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1. Ampatuan v. Comelec, G.R. No. 149803, 375 SCRA 503 (2002) 2. Magno v. COMELEC, G.R. No.

147904, 4 October 2002 3. Lopez v. Senate and House of Representatives, G.R. No. 163556, June 8, 2004 4. Brillantes, Jr. v. COMELEC, G.R. No. 163193, 15 June 2004 5. Pimentel v. Joint Committee of Congress, G.R. No. 163783, June 22, 2004 6. Ceniza v. COMELEC, L-52304, 28 January 1980 7. Veterans Federation Party v. Comelec, G.R. No. 136781, 6 October 2000/ 8. Ang Bagong Bayani Labor Party v. Comelec, G.R. No. 147589, 26 June 2001/ 9. Pimentel v. HRET, G.R. No. 141489, 29 November 2002 10. Abbas v. Comelec, G.R. No. 89651, 10 November 1989 11. Flores v. Comelec, G.R. No. 89604, 20 April 1990 12. Occea v. Comelec, G.R. No. L-60258, 31 January 1984

Case Digest on Veterans Federation Party v. COMELEC G.R. No. 1136781 (October 6, 2000)
November 10, 2010 FACTS: On May 11, 1998, the first election for the party-list scheme was held simultaneously with the national elections. One hundred and twenty-three parties, organizations and coalitions participated. On

June 26, 1998, the COMELEC en banc proclaimed thirteen party-list representatives from twelve parties and organizations, which had obtained at least two percent of the total number of votes cast for the party-list system. Thirty-eight defeated parties and organizations promptly filed suit in the COMELEC, pleading for their own proclamations. Hence, COMELEC ordered the proclamation of the 38 parties. Such move filled up the 52 seats allotted for the party-list reps. Aggrieved, the proclaimed parties asked the SC to annul the COMELEC action and instead to proclaim additional seats, so that each of them would have three party-list reps. HELD: 1. Is the 20% allocation for party-list representatives mandatory or is it merely a ceiling? SC: The 20% allocation is only a ceiling and not mandatory. 2. Are the 2% threshold requirement and the three-seat limit provided in Section 11(b) of RA 7941 constitutional? SC: Yes. Congress was vested with the broad power to define

and prescribe the mechanics of the party-list system. 3. How then should the additional seats of a qualified party be determined? SC: As to the method of allocating additional seats, the first step is to rank all the participating parties according to the votes they each obtained. The percentage of their respective votes as against the total number of votes cast for the party-list system is then determined. All those that garnered at least two percent of the total votes cast have an assured or guaranteed seat in the House of Representatives. Thereafter, those garnering more than two percent of the votes shall be entitled to additional seats in proportion to their total number of votes. The formula for additional seats of other qualified parties is: no.of votes of concerned party divided by no.of votes of first party multiplied by no. of additional seats allocated to the first party. As for the first party, just take it at face value. ( 5% = 2 seats )

http://www.scribd.com/doc/61853285/Article-VI-Case-Digest

N BANC

[G. R. No. 149803. January 31, 2002]

DATU ANDAL S. AMPATUAN, BIMBO Q. SINSUAT, SR., IBRAHIM B. BIRUAR, ALONTO B. DAUDIE, MICHAEKL B. DIRANGAREN, ASNAWIS S. LIMBONA, RUSSMAN Q. SINSUAT, ZALNUDIN M. ABUTAZIL, DATUWATA U. ADZIS, BORGIVA T. DATU-MANONG, FREDDIE G. MANGUDADATU and ABBAS A. PENDATUN, JR., petitioners, vs. COMMISSION ON ELECTIONS, DATU ZACARIA A. CANDAO, DATU NORODIN M. MATALAM, KHARIS M. BARAGUIR, PAGRAS D. BIRUAR, CAHAR PENDAT IBAY, PATULA O. TIOLO, MARHOMSAL K. LAUBAN, MENTANG T. KABAGANI, ELIZABETH C. MASUKAT, GAPOR A. RAJAMUDA, SAID S. SALIK and LINTATO G. SANDIGAN, respondents.

DECISION

PARDO, J.:

The case is a petition for certiorari and prohibition under Rule 64 in relation to Rule 65 of the Revised Rules of Court with preliminary injunction or temporary restraining order[1] to nullify and set aside two (2) orders dated July 26, 2001[2] and August 28, 2001[3] of the Commission on Elections (COMELEC), ordering a random technical examination of pertinent election paraphernalia and other documents in several municipalities in the province of Maguindanao to determine a failure of elections.

Petitioners[4] and respondents[5] were candidates for the provincial elective positions in the province of Maguindanao in the May 14, 2001 election.

Petitioner Ampatuan and respondent Candao contended for the position of governor. The slate of Ampatuan emerged as winners as per election returns.

On May 23, 2001, respondents filed a petition with the Comelec for the annulment of election results and/or declaration of failure of elections[6] in several municipalities[7] in the province of Maguindanao. They claimed that the elections were completely sham and farcical. The ballots were filledup en masse by a few persons the night before election day, and in some precincts, the ballot boxes, official ballots and other election paraphernalia were not delivered at all.[8]

On May 25, 2001, the Comelec issued an order suspending the proclamation of the winning candidates for congressman of the second district, governor, vice-governor and board members of Maguindanao.[9]

On May 30, 2001, petitioners filed with the Comelec a motion to lift the suspension of proclamation.[10] On June 14, 2001, the Comelec issued an order lifting the suspension of proclamation of the winning candidates for governor, vice-governor and board members of the first and second districts. [11] Consequently, the Provincial Board of Canvassers proclaimed petitioners winners.[12]

On June 16, 2001, respondents filed with the Supreme Court a petition to set aside the Comelec order dated June 14, 2001, and preliminary injunction to suspend the effects of the proclamation of the petitioners.[13][14] Meantime, petitioners assumed their respective offices on June 30, 2001. On July 17, 2001, the Court resolved to deny respondents petition.

Petitioners assumption into office notwithstanding, on July 26, 2001, the Comelec ordered the consolidation of respondents petition for declaration of failure of elections with SPA Nos. 01-244, 01-332, 01-360, 01-388 and 01-390.[15] The COMELEC further ordered a random technical examination on four to seven precincts per municipality on the thumb-marks and signatures of the voters who voted and affixed in their voters

registration records, and forthwith directed the production of relevant election documents in these municipalities.[16]

On August 28, 2001, the Comelec issued another order[17] directing the continuation of the hearing and disposition of the consolidated SPAs on the failure of elections and other incidents related thereto. It likewise ordered the continuation of the technical examination of election documents as authorized in the July 26, 2001 order. On September 27, 2001, the Comelec issued an order outlining the procedure to be followed in the technical examination.[18]

On September 26, 2001, petitioners filed the present petition.[19] They claimed that by virtue of their proclamation pursuant to the June 14, 2001 order issued by the Comelec, the proper remedy available to respondents was not a petition for declaration of failure of elections but an election protest. The former is heard summarily while the latter involves a full-blown trial. Petitioners argued that the manner by which the technical examination is to be conducted[20] would defeat the summary nature of a petition for declaration of failure of elections.

On October 5, 2001, petitioners filed a motion[21] reiterating their request for a temporary restraining order to enjoin the implementation of the July 26, 2001 and August 28, 2001 Comelec orders.

On October 22, 2001, the Comelec issued an order suspending the implementation of the two (2) assailed orders, the pertinent portion of which reads as follows:

The Commission, in view of the pendency of G. R. No. 149803 xxx, requiring it to comment within ten (10) days from notice, hereby suspends implementation of its orders of July 26, 2001 and August 28, 2001 in deference to the resolution of said court.[22]

However, on November 13, 2001, the Comelec issued another order lifting the suspension.[23]

On November 20, 2001, we issued a temporary restraining order, to wit:

xxx the Court Resolved to (a) ISSUE the TEMPORARY RESTRAINING ORDER prayed for, effective immediately and continuing until further orders from this Court, ordering the respondent Commission on Elections to CEASE and DESIST from ordering the lifting of the suspended implementation orders dated 26 July 2001 and 28 August 2001 in SPA No. 01-323 xxx.[24]

The main issue to be resolved is whether the Commission on Elections was divested of its jurisdiction to hear and decide respondents petition for declaration of failure of elections after petitioners had been proclaimed.

We deny the petition.

Petitioners submit that by virtue of their proclamation as winners, the only remedy left for private respondents is to file an election protest, in which case, original jurisdiction lies with the regular courts. Petitioners cited several rulings that an election protest is the proper remedy for a losing candidate after the proclamation of the winning candidate.[25]

However, the authorities petitioners relied upon involved pre-proclamation controversies. In Loong v. Commission on Elections,[26] we ruled that a pre-proclamation controversy is not the same as an action for annulment of election results, or failure of elections. These two remedies were more specifically distinguished in this wise:

While, however, the Comelec is restricted, in pre-proclamation cases, to an examination of the election returns on their face and is without jurisdiction

to go beyond or behind them and investigate election irregularities, the Comelec is duty bound to investigate allegations of fraud, terrorism, violence, and other analogous causes in actions for annulment of election results or for declaration of failure of elections, as the Omnibus Election Code denominates the same. Thus, the Comelec, in the case of actions for annulment of election results or declaration of failure of elections, may conduct technical examination of election documents and compare and analyze voters signatures and thumbprints in order to determine whether or not the elections had indeed been free, honest and clean.[27]

The fact that a candidate proclaimed has assumed office does not deprive the Comelec of its authority to annul any canvass and illegal proclamation. [28] In the case at bar, we cannot assume that petitioners proclamation and assumption into office on June 30, 2001, was legal precisely because the conduct by which the elections were held was put in issue by respondents in their petition for annulment of election results and/or declaration of failure of elections.

Respondents allegation of massive fraud and terrorism that attended the May 14, 2001 election in the affected municipalities cannot be taken lightly as to warrant the dismissal of their petition by the Comelec on the simple pretext that petitioners had been proclaimed winners. We are not unmindful of the fact that a pattern of conduct observed in past elections has been the pernicious grab-the-proclamation-prolong-the-protest slogan of some candidates or parties such that even if the protestant wins, it becomes a mere pyrrhic victory, i.e., a vindication when the term of office is about to expire or has expired. xxx We have but to reiterate the oft-cited rule that the validity of a proclamation may be challenged even after the irregularly proclaimed candidate has assumed office.[29]

Petitioners likewise rely on the case of Typoco, Jr. v. Commission on Elections.[30] This Court held that Comelec committed no grave abuse of discretion in dismissing a petition for declaration of failure of elections. However, we made a pronouncement that the dismissal was proper since the allegations in the petition did not justify a declaration of failure of elections. Typocos relief was for Comelec to order a recount of the votes cast, on

account of the falsified election returns, which is properly the subject of an election contest.[31]

Respondents petition for declaration of failure of elections, from which the present case arose, exhaustively alleged massive fraud and terrorism that, if proven, could warrant a declaration of failure of elections. Thus:

4.1. The elections in at least eight (8) other municipalities xxx were completely sham and farcical. There was a total failure of elections in these municipalities, in that in most of these municipalities, no actual voting was done by the real, legitimate voters on election day itself but voting was made only by few persons who prepared in advance, and en masse, the ballots the day or the night before election and, in many precincts, there was completely no voting because of the non-delivery of ballot boxes, official ballots and other election paraphernalia; and in certain municipalities, while some semblance of voting was conducted on election day, there was widespread fraudulent counting and/or counting under very irregular circumstances and/or tampering and manufacture of election returns which completely bastardized the sovereign will of the people. These illegal and fraudulent acts of desecration of the electoral process were perpetrated to favor and benefit respondents. These acts were, by and large, committed with the aid and/or direct participation of military elements who were deployed to harass, intimidate or coerce voters and the supporters or constituents of herein petitioners, principally, of re-electionist Governor Datu Zacaria Candao. Military units and personnel visibly, openly and flagrantly violated election laws and regulations by escorting people or elements engaged in the illegal, advanced preparation of ballots and election returns and, at times, manning the polling places or precincts themselves and/or staying within the prohibited radius. Ballot boxes and other election paraphernalia were brought not to the precincts or voting centers concerned but somewhere else where massive manufacture of ballots and election documents were perpetrated.[32]

The Comelec en banc has the authority to annul election results and/or declare a failure of elections.[33] Section 6 of the Omnibus Election Code further provides that:

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

Elucidating on the concept of failure of election, we held that:

xxx before Comelec can act on a verified petition seeking to declare a failure of election, two (2) conditions must concur: first, no voting has taken place in the precincts concerned on the date fixed by law or, even if there was voting, the election nevertheless resulted in a failure to elect; and second, the votes cast would affect the result of the election. In Loong vs. Commission on Elections, this Court added that the cause of such failure of election should have been any of the following: force majeure, violence, terrorism, fraud or other analogous cases.[34]

In another case, we ruled that while it may be true that election did take place, the irregularities that marred the counting of votes and the canvassing of the election returns resulted in a failure to elect.[35]

In the case at bar, the Comelec is duty-bound to conduct an investigation as to the veracity of respondents allegations of massive fraud and terrorism that attended the conduct of the May 14, 2001 election. It is well to stress that the Comelec has started conducting the technical examination on November 16, 2001. However, by an urgent motion for a temporary restraining order filed by petitioners, in virtue of which we issued a

temporary restraining order on November 20, 2001, the technical examination was held in abeyance until the present. In order not to frustrate the ends of justice, we lift the temporary restraining order and allow the technical examination to proceed with deliberate dispatch.

WHEREFORE, the petition is hereby DISMISSED. The temporary restraining order issued on November 20, 2001 is DISSOLVED. The Commission on Elections is directed to proceed with the hearing of the consolidated petitions and the technical examination as outlined in its September 27, 2001 order with deliberate dispatch. No costs.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Buena, Ynare

G.R. No. 147904

October 4, 2002

NESTOR B. MAGNO, petitioner, vs. COMMISSION ON ELECTIONS and CARLOS C. MONTES, respondents. DECISION CORONA, J.: Before this Court is a petition for certiorari under Rule 65 which seeks to annul and set aside the resolution dated May 7, 2001 of the Commission on Elections as well as the resolution dated May 12, 2001 denying petitioners motion for reconsideration. This petition originated from a case filed by private respondent on March 21, 2001 for the disqualification of petitioner Nestor Magno as mayoralty candidate of San Isidro, Nueva Ecija during the May 14, 2001 elections on the ground that petitioner was previously convicted by the Sandiganbayan of four counts of direct bribery penalized under Article 210 of the Revised Penal Code. It appears that on July 25, 1995, petitioner was sentenced to

suffer the indeterminate penalty of 3 months and 11 days of arresto mayor as minimum to 1 year 8 months and 21 days of prision correccional as maximum, for each of the four counts of direct bribery. Thereafter, petitioner applied for probation and was discharged on March 5, 1998 upon order of the Regional Trial Court of Gapan, Nueva Ecija. On May 7, 2001, the Commission on Elections (COMELEC) rendered a decision granting the petition of private respondent and declaring that petitioner was disqualified from running for the position of mayor in the May 14, 2001 elections. In ruling against petitioner, the COMELEC cited Section 12 of the BP 881 or the Omnibus Election Code which provides as follows: Sec. 12. Disqualifications. Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen (18) months, or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon, or granted amnesty. The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified. The above provision explicitly lifts the disqualification to run for an elective office of a person convicted of a crime involving moral turpitude after five (5) years from the service of sentence. According to the COMELEC, inasmuch as petitioner was considered to have completed the service of his sentence on March 5, 1998, his five-year disqualification will end only on March 5, 2003. On May 10, 2001, petitioner filed a motion for reconsideration but the same was denied by the COMELEC in its resolution dated May 12, 2001. Hence, this petition. Petitioner argues that direct bribery is not a crime involving moral turpitude. Likewise, he cites Section 40 of RA 7160, otherwise known as the Local Government Code of 1991, which he claims is the law applicable to the case at bar, not BP 881 or the Omnibus Election Code as claimed by the COMELEC. Said provision reads:

Section 40. Disqualifications. - The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence. xxxx Petitioner insists that he had already served his sentence as of March 5, 1998 when he was discharged from probation. Such being the case, the two-year disqualification period imposed by Section 40 of the Local Government Code expired on March 5, 2000. Thus, petitioner was qualified to run in the 2001 elections. Meanwhile, Sonia Lorenzo was proclaimed by the COMELEC as the duly elected mayor of San Isidro, Nueva Ecija. Thus, on June 19, 2001, petitioner filed a supplemental petition which this Court merely noted in its resolution dated June 26, 2001. In his supplemental petition, petitioner assailed the proclamation of Sonia Lorenzo on the ground that the propriety of his disqualification was still under review by this Court. Petitioner likewise asked this Court to declare him as the duly elected municipal mayor instead of Sonia Lorenzo. On July 18, 2001, the Solicitor-General filed his manifestation and agreed with petitioner that COMELEC should have applied Section 40 of the Local Government Code. The main issue is whether or not petitioner was disqualified to run for mayor in the 2001 elections. In resolving this, two sub-issues need to be threshed out, namely: (1) whether the crime of direct bribery involves moral turpitude and (2) whether it is the Omnibus Election Code or the Local Government Code that should apply in this situation. Regarding the first sub-issue, the Court has consistently adopted the definition in Blacks Law Dictionary of moral turpitude as: "x x x an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals."1 Not every criminal act, however, involves moral turpitude. It frequently depends on the circumstances surrounding the violation of the law.2

In this case, we need not review the facts and circumstances relating to the commission of the crime considering that petitioner did not assail his conviction. By applying for probation, petitioner in effect admitted all the elements of the crime of direct bribery: 1. the offender is a public officer; 2. the offender accepts an offer or promise or receives a gift or present by himself or through another; 3. such offer or promise be accepted or gift or present be received by the public officer with a view to committing some crime, or in consideration of the execution of an act which does not constitute a crime but the act must be unjust, or to refrain from doing something which it is his official duty to do; and [Italics supplied] 4. the act which the offender agrees to perform or which he executes is connected with the performance of his official duties.3 Moral turpitude can be inferred from the third element. The fact that the offender agrees to accept a promise or gift and deliberately commits an unjust act or refrains from performing an official duty in exchange for some favors, denotes a malicious intent on the part of the offender to renege on the duties which he owes his fellowmen and society in general. Also, the fact that the offender takes advantage of his office and position is a betrayal of the trust reposed on him by the public. It is a conduct clearly contrary to the accepted rules of right and duty, justice, honesty and good morals. In all respects, direct bribery is a crime involving moral turpitude. It is the second sub-issue which is problematical. There appears to be a glaring incompatibility between the five-year disqualification period provided in Section 12 of the Omnibus Election Code and the two-year disqualification period in Section 40 of the Local Government Code. It should be noted that the Omnibus Election Code (BP 881) was approved on December 3, 1985 while the Local Government Code (RA 7160) took effect on January 1, 1992. It is basic in statutory construction that in case of irreconcilable conflict between two laws, the later enactment must prevail, being the more recent expression of legislative will.4 Legis posteriores priores contrarias abrogant. In enacting the later law, the legislature is presumed to have knowledge of the older law and intended to change it. Furthermore, the repealing clause of Section 534 of RA 7160 or the Local Government Code states that: (f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof

which are inconsistent with any provisions of this Code are hereby repealed or modified accordingly. In accordance therewith, Section 40 of RA 7160 is deemed to have repealed Section 12 of BP 881. Furthermore, Article 7 of the Civil Code provides that laws are repealed only by subsequent ones, and not the other way around. When a subsequent law entirely encompasses the subject matter of the former enactment, the latter is deemed repealed. In David vs. COMELEC5, we declared that RA 7160 is a codified set of laws that specifically applies to local government units. Section 40 thereof specially and definitively provides for disqualifications of candidates for elective local positions. It is applicable to them only. On the other hand, Section 12 of BP 881 speaks of disqualifications of candidates for any public office. It deals with the election of all public officers. Thus, Section 40 of RA 7160, insofar as it governs the disqualifications of candidates for local positions, assumes the nature of a special law which ought to prevail. The intent of the legislature to reduce the disqualification period of candidates for local positions from five to two years is evident. The cardinal rule in the interpretation of all laws is to ascertain and give effect to the intent of the law.6 The reduction of the disqualification period from five to two years is the manifest intent.
Therefore, although his crime of direct bribery involved moral turpitude, petitioner nonetheless could not be disqualified from running in the 2001 elections. Article 12 of the Omnibus Election Code (BP 881) must yield to Article 40 of the Local Government Code (RA 7160). Petitioners disqualification ceased as of March 5, 2000 and he was therefore under no such disqualification anymore when he ran for mayor of San Isidro, Nueva Ecija in the May 14, 2001 elections.

Unfortunately, however, neither this Court nor this case is the proper forum to rule on (1) the validity of Sonia Lorenzos proclamation and (2) the declaration of petitioner as the rightful winner. Inasmuch as Sonia Lorenzo had already been proclaimed as the winning candidate, the legal remedy of petitioner would have been a timely election protest. WHEREFORE, the instant petition is hereby PARTIALLY GRANTED. The challenged resolutions of the Commission on Elections dated May 7, 2001 and May 12, 2001 are hereby reversed and set aside. The petitioners prayer in his supplemental petition for his proclamation as the winner in the May 14, 2001 mayoralty elections in San Isidro, Nueva Ecija, not being within our jurisdiction, is hereby denied. SO ORDERED. G.R. No. 163193 June 15, 2004

SIXTO S. BRILLANTES, JR., petitioner, JOSE CONCEPCION, JR., JOSE DE VENECIA, EDGARDO J. ANGARA, DR. JAIME Z. GALVEZ-TAN, FRANKLIN M. DRILON, FRISCO SAN JUAN, NORBERTO M. GONZALES, HONESTO M. GUTIERREZ, ISLETA, AND JOSE A. BERNAS, Petitioners-inIntervention, vs. COMMISSION ON ELECTIONS, respondent. DECISION CALLEJO, SR., J.: Before us is the petition for certiorari and prohibition under Rule 65 of the Rules of Court filed by Atty. Sixto S. Brillantes, Jr., a voter and taxpayer, seeking to nullify, for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction, Resolution No. 6712 dated April 28, 2004 approved by the Commission on Elections (COMELEC) En Banc captioned GENERAL INSTRUCTIONS FOR THE ELECTRONIC TRANSMISSION AND CONSOLIDATION OF ADVANCED RESULTS IN THE MAY 10, 2004 ELECTIONS.1 The petitioner, likewise, prays for the issuance of a temporary restraining order and, after due proceedings, a writ of prohibition to permanently enjoin the respondent COMELEC from enforcing and implementing the questioned resolution. After due deliberation, the Court resolved to require the respondent to comment on the petition and to require the parties to observe the status quo prevailing before the issuance by the COMELEC of the assailed resolution. The parties were heard on oral arguments on May 8, 2004. The respondent COMELEC was allowed during the hearing to make a presentation of the Electronic Transmission, Consolidation and Dissemination (PHASE III) program of the COMELEC, through Mr. Renato V. Lim of the Philippine Multi-Media System, Inc. (PMSI). The Court, thereafter, resolved to maintain the status quo order issued on May 6, 2004 and expanded it to cover any and all other issuances related to the implementation of the so-called election quick count project. In compliance with the resolution of the Court, the respondent, the petitioner and the petitioners-in-intervention submitted the documents required of them. The Antecedents

On December 22, 1997, Congress enacted Republic Act No. 84362 authorizing the COMELEC to use an automated election system (AES) for the process of voting, counting of votes and canvassing/consolidating the results of the national and local elections. It also mandated the COMELEC to acquire automated counting machines (ACMs), computer equipment, devices and materials; and to adopt new electoral forms and printing materials. The COMELEC initially intended to implement the automation during the May 11, 1998 presidential elections, particularly in the Autonomous Region in Muslim Mindanao (ARMM). The failure of the machines to read correctly some automated ballots, however, deferred its implementation.3 In the May 2001 elections, the counting and canvassing of votes for both national and local positions were also done manually, as no additional ACMs had been acquired for that electoral exercise because of time constraints. On October 29, 2002, the COMELEC adopted, in its Resolution No. 020170, a modernization program for the 2004 elections consisting of three (3) phases, to wit: (1) PHASE I Computerized system of registration and voters validation or the so-called "biometrics" system of registration; (2) PHASE II Computerized voting and counting of votes; and (3) PHASE III Electronic transmission of results. It resolved to conduct biddings for the three phases. On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Order No. 172,4 which allocated the sum of P2,500,000,000 to exclusively fund the AES in time for the May 10, 2004 elections. On January 28, 2003, the COMELEC issued an Invitation to Bid5 for the procurement of supplies, equipment, materials and services needed for the complete implementation of all three phases of the AES with an approved budget of P2,500,000,000. On February 10, 2003, upon the request of the COMELEC, President Gloria Macapagal-Arroyo issued Executive Order No. 175,6 authorizing the release of a supplemental P500 million budget for the AES project of the COMELEC. The said issuance, likewise, instructed the Department of Budget and Management (DBM) to ensure that the aforementioned additional amount be used exclusively for the AES prescribed under Rep.

Act No. 8436, particularly "the process of voting, counting of votes and canvassing/consolidation of results of the national and local elections."7 On April 15, 2003, the COMELEC promulgated Resolution No. 6074 awarding the contract for Phase II of the AES to Mega Pacific Consortium and correspondingly entered into a contract with the latter to implement the project. On the same day, the COMELEC entered into a separate contract with Philippine Multi-Media System, Inc. (PMSI) denominated "ELECTRONIC TRANSMISSION, CONSOLIDATION & DISSEMINATION OF ELECTION RESULTS PROJECT CONTRACT.8 The contract, by its very terms, pertains to Phase III of the respondent COMELECs AES modernization program. It was predicated on a previous bid award of the contract, for the lease of 1,900 units of satellitebased Very Small Aperture Terminals (VSAT) each unit consisting of an indoor and outdoor equipment, to PMSI for possessing the legal, financial and technical expertise necessary to meet the projects objectives. The COMELEC bound and obliged itself to pay PMSI the sum of P298,375,808.90 as rentals for the leased equipment and for its services. In the meantime, the Information Technology Foundation of the Philippines (ITFP), filed a petition for certiorari and prohibition in this Court for the nullification of Resolution No. 6074 approving the contract for Phase II of AES to Mega Pacific Consortium, entitled and docketed as Information Technology Foundation of the Philippines, et al. vs. COMELEC, et al., G.R. No. 159139. While the case was pending in this Court, the COMELEC paid the contract fee to the PMSI in trenches. On January 13, 2004, this Court promulgated its Decision nullifying COMELEC Resolution No. 6074 awarding the contract for Phase II of the AES to Mega Pacific Consortium. Also voided was the subsequent contract entered into by the respondent COMELEC with Mega Pacific Consortium for the purchase of computerized voting/counting machines for the purpose of implementing the second phase of the modernization program. Phase II of the AES was, therefore, scrapped based on the said Decision of the Court and the COMELEC had to maintain the old manual voting and counting system for the May 10, 2004 elections. On the other hand, the validation scheme under Phase I of the AES apparently encountered problems in its implementation, as evinced by the COMELECs pronouncements prior to the elections that it was reverting to the old listing of voters. Despite the scrapping of Phase II of the AES, the COMELEC nevertheless ventured to implement Phase III of the AES through an electronic transmission of advanced "unofficial" results of the 2004 elections for national, provincial and municipal positions, also dubbed as an "unofficial quick count."

Senate President Franklin Drilon had misgivings and misapprehensions about the constitutionality of the proposed electronic transmission of results for the positions of President and Vice-President, and apprised COMELEC Chairman Benjamin Abalos of his position during their meeting on January 28, 2004. He also wrote Chairman Abalos on February 2, 2004. The letter reads: Dear Chairman Abalos, This is to confirm my opinion which I relayed to you during our meeting on January 28th that the Commission on Elections cannot and should not conduct a "quick count" on the results of the elections for the positions of President and Vice-President. Under Section 4 of Article VII of the Constitution, it is the Congress that has the sole and exclusive authority to canvass the votes for President and Vice-President. Thus, any quick count to be conducted by the Commission on said positions would in effect constitute a canvass of the votes of the President and Vice-President, which not only would be pre-emptive of the authority of the Congress, but also would be lacking of any Constitutional authority. You conceded the validity of the position we have taken on this point. In view of the foregoing, we asked the COMELEC during that meeting to reconsider its plan to include the votes for President and Vice-President in the "quick count", to which you graciously consented. Thank you very much.9 The COMELEC approved a Resolution on February 10, 2004 referring the letter of the Senate President to the members of the COMELEC and its Law Department for study and recommendation. Aside from the concerns of the Senate President, the COMELEC had to contend with the primal problem of sourcing the money for the implementation of the project since the money allocated by the Office of the President for the AES had already been spent for the acquisition of the equipment. All these developments notwithstanding, and despite the explicit specification in the project contract for Phase III that the same was functionally intended to be an interface of Phases I and II of the AES modernization program, the COMELEC was determined to carry out Phase III of the AES. On April 6, 2004, the COMELEC, in coordination with the project contractor PMSI, conducted a field test of the electronic transmission of election results. On April 27, 2004, the COMELEC met en banc to update itself on and resolve whether to proceed with its implementation of Phase III of the AES.10 During the said meeting, COMELEC Commissioner Florentino Tuason, Jr. requested his fellow Commissioners that "whatever is said here

should be confined within the four walls of this room and the minutes so that walang masyadong problema.11 Commissioner Tuason, Jr. stated that he had no objection as to the Phase III of the modernization project itself, but had concerns about the budget. He opined that other funds of the COMELEC may not be proper for realignment. Commissioners Resurreccion Z. Borra and Virgilio Garcillano also expressed their concerns on the budget for the project. Commissioner Manuel Barcelona, Jr. shared the sentiments of Commissioners Garcillano and Tuason, Jr. regarding personnel and budgetary problems. Commissioner Sadain then manifested that the consideration for the contract for Phase III had already been almost fully paid even before the Courts nullification of the contract for Phase II of the AES, but he was open to the possibility of the realignment of funds of the COMELEC for the funding of the project. He added that if the implementation of Phase III would not be allowed to continue just because Phase II was nullified, then it would be P300,000,000 down the drain, in addition to the already allocated disbursement on Phase II of the AES.12 Other concerns of the Commissioners were on the legality of the project considering the scrapping of Phase II of the AES, as well as the operational constraints related to its implementation. Despite the dire and serious reservations of most of its members, the COMELEC, the next day, April 28, 2004, barely two weeks before the national and local elections, approved the assailed resolution declaring that it "adopts the policy that the precinct election results of each city and municipality shall be immediately transmitted electronically in advance to the COMELEC, Manila."13 For the purpose, respondent COMELEC established a National Consolidation Center (NCC), Electronic Transmission Centers (ETCs) for every city and municipality, and a special ETC at the COMELEC, Manila, for the Overseas Absentee Voting.14 Briefly, the procedure for this electronic transmission of precinct results is outlined as follows: I. The NCC shall receive and consolidate all precinct results based on the data transmitted to it by each ETC;15 II. Each city and municipality shall have an ETC "where votes obtained by each candidate for all positions shall be encoded, and shall consequently be transmitted electronically to the NCC, through Very Small Aperture Terminal (VSAT) facilities."16 For this purpose, personal computers shall be allocated for all cities and municipalities at the rate of one set for every one hundred seventyfive (175) precincts;17 III. A Department of Education (DepEd) Supervisor shall be designated in the area who will be assigned in each polling center for the purpose of

gathering from all Board of Election Inspectors (BEI) therein the envelopes containing the Copy 3 of the Election Returns (ER) for national positions and Copy 2 of the ER for local positions, both intended for the COMELEC, which shall be used as basis for the encoding and transmission of advanced precinct results.18 The assailed resolution further provides that written notices of the date, time and place of the electronic transmission of advanced precinct results shall be given not later than May 5, 2004 to candidates running for local positions, and not later than May 7, 2004 to candidates running for national positions, as well as to political parties fielding candidates, and parties, organizations/coalitions participating under the party-list system.19 In relation to this, Section 13 of the assailed resolution provides that the encoding proceedings were ministerial and the tabulations were "advanced unofficial results." The entirety of Section 13, reads: Sec. 13. Right to observe the ETC proceedings. Every registered political party or coalition of parties, accredited political party, sectoral party/organization or coalition thereof under the party-list, through its representative, and every candidate for national positions has the right to observe/witness the encoding and electronic transmission of the ERs within the authorized perimeter. Provided, That candidates for the sangguniang panlalawigan, sangguniang panglungsod or sangguniang bayanbelonging to the same slate or ticket shall collectively be entitled to only one common observer at the ETC. The citizens arm of the Commission, and civic, religious, professional, business, service, youth and other similar organizations collectively, with prior authority of the Commission, shall each be entitled to one (1) observer. Such fact shall be recorded in the Minutes. The observer shall have the right to observe, take note of and make observations on the proceedings of the team. Observations shall be in writing and, when submitted, shall be attached to the Minutes. The encoding proceedings being ministerial in nature, and the tabulations being advanced unofficial results, no objections or protests shall be allowed or entertained by the ETC. In keeping with the "unofficial" character of the electronically transmitted precinct results, the assailed resolution expressly provides that "no print-outs shall be released at the ETC and at the NCC."20 Instead, consolidated and per-precinct results shall be made available via the Internet, text messaging,

and electronic billboards in designated locations. Interested parties may print the result published in the COMELEC web site.21 When apprised of the said resolution, the National Citizens Movement for Free Elections (NAMFREL), and the heads of the major political parties, namely, Senator Edgardo J. Angara of the Laban ng Demokratikong Pilipino(LDP) and Chairman of the Koalisyon ng mga Nagkakaisang Pilipino (KNP) Executive Committee, Dr. Jaime Z. Galvez Tan of the Aksyon Demokratiko, Frisco San Juan of the Nationalist Peoples Coalition (NPC), Gen. Honesto M. Isleta of Bangon Pilipinas, Senate President Franklin Drilon of the Liberal Party, and Speaker Jose de Venecia of the Lakas-Christian Muslim Democrats (CMD) and Norberto M. Gonzales of the Partido Demokratiko Sosyalista ng Pilipinas, wrote the COMELEC, on May 3, 2004 detailing their concerns about the assailed resolution: This refers to COMELEC Resolution 6712 promulgated on 28 April 2004. NAMFREL and political parties have the following concerns about Resolution 6712 which arose during consultation over the past week[:] a) The Resolution disregards RA 8173, 8436, and 7166 which authorize only the citizens arm to use an election return for an unofficial count; other unofficial counts may not be based on an election return; Indeed, it may be fairly inferred from the law that except for the copy of the citizens arm, election returns may only be used for canvassing or for receiving dispute resolutions. b) The Commissions copy, the second or third copy of the election return, as the case may be, has always been intended to be an archived copy and its integrity preserved until required by the Commission to resolve election disputes. Only the Board of Election Inspectors is authorized to have been in contact with the return before the Commission unseals it. c) The instruction contained in Resolution 6712, to break the seal of the envelope containing copies Nos. 2 and 3 will introduce a break in the chain of custody prior to its opening by the Commission on Election[s]. In the process of prematurely breaking the seal of the Board of Election Inspectors, the integrity of the Commissions copy is breached, thereby rendering it void of any probative value. To us, it does appear that the use of election returns as prescribed in Resolution 6712 departs from the letters and spirit of the law, as well as previous practice. More importantly, questions of legalities aside, the conduct of an advanced count by the COMELEC may affect the credibility

of the elections because it will differ from the results obtained from canvassing. Needless to say, it does not help either that Resolution 6712 was promulgated only recently, and perceivably, on the eve of the elections. In view of the foregoing, we respectfully request the Commission to reconsider Resolution 6712 which authorizes the use of election returns for the consolidation of the election results for the May 10, 2004 elections.22 The Present Petition On May 4, 2004, the petition at bar was filed in this Court. Jose Concepcion, Jr., Jose De Venecia, Edgardo J. Angara, Dr. Jaime Z. Galvez-Tan, Franklin M. Drilon, Frisco San Juan, Norberto M. Gonzales, Honesto M. Isleta and Jose A. Bernas, filed with this Court their Motion to Admit Attached Petition-in-Intervention. In their petition-in-intervention, movants-petitioners urge the Court to declare as null and void the assailed resolution and permanently enjoin the respondent COMELEC from implementing the same. The Court granted the motion of the petitioners-inintervention and admitted their petition. In assailing the validity of the questioned resolution, the petitioner avers in his petition that there is no provision under Rep. Act No. 8436 which authorizes the COMELEC to engage in the biometrics/computerized system of validation of voters (Phase I) and a system of electronic transmission of election results (Phase III). Even assuming for the nonce that all the three (3) phases are duly authorized, they must complement each other as they are not distinct and separate programs but mere stages of one whole scheme. Consequently, considering the failed implementation of Phases I and II, there is no basis at all for the respondent COMELEC to still push through and pursue with Phase III. The petitioner essentially posits that the counting and consolidation of votes contemplated under Section 6 of Rep. Act No. 8436 refers to the official COMELEC count under the fully automated system and not any kind of "unofficial" count via electronic transmission of advanced results as now provided under the assailed resolution. The petitioners-in-intervention point to several constitutional infractions occasioned by the assailed resolution. They advance the view that the assailed resolution effectively preempts the sole and exclusive authority of Congress under Article VII, Section 4 of the Constitution to canvass the votes for President and Vice-President. Further, as there has been no appropriation by Congress for the respondent COMELEC to conduct an "unofficial" electronic transmission of results of the May 10, 2004 elections, any expenditure for the said purpose contravenes Article VI, Section 29 (par. 1) of the Constitution.

On statutory grounds, the petitioner and petitioners-in-intervention contend that the assailed resolution encroaches upon the authority of NAMFREL, as the citizens accredited arm, to conduct the "unofficial" quick count as provided under pertinent election laws. It is, likewise, impugned for violating Section 52(i) of the Omnibus Election Code, relating to the requirement of notice to the political parties and candidates of the adoption of technological and electronic devices during the elections. For its part, the COMELEC preliminarily assails the jurisdiction of this Court to pass upon the assailed resolutions validity claiming that it was promulgated in the exercise of the respondent COMELECs executive or administrative power. It asserts that the present controversy involves a "political question;" hence, beyond the ambit of judicial review. It, likewise, impugns the standing of the petitioner to file the present petition, as he has not alleged any injury which he would or may suffer as a result of the implementation of the assailed resolution. On the merits, the respondent COMELEC denies that the assailed resolution was promulgated pursuant to Rep. Act No. 8436, and that it is the implementation of Phase III of its modernization program. Rather, as its bases, the respondent COMELEC invokes the general grant to it of the power to enforce and administer all laws relative to the conduct of elections and to promulgate rules and regulations to ensure free, orderly and honest elections by the Constitution, the Omnibus Election Code, and Rep. Acts Nos. 6646 and 7166. The COMELEC avers that granting arguendo that the assailed resolution is related to or connected with Phase III of the modernization program, no specific law is violated by its implementation. It posits that Phases I, II and III are mutually exclusive schemes such that, even if the first two phases have been scrapped, the latter phase may still proceed independently of and separately from the others. It further argues that there is statutory basis for it to conduct an "unofficial" quick count. Among others, it invokes the general grant to it of the power "to ensure free, orderly, honest, peaceful and credible elections." Finally, it claims that it had complied with Section 52(i) of the Omnibus Election Code, as the political parties and all the candidates of the 2004 elections were sufficiently notified of the electronic transmission of advanced election results. The COMELEC trivializes as "purely speculative" these constitutional concerns raised by the petitioners-in-intervention and the Senate President. It maintains that what is contemplated in the assailed resolution is not a canvass of the votes but merely consolidation and transmittal thereof. As such, it cannot be made the basis for the proclamation of any winning candidate. Emphasizing that the project is "unofficial" in nature, the COMELEC opines that it cannot, therefore, be considered as preempting or usurping the exclusive power of Congress to canvass the votes for President and Vice-President.

The Issues At the said hearing on May 8, 2004, the Court set forth the issues for resolution as follows: 1. Whether the petitioner and the petitioners-intervenors have standing to sue; 2. Assuming that they have standing, whether the issues they raise are political in nature over which the Court has no jurisdiction; 3. Assuming the issues are not political, whether Resolution No. 6712 is void: (a) for preempting the sole and exclusive authority of Congress under Art. VII, Sec. 4 of the 1987 Constitution to canvass the votes for the election of President and VicePresident; (b) for violating Art. VI, Sec. 29 (par. 1) of the 1987 Constitution that "no money shall be paid out of the treasury except in pursuance of an appropriation made by law;" (c) for disregarding Rep. Acts Nos. 8173, 8436 and 7166 which authorize only the citizens arm to use an election return for an "unofficial" count; (d) for violation of Sec. 52(i) of the Omnibus Election Code, requiring not less than thirty (30) days notice of the use of new technological and electronic devices; and, (e) for lack of constitutional or statutory basis; and, 4. Whether the implementation of Resolution No. 6712 would cause trending, confusion and chaos. The Ruling of the Court The issues, as earlier defined, shall now be resolved in seriatim: The Petitioners And Petitioners-In-Intervention Possess The Locus Standi To Maintain The Present Action The gist of the question of standing is whether a party has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court

so largely depends for illumination of difficult constitutional questions.23 Since the implementation of the assailed resolution obviously involves the expenditure of funds, the petitioner and the petitioners-inintervention, as taxpayers, possess the requisite standing to question its validity as they have sufficient interest in preventing the illegal expenditure of money raised by taxation.24 In essence, taxpayers are allowed to sue where there is a claim of illegal disbursement of public funds, or that public money is being deflected to any improper purpose, or where the petitioners seek to restrain the respondent from wasting public funds through the enforcement of an invalid or unconstitutional law.25 Most of the petitioners-in-intervention are also representatives of major political parties that have participated in the May 10, 2004 elections. On the other hand, petitioners-in-intervention Concepcion and Bernas represent the National Citizens Movement for Free Elections (NAMFREL), which is the citizens arm authorized to conduct an "unofficial" quick count during the said elections. They have sufficient, direct and personal interest in the manner by which the respondent COMELEC would conduct the elections, including the counting and canvassing of the votes cast therein. Moreover, the petitioners-in-intervention Drilon and De Venecia are, respectively, President of the Senate and Speaker of the House of Representatives, the heads of Congress which is exclusively authorized by the Constitution to canvass the votes for President and Vice-President. They have the requisite standing to prevent the usurpation of the constitutional prerogative of Congress. The Issue Raised By The Petition Is Justiciable Article VIII, Section 1 of the 1987 Constitution expands the concept of judicial review by providing that: SEC. 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The Court does not agree with the posture of the respondent COMELEC that the issue involved in the present petition is a political question beyond the jurisdiction of this Court to review. As the leading case ofTaada vs. Cuenco26 put it, political questions are

concerned with "issues dependent upon the wisdom, notlegality of a particular measure." The issue raised in the present petition does not merely concern the wisdom of the assailed resolution but focuses on its alleged disregard for applicable statutory and constitutional provisions. In other words, that the petitioner and the petitioners-in-intervention are questioning the legality of the respondent COMELECs administrative issuance will not preclude this Court from exercising its power of judicial review to determine whether or not there was grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the respondent COMELEC in issuing Resolution No. 6712. Indeed, administrative issuances must not override, supplant or modify the law, but must remain consistent with the law they intend to carry out.27 When the grant of power is qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications or conditions have been met or the limitations respected, is justiciable the problem being one of legality or validity, not its wisdom.28 In the present petition, the Court must pass upon the petitioners contention that Resolution No. 6712 does not have adequate statutory or constitutional basis. Although not raised during the oral arguments, another procedural issue that has to be addressed is whether the substantive issues had been rendered moot and academic. Indeed, the May 10, 2004 elections have come and gone. Except for the President and Vice-President, the newly- elected national and local officials have been proclaimed. Nonetheless, the Court finds it necessary to resolve the merits of the substantive issues for future guidance of both the bench and bar.29 Further, it is settled rule that courts will decide a question otherwise moot and academic if it is "capable of repetition, yet evading review."30 The Respondent COMELEC Committed Grave Abuse Of Discretion Amounting To Lack Or Excess Of Jurisdiction In Issuing Resolution No. 6712 The preliminary issues having been thus resolved, the Court shall proceed to determine whether the respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in promulgating the assailed resolution. The Court rules in the affirmative. An administrative body or tribunal acts without jurisdiction if it does not have the legal power to determine the matter before it; there is excess of jurisdiction where the respondent, being clothed with the power to determine the matter, oversteps its authority as determined by law.31 There is grave abuse of discretion justifying the issuance of the writ of certiorari

when there is a capricious and whimsical exercise of his judgment as is equivalent to lack of jurisdiction.32 First. The assailed resolution usurps, under the guise of an "unofficial" tabulation of election results based on a copy of the election returns, the sole and exclusive authority of Congress to canvass the votes for the election of President and Vice-President. Article VII, Section 4 of the Constitution provides in part: The returns of every election for President and Vice-President duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes. As early as January 28, 2004, Senate President Franklin M. Drilon already conveyed to Chairman Benjamin S. Abalos, Sr. his deep-seated concern that the respondent COMELEC could not and should not conduct any "quick count" of the votes cast for the positions of President and Vice-President. In his Letter dated February 2, 200433addressed to Chairman Abalos, Senate President Drilon reiterated his position emphasizing that "any quick count to be conducted by the Commission on said positions would in effect constitute a canvass of the votes of the President and Vice-President, which not only would be pre-emptive of the authority of Congress, but would also be lacking of any constitutional authority."34 Nonetheless, in disregard of the valid objection of the Senate President, the COMELEC proceeded to promulgate the assailed resolution. Such resolution directly infringes the authority of Congress, considering that Section 4 thereof allows the use of the third copy of the Election Returns (ERs) for the positions of President, Vice-President, Senators and Members of the House of Representatives, intended for the COMELEC, as basis for the encoding and transmission of advanced precinct results, and in the process, canvass the votes for the President and Vice-President, ahead of the canvassing of the same votes by Congress. Parenthetically, even the provision of Rep. Act No. 8436 confirms the constitutional undertaking of Congress as the sole body tasked to canvass the votes for the President and Vice-President. Section 24 thereof provides: SEC. 24. Congress as the National Board of Canvassers for President and Vice-President. -- The Senate and the House of

Representatives, in joint public session, shall compose the national board of canvassers for president and vice-president. The returns of every election for president and vice-president duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the president of the Senate. Upon receipt of the certificates of canvass, the president of the Senate shall, not later than thirty (30) days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress upon determination of the authenticity and the due execution thereof in the manner provided by law, canvass all the results for president and vice-president by consolidating the results contained in the data storage devices submitted by the district, provincial and city boards of canvassers and thereafter, proclaim the winning candidates for president and vice-president. The contention of the COMELEC that its tabulation of votes is not prohibited by the Constitution and Rep. Act No. 8436 as such tabulation is "unofficial," is puerile and totally unacceptable. If the COMELEC is proscribed from conducting an official canvass of the votes cast for the President and Vice-President, the COMELEC is, with more reason, prohibited from making an "unofficial" canvass of said votes. The COMELEC realized its folly and the merits of the objection of the Senate President on the constitutionality of the resolution that it decided not to conduct an "unofficial" quick count of the results of the elections for President and Vice-President. Commissioner Sadain so declared during the hearing: JUSTICE PUNO: The word you are saying that within 36 hours after election, more or less, you will be able to tell the people on the basis of your quick count, who won the election, is that it? COMM. SADAIN: Well, its not exactly like that, Your Honor. Because the fact of winning the election would really depend on the canvassed results, but probably, it would already give a certain degree of comfort to certain politicians to people rather, as to who are leading in the elections, as far as Senator down are concerned, but not to President and Vice-President. JUSTICE PUNO:

So as far as the Senatorial candidates involved are concerned, but you dont give this assurance with respect to the Presidential and Vice-Presidential elections which are more important? COMM. SADAIN: In deference to the request of the Senate President and the House Speaker, Your Honor. According to them, they will be the ones canvassing and proclaiming the winner, so it is their view that we will be pre-empting their canvassing work and the proclamation of the winners and we gave in to their request.35 JUSTICE CALLEJO, [SR.]: Perhaps what you are saying is that the system will minimize "dagdag-bawas" but not totally eradicate "dagdag-bawas"? COMM. SADAIN: Yes, Your Honor. JUSTICE CALLEJO, [SR.]: Now, I heard either Atty. Bernas or Atty. Brillantes say (sic) that there was a conference between the Speaker and the Senate President and the Chairman during which the Senate President and the Speaker voice[d] their objections to the electronic transmission results system, can you share with us the objections of the two gentlemen? COMM. SADAIN: These was relayed to us Your Honor and their objection or request rather was for us to refrain from consolidating and publishing the results for presidential and vice-presidential candidates which we have already granted Your Honors. So, there is going to be no consolidation and no publication of the COMM. SADAIN: Reason behind being that it is actually Congress that canvass that the official canvass for this and proclaims the winner.36

Second. The assailed COMELEC resolution contravenes the constitutional provision that "no money shall be paid out of the treasury except in pursuance of an appropriation made by law."37 By its very terms, the electronic transmission and tabulation of the election results projected under Resolution No. 6712 is "unofficial" in character, meaning "not emanating from or sanctioned or acknowledged by the government or government body.38 Any disbursement of public funds to implement this project is contrary to the provisions of the Constitution and Rep. Act No. 9206, which is the 2003 General Appropriations Act. The use of the COMELEC of its funds appropriated for the AES for the "unofficial" quick count project may even be considered as a felony under Article 217 of the Revised Penal Code, as amended.39 Irrefragably, the implementation of the assailed resolution would entail, in due course, the hiring of additional manpower, technical services and acquisition of equipment, including computers and software, among others. According to the COMELEC, it needed P55,000,000 to operationalize the project, including the encoding process.40 Hence, it would necessarily involve the disbursement of public funds for which there must be the corresponding appropriation. The COMELEC posited during the hearing that the 2003 General Appropriations Act has appropriated the amount needed for its "unofficial" tabulation. We quote the transcript of stenographic notes taken during the hearing: JUSTICE VITUG: And you mentioned earlier something about 55 million not being paid as yet? COMM. SADAIN: This is an extra amount that we will be needing to operationalize. JUSTICE VITUG: And this has not yet been done? COMM. SADAIN: It has not yet been done, Your Honor. JUSTICE VITUG:

Would you consider the funds that were authorized by you under the General Appropriations Act as capable of being used for this purpose? COMM. SADAIN: Yes, thats our position, Your Honor.41 But then the COMELEC, through Commissioner Sadain, admitted during the said hearing that although it had already approved the assailed resolution, it was still looking for the P55,000,000 needed to operationalize the project: JUSTICE CARPIO: Just a clarification. You stated that you signed already the main contract for 300 million but you have not signed the 55 million supplemental contract for the encoding? COMM. SADAIN: Yes, Your Honor. JUSTICE CARPIO: Because you still dont have the money for that? COMM. SADAIN: Well, yes, we are trying to determine where we can secure the money. JUSTICE CARPIO: Now, the encoding is crucial; without the encoding, the entire project collapses? COMM. SADAIN: Yes.42 Inexplicably, Commissioner Sadain contradicted himself when he said that its Financial Department had already found the money, but that proper documentation was forthcoming: JUSTICE CARPIO:

Just a clarification. You stated that you signed already the main contract for 300 million but you have not signed the 55 million supplemental contract for the encoding? COMM. SADAIN: Yes, Your Honor. JUSTICE CARPIO: Because you still dont have the money for that? COMM. SADAIN: Well, yes, we are trying to determine where we can secure the money. JUSTICE CARPIO: Now, the encoding is crucial; without the encoding, the entire project collapses? COMM. SADAIN: Yes. JUSTICE CARPIO: So, you have two (2) days to look for the 55 million, you have signed the contract on the main contract and if you dont get that 55 million, that 300 million main contract goes to waste, because you cannot encode? COMM. SADAIN: Its just a matter of proper documentation, Your Honor, because I was informed by our Finance Department that the money is there. JUSTICE CARPIO: So, you have found the money already? COMM. SADAIN: Yes, Your Honor.43

Earlier, during the April 27, 2004 meeting of the COMELEC En Banc, the Commissioners expressed their serious concerns about the lack of funds for the project, the propriety of using the funds for Phase III of its modernization, and the possibility of realigning funds to finance the project: Comm. Tuason: May I just request all the parties who are in here na whatever is said here should be confined within the four walls of this room and the minutes so that walang masyadong problema. Comm. Borra: Sa akin lang, we respect each others opinion. I will not make any observations. I will just submit my own memo to be incorporated in the minutes. Comm. Tuason: Commissioner Borra will submit a comment to be attached to the minutes but not on the resolution. Ako naman, I will just make it on record my previous reservation. I do not have any objection as to the Phase III modernization project itself. My main concern is the budget. I would like to make it on record that the budget for Phase III should be taken from the modernization program fund because Phase III is definitely part of the modernization project. Other funds, for instance other funds to be used for national elections may not be proper for realignment. That is why I am saying that the funds to be used for Phase III should properly come from the modernization. The other reservation is that the Election Officers are now plagued with so much work such as the preparation of the list of voters and their concern in their respective areas. They were saying to me, specially so in my own region, that to burden them with another training at this point in time will make them loose (sic) focus on what they are really doing for the national elections and what they are saying is that they should not be subjected to any training anymore. And they also said that come canvassing time, their priority would be to canvass first before they prepare the certificate of votes to be fed to the encoders [to be fed to the encoders] for electronic transmission. I share the sentiments of our people in the field. That is also one of my reservations. Thank you. Comm. Garcillano:

I also have my observations regarding the financial restraint that we are facing if the money that is going to be used for this is taken from the Phase II, I dont think there is money left. Comm. Borra: There is no more money in Phase II because the budget for Phase II is 1.3 Billion. The award on the contract for Phase II project is 1.248 billion. So the remaining has been allocated for additional expenses for the technical working group and staff for Phase II. Comm. Garcillano: I also have one problem. We have to have additional people to man this which I think is already being taken cared of. Third is, I know that this will disrupt the canvassing that is going to be handled by our EO and Election Assistant. I do not know if it is given to somebody (inaudible) Comm. Tuason: Those are your reservations. Comm. Barcelona: As far as I am concerned, I also have my reservations because I have the same experience as Commissioner Tuason when I went to Region IX and Caraga. Our EOs and PES expressed apprehension over the additional training period that they may have to undergo although, they say, that if that is an order they will comply but it will be additional burden on them. I also share the concern of Commissioner Tuason with regard to the budget that should be taken from the modernization budget. Comm. Borra: For the minutes, my memo is already prepared. I will submit it in detail. On three counts naman yan eh legal, second is technical/operational and third is financial. Comm. Sadain: Ako naman, for my part as the CIC for Phase III, we were left with no choice but to implement Phase III inasmuch as expenses has already been incurred in Phase III to the tune of almost 100% at the time when the Phase II contract was nullified. So if we stop the

implementation of Phase III just because Phase II was nullified, which means that there would be no consolidation and accounting consolidation for the machines, then it would be again 300 million pesos down the drain. Necessarily there would be additional expense but we see this as a consequence of the loss of Phase II. I share the view of Comm. Tuason that as much as possible this should be taken from the modernization fund as much as this is properly modernization concern. However, I would like to open myself to the possibility na in case wala talaga, we might explore the possibility of realigning funds although that might not (inaudible). Now with regards the legality, I think what Commissioner Borra has derived his opinion but I would like to think the legality issue must have been settled already as early as when we approved the modernization program involving all three phases although we also grant the benefit of the argument for Commissioner Borra if he thinks that there is going to be a legal gap for the loss of Phase II. With regards the concern with the Election Officers, I also share the same concern. In fact, on this matter alone, we try to make the GI as simple as possible so that whatever burden we will be giving to the EOs and EAs will be minimized. As in fact, we will be recommending that the EOs will no longer be bothered to attend the training. They can probably just sit in for the first hour and then they can go on with their normal routine and then leave the encoders as well as the reception officers to attend the training because there (sic) are the people who will really be doing the ministerial, almost mechanical, work of encoding and transmitting the election results. Yun lang.44 We have reviewed Rep. Act No. 9206, the General Appropriations Act, which took effect on April 23, 2003 and find no appropriation for the project of the COMELEC for electronic transmission of "unofficial" election results. What is appropriated therein is the amount of P225,000,000 of the capital outlay for the modernization of the electoral system.

B. PROJECTS

Maintenance & Other Operating Expenses

Capital Outlays

Total

I Locally-Funded Projects . a. For the Modernization of Electoral System b. FY 2003 Preparatory Activities for National Elections 250,000,000

225,000,000

225,000,000 250,000,000

c. Upgrading of Voters Database d. Conduct of Special Election to fill the vacancy in the Third District of Cavite e. Implementation of Absentee Voting Act of 2003 (RA 9189) Sub-Total, Locally-Funded Projects

125,000,000 6,500,000 300,000,000 ========== 681,500,000

125,000,000 6,500,000 300,000,000 ========= ========== 225,000,000 300,000,000


45

Under paragraph 3 of the special provisions of Rep. Act No. 9206, the amount of P225,000,000 shall be used primarily for the establishment of the AES prescribed under Rep. Act No. 8436, viz: 3. Modernization of Electoral System. The appropriations herein authorized for the Modernization of the Electoral System in the amount of Two Hundred Twenty-Five Million Pesos (P225,000,000.00) shall be used primarily for the establishment of the automated election system, prescribed under Republic Act No. 8436, particularly for the process of voting, counting of votes and canvassing/consolidation of results of the national and local elections.46 Section 52 of Rep. Act No. 9206 proscribes any change or modification in the expenditure items authorized thereunder. Thus: Sec. 52. Modification of Expenditure Components. Unless specifically authorized in this Act, no change or modification shall be made in the expenditure items in this Act and other appropriations laws unless in cases of augmentation from savings in appropriations as authorized under Section 25(5), Article VI of the 1987 Philippine Constitution. Neither can the money needed for the project be taken from the COMELECs savings, if any, because it would be violative of Article VI, Section 25 (5)47 of the 1987 Constitution. The power to augment from savings lies dormant until authorized by law.48 In this case, no law has, thus, far been enacted authorizing the respondent COMELEC to transfer savings from another item in its appropriation, if there are any, to fund the assailed resolution. No less than the Secretary of the Senate certified that there is no law appropriating any amount for an "unofficial" count and tabulation of the votes cast during the May 10, 2004 elections:

CERTIFICATION I hereby certify that per records of the Senate, Congress has not legislated any appropriation intended to defray the cost of an unofficial count, tabulation or consolidation of the votes cast during the May 10, 2004 elections. May 11, 2004. Pasay City, Philippines. What is worrisome is that despite the concerns of the Commissioners during its En Banc meeting on April 27, 2004, the COMELEC nevertheless approved the assailed resolution the very next day. The COMELEC had not executed any supplemental contract for the implementation of the project with PMSI. Worse, even in the absence of a certification of availability of funds for the project, it approved the assailed resolution. Third. The assailed resolution disregards existing laws which authorize solely the duly-accredited citizens arm to conduct the "unofficial" counting of votes. Under Section 27 of Rep. Act No. 7166, as amended by Rep. Act No. 8173,49 and reiterated in Section 18 of Rep. Act No. 8436,50 the accredited citizens arm - in this case, NAMFREL - is exclusively authorized to use a copy of the election returns in the conduct of an "unofficial" counting of the votes, whether for the national or the local elections. No other entity, including the respondent COMELEC itself, is authorized to use a copy of the election returns for purposes of conducting an "unofficial" count. In addition, the second or third copy of the election returns, while required to be delivered to the COMELEC under the aforementioned laws, are not intended for undertaking an "unofficial" count. The aforesaid COMELEC copies are archived and unsealed only when needed by the respondent COMELEC to verify election results in connection with resolving election disputes that may be imminent. However, in contravention of the law, the assailed Resolution authorizes the so-called Reception Officers (RO), to open the second or third copy intended for the respondent COMELEC as basis for the encoding and transmission of advanced "unofficial" precinct results. This not only violates the exclusive prerogative of NAMFREL to conduct an "unofficial" count, but also taints the integrity of the envelopes containing the election returns, as well as the returns themselves, by creating a gap in its chain of custody from the Board of Election Inspectors to the COMELEC. Fourth. Section 52(i) of the Omnibus Election Code, which is cited by the COMELEC as the statutory basis for the assailed resolution, does not cover the use of the latest technological and election devices for "unofficial" tabulations of votes. Moreover, the COMELEC failed to notify the authorized representatives of accredited political parties and all candidates in areas affected by the use or adoption of technological and electronic

devices not less than thirty days prior to the effectivity of the use of such devices. Section 52(i) reads: SEC. 52. Powers and functions of the Commission on Elections. In addition to the powers and functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections, and shall : (i) Prescribe the use or adoption of the latest technological and electronic devices, taking into account the situation prevailing in the area and the funds available for the purpose: Provided, That the Commission shall notify the authorized representatives of accredited political parties and candidates in areas affected by the use or adoption of technological and electronic devices not less than thirty days prior to the effectivity of the use of such devices. From the clear terms of the above provision, before the COMELEC may resort to and adopt the latest technological and electronic devices for electoral purposes, it must act in accordance with the following conditions: (a) Take into account the situation prevailing in the area and the funds available for the purpose; and, (b) Notify the authorized representatives of accredited political parties and candidates in areas affected by the use or adoption of technological and electronic devices not less than thirty days prior to the effectivity of the use of such devices. It is quite obvious that the purpose of this provision is to accord to all political parties and all candidates the opportunity to object to the effectiveness of the proposed technology and devices, and, if they are so minded not to object, to allow them ample time to field their own trusted personnel especially in far flung areas and to take other necessary measures to ensure the reliability of the proposed electoral technology or device. As earlier pointed out, the assailed resolution was issued by the COMELEC despite most of the Commissioners apprehensions regarding the legal, operational and financial impediments thereto. More significantly, since Resolution No. 6712 was made effective immediately a day after its issuance on April 28, 2004, the respondent COMELEC could not have possibly complied with the thirty-day notice requirement provided under

Section 52(i) of the Omnibus Election Code. This indubitably violates the constitutional right to due process of the political parties and candidates. The Office of the Solicitor General (OSG) concedes this point, as it opines that "the authorized representatives of accredited political parties and candidates should have been notified of the adoption of the electronic transmission of election returns nationwide at the latest on April 7, 2004, April 8 and 9 being Holy Thursday and Good Friday, pursuant to Section 52(i) of the Omnibus Election Code."51 Furthermore, during the hearing on May 18, 2004, Commissioner Sadain, who appeared for the COMELEC, unabashedly admitted that it failed to notify all the candidates for the 2004 elections, as mandated by law: JUSTICE CARPIO: You stated that you have notified in writing all the political parties and candidates as required in Section 52 (i)? COMM. SADAIN: Yes, Your Honor. JUSTICE CARPIO: Now, how many candidates are there nationwide now? COMM. SADAIN: I must admit you Honor we were not able to notify the candidates but we notified the politicians. JUSTICE CARPIO: Yes, but what does the law state? Read the law please. COMM. SADAIN: Yes, Your Honor. I understand that it includes candidates. JUSTICE CARPIO: And there are how many candidates nationwide running in this election? COMM. SADAIN: Hundreds of thousands, Your Honor.

JUSTICE CARPIO: Hundreds of thousands, so you mean you just notified the political parties not the candidates? COMM. SADAIN: Yes, Your Honor. JUSTICE CARPIO: And you think that is substantial compliance, you would notify how many political parties as against hundreds of thousands of candidates? COMM. SADAIN: Yes, Your Honor, we notified the major political parties, Your Honor. JUSTICE CARPIO: Only the major political parties? COMM. SADAIN: Including party list? JUSTICE CARPIO: But not the candidates, individual candidates? COMM. SADAIN: We were not able to do that, Your Honor, I must admit. JUSTICE CARPIO: So, you did not notify hundreds of thousands of candidates? COMM. SADAIN: No, Your Honors.52 The respondent COMELEC has, likewise, failed to submit any resolution or document to prove that it had notified all political parties of the intended

adoption of Resolution No. 6712, in compliance with Section 52(i) of the Omnibus Election Code. This notwithstanding the fact that even long before the issuance of the assailed resolution, it had admittedly entered into a contract on April 15, 200353 and acquired facilities pertaining to the implementation of the electronic transmission and official tabulation of election results. As correctly pointed out by the petitioners-in-intervention, the invitations dated January 15, 2004 regarding the January 20, 2004 COMELEC Conference with the political parties on election security measures did not mention electronic transmission of advanced results, much less the formal adoption of the purpose of the conference. Such "notices" merely invited the addressee thereof or its/his authorized representative to a conference where the COMELEC would show a sample of the official ballot to be used in the elections, discuss various security measures that COMELEC had put in place, and solicit suggestions to improve the administration of the polls.54 Further, the invitations purportedly sent out to the political parties regarding the April 6, 2004 Field Test of the Electronic Transmission, Consolidation and Dissemination System to be conducted by the COMELEC appear to have been sent out in the late afternoon of April 5, 2004, after office hours. There is no showing that all the political parties attended the Field Test, or received the invitations. More importantly, the said invitations did not contain a formal notice of the adoption of a technology, as required by Section 52(i) of the Omnibus Election Code.55 Fifth. The assailed resolution has no constitutional and statutory basis. That respondent COMELEC is the sole body tasked to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall"56 and to ensure "free, orderly, honest, peaceful and credible elections"57 is beyond cavil. That it possesses the power to promulgate rules and regulations in the performance of its constitutional duties is, likewise, undisputed. However, the duties of the COMELEC under the Constitution, Rep. Act No. 7166, and other election laws are carried out, at all times, in its official capacity. There is no constitutional and statutory basis for the respondent COMELEC to undertake a separate and an "unofficial" tabulation of results, whether manually or electronically. Indeed, by conducting such "unofficial" tabulation of the results of the election, the COMELEC descends to the level of a private organization, spending public funds for the purpose. Besides, it is absurd for the COMELEC to conduct two kinds of electoral counts a slow but "official" count, and an alleged quicker but "unofficial" count, the results of each may substantially differ. Clearly, the assailed resolution is an implementation of Phase III of the modernization program of the COMELEC under Rep. Act No. 8436. Section 2 of the assailed resolution expressly refers to the Phase IIIModernization Project of the COMELEC. Since this Court has already scrapped the contract for Phase II of the AES, the COMELEC cannot as yet

implement the Phase III of the program. This is so provided in Section 6 of Rep. Act No. 8436. SEC. 6. Authority to Use an Automated Election System. -- To carry out the above-stated policy, the Commission on Elections, herein referred to as the Commission, is hereby authorized to use an automated election system, herein referred to as the System, for the process of voting, counting of votes and canvassing/consolidation of results of the national and local elections: Provided, however, That for the May 11, 1998 elections, the System shall be applicable in all areas within the country only for the positions of president, vice-president, senators and parties, organizations or coalitions participating under the party-list system. To achieve the purpose of this Act, the Commission is authorized to procure by purchase, lease or otherwise, any supplies, equipment, materials and services needed for the holding of the elections by an expedited process of public bidding of vendors, suppliers or lessors: Provided, That the accredited political parties are duly notified of and allowed to observe but not to participate in the bidding. If in spite of its diligent efforts to implement this mandate in the exercise of this authority, it becomes evident by February 9, 1998 that the Commission cannot fully implement the automated election system for national positions in the May 11, 1998 elections, the elections for both national and local positions shall be done manually except in the Autonomous Region in Muslim Mindanao (ARMM) where the automated election system shall be used for all positions. The AES provided in Rep. Act No. 8436 constitutes the entire "process of voting, counting of votes and canvassing/consolidation of results of the national and local elections" corresponding to the Phase I, Phase II and Phase III of the AES of the COMELEC. The three phases cannot be effected independently of each other. The implementation of Phase II of the AES is a condition sine qua non to the implementation of Phase III. The nullification by this Court of the contract for Phase II of the System effectively put on hold, at least for the May 10, 2004 elections, the implementation of Phase III of the AES. Sixth. As correctly observed by the petitioner, there is a great possibility that the "unofficial" results reflected in the electronic transmission under the supervision and control of the COMELEC would significantly vary from the results reflected in the COMELEC official count. The latter follows the procedure prescribed by the Omnibus Election Code, which is markedly different from the procedure envisioned in the assailed resolution. Under the Omnibus Election Code, after the votes are cast and the polls closed, the Board of Election Inspectors (BEI) for each precinct is enjoined to publicly count the votes and record the same simultaneously on the tally

boards and on two sets of ERs. Each set of the ER is prepared in eight (8) copies. After the ERs are accomplished, they are forwarded to the Municipal Board of Canvassers (MBC), which would canvass all the ERs and proclaim the elected municipal officials. All the results in the ERs are transposed to the statements of votes (SOVs) by precinct. These SOVs are then transferred to the certificates of canvass (COCs) which are, in turn, brought to the Provincial Board of Canvassers (PBC). Subsequently, the PBC would canvass all the COCs from various municipalities and proclaim the elected provincial officials, including those to the House of Representatives. The PBC would then prepare two sets of Provincial Certificates of Canvass (PCOCs). One set is forwarded to Congress for its canvassing of the results for the President and Vice-President. The other set is forwarded to the COMELEC for its canvassing of the results for Senators. As the results are transposed from one document to another, and as each document undergoes the procedure of canvassing by various Boards of Canvassers, election returns and certificates of canvass are objected to and at times excluded and/or deferred and not tallied, long after the preproclamation controversies are resolved by the canvass boards and the COMELEC. On the other hand, under the assailed resolution, the precinct results of each city and municipality received by the ETCs would be immediately electronically transmitted to the NCC. Such data, which have not undergone the process of canvassing, would expectedly be dissimilar to the data on which the official count would be based. Resultantly, the official and unofficial canvass, both to be administered by the respondent COMELEC, would most likely not tally. In the past elections, the "unofficial" quick count conducted by the NAMFREL had never tallied with that of the official count of the COMELEC, giving rise to allegations of "trending" and confusion. With a second "unofficial" count to be conducted by the official election body, the respondent COMELEC, in addition to its official count, allegations of "trending," would most certainly be aggravated. As a consequence, the electoral process would be undermined. The only intimated utility claimed by the COMELEC for the "unofficial" electronic transmission count is to avert the so-called "dagdag-bawas." The purpose, however, as the petitioner properly characterizes it, is a total sham. The Court cannot accept as tenable the COMELECs profession that from the results of the "unofficial" count, it would be able to validate the credibility of the official tabulation. To sanction this process would in effect allow the COMELEC to preempt or prejudge an election question or dispute which has not been formally brought before it for quasi-judicial cognizance and resolutions.

Moreover, the Court doubts that the problem of "dagdag-bawas" could be addressed by the implementation of the assailed resolution. It is observed that such problem arises because of the element of human intervention. In the prevailing set up, there is human intervention because the results are manually tallied, appreciated, and canvassed. On the other hand, the electronic transmission of results is not entirely devoid of human intervention. The crucial stage of encoding the precinct results in the computers prior to the transmission requires human intervention. Under the assailed resolution, encoding is accomplished by employees of the PMSI. Thus, the problem of "dagdag-bawas" could still occur at this particular stage of the process. As it stands, the COMELEC "unofficial" quick count would be but a needless duplication of the NAMFREL "quick" count, an illegal and unnecessary waste of government funds and effort. Conclusion The Court is mindful of the salutary goals that the respondent COMELEC had envisioned in promulgating the assailed resolution, to wit: [t]o renew the publics confidence in the Philippine Electoral System by: 1. Facilitating transparency in the process; 2. Ensuring the integrity of the results; 3. Reducing election results manipulation; 4. Providing timely, fast and accurate information to provide the public re election results; 5. Enabling the validation of its own official count and other counts; 6. Having an audit trail in its own account.58 Doubtless, these are laudable intentions. But the rule of law requires that even the best intentions must be carried out within the parameters of the Constitution and the law. Verily, laudable purposes must be carried out by legal methods.59 WHEREFORE, the petition is GRANTED. The assailed Resolution No. 6712 dated April 28, 2004 issued by the Commission on Elections (COMELEC) En Banc is hereby declared NULL AND VOID. G.R. No. L-52304 January 28, 1980

RAMON B. CENIZA, FEDERICO C. CABILAO, JR., NELSON J. ROSAL and ALEJANDRO R. ALINSUG,petitioners, vs. COMMISSION ON ELECTIONS, COMMISSION ON AUDIT, and NATIONAL TREASURER, respondents.

CONCEPCION JR., J.: Petition for prohibition and mandamus moth a prayer for a writ of preliminary injunction. On December 22. 1979, the Interim Batasang Pambansa enacted Batas Blg. 51 providing for local elections on January 30, 1980. Section of the statute provides: SEC. 3. Cities. There shall be in each city such elective local officials as provided in their respective charters, including the city mayor, the city vice-mayor, and the elective members of the sangguniang panglungsod, all of whom shall' be elected by the qualified voters in the city. In addition thereto, there shall be appointive sangguniang panglungsod members consisting of the of the city association of barangay councils, the President of the city federation of the kabataang barangay, and one representative each from the agricultural and industrial labor sectors who shall be appointed by the President (Prime Minister) whenever, as de by the sangguniang panglungsod, said sectors are of sufficient number in the city to warrant representation. Until cities are reclassified into highly urbanized and component cities in accordance with the standards established in the Local Government Code as provided for in Article XI, Section 4(1) of the Constitution. any city now existing with an annual regular derived from infrastructure and general funds of not less than forty million pesos (P40,000,000.00) at the time of the approval of this Act shag be classified as a highly urbanized city. All other cities shall be considered components of the provinces where they are geographically located. The City of Baguio, because of its special functions as the summer capital of the Philippines, shall be classified as a highly urbanized city irrespective of its income.

The registered voters of a component city may be entitled to vote in the election of the officials of the province of which that city is a component, if its charter so provides. However, voters registered in a highly urbanized city, as hereinabove defined shall not participate nor vote in the election of the officials of the province in which the highly urbanized city is geographically located. To implement this Act, the Commission on Elections (COMELEC, for short) adopted Resolution No. 1421, which reads as follows: WHEREAS, Batas Pambansa Blg. 51 in calling for the election of the provincial governor, provincial vice-governor and members of the Sangguniang Panlalawigan in each province classified the chartered cities of the Philippines into "highly urbanized" and "component" cities based on the annual regular income of each city, and provided that "the registered voter of a component city may be entitled to vote in the election of the officials of the province of which that city is a component, if its charter provides", but that "voters registered in a highly urbanized city, shall not participate nor vote in the election of the officials of the province in which the highly urbanized city is geographically located"; WHEREAS, inasmuch as the charters of the different cities vary with respect to the right of their registered voters to vote for the provincial officials of the provinces where they are located, there is need to study the various charters of the cities and determine what cities shall and shall not vote for provincial officials pursuant to Batas Pambansa Blg. 51; WHEREAS, the voters in the cities should be accordingly informed if they are going to vote for provincial officials or not, for their proper guidance; NOW, THEREFORE, the Commission on Elections, by virtue of the powers conferred upon it by the Constitution, the 1978 Election Code and Batas Pambansa Blg. 52 (51) RESOLVED, as it hereby RESOLVES, that the qualified voters in each city shall or shall not be entitled to vote for the provincial officials of the province where they are geographically located, to wit: A. Cities not entitled to participate in the election of pro- provincial officials

. Bagu io 2. Bais 3. Canl aon 4. Calo ocan 5. Cebu 6. Cota bato 7. Dagu pan 8. Dava o 9. Gene ral Santo 10. Iloilo

11. Mandau e 12. Manila 13. Naga 14. Ormoc 15. Oroquiet a 16. Ozamis 17. Pasay 18. Quezon 19. San Carlos (Pangasi nan) 20. Zamboa nga

Because the City of Cebu has an income of P51,603,147,64, it is classified as a highly urbanized city and the voters thereof cannot take part in the election of the elective provincial officials of the province of Cebu, although the Charter of Cebu City 1 allows the qualified voters of the city to vote in the election of the provincial officials of the Province of Cebu. The City of Mandaue, not having an annual regular income of not less than ? 40 million, is classified as a component city. But the registered voters of the

city cannot vote for the provincial elective officials because its Charter 2 expressly provides that the registered voters of the city cannot participate in the election of the provincial officials of the Province of Cebu, except to be a candidate therefor. The petitioners filed the instant suit as taxpayers and registered voters in the Cities of Cebu and Mandaue. They are members of a civic and non-partisan group known as D-O-E-R-S (an accronym for "DEMOCRACY OR EXTINCTION: RESOLVED TO SUCCEED) which counts lawyers among its members, and extends free legal assistance to citizens regardless of economic and social status in meritorious cases involving violation of civil liberties and basic human rights. They vigorously assail Section 3 of Batas Pambansa Blg. 51, which uses the annual income of a given city as the basis for classification of whether or not a particular city is a highly urbanized city whose voters may not participate in the election of provincial officials of the province where the city is geographically located; and Republic Act No. 5519, otherwise known as the Charter of Mandaue City, which went into effect without the benefit of ratification by the residents of Mandaue in a plebiscite or referendum. They pray that upon filing of the instant petition, a restraining order be issued "temporarily prohibiting the holding of election for Provincial Governor and other elective provincial officials in the province where the 18 cities listed by the respondent COMELEC are located, particularly Cebu City and Mandaue City, and temporarily prohibiting the National Treasurer to release public funds and the COA to pass in audit said funds in connection with and for the purpose of holding local elections in said provinces; and after hearing, to make the injunction permanent declaring unconstitutional and therefore void Section 96, Art. XVIII of the Charter of Mandaue, otherwise known as RA 5519," and should the stopping of the provincial elections in the provinces concerned be not possible, the respondent COMELEC be directed "to allow the qualified registered voters in the cities listed by said respondent, particularly Cebu City and Mandaue City, to participate in the election of, and vote for, the Provincial Governor and other elective provincial officials and preparing the corresponding official ballots for this purpose which shall provide spaces therein for Provincial Governor and other elective provincial officials of the provinces concerned, particularly the province of Cebu." The petitioners contend that "Section 3 of Batas Blg. 885 3 insofar as it classifies cities including Cebu city as highly urbanized as the only basis for not allowing its electorate to vote for the provincial officials is inherently and palpably unconstitutional in that such classification is not based on substantial distinctions germane to the purpose of the law which in effect provides for and regulates the exercise of the right of suffrage, and therefore such unreasonable classification amounts to a denial of equal protection."

We find no merit in the petition. The thrust of the 1973 Constitution is towards the fullest autonomy of local government units. In the Declaration of Principles and State Policies, it is stated that "The state shall guarantee and promote the autonomy of local government units, especially the barrio, to ensure their fullest development as self-reliant communities." 4 To this end, the Constitution directs the National Assembly to "enact a local government code which may not thereafter be amended except by the majority vote of all its members, defining a more responsive and accountable local government structure with an effective system of recall, allocating among the different local governments their powers, responsibilities, and resources, and providing for the qualifications, election and removal, term, salaries, powers, functions, and duties of local officials, and all other matters relating to the organization and operation of local government units," 5 and empowered local government units "to create its own sources of revenue and to levy taxes, subject to limitations as may be provided by law." 6 Art. XI, Section 4(1) of the said Constitution places highly urbanized cities outside the supervisory power of the province where they are geographically located. This is as it should be because of the complex and varied problems in a highly urbanized city due to a bigger population and greater economic activity which require greater autonomy. Corollary to independence however, is the concomitant loss of the right to participate in provincial affairs, more particularly the selection of elective provincial officials since these provincial officials have ceased to exercise any governmental jurisdiction and authority over said city. Thus, in the case of Teves vs. Commission on Election 7 this Court, in holding that the registered voters of the City of Dumaguete cannot vote for the provincial officials of Negros Oriental because the charter of the city does not expressly allow the voters in the city to do so, ruled: The creation of Dumaguete City has made it a political entity separate from and independent of the province of Negros Oriental. The purpose of an election is to enable the electorate to choose the men that will run their government, whether national, provincial, municipal or city. It so, no useful end will be served by allowing in the absence of express legislative preference the voters of a city to ceased to have any governmental jurisdiction and authority over said city. To confirm our view that the city of Dumaguete has been segregated from the province of Oriental Negros for purposes of provincial elections, we should point to the penultimate section of the charter providing that "until otherwise provided by law, the City of Dumaguete shall continue as part of the first representative district of the Province of Oriental

Negros." This is an express exception to the general effect of separation an exception that serves to reiterate or even establish the rule. In other words, the Congress meant that the inhabitants of the city may not vote for provincial officials, but may vote for their representative in Congress. The classification of cities into highly urbanized cities and component cities on the basis of their regular annual income is based upon substantial distinction. The revenue of a city would show whether or not it is capable of existence and development as a relatively independent social, economic, and political unit. It would also show whether the city has sufficient economic or industrial activity as to warrant its independence from the province where it is geographically situated. Cities with smaller income need the continued support of the provincial government thus justifying the continued participation of the voters in the election of provincial officials in some instances. The petitioners also contend that the voters in Mandaue City are denied equal protection of the law since the voters in other component cities are allowed to vote for provincial officials. The contention is without merit. The practice of allowing voters in one component city to vote for provincial officials and denying the same privilege to voters in another component city is a matter of legislative discretion which violates neither the Constitution nor the voter's right of suffrage. In the case of Teves v. Commission on Election 8 the Court said. Petitioners' contention is that, as the Charter of Dumaguete City is silent as to the right of its qualified voters to participate in the election of provincial officials of Negros Oriental and as said voters are residents of the province, they are clearly entitled to vote for said provincial officials. The charters of other recently formed cities are articulate on the matter. Thus, in the case of Bacolod, Cabanatuan Legaspi Naga, and Ormoc, their charters expressly prohibit the residents therein from voting for provincial officials of the province to which said cities formerly belonged. Upon the other hand, the charters of Cagayan de Oro, Butuan, Cavite, Iloilo, Calbayog Lipa San Pablo, and Dagupan contain provisions extending their part in the election of the provincial official cities were previously included. The question that presents itself has reference to the effect of the omission in the charter of Dumaguete City of an express provision on the right of its residents to vote for provincial officials of Negros Oriental, in the light of the legislative

practice that, when desired, the right is either recognized or withdrawn expressly. We are inclined to overrule petitioners' position. The equal protection of the law contemplates equality in the enjoyment of similar rights and privileges granted by law. It would have been discriminatory and a denial of the equal protection of the law if the statute prohibited an individual or group of voters in the city from voting for provincial officials while granting it to another individual or groups of voters in the same city. Neither can it be considered an infringement upon the petitioners' rights of suffrage since the Constitution confers no right to a voter in a city to vote for the provincial officials of the province where the city is located. Their right is limited to the right to vote for elective city officials in local elections which the questioned statues neither withdraw nor restrict. The petitioners further claim that to prohibit the voters in a city from voting for elective provincial officials would impose a substantial requirement on the exercise of suffrage and would violate the sanctity of the ballot, contrary to the provisions of Art. VI, Section 1 of the Constitution. The prohibition contemplated in the Constitution, however, has reference to such requirements, as the Virginia poll tax, invalidated in Harper vs. Virginia Board of Elections, 9 or the New York requirement that to be eligible to vote in a school district, one must be a parent of a child enrolled in a local public school, nullified in Kramer vs. Union Free School District, 395 U.S. 621, which impose burdens on the right of suffrage without achieving permissible estate objectives. In this particular case, no such burdens are imposed upon the voters of the cities of Cebu and Mandaue. They are free to exercise their rights without any other requirement, save that of being registered voters in the cities where they reside and the sanctity of their ballot is maintained. It is also contended that the prohibition would subvert the principle of republicanism as it would deprive a citizen his right to participate in the conduct of the affairs of the government unit through the exercise of his right of suffrage. It has been pointed out, however, that the provincial government has no governmental supervision over highly urbanized cities. These cities are independent of the province in the administration of their affairs. Such being the case, it is but just and proper to limit the selection and election of the provincial officials to the voters of the province whose interests are vitally affected and exclude therefrom the voters of highly urbanized cities. Petitioners assail the charter of the City of Mandaue as unconstitutional for not having been ratified by the residents of the city in a plebiscite. This

contention is untenable. The Constitutional requirement that the creation, division, merger, abolition, or alteration of the boundary of a province, city, municipality, or barrio should be subject to the approval by the majority of the votes cast in a plebiscite in the governmental unit or units affected 10is a new requirement that came into being only with the 1973 Constitution. It is prospective 11 in character and therefore cannot affect the creation of the City of Mandaue which came into existence on June 21, 1969. Finally, the petitioners claim that political and gerrymandering motives were behind the passage of Batas Blg. 51 and Section 96 of the Charter of Mandaue City. They contend that the Province of Cebu is politically and historically known as an opposition bailiwick and of the total 952,716 registered voters in the province, 234,582 are from Cebu City and 44,358 come from Mandaue City, so that 278,940 electors, or close to one-third (1/3) of the entire province of Cebu would be barred from voting for the provincial officials of the province of Cebu. Such charge has no factual and legal basis. "Gerrymandering" is a "term employed to describe an apportionment of representative districts so contrived as to give an unfair advantage to the party in power. 12 The questioned statutes in this particular case do not apportion representative districts. The said representative districts remain the same. Nor has it been shown that there is an unfair advantage in favor of the candidates of the party in power. As the Solicitor General pointed out, it may even be that the majority of the city voters are supporters of the administration candidates, so that the enactment of the questioned statutes will work to their disadvantage. WHEREFORE, the petition should be, as it is hereby dismissed. Costs against the petitioners. SO ORDERED. Fernando, C.J., Barredo, Makasiar, Antonio, Aquino, Fernandez, Guerrero, Abad Santos, De Castro and Melencio-Herrera, JJ., concur Teehankee, J., took no part.

G.R. No. 147589

June 26, 2001

ANG BAGONG BAYANI-OFW LABOR PARTY (under the acronym OFW), represented herein by its secretary-general, MOHAMMAD OMAR FAJARDO, petitioner, vs.

ANG BAGONG BAYANI-OFW LABOR PARTY GO! GO! PHILIPPINES; THE TRUE MARCOS LOYALIST ASSOCIATION OF THE PHILIPPINES; PHILIPPINE LOCAL AUTONOMY; CITIZENS MOVEMENT FOR JUSTICE, ECONOMY, ENVIRONMENT AND PEACE; CHAMBER OF REAL ESTATE BUILDERS ASSOCIATION; SPORTS & HEALTH ADVANCEMENT FOUNDATION, INC.; ANG LAKAS NG OVERSEAS CONTRACT WORKERS (OCW); BAGONG BAYANI ORGANIZATION and others under "Organizations/Coalitions" of Omnibus Resolution No. 3785; PARTIDO NG MASANG PILIPINO; LAKAS NUCD-UMDP; NATIONALIST PEOPLE'S COALITION; LABAN NG DEMOKRATIKONG PILIPINO; AKSYON DEMOKRATIKO; PDPLABAN; LIBERAL PARTY; NACIONALISTA PARTY; ANG BUHAY HAYAANG YUMABONG; and others under "Political Parties" of Omnibus Resolution No. 3785. respondents. x---------------------------------------------------------x G.R. No. 147613 June 26, 2001 BAYAN MUNA, petitioner, vs. COMMISSION ON ELECTIONS; NATIONALIST PEOPLE'S COALITION (NPC); LABAN NG DEMOKRATIKONG PILIPINO (LDP); PARTIDO NG MASANG PILIPINO (PMP); LAKAS-NUCDUMDP; LIBERAL PARTY; MAMAMAYANG AYAW SA DROGA; CREBA; NATIONAL FEDERATION OF SUGARCANE PLANTERS; JEEP; and BAGONG BAYANI ORGANIZATION, respondents. PANGANIBAN, J.: The party-list system is a social justice tool designed not only to give more law to the great masses of our people who have less in life, but also to enable them to become veritable lawmakers themselves, empowered to participate directly in the enactment of laws designed to benefit them. It intends to make the marginalized and the underrepresented not merely passive recipients of the State's benevolence, but active participants in the mainstream of representative democracy. Thus, allowing all individuals and groups, including those which now dominate district elections, to have the same opportunity to participate in party-list elections would desecrate this lofty objective and mongrelize the social justice mechanism into an atrocious veneer for traditional politics. The Case

Before us are two Petitions under Rule 65 of the Rules of Court, challenging Omnibus Resolution No. 3785 1issued by the Commission on Elections (Comelec) on March 26, 2001. This Resolution approved the participation of 154 organizations and parties, including those herein impleaded, in the 2001 party-list elections. Petitioners seek the disqualification of private respondents, arguing mainly that the party-list system was intended to benefit the marginalized and underrepresented; not the mainstream political parties, the non-marginalized or overrepresented. The Factual Antecedents With the onset of the 2001 elections, the Comelec received several Petitions for registration filed by sectoral parties, organizations and political parties. According to the Comelec, "[v]erifications were made as to the status and capacity of these parties and organizations and hearings were scheduled day and night until the last party w[as] heard. With the number of these petitions and the observance of the legal and procedural requirements, review of these petitions as well as deliberations takes a longer process in order to arrive at a decision and as a result the two (2) divisions promulgated a separate Omnibus Resolution and individual resolution on political parties. These numerous petitions and processes observed in the disposition of these petition[s] hinder the early release of the Omnibus Resolutions of the Divisions which were promulgated only on 10 February 2001." 2 Thereafter, before the February 12, 2001 deadline prescribed under Comelec Resolution No. 3426 dated December 22, 2000, the registered parties and organizations filed their respective Manifestations, stating their intention to participate in the party-list elections. Other sectoral and political parties and organizations whose registrations were denied also filed Motions for Reconsideration, together with Manifestations of their intent to participate in the party-list elections. Still other registered parties filed their Manifestations beyond the deadline. The Comelec gave due course or approved the Manifestations (or accreditations) of 154 parties and organizations, but denied those of several others in its assailed March 26, 2001 Omnibus Resolution No. 3785, which we quote: "We carefully deliberated the foregoing matters, having in mind that this system of proportional representation scheme will encourage multi-partisan [sic] and enhance the inability of small, new or sectoral parties or organization to directly participate in this electoral window. "It will be noted that as defined, the 'party-list system' is a 'mechanism of proportional representation' in the election of representatives to the House of

Representatives from national, regional, and sectoral parties or organizations or coalitions thereof registered with the Commission on Elections. "However, in the course of our review of the matters at bar, we must recognize the fact that there is a need to keep the number of sectoral parties, organizations and coalitions, down to a manageable level, keeping only those who substantially comply with the rules and regulations and more importantly the sufficiency of the Manifestations or evidence on the Motions for Reconsiderations or Oppositions." 3 On April 10, 2001, Akbayan Citizens Action Party filed before the Comelec a Petition praying that "the names of [some of herein respondents] be deleted from the 'Certified List of Political Parties/Sectoral Parties/Organizations/Coalitions Participating in the Party List System for the May 14, 2001 Elections' and that said certified list be accordingly amended." It also asked, as an alternative, that the votes cast for the said respondents not be counted or canvassed, and that the latter's nominees not be proclaimed. 4 On April 11, 2001, Bayan Muna and Bayan Muna-Youth also filed a Petition for Cancellation of Registration and Nomination against some of herein respondents. 5 On April 18, 2001, the Comelec required the respondents in the two disqualification cases to file Comments within three days from notice. It also set the date for hearing on April 26, 2001, 6 but subsequently reset it to May 3, 2001. 7 During the hearing, however, Commissioner Ralph C. Lantion merely directed the parties to submit their respective memoranda. 8 Meanwhile, dissatisfied with the pace of the Comelec, Ang Bagong BayaniOFW Labor Party filed a Petition 9before this Court on April 16, 2001. This Petition, docketed as GR No. 147589, assailed Comelec Omnibus Resolution No. 3785. In its Resolution dated April 17, 2001, 10 the Court directed respondents to comment on the Petition within a non-extendible period of five days from notice. 11 On April 17, 2001, Petitioner Bayan Muna also filed before this Court a Petition, 12 docketed as GR No. 147613, also challenging Comelec Omnibus Resolution No. 3785. In its Resolution dated May 9, 2001, 13 the Court ordered the consolidation of the two Petitions before it; directed respondents named in the second Petition to file their respective Comments on or before noon of May 15, 2001; and called the parties to an Oral Argument on May 17, 2001. It added that the Comelec may proceed with the counting and canvassing of votes cast for the party-list elections, but barred the proclamation of any winner therein, until further orders of the Court. Thereafter, Comments 14 on the second Petition were received by the Court and, on May 17, 2001, the Oral Argument was conducted as scheduled. In

an Order given in open court, the parties were directed to submit their respective Memoranda simultaneously within a non-extendible period of five days. 15 Issues: During the hearing on May 17, 2001, the Court directed the parties to address the following issues: "1. Whether or not recourse under Rule 65 is proper under the premises. More specifically, is there no other plain, speedy or adequate remedy in the ordinary course of law? "2. Whether or not political parties may participate in the party-list elections. "3. Whether or not the party-list system is exclusive to 'marginalized and underrepresented' sectors and organizations. "4. Whether or not the Comelec committed grave abuse of discretion in promulgating Omnibus Resolution No. 3785." 16 The Court's Ruling The Petitions are partly meritorious. These cases should be remanded to the Comelec which will determine, after summary evidentiary hearings, whether the 154 parties and organizations enumerated in the assailed Omnibus Resolution satisfy the requirements of the Constitution and RA 7941, as specified in this Decision. First Issue: Recourse Under Rule 65 Respondents contend that the recourse of both petitioners under Rule 65 is improper because there are other plain, speedy and adequate remedies in the ordinary course of law. 17 The Office of the Solicitor General argues that petitioners should have filed before the Comelec a petition either for disqualification or for cancellation of registration, pursuant to Sections 19, 20, 21 and 22 of Comelec Resolution No. 3307-A 18 dated November 9, 2000. 19 We disagree. At bottom, petitioners attack the validity of Comelec Omnibus Resolution 3785 for having been issued with grave abuse of discretion, insofar as it allowed respondents to participate in the party-list elections of 2001. Indeed, under both the Constitution 20 and the Rules of Court, such

challenge may be brought before this Court in a verified petition for certiorari under Rule 65. Moreover, the assailed Omnibus Resolution was promulgated by Respondent Commission en banc; hence, no motion for reconsideration was possible, it being a prohibited pleading under Section 1 (d), Rule 13 of the Comelec Rules of Procedure. 21 The Court also notes that Petitioner Bayan Muna had filed before the Comelec a Petition for Cancellation of Registration and Nomination against some of herein respondents. 22 The Comelec, however, did not act on that Petition. In view of the pendency of the elections, Petitioner Bayan Muna sought succor from this Court, for there was no other adequate recourse at the time. Subsequent events have proven the urgency of petitioner's action; to this date, the Comelec has not yet formally resolved the Petition before it. But a resolution may just be a formality because the Comelec, through the Office of the Solicitor General, has made its position on the matter quite clear. In any event, this case presents an exception to the rule that certiorari shall lie only in the absence of any other plain, speedy and adequate remedy. 23 It has been held that certiorari is available, notwithstanding the presence of other remedies, "where the issue raised is one purely of law, where public interest is involved, and in case of urgency." 24 Indeed, the instant case is indubitably imbued with public interest and with extreme urgency, for it potentially involves the composition of 20 percent of the House of Representatives. Moreover, this case raises transcendental constitutional issues on the partylist system, which this Court must urgently resolve, consistent with its duty to "formulate guiding and controlling constitutional principles, precepts, doctrines, or rules." 25 Finally, procedural requirements "may be glossed over to prevent a miscarriage of justice, when the issue involves the principle of social justice x x x when the decision 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." 26 Second Issue: Participation of Political Parties In its Petition, Ang Bagong Bayani-OFW Labor Party contends that "the inclusion of political parties in the party-list system is the most objectionable portion of the questioned Resolution." 27 For its part, Petitioner

Bayan Muna objects to the participation of "major political parties." 28 On the other hand, the Office of the Solicitor General, like the impleaded political parties, submits that the Constitution and RA No. 7941 allow political parties to participate in the party-list elections. It argues that the party-list system is, in fact, open to all "registered national, regional and sectoral parties or organizations." 29 We now rule on this issue. Under the Constitution and RA 7941, private respondents cannot be disqualified from the party-list elections, merely on the ground that they are political parties. Section 5, Article VI of the Constitution provides that members of the House of Representatives may "be elected through a party-list system of registered national, regional, and sectoral parties or organizations." Furthermore, under Sections 7 and 8, Article IX (C) of the Constitution, political parties may be registered under the party-list system. "Sec. 7. No votes cast in favor of a political party, organization, or coalition shall be valid, except for those registered under the partylist system as provided in this Constitution. "Sec. 8. Political parties, or organizations or coalitions registered under the party-list system, shall not be represented in the voters' registration boards, boards of election inspectors, boards of canvassers, or other similar bodies. However, they shall be entitled to appoint poll watchers in accordance with law." 30 During the deliberations in the Constitutional Commission, Comm. Christian S. Monsod pointed out that the participants in the party-list system may "be a regional party, a sectoral party, a national party, UNIDO, 31Magsasaka, or a regional party in Mindanao." 32 This was also clear from the following exchange between Comms. Jaime Tadeo and Blas Ople: 33 "MR. TADEO. Naniniwala ba kayo na ang party list ay pwedeng paghatihatian ng UNIDO, PDP-Laban, PNP, Liberal at Nacionalista? MR. OPLE. Maaari yan sapagkat bukas ang party list system sa lahat ng mga partido." Indeed, Commissioner Monsod stated that the purpose of the party-list provision was to open up the system, in order to give a chance to parties that consistently place third or fourth in congressional district elections to win a seat in Congress. 34 He explained: "The purpose of this is to open the system. In the past elections, we found out that there were certain groups or parties that, if we count their votes nationwide, have about 1,000,000 or 1,500,000

votes. But they were always third or fourth place in each of the districts. So, they have no voice in the Assembly. But this way, they would have five or six representatives in the Assembly even if they would not win individually in legislative districts. So, that is essentially the mechanics, the purpose and objectives of the party-list system." For its part, Section 2 of RA 7941 also provides for "a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, x x x." Section 3 expressly states that a "party" is "either a political party or a sectoral party or a coalition of parties." More to the point, the law defines "political party" as "an organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates and supports certain of its leaders and members as candidates for public office." Furthermore, Section 11 of RA 7941 leaves no doubt as to the participation of political parties in the party-list system. We quote the pertinent provision below: "x x x "For purposes of the May 1998 elections, the first five (5) major political parties on the basis of party representation in the House of Representatives at the start of the Tenth Congress of the Philippines shall not be entitled to participate in the party-list system. x x x" Indubitably, therefore, political parties even the major ones -- may participate in the party-list elections. Third Issue: Marginalized and Underrepresented That political parties may participate in the party-list elections does not mean, however, that any political party -- or any organization or group for that matter -- may do so. The requisite character of these parties or organizations must be consistent with the purpose of the party-list system, as laid down in the Constitution and RA 7941. Section 5, Article VI of the Constitution, provides as follows: "(1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the

provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. (2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector." (Emphasis supplied.) Notwithstanding the sparse language of the provision, a distinguished member of the Constitutional Commission declared that the purpose of the party-list provision was to give "genuine power to our people" in Congress. Hence, when the provision was discussed, he exultantly announced: "On this first day of August 1986, we shall, hopefully, usher in a new chapter to our national history, by giving genuine power to our people in the legislature."35 The foregoing provision on the party-list system is not self-executory. It is, in fact, interspersed with phrases like "in accordance with law" or "as may be provided by law"; it was thus up to Congress to sculpt in granite the lofty objective of the Constitution. Hence, RA 7941 was enacted. It laid out the statutory policy in this wise: "SEC. 2. Declaration of Policy. -- The State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible." The Marginalized and Underrepresented to Become Lawmakers Themselves

The foregoing provision mandates a state policy of promoting proportional representation by means of the Filipino-style party-list system, which will "enable" the election to the House of Representatives of Filipino citizens, 1. who belong to marginalized and underrepresented sectors, organizations and parties; and 2. who lack well-defined constituencies; but 3. who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole. The key words in this policy are "proportional representation," "marginalized and underrepresented," and "lack ofwell-defined constituencies." "Proportional representation" here does not refer to the number of people in a particular district, because the party-list election is national in scope. Neither does it allude to numerical strength in a distressed or oppressed group. Rather, it refers to the representation of the "marginalized and underrepresented" as exemplified by the enumeration in Section 5 of the law; namely, "labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals." However, it is not enough for the candidate to claim representation of the marginalized and underrepresented, because representation is easy to claim and to feign. The party-list organization or party must factually and truly represent the marginalized and underrepresented constituencies mentioned in Section 5. 36 Concurrently, the persons nominated by the party-list candidate-organization must be "Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties." Finally, "lack of well-defined constituenc[y] " refers to the absence of a traditionally identifiable electoral group, like voters of a congressional district or territorial unit of government. Rather, it points again to those with disparate interests identified with the "marginalized or underrepresented." In the end, the role of the Comelec is to see to it that only those Filipinos who are "marginalized and underrepresented" become members of Congress under the party-list system, Filipino-style. The intent of the Constitution is clear: to give genuine power to the people, not only by giving more law to those who have less in life, but more so by enabling them to become veritable lawmakers themselves. Consistent with this intent, the policy of the implementing law, we repeat, is likewise clear:

"to enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, x x x, to become members of the House of Representatives." Where the language of the law is clear, it must be applied according to its express terms. 37 The marginalized and underrepresented sectors to be represented under the party-list system are enumerated in Section 5 of RA 7941, which states: "SEC. 5. Registration. -- Any organized group of persons may register as a party, organization or coalition for purposes of the party-list system by filing with the COMELEC not later than ninety (90) days before the election a petition verified by its president or secretary stating its desire to participate in the party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations, attaching thereto its constitution, by-laws, platform or program of government, list of officers, coalition agreement and other relevant information as the COMELEC may require: Provided, that the sector shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals." While the enumeration of marginalized and underrepresented sectors is not exclusive, it demonstrates the clear intent of the law that not all sectors can be represented under the party-list system. It is a fundamental principle of statutory construction that words employed in a statute are interpreted in connection with, and their meaning is ascertained by reference to, the words and the phrases with which they are associated or related. Thus, the meaning of a term in a statute may be limited, qualified or specialized by those in immediate association. 38 The Party-List System Desecrated by the OSG Contentions Notwithstanding the unmistakable statutory policy, the Office of the Solicitor General submits that RA No. 7941 "does not limit the participation in the party-list system to the marginalized and underrepresented sectors of society." 39 In fact, it contends that any party or group that is not disqualified under Section 6 40 of RA 7941 may participate in the elections. Hence, it admitted during the Oral Argument that even an organization representing the super rich of Forbes Park or Dasmarias Village could participate in the party-list elections. 41 The declared policy of RA 7941 contravenes the position of the Office of the Solicitor General (OSG). We stress that the party-list system seeks to enable certain Filipino citizens specifically those belonging to marginalized and underrepresented sectors, organizations and parties to be elected to the House of Representatives. The assertion of the OSG that the party-list system is not exclusive to the marginalized and underrepresented

disregards the clear statutory policy. Its claim that even the super-rich and overrepresented can participate desecrates the spirit of the party-list system. Indeed, the law crafted to address the peculiar disadvantages of Payatas hovel dwellers cannot be appropriated by the mansion owners of Forbes Park. The interests of these two sectors are manifestly disparate; hence, the OSG's position to treat them similarly defies reason and common sense. In contrast, and with admirable candor, Atty. Lorna Patajo-Kapunan 42 admitted during the Oral Argument that a group of bankers, industrialists and sugar planters could not join the party-list system as representatives of their respective sectors. 43 While the business moguls and the mega-rich are, numerically speaking, a tiny minority, they are neither marginalized nor underrepresented, for the stark reality is that their economic clout engenders political power more awesome than their numerical limitation. Traditionally, political power does not necessarily emanate from the size of one's constituency; indeed, it is likely to arise more directly from the number and amount of one's bank accounts. It is ironic, therefore, that the marginalized and underrepresented in our midst are the majority who wallow in poverty, destitution and infirmity. It was for them that the party-list system was enacted -- to give them not only genuine hope, but genuine power; to give them the opportunity to be elected and to represent the specific concerns of their constituencies; and simply to give them a direct voice in Congress and in the larger affairs of the State. In its noblest sense, the party-list system truly empowers the masses and ushers a new hope for genuine change. Verily, it invites those marginalized and underrepresented in the past the farm hands, the fisher folk, the urban poor, even those in the underground movement to come out and participate, as indeed many of them came out and participated during the last elections. The State cannot now disappoint and frustrate them by disabling and desecrating this social justice vehicle. Because the marginalized and underrepresented had not been able to win in the congressional district elections normally dominated by traditional politicians and vested groups, 20 percent of the seats in the House of Representatives were set aside for the party-list system. In arguing that even those sectors who normally controlled 80 percent of the seats in the House could participate in the party-list elections for the remaining 20 percent, the OSG and the Comelec disregard the fundamental difference between the congressional district elections and the party-list elections. As earlier noted, the purpose of the party-list provision was to open up the system, 44 in order to enhance the chance of sectoral groups and organizations to gain representation in the House of Representatives through

the simplest scheme possible. 45 Logic shows that the system has been opened to those who have never gotten a foothold within it -- those who cannot otherwise win in regular elections and who therefore need the "simplest scheme possible" to do so. Conversely, it would be illogical to open the system to those who have long been within it -- those privileged sectors that have long dominated the congressional district elections. The import of the open party-list system may be more vividly understood when compared to a student dormitory "open house," which by its nature allows outsiders to enter the facilities. Obviously, the "open house" is for the benefit of outsiders only, not the dormers themselves who can enter the dormitory even without such special privilege. In the same vein, the open party-list system is only for the "outsiders" who cannot get elected through regular elections otherwise; it is not for the non-marginalized or overrepresented who already fill the ranks of Congress. Verily, allowing the non-marginalized and overrepresented to vie for the remaining seats under the party-list system would not only dilute, but also prejudice the chance of the marginalized and underrepresented, contrary to the intention of the law to enhance it. The party-list system is a tool for the benefit of the underprivileged; the law could not have given the same tool to others, to the prejudice of the intended beneficiaries. This Court, therefore, cannot allow the party-list system to be sullied and prostituted by those who are neither marginalized nor underrepresented. It cannot let that flicker of hope be snuffed out. The clear state policy must permeate every discussion of the qualification of political parties and other organizations under the party-list system. Refutation of the Separate Opinions The Separate Opinions of our distinguished colleagues, Justices Jose C. Vitug and Vicente V. Mendoza, are anchored mainly on the supposed intent of the framers of the Constitution as culled from their deliberations. The fundamental principle in constitutional construction, however, is that the primary source from which to ascertain constitutional intent or purpose is the language of the provision itself. The presumption is that the words in which the constitutional provisions are couched express the objective sought to be attained. 46 In other words, verba legis still prevails. Only when the meaning of the words used is unclear and equivocal should resort be made to extraneous aids of construction and interpretation, such as the proceedings of the Constitutional Commission or Convention, in order to shed light on and ascertain the true intent or purpose of the provision being construed. 47

Indeed, as cited in the Separate Opinion of Justice Mendoza, this Court stated in Civil Liberties Union v. Executive Secretary 48 that "the debates and proceedings of the constitutional convention [may be consulted] in order to arrive at the reason and purpose of the resulting Constitution x x x only when other guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention 'are of value as showing the views of the individual members, and as indicating the reason for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the mass or our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face.' The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers' understanding thereof." Section 5, Article VI of the Constitution, relative to the party-list system, is couched in clear terms: the mechanics of the system shall be provided by law. Pursuant thereto, Congress enacted RA 7941. In understanding and implementing party-list representation, we should therefore look at the law first. Only when we find its provisions ambiguous should the use of extraneous aids of construction be resorted to. But, as discussed earlier, the intent of the law is obvious and clear from its plain words. Section 2 thereof unequivocally states that the party-list system of electing congressional representatives was designed to "enable underrepresented sectors, organizations and parties, and who lack welldefined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole x x x." The criteria for participation is well defined. Thus, there is no need for recourse to constitutional deliberations, not even to the proceedings of Congress. In any event, the framers' deliberations merely express their individual opinions and are, at best, only persuasive in construing the meaning and purpose of the constitution or statute. Be it remembered that the constitutionality or validity of Sections 2 and 5 of RA 7941 is not an issue here. Hence, they remain parts of the law, which must be applied plainly and simply. Fourth Issue: Grave Abuse of Discretion From its assailed Omnibus Resolution, it is manifest that the Comelec failed to appreciate fully the clear policy of the law and the Constitution. On the contrary, it seems to have ignored the facet of the party-list system discussed above. The OSG as its counsel admitted before the Court that any group,

even the non-marginalized and overrepresented, could field candidates in the party-list elections. When a lower court, or a quasi-judicial agency like the Commission on Elections, violates or ignores the Constitution or the law, its action can be struck down by this Court on the ground of grave abuse of discretion. 49Indeed, the function of all judicial and quasi-judicial instrumentalities is to apply the law as they find it, not to reinvent or secondguess it. 50 In its Memorandum, Petitioner Bayan Muna passionately pleads for the outright disqualification of the major political parties Respondents LakasNUCD, LDP, NPC, LP and PMP on the ground that under Comelec Resolution No. 4073, they have been accredited as the five (six, including PDP-Laban) major political parties in the May 14, 2001 elections. It argues that because of this, they have the "advantage of getting official Comelec Election Returns, Certificates of Canvass, preferred poll watchers x x x." We note, however, that this accreditation does not refer to the party-list election, but, inter alia, to the election of district representatives for the purpose of determining which parties would be entitled to watchers under Section 26 of Republic Act No. 7166. What is needed under the present circumstances, however, is a factual determination of whether respondents herein and, for that matter, all the 154 previously approved groups, have the necessary qualifications to participate in the party-list elections, pursuant to the Constitution and the law. Bayan Muna also urges us to immediately rule out Respondent Mamamayan Ayaw sa Droga (MAD), because "it is a government entity using government resources and privileges." This Court, however, is not a trier of facts. 51 It is not equipped to receive evidence and determine the truth of such factual allegations. Basic rudiments of due process require that respondents should first be given an opportunity to show that they qualify under the guidelines promulgated in this Decision, before they can be deprived of their right to participate in and be elected under the party-list system. Guidelines for Screening Party-List Participants The Court, therefore, deems it proper to remand the case to the Comelec for the latter to determine, after summary evidentiary hearings, whether the 154 parties and organizations allowed to participate in the party-list elections comply with the requirements of the law. In this light, the Court finds it appropriate to lay down the following guidelines, culled from the law and the Constitution, to assist the Comelec in its work.

First, the political party, sector, organization or coalition must represent the marginalized and underrepresented groups identified in Section 5 of RA 7941. In other words, it must show -- through its constitution, articles of incorporation, bylaws, history, platform of government and track record -that it represents and seeks to uplift marginalized and underrepresented sectors. Verily, majority of its membership should belong to the marginalized and underrepresented. And it must demonstrate that in a conflict of interests, it has chosen or is likely to choose the interest of such sectors. Second, while even major political parties are expressly allowed by RA 7941 and the Constitution to participate in the party-list system, they must comply with the declared statutory policy of enabling "Filipino citizens belonging to marginalized and underrepresented sectors x x x to be elected to the House of Representatives." In other words, while they are not disqualified merely on the ground that they are political parties, they must show, however, that they represent the interests of the marginalized and underrepresented. The counsel of Aksyon Demokratiko and other similarly situated political parties admitted as much during the Oral Argument, as the following quote shows: "JUSTICE PANGANIBAN: I am not disputing that in my question. All I am saying is, the political party must claim to represent the marginalized and underrepresented sectors? ATTY. KAPUNAN: Yes, Your Honor, the answer is yes."52 Third, in view of the objections53 directed against the registration of Ang Buhay Hayaang Yumabong, which is allegedly a religious group, the Court notes the express constitutional provision that the religious sector may not be represented in the party-list system. The extent of the constitutional proscription is demonstrated by the following discussion during the deliberations of the Constitutional Commission: "MR. OPLE. x x x In the event that a certain religious sect with nationwide and even international networks of members and supporters, in order to circumvent this prohibition, decides to form its own political party in emulation of those parties I had mentioned earlier as deriving their inspiration and philosophies from well-established religious faiths, will that also not fall within this prohibition? MR. MONSOD. If the evidence shows that the intention is to go around the prohibition, then certainly the Comelec can pierce through the legal fiction."54

The following discussion is also pertinent: "MR. VILLACORTA. When the Commissioner proposed "EXCEPT RELIGIOUS GROUPS," he is not, of course, prohibiting priests, imams or pastors who may be elected by, say, the indigenous community sector to represent their group. REV. RIGOS. Not at all, but I am objecting to anybody who represents the Iglesia ni Kristo, the Catholic Church, the Protestant Church et cetera."55 Furthermore, the Constitution provides that "religious denominations and sects shall not be registered."56 The prohibition was explained by a member57 of the Constitutional Commission in this wise: "[T] he prohibition is on any religious organization registering as a political party. I do not see any prohibition here against a priest running as a candidate. That is not prohibited here; it is the registration of a religious sect as a political party."58 Fourth, a party or an organization must not be disqualified under Section 6 of RA 7941, which enumerates the grounds for disqualification as follows: "(1) It is a religious sect or denomination, organization or association organized for religious purposes; (2) It advocates violence or unlawful means to seek its goal; (3) It is a foreign party or organization; (4) It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes; (5) It violates or fails to comply with laws, rules or regulations relating to elections; (6) It declares untruthful statements in its petition; (7) It has ceased to exist for at least one (1) year; or (8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered."59 Note should be taken of paragraph 5, which disqualifies a party or group for violation of or failure to comply with election laws and regulations. These

laws include Section 2 of RA 7941, which states that the party-list system seeks to "enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties x x x to become members of the House of Representatives." A party or an organization, therefore, that does not comply with this policy must be disqualified. Fifth, the party or organization must not be an adjunct of, or a project organized or an entity funded or assisted by, the government. By the very nature of the party-list system, the party or organization must be a group of citizens, organized by citizens and operated by citizens. It must be independent of the government. The participation of the government or its officials in the affairs of a party-list candidate is not only illegal60 and unfair to other parties, but also deleterious to the objective of the law: to enable citizens belonging to marginalized and underrepresented sectors and organizations to be elected to the House of Representatives. Sixth, the party must not only comply with the requirements of the law; its nominees must likewise do so. Section 9 of RA 7941 reads as follows: "SEC. 9. Qualifications of Party-List Nominees. No person shall be nominated as party-list representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of the election, able to read and write, a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election. In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue in office until the expiration of his term." Seventh, not only the candidate party or organization must represent marginalized and underrepresented sectors; so also must its nominees. To repeat, under Section 2 of RA 7941, the nominees must be Filipino citizens "who belong to marginalized and underrepresented sectors, organizations and parties." Surely, the interests of the youth cannot be fully represented by a retiree; neither can those of the urban poor or the working class, by an industrialist. To allow otherwise is to betray the State policy to give genuine representation to the marginalized and underrepresented. Eighth, as previously discussed, while lacking a well-defined political constituency, the nominee must likewise be able to contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole. Senator Jose Lina explained during the bicameral

committee proceedings that "the nominee of a party, national or regional, is not going to represent a particular district x x x."61 Epilogue The linchpin of this case is the clear and plain policy of the law: "to enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives." Crucial to the resolution of this case is the fundamental social justice principle that those who have less in life should have more in law. The party-list system is one such tool intended to benefit those who have less in life. It gives the great masses of our people genuine hope and genuine power. It is a message to the destitute and the prejudiced, and even to those in the underground, that change is possible. It is an invitation for them to come out of their limbo and seize the opportunity. Clearly, therefore, the Court cannot accept the submissions of the Comelec and the other respondents that the party-list system is, without any qualification, open to all. Such position does not only weaken the electoral chances of the marginalized and underrepresented; it also prejudices them. It would gut the substance of the party-list system. Instead of generating hope, it would create a mirage. Instead of enabling the marginalized, it would further weaken them and aggravate their marginalization. In effect, the Comelec would have us believe that the party-list provisions of the Constitution and RA 7941 are nothing more than a play on dubious words, a mockery of noble intentions, and an empty offering on the altar of people empowerment. Surely, this could not have been the intention of the framers of the Constitution and the makers of RA 7941. WHEREFORE, this case is REMANDED to the Comelec, which is hereby DIRECTED to immediately conduct summary evidentiary hearings on the qualifications of the party-list participants in the light of the guidelines enunciated in this Decision. Considering the extreme urgency of determining the winners in the last party-list elections, the Comelec is directed to begin its hearings for the parties and organizations that appear to have garnered such number of votes as to qualify for seats in the House of Representatives. The Comelec is further DIRECTED to submit to this Court its compliance report within 30 days from notice hereof.1wphi1.nt The Resolution of this Court dated May 9, 2001, directing the Comelec "to refrain from proclaiming any winner" during the last party-list election, shall

remain in force until after the Comelec itself will have complied and reported its compliance with the foregoing disposition. This Decision is immediately executory upon the Commission on Elections' receipt thereof. No pronouncement as to costs.
Veterans Federation Party v. COMELE G.R. No. 1136781 (October 6, 2000) FACTS: On May 11, 1998, the first election for the party-list scheme was held simultaneously with the national elections. One hundred and twenty-three parties, organizations and coalitions participated. On June 26, 1998, the COMELEC en banc proclaimed thirteen party-list representatives from twelve parties and organizations, which had obtained at least two percent of the total number of votes cast for the party-list system. Thirty-eight defeated parties and organizations promptly filed suit in the COMELEC, pleading for their own proclamations. Hence, COMELEC ordered the proclamation of the 38 parties. Such move filled up the 52 seats allotted for the party-list reps. Aggrieved, the proclaimed parties asked the SC to annul the COMELEC action and instead to proclaim additional seats, so that each of them would have three party-list reps. HELD: 1. Is the 20% allocation for party-list representatives mandatory or is it merely a ceiling? SC: The 20% allocation is only a ceiling and not mandatory. 2. Are the 2% threshold requirement and the three-seat limit provided in Section 11(b) of RA 7941 constitutional? SC: Yes. Congress was vested with the broad power to define and prescribe the mechanics of the party-list system. 3. How then should the additional seats of a qualified party be determined? SC: As to the method of allocating additional seats, the first step is to rank all the participating parties according to the votes they each obtained. The percentage of their respective votes as against the total number of votes cast for the party-list system is then determined. All those that garnered at least two percent of the total votes cast have an assured or guaranteed seat in the House of Representatives. Thereafter, those garnering more than two percent of the votes shall be entitled to additional seats in proportion to their total number of votes. The formula for additional seats of other qualified parties is: no.of votes of concerned party divided by no.of votes of first party multiplied by no. of additional seats allocated to the first party. As for the first party, just take it at face value. ( 5% = 2 seats )

G.R. No. 141489

November 29, 2002

SENATOR AQUILINO Q. PIMENTEL, JR., REPRESENTATIVES MELVYN D. EBALLE, LEONARDO Q. MONTEMAYOR, CRESENTE C. PAEZ, LORETTA ANN P. ROSALES and PATRICIA M. SARENAS, petitioners, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL,

JUSTICES JOSE A.R. MELO, VICENTE V. MENDOZA and JOSE C. VITUG, and REPRESENTATIVES ASANI S. TAMMANG, RAUL M. GONZALES, DIDAGEN P. DILANGALEN, DANTON Q. BUESER,1 NAPOLEON R. BERATIO, SIMEON E. GARCIA and SPEAKER MANUEL B. VILLAR, JR., respondents. ----------------------------G.R. No. 141490 November 29, 2002

SENATOR AQUILINO Q. PIMENTEL, JR. REPRESENTATIVES MELVYN D. EBALLE, LEONARDO Q. MONTEMAYOR, CRESENTE C. PAEZ, LORETTA ANN P. ROSALES and PATRICIA M. SARENAS, petitioners, vs. COMMISSION ON APPOINTMENTS, its Chair, SENATE PRESIDENT BLAS F. OPLE, and Members, namely: SENATORS FRANKLIN M. DRILON, RENATO L. CAYETANO, LOREN LEGARDA-LEVISTE, ROBERT Z. BARBERS, ANNA DOMINIQUE M.L. COSETENG, GREGORIO HONASAN, RAMON B. MAGSAYSAY, JR., TERESA AQUINO-ORETA, RAUL S. ROCO, FRANCISCO S. TATAD, VICENTE C. SOTTO III and REPRESENTATIVES LUIS A. ASISTIO, EMILIO R. ESPINOSA, JR., WIGBERTO E. TAADA, MANUEL M. GARCIA, SIMEON A. DATUMANONG, ANTONIO M. DIAZ, FAUSTINO S. DY, JR., PACIFICO M. FAJARDO, ERNESTO F. HERRERA, NUR G. JAAFAR, CARLOS M. PADILLA, ROGELIO M. SARMIENTO and SPEAKER MANUEL B. VILLAR, JR., respondents. DECISION CARPIO, J.: The Case Before this Court are two original petitions for prohibition and mandamus with prayer for writ of preliminary injunction. Petitioners assail the composition of the House of Representatives Electoral Tribunal ("HRET" for brevity)2 and the Commission on Appointments ("CA" for brevity).3 Petitioners pray that respondents be ordered to "alter, reorganize, reconstitute and reconfigure" the composition of the HRET and the CA to include party-list representatives in accordance with Sections 17 and 18, Article VI of the 1987 Constitution and Republic Act No. 7941, otherwise known as the Party-List System Act. Petitioners further pray that the HRET and the CA be enjoined from exercising their functions until they have been reorganized.

Antecedent Facts Section 5, Article VI of the 1987 Constitution provides for a party-list system in the House of Representatives ("House" for brevity), as follows: "Sec. 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional and sectoral parties or organizations. (2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth and such other sectors as may be provided by law except the religious sector." On March 3, 1995, the Party-List System Act took effect. The Act sought to "promote proportional representation in the election of representatives, to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack welldefined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives."4 On May 11, 1998, in accordance with the Party-List System Act, national elections were held which included, for the first time, the election through popular vote of party-list groups and organizations whose nominees would become members of the House. Proclaimed winners were 14 party-list representatives from 13 organizations, including petitioners from party-list groups Association of Philippine Electric Cooperatives5 (APEC), Alyansang Bayanihan ng mga Magsasaka, Manggagawang Bukid at Mangingisda (ABA), NATCO Network Party (COOP-NATCCO), Akbayan! Citizens Action Party (AKBAYAN), and Abanse! Pinay (ABANSE). Due to the votes it garnered, APEC was able to send 2 representatives to the House, while the 12 other party-list groups had one representative each. Also elected were district representatives belonging to various political parties.

Subsequently, the House constituted its HRET and CA contingent6 by electing its representatives to these two constitutional bodies. In practice, the procedure involves the nomination by the political parties of House members who are to occupy seats in the HRET and the CA.7 From available records, it does not appear that after the May 11, 1998 elections the partylist groups in the House nominated any of their representatives to the HRET or the CA. As of the date of filing of the instant petitions, the House contingents to the HRET and the CA were composed solely of district representatives belonging to the different political parties. On January 18, 2000, Senator Aquilino Q. Pimentel, Jr. wrote two letters addressed to then Senate President Blas F. Ople,8 as Chairman of the CA, and to Associate Justice of the Supreme Court Jose A. R. Melo (now retired),9as Chairman of the HRET. The letters requested Senate President Ople and Justice Melo to cause the restructuring of the CA and the HRET, respectively, to include party-list representatives to conform to Sections 17 and 18, Article VI of the 1987 Constitution. In its meeting of January 20, 2000, the HRET resolved to direct the Secretary of the Tribunal to refer Senator Pimentels letter to the SecretaryGeneral of the House of Representatives.10 On the same day, HRET Secretary Daisy B. Panga-Vega, in an Indorsement11 of even date, referred the letter to House of Representatives Secretary General Roberto P. Nazareno. On February 2, 2000, petitioners filed with this Court their Petitions for Prohibition, Mandamus and Preliminary Injunction (with Prayer for Temporary Restraining Order) against the HRET, its Chairman and Members,12 and against the CA, its Chairman and Members.13 Petitioners contend that, under the Constitution and the Party-List System Act, partylist representatives should have 1.2 or at least 1 seat in the HRET,14 and 2.4 seats in the CA.15Petitioners charge that respondents committed grave abuse of discretion in refusing to act positively on the letter of Senator Pimentel. In its Resolution of February 8, 2000,16 the Court en banc directed the consolidation of G.R. No. 141490 with G.R. No. 141489. On February 11, 2000, petitioners filed in both cases a motion17 to amend their petitions to implead then Speaker Manuel B. Villar, Jr. as an additional respondent, in his capacity as Speaker of the House and as one of the members of the CA. The Court granted both motions and admitted the amended petitions. Senator Pimentel filed the instant petitions on the strength of his oath to protect, defend and uphold the Constitution and in his capacity as taxpayer and as a member of the CA. He was joined by 5 party-list representatives

from APEC, ABA, ABANSE, AKBAYAN and COOP-NATCCO as copetitioners. Petitioners cite as basis Sections 17 and 18, Article VI of the 1987 Constitution, to wit: "Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman." "Sec. 18. There shall be a Commission on Appointments consisting of the President of the Senate, as ex officio Chairman, twelve Senators and twelve Members of the House of Representatives, elected by each House on the basis of proportional representation from the political parties and parties or organizations registered under the party-list system represented therein. The Chairman of the Commission shall not vote, except in case of a tie. The Commission shall act on all appointments submitted to it within thirty session days of the Congress from their submission. The Commission shall rule by a majority vote of all the Members,"18 (Emphasis supplied) Petitioners also invoke the following provision of Section 11 of Republic Act No. 7941: "Sec. 11. Number of Party-List Representatives. - The party-list representatives shall constitute twenty per centum (20%) of the total number of the members of the House of Representatives including those under the party-list. xxx"19 According to the Solicitor Generals Consolidated Comment,20 at the time petitioners filed the instant petitions the House had 220 members, 14 of whom were party-list representatives, constituting 6.3636% of the House. Of the remaining 206 district representatives affiliated with different political parties, 151 belonged to LAMP (68.6354%), 36 belonged to LAKAS (16.3636%), 13 to the Liberal Party (5.9090%), 1 member (0.4545%) each to KBL, PDRLM, Aksyon Demokratiko, Reporma and PROMDI, and 1 representative was an independent. In their Reply to Consolidated Comment,21 petitioners alleged that, following the Solicitor Generals computation, the LP and LAKAS were

over-represented in the HRET and the CA. Petitioners particularly assail the presence of one LP representative each in the HRET and the CA, and maintain that the LP representatives should be ousted and replaced with nominees of the 14 party-list representatives. The Issues Petitioners raise the following issues: 1. WHETHER THE PRESENT COMPOSITION OF THE HOUSE ELECTORAL TRIBUNAL VIOLATES THE CONSTITUTIONAL REQUIREMENT OF PROPORTIONAL REPRESENTATION BECAUSE THERE ARE NO PARTY-LIST REPRESENTATIVES IN THE HRET. 2. WHETHER THE PRESENT MEMBERSHIP OF THE HOUSE IN THE COMMISSION ON APPOINTMENTS VIOLATES THE CONSTITUTIONAL REQUIREMENT OF PROPORTIONAL REPRESENTATION BECAUSE THERE ARE NO PARTY-LIST REPRESENTATIVES IN THE CA. 3. WHETHER THE REFUSAL OF THE HRET AND THE CA TO RECONSTITUTE THEMSELVES TO INCLUDE PARTY-LIST REPRESENTATIVES CONSTITUTES GRAVE ABUSE OF DISCRETION. On the other hand, the Solicitor General argues that the instant petitions are procedurally defective and substantially lacking in merit for having been filed prematurely, thus: "It is a generally accepted principle that the averments in the pleading determine the existence of a cause of action. In the instant petitions, petitioners failed to aver that they or any one of them was elected by a party or organization registered under the party-list system as a Member of the HRET or CA to represent said party or organization under the party-list system of the House of Representatives."22 The Ruling of the Court Petitioners urge the Court to rule on the issues raised in the petitions under review, citing the following pronouncement in Guingona Jr. v. Gonzales :23 "Where constitutional issues are properly raised in the context of the alleged facts, procedural questions acquire a relatively minor significance, and the transcendental importance to the public of the case demands that they be

settled promptly and definitely brushing aside xxx technicalities of procedure." Petitioners reliance on Guingona, Jr. v. Gonzales is misplaced. The "procedural questions" that petitioners want the Court to brush aside are not mere technicalities but substantive matters that are specifically provided for in the constitutional provisions cited by petitioners. The Constitution expressly grants to the House of Representatives the prerogative, within constitutionally defined limits, to choose from among its district and party-list representatives those who may occupy the seats allotted to the House in the HRET and the CA. Section 18, Article VI of the Constitution24 explicitly confers on the Senate and on the House the authority to elect among their members those who would fill the 12 seats for Senators and 12 seats for House members in the Commission on Appointments. Under Section 17, Article VI of the Constitution,25each chamber of Congress exercises the power to choose, within constitutionally defined limits, who among their members would occupy the allotted 6 seats of each chambers respective electoral tribunal. These constitutional provisions are reiterated in Rules 3 and 4 (a) of the 1998 Rules of the House of Representatives Electoral Tribunal, to wit: "Rule 3. Composition. - The 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 House of Representatives who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The Senior Justice in the Tribunal shall be its Chairman. Rule 4. Organization. - (a) Upon the designation of the Justices of the Supreme Court and the election of the Members of the House of Representatives who are to compose the House of Representatives Electoral Tribunal pursuant to Sections 17 and 19 of Article VI of the Constitution, the Tribunal shall meet for its organization and adoption of such resolutions as it may deem proper." (Emphasis supplied) Likewise, Section 1 of the Rules of the Commission on Appointments provides: "Section 1. Composition of the Commission On Appointments. Within thirty (30) days after both Houses of Congress shall have organized themselves with the election of the Senate President and

the Speaker of the House of Representatives, the Commission on Appointments shall be constituted. It shall be composed of twelve (12) Senators and twelve (12) members of the House of Representatives, elected by each House on the basis of proportional representation from the political parties and parties or organizations registered under the party-list system represented herein. (Emphasis supplied) Thus, even assuming that party-list representatives comprise a sufficient number and have agreed to designate common nominees to the HRET and the CA, their primary recourse clearly rests with the House of Representatives and not with this Court. Under Sections 17 and 18, Article VI of the Constitution, party-list representatives must first show to the House that they possess the required numerical strength to be entitled to seats in the HRET and the CA. Only if the House fails to comply with the directive of the Constitution on proportional representation of political parties in the HRET and the CA can the party-list representatives seek recourse to this Court under its power of judicial review. Under the doctrine of primary jurisdiction, prior recourse to the House is necessary before petitioners may bring the instant case to the court. Consequently, petitioners direct recourse to this Court is premature. The discretion of the House to choose its members to the HRET and the CA is not absolute, being subject to the mandatory constitutional rule on proportional representation.26 However, under the doctrine of separation of powers, the Court may not interfere with the exercise by the House of this constitutionally mandated duty, absent a clear violation of the Constitution or grave abuse of discretion amounting to lack or excess of jurisdiction.27Otherwise, the doctrine of separation of powers calls for each branch of government to be left alone to discharge its duties as it sees fit.28 Neither can the Court speculate on what action the House may take if party-list representatives are duly nominated for membership in the HRET and the CA. The instant petitions are bereft of any allegation that respondents prevented the party-list groups in the House from participating in the election of members of the HRET and the CA. Neither does it appear that after the May 11, 1998 elections, the House barred the party-list representatives from seeking membership in the HRET or the CA. Rather, it appears from the available facts that the party-list groups in the House at that time simply refrained from participating in the election process. The party-list representatives did not designate their nominees even up to the time they filed the instant petitions, with the predictable result that the House did not consider any party-list representative for election to the HRET or the CA. As the primary recourse of the party-list representatives lies with the House

of Representatives, the Court cannot resolve the issues presented by petitioners at this time. Moreover, it is a well-settled rule that a constitutional question will not be heard and resolved by the courts unless the following requirements of judicial inquiry concur: (1) there must be an actual controversy; (2) the person or party raising the constitutional issue must have a personal and substantial interest in the resolution of the controversy; (3) the controversy must be raised at the earliest reasonable opportunity; and (4) the resolution of the constitutional issue must be indispensable to the final determination of the controversy.29 The five party-list representatives who are petitioners in the instant case have not alleged that they are entitled to, and have been unlawfully deprived of, seats in the HRET or the CA. Neither have they claimed that they have been nominated by the party-list groups in the House to the HRET or the CA. As such, they do not possess the personal and substantial interest required to confer them with locus standi. The party raising the constitutional issue must have "such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions."30 We likewise find no grave abuse in the action or lack of action by the HRET and the CA in response to the letters of Senator Pimentel. Under Sections 17 and 18 of Article VI of the 1987 Constitution and their internal rules, the HRET and the CA are bereft of any power to reconstitute themselves. Finally, the issues raised in the petitions have been rendered academic by subsequent events. On May 14, 2001, a new set of district and party-list representatives were elected to the House. The Court cannot now resolve the issue of proportional representation in the HRET and the CA based on the "present composition" of the House of Representatives as presented by petitioners and the Solicitor General. With the May 14, 2001 elections, it is certain that the composition of the House has changed. In the absence of a proper petition assailing the present composition of the HRET and the CA, the instant petitions must fail. Otherwise, for the Court to rule on the instant petitions at this time would be tantamount to rendering an advisory opinion, which is outside our jurisdiction.31 WHEREFORE, the consolidated petitions for prohibition and mandamus are DISMISSED. SO ORDERED.

G.R. No. 89651 November 10, 1989 DATU FIRDAUSI I.Y. ABBAS, DATU BLO UMPAR ADIONG, DATU MACALIMPOWAC DELANGALEN, CELSO PALMA, ALI MONTANA BABAO, JULMUNIR JANNARAL, RASHID SABER, and DATU JAMAL ASHLEY ABBAS, representing the other taxpayers of Mindanao, petitioners, vs. COMMISSION ON ELECTIONS, and HONORABLE GUILLERMO C. CARAGUE, DEPARTMENT SECRETARY OF BUDGET AND MANAGEMENT, respondents. G.R. No. 89965 November 10, 1989 ATTY. ABDULLAH D. MAMA-O, petitioner, vs. HON. GUILLERMO CARAGUE, in his capacity as the Secretary of the Budget, and the COMMISSION ON ELECTIONS, respondents. Abbas, Abbas, Amora, Alejandro-Abbas & Associates for petitioners in G.R. Nos. 89651 and 89965. Abdullah D. Mama-o for and in his own behalf in 89965.

CORTES, J.: The present controversy relates to the plebiscite in thirteen (13) provinces and nine (9) cities in Mindanao and Palawan, 1 scheduled for November 19, 1989, in implementation of Republic Act No. 6734, entitled "An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao." These consolidated petitions pray that the Court: (1) enjoin the Commission on Elections (COMELEC) from conducting the plebiscite and the Secretary of Budget and Management from releasing funds to the COMELEC for that purpose; and (2) declare R.A. No. 6734, or parts thereof, unconstitutional . After a consolidated comment was filed by Solicitor General for the respondents, which the Court considered as the answer, the case was deemed submitted for decision, the issues having been joined. Subsequently, petitioner Mama-o filed a "Manifestation with Motion for Leave to File Reply on Respondents' Comment and to Open Oral Arguments," which the Court noted.

The arguments against R.A. 6734 raised by petitioners may generally be categorized into either of the following: (a) that R.A. 6734, or parts thereof, violates the Constitution, and (b) that certain provisions of R.A. No. 6734 conflict with the Tripoli Agreement. The Tripoli Agreement, more specifically, the Agreement Between the government of the Republic of the Philippines of the Philippines and Moro National Liberation Front with the Participation of the Quadripartie Ministerial Commission Members of the Islamic Conference and the Secretary General of the Organization of Islamic Conference" took effect on December 23, 1976. It provided for "[t]he establishment of Autonomy in the southern Philippines within the realm of the sovereignty and territorial integrity of the Republic of the Philippines" and enumerated the thirteen (13) provinces comprising the "areas of autonomy." 2 In 1987, a new Constitution was ratified, which the for the first time provided for regional autonomy, Article X, section 15 of the charter provides that "[t]here shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines." To effectuate this mandate, the Constitution further provides: Sec. 16. The President shall exercise general supervision over autonomous regions to ensure that the laws are faithfully executed. Sec. 17. All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government. Sec. 18. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multisectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive and representative of the constituent political units. The organic acts shall likewise

provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws. The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only the provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. Sec. 19 The first Congress elected under this Constitution shall, within eighteen months from the time of organization of both Houses, pass the organic acts for the autonomous regions in Muslim Mindanao and the Cordilleras. Sec. 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (1) Administrative organization; (2) Creation of sources of revenues; (3) Ancestral domain and natural resources; (4) Personal, family, and property relations; (5) Regional urban and rural planning development; (6) Economic, social and tourism development; (7) Educational policies; (8) Preservation and development of the cultural heritage; and (9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. Sec. 21. The preservation of peace and order within the regions shall be the responsibility of the local police agencies

which shall be organized, maintained, supervised, and utilized in accordance with applicable laws. The defense and security of the region shall be the responsibility of the National Government. Pursuant to the constitutional mandate, R.A. No. 6734 was enacted and signed into law on August 1, 1989. 1. The Court shall dispose first of the second category of arguments raised by petitioners, i.e. that certain provisions of R.A. No. 6734 conflict with the provisions of the Tripoli Agreement. Petitioners premise their arguments on the assumption that the Tripoli Agreement is part of the law of the land, being a binding international agreement . The Solicitor General asserts that the Tripoli Agreement is neither a binding treaty, not having been entered into by the Republic of the Philippines with a sovereign state and ratified according to the provisions of the 1973 or 1987 Constitutions, nor a binding international agreement. We find it neither necessary nor determinative of the case to rule on the nature of the Tripoli Agreement and its binding effect on the Philippine Government whether under public international or internal Philippine law. In the first place, it is now the Constitution itself that provides for the creation of an autonomous region in Muslim Mindanao. The standard for any inquiry into the validity of R.A. No. 6734 would therefore be what is so provided in the Constitution. Thus, any conflict between the provisions of R.A. No. 6734 and the provisions of the Tripoli Agreement will not have the effect of enjoining the implementation of the Organic Act. Assuming for the sake of argument that the Tripoli Agreement is a binding treaty or international agreement, it would then constitute part of the law of the land. But as internal law it would not be superior to R.A. No. 6734, an enactment of the Congress of the Philippines, rather it would be in the same class as the latter [SALONGA, PUBLIC INTERNATIONAL LAW 320 (4th ed., 1974), citing Head Money Cases, 112 U.S. 580 (1884) and Foster v. Nelson, 2 Pet. 253 (1829)]. Thus, if at all, R.A. No. 6734 would be amendatory of the Tripoli Agreement, being a subsequent law. Only a determination by this Court that R.A. No. 6734 contravened the Constitution would result in the granting of the reliefs sought. 3 2. The Court shall therefore only pass upon the constitutional questions which have been raised by petitioners. Petitioner Abbas argues that R.A. No. 6734 unconditionally creates an autonomous region in Mindanao, contrary to the aforequoted provisions of the Constitution on the autonomous region which make the creation of such region dependent upon the outcome of the plebiscite.

In support of his argument, petitioner cites Article II, section 1(1) of R.A. No. 6734 which declares that "[t]here is hereby created the Autonomous Region in Muslim Mindanao, to be composed of provinces and cities voting favorably in the plebiscite called for the purpose, in accordance with Section 18, Article X of the Constitution." Petitioner contends that the tenor of the above provision makes the creation of an autonomous region absolute, such that even if only two provinces vote in favor of autonomy, an autonomous region would still be created composed of the two provinces where the favorable votes were obtained. The matter of the creation of the autonomous region and its composition needs to be clarified. Firs, the questioned provision itself in R.A. No. 6734 refers to Section 18, Article X of the Constitution which sets forth the conditions necessary for the creation of the autonomous region. The reference to the constitutional provision cannot be glossed over for it clearly indicates that the creation of the autonomous region shall take place only in accord with the constitutional requirements. Second, there is a specific provision in the Transitory Provisions (Article XIX) of the Organic Act, which incorporates substantially the same requirements embodied in the Constitution and fills in the details, thus: SEC. 13. The creation of the Autonomous Region in Muslim Mindanao shall take effect when approved by a majority of the votes cast by the constituent units provided in paragraph (2) of Sec. 1 of Article II of this Act in a plebiscite which shall be held not earlier than ninety (90) days or later than one hundred twenty (120) days after the approval of this Act: Provided, That only the provinces and cities voting favorably in such plebiscite shall be included in the Autonomous Region in Muslim Mindanao. The provinces and cities which in the plebiscite do not vote for inclusion in the Autonomous Region shall remain the existing administrative determination, merge the existing regions. Thus, under the Constitution and R.A. No 6734, the creation of the autonomous region shall take effect only when approved by a majority of the votes cast by the constituent units in a plebiscite, and only those provinces and cities where a majority vote in favor of the Organic Act shall be included in the autonomous region. The provinces and cities wherein such a majority is not attained shall not be included in the autonomous region. It may be that even if an autonomous region is created, not all of the thirteen (13) provinces and nine (9) cities mentioned in Article II, section 1 (2) of R.A. No. 6734 shall be included therein. The single plebiscite contemplated by the Constitution and R.A. No. 6734 will therefore be

determinative of (1) whether there shall be an autonomous region in Muslim Mindanao and (2) which provinces and cities, among those enumerated in R.A. No. 6734, shall compromise it. [See III RECORD OF THE CONSTITUTIONAL COMMISSION 482-492 (1986)]. As provided in the Constitution, the creation of the Autonomous region in Muslim Mindanao is made effective upon the approval "by majority of the votes cast by the constituent units in a plebiscite called for the purpose" [Art. X, sec. 18]. The question has been raised as to what this majority means. Does it refer to a majority of the total votes cast in the plebiscite in all the constituent units, or a majority in each of the constituent units, or both? We need not go beyond the Constitution to resolve this question. If the framers of the Constitution intended to require approval by a majority of all the votes cast in the plebiscite they would have so indicated. Thus, in Article XVIII, section 27, it is provided that "[t]his Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose ... Comparing this with the provision on the creation of the autonomous region, which reads: The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. [Art. X, sec, 18, para, 2]. it will readily be seen that the creation of the autonomous region is made to depend, not on the total majority vote in the plebiscite, but on the will of the majority in each of the constituent units and the proviso underscores this. for if the intention of the framers of the Constitution was to get the majority of the totality of the votes cast, they could have simply adopted the same phraseology as that used for the ratification of the Constitution, i.e. "the creation of the autonomous region shall be effective when approved by a majority of the votes cast in a plebiscite called for the purpose." It is thus clear that what is required by the Constitution is a simple majority of votes approving the organic Act in individual constituent units and not a double majority of the votes in all constituent units put together, as well as in the individual constituent units. More importantly, because of its categorical language, this is also the sense in which the vote requirement in the plebiscite provided under Article X,

section 18 must have been understood by the people when they ratified the Constitution. Invoking the earlier cited constitutional provisions, petitioner Mama-o, on the other hand, maintains that only those areas which, to his view, share common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics should be properly included within the coverage of the autonomous region. He insists that R.A. No. 6734 is unconstitutional because only the provinces of Basilan, Sulu, Tawi-Tawi, Lanao del Sur, Lanao del Norte and Maguindanao and the cities of Marawi and Cotabato, and not all of the thirteen (13) provinces and nine (9) cities included in the Organic Act, possess such concurrence in historical and cultural heritage and other relevant characteristics. By including areas which do not strictly share the same characteristics. By including areas which do not strictly share the same characteristic as the others, petitioner claims that Congress has expanded the scope of the autonomous region which the constitution itself has prescribed to be limited. Petitioner's argument is not tenable. The Constitution lays down the standards by which Congress shall determine which areas should constitute the autonomous region. Guided by these constitutional criteria, the ascertainment by Congress of the areas that share common attributes is within the exclusive realm of the legislature's discretion. Any review of this ascertainment would have to go into the wisdom of the law. This the Court cannot do without doing violence to the separation of governmental powers. [Angara v. Electoral Commission, 63 Phil 139 (1936); Morfe v. Mutuc, G.R. No. L-20387, January 31, 1968, 22 SCRA 424]. After assailing the inclusion of non-Muslim areas in the Organic Act for lack of basis, petitioner Mama-o would then adopt the extreme view that other non-Muslim areas in Mindanao should likewise be covered. He argues that since the Organic Act covers several non-Muslim areas, its scope should be further broadened to include the rest of the non-Muslim areas in Mindanao in order for the other non-Muslim areas denies said areas equal protection of the law, and therefore is violative of the Constitution. Petitioner's contention runs counter to the very same constitutional provision he had earlier invoked. Any determination by Congress of what areas in Mindanao should compromise the autonomous region, taking into account shared historical and cultural heritage, economic and social structures, and other relevant characteristics, would necessarily carry with it the exclusion of other areas. As earlier stated, such determination by Congress of which areas should be covered by the organic act for the autonomous region constitutes a recognized legislative prerogative, whose wisdom may not be inquired into by this Court.

Moreover, equal protection permits of reasonable classification [People v. Vera, 65 Phil. 56 (1963); Laurel v. Misa, 76 Phil. 372 (1946); J.M. Tuason and Co. v. Land tenure Administration, G.R. No. L-21064, February 18, 1970, 31 SCRA 413]. In Dumlao v. Commission on Elections G.R. No. 52245, January 22, 1980, 95 SCRA 392], the Court ruled that once class may be treated differently from another where the groupings are based on reasonable and real distinctions. The guarantee of equal protection is thus not infringed in this case, the classification having been made by Congress on the basis of substantial distinctions as set forth by the Constitution itself. Both petitions also question the validity of R.A. No. 6734 on the ground that it violates the constitutional guarantee on free exercise of religion [Art. III, sec. 5]. The objection centers on a provision in the Organic Act which mandates that should there be any conflict between the Muslim Code [P.D. No. 1083] and the Tribal Code (still be enacted) on the one had, and the national law on the other hand, the Shari'ah courts created under the same Act should apply national law. Petitioners maintain that the islamic law (Shari'ah) is derived from the Koran, which makes it part of divine law. Thus it may not be subjected to any "man-made" national law. Petitioner Abbas supports this objection by enumerating possible instances of conflict between provisions of the Muslim Code and national law, wherein an application of national law might be offensive to a Muslim's religious convictions. As enshrined in the Constitution, judicial power includes the duty to settle actual controversies involving rights which are legally demandable and enforceable. [Art. VIII, Sec. 11. As a condition precedent for the power to be exercised, an actual controversy between litigants must first exist [Angara v. Electoral Commission, supra; Tan v. Macapagal, G.R. No. L34161, February 29, 1972, 43 SCRA 677]. In the present case, no actual controversy between real litigants exists. There are no conflicting claims involving the application of national law resulting in an alleged violation of religious freedom. This being so, the Court in this case may not be called upon to resolve what is merely a perceived potential conflict between the provisions the Muslim Code and national law. Petitioners also impugn the constitutionality of Article XIX, section 13 of R.A. No. 6734 which, among others, states: . . . Provided, That only the provinces and cities voting favorably in such plebiscite shall be included in the Autonomous Region in Muslim Mindanao. The provinces and cities which in the plebiscite do not vote for inclusion in the Autonomous Region shall remain in the existing administrative regions:Provided, however, that the President

may, by administrative determination, merge the existing regions. According to petitioners, said provision grants the President the power to merge regions, a power which is not conferred by the Constitution upon the President. That the President may choose to merge existing regions pursuant to the Organic Act is challenged as being in conflict with Article X, Section 10 of the Constitution which provides: No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. It must be pointed out that what is referred to in R.A. No. 6734 is the merger of administrative regions, i.e. Regions I to XII and the National Capital Region, which are mere groupings of contiguous provinces for administrative purposes [Integrated Reorganization Plan (1972), which was made as part of the law of the land by Pres. dec. No. 1, Pres. Dec. No. 742]. Administrative regions are not territorial and political subdivisions like provinces, cities, municipalities and barangays [see Art. X, sec. 1 of the Constitution]. While the power to merge administrative regions is not expressly provided for in the Constitution, it is a power which has traditionally been lodged with the President to facilitate the exercise of the power of general supervision over local governments [see Art. X, sec. 4 of the Constitution]. There is no conflict between the power of the President to merge administrative regions with the constitutional provision requiring a plebiscite in the merger of local government units because the requirement of a plebiscite in a merger expressly applies only to provinces, cities, municipalities or barangays, not to administrative regions. Petitioners likewise question the validity of provisions in the Organic Act which create an Oversight Committee to supervise the transfer to the autonomous region of the powers, appropriations, and properties vested upon the regional government by the organic Act [Art. XIX, Secs. 3 and 4]. Said provisions mandate that the transfer of certain national government offices and their properties to the regional government shall be made pursuant to a schedule prescribed by the Oversight Committee, and that such transfer should be accomplished within six (6) years from the organization of the regional government. It is asserted by petitioners that such provisions are unconstitutional because while the Constitution states that the creation of the autonomous region shall take effect upon approval in a plebiscite, the requirement of organizing an

Oversight committee tasked with supervising the transfer of powers and properties to the regional government would in effect delay the creation of the autonomous region. Under the Constitution, the creation of the autonomous region hinges only on the result of the plebiscite. if the Organic Act is approved by majority of the votes cast by constituent units in the scheduled plebiscite, the creation of the autonomous region immediately takes effect delay the creation of the autonomous region. Under the constitution, the creation of the autonomous region hinges only on the result of the plebiscite. if the Organic Act is approved by majority of the votes cast by constituent units in the scheduled plebiscite, the creation of the autonomous region immediately takes effect. The questioned provisions in R.A. No. 6734 requiring an oversight Committee to supervise the transfer do not provide for a different date of effectivity. Much less would the organization of the Oversight Committee cause an impediment to the operation of the Organic Act, for such is evidently aimed at effecting a smooth transition period for the regional government. The constitutional objection on this point thus cannot be sustained as there is no bases therefor. Every law has in its favor the presumption of constitutionality [Yu Cong Eng v. Trinidad, 47 Phil. 387 (1925); Salas v. Jarencio, G.R. No. L-29788, August 30, 1979, 46 SCRA 734; Morfe v. Mutuc, supra; Peralta v. COMELEC, G.R. No. L-47771, March 11, 1978, 82 SCRA 30]. Those who petition this Court to declare a law, or parts thereof, unconstitutional must clearly establish the basis for such a declaration. otherwise, their petition must fail. Based on the grounds raised by petitioners to challenge the constitutionality of R.A. No. 6734, the Court finds that petitioners have failed to overcome the presumption. The dismissal of these two petitions is, therefore, inevitable. WHEREFORE, the petitions are DISMISSED for lack of merit. SO ORDERED. G.R. No. 89604 April 20, 1990 ROQUE FLORES, petitioner, vs. COMMISSION ON ELECTIONS , NOBELITO RAPISORA, respondents. Felix B. Claustro for petitioner. Romeo B. Astudillo for private respondent.

CRUZ, J.: Petitioner Roque Flores was proclaimed by the board of canvassers as having received the highest number of votes for kagawad in the elections held on 28 March 1989, in Barangay Poblacion, Tayum, Abra, and thus became punong barangay in accordance with Section 5 of Rep. Act No. 6679, providing in part as follows Sec. 5. There shall be a sangguniang barangay in every duly constituted barangay which shall be the legislative body and shall be composed of seven (7) kagawads to be elected by the registered voters of the barangay. The candidate who obtains the highest number of votes shall be the punong barangay . . . . However, his election was protested by Nobelito Rapisora, herein private respondent, who placed second in the election with 463 votes, or one vote less than the petitioner. The Municipal Circuit Trial Court of Tayum, Abra, sustained Rapisora and installed him as punong barangay in place of the petitioner after deducting two votes as stray from the latter's total. 1 Flores appealed to the Regional Trial Court of Abra, which affirmed the challenged decision in toto. Judge Francisco O. Villarta, Jr. agreed that the four votes cast for "Flores" only, without any distinguishing first name or initial, should all have been considered invalid instead of being divided equally between the petitioner and Anastacio Flores, another candidate for kagawad. The judge held that the original total credited to the petitioner was correctly reduced by 2, to 462, demoting him to second place. 2 The petitioner then went to the Commission on Elections, but his appeal was dismissed on the ground that the public respondent had no power to review the decision of the regional trial court. This ruling, embodied in its resolution dated 3 August 1989, 3 was presumably based on Section 9 of Rep. Act No. 6679, which was quoted therein in full as follows: Sec. 9. A sworn petition contesting the election of a barangay official may be filed with the proper municipal or metropolitan trial court by any candidate who has duly filed a certificate of candidacy and has been voted for a barangay office within ten (10) days after the proclamation of the result of the election. The trial court shall decide the election protest within (30) days after the filing thereof. The decision of the municipal or metropolitan trial court may be appealed within ten (10) days from receipt of a copy thereof by the

aggrieved party to the regional trial court which shall decide the issue within thirty (30) days from receipt of the appeal and whose decision on questions of fact shall be final and non-appealable. For purposes of the barangay elections, no pre-proclamation cases shall be allowed. In this petition for certiorari, the Commission on Elections is faulted for not taking cognizance of the petitioner's appeal and for not ruling that all the four questioned votes should have been credited to him under the equity of the incumbent rule in Section 211(2) of the Omnibus Election Code. The Commission on Elections was obviously of the opinion that it could not entertain the petitioner's appeal because of the provision in Rep. Act No. 6679 that the decision of the regional trial court in a protest appealed to it from the municipal trial court in barangay elections "on questions of fact shall be final and non-appealable." While supporting the dismissal of the appeal, the Solicitor General justifies this action on an entirely different and more significant ground, to wit, Article IX-C, Section 2(2) of the Constitution, providing that the Commission on Elections shall: (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involvingelective barangay officials decided by trial courts of limited jurisdiction. (Emphasis supplied.) Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. His submission is that municipal or metropolitan courts being courts of limited jurisdiction, their decisions in barangay election contests are subject to the exclusive appellate jurisdiction of the Commission on Elections under the afore-quoted section. Hence, the decision rendered by the Municipal Circuit Trial Court of Tayum, Abra, should have been appealed directly to the Commission on Elections and not to the Regional Trial Court of Abra. It is recalled that in the case of Luison v. Garcia, 4 respondent Garcia's certificate of candidacy was declared invalid by the Commission on Elections for non-compliance with the statutory requirements. What he did was appeal to the court of first instance, which held that the certificate was merely defective but not altogether null and void. Garcia continued his

candidacy on the strength of this ruling and was subsequently proclaimed elected, thereafter assuming office as municipal mayor. In sustaining the quo warranto petition filed against him by Luison, this Court declared that all the votes cast for Garcia should have been rejected as stray because he did not have a valid certificate of candidacy. The action of the Commission on Elections should have been appealed not to the court of first instance but to the Supreme Court as required by the 1935 Constitution. Since this was not done, the resolution of the Commission on Elections rejecting Garcia's certificate remained valid on the date of the election and rendered all votes cast for him as stray. The doctrine in that case, although laid down under the 1935 Constitution, is still controlling under the present charter as the interpretation by this Court of Article IX-C, Section 2(2). Accordingly, Section 9 of Rep. Act No. 6679, insofar as it provides that the decision of the municipal or metropolitan court in a barangay election case should be appealed to the regional trial court, must be declared unconstitutional. We make this declaration even if the law has not been squarely and properly challenged by the petitioner. Ordinarily, the Court requires compliance with the requisites of a judicial inquiry into a constitutional question. 5 In the case at bar, however, we feel there is no point in waiting to resolve the issue now already before us until it is raised anew, probably only in the next barangay elections. The time to resolve it is now, before such elections. We shall therefore disregard the technical obstacles in the case at bar so that the flaw in Rep. Act No. 6679 may be brought to the attention of Congress and the constitutional defect in Section 9 may be corrected. In taking this step, the Court does not disregard the fact that the petitioner was only acting in accordance with the said law when he appealed the decision of the Municipal Circuit Trial Court of Tayum to the Regional Trial Court of Abra. That is what the statute specifically directed in its Section 9 which, at the time the appeal was made, was considered constitutional. The petitioner had a light to rely on its presumed validity as everyone apparently did. Even the Congress and the Executive were satisfied that the measure was constitutional when they separately approved it after careful study. Indeed, no challenge to its validity had been lodged or even hinted not even by the public respondent as to suggest to the petitioner that he was following the wrong procedure. In fairness to him therefore, we shall consider his appeal to the Commission on Elections as having been made directly from the Municipal Circuit Trial Court of Tayum, Abra, disregarding the detour to the Regional Trial Court. Accordingly, we hold that the petitioner's appeal was validly made to the Commission on Elections under its "exclusive appellate jurisdiction over all

contests. . . involving elective barangay officials decided by trial courts of limited jurisdiction." Its decision was in turn also properly elevated to us pursuant to Article IX-A, Section 7, of the Constitution, stating that "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." Obviously, the provision of Article IX-C, Section 2(2) of the Constitution that "decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable" applies only to questions of fact and not of law. That provision was not intended to divest the Supreme Court of its authority to resolve questions of law as inherent in the judicial power conferred upon it by the Constitution. 6 We eschew a literal reading of that provision that would contradict such authority. The issue the petitioner was raising was one of law, viz., whether he was entitled to the benefits of the equity-of-the-incumbent rule, and so subject to our review. This issue was not resolved by the public respondent because it apparently believed itself to be without appellate jurisdiction over the decision of the Regional Trial Court of Abra. Considering that the public respondent has already manifested its position on this issue, as will appear presently, the Court will now rule upon it directly instead of adopting the round-about way of remanding the case to the Commission on Elections before its decision is elevated to this Court. Implementing Rep. Act No. 6679, the Commission on Elections promulgated Resolution No. 2022-A providing in Section 16(3) thereof that: Incumbent Barangay Captains, whether elected, appointed or designated shall be deemed resigned as such upon the filing of their certificates of candidacy for the office of "Kagawad," which is another office, for the March 28, 1989 barangay election. This was the reason why the Municipal Circuit Trial Court of Tayum, Abra, held that the four questioned votes cast for Flores could not be credited to either Roque Flores or Anastacio Flores and should have been regarded as stray under Section 211(1) 7 of the Omnibus Election Code. Rejecting the petitioner's claim, the court held that Roque Flores was not entitled to any of the four contested votes because he was not incumbent as punong barangay (or barangay captain, as the office was formerly called) on the date of the election.

The petitioner insists on the application to him of Section 211(2) of the Code, stating pertinently that: 2. . . . If there are two or more candidates with the same full name, first name or surname and one of them is the incumbent, and on the ballot is written only such full name, first name or surname, the vote shall be counted in favor of the incumbent. because he should not have been considered resigned but continued to be entitled to the office of punong barangay under Section 8 of Rep. Act No. 6679, providing as follows: Sec. 8. Incumbent elective officials running for the same office shall not be considered resigned upon the filing of then, certificates of candidacy. They shall continue to hold office until their successors shall have been elected and qualified. The petitioner contends that the afore-quoted administrative regulation is inofficious because the forfeiture prescribed is not authorized by the statute itself and beyond the intentions of the legislature. Moreover, the enforcement of the rule would lead to discrimination against the punong barangay and in favor of the otherkagawads, who, unlike him, could remain in office while running for re-election and, additionally, benefit from the equity-of-the-incumbent rule. Alternatively, the petitioner argues that, assuming the regulation to be valid he was nonetheless basically also akagawad as he was a member of the sangguniang barangay like the other six councilmen elected with him in 1982. In fact, Section 5 of the Rep. Act No. 6679 also speaks of seven kagawads, the foremost of whom shall again be the punong barangay. He concludes that he should thus be regarded as running for the same office and therefore not considered resigned when he filed his certificate of candidacy for kagawad. The Court does not agree. It seems to us that the challenged resolution quite clearly expresses the mandate of the above-quoted Section 8 that all incumbent elected officials should not be considered resigned upon the filing of their certificates of candidacy as long as they were running for the same position. The purpose of the resolution was merely to implement this intention, which was clearly applicable not only to the ordinary members of the sangguniang barangay but also to the punong barangay.

As for the questioned authority, this is found in Section 52 of the Omnibus Election Code, which empowers the public respondent to "promulgate rules and regulations implementing the provisions of this Code or other laws which the Commission is required to enforce and administer. . . ." The justification given by the resolution is that the position of punong barangay is different from that of kagawad as in fact it is. There should be no question that the punong barangay is an essentially executive officer, as the enumeration of his functions in Section 88 of the Local Government Code will readily show, unlike the kagawad, who is vested with mainly legislative functions (although he does assist the punong barangay in the administration of the barangay). Under Rep. Act No. 6679, the person who wins the highest number of votes as a kagawadbecomes by operation of law the punong barangay, or the executive of the political unit. In the particular case of the petitioner, it should be noted that he was in fact not even elected in 1982 as one of the six councilmen but separately as the barangay captain. He was thus correctly deemed resigned upon his filing of a certificate of candidacy for kagawad in 1989, as this was not the position he was holding, or was incumbent in, at the time he filed such certificate. It is worth stressing that under the original procedure followed in the 1982 barangay elections, the petitioner was elected barangay captain directly by the voters, separately from the candidates running for mere membership in the sangguniang barangay. The offices of the barangay captain and councilmen were both open to the candidates, but they could run only for one or the other position and not simultaneously for both. By contrast, the candidate under the present law may aspire for both offices, but can run only for one, to wit, that of kagawad. While campaigning for this position, he may hope and actually strive to win the highest number of votes as this would automatically make him the punong barangay. In this sense, it may be said that he is a candidate for both offices. Strictly speaking, however, the only office for which he may run and for which a certificate of candidacy may be admitted is that of kagawad. It follows that the petitioner cannot insist that he was running not for kagawad only but ultimately also for punong barangay in the 28 March 1989 election. In fact, his certificate of candidacy was for kagawad and not for punong barangay. As the basic position being disputed in the barangay election was that of kagawad, that of punong barangay being conferred only by operation of law on the candidate placing first, the petitioner had to forfeit his position of punong barangay, which he was holding when he presented his candidacy for kagawad. Consequently, he cannot be credited with the four contested votes for Flores on the erroneous ground that he was still incumbent as punong barangay on the day of the election.

The petitioner argues that he could not have run for reelection as punong barangay because the office was no longer subject to separate or even direct election by the voters. That may be so, but this argument goes to the wisdom of the law, not its validity, and is better addressed to the legislature. From the strictly legal viewpoint, the statute does not offend the equal protection clause, as there are, to repeat, substantial distinctions between the offices of punong barangay and kagawad. Precisely , the reason for divesting the punong barangay of his position was to place him on the same footing as the other candidates by removing the advantages he would enjoy if he were to continue as punong barangay while running for kagawad. In sum, we hold that Section 9 of Rep. Act No. 6679 is constitutionally defective and must be struck down, but the challenged resolution must be sustained as a reasonable and valid implementation of the said statute. The petitioner was no longer the incumbent punong barangay on election day and so was not entitled to the benefits of the equity-of-the-incumbent rule. The consequence is that the four votes claimed by him were correctly considered stray, making the private respondent the punong barangay of Poblacion, Tayum, Abra, for having received the highest number of votes for kagawad. It remains to stress that although the elections involved herein pertain to the lowest level of our political organization, this fact has not deterred the highest tribunal from taking cognizance of this case and discussing it at length in this opinion. This only goes to show that as long as a constitutional issue is at stake, even the barangayand its officers, for all their humility in the political hierarchy, deserve and will get the full attention of this Court. WHEREFORE, the petition is DISMISSED. Judgment is hereby rendered: 1. Declaring Section 9 of Rep. Act No. 6679 UNCONSTITUTIONAL insofar as it provides that barangay election contests decided by the municipal or metropolitan trial court shall be appealable to the regional trial court; 2. Declaring valid Section 16(3) of Com. Res. No. 2022-A dated January 5, 1989; and 3. Declaring private respondent Nobelito Rapisora the duly elected punong barangay of Poblacion, Tayum, Abra. No pronouncement as to costs. SO ORDERED.

G.R. No. L-60258 January 31, 1984 SAMUEL C. OCCE, petitioner, vs. THE COMMISSION ON ELECTIONS, respondent. Samuel Occea in his own behalf. The Solicitor General for respondent.

PLANA, J.: This petition for prohibition seeks the declaration as unconstitutional of Sections 4 and 22 of Batas Pambansa Blg. 222, otherwise known as the Barangay Election Act of 1982, insofar as it prohibits any candidate in the Barangay election of May 17, 1982 "from representing or allowing himself to be represented as a candidate of any political party ... or prohibits a political party, political group, political committee ... from intervening in the nomination of a candidate in the barangay election or in the filing of his certificate of candidacy, or giving aid or support directly or indirectly, material or otherwise, favorable to or against his campaign for election." On this basis, it is prayed that ... judgment be rendered declaring the 1982 Barangay elections NULL AND VOID ab initio, for being UNCONSTITUTIONAL, and directing the holding of new barangay elections without any ban on the involvement of political parties, political committees, political organizations and other political group. 1 The constitutionality of the prohibition vis-a-vis non-political groups is not challenged. This Court has considered the Comments of the Solicitor General as an Answer and deemed the case submitted for decision after the oral arguments on May 5, 1982. 2 The legal provisions in question read as follows: SEC. 4. Conduct of elections. The barangay election shall be, non-partisan and shall be conducted in an expeditious and inexpensive manner.

No person who filed a certificate of candidacy shall represent or allow himself to be represented as a candidate of any political party or any other organization; and no political party, political group, political committee, civic religious, professional or other organization or organized group of whatever nature shall intervene in his nomination or in the filing of his certificate of candidacy or give aid or support directly or indirectly, material or otherwise, favorable to or against his campaign for election: Provided, That this provision shall not apply to the members of the family of a candidate within the fourth civil degree of consanguinity or affinity prior to the personal campaign staff of the candidate which shall not be more than one for every one hundred registered voters in his barangay: Provided, further, That without prejudice to any liability that may be incurred, no permit to hold a public meeting shall be denied on the ground that the provisions of this paragraph may or will be violated. Nothing in this section, however, shall be construed as in any manner affecting or constituting an impairment of the freedom of individuals to support or oppose any candidate for any barangay office. SEC. 22, Penalties. Violations of this Act shall constitute prohibited acts under Sec. 178 of the 1978 Election Code and shag be prosecuted and penalized in accordance with the provisions of said code. The petitioner contends (a) That the ban on the intervention of political parties in the election of barangay officials is violative of the constitutional guarantee of the right to form associations arid societies for purposes not contrary to law. (b) That the ban is incompatible with a democracy and a parliamentary system of government. I The right to form associations or societies for purposes not contrary to law is neither absolute nor illimitable; it is always subject to the pervasive and dominant police power of the state and may constitutionally be regulated or curtailed to serve appropriate and important public interests. (Gonzales vs. Comelec, 27 SCRA 835: Imbong vs. Comelec, 35 SCRA 28). Whether a

restriction imposed is constitutionally permissible or not depends upon the circumstances of each case. Examining Section 4 of the Barangay Election Act of 1982, be it noted that thereunder, the right to organize is intact. Political parties may freely be formed although there is a restriction on their activities, i.e., their intervention in the election of barangay officials on May 17, 1982 is prescribed. But the ban is narrow, not total. It operates only on concerted or group action of political parties. Members of political and kindred organizations, acting individually, may intervene in the barangay election. As the law says: "Nothing (therein) ... shall be construed as in any manner affecting or constituting an impairment of the freedom of individuals to support or oppose any candidate for any barangay office." Moreover, members of the family of a candidate within the fourth civil degree of consanguinity or affinity as well as the personal campaign staff of a candidate (not more than 1 for every 100 registered voters in Ms barangay) can engage in individual or group action to promote the election of their candidate. Aside from the narrow character of the restriction thus impose, the limitation is essential to meet the felt need of the hour. Explaining the reason for the non-partisan character of the barangay election when he sponsored Parliamentary Bill 2125 which later became BP Blg. 222, Minister of State for Political Affairs Leonardo B. Perez said Mr. Speaker, we must not lose sight of the fact that the barangay is the basic unit not only of our social structure but also of our political structure. As much as possible, we believe that it would be a more prudent policy to insulate the barangays from the influence of partisan politics. Mr. Speaker, we have seen the salutary results of the nonpartisan election of the members of the Constitutional Convention of 1971. We all recall, Mr. Speaker, that the election of Concon delegates was non-partisan and, therefore, when history will judge that Constitutional Convention, it can be safely stated that Constitutional Convention did not belong to any political party because it was chosen under a non-partisan method; that it was a constitutional convention that was really of the people, for the people and by the people. So we should not be concerned and our attention should not be focused on the process but on the after effects of the process. We would like to say later on, Mr. Speaker, that the barangays, although it is true they are already considered regular units of our government, are non-partisan; they constitute the base of the pyramid of our social and

political structure, and I think that in order that base will not be subject to instability because of the influence of political forces, it is better that we elect the officials thereof through a non-partisan system. There are other reasons for insulating the barangay from the divisive and debilitating effects of a partisan political campaign. The Barangay Captain and the Barangay Council, apart from their legislative and consultative powers, also act as an agency for neutral community action such as the distribution of basic foodstuff and as an instrument in conducting plebiscites and referenda. The Barangay Captain, together with the members of the Lupon Tagapayapa appointed by him, exercises administrative supervision over the barangay conciliation panels in the latter's work of settling local disputes. The Barangay Captain himself settles or helps settle local controversies within the barangay either through mediation or arbitration. It would definitely enhance the objective and impartial discharge of their duties for barangay officials to be shielded form political party loyalty. In fine, the ban against the participation of political parties in the barangay election is an appropriate legislative response to the unwholesome effects of partisan bias in the impartial discharge of the duties imposed on the barangay and its officials as the basic unit of our political and social structure. This is not the first time that a restriction as that prescribed in Section 4 of Batas Pambansa Blg. 222 has been judicially challenged. In Imbong vs. Comelec, supra, the first paragraph of Section 8(a) of Republic Act No. 6132 was assailed as unconstitutional for allegedly being violative of the constitutional guarantees of due process, equal protection of the law, freedom of expression, freedom of assembly and freedom of association. Like Section 4 of BP Blg. 222, Section 8(a) of RA 6132 prohibited: 1. any candidate for delegate to the (Constitutional) Convention (a) from representing, or. (b) allowing himself to be represented as being a candidate of any political party or any other organization; and 2. any political party, political group, political committee, civil, religious, professional or other organization or organized group of whatever nature from (a) intervening in the nomination of any such candidate or in the filing of his certificate, or

(b) from giving aid or support directly or indirectly, material or otherwise, favorable to or against his campaign for election. In refusing to declare the assailed legal provisions as unconstitutional, this Court, speaking thru Mr. Justice Makasiar, said: The ban against all political parties or organized groups of whatever nature contained in par. 1 of Sec. 8(a), is confined to party or organization support or assistance, whether material, moral, emotional or otherwise. The very Sec. 8(a) in its proviso permits the candidate to utilize in his campaign the help of the members of his family within the fourth degree of consanguinity or affinity, and a campaign staff composed of not more than one for every ten precincts in his district. ... The right of a member of any political party or association to support him or oppose his opponent is preserved as long as such member acts individually. ... It is therefore patent that the restriction contained in Sec. 8(a) is so narrow that the basic constitutional rights themselves remain substantially intact and inviolate. And it is therefore a valid infringement of the aforesaid constitutional guarantees invoked by petitioners. ... In the said Gonzales vs. Comelec case, this Court gave 'due recognition to the legislative concern to cleanse, and if possible, render spotless, the electoral process impressed as it was by the explanation made by the author of R.A. No. 4880, Sen. Lorenzo Tanada, who appeared as amicus curiae, 'that such provisions were deemed by the legislative body to be part and parcel of the necessary and appropriate response not merely to a clear and present danger but to the actual existence of a grave and substantive evil of excessive partisanship, dishonesty and corruption as well as of violence that of late has marred election campaigns and partisan political activities in this country. lie did invite our attention likewise to the well settled doctrine that in the choice of remedies for an admitted malady requiring governmental action, on the legislature primarily rests the responsibility. Nor should the cure prescribed by it, unless clearly repugnant to fundamental rights, be ignored or disregarded. But aside from the clear and imminent danger of the debasement of the electoral process, as conceded by Senator Pelaez, the basic motivation, according to Senate Majority

Floor Leader Senator Arturo Tolentino, the sponsor of the Puyat-Tolentino amendment embodied in par. 1 of Sec. 8(a) of R.A. No. 6132, is to assure the candidates equal protection of the laws by according them equality of chances. The primary purpose of the prohibition then is also to avert the clear and present danger of another substantive evil, the denial of the equal protection of the laws. The candidates must depend on their individual merits and not on the support of political parties or organizations. Senator Tolentino and Senator Salonga emphasized that under this provision, the poor candidate has an even chance as against the rich candidate. We are not prepared to disagree with them, because such a conclusion, predicated as it is on empirical logic, finds support in our recent political history and experience. Both senators stressed that the independent candidate who wins in the election against a candidate of the major political parties, is a rare phenomenon in this country and the victory of an independent candidate mainly rests on his ability to match the resources, financial and otherwise, of the political parties or organization supporting his opponent. This position is further strengthened by the principle that the guarantee of social justice under Sec. 5, Art. 11 of the Constitution, includes the guarantee of equal opportunity, equality of political rights, and equality before the law enunciated by Mr. Justice Tuason in the case Guido vs. Rural Progress Administration. While it may be true that a party's support of a candidate is not wrong per se, it is equally true that Congress in the exercise of its broad law-making authority can declare certain acts as mala prohibitawhen justified by the exigencies of the times, One such act is the party or organization support proscribed in Sec. 8(a), which ban is a valid limitation on The freedom of association as well as expression, for the reasons aforestated. Senator Tolentino emphasized that equality of chances may be better attained by banning all organization support. xxx xxx xxx The political parties and the other organized groups have built-in advantages because of their machinery and other facilities, which, the individual candidate who is without any organization support, does no have.

The freedom of association also implies the liberty not to associate or join with others or join any existing organization. A person may run independently on his own merits without need of catering to a political party or any other association for support. And he, as much as the candidate whose candidacy does not evoke sympathy from any political party or organized group, must be afforded equal chances. As emphasized by Senators Tolentino and Salonga, this ban is to assure equal chances to a candidate with talent and imbued with patriotism as well as nobility of purpose, so that the country can utilize their services if elected. Since Section 4 of the Barangay Election Act is almost a verbatim copy of the first paragraph of Section 8(a) of Republic Act No. 6132, the quoted arguments in support of the constitutionality of the latter apply as well in support of the former. II The petitioner argues that in a democracy, all elections necessarily must be partisan. This is not so. For in a representative democracy such as ours, there is merely a guarantee of participation by the people in the affairs of government thru their chosen representatives, without assurance that in every instance concerted partisan activity in the selection of those representatives shall be allowed, unless otherwise mandated expressly or impliedly by the Constitution. The case of Imbong vs. Comelec has precisely rejected the petitioner's posture. Nor does a parliamentary system of government carry the guarantee that elections in all levels of government shall be partisan. Under the Constitution, there is an implicit guarantee of political party participation in the elections for President and members of the Batasang Pambansa. For the outcome of the elections for President determines the subsequent accreditation of political parties. The political parties whose respective candidates for President have obtained the first and second highest number of votes in the last preceding election for President under this Constitution shall be entitled to accreditation if each has obtained at least ten percent (10%) of the total number of votes cast in such election. If the candidates for President obtaining the two highest number of votes do not each obtain at least ten percent (10%) of the total number of votes cast, or in case no election for President shall as yet have been held, the Commission on Elections shall grant accreditation to

political parties as may be provided by law. (Art. XII-C Sec. 8.) On the other hand, the presence and participation of majority and minority parties are essential to the proper working of the Batasang Pambansa, the operation of which assumes that there is a ruling political party that determines the program of government and a fiscalizing political party or parties to curb possible abuses of the dominant group. Outside of the cases where the Constitution clearly requires that the selection of particular officials shall be thru the ballot and with the participation of political parties, the lawmaking body, in the exercise of its power to enact laws regulating the conduct of elections, may in our view ban or restrict partisan elections. We are not aware of any constitutional provision expressly or impliedly requiring that barangay officials shall be elected thru partisan electoral process. Indeed, it would be within the competence of the National Assembly to prescribe that the barangay captain and councilmen, rather than elected, shall be appointed by designated officials such as the City or Municipal Mayors or Provincial Governors. If barangay officials could thus be made appointive, we do not think it would be constitutionally obnoxious to prescribe that they shall be elective, but without political party or partisan involvement in the process in order to promote objectivity and lack of partisan bias in the performance of their duties that are better discharged in the absence of political attachment. WHEREFORE, the petition is denied for lack of merit. No costs. SO ORDERED.