Commission."
Citing Regalado, Jr. v. Court of Appeals,12 the COMELEC explained in this regard that
"the words ‘transfer’ and ‘detail’ [in Section 261(h) of BP 881] are modified by the
word ‘whatever’ x x x [such that] any movement of personnel from one station to
another during the election, whether or not in the same office or agency, is covered
by the prohibition."13
The COMELEC pointed out, too, that in promulgating Resolution No. 8737, it merely
laid down the guidelines relative to the transfer, detail or reassignment of officers and
employees of the civil service for the January 10, 2010 to June 9, 2010 election
period set for the May 10, 2010 National and Local Elections (May 10, 2010 elections)
which guidelines still fall well within the provisions of Section 261(h) of BP 881. It
emphasized that Resolution No. 8737 merely reiterated Section 261(h)’s prohibition
and the requirement of prior COMELEC approval in any case of personnel transfers
or details; and provided penalties in case of violation of the prohibition.
In this case, the COMELEC noted that while the facts at first glance would support
Aquino’s contention that the reassignment order is beyond the coverage of the
election transfer ban as Aquino issued it on January 8, 2010, its implementation was
carried out after the transfer ban had already set in. Moreover, the circumstances
surrounding its issuance supports the conclusion that Aquino violated the transfer
ban, i.e., Aquino issued the reassignment order late in the afternoon of January 8,
2010, which was a Friday; he issued the guidelines implementing the
transfer/reassignment order only on January 11, 2010, after the transfer ban had
taken effect; and, even after the election period had already started, he still issued
several transfer/reassignment orders from January 21 to February 15, 2010, 14 absent
the required prior COMELEC approval.
In short, the COMELEC found a prima facie case against Aquino for violation of
Resolution No. 8737 in relation to Section 261(h) of BP 881 because while the
reassignment order was issued on January 8, 2010, or prior to the start of the transfer
ban, its implementation took effect after the transfer ban had already set in. To the
COMELEC, a transfer/reassignment order must be issued and implemented prior to
the start of the election period to be excluded from the coverage of the transfer ban.
Any personnel action issued and/or implemented during the election period must
have prior COMELEC approval to be valid; otherwise, such personnel action is illegal
and renders liable the person who made or caused the movement.
The COMELEC dismissed the complaint against the other respondents because: (1)
the documents on record bear only Aquino’s signature; and (2) conspiracy among
them was not alleged nor proved.
On December 7, 2012, Aquino sought reconsideration15 of the COMELEC’s October
19, 2012 resolution. He argued that what he directed when he issued the order was
only a reassignment, not a transfer, which is not covered by the transfer ban. In this
regard, he pointed to Civil Service Commission Memorandum Circular No. 2,series of
2005, and the Court’s ruling in Tapispisan v. Court of Appeals 16 to support his
position.
He argued, too, that he issued the directive outside of or before the start of the
election period, i.e., on January 8, 2010.
Lastly, he pointed out that he thrice sought from the COMELEC the required
approvals as early as January 11, 2010; as of the date of the filing of this motion, the
COMELEC has yet to act on his letter-requests.
2. The February 18, 2014 resolution17
The COMELEC affirmed in toto the October 19, 2012 resolution.
The COMELEC agreed with the complainants’ position and ruled that the word
"whatever" in Section 261(h) of BP 881 expanded the coverage of the prohibition so
as to include any movement of personnel, including reassignment, among others. In
fact, to dispel any ambiguity as regards Section 261(h)’s prohibition, Resolution No.
8737 defined the word "transfer" as including any personnel action.
Accordingly, the COMELEC held that insofar as the prohibition provision (under
Section 261[h] of B₱881) is concerned, the terms "transfer" and "reassignment" have
similar legal consequences. Lastly, the COMELEC emphasized that only a prima
facie finding of violation or probable cause is required for purposes of filing an
Information for an election offense. In Aquino’s case, the facts show such prima facie
case against him for violation of Section 261(h) of BP 881. COMELEC resolution on
Aquino’s petition (E.M. Case No. 10-018)
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In a resolution dated August 20, 2010,18 the COMELEC First Division denied
Aquino’s petition (for declaration of the non-coverage of the reassignment order under
the transfer ban) and directed the COMELEC’s Law department to conduct
preliminary investigation to determine whether Aquino committed an election offense
for violation of Resolution No. 8737 in relation to Section 261(h) of BP 881.
The First Division agreed that Section 261(h) of BP 881 and Resolution No. 8737 do
not render illegal per se the transfer of a government officer or employee during
election period and that the law, in fact, recognizes the inherent prerogative of the
appointing authority to effect such transfers or details whenever necessary to meet
the exigencies of the public service.
It nevertheless pointed out that the transfers or details in this case were effected
without the required prior COMELEC approval which sufficiently renders Aquino liable
for violation of Resolution No. 8737 in relation with Section 261(h).
The Petition
Aquino essentially argues that, first, the COMELEC exceeded its authority to
implement the election laws when, in interpreting Section 261(h) of BP 881, it added
reassignments as a covered offense when the prohibitions speaks only of transfer
and detail. To him, the COMELEC could not legally and validly add a third mode of
personnel action and hold him accountable for its violation, when the legislative intent
clearly and specifically prohibited only transfer and detail from among the several
modes of personnel action enumerated under the various laws governing the civil
service, i.e., Presidential Decree (PD) No. 807 and Executive Order (EO) No. 292.
He argues that while the COMELEC indeed has the exclusive authority to implement
the election laws, and with it the authority to issue rules and regulations to supply
details or clarify gaps in the law, it cannot validly extend what these laws provide
without running afoul of the basic precept that the power to make laws is exclusively
lodged in the legislature.
Thus, Aquino takes exception to the COMELEC’s reliance in Regalado 19 arguing that
the term "whatever" was added simply to modify the term "detail" (which it
immediately follows) or both the terms "detail and/or transfer;" the addition of the term
"whatever" was never meant to include within the coverage of the prohibition any
mode of personnel action other than transfer and detail.
Then too, he points out that the Court, in Regalado, declared the transfer as falling
within the prohibition’s coverage because although made in the exigencies of public
service, it was, in fact, used for electioneering purposes or to harass subordinates of
different political persuasion.
In this case, he argues that none of the complaining PHIC officer/personnel even
alleged a situation similar to those in Regalado. Hence, the COMELEC cannot hold
him criminally liable for an act that the law does not prohibit under the maxim nullum
crimen sine lege.
Second, the reassignment order did not violate Section 261(h) of BP 881 because he
issued it on January 8,2010, or before the start of the election period on January 10,
2010. Hepoints out that by its terms, the "reassignments" were immediately
executory; it was also released and disseminated via the PHIC’s intranet service and
facsimiles, to all concerned officers and employees on the same date of issue.
Further, he argues that Section 3 of BP 881 fixes the start of the election period at
ninety (90) days before the day of the election, not one hundred and twenty (120)
days before, which the COMELEC set in Resolution No. 8737. Hence, the election
period for the May 10, 2010 elections should have commenced on February 9, 2010,
not January 10, 2010.
At any rate, Aquino argues that the COMELEC’s resolutions and directive to file
criminal action against him were premature and without legal basis. He points out
that, if only to comply with the legal requirement of prior COMELEC approval, he had
thrice requested20 the COMELEC for exemption from Resolution No. 8737. To this
date and despite the issuance of the October 19, 2012 and February18, 2014
resolutions, his request remains pending before the COMELEC En Banc. 21 He insists
that the resolution of his request/petition for exemption is necessary as the issues
raised therein were prejudicial questions to the issues in the consolidated COMELEC
complaints.
The Case for the COMELEC
The COMELEC, through the Solicitor General, argues22 that it has the power to
prosecute any reassignment of officers and employees in the civil service made
during the election period. In this regard, it points out that the words "transfer" and
"detail" are precisely modified by the word "whatever" such that any movement of
personnel from one station to another, whether or not in the same office or agency, is
covered by the prohibition under Resolution No. 8737 in relation to Section 261(h) of
BP 881. Such personnel action necessarily includes "reassignment." In addition, the
COMELEC defends that it did not act with grave abuse of discretion when it directed
its law department to file the appropriate information against Aquino for violation of
Resolution No. 8737 in relation to Section 261(h) of BP 881. It points out that: (1)
Aquino issued the reassignment order during the election period, absent its prior
approval; and (2) it did not err in fixing the election period for the May 10, 2010
elections and in implementing Resolution No. 8737.
Relying on Regalado, the COMELEC reasons that for an act to fall under Section
261(h) of BP 881, two elements must concur: (1) a public officer or employee is
transferred or detailed within the election period as fixed by it; and (2) the transfer or
detail was effected without its prior approval pursuant to its implementing rules and
regulations.
In this case, it argues that both elements were present. First, while the reassignment
order was issued on January 8, 2010, it actually became effective only on January 11,
2010, well within the election period. To this end, it points out that: (1) the Order was
issued at about four-thirty in the afternoon (4:30 pm) when it was already too late to
be implemented; (2) the complainants in the consolidated complaints received a copy
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of the Order only on January 11, 2010; (3) Aquino issued the Advisory likewise only
on January 11, 2010; and (4) Aquino issued other reassignment orders between
January 21 and February 15, 2010.23
In other words, the COMELEC submits that if a reassignment order was implemented
during the election period, even if issued prior thereto as in this case, it is still covered
by the election ban on personnel transfer.
Second, Aquino issued the reassignment order without its prior approval. To the
COMELEC, Aquino’s January 11, 2010 and February 26, 2010 letters, as well as his
March 18,2010 petition (for exemption from the election transfer ban) could not have
rectified the deficiency because the letter-requests were submitted and filed long after
the election ban had already taken effect; and the petition for exemption was filed
long after the complaints were filed against him.
Lastly, the COMELEC argues that the election period which it fixed for the May 10,
2010 election is valid and legal pursuant to its authority under Section 3 of BP 881.
The period fixed is likewise valid,24 pursuant to Section 12 of Resolution No. 8737 25 in
relation to Section 52(m) of BP 88126 and Section 30 of Republic Act (RA) No. 6646.27
The Issues
The basic issues before us are whether: the COMELEC validly issued Resolution No.
8737 that defined transfer, as contemplated under Section 261(h) of BP 881, to
include all personnel action including reassignments; and if so, whether the
COMELEC validly found prima facie case against Aquino for violation of Resolution
No. 8737 in relation to Section 261(h).
The Court's Ruling
Preliminary Considerations
In assailing the COMELEC’s October 19, 2012 and February 18, 2014 resolutions,
Aquino comes to this Court via Rule 64 in relation to Rule 65 of the Rules of Court.
As a Rule 64 petition (viewed from a Rule 65 approach), the Court’s standard of
review is "grave abuse of discretion" or such "capricious or whimsical exercise of
judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not
enough; the abuse of discretion must be patent and gross as to amount to an evasion
of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and despotic
manner by reason of passion and hostility."28 A lower court or tribunal’s violation of the
Constitution, law or existing jurisprudence29 or their use of wrong or irrelevant
considerations in deciding an issue is sufficient to taint their action with grave abuse
of discretion.30
In this petition, Aquino ascribes grave abuse of discretion on the part of the
COMELEC as it found prima facie case to indict him for violation of Resolution No.
8737 in relation to Section 261(h) of BP 881. He presents the following main
arguments:
1. The COMELEC exceeded its rule-making authority when it issued
Resolution No. 8737 that expanded the coverage of Section 261(h) of BP
881;
2. The reassignment order is beyond the coverage of Section 261(h) of BP
881 because he issued it before the start of the election period; and
3. The COMELEC prematurely issued its resolutions (finding prima facie
case against him) as the COMELEC had, then, yet to resolve his request for
exemption from the coverage of Resolution No. 8737.
We approach these arguments with the consideration of the distinct role that the
COMELEC plays in our government structure. We consider as well the considerable
latitude which the Constitution and the laws grant it as it ensures the accomplishment
of the great objective for which it was created – free, orderly and honest
elections.31We recognize this legal reality and concede that we have no general
powers of supervision over the COMELEC except those which the Constitution
specifically grants to us, i.e., to review its decisions, orders, and rulings within the
limited terms of a petition for certiorari.32
Thus, in this Rule 64 petition, the scope of our review is limited to the question:
whether the COMELEC’s exercise of its powers as it issued the prima-facie-case-
finding resolution and Resolution No. 8737 was without or in excess of jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction.
Aquino’s petition must prosper if the COMELEC, in appreciating and calibrating the
evidence as it arrived at the assailed resolutions, exceeded its authority or exercised
its discretion in an excessive, arbitrary, and gravely abusive manner. The grant of the
petition based on these asserted violations in effect recognizes that, in acting as it
did, the COMELEC committed errors of the level that effectively affected its
jurisdiction.
Aquino’s petition must fail, however, if the COMELEC’s acts, even though viewed
erroneous under the terms of the asserted violations, were still well within the limits of
its powers under the Constitution and relevant statutes. The Court must, in such case,
recognize the COMELEC’s exercise of its discretion in issuing the assailed
resolutions to be proper and well within its jurisdiction.
Viewed in this light, we GRANT the petition; we find grave abuse of discretion on the
part of the COMELEC in the manner that it found prima facie case against Aquino for
violation of Resolution No. 8737 in relation to Section 261(h) of BP 881.
A. COMELEC Resolution No. 8737 is valid
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1. The COMELEC’s enforcement and (c) Promulgate rules and regulations implementing the provisions of this Code or
administration power and rule-making power other laws which the Commission is required to enforce and administer x x x x.

To determine the validity of Resolution No. 8737, we first discuss some of the basic
precepts touching on the powers granted to the COMELEC as it fulfills its mandate
under the Constitution and statutes.
We begin with the Constitution – the fundamental law to which all laws must conform.
The pertinent provisions read:
[emphases supplied]
A common and clear conclusion that we can gather from these provisions is the
obvious and unequivocal intent of the framers of the Constitution and of the law to
grant the COMELEC with powers, necessary and incidental to achieve the objective
of ensuring free, orderly, honest, peaceful and credible elections.

ARTICLE IX Thus, expressly, the Constitution and the laws grant the COMELEC with the power,
CONSTITUTIONAL COMMISSIONS first and foremost, to "[e]nforce and administer all laws and regulations relative to the
conduct of an election," and second, to "promulgate rules and regulations." Together,
A. COMMON PROVISIONS these powers ensure that the COMELEC is well armed to properly enforce and
implement the election laws and enable it to fill in the situational gaps which the law
does not provide for or which the legislature had not foreseen.
xxxx
In exercising these powers and fulfilling its mandate, the COMELEC, in addition, must
Section 6. Each Commission en banc may promulgate its own rules concerning necessarily interpret the provisions of the law that they are to enforce and for which
pleadings and practice before it or before any of its offices. Such rules however shall they will craft the guidelines. Thus, to this extent and in this sense, the COMELEC
not diminish, increase, or modify substantive rights. likewise exercises the power of legal interpretation pursuant to the legal principle that
the grant of a power includes all the powers necessary for the exercise of the power
xxxx expressly given.

C. THE COMMISSION ON ELECTIONS Like all grant of powers, however, the grant to the COMELEC of its express –
enforcement and administration, and rule-making – and implied – interpretative –
Section 2.The Commission on Elections shall exercise the following powers and powers are not without limitations. The exercise of these powers should always be
functions: read in conjunction with, not in isolation from, the Constitution and the laws from
where it draws the power.

(1) Enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall. 2. The COMELEC did not exceed the
exercise of its rule-making power;
reassignment is included in the
[emphases and underscoring supplied] prohibition pursuant to the phrase
"transfer or detail whatever"
By statute, BP 881 provides:
In Resolution No. 8737, the COMELEC defined the phrase "transfer or detail
Article VII whatever" found in Section 261(h) of BP 881 as including any personnel action, i.e.,
THE COMMISSION ON ELECTIONS "reassignment." Aquino questions this COMELEC interpretation as an unwarranted
expansion of the legal prohibition which he argues renders the COMELEC liable for
grave abuse of discretion.
Sec. 52. Powers and functions of the Commission on elections. – In addition to the
powers and functions conferred upon it by the Constitution, the Commission shall
have exclusive charge of the enforcement and administration of all laws relative to the We agree with the questioned COMELEC interpretation of the phrase "transfer or
conduct of elections for the purpose of ensuring free, orderly and honest elections, detail whatever."
and shall:

xxxx

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a. The COMELEC’s interpretation,
pursuant to our Regalado ruling,
is consistent with the constitutional
and legislative intent
A necessary starting point in considering how we are to interpret the phrase "transfer
or detail whatever" is the legal provisions involved – BP 881 and the various laws
governing the civil service.
On the one hand, Aquino argues that the laws on the civil service should govern in
the interpretation of the phrase. Under this approach, the term "whatever" is viewed
as modifying only either the term "detail" (which it immediately follows) or both the
terms "detail and/or transfer." In such case, "reassignments," which is a distinct mode
of personnel action under the civil service laws, are automatically excluded.
On the other hand, the COMELEC holds the position that the phrase "transfer or
detail whatever" should be interpreted in the light of the general objectives of our
election laws. Under this approach, the terms transfer and detail, as modified by the
term whatever, are to be understood in their general sense such that any movement
of personnel from one station to another, including "reassignments," is covered by the
prohibition.
In Regalado, Jr. v. Court of Appeals,33 the Court already clarified the interpretation of
the term whatever as used in Section 261(h) of BP 881 in relation to the terms
transfer and detail. In agreeing with the Solicitor General’s position, this Court
declared that the terms transfer and detail are modified by the term whatever such
that "any movement of personnel from one station to another, whether or not in the
same office or agency, during the election period is covered by the prohibition."34
Read in the light of this ruling, we affirm the COMELEC’s interpretation of the phrase
"transfer or detail whatever" as we find the Regalado interpretation consistent with the
legislative intent. Indeed, as used in Section 261(h) of BP 881, the term whatever
should be not be read strictly in conjunction with only either the term transfer or the
term detail; nor should the phrase transfer or detail whatever be read in isolation from
the purpose of the legal prohibition. Rather, consistent with our rules in reading
provisions of law, the term – whatever – as well as the phrase – transfer or detail
whatever– should be understood within the broader context of the purpose of B₱881.
They should likewise be understood within the context of all other laws that the
COMELEC is required to administer and enforce. This is the proper approach that
anyone, including this Court, should take when reading Section 261(h), as well as all
other provisions of BP 881 and other election laws.
From this perspective, we reiterate our observation in Regalado that any personnel
action, when caused or made during the election period, can be used for
electioneering or to harass subordinates with different political persuasions. This
possibility – of being used for electioneering purposes or to harass subordinates –
created by any movement of personnel during the election period is precisely what
the transfer ban seeks to prevent.
Thus, it is immaterial whether or not the personnel action has in fact been actually
used for electioneering purposes or whether there has been any allegation in the
complaint to this effect. The mere existence of such plausibility for electioneering is
the reason that animated the legal prohibition against any personnel action, including
transfers and reassignments, during the election period.
To our mind, the interpretation that includes any form of personnel action, such as
reassignment, within the coverage of the phrase precisely guards against any such
electioneering and political harassment situations. This interpretation also more
vigorously enforces the aim not only of BP 881, but more importantly of the
Constitution to secure free, orderly, honest, peaceful, and credible elections.
Thus, to reiterate and emphasize – the election law’s prohibition on transfer or detail
covers any movement of personnel from one station to another, whether or not in the
same office or agency when made or caused during the election period.
b. Its interpretation is also
consistent with basic statutory
construction rules
In addition to what has been discussed, we affirm the COMELEC’s interpretation as it
is more in keeping with the following basic statutory construction rules:
First, that a word, phrase or provision in a statute should be construed not in isolation
with but in relation to the whole law. The clauses and phrases of a statute must not be
taken as detached and isolated expressions; but the whole and every part of it must
be construed in fixing the meaning of any of its parts in order to produce a
harmonious whole.35 In short, all the words of a statute must be taken into
consideration in order to ascertain and to animate the intention of the law making
bodies. Ut magis valeat quam pereat.
In this light, Aquino’s interpretation – that the term whatever and the transfer ban itself
refers to either only the term transfer or the term detail, or only to both these terms –
would obviously violate this well-known canon as it essentially views the phrase
transfer or detail whatever in isolation from the entire statute.
Second, that the words of a statute are to be understood in their natural, plain, and
ordinary acceptation and the signification that they have in common use, and are to
be given their ordinary meaning, unless otherwise specifically provided.36
When, as in this case, the specific provision in which it was used or the various
provisions of the statute when read as a whole do not betray a legislative intent to
give the term a different sense or a technical meaning, the term whatever as used
under Section 261(h) should, therefore, be understood in its ordinary or common
sense.
As commonly understood, the term whatever means "anything at all: any of various
other things that might also be mentioned;" or "something similar but hard to identify
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with certainty."37 Based on this definition, whatever would have served no purpose
were we to accept Aquino’s constrained interpretation. This is because any of the
various other forms of personnel action, under the laws governing the civil service that
would have been covered by the prohibition (with its use of the term whatever), will
automatically be excluded by Section 261(h)’s use of the terms transfer and detail.
In fact, if we were to follow the logic of Aquino’s argument, the only form of personnel
action that Section 261(h) would prohibit are transfer and detail; any other form of
personnel action are and will simply be allowed. This strict interpretation is clearly and
undoubtedly wrong for as we pointed out above, the interpretation that includes any
form of personnel action under the phrase not only guards against any electioneering
and political harassment situations that the prohibition seeks to avoid. It enforces
more vigorously the aim of securing free, orderly, honest, peaceful, and credible
elections to effectuate and safeguard the will of the electorate in choosing their
representatives.
In short, Aquino’s interpretation will only render the term whatever a mere surplusage
if the legislature intended to limit the prohibition to transfer or detail only as defined by
the laws governing the civil service.
Third, that special legal provisions prevail over general ones. 38 Our civil service
system is currently governed by PD 807, 39 otherwise known as the Civil Service
Decree, and EO 29240 or the Administrative Code of 1987.
PD 807 provides for the organization of the Civil Service Commission, its powers and
functions, and all other matters related to the civil service and the Commission. Its
primary intent and purpose is to establish a career service which ensures that
appointment in the civil service is made only according to merit and fitness, and to
establish a progressive system of personnel administration as well as measures that
promote morale and the highest degree of responsibility, integrity, loyalty, efficiency,
and professionalism in the Civil Service.41
EO 292, on the other hand, was enacted to incorporate in a unified document the
major structural, functional, and procedural principles and rules of
governance.42 Essentially, EO 292 provides the basic rules that will generally govern
the organization and operation of the government.
Together, these laws operate to ensure the efficient and organized operation and
administration of the government and of its various departments and offices,
particularly of the executive branch. As a necessary tool to the government’s efficient
operation, these laws also ensure that only the fit, in terms of their satisfaction of the
formal and informal qualifications, occupy positions in the government and discharge
public duties.
When what is involved, however, is the exercise of the right to vote and be voted for –
a particular right guaranteed to all citizens of the Philippines – the laws governing the
administration of the government and of the civil service play only a minor, and
perhaps, insignificant role. With regard to this particular and peculiar right and the
entire system by which this right is exercised and protected, what governs are our
various election laws, foremost of which is BP 881.
Thus, in reading and interpreting the provisions governing election offenses, we
should consider the terms of the election laws themselves and how they operate as a
whole. As a necessary and indispensable tool in this interpretation process, we must
likewise consider these provisions in the light of the constitutional and legislative goal
of attaining free, honest, and peaceful elections. It is only through these
considerations that the right to vote and to be voted for is positively guaranteed.
Under these considerations and with particular regard to election offenses, BP 881
serves as a special law that is consistent with our basic statutory construction rules
and prevails over the more general laws governing the civil service. In other words,
the treatment by the laws governing the civil service of the terms "transfer, detail and
reassignment" as distinct modes of personnel action does not and cannot control the
interpretation of laws dealing with election and election offenses, including the
interpretation of Section 261(h) ofBP 881, unless otherwise specifically provided.
In sum, we find the COMELEC’s exercise of its discretion – in ruling that
reassignments fall within the coverage of the prohibited transfers or details– to be well
within its jurisdiction.
To reiterate in clear terms, the prohibition on transfer or detail whatever during the
election period under Section 261(h) of BP 881 covers any personnel action including
reassignments.
3. The "120-day before and 30-day
after" election period was validly
fixed by the COMELEC pursuant to
its rule-making power
As a general rule, the period of election starts at ninety (90) days before and ends
thirty (30) days after the election date pursuant to Section 9, Article IX-C of the
Constitution and Section 3 of BP 881. This rule, however, is not without exception.
Under these same provisions, the COMELEC is not precluded from setting a period
different from that provided thereunder.
In this case, the COMELEC fixed the election period for the May 10, 2010 Elections at
120 days before and 30 days after the day of the election. We find this period proper
as we find no arbitrariness in the COMELEC’s act of fixing an election period longer
than the period fixed in the Constitution and BP 881. For one, the COMELEC fixed
the longer period of 120-days-before-and-30-days-afterpursuant to Section 9, Article
IX-C of the Constitution and Section 3 of BP 881. Also, Resolution No. 8737, through
which the COMELEC fixed this alternate period of election, is valid as it was issued
pursuant to the COMELEC’s valid exercise of its rule-making power (under Section 6,
Article IX-A of the Constitution and Section 52[c] of BP 881). Too, Resolution No.
8737 is valid as it complied with the publication requirement. Note that per the record,
Resolution No. 8737 was published twice – on December 31, 2009 in the Philippine
Daily Inquirer and on January 4, 2010 in the Daily Tribune.43
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B. The facts and the clear terms of the law
does not support the COMELEC’s
prima facie finding of violation of
Resolution No. 8737 in relation to
Section 261(h) of BP 881
Under Section 261(h) of BP 881,a person commits the election offense of violation of
the election transfer ban when he makes or causes the transfer or detail whatever of
any official or employee of the government during the election period absent prior
approval of the COMELEC.
By its terms, Section 261(h) provides at once the elements of the offense and its
exceptions. The elements are: (1) the making or causing of a government official or
employee’s transfer or detail whatever; (2) the making or causing of the transfer or
detail whatever was made during the election period; and (3) these acts were made
without the required prior COMELEC approval. As this provision operates, the making
or causing of the movement of personnel during the election period but without the
required COMELEC approval is covered by the prohibition and renders the
responsible person liable for the offense. Conversely, the making or causing (of the
movement of personnel) before or after the election period even without the required
COMELEC approval, or during the election period but with the required COMELEC
approval are not covered by the prohibition and do not render the responsible person
liable for this election offense.
A critical point to consider in determining whether or not Aquino may be held liable
under this provision is the interpretation of the phrase made or caused and the extent
to which the prohibition (on transfer or detail whatever) applies to his case. Factually,
it is likewise imperative to consider the date when Aquino made or caused the
reassignment of the affected PHIC officers and employees.
Make is defined as "to cause to exist. To do, perform, or execute; as to make an
issue, to make oath, to make a presentment. To do in form of law; to perform with due
formalities; to execute in legal form; as to make answer, to make a return or report. To
execute as one’s act or obligation; to prepare and sign; to issue; to sign, execute, and
deliver."44
Cause, on the other hand, is defined as "each separate antecedent of an event.
Something that precedes and brings about an effect or result. A reason for an action
or condition x x x x an agent that brings about something. That which in some manner
is accountable for condition that brings about an effect or that produces a cause for
the resultant action or state."45
Significantly, the terms make and cause indicate one and the same thing – the
beginning, the start of something, a precursor; it pertains to an act that brings about a
desired result. If we read these definitions within the context of Section 261(h) of BP
881, the legal prohibition on transfer or detail undoubtedly affects only those acts that
go into the making or causing or to the antecedent acts. Any act that occurs or is
performed after the antecedent act of making or causing or those acts performed to
carry out an event or result desired by the antecedent acts, such as the actual or
physical act of transferring, are no longer the concern of the legal prohibition.
When viewed in terms of how transfer or reassignments of government officers and
employees are usually carried into place, this act of making or causing often consists
in the act of issuing the transfer or reassignment order. To issue something means "to
discharge, produce, send out, publish, put into circulation, come out,"46 "to send forth;
to emit; to promulgate; as an officer issues orders, process issues from a court." 47 In
this sense, the act of issuing entails the mechanical act of drafting or writing the order,
by the issuing official himself or through a subordinate; the signing of the order; and
completed with its release as addressed to the concerned officer or employee.
During this phase of the entire transfer or reassignment process, the official
responsible for issuing the order plays an active role at its center. The issuing of the
order are his very acts. Thus, if the orders are issued prior to the start of the election
period, they are automatically rendered beyond the coverage of the prohibition and
the issuing official cannot be held liable for violation of Section 261(h) of BP 881.
Conversely, if the orders are issued during the election period and without COMELEC
approval, these are covered by the prohibition and renders the issuing official liable
for violation of Section 261(h).
Once the transfer or reassignment order is issued, the making or causing as the
defining act that determines whether a government official may be held liable under
Section 261(h) is deemed completed. The completion of this phase likewise ends the
active role the issuing official plays. Thus, the transfer or reassignment process
moves to the next phase – the implementation of the order. By definition, implement
refers to "the act of fulfilling or performing."48
At the implementation phase of the transfer or reassignment process, the issuing
official shifts to passive participation. The government officer or employee to whom
the order is addressed takes on the active role in performing the duties needed to
implement the order.
During the implementation phase, the addressee may immediately comply with the
order ―assume the post and discharge its duties ―or may delay compliance; or
choose not to comply at all. In these situations, the issuing official has no immediate
and actual control of the addressee’s action.
While the issuing official holds disciplinary power over the addressee in case of delay
or non-compliance, the exercise of his disciplining authority over the erring employee
would come after the fact – delay or non-compliance.
In short, during the making or causing phase of the entire transfer or reassignment
process – from drafting the order, to its signing, up to its release – the issuing official
plays a very real and active role. Once the transfer or reassignment order is issued,
the active role is shifted to the addressee of the order who should now carry out the
purpose of the order. At this level – the implementation phase – the issuing official’s
only role is to see to it that the concerned officer or employee complies with the order.
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The issuing official may only exert discipline upon the addressee who refuses to Secondly, the COMELEC also went beyond the clear contemplation and intention of
comply with the order. the law and of existing jurisprudence when it included within the prohibition's
coverage the implementation aspect of the reassignment process - acts that were
Following these considerations, we find that the COMELEC gravely abused its obviously no longer within his active and immediate control and beyond the ambit of
discretion in this case based on the following facts: making or causing to which the prohibition applies.

First, Aquino made or caused the reassignment of the concerned PHIC officers and In view of this conclusion, we no longer find it necessary to discuss the other issues
employees before the election period. or matters raised in this petition.

Second, Aquino sent out, via the PHIC’s intranet service, the reassignment order to WHEREFORE, in the light of these considerations, we hereby GRANT the petition.
all affected PHIC officers and employees before the election period. We REVERSE and SET ASIDE the resolutions dated October 19, 2012, and
February 18, 2014, of the Commission on Elections in E.O. Case No. 10-003 and
E.O. Case No. 10-008. The complaints against petitioner Dr. Rey B. Aquino for
Third, the reassignment order was complete in its terms, as it enumerated clearly the violation of RA 8737 in relation to Section 261(h) of BP 881 are hereby dismissed.
affected PHIC officers and employees as well as their respective places of
reassignments, and was made effective immediately or on the day of its issue, which
was likewise before the election period. Fourth, the subsequent orders that Aquino SO ORDERED.
issued were not reassignment orders per se contrary to the COMELEC’s assessment.
Rather, they were, in fact, simply either orders of retention, i.e., orders addressed to
the incumbent officer-occupant of the affected position to effectively maintain the
status quo and continue performing the duties of the position while the reassigned
officer or employee had not yet assumed or had been refusing to assume the position
and its duties; or orders of temporary discharge of additional duties, i.e., orders
addressed to the officer occupying the position next in rank to discharge the duties of
the affected position while the reassigned officer or employee had not yet assumed or
had been refusing to assume the position and its duties.

Retention of duties and temporary discharge of additional duties do not contemplate

or involve any movement of personnel, whether under any of the various forms of
personnel action enumerated under the laws governing the civil service or otherwise.
Hence, these subsequent orders could not be covered by the legal prohibition on
transfers or detail.

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

In sum, the COMELEC gravely abused its discretion when, firstly, it used wrong or
irrelevant considerations when it sought to hold Aquino liable for violation of Section
261 (h) for issuing orders that were clearly not for reassignment, but which were
simply orders for retention of position or orders for temporary discharge of additional
duties.

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SECOND DIVISION
G.R. No. 115022 August 14, 1995
PEOPLE OF THE PHILIPPINES, petitioner,  punishable only on January 15, 1992, the date of effectivity of COMELEC Resolution
vs.
HON. WILFREDO D. REYES, Presiding Judge, RTC, Branch 36, Manila and
BUENAVENTURA C. MANIEGO, respondents.
PUNO, J.:
This is a petition for certiorari and mandamus under Rule 65 of the Revised Rules of
Court to annul and set aside the orders dated September 23, 1993 and January 25,
1994 of respondent Judge Wilfredo D. Reyes, Regional Trial Court, Branch 36, Manila
in Criminal Case No. 93-120275.
The facts reveal that respondent Buenaventura C. Maniego, Collector of Customs,
Collection District II, Bureau of Customs, Manila International Container Port (MICP),
issued MICP Customs Personnel Order No. 21-92 dated January 10, 1992 assigning
Jovencio D. Ebio, Customs Operation Chief, MICP to the Office of the Deputy
Collector of Customs for Operations as Special Assistant. 1 The actual transfer of Ebio
was made on January 14, 1992.
On May 4, 1992, Ebio filed with the Commission on Elections (COMELEC) a letter-
complaint protesting his transfer. Ebio claimed that his new assignment violated
COMELEC Resolution No. 2333 and section 261 (h) of B.P. Blg. 881, the Omnibus
Election Code, which prohibit the transfer of any employee in the civil service 120
days before the May 11, 1992 synchronized national and local elections.
After a preliminary investigation, the COMELEC filed on May 6, 1995 an information
with the Regional Trial Court, Branch 36, Manila charging respondent Maniego with a
violation of Section 261 (h) of B. P. Blg. 881 committed as follows:
That on or about January 14, 1992 which was within the election period of
the May 11, 1992 synchronized elections and within the effectivity of the ban
on transfer or detail of officers and employees in the civil service, in the City
of Manila, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, a public official, being the Collector of Customs VI,
Manila International Container Port, Bureau of Customs, by taking
advantage of his position and abuse of authority, did, then and there, wilfully
and unlawfully, transfer Jovencio D. Ebio, Chief of the Piers and Inspection
Division, Manila International Container Port, Bureau of Customs, to Special
Assistant in the office of the Deputy Collector for Operations, of the same
office, without a prior written authority from the Commission on Elections.2
Before the arraignment, respondent Maniego moved to quash the information on the
ground that the facts alleged do not constitute an offense. He contended that the
transfer of Ebio on January 14, 1992 did not violate B.P. Blg. 881 because on that
date the act was not yet punishable as an election offense. It purportedly became
No. 2333 implementing Section 261 (h) of B.P. Blg. 881. Petitioner, through the
COMELEC, opposed the motion to quash.
On September 23, 1993, the trial court granted private respondent's motion to quash
and dismissed Criminal Case No. 93-120275.3 Petitioner moved to reconsider but the
same was denied on January 25, 1995.4 Petitioner forthwith elevated the case to this
Court on a pure question of law.
We affirm.
The basic law supposed to have been violated by respondent Maniego is Section 261
(h) of B.P. Blg. 881 which reads as follows:
Sec. 261. Prohibited acts. — The following shall be guilty of any election
offense:
xxx xxx xxx
(h) Transfer of officers and employees in the civil service. — Any public
official who makes or causes any transfer or detail whatever of any officer or
employee in the civil service including public school teachers,within the
election period except upon prior approval of the Commission. (Emphasis
supplied)
The Constitution has fixed the election period for all elections to commence ninety
(90) days before the day of election and end thirty (30) days thereafter, unless
otherwise fixed in special cases by the COMELEC.5 For the May 11, 1992
synchronized national and local elections, the COMELEC fixed a longer election
period of one hundred twenty (120) days before the scheduled elections and thirty
(30) days thereafter. It issued Resolution No. 2314 on September 23, 1991 primarily
adopting therein a calendar of activities. In the process, it designated January 12,
1992 to June 10, 1992 as the election period, viz.:
RESOLUTION NO. 2314
Pursuant to the powers vested in it by the Constitution of the Republic of the
Philippines, the Omnibus Election Code (B.P. Blg. 881), and Republic Act
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No. 7166, the Commission on Elections has RESOLVED to adopt, the
following calendar of activities for the May 11, 1992 elections:
Date/Period Activities
November 28, 1991 — Start of the period of nomination and selection of
official candidates for President, Vice-President and Senators (165 days,
SEC. 6, R.A.7166)
January 2, 1992 — Last day for appointment of members of boards of
election inspectors (Sec.164, OEC) (Subject to appointments which may be
extended later in account of lack of public school teachers and
disqualifications due to relationship to candidates.)
January 12, 1992 — ELECTION PERIOD (120 (Sunday) todays, per Res.
No. ____ ) service, including public school teachers, shall be submitted in writing to the
June 10, 1992 Bans on carrying of firearms Wednesday suspension of
elective local officials, organization of strike forces, etc. (Sec. 261,  employee is proposed to be transferred or detailed, and stating the reason
OEC)6
xxx xxx xxx
On January 2, 1992, the COMELEC promulgated Resolution No. 2328 for the sole
and specific purpose of fixing for the said elections the election period from January
12, 1992 to June 10, 1992.7 This Resolution was published in the January 5, 1992
issue of the Manila Times and the January 6, 1992 issue of the Philippine Times
Journal.8
On January 2, 1992, the COMELEC also passed Resolution No. 2333 which
promulgated the necessary rules to enforce Section 261 of B.P. Blg. 881. We quote
its pertinent portions:
RESOLUTION NO. 2333
WHEREAS, the Omnibus Election Code of the Philippines provides:
Sec. 261. Prohibited acts, — The following shall be guilty
of an election offense:
xxx xxx xxx
(h) Transfer of officers and employees in the civil service.
— Any public official who makes or causes any transfer or
detail whatever of any officer or employee in the civil
service including public school teachers, within the
election period except upon prior approval of the
Commission.
xxx xxx xxx
WHEREAS, to enforce effectively the foregoing provisions, there is need to
promulgate the necessary rules for the guidance of all concerned;
NOW, THEREFORE, pursuant to the power vested in it by the Constitution,
the Omnibus Election Code, Republic Acts No. 6646 and 7166 and other
election laws, the Commission has RESOLVED to promulgate, as it hereby
promulgates, the following rules to implement the provisions of Sec. 261,
subsections (g), (h) and (x) of the Omnibus Election Code.
xxx xxx xxx
Sec. 2. Request for authority of the Commission. — Any request for authority
to make or cause any transfer or detail of any officer or employee in the civil
Commission indicating therein the office and place to which the officer or
therefor.
xxx xxx xxx
Sec. 6. Effectivity. — This resolution shall take effect on the seventh day
after its publication in two (2) newspapers of general circulation in the
Philippines.
xxx xxx xxx
Resolution No. 2333 was published in the January 8, 1992 issues of Malaya and
the Manila Standard. Hence, it took effect on January 15, 1992, the seventh day after
its publication.
It is undeniable that the transfer of complainant Ebio on January 14, 1992 was made
during the election period. The question, however, is whether this transfer ipso
facto  makes respondent Maniego liable for an election offense under Section 261 (h)
of B.P. Blg. 881.
We rule in the negative.
We start with the constitutional injunction that no officer or employee in the civil
service shall engage, directly or indirectly, in any electioneering or partisan political
campaign.9 This prohibition is reiterated in the Administrative Code of 1987. 10 Section
261 (h) of B.P. Blg. 881 implements this constitutional prohibition.
It ought to be immediately obvious that Section 261 (h) of B.P. Blg. 881 does not  per
se  outlaw the transfer of a government officer or employee during the election period.
To be sure, the transfer or detail of a public officer or employee is a prerogative of the
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appointing authority. 11 It is necessary to meet the exigencies of public service
sometimes too difficult to perceive and predict. Without this inherent prerogative, the
appointing authority may not be able to cope with emergencies to the detriment of
public service. Clearly then, the transfer or detail of government officer or employee
will not be penalized by Section 261 (h) of B.P. Blg. 881 if done to promote efficiency
in the government service. Hence, Section 2 of Resolution No. 2333 provides that the
COMELEC has to pass upon the reason for the proposed transfer or detail, viz: "Any
request for authority to make or cause any transfer or detail of any officer or employee
in the civil service, including public school teachers, shall be submitted in writing to
the Commission indicating therein the office and place to which the officer or
employee is proposed to be transferred or detailed, and stating the reason therefor. 12

Prescinding from this predicate, two (2) elements must be established to prove a
violation of Section 261 (h) of B.P. Blg. 881, viz: (1) The fact of transfer or detail of a
public officer or employee within the election period as fixed by the COMELEC, and
(2) the transfer or detail was effected without prior approval of the COMELEC in
accordance with its implementing rules and regulations.

In the case at bench, respondent Maniego transferred Ebio, then the Customs
Operation Chief, MICP to the Office of the Deputy Collector of Customs for
Operations as Special Assistant on January 14, 1992. On this date, January 14,
1992, the election period for the May 11, 1992 synchronized elections had already
been fixed to commence January 12, 1992 until June 10, 1992. As aforestated, this
election period had been determined by the COMELEC in its Resolution No. 2314
dated November 20, 1991 and Resolution No. 2328 January 2, 1992. Nonetheless, it
was only in Resolution No. 2333 which took effect on January 15, 1992  that
COMELEC promulgated the necessary rules on how to get its approval on the
transfer or detail of public officers or employees during the election period. Before the
effectivity of these rules, it cannot be said that Section 261 (h) of B.P. Blg. 881, a
penal provision, was already enforceable. Needless to state, respondent Maniego
could not be charged with failing to secure the approval of the COMELEC when he
transferred Ebio on January 14, 1992 as on that day, the rules of the COMELEC on
the subject were yet in existent.

IN VIEW WHEREOF, the petition is dismissed and the orders dated September 23,
1993 and January 25, 1995 of the respondent judge in Criminal Case No. 93-120275
are affirmed.

SO ORDERED.

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SECOND DIVISION
G.R. No. L-36388 March 16, 1988
COMMISSION ON ELECTIONS, petitioner,  COMELEC's Motion for Reconsideration was denied by respondent Judge in his
vs.
HONORABLE MANUEL V. ROMILLO, JR., District Judge, Court of First Instance of
Ilocos Norte (Branch II), respondent.
MELENCIO-HERRERA, J.:
In this Petition for certiorari and Mandamus, petitioner Commission on Elections the
(COMELEC) seeks to annul the Order of Respondent Judge, dated October 27, 1972,
in so far as it dismissed the Complaint in Criminal Case No. 120-II, and the Order,
dated December 20, 1972, which denied petitioner's Motion for Reconsideration.
On April 24,1972, the COMELEC filed four (4) criminal Complaints against one Eden
Asuncion for election offenses committed on Election Day, November 8,1971, at
around 10:00 A.M., at Polling Precinct No. 58, Laoag City. The four (4) cases were
filed with said court for preliminary investigation pursuant to Sections 234 and 236 of
the Election Code of 1971 (Republic Act No. 6388. 1
The criminal cases filed were:
(1) Criminal Case No. 119-II, for violation of Section 61 of the
Election Code of 1971, by carrying a gun inside the said polling
place on the same date and time, while the voting was in progress;
(2) Criminal Case No. 120-II, for violation of Section 172 of the
Election Code of 1971, by unlawfully entering said polling place on
the same date and time;
(3) Criminal Case No.121-II, for violation of Sec.231(a),par.25 of the
Election Code of 1971, by employing unlawful means or scheme to
discover or read the contents of prepared ballots by voters of said
polling place on the same date and time;
(4) Criminal Case No.122-II, for violation of Sec.231(a),par.32 of the
Election Code of 1971, by conducting himself in a disorderly
manner as to interrupt the voting proceedings in said polling place
on the same date and time.
After preliminary investigation, respondent Judge issued the Order, dated October
27,1972, dismissing Criminal Cases Nos. 119-II, 121-II and 122- II for insufficiency of
evidence, and quashing the Complaint in Criminal Case No. 120-II, which is the
questioned portion of the Order, on the ground that the mere presence of an
unauthorized person in the polling place does not constitute an offense.
Order dated December 20, 1972, which Order is also challenged herein.
The Complaint in Criminal Case No. 120-II for Preliminary Investigation reads:
Pursuant to Section 2, Rule 110, Revised Rules of Court, in relation
to Section 234 and 236 of the Election Code of 1971, the
undersigned accuses EDEN ASUNCION of Laoag City for violation
of Section 172 of Republic Act No. 6388, committed as follows:
That on November 8, 1971, Election Day, around 10:00 a.m. in
Laoag City and within the jurisdiction of this Honorable Court, while
the voting was going on in Precinct No. 58 located at Balatong
Elementary School Building in Barrio Balatong, Laoag City, the
accused EDEN ASUNCION who is not authorized to enter a polling
place, did, then and there, unlawfully enter the polling place of said
precinct.
CONTRARY TO LAW.
Section 172, paragraph 1 of the Election Code of 1971, alleged to have been violated,
provides:
SEC. 172. Persons allowed in and around the polling place. —
During the voting, no person shall be allowed inside the polling
place, except the members of the board of inspectors and their
substitutes, the watchers, the representatives of the Commission,
the voters casting their votes, the voters waiting for their turn to get
inside the booths whose number shag not exceed twice the number
of booths and the voters waiting for their turn to cast their votes
whose number shall not exceed forty at any one time. The watchers
shall stay only in the space reserved for them it being illegal for
them to enter places reserved for the voters or for the board, or to
mingle and talk with the voters within the polling place.
xxx xxx xxx
Violation of the foregoing provision is classified as a serious election offense, thus:
Sec. 230. Election offenses and their classification. — Violation of
any of the provisions, or pertinent portions of sections ... one
hundred and seventy-two ... shall be serious election offenses; ...
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the penalty prescribed therefor being: SO ORDERED.

SEC. 233. Penalties. — Any one found guilty of a serious election

offense shall be punished with imprisonment of not less than six
years and one day but not more than twelve years; ...

From the tenor of the foregoing provisions, it is clear that Section 172, in relation to
Sections 230 and 233 of the Revised Election Code of 1971, is penal in character,
contrary to the ruling of respondent Judge.

Sections 172, 230 and 233 of the said 1971 Election Code have been reproduced in
Sections 137, 179 and 181 of the 1978 Election Code, and in Sections 192, 262 and
264 of the Omnibus Election Code.

But while respondent Judge may have erred in his rationalization, the quashal of the
complaint in Criminal Case No. 120-II will have to be upheld. The same reason given
by respondent Judge for the dismissal of Criminal Cases Nos. 119-II, 121-II and 122-
II, that is, for insufficiency of evidence, applies. Quoted in the dismissal Order is the
following testimony of the Chairman of the Board of Election Inspectors of Precinct
No. 58, Laoag City, showing the absence of a prima facie case against the accused.

Q — As per telegram of the Comelec, Manila,

dated February 10, 1972, affidavits were
submitted by Marcelino Dajugar and Lucille
Guerrero of Barrios Balatong and No. 19,
respectively, of Laoag City charging one, Eden
Asuncion, of having entered the polling place and
voting booths of Precinct No. 58, with firearms
and then watched voters fill up ballots and read
the contents thereof What can you say about
that?

A— All I can say is that when I saw Eden

Asuncion tried (sic) to enter the voting booth, I
stopped him and sent him out and he did so; I
never saw him carrying a firearm. With respect to
the charges that Eden Asuncion watched voters
fill up their ballots and reading the contents of the
same, I never saw him committed (sic) those acts
because when he tried to enter the voting booths
I called his attention to go out and he went out.
(Exhibit "1")

Under those circumstances, by no means can it be concluded that Eden Asuncion

had violated Section 172 of the Election Code. The secrecy and sanctity of the ballot
sought to be protected by the said provision has not been violated.

WHEREFORE, the Petition for certiorari and mandamus is denied. No costs.

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EN BANC the 2004 elections] state, among others, as follows, particularly
  Nos. 6, 9 and 12 thereof:
 
GAUDENCIO M. CORDORA, G.R. No. 176947 1. No. 6 I am a Natural Born/Filipino Citizen
Petitioner, 2. No. 9 No. of years of Residence before May 14, 2001.
Present: 36 in the Philippines and 25 in the Constituency where I seek to
PUNO, C.J., be elected;
QUISUMBING, 3. No. 12 I am ELIGIBLE for the office I seek to be elected.
YNARES-SANTIAGO,* [3]
 (Boldface and capitalization in the original)
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,  
- versus - CARPIO MORALES,
TINGA,** Cordora stated that Tambunting was not eligible to run for local public office because
CHICO-NAZARIO, Tambunting lacked the required citizenship and residency requirements.
VELASCO, JR.,***
NACHURA,
To disprove Tambuntings claim of being a natural-born Filipino citizen, Cordora
LEONARDO-DE CASTRO,
presented a certification from the Bureau of Immigration which stated that, in two
BRION, and
instances, Tambunting claimed that he is an American: upon arrival in the Philippines
PERALTA, JJ.
on 16 December 2000 and upon departure from the Philippines on 17 June
 
2001. According to Cordora, these travel dates confirmed that Tambunting acquired
 
American citizenship through naturalization in Honolulu, Hawaii on 2 December
COMMISSION ON ELECTIONS Promulgated:
2000. Cordora concluded:
and GUSTAVO S. TAMBUNTING,
Respondents. February 19, 2009
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x That Councilor Gustavo S. Tambunting contrary to the provision of
  Sec 74 (OEC): [sic] Re: CONTENTS OF CERTIFICATE OF
DECISION CANDIDACY: which requires the declarant/affiant to state, among
  others, under oath, that he is a Filipino (No. 6), No.
CARPIO, J.: 9- residence requirement which he lost when [he was]
  naturalized as an American Citizen on December 2, 2000 at [sic]
The Case Honolulu, Hawaii, knowingly and
  willfully affirmed and reiterated that he possesses the above basic
This is a petition for certiorari and mandamus, with prayer for the issuance of a requirements under No. 12 that he is indeed eligible for the
temporary restraining order under Rule 65 of the 1997 Rules of Civil Procedure. office to which he seeks to be elected, when in truth and in
In EO Case No. 05-17, Gaudencio M. Cordora (Cordora) accused Gustavo S. fact, the contrary is indubitably established by his own
Tambunting (Tambunting) of an election offense for violating Section 74 in relation to statements before the Philippine Bureau of Immigration x x x.
[4]
Section 262 of the Omnibus Election Code. The Commission on Elections  (Emphases in the original)
(COMELEC) En Banc dismissed Cordoras complaint in a Resolution[1] dated 18
August 2006. The present petition seeks to reverse the 18 August 2006 Resolution as Tambunting, on the other hand, maintained that he did not make any
well as the Resolution[2] dated 20 February 2007 of the COMELEC En Banc which misrepresentation in his certificates of candidacy. To refute Cordoras claim that
denied Cordoras motion for reconsideration. Tambunting is not a natural-born Filipino, Tambunting presented a copy of his birth
  certificate which showed that he was born of a Filipino mother and an American
The Facts father.Tambunting further denied that he was naturalized as an American citizen. The
  certificate of citizenship conferred by the US government after Tambuntings father
In his complaint affidavit filed before the COMELEC Law Department, Cordora petitioned him through INS Form I-130 (Petition for Relative) merely confirmed
asserted that Tambunting made false assertions in the following items: Tambuntings citizenship which he acquired at birth. Tambuntings possession of an
  American passport did not mean that Tambunting is not a Filipino citizen. Tambunting
That Annex A [Tambuntings Certificate of Candidacy for the 2001 also took an oath of allegiance on 18 November 2003 pursuant to Republic Act No.
elections] and Annex B [Tambuntings Certificate of Candidacy for 9225 (R.A. No. 9225), or the Citizenship Retention and Reacquisition Act of 2003.
 

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Tambunting further stated that he has resided in the Philippines since
birth. Tambunting has imbibed the Filipino culture, has spoken the Filipino language,
and has been educated in Filipino schools. Tambunting maintained that proof of his
loyalty and devotion to the Philippines was shown by his service as councilor of
Paraaque.
 
To refute Cordoras claim that the number of years of residency stated in Tambuntings
certificates of candidacy is false because Tambunting lost his residency because of
his naturalization as an American citizen, Tambunting contended that the residency
requirement is not the same as citizenship.
 
The Ruling of the COMELEC Law Department
 
The COMELEC Law Department recommended the dismissal of Cordoras complaint
against Tambunting because Cordora failed to substantiate his charges against
Tambunting. Cordoras reliance on the certification of the Bureau of Immigration that
Tambunting traveled on an American passport is not sufficient to prove that
Tambunting is an American citizen.
The Ruling of the COMELEC En Banc
 
The COMELEC En Banc affirmed the findings and the resolution of the COMELEC
Law Department. The COMELEC En Banc was convinced that Cordora failed to
support his accusation against Tambunting by sufficient and convincing evidence.
The dispositive portion of the COMELEC En Bancs Resolution reads as follows:
WHEREFORE, premises considered, the instant complaint is
hereby DISMISSED for insufficiency of evidence to establish
probable cause.
SO ORDERED.[5]
Commissioner Rene V. Sarmiento (Commissioner Sarmiento) wrote a separate
opinion which concurred with the findings of the En Banc Resolution. Commissioner
Sarmiento pointed out that Tambunting could be considered a dual citizen. Moreover,
Tambunting effectively renounced his American citizenship when he filed his
certificates of candidacy in 2001 and 2004 and ran for public office.
 
Cordora filed a motion for reconsideration which raised the same grounds and the
same arguments in his complaint. In its Resolution promulgated on 20 February 2007,
the COMELEC En Banc dismissed Cordoras motion for reconsideration for lack of
merit.
 
The Issue
 
Cordora submits that the COMELEC acted with grave abuse of discretion amounting
to lack or excess of jurisdiction when it declared that there is no sufficient evidence to
support probable cause that may warrant the prosecution of Tambunting for an
election offense.
Cordoras petition is not an action to disqualify Tambunting because of Tambuntings
failure to meet citizenship and residency requirements. Neither is the present petition
an action to declare Tambunting a non-Filipino and a non-resident. The present
petition seeks to prosecute Tambunting for knowingly making untruthful statements in
his certificates of candidacy.
 
The Ruling of the Court
 
The petition has no merit. We affirm the ruling of the COMELEC En Banc.
Whether there is Probable Cause to Hold Tambunting for Trial
for Having Committed an Election Offense
 
There was no grave abuse of discretion in the COMELEC En Bancs ruling that there
is no sufficient and convincing evidence to support a finding of probable cause to hold
Tambunting for trial for violation of Section 74 in relation to Section 262 of the
Omnibus Election Code.
Probable cause constitutes those facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense has been
committed.Determining probable cause is an intellectual activity premised on the prior
physical presentation or submission of documentary or testimonial proofs either
confirming, negating or qualifying the allegations in the complaint.[6]
 
Section 74 of the Omnibus Election Code reads as follows:
 
Contents of certificate of candidacy.  The certificate of candidacy
shall state that the person filing it is announcing his candidacy for
the office stated therein and that he is eligible for said office; x x x
the political party to which he belongs; civil status; his date of birth;
residence; his post office address for all election purposes; his
profession or occupation; that he will support and defend the
Constitution of the Philippines and will maintain true faith and
allegiance thereto; that he will obey the laws, legal orders and
decrees promulgated by the duly constituted authorities; that he is
not a permanent resident or immigrant to a foreign country; that the
obligation imposed by his oath is assumed voluntarily, without
mental reservation or purpose of evasion; and that the facts stated
in the certificate of candidacy are true to the best of his knowledge.
xxx
The person filing a certificate of candidacy shall also affix his latest
photograph, passport size; a statement in duplicate containing his
bio-data and program of government not exceeding one hundred
words, if he so desires.
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Section 262 of the Omnibus Election Code, on the other hand, provides that violation
of Section 74, among other sections in the Code, shall constitute an election offense.
Tambuntings Dual Citizenship
 
Tambunting does not deny that he is born of a Filipino mother and an American
father. Neither does he deny that he underwent the process involved in INS Form I-
130 (Petition for Relative) because of his fathers citizenship. Tambunting claims that
because of his parents differing citizenships, he is both Filipino and American by
birth. Cordora, on the other hand, insists that Tambunting is a naturalized American
citizen.
 
We agree with Commissioner Sarmientos observation that Tambunting possesses
dual citizenship. Because of the circumstances of his birth, it was no longer necessary
for Tambunting to undergo the naturalization process to acquire American
citizenship. The process involved in INS Form I-130 only served to confirm the
American citizenship which Tambunting acquired at birth. The certification from the
Bureau of Immigration which Cordora presented contained two trips where
Tambunting claimed that he is an American. However, the same certification showed
nine other trips where Tambunting claimed that he is Filipino. Clearly, Tambunting
possessed dual citizenship prior to the filing of his certificate of candidacy before the
2001 elections. The fact that Tambunting had dual citizenship did not disqualify him
from running for public office.[7]
 
Requirements for dual citizens from birth
who desire to run for public office
 
We deem it necessary to reiterate our previous ruling in Mercado v. Manzano,
wherein we ruled that dual citizenship is not a ground for disqualification from running
for any elective local position.
 
To begin with, dual citizenship is different from dual allegiance. The
former arises when, as a result of the concurrent application of the
different laws of two or more states, a person is simultaneously
considered a national by the said states. For instance, such a
situation may arise when a person whose parents are citizens of a
state which adheres to the principle of jus sanguinis is born in a
state which follows the doctrine of jus soli. Such a person, ipso
facto  and without any voluntary act on his part, is concurrently
considered a citizen of both states. Considering the citizenship
clause (Art. IV) of our Constitution, it is possible for the following
classes of citizens of the Philippines to possess dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign
countries which follow the principle of jus soli;
(2) Those born in the Philippines of Filipino mothers and alien
fathers if by the laws of their fathers country such children are
citizens of that country;
(3) Those who marry aliens if by the laws of the latters country the
former are considered citizens, unless by their act or omission they
are deemed to have renounced Philippine citizenship.
There may be other situations in which a citizen of the Philippines
may, without performing any act, be also a citizen of another state;
but the above cases are clearly possible given the constitutional
provisions on citizenship.
Dual allegiance, on the other hand, refers to the situation in which a
person simultaneously owes, by some positive act, loyalty to two or
more states. While dual citizenship is involuntary, dual allegiance is
the result of an individuals volition.
xxx
[I]n including 5 in Article IV on citizenship, the concern of the
Constitutional Commission was not with dual citizens per se but
with naturalized citizens who maintain their allegiance to their
countries of origin even after their naturalization. Hence, the phrase
dual citizenship in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20
must be understood as referring to dual
allegiance. Consequently, persons with mere dual citizenship do
not fall under this disqualification. Unlike those with dual
allegiance, who must, therefore, be subject to strict process
with respect to the termination of their status, for candidates
with dual citizenship, it should suffice if, upon the filing of their
certificates of candidacy, they elect Philippine citizenship to
terminate their status as persons with dual citizenship
considering that their condition is the unavoidable
consequence of conflicting laws of different states. As Joaquin
G. Bernas, one of the most perceptive members of the
Constitutional Commission, pointed out: [D]ual citizenship is just a
reality imposed on us because we have no control of the laws on
citizenship of other countries. We recognize a child of a Filipino
mother. But whether or not she is considered a citizen of another
country is something completely beyond our control.
By electing Philippine citizenship, such candidates at the same time
forswear allegiance to the other country of which they are also
citizens and thereby terminate their status as dual citizens. It may
be that, from the point of view of the foreign state and of its laws,
such an individual has not effectively renounced his foreign
citizenship. That is of no moment as the following discussion on
40(d) between Senators Enrile and Pimentel clearly shows:
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SENATOR ENRILE. Mr. President, I would like to
ask clarification of line 41, page 17: Any person
with dual citizenship is disqualified to run for any
elective local position. Under the present
Constitution, Mr. President, someone whose
mother is a citizen of the Philippines but his father
is a foreigner is a natural-born citizen of the
Republic. There is no requirement that such a
natural-born citizen, upon reaching the age of
majority, must elect or give up Philippine
citizenship.
On the assumption that this person would carry
two passports, one belonging to the country of his
or her father and one belonging to the Republic of
the Philippines, may such a situation disqualify
the person to run for a local government position?
SENATOR PIMENTEL. To my mind, Mr.
President, it only means that at the moment when
he would want to run for public office, he has to
repudiate one of his citizenships.
SENATOR ENRILE. Suppose he carries only a
Philippine passport but the country of origin or the
country of the father claims that person,
nevertheless, as a citizen,? No one can
renounce. There are such countries in the world.
SENATOR PIMENTEL. Well, the very fact that he
is running for public office would, in effect, be an
election for him of his desire to be considered a
Filipino citizen.
SENATOR ENRILE. But, precisely, Mr.
President, the Constitution does not require an
election. Under the Constitution, a person whose
mother is a citizen of the Philippines is, at birth, a
citizen without any overt act to claim the
citizenship.
SENATOR PIMENTEL. Yes. What we are saying,
Mr. President, is: Under the Gentlemans
example, if he does not renounce his other
citizenship, then he is opening himself to
question. So, if he is really interested to run, the
first thing he should do is to say in the Certificate
of Candidacy that: I am a Filipino citizen, and I
have only one citizenship.
SENATOR ENRILE. But we are talking from the
viewpoint of Philippine law, Mr. President. He will
always have one citizenship, and that is the
citizenship invested upon him or her in the
Constitution of the Republic.
SENATOR PIMENTEL. That is true, Mr.
President. But if he exercises acts that will prove
that he also acknowledges other citizenships,
then he will probably fall under this
disqualification.[8] (Emphasis supplied)
 
We have to consider the present case in consonance with our rulings in Mercado v.
Manzano,[9] Valles v. COMELEC,[10]  and AASJS v. Datumanong.
[11]
 Mercado  and Valles  involve similar operative facts as the present case. Manzano
and Valles, like Tambunting, possessed dual citizenship by the circumstances of their
birth.Manzano was born to Filipino parents in the United States which follows the
doctrine of jus soli. Valles was born to an Australian mother and a Filipino father in
Australia. Our rulings in Manzano and Valles stated that dual citizenship is different
from dual allegiance both by cause and, for those desiring to run for public office, by
effect. Dual citizenship is involuntary and arises when, as a result of the concurrent
application of the different laws of two or more states, a person is simultaneously
considered a national by the said states. Thus, like any other natural-born Filipino, it is
enough for a person with dual citizenship who seeks public office to file his certificate
of candidacy and swear to the oath of allegiance contained therein. Dual allegiance,
on the other hand, is brought about by the individuals active participation in the
naturalization process. AASJS  states that,  under R.A. No. 9225, a Filipino who
becomes a naturalized citizen of another country is allowed to retain his Filipino
citizenship by swearing to the supreme authority of the Republic of the Philippines.
The act of taking an oath of allegiance is an implicit renunciation of a naturalized
citizens foreign citizenship.
 
R.A. No. 9225, or the Citizenship Retention and Reacquisition Act of 2003, was
enacted years after the promulgation of Manzano  and Valles. The oath found in
Section 3 of R.A. No. 9225 reads as follows:
 
I __________ , solemnly swear (or affirm) that I will support and
defend the Constitution of the Republic of the Philippines and obey
the laws and legal orders promulgated by the duly constituted
authorities of the Philippines; and I hereby declare that I recognize
and accept the supreme authority of the Philippines and will
maintain true faith and allegiance thereto; and that I impose this
obligation upon myself voluntarily without mental reservation or
purpose of evasion.
 
In Sections 2 and 3 of R.A. No. 9225, the framers were not concerned with dual
citizenship per se, but with the status of naturalized citizens who maintain their
allegiance to their countries of origin even after their naturalization. [12] Section 5(3) of
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 Laws on Suffrage
R.A. No. 9225 states that naturalized citizens who reacquire Filipino citizenship and
desire to run for 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 filing 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 aside from the oath of allegiance prescribed in Section 3 of R.A. No. 9225. The
twin requirements of swearing to an Oath of Allegiance and executing a Renunciation
of Foreign Citizenship served as the bases for our recent rulings in Jacot v. Dal and
COMELEC,[13] Velasco v. COMELEC,[14] and Japzon v. COMELEC,[15] all of which
involve natural-born Filipinos who later became naturalized citizens of another
country and thereafter ran for elective office in the Philippines. In the present case,
Tambunting, a natural-born Filipino, did not subsequently become a naturalized
citizen of another country. Hence, the twin requirements in R.A. No. 9225 do not
apply to him.
 
Tambuntings residency
 
Cordora concluded that Tambunting failed to meet the residency requirement
because of Tambuntings naturalization as an American. Cordoras reasoning fails
because Tambunting is not a naturalized American. Moreover, residency, for the
purpose of election laws, includes the twin elements of the fact of residing in a fixed
place and the intention to return there permanently,[16] and is not dependent upon
citizenship.
 
In view of the above, we hold that Cordora failed to establish that Tambunting indeed
willfully made false entries in his certificates of candidacy. On the contrary,
Tambunting sufficiently proved his innocence of the charge filed against
him. Tambunting is eligible for the office which he sought to be elected and fulfilled
the citizenship and residency requirements prescribed by law.
 
WHEREFORE, we DISMISS the petition. We AFFIRM the Resolutions of the
Commission on Elections En Banc dated 18 August 2006 and 20 February 2007 in
EO Case No. 05-17.
 
SO ORDERED.
 

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