Mendoza vs.

COMELEC
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 191084 March 25, 2010
JOSELITO R. MENDOZA, Petitioner,
vs.
COMMISSION ON ELECTIONS AND ROBERTO M. PAGDANGANAN, Respondents.
D E C I S I O N
PEREZ, J .:
When the language of the law is clear and explicit, there is no room for interpretation, only application. And if statutory
construction be necessary, the statute should be interpreted to assure its being in consonance with, rather than
repugnant to, any constitutional command or prescription.
1
It is upon these basic principles that the petition must be
granted.
The factual and procedural antecedents are not in dispute.
Petitioner Joselito R. Mendoza was proclaimed the winner of the 2007 gubernatorial election for the province of
Bulacan, besting respondent Roberto M. Pagdanganan by a margin of 15,732 votes. On 1 June 2007, respondent filed
the Election Protest which, anchored on the massive electoral fraud allegedly perpetrated by petitioner, was raffled to
the Second Division of the Commission on Elections (COMELEC) as EPC No. 2007-44. With petitioners filing of his
Answer with Counter-Protest on 18 June 2007, the COMELEC proceeded to conduct the preliminary conference and to
order a revision of the ballots from the contested precincts indicated in said pleadings.
Upon the evidence adduced and the memoranda subsequently filed by the parties, the COMELEC Second Division
went on to render the 1 December 2009 Resolution, which annulled and set aside petitioners proclamation as governor
of Bulacan and proclaimed respondent duly elected to said position by a winning margin of 4,321 votes. Coupled with a
directive to the Department of Interior and Local Government to implement the same, the resolution ordered petitioner
to immediately vacate said office, to cease and desist from discharging the functions pertaining thereto and to cause a
peaceful turn-over thereof to respondent.
Dissatisfied, petitioner filed a Motion for Reconsideration of the foregoing resolution with the COMELEC En Banc.
Against respondents Motion for Execution of Judgment Pending Motion for Reconsideration, petitioner also filed an
Opposition to the Motion for Execution before the COMELEC Second Division. On 8 February 2010, however, the
COMELEC En Banc issued a Resolution, effectively disposing of the foregoing motions/incidents in this wise:
WHEREFORE, in view of the foregoing, the Commission En Banc DENIES the Motion for Reconsideration for lack of
merit. The Resolution of the Commission (Second Division) promulgated on December 1, 2009 ANNULLING the
proclamation of JOSELITO R. MENDOZA as the duly elected Governor of Bulacan and DECLARING ROBERTO M.
PAGDANGANAN as duly elected to said Office is AFFIRMED with modification.
Considering the proximity of the end of the term of office involved, this Resolution is declared immediately executory.
ACCORDINGLY, the Commission En Banc hereby ISSUES a WRIT OF EXECUTION directing the Provincial Election
Supervisor of Bulacan, in coordination with the DILG Provincial Operations Officer to implement the Resolution of the
Commission (Second Division) dated December 1, 2009 and this Resolution of the Commission En Banc by ordering
JOSELITO R. MENDOZA to CEASE and DESIST from performing the functions of Governor of the Province of Bulacan
and to VACATE said office in favor of ROBERTO M. PAGDANGANAN.
Mendoza vs. COMELEC
Let a copy of this Resolution be furnished the Secretary of the Department of Interior and Local Government, the
Provincial Election Supervisor of Bulacan, and the DILG Provincial Operations Officer of the Province of Bulacan.
(Underscoring supplied)
On 11 February 2010, petitioner filed before the COMELEC an Urgent Motion to Recall the Resolution Promulgated on
February 8, 2010 on the following grounds: (a) lack of concurrence of the majority of the members of the Commission
pursuant to Section 5, Rule 3 of the COMELEC Rules of Procedure; (b) lack of re-hearing pursuant to Section 6, Rule
18 of the Rules; and (c) lack of notice for the promulgation of the resolution pursuant to Section 5, Rule 18 of said
Rules. Invoking Section 13, Rule 18 of the same Rules, petitioner additionally argued that the resolution pertained to an
ordinary action and, as such, can only become final and executory after 30 days from its promulgation.
On 12 February 2010, petitioner filed the instant Petition for Certiorari with an Urgent Prayer for the Issuance of a
Temporary Restraining Order and/or a Status Quo Order and Writ of Preliminary Injunction. Directed against the 8
February 2010 Resolution of the COMELEC En Banc, the petition is noticeably anchored on the same grounds raised
in petitioners urgent motion to recall the same resolution before the COMELEC. In addition, the petitioner disputes the
appreciation and result of the revision of the contested ballots.
In the meantime, it appears that the COMELEC En Banc issued a 10 February 2010 Order, scheduling the case for re-
hearing on 15 February 2010, on the ground that "there was no majority vote of the members obtained in the
Resolution of the Commission En Banc promulgated on February 8, 2010." At said scheduled re-hearing, it further
appears that the parties agreed to submit the matter for resolution by the COMELEC En Banc upon submission of their
respective memoranda, without further argument. As it turned out, the deliberations which ensued again failed to
muster the required majority vote since, with three (3) Commissioners not taking part in the voting, and only one dissent
therefrom, the assailed 1 December 2009 Resolution of the COMELEC Second Division only garnered three
concurrences.
In their respective Comments thereto, both respondent and the Office of the Solicitor General argue that, in addition to
its premature filing, the petition at bench violated the rule against forum shopping. Claiming that he received the 10
February 2010 Order of the COMELEC En Banc late in the morning of 12 February 2010 or when the filing of the
petition was already underway, petitioner argued that: (a) he apprised the Court of the pendency of his Urgent Motion to
Recall the Resolution Promulgated on 8 February 2010; and, (b) that the writ of execution ensconced in said resolution
compelled him to resort to the petition for certiorari before us.
On 4 March 2010, the COMELEC En Banc issued an Order for the issuance of a Writ of Execution directing the
implementation of the 1 December 2009 Resolution of the COMELEC Second Division. While the COMELEC Electoral
Contests Adjudication Department (ECAD) issued the corresponding Writ of Execution on 5 March 2010, the record
shows that COMELEC En Banc issued an Order on the same date, directing the ECAD to deliver said 4 March 2010
Order and 5 March 2010 Writ of Execution by personal service to the parties. Aggrieved, petitioner filed the following
motions with the COMELEC En Banc on 5 March 2010, viz.: (a) Urgent Motion to Declare Null and Void and Recall
Latest En Banc Resolution Dated March 4, 2010; and, (b) Urgent Motion to Set Aside 4 March 2010 En Banc
Resolution Granting Protestants Motion for Execution Pending Motion for Reconsideration.
On 8 March 2010, petitioner filed before us a Supplement to the Petition with a Most Urgent Reiterating Motion for the
Issuance of a Temporary Restraining Order or a Status Quo Order. Contending that respondents protest should have
been dismissed when no majority vote was obtained after the re-hearing in the case, petitioner argues that: (a) the 4
March 2010 Order and 5 March 2010 Writ of Execution are null and void; (b) no valid decision can be rendered by the
COMELEC En Banc without the appreciation of the original ballots; (c) the COMELEC ignored the Courts ruling in the
recent case of Corral v. Commission on Elections;
2
and (d) the foregoing circumstances are indicative of the
irregularities which attended the adjudication of the case before the Division and En Banc levels of the COMELEC.
Despite receipt of respondents Most Respectful Urgent Manifestation which once again called attention to petitioners
supposed forum shopping, the Court issued a Resolution dated 9 March 2010 granting the Status Quo Ante Order
sought in the petition. With respondents filing of a Manifestation and Comment to said supplemental pleading on 10
March 2010, petitioner filed a Manifestation with Motion to Appreciate Ballots Invalidated as Written by One Person and
Marked Ballot on 12 March 2010.
Mendoza vs. COMELEC
The submissions, as measured by the election rules, dictate that we grant the petition, set aside and nullify the assailed
resolutions and orders, and order the dismissal of respondents election protest.
The Preliminaries
More than the justifications petitioner proffers for the filing of the petition at bench, the public interest involved in the
case militates against the dismissal of the pleading on technical grounds like forum shopping. On the other hand, to rule
that petitioner should have filed a new petition to challenge the 4 March 2010 Order of the COMELEC En Banc is to
disregard the liberality traditionally accorded amended and supplemental pleadings and the very purpose for which
supplemental pleadings are allowed under Section 6, Rule 10 of the 1997 Rules of Civil Procedure.
3
More importantly,
such a course of action would clearly be violative of the injunction against multiplicity of suits enunciated in a
long catena of decisions handed down by this Court.
The Main Matter
Acting on petitioners motion for reconsideration of the 1 December 2009 Resolution issued by the COMELEC Second
Division, the COMELEC En Banc, as stated, initially issued the Resolution dated 8 February 2010, denying the motion
for lack of merit and declaring the same resolution immediately executory. However, even before petitioners filing of his
Urgent Motion to Recall the Resolution Promulgated on 8 February 2010 and the instant Petition for Certiorari with an
Urgent Prayer for the Issuance of a Temporary Restraining Order and/or a Status Quo Order and Writ of Preliminary
Injunction, the record shows that the COMELEC En Banc issued the 10 February 2010 Resolution, ordering the re-
hearing of the case on the ground that "there was no majority vote of the members obtained in the Resolution of the
Commission En Banc promulgated on February 8, 2010." Having conceded one of the grounds subsequently raised in
petitioners Urgent Motion to Recall the Resolution Promulgated on February 8, 2010, the COMELEC En Banc
significantly failed to obtain the votes required under Section 5(a), Rule 3 of its own Rules of Procedure
4
for a second
time.
The failure of the COMELEC En Banc to muster the required majority vote even after the 15 February 2010 re-hearing
should have caused the dismissal of respondents Election Protest. Promulgated on 15 February 1993 pursuant to
Section 6, Article IX-A and Section 3, Article IX-C of the Constitution, the COMELEC Rules of Procedure is clear on this
matter. Without any trace of ambiguity, Section 6, Rule 18 of said Rule categorically provides as follows:
Sec. 6. Procedure if Opinion is Equally Divided. When the Commission en banc is equally divided in opinion, or the
necessary majority cannot be had, the case shall be reheard, and if on rehearing no decision is reached, the action or
proceeding shall be dismissed if originally commenced in the Commission; in appealed cases, the judgment or order
appealed from shall stand affirmed; and in all incidental matters, the petition or motion shall be denied.
The propriety of applying the foregoing provision according to its literal tenor cannot be gainsaid. As one pertaining to
the election of the provincial governor of Bulacan, respondents Election Protest was originally commenced in the
COMELEC, pursuant to its exclusive original jurisdiction over the case. Although initially raffled to the COMELEC
Second Division, the elevation of said election protest on motion for reconsideration before the Commission En Banc
cannot, by any stretch of the imagination, be considered an appeal. Tersely put, there is no appeal within the
COMELEC itself. As aptly observed in the lone dissent penned by COMELEC Commissioner Rene V. Sarmiento,
respondents Election Protest was filed with the Commission "at the first instance" and should be, accordingly,
considered an action or proceeding "originally commenced in the Commission."
The dissent reads Section 6 of COMELEC Rule 18 to mean exactly the opposite of what it expressly states. Thus was
made the conclusion to the effect that since no decision was reached by the COMELEC En Banc, then the decision of
the Second Division should stand, which is squarely in the face of the Rule that when the Commission En Banc is
equally divided in opinion, or the necessary majority cannot be had, the case shall be re-heard, and if on re-hearing, no
decision is reached, the action or proceeding shall be dismissed if originally commenced in the Commission. The
reliance is on Section 3, Article IX(C) of the Constitution which provides:
Section 3. The Commission on Elections may sit En Banc or in two divisions, and shall promulgate its rules of
procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election
Mendoza vs. COMELEC
cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by
the Commission En Banc.
The dissent reasons that it would be absurd that for a lack of the necessary majority in the motion for reconsideration
before the COMELEC En Banc, the original protest action should be dismissed as this would render nugatory the
constitutional mandate to authorize and empower a division of the COMELEC to decide election cases.
We cannot, in this case, get out of the square cover of Section 6, Rule 18 of the COMELEC Rules. The provision is not
violative of the Constitution.
The Rule, in fact, was promulgated obviously pursuant to the Constitutional mandate in the first sentence of Section 3
of Article IX(C). Clearly too, the Rule was issued "in order to expedite disposition of election cases" such that even the
absence of a majority in a Commission En Banc opinion on a case under reconsideration does not result in a non-
decision. Either the judgment or order appealed from "shall stand affirmed" or the action originally commenced in the
Commission "shall be dismissed."
It is easily evident in the second sentence of Section 3 of Article IX(C) that all election cases before the COMELEC are
passed upon in one integrated procedure that consists of a hearing and a decision "in division" and when necessitated
by a motion for reconsideration, a decision "by the Commission En Banc."
What is included in the phrase "all such election cases" may be seen in Section 2(2) of Article IX(C) of the Constitution
which states:
Section 2. The Commission on Elections shall exercise the following powers and functions:
xxxx
(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 of
officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of
limited jurisdiction.
Section 2(2) read in relation to Section 3 shows that however the jurisdiction of the COMELEC is involved, either in the
exercise of "exclusive original jurisdiction" or an "appellate jurisdiction," the COMELEC will act on the case in one whole
and single process: to repeat, in division, and if impelled by a motion for reconsideration, en banc.
There is a difference in the result of the exercise of jurisdiction by the COMELEC over election contests. The difference
inheres in the kind of jurisdiction invoked, which in turn, is determined by the case brought before the COMELEC.
When a decision of a trial court is brought before the COMELEC for it to exercise appellate jurisdiction, the division
decides the appeal but, if there is a motion for reconsideration, the appeal proceeds to the banc where a majority is
needed for a decision. If the process ends without the required majority at the banc, the appealed decision stands
affirmed. Upon the other hand, and this is what happened in the instant case, if what is brought before the COMELEC
is an original protest invoking the original jurisdiction of the Commission, the protest, as one whole process, is first
decided by the division, which process is continued in the banc if there is a motion for reconsideration of the division
ruling. If no majority decision is reached in the banc, the protest, which is an original action, shall be dismissed. There is
no first instance decision that can be deemed affirmed.
It is easy to understand the reason for the difference in the result of the two protests, one as original action and the
other as an appeal, if and when the protest process reaches the COMELEC En Banc. In a protest originally brought
before the COMELEC, no completed process comes to the banc. It is the banc which will complete the process. If, at
that completion, no conclusive result in the form of a majority vote is reached, the COMELEC has no other choice
except to dismiss the protest. In a protest placed before the Commission as an appeal, there has been a completed
proceeding that has resulted in a decision. So that when the COMELEC, as an appellate body, and after the appellate
process is completed, reaches an inconclusive result, the appeal is in effect dismissed and resultingly, the decision
appealed from is affirmed.1avvphi1
Mendoza vs. COMELEC
To repeat, Rule 18, Section 6 of the COMELEC Rules of Procedure follows, is in conformity with, and is in
implementation of Section 3 of Article IX(C) of the Constitution.
Indeed, the grave abuse of discretion of the COMELEC is patent in the fact that despite the existence in its books of the
clearly worded Section 6 of Rule 18, which incidentally has been acknowledged by this Court in the recent case of
Marcoleta v. COMELEC,
5
it completely ignored and disregarded its very own decree and proceeded with the
questioned Resolution of 8 February 2010 and Order of 4 March 2010, in all, annulling the proclamation of petitioner
Joselito R. Mendoza as the duly elected governor of Bulacan, declaring respondent Roberto M. Pagdanganan as the
duly elected governor, and ordering petitioner Joselito R. Mendoza to cease and desist from performing the functions of
the Governor of Bulacan and to vacate said office in favor of respondent Roberto M. Pagdanganan.1avvphi 1
The grave abuse of discretion of the COMELEC is underscored by the fact that the protest that petitioner Pagdanganan
filed on 1 June 2007 overstayed with the COMELEC until the present election year when the end of the term of the
contested office is at hand and there was hardly enough time for the re-hearing that was conducted only on 15
February 2010. As the hearing time at the division had run out, and the re-hearing time at the banc was fast running
out, the unwanted result came about: incomplete appreciation of ballots; invalidation of ballots on general and
unspecific grounds; unrebutted presumption of validity of ballots.
WHEREFORE, the petition is GRANTED. The questioned Resolution of the COMELEC promulgated on 8 February
2010 in EPC No. 2007-44 entitled "Roberto M. Pagdanganan v. Joselito R. Mendoza," the Order issued on 4 March
2010, and the consequent Writ of Execution dated 5 March 2010 are NULLIFIED and SET ASIDE. The election protest
of respondent Roberto M. Pagdanganan is hereby DISMISSED.
SO ORDERED
Buac vs. COMELEC


Buac v. COMELEC

FACTS:

On April 25, 1998, the COMELEC conducted a plebiscite in Taguig, Metro Manila on the conversion of this municipality into
a highly urbanized city as mandated by Republic Act No. 8487. The residents of Taguig were asked this question: Do you
approve the conversion of the Municipality of Taguig, Metro Manila into a highly urbanized city to be known as the City of
Taguig, as provided for in Republic Act No. 8487?

On April 26, 1998, the Plebiscite Board of Canvassers (PBOC), without completing the canvass of sixty-four (64) other
election returns, declared that the No votes won, indicating that the people rejected the conversion of Taguig into a
city.

However, upon order of the COMELEC en banc, the PBOC reconvened and completed the canvass of the plebiscite returns,
eventually proclaiming that the negative votes still prevailed.

Alleging that fraud and irregularities attended the casting and counting of votes, private respondents, filed with the
COMELEC a petition seeking the annulment of the announced results of the plebiscite with a prayer for revision and
recount of the ballots. The COMELEC treated the petition as an election protest, docketed as EPC No. 98-102. It was
raffled to the Second Division.

Petitioner intervened in the case. He then filed a motion to dismiss the petition on the ground that the COMELEC has no
jurisdiction over an action involving the conduct of a plebiscite. He alleged that a plebiscite cannot be the subject of an
election protest.

The COMELEC Second Division issued a Resolution granting petitioners motion and dismissing the petition to annul the
results of the Taguig plebiscite for lack of jurisdiction. The COMELEC en banc affirmed this Resolution.

Accordingly, on April 19, 2004, the COMELEC Second Division issued an Order in EPC No. 98-102 constituting the
committees for the revision/recount of the plebiscite ballots.

On April 28, 2004, the revision/recount proceedings commenced and upon its termination, the Committees on Revision
submitted their complete and final reports.

Thereafter, the COMELEC Second Division set the case for hearing. As no witnesses were presented by petitioner, the
parties were directed to submit their respective memoranda, which they did.

Petitioner contends that the revision of the plebiscite ballots cannot be relied upon for the determination of the will of
the electorate because the revision is incomplete. He claims that:

Based on the Final Report of the Committee on Revision for each of the eight (8) Revision Committees, the revision of
ballots yielded a total of 15,802 votes for Yes and a total of 12,602 votes for No. The revision committee thus
canvassed only a total of 28,404 ballots.

As shown by the records, the COMELEC considered not only the total number of votes reflected in the Final Canvassing
Report of the Taguig PBOC, but also the voting results based on (1) the physical count of the ballots; (2) the returns of the
uncontested precincts; and (3) the appreciation of the contested ballots, all summed up and tallied as follows:


Buac vs. COMELEC
Affirmative Negative
Total Number of Votes Per PBOC Canvassing Report 19,413 21,890
Minus: Number of Invalid Votes 253 419
Minus: Number of Votes Deducted from the
Plebiscite Returns After Physical Count (Table D) 0 2,024

Plus: Number of Votes Added After Physical Count 1,936 0
(Table D)
Plus: Credited Claimed Ballots 9 13
Total 21,105 19,460


ISSUE:

Whether or not the COMELEC gravely abused its discretion.

HELD:

Petitions dismissed for lack of merit.
The above factual findings of the COMELEC supported by evidence, are accorded, not only respect, but finality. This is so
because the conduct of plebiscite and determination of its result have always been the business of the COMELEC and not
the regular courts. Such a case involves the appreciation of ballots which is best left to the COMELEC. As an independent
constitutional body exclusively charged with the power of enforcement and administration of all laws and regulations
relative to the conduct of an election, plebiscite, initiative, referendum and recall, the COMELEC has the indisputable
expertise in the field of election and related laws. Its acts, therefore, enjoy the presumption of regularity in the
performance of official duties.
In fine, we hold that in issuing the challenged Resolution and Order in these twin petitions, the COMELEC did not gravely
abuse its discretion.
Barro vs COMELEC
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 186201 October 9, 2009
CARMELINDA C. BARRO, Petitioner,
vs.
THE COMMISSION ON ELECTIONS (FIRST DIVISION); HON. DELIA P. NOEL-BERTULFO, in her capacity as
Presiding Judge of the Municipal Trial Court, Palompon, Leyte; and ELPEDIO P. CONTINEDAS,
JR.,Respondents.
D E C I S I O N
PERALTA, J .:
This is a petition for certiorari
1
alleging that the First Division of the Commission on Elections (COMELEC) committed
grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the Orders dated November 25, 2008
and January 9, 2009. The Order
2
dated November 25, 2008 dismissed petitioners appeal for failure to pay the appeal
fee prescribed by the COMELEC Rules of Procedure within the reglementary period. The Order
3
dated January 9, 2009
denied petitioners motion for reconsideration.
The facts are as follows:
Petitioner Carmelinda C. Barro and private respondent Elpedio P. Continedas, Jr. were candidates for Punong
Barangay of Barangay Plaridel, Palompon, Leyte during the October 29, 2007
synchronized Barangay andSangguniang Kabataan Elections. Petitioner garnered 150 votes, while respondent
garnered 149 votes. TheBarangay Board of Canvassers proclaimed petitioner as the duly elected Punong Barangay,
winning by a margin of only one vote.
On November 5, 2007, private respondent filed an election protest before the Municipal Trial Court of Palompon, Leyte
(trial court), impugning the result of the canvass in two precincts of the barangay.
After the revision of ballots, the trial court found that petitioner and respondent both garnered 151 votes.
In its Decision
4
dated May 5, 2008, the trial court held:
In sum, the Protestant is credited with three (3) votes and the Protestee with two (2) votes of the contested votes.
The three (3) credited votes added to the 148 votes of the protestant equals 151 votes. The two (2) credited votes
added to the 149 votes of the protestee equals 151 votes. The protestant and the protestee, therefore, received the
same number of votes.
It appearing that the Protestant and the Protestee received the same number of votes for the position of Barangay
Chairman of Brgy. Plaridel, Palompon, Leyte, there shall be a drawing of lots and the party favored by luck shall be
proclaimed as the duly-elected Barangay Chairman of Barangay Plaridel, Palompon, Leyte.
5

On May 13, 2008, petitioner filed a Notice of Appeal
6
with the trial court and she stated in her petition that she also paid
the appeal fee required under Section 9, Rule 14 of the Rules of Procedure in Election Contests Before the Courts
Involving Elective Municipal and Barangay Officials (A.M. No. 07-4-15-SC).
7
Thereafter, the records of the case were
forwarded to the COMELEC.
Barro vs COMELEC
On November 25, 2008, the First Division of the COMELEC issued an Order dismissing petitioners appeal for failure to
pay the appeal fee, thus:
Pursuant to Sections 3 and 4, Rule 40 of the COMELEC Rules of Procedure which provide for the payment of appeal
fee in the amount of P3,000.00 within the period to file the notice of appeal, and Section 9 (a), Rule 22 of the same
Rules, which provides that failure to pay the correct appeal fee is a ground for the dismissal of the appeal, the
Commission (First Division) RESOLVED as it hereby RESOLVES to DISMISS the instant appeal for Protestee-
AppeIlant's failure to pay the appeal fee as prescribed by the Comelec Rules of Procedure within the five (5)-day
reglementary period.
8

On December 15, 2008, petitioner filed a Motion for Reconsideration
9
of the Order dated November 25, 2008. On the
same date, she also posted Postal Money Order Nos. A0820039317; B0810040373 and J1350301774 in the total sum
of P3,200.00 payable to the Cash Division of the COMELEC to cover the appeal fee.
Petitioners motion for reconsideration was denied by the First Division of the COMELEC in its Order dated January 9,
2009, thus:
Protestee-Appellant's "Motion for Reconsideration" filed thru registered mail on 15 December 2008 and received on 23
December 2008, seeking reconsideration of the Commission's (First Division) Order dated 25 November 2008, is
hereby DENIED for failure of the movant to pay the necessary motion fees under Sec. 7 (f), Rule 40 of the Comelec
Rules of Procedure as amended by Comelec Resolution No. 02-0130. The Judicial Records Division-ECAD, this
Commission, is hereby directed to return to the protestee-appellant the Postal Money Order Nos. A0820039317 in the
amount of two thousand pesos (P2,000.00); B0810040373 in the amount of one thousand pesos (P1,000.00) and
J1350301774 in the amount of two hundred pesos (P200.00) representing his belated payment of appeal fee.
10

On February 19, 2009, petitioner filed this petition raising the following issues:
1. WHETHER OR NOT THE [FIRST DIVISION OF THE COMELEC] COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN DISMISSING THE APPEAL.
2. WHETHER OR NOT THE [FIRST DIVISION OF THE COMELEC] COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN DENYING THE MOTION FOR RECONSIDERATION
FILED BY PETITIONER.
3. WHETHER OR NOT THE [FIRST DIVISION OF THE COMELEC] COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ACTING ON THE MOTION FOR RECONSIDERATION
WITHOUT ELEVATING THE SAME TO THE COMELEC EN BANC.
11

The first issue is whether or not the First Division of the COMELEC gravely abused its discretion in dismissing
petitioners appeal.
Grave abuse of discretion implies a capricious and whimsical exercise of judgment amounting to lack of jurisdiction or
an arbitrary and despotic exercise of power because of passion or personal hostility.
12
The grave abuse of discretion
must be so patent and gross as to amount to an evasion or refusal to perform a duty enjoined by law.
13

The Court notes that in petitioners Notice of Appeal,
14
she manifested payment of the appeal fees and other lawful fees
required for the appeal per Official Receipt Nos. 7719538 and 7719488. However, the receipts were not attached to the
record of the case. In her Petition, petitioner stated that when she filed her Notice of Appeal on May 13, 2008, she also
paid the appeal fee required under Section 9, Rule 14 of A.M. No. 07-4-15-SC.
15
In her Reply,
16
petitioner also stated
that she relied on the provision of Sections 8 and 9, Rule 14 of A.M. No. 07-4-15-SC,
17
which took effect on May 15,
2007, and that she believed in good faith that the said new Rules of Procedure repealed the COMELEC Rules.
Based on petitioners pleadings and the fact that the trial court gave due course to petitioners appeal, it may be
presumed that petitioner paid the appeal fee of P1,000.00 to the trial court simultaneously with the filing of the Notice of
Appeal, despite absence of the receipt showing payment of the appeal fee of P1,000.00.
Barro vs COMELEC
Petitioner contends in her Reply
18
that the recent case of Jerry B. Aguilar v. Commission on Elections, et al.,
19
applies to
her case. The Court agrees with petitioner.
In Aguilar, petitioner Aguilar won as barangay chairman in the October 29, 2007 barangay elections. An election protest
was filed against him with the municipal trial court. The municipal trial court found that Aguilar lost by a margin of one
vote; hence, his proclamation was annulled. On April 21, 2008, Aguilar filed a Notice of Appeal and paid the appeal fee
of P1,000.00 to the municipal trial court in accordance with A.M. No. 07-4-15-SC. The First Division of the COMELEC
dismissed his appeal pursuant to Section 9 (a), Rule 22 of the COMELEC Rules of Procedure for non-payment of the
appeal fee of P3,000.00 as required in Sections 3 and 4, Rule 40 of the same Rules. His first and second motions for
reconsideration were denied by the First Division of the COMELEC. He filed a petition for certiorari with this Court,
which held:
x x x x
With the promulgation of A.M. No. 07-4-15-SC, the previous rule that the appeal is perfected only upon the full payment
of the appeal fee, now pegged at P3,200.00, to the COMELEC Cash Division within the period to appeal, as stated in
the COMELEC Rules of Procedure, as amended, no longer applies.
It thus became necessary for the COMELEC to clarify the procedural rules on the payment of appeal fees. For this
purpose, the COMELEC issued on July 15, 2008, Resolution No. 8486, which the Court takes judicial notice of.
x x x x
x x x The appeal to the COMELEC of the trial court's decision in election contests involving municipal and barangay
officials is perfected upon the filing of the notice of appeal and the payment of the P1,000.00 appeal fee to the court
that rendered the decision within the five-day reglementary period. The non-payment or the insufficient payment of the
additional appeal fee of P3,200.00 to the COMELEC Cash Division, in accordance with Rule 40, Section 3 of the
COMELEC Rules of Procedure, as amended, does not affect the perfection of the appeal and does not result in outright
or ipso facto dismissal of the appeal. Following, Rule 22, Section 9 (a) of the COMELEC Rules, the appeal may be
dismissed. And pursuant to Rule 40, Section 18 of the same rules, if the fees are not paid, the COMELEC may refuse
to take action thereon until they are paid and may dismiss the action or the proceeding. In such a situation, the
COMELEC is merely given the discretion to dismiss the appeal or not.
Accordingly, in the instant case, the COMELEC First Division, may dismiss petitioner's appeal, as it in fact did, for
petitioner's failure to pay the P3,200.00 appeal fee.
Be that as it may, the Court still finds that the COMELEC First Division gravely abused its discretion in issuing the order
dismissing petitioner's appeal. The Court notes that the notice of appeal and the P1,000.00 appeal fee were,
respectively, filed and paid with the MTC of Kapatagan, Lanao del Norte on April 21, 2008. On that date, the petitioner's
appeal was deemed perfected. COMELEC issued Resolution No. 8486 clarifying the rule on the payment of appeal
fees only on July 15, 2008, or almost three months after the appeal was perfected. Yet, on July 31, 2008, or barely two
weeks after the issuance of Resolution No. 8486, the COMELEC First Division dismissed petitioner's appeal for non-
payment to the COMELEC Cash Division of the additional P3,200.00 appeal fee.
Considering that petitioner filed his appeal months before the clarificatory resolution on appeal fees, petitioner's appeal
should not be unjustly prejudiced by COMELEC Resolution No. 8486. Fairness and prudence dictate that the
COMELEC First Division should have first directed petitioner to pay the additional appeal fee in accordance with the
clarificatory resolution, and if the latter should refuse to comply, then, and only then, dismiss the appeal. Instead, the
COMELEC First Division hastily dismissed the appeal on the strength of the recently promulgated clarificatory
resolution which had taken effect only a few days earlier. This unseemly haste is an invitation to outrage.
In this case, the appeal to the COMELEC was perfected when petitioner filed her Notice of Appeal and paid the appeal
fee of P1,000.00 on May 13, 2008, which was two months before the COMELEC issued Resolution No.
8486,
20
clarifying the rule on the payment of appeal fees. As stated in Aguilar, fairness and prudence dictate that the
First Division of the COMELEC should have first directed petitioner to pay the additional appeal fee ofP3,200.00 in
accordance with the clarificatory resolution; and if petitioner refused to comply, only then should the appeal be
Barro vs COMELEC
dismissed. The First Division of the COMELEC should have been more cautious in dismissing petitioners appeal on
the mere technicality of non-payment of the additional appeal fee of P3,200.00 given the public interest involved in
election cases.
21

In view of the foregoing, the Court finds that the First Division of the COMELEC gravely abused its discretion in issuing
the Order dated November 25, 2008, dismissing petitioners appeal. The case is remanded to the First Division of the
COMELEC for disposition of the appeal in accordance with this decision, subject to the presentation by petitioner of the
receipt evidencing payment of the appeal fee of P1,000.00 as required under Section 9, Rule 14 of A. M. No. 07-4-15-
SC.
It must be stated, however, that for notices of appeal filed after the promulgation on July 27, 2009 of Divinagracia v.
Commission on Elections,
22
errors in the matter of non-payment or incomplete payment of the two appeal fees in
election cases are no longer excusable.
The second and third issues shall be discussed jointly.
Petitioner contends that the First Division of the COMELEC committed grave abuse of discretion amounting to lack or
excess of jurisdiction in acting on the motion for reconsideration without elevating the same to the COMELEC en banc,
and in denying the motion for reconsideration.
The contention is meritorious.
It is settled that under Section 7, Article IX-A of the Constitution,
23
what may be brought to this Court on certiorari is the
decision, order or ruling of the COMELEC en banc. However, this rule should not apply when a division of the
COMELEC arrogates unto itself and deprives the en banc of the authority to rule on a motion for reconsideration, like in
this case.
24

Section 3, Article IX-C of the Constitution provides for the procedure for the resolution of election cases by the
COMELEC, thus:
Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in
order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall
be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the
Commission en banc.
The constitutional provision is reflected in Sections 5 and 6, Rule 19 of the COMELEC Rules of Procedure as follows:
Sec. 5. How Motion for Reconsideration Disposed of. Upon the filing of a motion to reconsider a decision, resolution,
order or ruling of a Division, the Clerk of Court concerned shall, within twenty-four (24) hours from the filing thereof,
notify the Presiding Commissioner. The latter shall within two (2) days thereafter certify the case to the Commission en
banc.1avvph! 1
Sec. 6. Duty of Clerk of Court of Commission to Calendar Motion for Reconsideration. The Clerk of Court concerned
shall calendar the motion for reconsideration for the resolution of the Commission en banc within ten (10) days from the
certification thereof.
In this case, the First Division of the COMELEC violated the cited provisions of the Constitution and the COMELEC
Rules of Procedure when it resolved petitioner's motion for reconsideration of its final Order dated November 25, 2008,
which dismissed petitioners appeal. By arrogating unto itself a power constitutionally lodged in the Commission en
banc, the First Division of the COMELEC exercised judgment in excess of, or without, jurisdiction.
25
Hence, the Order
issued by the First Division of the COMELEC dated January 9, 2009, denying petitioners motion for reconsideration, is
null and void.
Barro vs COMELEC
Petitioner stated in her Reply
26
that on April 1, 2009, the First Division of the COMELEC issued an Order declaring the
Order dated November 25, 2008 as final and executory, and ordering the issuance of an Entry of Judgment. On April 1,
2009, an Entry of Judgment was issued by the Electoral Contests Adjudication Department.
WHEREFORE, the petition is GRANTED. The Orders dated November 25, 2008 and January 9, 2009 by the First
Division of the COMELEC, and the Entry of Judgment issued on April 1, 2009 by the Electoral Contests Adjudication
Department are ANNULLED and SET ASIDE. The case is REMANDED to the First Division of the Commission on
Elections for disposition in accordance with this Decision.
No costs.
SO ORDERED.
Lluz vs. COMELEC


EN BANC


NELSON T. LLUZ
and
CATALINO C. ALDEOSA,
Petitioners,

G.R. No. 172840

Present:
PUNO,
*
C.J.,
QUISUMBING,
**

YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
- versus - CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, JR., and
NACHURA, JJ.


COMMISSION ON ELECTIONS Promulgated:
and CAESAR O. VICENCIO,
Respondents. June 7, 2007

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N


CARPIO, J .:

The Case


This petition for certiorari
[1]
seeks to annul the Resolutions of the Commission on Elections
(COMELEC) En Banc dated 1 February 2006 and 25 May 2006 in E.O. Case No. 04-5. The 1
Lluz vs. COMELEC
February 2006 resolution ruled that no probable cause exists to charge private respondent Caesar
O. Vicencio with violation of Section 262 in relation to Section 74 of Batas Pambansa Blg. 881
(B.P. 881), otherwise known as the Omnibus Election Code. The 25 May 2006resolution denied
petitioners Nelson T. Lluz and Catalino C. Aldeosas motion for reconsideration of the 1 February
2006 resolution.


The Facts

Private respondent was a candidate for the post
of punong barangay of Barangay 2, Poblacion, Catubig, Samar in the 15 July
2002 SynchronizedBarangay and Sangguniang Kabataan Elections. In his certificate of candidacy,
private respondent stated his profession or occupation as a certified public accountant (CPA).
Private respondent won in the elections.

Sometime after private respondents proclamation, petitioners charged him before the Law
Department of the COMELEC (Law Department) with violation of Section 262 in relation to
Section 74 of B.P. 881. Petitioners claimed they had proof that private respondent misrepresented
himself as a CPA. Attached to petitioners complaint was a Certification signed by Jose Ariola,
Director II, Regulations Office of the Professional Regulation Commission (PRC), stating that
private respondents name does not appear in the book of the Board of Accountancy. The book
contains the names of those duly authorized to practice accountancy in the Philippines.

In his Answer, private respondent maintained that he was a CPA and alleged that he passed
the CPA Board Examinations in 1993 with a rating of 76%. Private respondent argued that he
could not be held liable for an election offense because his alleged misrepresentation of profession
was not material to his eligibility as a candidate.

On 21 September 2004, the Law Department through its Director Alioden D. Dalaig issued a
subpoena requiring the Chief of the PRCs Records Section to appear before it and settle the
controversy on whether private respondent was indeed a CPA. On 6 October 2004, PRC Records
Section Officer-in-Charge Emma T. Francisco appeared before the Law Department and produced
a Certification showing that private respondent had taken the 3 October 1993 CPA Board
Examinations and obtained a failing mark of 40.71%.

Nevertheless, the Law Department recommended the dismissal of petitioners
complaint. Citing the rulings of this Court in Romualdez-Marcos v. COMELEC
[2]
and Salcedo II
v. COMELEC,
[3]
the Law Department held that the misrepresentation in private respondents
Lluz vs. COMELEC
certificate of candidacy was not material to his eligibility as a candidate and could not be a ground
for his prosecution.

However, upon motion of petitioners, the COMELEC En Banc by Resolution dated 5
October 2005 ordered the Law Department to file an informationagainst private respondent for
violation of Section 262 in relation to Section 74 of B.P. 881. In reversing the resolution of the
Law Department, the COMELECEn Banc ruled that Romualdez-Marcos and Salcedo were
disqualification cases not applicable to the case of private respondent who is sought to be
prosecuted for an election offense. As such, the misrepresentation made by private respondent
need not be material to his eligibility as a candidate in order to hold him liable under Section 262.
The COMELEC En Banc further ruled that election offenses are mala prohibita, in which case no
proof of criminal intent is required and good faith, ignorance, or lack of malice are not valid
defenses.

On 18 October 2005, private respondent moved for reconsideration.


The Ruling of the COMELEC

On 1 February 2006, the COMELEC En Banc reconsidered its earlier Resolution, explaining
thus:

After a careful evaluation x x x [w]e rule to grant the motion for reconsideration.

Criminal intent is not absolutely disregarded in election offense cases. A good example is
the provision of Section 261(y)(17) of [B.P. 881], which requires malicious intent in order that a
person may be charged for omitting, tampering, or transferring to another list the name of a
registered voter from the official list of voters posted outside the polling place.

In relation thereto, the fact that an offense is malum prohibitum does not exempt the same
from the coverage of the general principles of criminal law. In this case, the provisions of Section
261 of [B.P. 881] must not be taken independent of the concepts and theories of criminal law.

The offense allegedly committed by the respondent is for failure to disclose his true
occupation as required under Section 74 of [B.P. 881]. Apparently, respondent misrepresented
himself as a CPA when in fact he is not. The misrepresentation having been established, the next
issue posited by the parties is whether or not the misrepresentation should be material before
it can be considered as an election offense.

We answer in the affirmative. Violation of Section 74 is a species of perjury, which is the act
of knowingly making untruthful statements under oath. Settled is the rule that for perjury to be
committed, it must be made with regard to a material matter.

Lluz vs. COMELEC
Clearly, the principle of materiality remains to be a crucial test in determining whether a
person can be charged with violating Section 74 of [B.P. 881] in relation to Section 262 thereof.

The case of [Salcedo] sheds light as to what matters are deemed material with respect to the
certificate of candidacy, to wit: citizenship, residency and other qualifications that may be imposed.
The nature of a candidates occupation is definitely not a material matter. To be sure, we do not
elect a candidate on the basis of his occupation.
[4]




Petitioners filed a motion for reconsideration, which the COMELEC En Banc denied in the
assailed Resolution dated 25 May 2006. The COMELEC declared that while it condemn[ed] in
the strongest possible terms private respondents morally appalling, devious, calculating, [and]
deceitful act, it could not prosecute private respondent for an election offense, but possibly only
for an administrative or criminal offense.

Hence, this petition.


The Issues

Petitioners argue that:

1. The assailed resolutions failed to consider that a violation of Section 262 in relation
to Section 74 of B.P. 881 is malum prohibitum;

2. The ruling in Salcedo is not applicable to petitioners complaint, that is, a fact
misrepresented in a certificate of candidacy need not be material in order to
constitute a violation of Section 262 in relation to Section 74 of B.P. 881; and

3. Assuming arguendo that materiality of a misrepresentation is required to constitute a
violation of Section 262 in relation to Section 74 of B.P.
881, the assailed resolutions should have
held material private respondents misrepresentation because it increased his chances
of winning in the elections.
The Ruling of the Court

Petitioners come to us on a single question of law: is an alleged misrepresentation of
profession or occupation on a certificate of candidacy punishable as an election offense under
Section 262 in relation to Section 74 of B.P. 881?

Lluz vs. COMELEC
We rule in the negative.

In urging the Court to order the COMELEC to file the necessary information against private
respondent, petitioners invoke Sections 262 and 74 of B.P. 881, which we reproduce below:


Section 262. Other election offenses.Violation of the provisions, or pertinent portions,
of the following sections of this Code shall constitute election offenses: Sections 9, 18, 74, 75,
76, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107,
108, 109, 110, 111, 112, 122, 123, 127, 128, 129, 132, 134, 135, 145, 148, 150, 152, 172, 173, 174,
178, 180, 182, 184, 185, 186, 189, 190, 191, 192, 194, 195, 196, 197, 198, 202, 203, 204, 205, 206,
207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 223, 229, 230, 231, 233, 234,
235, 236, 239 and 240. (Emphasis supplied)

Section 74. Contents of certificate of candidacy.The certificate of candidacy shall state that
the person filing it is announcing his candidacy for the office stated therein and that he is eligible for
said office; if for Member of the Batasang Pambansa, the province, including its component cities,
highly urbanized city or district or sector which he seeks to represent; the political party to which he
belongs; civil status; his date of birth; residence; his post office address for all election purposes; his
profession or occupation; that he will support and defend the Constitution of the Philippines and
will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees
promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to
a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental
reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to
the best of his knowledge.

Unless a candidate has officially changed his name through a court approved proceeding, a
candidate shall use in a certificate of candidacy the name by which he has been baptized, or he has
not been baptized in any church or religion, the name registered in the office of the local civil
registrar or any other name allowed under the provisions of existing law or, in the case [of] a
Muslim, his Hadji name after performing the prescribed religious pilgrimage: Provided, That when
there are two or more candidates for an office with the same name and surname, each candidate,
upon being made aware or such fact, shall state his paternal and maternal surname, except the
incumbent who may continue to use the name and surname stated in his certificate of candidacy
when he was elected. He may also include one nickname or stage name by which he is generally or
popularly known in the locality.

The person filing a certificate of candidacy shall also affix his latest photograph, passport
size; a statement in duplicate containing his bio-data and program of government not exceeding one
hundred words, if he so desires. (Emphasis supplied)


The penal coverage of Section 262 is limited.

From a cursory reading of Sections 262 and 74 of B.P. 881, one may possibly conclude that
an act or omission in violation of any of the provisions of Section 74 ipso facto constitutes an
election offense. Indeed, petitioners point out that private respondents misrepresentation of
Lluz vs. COMELEC
profession having been proved before the COMELEC, the latter is compelled to prosecute him for
violation of Section 262. Petitioners argue that such a violation being an electionoffense, it
is malum prohibitum and immediately gives rise to criminal liability upon proof of commission.

Petitioners stance assumes that Section 262 penalizes without qualification the violation of
the sections it enumerates. This assumption is uncalled for in view of the wording of Section 262.

The listing of sections in Section 262 is introduced by the clause: Violation of the
provisions, or pertinent portions, of the following sections shall constitute election offenses:
x x x. The phraseology of this introductory clause alerts us that Section 262 itself possibly
limits its coverage to only pertinent portions of Section 74. That such a possibility exists must not
be taken lightly for two reasons. First, were the phrase not necessary, the laws framers would
have instead directly declared that violation of the provisions or any provision of the
enumerated sections without any qualification would constitute an election offense. It is a
settled principle in statutory construction that whenever possible, a legal provision, phrase, or
word must not be so construed as to be meaningless and a useless surplusage in the sense of
adding nothing to the law or having no effect on it.
[5]
Second, equally well-settled is the rule that a
statute imposing criminal liability should be construed narrowly in its coverage such that only
those offenses clearly included, beyond reasonable doubt, will be considered within the operation
of the statute.
[6]
A return to Section 74 is thus imperative.

Section 74 enumerates all information which a person running for public office must supply
the COMELEC in a sworn certificate of candidacy. Section 74 specifies that a certificate of
candidacy shall contain, among others, a statement that the person is announcing his or her
candidacy for the office and is eligible for such office, the unit of government which the person
seeks to represent, his or her political party, civil status, date of birth, residence, and profession or
occupation. Section 74 further requires that the person make several declarations: that he will
support and defend the Constitution of the Philippines and will maintain true faith and allegiance
to it, that he will obey the laws, legal orders, and decrees promulgated by the duly constituted
authorities, that he is not a permanent resident or immigrant to a foreign country, that the
obligation imposed by his oath is assumed voluntarily, and that the facts stated in the certificate
of candidacy are true to the best of his knowledge.

Section 74 does not expressly mention which portion in its provisions is pertinent to Section
262, or which among its provisions when violated is punishable as an election offense. Nothing in
Section 74 partakes unmistakably of a penal clause or a positive prohibition comparable to those
found in other sections
[7]
also mentioned in Section 262 that use the words shall not. The Court
Lluz vs. COMELEC
is then left to interpret the meaning of Section 74 to determine which of its provisions are
penalized under Section 262, and particularly if disclosure of profession or occupation is among
such provisions.


Our rulings in Abella v. Larrazabal
and Salcedo clarify the concept of
misrepresentation under B.P. 881.


The issue in this case is novel, yet the facts and provisions of law now before us call to mind
the cases of Abella v. Larrazabal
[8]
and Salcedo, perhaps the closest this case has to a relevant
precedent.

Abella dwelt on the issue of misrepresentation of residence in a certificate of candidacy.
Petitioner Abella had filed a case against private respondentLarrazabal before the COMELEC on
the ground that the latter falsely claimed to be a resident of Kananga, Leyte in her certificate of
candidacy. In the course of the hearing, Larrazabal moved for clarification of the nature of the
proceedings, asking the COMELEC to determine under what law her qualifications were being
challenged. The COMELEC, by process of elimination, determined that the proceeding was not
(1) intended against a nuisance candidate under Section 69 of B.P. 881, as Larrazabal was
obviously a bona fide candidate; (2) a petition for quo warranto under Section 253 which could be
filed only afterLarrazabals proclamation, as Larrazabal had not yet been proclaimed; (3) a petition
to deny due course to Larrazabals certificate of candidacy under Section 78, as Abellas petition
did not contain such prayer and was not filed in the manner required by the COMELEC Rules of
Procedure; or (4) a petition for disqualification under Section 68, as Larrazabal was not being
charged with the commission of any election offense mentioned under the section. The
COMELEC concluded that the subject of the petition, to wit, misrepresentation in the certificate
of candidacy, was actually a violation of Section 74 and must be prosecuted as an election
offense under Section 262. The COMELEC dismissed the petition and referred the case to its Law
Department for prosecution.

We held that the dismissal was improper. There we reasoned that the issue of residence
having been squarely raised before the COMELEC

x x x it should not have been shunted aside to the Law Department for a roundabout
investigation of [Larrazabals] qualification through the filing of a criminal prosecution, if found to
be warranted, with resultant disqualification of the accused in case of conviction. The COMELEC
should have opted for a more direct and speedy process available under the law, considering the
vital public interest involved and the necessity of resolving the question at the earliest possible time
for the benefit of the inhabitants of Leyte.
[9]

Lluz vs. COMELEC


By direct and speedy process, the Court referred to Section 78 of B.P. 881, which states:

Section 78. Petition to deny due course to or cancel a certificate of candidacy. A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the
person exclusively on the ground that any material representation contained therein as
required under Section 74 hereof is false. The petition may be filed at any time not later than
twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after
due notice and hearing, not later than fifteen days before the election. (Emphasis supplied)


Thus, upon considering the facts and seeing that Larrazabals misrepresentation of her
residence put her qualification as a candidate at issue,
[10]
the Court found that the case fell squarely
within the provisions of Section 78 and directed the COMELEC to determine the residence
qualification of Larrazabal. Notably, the Court did not make a finding that Abella had no cause of
action under Section 262, but only characterized the criminal case as involving a roundabout
investigation seeking an end Larrazabals disqualification that could be achieved more
speedily through an administrative proceeding under Section 78. The ruling in Abella recognized
that Larrazabals act of misrepresenting her residence, a fact required to be stated in her certificate
of candidacy under Section 74 and which was also a qualification for all elective local officials,
gave rise to two causes of action against her under B.P. 881: one, a criminal complaint under
Section 262; and second, a petition to deny due course to or cancel a certificate of candidacy under
Section 78.

The case of Salcedo six years after Abella tested the limits of Section 78 on the specific
question of what constitutes a material misrepresentation. InSalcedo,
petitioner Victorino Salcedo prayed for the disqualification of private
respondent Emelita Salcedo (Emelita) from the mayoralty race in Sara, Iloilo on the basis of the
use of her surname. Petitioner alleged that Emelitas marriage to Neptali Salcedo (Neptali) was
void and therefore Emelitas use of Neptalissurname constituted a material misrepresentation. The
COMELEC ruled in favor of Emelita, finding that she committed no misrepresentation. On appeal
by petitioner, the Court held:
In case there is a material misrepresentation in the certificate of candidacy, the Comelec is
authorized to deny due course to or cancel such certificate upon the filing of a petition by any
person pursuant to Section 78 x x x.

x x x x

Lluz vs. COMELEC
As stated in the law, in order to justify the cancellation of the certificate of candidacy
under Section 78, it is essential that the false representation mentioned therein pertain[s] to a
material matter for the sanction imposed by this provision would affect the substantive
rights of a candidate the right to run for the elective post for which he filed the certificate
of candidacy. Although the law does not specify what would be considered as a material
representation, the Court has interpreted this phrase in a line of decisions applying Section 78 of
[B.P. 881].

x x x x

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

x x x x

Aside from the requirement of materiality, a false representation under Section 78 must
consist of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render
a candidate ineligible. In other words, it must be made with an intention to deceive the electorate as
to ones qualifications for public office. x x x
[11]
(Emphasis supplied)


From these two cases several conclusions follow. First, a misrepresentation in a certificate
of candidacy is material when it refers to a qualification for elective office and affects the
candidates eligibility. Second, when a candidate commits a material misrepresentation, he or she
may be proceeded against through a petition to deny due course to or cancel a certificate of
candidacy under Section 78, or through criminal prosecution under Section 262 for violation of
Section 74. Third, a misrepresentation of a non-material fact, or a non-material misrepresentation,
is not a ground to deny due course to or cancel a certificate of candidacy under Section 78. In other
words, for a candidates certificate of candidacy to be denied due course or canceled by the
COMELEC, the fact misrepresented must pertain to a qualification for the office sought by the
candidate.


Profession or occupation is not a qualification
for elective office, and therefore not a material
fact in a certificate of candidacy.


No elective office, not even the office of the President of the Republic of the Philippines,
requires a certain profession or occupation as a qualification. For local elective offices including
Lluz vs. COMELEC
that of punong barangay, Republic Act No. 7160 (R.A. 7160) or the Local Government Code of
1991 prescribes only qualifications pertaining to citizenship, registration as a voter, residence, and
language. Section 39 of R.A. 7160 states:

Section 39. Qualifications.
(a) An elective local official must be a citizen of the Philippines; a registered voter in
the barangay, municipality, city, or province or, in the case of a member of
thesangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he
intends to be elected; a resident therein for at least one (1) year immediately preceding the day of
the election; and able to read and write Filipino or any other local language or dialect.

x x x x



Profession or occupation not being a qualification for elective office, misrepresentation of
such does not constitute a material misrepresentation. Certainly, in a situation where a candidate
misrepresents his or her profession or occupation in the certificate of candidacy, the candidate may
not be disqualified from running for office under Section 78 as his or her certificate of candidacy
cannot be denied due course or canceled on such ground.


I n interpreting a law, the Court must avoid
an unreasonable or unjust construction.


Were we to follow petitioners line of thought, for misrepresentation of a non-material fact,
private respondent could be prosecuted for an election offense and, if found guilty, penalized with
imprisonment and other accessory penalties. B.P. 881 prescribes a uniform penalty for all election
offenses under it to cover those defined in Sections 262 and 261, to wit:

Section 264. Penalties. Any person found guilty of any election offense under this Code
shall be punished with imprisonment of not less than one year but not more than six years and shall
not be subject to probation. In addition, the guilty party shall be sentenced to suffer disqualification
to hold public office and deprivation of the right of suffrage. If he is a foreigner, he shall be
sentenced to deportation which shall be enforced after the prison term has been served. Any political
party found guilty shall be sentenced to pay a fine of not less than ten thousand pesos, which shall
be imposed upon such party after criminal action has been instituted in which their corresponding
officials have been found guilty.


The position taken by petitioners merely highlights for us the absurdity of not applying here
the reasons given by the Court in Salcedo, a mere disqualification case. In the present case, private
Lluz vs. COMELEC
respondent not only could be disqualified from holding public office and from voting but could
also be deprived of his liberty were the COMELEC to pursue a criminal case against him. If
in Salcedo the Court could not conceive the law to have intended that a person be deprived of
such a basic and substantive political right to be voted for a public office upon just any innocuous
mistake on the certificate of candidacy, weightier considerations here demand that materiality of
the misrepresentation also be held an essential element of any violation of Section 74. Otherwise,
every detail or piece of information within the four corners of the certificate of candidacy, even
that which has no actual bearing upon the candidates eligibility, could be used as basis for the
candidates criminal prosecution.

Further compelling us to dismiss this petition is the consideration that any complaint against
private respondent for perjury under the Revised Penal Code would necessarily have to allege the
element of materiality. The pertinent section of the Revised Penal Code states:

Art. 183. False testimony in other cases and perjury in solemn affirmation. The penalty
of arresto mayor in its maximum period to prision correccional in its minimum period shall be
imposed upon any person who, knowingly making untruthful statements and not being included
in the provision of the next preceding articles, shall testify under oath, or make an affidavit, upon
any material matter before a competent person authorized to administer an oath in cases in which
the law so requires. (Emphasis supplied)


The basis of the crime of perjury is the willful assertion of a falsehood under oath upon a
material matter. Although the term material matter under Article 183 takes on a fairly general
meaning, that is, it refers to the main fact which is the subject of inquiry,
[12]
in terms of being an
element in the execution of a statement under oath it must be understood as referring to a fact
which has an effect on the outcome of the proceeding for which the statement is being
executed.
[13]
Thus, in the case of a certificate of candidacy, a material matter is a fact relevant to
the validity of the certificate and which could serve as basis to grant or deny due course to the
certificate in case it is assailed under Section 78. Of course, such material matter would then refer
only to the qualifications for elective office required to be stated in the certificate of candidacy.

Perjury under Article 183 of the Revised Penal Code carries the penalty of arresto mayor in
its maximum period to prision correccional in its minimum period and translates to imprisonment
for four months and one day up to two years and four months. The duration of this imprisonment
is a far cry from that meted by Section 264 of B.P. 881, which is a minimum of one year up to a
maximum of six years. With the gravity of the punishment provided by B.P. 881 for violation of
election offenses, we glean the intention of the law to limit culpability under Section 262 for
violation of Section 74 only to a material misrepresentation. We thus adhere to the more
reasonable construction of the term pertinent portions found in Section 262, in particular
Lluz vs. COMELEC
reference to Section 74, to mean only those portions of Section 74 which prescribe qualification
requirements of a candidate.

WHEREFORE, we DISMISS the petition. We AFFIRM the En Banc Resolutions of the
Commission on Elections dated 1 February 2006 and 25 May 2006.


SO ORDERED.
Penera vs. COMELEC



EN BANC


ROSALINDA A. PENERA,
Petitioner,








- versus -









COMMISSION ON ELECTIONS
and EDGAR T. ANDANAR,
Respondents.
G. R. No. 181613

Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
CORONA,
CARPIO MORALES,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO, and
ABAD, JJ.

Promulgated:
Penera vs. COMELEC

September 11, 2009
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x


D E C I S I O N


CHICO-NAZARIO, J.:

This Petition for Certiorari with Prayer for the Issuance of a Writ of Preliminary Injunction
and/or Temporary Restraining Order
[1]
under Rule 65, in relation to Rule 64 of the Rules of Court,
seeks the nullification of the Resolution
[2]
dated 30 January 2008 of the Commission on Elections
(COMELEC) en banc. Said Resolution denied the Motion for Reconsideration of the earlier
Resolution
[3]
dated 24 July 2007 of the COMELEC Second Division in SPA No. 07-224, ordering the
Penera vs. COMELEC
disqualification of herein petitioner Rosalinda A. Penera (Penera) as a candidate for the position
of mayor of the Municipality of Sta. Monica, Surigao del Norte (Sta. Monica) in the 2007
Synchronized National and Local Elections.

The antecedents of the case, both factual and procedural, are set forth hereunder:

Penera and private respondent Edgar T. Andanar (Andanar) were mayoralty candidates in
Sta. Monica during the 14 May 2007 elections.

On 2 April 2007, Andanar filed before the Office of the Regional Election Director (ORED),
Caraga Region (Region XIII), a Petition for Disqualification
[4]
against Penera, as well as the
candidates for Vice-Mayor and Sangguniang Bayan who belonged to her political party,
[5]
for
unlawfully engaging in election campaigning and partisan political activity prior to the
commencement of the campaign period. The petition was docketed as SPA No. 07-224.

Andanar claimed that on 29 March 2007 a day before the start of the authorized
campaign period on 30 March 2007 Penera and her partymates went around the
different barangays in Sta. Monica, announcing their candidacies and requesting the people to
vote for them on the day of the elections. Attached to the Petition were the Affidavits of
individuals
[6]
who witnessed the said incident.

Penera alone filed an Answer
[7]
to the Petition on 19 April 2007, averring that the charge of
premature campaigning was not true. Although Penera admitted that a motorcade did take
place, she explained that it was simply in accordance with the usual practice in nearby cities and
provinces, where the filing of certificates of candidacy (COCs) was preceded by a motorcade,
which dispersed soon after the completion of such filing. In fact, Penera claimed, in the
motorcade held by her political party, no person made any speech, not even any of the
candidates. Instead, there was only marching music in the background and a grand standing for
the purpose of raising the hands of the candidates in the motorcade. Finally, Penera
cited Barroso v. Ampig
[8]
in her defense, wherein the Court supposedly ruled that a motorcade
held by candidates during the filing of their COCs was not a form of political campaigning.

Penera vs. COMELEC
Also on 19 April 2007, Andanar and Penera appeared with their counsels before the ORED-
Region XIII, where they agreed to submit their position papers and other evidence in support of
their allegations.
[9]


After the parties filed their respective Position Papers, the records of the case were
transmitted to the COMELEC main office in Manila for adjudication. It was subsequently raffled
to the COMELEC Second Division.

While SPA No. 07-224 was pending before the COMELEC Second Division, the 14 May
2007 elections took place and, as a result thereof, Penera was proclaimed the duly elected Mayor
of Sta. Monica. Penera soon assumed office on 2 July 2002.

On 24 July 2007, the COMELEC Second Division issued its Resolution in SPA No. 07-224,
penned by Commissioner Nicodemo T. Ferrer (Ferrer), which disqualified Penera from continuing
as a mayoralty candidate in Sta. Monica, for engaging in premature campaigning, in violation of
Sections 80 and 68 of the Omnibus Election Code.

The COMELEC Second Division found that:

On the afternoon of 29 March 2007, the 1st [sic] day to file the certificates of candidacy for local
elective positions and a day before the start of the campaign period for the May 14, 2007 elections [some
of the members of the political party Partido Padajon Surigao], headed by their mayoralty candidate
Datty Penera, filed their respective Certificates of Candidacy before the Municipal Election Officer of Sta.
Monica, Surigao del Norte.

Accompanied by a bevy of supporters, [Penera and her partymates] came to the municipal
COMELEC office on board a convoy of two (2) trucks and an undetermined number of motorcycles, laden
with balloons ad [sic] posters/banners containing names and pictures and the municipal positions for which
they were seeking election. Installed with [sic] one of the trucks was a public speaker sound subsystem
which broadcast [sic] the intent the [sic] run in the coming elections. The truck had the posters of Penera
attached to it proclaiming his [sic] candidacy for mayor. The streamer of [Mar Longos, a candidate for the
position of Board Member,+ was proudly seen at the vehicles side. The group proceeded to motorcade
until the barangays of Bailan, Libertad and as afar [sic] as Mabini almost nine (9) kilometers from Sta.
Penera vs. COMELEC
Monica. [Penera and her partymates] were seen aboard the vehicles and throwing candies to the residents
and onlookers.

Various affidavits and pictures were submitted elucidating the above-mentioned facts. The above
facts were also admitted in the Answer, the Position Paper and during the hearings conducted for this case,
the only defense propounded by [Penera] is that such acts allegedly do not constitute campaigning and is
therefore not proscribed by the pertinent election laws.

x x x x

What we however find disturbing is *Peneras+ reference to the Ampig Case as the justification for
the acts committed by [her]. There is really no reference to the acts or similar acts committed by [Penera]
as having been considered as not constituting political campaign or partisan political activity. The issue in
that case is whether or not the defect of the lack of a certification against non-forum [sic] shopping should
result to the immediate dismissal of the election cases filed in that case. There is nothing in said case
justifying a motorcade during the filing of certificates of candidacy. *Peneras+ reliance thereon is therefore
misplaced and of no potency at all.

x x x x

However, the photos submitted by [Andanar] only identified [Penera] and did not have any
notation identifying or indicating any of the other *candidates from Peneras party+. It cannot be
conclusively proven that the other *candidates from Peneras party+ were indeed with Penera during the
Motorcade. More importantly, the Answer and the Position Paper contain admissions referring only to
[Penera]. There is therefore no justification for a whole sale [sic] disqualification of all the [candidates from
Peneras party+, as even the petition failed to mention particularly the participation of the other individual
[party members].
[10]



The afore-quoted findings of fact led the COMELEC Second Division to decree:

PREMISES CONSIDERED, this Commission resolves to disqualify [Penera] but absolves the other
*candidates from Peneras party+ from violation of section 80 and 68 of the Omnibus Elections *sic+ Code.
[11]


Penera vs. COMELEC

Commissioner Florentino A. Tuason, Jr. (Tuason) wrote a Separate Opinion
[12]
on the 24 July
2007 Resolution. Although Commissioner Tuason concurred with the ponente, he stressed that,
indeed, Penera should be made accountable for her actions after the filing of her COC on 29
March 2007. Prior thereto, there was no candidate yet whose candidacy would have been
enhanced by the premature campaigning.

It was the third member of the COMELEC Second Division, Commissioner Rene V.
Sarmiento (Sarmiento) who put forth a Dissenting Opinion
[13]
on the 24 July
2007 Resolution. Commissioner Sarmiento believed that the pieces of evidence submitted by
Andanar did not sufficiently establish probable cause that Penera engaged in premature
campaigning, in violation of Sections 80 and 68 of the Omnibus Election Code. The two
photocopied pictures, purporting to be those of Penera, did not clearly reveal what was actually
happening in the truck or who were the passengers thereof. Likewise, the Affidavits seemed to
have been prepared and executed by one and the same person because they had similar
sentence construction and form, and they were sworn to before the same attesting officer.

Penera filed before the COMELEC en banc a Motion for Reconsideration
[14]
of the 24 July
2007 Resolution of the COMELEC Second Division, maintaining that she did not make any
admission on the factual matters stated in the appealed resolution. Penera also contended that
the pictures and Affidavits submitted by Andanar should not have been given any credence. The
pictures were mere photocopies of the originals and lacked the proper authentication, while the
Affidavits were taken ex parte, which would almost always make them incomplete and
inaccurate. Subsequently, Penera filed a Supplemental Motion for Reconsideration,
[15]
explaining
that supporters spontaneously accompanied Penera and her fellow candidates in filing their
COCs, and the motorcade that took place after the filing was actually part of the dispersal of said
supporters and their transportation back to their respectivebarangays.

In the Resolution dated 30 January 2008, the COMELEC en banc denied Peneras Motion
for Reconsideration, disposing thus:

WHEREFORE, this Commission RESOLVES to DENY the instant Motion for Reconsideration filed by
[Penera] for UTTER LACK OF MERIT.
[16]

Penera vs. COMELEC

The COMELEC en banc ruled that Penera could no longer advance the arguments set forth
in her Motion for Reconsideration and Supplemental Motion for Reconsideration, given that she
failed to first express and elucidate on the same in her Answer and Position Paper. Penera did
not specifically deny the material averments that the motorcade went as far as Barangay
Mabini, announcing their candidacy and requesting the people to vote for them on Election Day,
despite the fact that the same were clearly propounded by Andanar in his Petition for
Disqualification and Position Paper. Therefore, these material averments should be considered
admitted. Although the COMELEC en banc agreed that no undue importance should be given to
sworn statements or affidavits submitted as evidence, this did not mean that such affidavits
should not be given any evidentiary weight at all. Since Penera neither refuted the material
averments in Andanars Petition and the Affidavits attached thereto nor submitted countervailing
evidence, then said Affidavits, even if taken ex parte, deserve some degree of importance. The
COMELEC en banc likewise conceded that the pictures submitted by Andanar as evidence would
have been unreliable, but only if they were presented by their lonesome. However, said pictures,
together with Peneras admissions and the Affidavits of Andanars witnesses, constituted
sufficient evidence to establish Peneras violation of the rule against premature
campaigning. Lastly, the COMELEC en banc accused Penera of deliberately trying to mislead the
Commission by citing Barroso, given that the said case was not even remotely applicable to the
case at bar.

Consistent with his previous stand, Commissioner Sarmiento again dissented
[17]
from
the 30 January 2008 Resolution of the COMELEC en banc. He still believed that Andanar was not
able to adduce substantial evidence that would support the claim of violation of election
laws. Particularly, Commissioner Sarmiento accepted Peneras explanation that the motorcade
conducted after the filing by Penera and the other candidates of their COCs was merely part of
the dispersal of the spontaneous gathering of their supporters. The incident was only in accord
with normal human social experience.

Still undeterred, Penera filed the instant Petition before us, praying that the Resolutions
dated 24 July 2007 and 30 January 2008 of the COMELEC Second Division and en banc,
respectively, be declared null and void for having been issued with grave abuse of discretion
amounting to lack or excess of jurisdiction.

Penera vs. COMELEC
In a Resolution
[18]
dated 4 March 2008, we issued a Temporary Restraining Order (TRO),
enjoining the COMELEC from implementing the assailed Resolutions, on the condition that
Penera post a bond in the amount of P5,000.00. We also directed COMELEC and Andanar to
comment on the instant Petition.

After the COMELEC, through the Office of the Solicitor General (OSG), and Andanar filed
their respective Comments
[19]
on the Petition at bar, we required Penera, in a
Resolution
[20]
dated 17 June 2008, to file a Reply. However, as no Reply was filed in due time, we
dismissed Peneras Petition in a Resolution
[21]
dated 14 October 2008, in accordance with Rule
56, Section 5(e) of the Rules of Court.
[22]
Penera subsequently filed an Ex Parte Motion to Admit
Reply,
[23]
which we treated as a Motion for Reconsideration of the Resolution dated 14 October
2008. On 11 November 2008, we issued another Resolution reinstating Peneras Petition.
[24]


Penera presents the following issues for our consideration:

I.

Whether or not [Penera] has engaged in an election campaign or partisan political activity outside the
campaign period.

II.

Whether the contents of the complaint are deemed admitted for failure of [Penera] to specifically deny the
same.

III.

Whether or not [Andanar] has presented competent and substantial evidence to justify a conclusion that
[Penera] violated Section 80 and 68 of the Omnibus Election Code.

IV.
Penera vs. COMELEC

Whether or not [the COMELEC] committed grave abuse of discretion amounting to lack of or in excess of
jurisdiction in finding that the act of [Penera] in conducting a motorcade before the filing of her certificate
of candidacy constitutes premature campaigning.

V.

Whether or not [the COMELEC] committed grave abuse of discretion amounting to lack of or in excess of
jurisdiction when it resolves [sic] to disqualify [Penera] despite the failure of [Andanar] to present
competent, admissible and substantial evidence to prove [the] violation of Section 68 and 80 of the
Omnibus Election Code.


Penera claims that the COMELEC exercised its discretion despotically, arbitrarily and
whimsically in disqualifying her as a mayoralty candidate in Sta. Monica on the ground that she
engaged in premature campaigning. She asserts that the evidence adduced by Andanar was
grossly insufficient to warrant the ruling of the COMELEC.

Penera insists that the COMELEC Second Division erred in its findings of fact, basically
adopting Andanars allegations which, contrary to the belief of the COMELEC Second Division,
Penera never admitted. Penera maintains that the motorcade was spontaneous and unplanned,
and the supporters merely joined Penera and the other candidates from her party along the way
to, as well as within the premises of, the office of the COMELEC Municipal Election
Officer. Andanars averments that after Penera and the other candidates from her party filed
their COCs, they held a motorcade in the different barangaysof Sta. Monica, waived their hands
to the public and threw candies to the onlookers were not supported by competent substantial
evidence. Echoing Commissioner Sarmientos dissent from the assailed COMELEC Resolutions,
Penera argues that too much weight and credence were given to the pictures and Affidavits
submitted by Andanar. The declaration by the COMELEC that it was Penera in the pictures is
tenuous and erroneous, as the COMELEC has no personal knowledge of Peneras identity, and
the said pictures do not clearly reveal the faces of the individuals and the contents of the posters
therein. In the same vein, the Affidavits of Andanars known supporters, executed almost a
month after Andanar filed his Petition for Disqualification before the ORED-Region XIII, were
obviously prepared and executed by one and the same person, because they have a similar
Penera vs. COMELEC
sentence construction, and computer font and form, and were even sworn to before the same
attesting officer on the same date.

We find no merit in the instant Petition.

The questions of fact

Crystal clear from the above arguments is that Penera is raising only questions of fact in
her Petition presently before us. We do not find any reason to pass upon the same, as this Court
is not a trier of facts. It is not the function of the Court to review, examine and evaluate or weigh
the probative value of the evidence presented. A question of fact would arise in such an event.

The sole function of a writ of certiorari is to address issues of want of jurisdiction or grave
abuse of discretion, and it does not include a review of the tribunals evaluation of the
evidence.
[25]
Because of its fact-finding facilities and its knowledge derived from actual
experience, the COMELEC is in a peculiarly advantageous position to evaluate, appreciate and
decide on factual questions before it. Factual findings of the COMELEC, based on its own
assessments and duly supported by evidence, are conclusive on this Court, more so in the
absence of a grave abuse of discretion, arbitrariness, fraud, or error of law in the questioned
resolutions. Unless any of these causes are clearly substantiated, the Court will not interfere
with the findings of fact of the COMELEC.
[26]


Grave abuse of discretion is such capricious and whimsical exercise of judgment equivalent
to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave, as when it is
exercised arbitrarily or despotically by reason of passion or personal hostility. The abuse must be
so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to
perform the duty enjoined or to act at all in contemplation of law.
[27]


We find no grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of the COMELEC Second Division in disqualifying Penera as a mayoralty candidate in Sta.
Monica in the Resolution dated 24 July 2007; and also on the part of the COMELEC en banc in
denying Peneras Motion for Reconsideration on the Resolution dated 30 January 2008. Said
Penera vs. COMELEC
Resolutions are sufficiently supported by substantial evidence, meaning, such evidence as a
reasonable mind might accept as adequate to support a conclusion.
[28]


The prohibited act of premature campaigning is defined under Section 80 of the Omnibus
Election Code, to wit:

SECTION 80. Election campaign or partisan political activity outside campaign period. It shall be
unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons,
to engage in an election campaign or partisan political activity except during the campaign
period: Provided, That political parties may hold political conventions or meetings to nominate their official
candidates within thirty days before the commencement of the campaign period and forty-five days for
Presidential and Vice-Presidential election. (Emphasis ours.)

If the commission of the prohibited act of premature campaigning is duly proven, the
consequence of the violation is clearly spelled out in Section 68 of the said Code, which reads:

SECTION. 68. Disqualifications. - Any candidate who, in an action or protest in which he is a party is declared
by final decision of a competent court guilty of, or found by the Commission of having xxx (e) violated any
of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from
continuing as a candidate, or if he has been elected, from holding the office. Any person who is a
permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective
office under this Code, unless said person has waived his status as permanent resident or immigrant of a
foreign country in accordance with the residence requirement provided for in the election laws. (Emphases
ours.)


In the case at bar, it had been sufficiently established, not just by Andanars evidence, but
also those of Penera herself, that Penera and her partymates, after filing their COCs on 29 March
2007, participated in a motorcade which passed through the different barangays of Sta. Monica,
waived their hands to the public, and threw candies to the onlookers.

Indeed, Penera expressly admitted in her Position Paper that:

Penera vs. COMELEC
Respondents actually had a motorcade of only two (2) jeppneys [sic] and ten (10) motorcycles after
filing their Certificate of Candidacy at 3:00 P.M., March 29, 2007 without any speeches made and only one
streamer of a board member Candidate and multi-colored balloons attached to the jeppneys [sic] and
motorcycles.
[29]
(Emphasis ours.)


Additionally, the Joint Affidavit of Marcial Dolar, Allan Llatona, and Renante Platil, attached
to Peneras Position Paper, gave an even more straightforward account of the events, thus:

1. That on March 29, 2007 at 3:00 P.M. at Sta. Monica, Surigao del Norte, Mayoralty Candidates Rosalinda
CA. Penera [sic] and her parties of four (4) kagawads filed their certificate of candidacy at the COMELEC
Office;

2. That their [sic] was a motorcade consisting of two jeppneys [sic] and 10 motorcycles after actual
registration with the COMELEC with jeeps decorated with balloons and a streamer of Margarito
Longos, Board Member Candidate;

3. That the motorcade proceeded to three (3) barangays out of the 11 barangays while supporters were
throwing sweet candies to the crowd;

4. That there was merriment and marching music without mention of any name of the candidates more
particularly lead-candidate Rosalinda CA. Penera [sic];

5. That we were in the motorcade on that afternoon only riding in one of the jeepneys.
[30]
(Emphases
ours.)


In view of the foregoing admissions by Penera and her witnesses, Penera cannot now be
allowed to adopt a conflicting position.

More importantly, the conduct of a motorcade is a form of election campaign or partisan
political activity, falling squarely within the ambit of Section 79(b)(2) of the Omnibus Election
Penera vs. COMELEC
Code, on *h+olding political caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda
for or against a candidate*.+ A motorcade is a procession or parade of automobiles or other
motor vehicles.
[31]
The conduct thereof during election periods by the candidates and their
supporters is a fact that need not be belabored due to its widespread and pervasive
practice. The obvious purpose of the conduct of motorcades is to introduce the candidates and
the positions, to which they seek to be elected, to the voting public; or to make them more
visible so as to facilitate the recognition and recollection of their names in the minds of the
voters come election time. Unmistakably, motorcades are undertaken for no other purpose than
to promote the election of a particular candidate or candidates.

In the instant Petition, Penera never denied that she took part in the conduct of the
motorcade after she filed her COC on the day before the start of the campaign period. She
merely claimed that the same was not undertaken for campaign purposes. Penera proffered the
excuse that the motorcade was already part of the dispersal of the supporters who
spontaneously accompanied Penera and her partymates in filing their COCs. The said supporters
were already being transported back to their respective barangays after the COC filing. Penera
stressed that no speech was made by any person, and there was only background marching
music and a grand standing for the purpose of raising the hands of the candidates in the
motorcade.

We are not convinced.

As we previously noted, Penera and her witnesses admitted that the vehicles, consisting of
two jeepneys and ten motorcycles, were festooned with multi-colored balloons; the motorcade
went around three barangays in Sta. Monica; and Penera and her partymates waved their hands
and threw sweet candies to the crowd. With vehicles, balloons, and even candies on hand,
Penera can hardly persuade us that the motorcade was spontaneous and unplanned.

For violating Section 80 of the Omnibus Election Code, proscribing election campaign or
partisan political activity outside the campaign period, Penera must be disqualified from holding
the office of Mayor of Sta. Monica.

Penera vs. COMELEC
The questions of law

The dissenting opinion, however, raises the legal issue that Section 15 of Republic Act No.
8436, as amended by Republic Act No. 9369, provides a new definition of the term candidate,
as a result of which, premature campaigning may no longer be committed.

Under Section 79(a) of the Omnibus Election Code, a candidate is any person aspiring for
or seeking an elective public office, who has filed a certificate of candidacy by himself or through
an accredited political party, aggroupment, or coalition of parties.

Republic Act No. 8436,
[32]
enacted on 22 December 1997, authorized the COMELEC to use
an automated election system for the process of voting, counting of votes, and
canvassing/consolidating the results of the national and local elections. The statute also
mandated the COMELEC to acquire automated counting machines, computer equipment, devices
and materials; and to adopt new electoral forms and printing materials. In particular, Section 11
of Republic Act No. 8436 provided for the specifications of the official ballots to be used in the
automated election system and the guidelines for the printing thereof, the relevant portions of
which state:

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

Both sides of the ballots may be used when necessary.

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

On 10 February 2007, Republic Act No. 9369
[33]
took effect. Section 13 of Republic Act No.
9369 amended Section 11 of Republic Act No. 8436 and renumbered the same as the new
Section 15 of Republic Act No. 8436. The pertinent portions of Section 15 of Republic Act No.
8436, as amended by Republic Act No. 9369, now read:
SECTION.15. Official Ballot. - The Commission shall prescribe the format of the electronic display and/or the
size and form of the official ballot, which shall contain the titles of the position to be filled and/or the
proposition to be voted upon in an initiative, referendum or plebiscite. Where practicable, electronic
displays must be constructed to present the names of all candidates for the same position in the same page
or screen, otherwise, the electronic displays must be constructed to present the entire ballot to the voter,
in a series of sequential pages, and to ensure that the voter sees all of the ballot options on all pages before
completing his or her vote and to allow the voter to review and change all ballot choices prior to completing
and casting his or her ballot. Under each position to be filled, the names of candidates shall be arranged
alphabetically by surname and uniformly indicated using the same type size. The maiden or married name
shall be listed in the official ballot, as preferred by the female candidate. Under each proposition to be vote
upon, the choices should be uniformly indicated using the same font and size.
A fixed space where the chairman of the board of election inspector shall affix her/her signature to
authenticate the official ballot shall be provided.
For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition of
registration/manifestation to participate in the election. Any person who files his certificate of candidacy
within this period shall only be considered as a candidate at the start of the campaign period for which he
filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall
effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a
public appointive office or position, including active members of the armed forces, and officers, and
employees in government-owned or-controlled corporations, shall be considered ipso factor resigned from
his/her office and must vacate the same at the start of the day of the filing of his/her certification of
candidacy. (Emphases ours.)

In view of the third paragraph of Section 15 of Republic Act No. 8436, as amended, the
Dissenting Opinion argues that Section 80 of the Omnibus Election Code can not be applied to
the present case since, as the Court held in Lanot v. Commission on Elections,
[34]
the election
campaign or partisan activity, which constitute the prohibited premature campaigning, should be
designed to promote the election or defeat of a particular candidate or candidates. Under
Penera vs. COMELEC
present election laws, while a person may have filed his/her COC within the prescribed period for
doing so, said person shall not be considered a candidate until the start of the campaign
period. Thus, prior to the start of the campaign period, there can be no election campaign or
partisan political activity designed to promote the election or defeat of a particular candidate to
public office because there is no candidate to speak of.

According to the Dissenting Opinion, even if Peneras acts before the start of the campaign
period constitute election campaigning or partisan political activities, these are not punishable
under Section 80 of the Omnibus Election Code given that she was not yet a candidate at that
time. On the other hand, Peneras acts, if committed within the campaign period, when she was
already a candidate, are likewise not covered by Section 80 as this provision punishes only acts
outside the campaign period.

The Dissenting Opinion ultimately concludes that because of Section 15 of Republic Act No.
8436, as amended, the prohibited act of premature campaigning in Section 80 of the Omnibus
Election Code, is practically impossible to commit at any time.

We disagree. Section 80 of the Omnibus Election Code remains relevant and applicable
despite Section 15 of Republic Act No. 8436, as amended.

A close reading of the entire Republic Act No. 9369, which amended Republic Act No. 8436,
would readily reveal that that it did not contain an express repeal of Section 80 of the Omnibus
Election Code. An express repeal is one wherein a statute declares, usually in its repealing
clause, that a particular and specific law, identified by its number or title, is repealed.
[35]
Absent
this specific requirement, an express repeal may not be presumed.

Although the title of Republic Act No. 9369 particularly mentioned the amendment of
Batas Pambansa Blg. 881, or the Omnibus Election Code, to wit:

An Act Amending Republic Act No. 8436, Entitled "An Act Authorizing the Commission on Elections to Use
an Automated Election System x x x, Amending for the Purpose Batas Pambansa Blg. 881, As Amended x x
x. (Emphasis ours.),
Penera vs. COMELEC

said title explicitly mentions, not the repeal, but the amendment of Batas Pambansa Blg.
881. Such fact is indeed very material. Repeal of a law means its complete abrogation by the
enactment of a subsequent statute, whereas the amendment of a statute means an alteration in
the law already existing, leaving some part of the original still standing.
[36]
Section 80 of the
Omnibus Election Code is not even one of the specific provisions of the said code that were
expressly amended by Republic Act No. 9369.

Additionally, Section 46,
[37]
the repealing clause of Republic Act No. 9369, states that:

Sec. 46. Repealing Clause. All laws, presidential decrees, executive orders, rules and regulations or
parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly.

Section 46 of Republic Act No. 9369 is a general repealing clause. It is a clause which
predicates the intended repeal under the condition that asubstantial conflict must be found in
existing and prior acts. The failure to add a specific repealing clause indicates that the intent was
not to repeal any existing law, unless an irreconcilable inconsistency and repugnancy exist in the
terms of the new and old laws. This latter situation falls under the category of an implied
repeal.
[38]


Well-settled is the rule in statutory construction that implied repeals are disfavored. In
order to effect a repeal by implication, the later statute must be so irreconcilably inconsistent
and repugnant with the existing law that they cannot be made to reconcile and stand
together. The clearest case possible must be made before the inference of implied repeal may
be drawn, for inconsistency is never presumed. There must be a showing of repugnance clear
and convincing in character. The language used in the later statute must be such as to render it
irreconcilable with what had been formerly enacted. An inconsistency that falls short of that
standard does not suffice.
[39]


Courts of justice, when confronted with apparently conflicting statutes, should endeavor
to reconcile the same instead of declaring outright the invalidity of one as against the
other. Such alacrity should be avoided. The wise policy is for the judge to harmonize them if this
is possible, bearing in mind that they are equally the handiwork of the same legislature, and so
Penera vs. COMELEC
give effect to both while at the same time also according due respect to a coordinate department
of the government.
[40]


To our mind, there is no absolute and irreconcilable incompatibility between Section 15 of
Republic Act No. 8436, as amended, and Section 80 of the Omnibus Election Code, which defines
the prohibited act of premature campaigning. It is possible to harmonize and reconcile these two
provisions and, thus, give effect to both.

The following points are explanatory:

First, Section 80 of the Omnibus Election Code, on premature campaigning, explicitly
provides that *i+t shall be unlawful for any person, whether or not a voter or candidate, or for
any party, or association of persons, to engage in an election campaign or partisan political
activity, except during the campaign period. Very simply, premature campaigning may be
committed even by a person who is not a candidate.

For this reason, the plain declaration in Lanot that *w]hat Section 80 of the Omnibus
Election Code prohibits is an election campaign or partisan political activity by a
candidate outside of the campaign period,
[41]
is clearly erroneous.

Second, Section 79(b) of the Omnibus Election Code defines election campaign or partisan
political activity in the following manner:

SECTION 79. Definitions. - As used in this Code:

x x x x

(b) The term "election campaign" or "partisan political activity" refers to an act designed to
promote the election or defeat of a particular candidate or candidates to a public office which shall include:

(1) Forming organizations, associations, clubs, committees or other groups of persons for the
purpose of soliciting votes and/or undertaking any campaign for or against a candidate;
Penera vs. COMELEC

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies,
for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a
candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for or against the
election of any candidate for public office;

(4) Publishing or distributing campaign literature or materials designed to support or oppose the
election of any candidate; or

(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

True, that pursuant to Section 15 of Republic Act No. 8436, as amended, even after the
filing of the COC but before the start of the campaign period, a person is not yet officially
considered a candidate. Nevertheless, a person, upon the filing of his/her
COC, already explicitly declares his/her intentionto run as a candidate in the coming
elections. The commission by such a person of any of the acts enumerated under Section 79(b)
of the Omnibus Election Code (i.e., holding rallies or parades, making speeches, etc.) can, thus, be
logically and reasonably construed as for the purpose of promoting his/her intended candidacy.

When the campaign period starts and said person proceeds with his/her candidacy, his/her
intent turning into actuality, we can already consider his/her acts, after the filing of his/her COC
and prior to the campaign period, as the promotion of his/her election as a candidate, hence,
constituting premature campaigning, for which he/she may be disqualified. Also, conversely, if
said person, for any reason, withdraws his/her COC before the campaign period, then there is no
point to view his/her acts prior to said period as acts for the promotion of his/her election as a
candidate. In the latter case, there can be no premature campaigning as there is no candidate,
whose disqualification may be sought, to begin with.
[42]


Third, in connection with the preceding discussion, the line in Section 15 of Republic Act No.
8436, as amended, which provides that any unlawful act or omission applicable to a candidate
shall take effect only upon the start of the campaign period, does not mean that the acts
Penera vs. COMELEC
constituting premature campaigning can only be committed, for which the offender may be
disqualified, during the campaign period. Contrary to the pronouncement in the
dissent,nowhere in the said proviso was it stated that campaigning before the start of the
campaign period is lawful, such that the offender may freely carry out the same with impunity.

As previously established, a person, after filing his/her COC but prior to his/her becoming a
candidate (thus, prior to the start of the campaign period), can already commit the acts
described under Section 79(b) of the Omnibus Election Code as election campaign or partisan
political activity. However, only after said person officially becomes a candidate, at the beginning
of the campaign period, can said acts be given effect as premature campaigning under Section 80
of the Omnibus Election Code. Only after said person officially becomes a candidate, at the start
of the campaign period, can his/herdisqualification be sought for acts constituting premature
campaigning. Obviously, it is only at the start of the campaign period, when the person
officially becomes a candidate, that the undue and iniquitous advantages of his/her prior acts,
constituting premature campaigning, shall accrue to his/her benefit. Compared to the other
candidates who are only about to begin their election campaign, a candidate who had previously
engaged in premature campaigning already enjoys an unfair headstart in promoting his/her
candidacy.

As can be gleaned from the foregoing disquisition, harmony in the provisions of Sections 80
and 79 of the Omnibus Election Code, as well as Section 15 of Republic Act No. 8436, as
amended, is not only very possible, but in fact desirable, necessary and consistent with the
legislative intent and policy of the law.

The laudable and exemplary intention behind the prohibition against premature
campaigning, as declared in Chavez v. Commission on Elections,
[43]
is to level the playing field for
candidates of public office, to equalize the situation between the popular or rich candidates, on
one hand, and lesser-known or poorer candidates, on the other, by preventing the former from
enjoying undue advantage in exposure and publicity on account of their resources and
popularity. The intention for prohibiting premature campaigning, as explained in Chavez, could
not have been significantly altered or affected by Republic Act No. 8436, as amended by Republic
Act No. 9369, the avowed purpose of which is to carry-on the automation of the election
system. Whether the election would be held under the manual or the automated system, the
need for prohibiting premature campaigning to level the playing field between the popular or
Penera vs. COMELEC
rich candidates, on one hand, and the lesser-known or poorer candidates, on the other, by
allowing them to campaign only within the same limited period remains.

We cannot stress strongly enough that premature campaigning is a pernicious act that is
continuously threatening to undermine the conduct of fair and credible elections in our country,
no matter how great or small the acts constituting the same are. The choice as to who among
the candidates will the voting public bestow the privilege of holding public office should not be
swayed by the shrewd conduct, verging on bad faith, of some individuals who are able to spend
resources to promote their candidacies in advance of the period slated for campaign activities.

Verily, the consequences provided for in Section 68
[44]
of the Omnibus Election Code for the
commission of the prohibited act of premature campaigning are severe: the candidate who is
declared guilty of committing the offense shall be disqualified from continuing as a candidate, or,
if he/she has been elected, from holding office. Not to mention that said candidate also faces
criminal prosecution for an election offense under Section 262 of the same Code.

The Dissenting Opinion, therefore, should not be too quick to pronounce the
ineffectiveness or repeal of Section 80 of the Omnibus Election Code just because of a change
in the meaning of candidate by Section 15 of Republic Act No. 8436, as amended, primarily, for
administrative purposes. An interpretation should be avoided under which a statute or
provision being construed is defeated, or as otherwise expressed, nullified, destroyed,
emasculated, repealed, explained away, or rendered insignificant, meaningless, inoperative, or
nugatory.
[45]
Indeed, not only will the prohibited act of premature campaigning be officially
decriminalized, the value and significance of having a campaign period before the conduct of
elections would also be utterly negated. Any unscrupulous individual with the deepest of
campaign war chests could then afford to spend his/her resources to promote his/her candidacy
well ahead of everyone else. Such is the very evil that the law seeks to prevent. Our lawmakers
could not have intended to cause such an absurd situation.


The Dissenting Opinion attempts to brush aside our preceding arguments by contending
that there is no room for statutory construction in the present case since Section 15 of Republic
Act No. 8436,
[46]
as amended by Section 13 of Republic Act No. 9369,
[47]
is crystal clear in its
Penera vs. COMELEC
meaning. We disagree. There would only be no need for statutory construction if there is a
provision in Republic Act No. 8436 or Republic Act No. 9369 that explicitly states that there shall
be no more premature campaigning. But absent the same, our position herein, as well as that of
the Dissenting Opinion, necessarily rest on our respective construction of the legal provisions
involved in this case.

Notably, while faulting us for resorting to statutory construction to resolve the instant
case, the Dissenting Opinion itself cites a rule of statutory construction, particularly, that penal
laws should be liberally construed in favor of the offender. The Dissenting Opinion asserts that
because of the third paragraph in Section 15 of Republic Act No. 8436, as amended, the election
offense described in Section 80 of the Omnibus Election Code is practically impossible to commit
at any time and that this flaw in the law, which defines a criminal act, must be construed in favor
of Penera, the offender in the instant case.

The application of the above rule is uncalled for. It was acknowledged in Lanot that a
disqualification case has two aspects: one, electoral;
[48]
the other, criminal.
[49]
The instant case
concerns only the electoral aspect of the disqualification case. Any discussion herein on the
matter of Peneras criminal liability for premature campaigning would be nothing more
than obiter dictum. More importantly, as heretofore already elaborated upon, Section 15 of
Republic Act No. 8436, as amended, did not expressly or even impliedly repeal Section 80 of the
Omnibus Election Code, and these two provisions, based on legislative intent and policy, can be
harmoniously interpreted and given effect. Thus, there is no flaw created in the law, arising from
Section 15 of Republic Act No. 8436, as amended, which needed to be construed in Peneras
favor.

The Dissenting Opinion further expresses the fear that pursuant to our theory, all the
politicians with infomercials prior to the filing of their COCs would be subject to
disqualification, and this would involve practically all the prospective presidential candidates who
are now leading in the surveys.

This fear is utterly unfounded. It is the filing by the person of his/her COC through which
he/she explicitly declares his/her intention to run as a candidate in the coming elections. It is
such declaration which would color the subsequent acts of said person to be election
campaigning or partisan political activities as described under Section 79(b) of the Omnibus
Penera vs. COMELEC
Election Code. It bears to point out that, at this point, no politician has yet submitted his/her
COC. Also, the plain solution to this rather misplaced apprehension is for the politicians
themselves to adhere to the letter and intent of the law and keep within the bounds of fair play
in the pursuit of their candidacies. This would mean that after filing their COCs, the prudent and
proper course for them to take is to wait for the designated start of the campaign period before
they commence their election campaign or partisan political activities. Indeed, such is the only
way for them to avoid disqualification on the ground of premature campaigning. It is not for us
to carve out exceptions to the law, much more to decree away the repeal thereof, in order to
accommodate any class of individuals, where no such exception or repeal is warranted.

Lastly, as we have observed at the beginning, Peneras Petition is essentially grounded on
questions of fact. Peneras defense against her disqualification, before the COMELEC and this
Court, rests on the arguments that she and her partymates did not actually hold a motorcade;
that their supporters spontaneously accompanied Penera and the other candidates from her
political party when they filed their certificates of candidacy; that the alleged motorcade was
actually the dispersal of the supporters of Penera and the other candidates from her party as said
supporters were dropped off at their respective barangays; and that Andanar was not able to
present competent, admissible, and substantial evidence to prove that Penera committed
premature campaigning. Penera herself never raised the argument that she can no longer be
disqualified for premature campaigning under Section 80, in relation to Section 68, of the
Omnibus Election Code, since the said provisions have already been, in the words of the
Dissenting Opinion, rendered inapplicable, repealed, and done away with by Section 15
of Republic Act No. 8436, as amended. This legal argument was wholly raised by the Dissenting
Opinion.

As a rule, a party who deliberately adopts a certain theory upon which the case is tried and
decided by the lower court will not be permitted to change theory on appeal. Points of law,
theories, issues, and arguments not brought to the attention of the lower court need not be, and
ordinarily will not be, considered by a reviewing court, as these cannot be raised for the first time
at such late stage. Basic considerations of due process underlie this rule.
[50]
If we do not allow
and consider the change in theory of a case by a party on appeal, should we not also refrain
from motu proprio adopting a theory which none of the parties even raised before us?

Nonetheless, the questions of fact raised by Penera and questions of law raised by the
Dissenting Opinion must all be resolved against Penera. Penera should be disqualified from
Penera vs. COMELEC
holding office as Mayor of Sta. Monica for having committed premature campaigning when, right
after she filed her COC, but still a day before the start of the campaign period, she took part in a
motorcade, which consisted of two jeepneys and ten motorcycles laden with multi-colored
balloons that went around several barangays of Sta. Monica, and gave away candies to the
crowd.

Succession

Despite the disqualification of Penera, we cannot grant Andanars prayer to be allowed to
assume the position of Mayor of Sta. Monica. The well-established principle is that the
ineligibility of a candidate receiving majority votes does not entitle the candidate receiving the
next highest number of votes to be declared elected.
[51]


In this case, the rules on succession under the Local Government Code shall apply, to wit:

SECTION 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice-
Mayor. If a permanent vacancy occurs in the office of the xxx mayor, the x x x vice-mayor concerned
shall become the x x x mayor.

x x x x

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


Considering Peneras disqualification from holding office as Mayor of Sta. Monica, the
proclaimed Vice-Mayor shall then succeed as Mayor.

WHEREFORE, premises considered, the instant Petition for Certiorari is
hereby DISMISSED. The Resolutions dated 24 July 2007 and 30 January 2008 of the COMELEC
Penera vs. COMELEC
Second Division and en banc, respectively, in SPA No. 07-224 are hereby AFFIRMED. In view of
the disqualification of petitioner Rosalinda A. Penera from running for the office of Mayor of Sta.
Monica, Surigao del Norte, and the resulting permanent vacancy therein, it is
herebyDECLARED that the proclaimed Vice-Mayor is the rightful successor to said office. The
Temporary Restraining Order issued on 4 March 2008 is herebyORDERED lifted. Costs against
the petitioner.


SO ORDERED.

Penera vs. COMELEC

EN BANC

[G.R. No. 181613. November 25, 2009]

ROSALINDA A. PENERA, petitioner, vs. COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, respondents.


(Present: PUNO, C.J., CARPIO, CORONA, CARPIO MORALES, CHICO-NAZARIO, VELASCO, JR., NACHURA, LEONARDO-DE
CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, and VILLARAMA, JR., JJ.)


R E S O L U T I O N

CARPIO, J.:

We grant Rosalinda A. Peneras (Penera) motion for reconsideration of this Courts Decision of 11 September 2009
(Decision).

The assailed Decision dismissed Peneras petition and affirmed the Resolution dated 30 July 2008 of the COMELEC En Banc
as well as the Resolution dated 24 July 2007 of the COMELEC Second Division. The Decision disqualified Penera from
running for the office of Mayor in Sta. Monica, Surigao del Norte and declared that the Vice-Mayor should succeed Penera.

In support of her motion for reconsideration, Penera submits the following arguments:

1. Penera was not yet a candidate at the time of the incident under Section 11 of RA 8436 as amended by Section 13 of RA
9369.

2. The petition for disqualification failed to submit convincing and substantial evidence against Penera for violation of
Section 80 of the Omnibus Election Code.
Penera vs. COMELEC

3. Penera never admitted the allegations of the petition for disqualification and has consistently disputed the charge of
premature campaigning.

4. The admission that Penera participated in a motorcade is not the same as admitting she engaged in premature election
campaigning.

Section 79(a) of the Omnibus Election Code defines a candidate as any person aspiring for or seeking an elective public
office, who has filed a certificate of candidacy x x x. The second sentence, third paragraph, Section 15 of RA 8436, as
amended by Section 13 of RA 9369, provides that *a+ny person who files his certificate of candidacy within [the period for
filing] shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of
candidacy. The immediately succeeding proviso in the same third paragraph states that unlawful acts or omissions
applicable to a candidate shall take effect only upon the start of the aforesaid campaign period. These two provisions
determine the resolution of this case.

The Decision states that *w+hen the campaign period starts and *the person who filed his certificate of candidacy] proceeds
with his/her candidacy, his/her intent turning into actuality, we can already consider his/her acts, after the filing of his/her
COC and prior to the campaign period, as the promotion of his/her election as a candidate, hence, constituting premature
campaigning, for which he/she may be disqualified.* 1+

Under the Decision, a candidate may already be liable for premature campaigning after the filing of the certificate of
candidacy but even before the start of the campaign period. From the filing of the certificate of candidacy, even long before
the start of the campaign period, the Decision considers the partisan political acts of a person so filing a certificate of
candidacy as the promotion of his/her election as a candidate. Thus, such person can be disqualified for premature
campaigning for acts done before the start of the campaign period. In short, the Decision considers a person who files a
certificate of candidacy already a candidate even before the start of the campaign period.

The assailed Decision is contrary to the clear intent and letter of the law.

The Decision reverses Lanot v. COMELEC,[2] which held that a person who files a certificate of candidacy is not a candidate
until the start of the campaign period. In Lanot, this Court explained:

Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are: (1) a person engages in an
election campaign or partisan political activity; (2) the act is designed to promote the election or defeat of a particular
candidate or candidates; (3) the act is done outside the campaign period.
Penera vs. COMELEC

The second element requires the existence of a candidate. Under Section 79(a), a candidate is one who has filed a
certificate of candidacy to an elective public office. Unless one has filed his certificate of candidacy, he is not a candidate.
The third element requires that the campaign period has not started when the election campaign or partisan political
activity is committed.

Assuming that all candidates to a public office file their certificates of candidacy on the last day, which under Section 75 of
the Omnibus Election Code is the day before the start of the campaign period, then no one can be prosecuted for violation
of Section 80 for acts done prior to such last day. Before such last day, there is no particular candidate or candidates to
campaign for or against. On the day immediately after the last day of filing, the campaign period starts and Section 80
ceases to apply since Section 80 covers only acts done outside the campaign period.

Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only apply to acts done on such last
day, which is before the start of the campaign period and after at least one candidate has filed his certificate of candidacy.
This is perhaps the reason why those running for elective public office usually file their certificates of candidacy on the last
day or close to the last day.

There is no dispute that Eusebios acts of election campaigning or partisan political activities were committed outside of the
campaign period. The only question is whether Eusebio, who filed his certificate of candidacy on 29 December 2003, was a
candidate when he committed those acts before the start of the campaign period on 24 March 2004.

Section 11 of Republic Act No. 8436 (RA 8436) moved the deadline for the filing of certificates of candidacy to 120 days
before election day. Thus, the original deadline was moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The
crucial question is: did this change in the deadline for filing the certificate of candidacy make one who filed his certificate of
candidacy before 2 January 2004 immediately liable for violation of Section 80 if he engaged in election campaign or
partisan political activities prior to the start of the campaign period on 24 March 2004?

Section 11 of RA 8436 provides:

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

Penera vs. COMELEC
Both sides of the ballots may be used when necessary.

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

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

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

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

Under Section 11 of RA 8436, the only purpose for the early filing of certificates of candidacy is to give ample time for the
printing of official ballots. This is clear from the following deliberations of the Bicameral Conference Committee:

SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the same[,] uniform for local and national
officials?

THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the present periods.

Penera vs. COMELEC
SENATOR GONZALES. But the moment one files a certificate of candidacy, hes already a candidate, and there are many
prohibited acts on the part of candidate.

THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .

SENATOR GONZALES. And you cannot say that the campaign period has not yet began (sic).

THE CHAIRMAN (REP. TANJUATCO). If we dont provide that the filing of the certificate will not bring about ones being a
candidate.

SENATOR GONZALES. If thats a fact, the law cannot change a fact.

THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the certificate of candidacy will not result in
that official vacating his position, we can also provide that insofar he is concerned, election period or his being a candidate
will not yet commence. Because here, the reason why we are doing an early filing is to afford enough time to prepare this
machine readable ballots.

So, with the manifestations from the Commission on Elections, Mr. Chairman, the House Panel will withdraw its proposal
and will agree to the 120-day period provided in the Senate version.

THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.

x x x x

SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts which apply immediately upon
being a candidate?

THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to afford the Comelec enough time to
print the ballots, this provision does not intend to change the campaign periods as presently, or rather election periods as
presently fixed by existing law.

Penera vs. COMELEC
THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other prohibition.

THE CHAIRMAN (REP. TANJUATCO). Thats right.

THE ACTING CHAIRMAN (SEN. FERNAN). Okay.

THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict anymore because we are talking
about the 120-day period before election as the last day of filing a certificate of candidacy, election period starts 120 days
also. So that is election period already. But he will still not be considered as a candidate.

Thus, because of the early deadline of 2 January 2004 for purposes of printing of official ballots, Eusebio filed his certificate
of candidacy on 29 December 2003. Congress, however, never intended the filing of a certificate of candidacy before 2
January 2004 to make the person filing to become immediately a candidate for purposes other than the printing of
ballots. This legislative intent prevents the immediate application of Section 80 of the Omnibus Election Code to those filing
to meet the early deadline. The clear intention of Congress was to preserve the election periods as x x x fixed by existing
law prior to RA 8436 and that one who files to meet the early deadline will still not be considered as a candidate.*3+
(Emphasis in the original)

Lanot was decided on the ground that one who files a certificate of candidacy is not a candidate until the start of the
campaign period. This ground was based on the deliberations of the legislators who explained the intent of the provisions of
RA 8436, which laid the legal framework for an automated election system. There was no express provision in the original
RA 8436 stating that one who files a certificate of candidacy is not a candidate until the start of the campaign period.

When Congress amended RA 8436, Congress decided to expressly incorporate the Lanot doctrine into law, realizing that
Lanot merely relied on the deliberations of Congress in holding that

The clear intention of Congress was to preserve the election periods as x x x fixed by existing law prior to RA 8436 and
that one who files to meet the early deadline will still not be considered as a candidate.*4+ (Emphasis supplied)

Congress wanted to insure that no person filing a certificate of candidacy under the early deadline required by the
automated election system would be disqualified or penalized for any partisan political act done before the start of the
campaign period. Thus, in enacting RA 9369, Congress expressly wrote the Lanotsecond sentence, third paragraph of the
amended Section 15 of RA 8436, thus: doctrine into the

Penera vs. COMELEC
x x x

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

Congress elevated the Lanot doctrine into a statute by specifically inserting it as the second sentence of the third paragraph
of the amended Section 15 of RA 8436, which cannot be annulled by this Court except on the sole ground of its
unconstitutionality. The Decision cannot reverse Lanot without repealing this second sentence, because to reverse Lanot
would mean repealing this second sentence.

The assailed Decision, however, in reversing Lanot does not claim that this second sentence or any portion of Section 15 of
RA 8436, as amended by RA 9369, is unconstitutional. In fact, the Decision considers the entire Section 15 good law. Thus,
the Decision is self-contradictory reversing Lanot but maintaining the constitutionality of the second sentence, which
embodies the Lanot doctrine. In so doing, the Decision is irreconcilably in conflict with the clear intent and letter of the
second sentence, third paragraph, Section 15 of RA 8436, as amended by RA 9369.

In enacting RA 9369, Congress even further clarified the first proviso in the third paragraph of Section 15 of RA 8436. The
original provision in RA 8436 states

x x x Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the
aforesaid campaign period, x x x.

In RA 9369, Congress inserted the word only so that the first proviso now reads

x x x Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the
aforesaid campaign period x x x. (Emphasis supplied)

Penera vs. COMELEC
Thus, Congress not only reiterated but also strengthened its mandatory directive that election offenses can be committed
by a candidate only upon the start of the campaign period. This clearly means that before the start of the campaign
period, such election offenses cannot be so committed.

When the applicable provisions of RA 8436, as amended by RA 9369, are read together, these provisions of law do not
consider Penera a candidate for purposes other than the printing of ballots, until the start of the campaign period. There is
absolutely no room for any other interpretation.

We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio:

x x x The definition of a candidate in Section 79(a) of the Omnibus Election Code should be read together with the
amended Section 15 of RA 8436. A candidate refers to any person aspiring for or seeking an elective public office, who
has filed a certificate of candidacy by himself or through an accredited political party, aggroupment or coalition of parties.
However, it is no longer enough to merely file a certificate of candidacy for a person to be considered a candidate because
any person who files his certificate of candidacy within *the filing+ period shall only be considered a candidate at the start
of the campaign period for which he filed his certificate of candidacy. Any person may thus file a certificate of candidacy on
any day within the prescribed period for filing a certificate of candidacy yet that person shall be considered a candidate, for
purposes of determining ones possible violations of election laws, only during the campaign period. Indeed, there is no
election campaign or partisan political activity designed to promote the election or defeat of a particular candidate or
candidates to public office simply because there is no candidate to speak of prior to the start of the campaign period.
Therefore, despite the filing of her certificate of candidacy, the law does not consider Penera a candidate at the time of the
questioned motorcade which was conducted a day before the start of the campaign period. x x x

The campaign period for local officials began on 30 March 2007 and ended on 12 May 2007. Penera filed her certificate of
candidacy on 29 March 2007. Penera was thus a candidate on 29 March 2009 only for purposes of printing the ballots. On
29 March 2007, the law still did not consider Penera a candidate for purposes other than the printing of ballots. Acts
committed by Penera prior to 30 March 2007, the date when she became a candidate, even if constituting election
campaigning or partisan political activities, are not punishable under Section 80 of the Omnibus Election Code. Such acts are
within the realm of a citizens protected freedom of expression. Acts committed by Penera within the campaign period are
not covered by Section 80 as Section 80 punishes only acts outside the campaign period.[5]

The assailed Decision gives a specious reason in explaining away the first proviso in the third paragraph, the amended
Section 15 of RA 8436 that election offenses applicable to candidates take effect only upon the start of the campaign
period. The Decision states that:

x x x *T+he line in Section 15 of Republic Act No. 8436, as amended, which provides that any unlawful act or omission
applicable to a candidate shall take effect only upon the start of the campaign period, does not mean that the acts
Penera vs. COMELEC
constituting premature campaigning can only be committed, for which the offender may be disqualified, during the
campaign period. Contrary to the pronouncement in the dissent, nowhere in said proviso was it stated that campaigning
before the start of the campaign period is lawful, such that the offender may freely carry out the same with impunity.

As previously established, a person, after filing his/her COC but prior to his/her becoming a candidate (thus, prior to the
start of the campaign period), can already commit the acts described under Section 79(b) of the Omnibus Election Code as
election campaign or partisan political activity, However, only after said person officially becomes a candidate, at the
beginning of the campaign period, can said acts be given effect as premature campaigning under Section 80 of the Omnibus
Election Code. Only after said person officially becomes a candidate, at the start of the campaign period, can his/her
disqualification be sought for acts constituting premature campaigning. Obviously, it is only at the start of the campaign
period, when the person officially becomes a candidate, that the undue and iniquitous advantages of his/her prior acts,
constituting premature campaigning, shall accrue to his/her benefit. Compared to the other candidates who are only about
to begin their election campaign, a candidate who had previously engaged in premature campaigning already enjoys an
unfair headstart in promoting his/her candidacy.[6] (Emphasis supplied)

It is a basic principle of law that any act is lawful unless expressly declared unlawful by law. This is specially true to
expression or speech, which Congress cannot outlaw except on very narrow grounds involving clear, present and imminent
danger to the State. The mere fact that the law does not declare an act unlawful ipso facto means that the act is lawful.
Thus, there is no need for Congress to declare in Section 15 of RA 8436, as amended by RA 9369, that political partisan
activities before the start of the campaign period are lawful. It is sufficient for Congress to state that any unlawful act or
omission applicable to a candidate shall take effect only upon the start of the campaign period. The only inescapable and
logical result is that the same acts, if done before the start of the campaign period, are lawful.

In laymans language, this means that a candidate is liable for an election offense only for acts done during the campaign
period, not before. The law is clear as daylight any election offense that may be committed by a candidate under any
election law cannot be committed before the start of the campaign period. In ruling that Penera is liable for premature
campaigning for partisan political acts before the start of the campaigning, the assailed Decision ignores the clear and
express provision of the law.

The Decision rationalizes that a candidate who commits premature campaigning can be disqualified or prosecuted only
after the start of the campaign period. This is not what the law says. What the law says is any unlawful act or omission
applicable to a candidate shall take effect only upon the start of the campaign period. The plain meaning of this provision is
that the effective date when partisan political acts become unlawful as to a candidate is when the campaign period starts.
Before the start of the campaign period, the same partisan political acts are lawful.

The law does not state, as the assailed Decision asserts, that partisan political acts done by a candidate before the campaign
period are unlawful, but may be prosecuted only upon the start of the campaign period. Neither does the law state that
partisan political acts done by a candidate before the campaign period are temporarily lawful, but becomes unlawful upon
Penera vs. COMELEC
the start of the campaign period. This is clearly not the language of the law. Besides, such a law as envisioned in the
Decision, which defines a criminal act and curtails freedom of expression and speech, would be void for vagueness.

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

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

WHEREFORE, we GRANT petitioner Rosalinda A. Peneras Motion for Reconsideration. We SET ASIDE

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





EN BANC


MILES ANDREW MARI ROCES, G.R. NO. 167499
Petitioner,
Present:

DAVIDE, JR., C.J .,
PUNO,
PANGANIBAN,
QUISUMBING,
YNARES-SANTIAGO,
- versus - SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
CALLEJO, SR.,
AZCUNA,
TINGA,
CHICO-NAZARIO, and
GARCIA, J J .
HOUSE OF REPRESENTATIVES
ELECTORAL TRIBUNAL and Promulgated:
MARIA ZENAIDA B. ANG PING,
Respondents. September 15, 2005

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x


DECISION
PUNO, J .:
If there is a right, there must be a remedy is an old legal adage. The case at bar provides the
perfect setting for the application of this adage which is a demand for simple justice. The facts will
Roces vs. HRET
show how the respondents right to run for a public office has been frustrated by unscrupulous
officials in charge of the sanctity of our electoral process.
Petitioner Miles Roces (Roces) and former Congressman Harry Ang Ping (Mr. Ang Ping)
filed their respective certificates of candidacy (COCs) for the position of Representative for the
3
rd
Congressional District of Manila in the May 2004 elections.
On January 5, 2004, a registered voter of Manila named Alejandro Gomez questioned Mr.
Ang Pings candidacy before the COMELEC through a petition to deny due course or cancel his
COC.
[1]
The petition alleged that Mr. Ang Ping misrepresented himself to be a natural-born citizen,
hence was disqualified for the position.
Acting for the COMELEC First Division, Commissioner Virgilio O. Garcilliano issued an
order on April 30, 2004 scheduling the promulgation of its resolution on May 5, 2004.
[2]
Two
days before the scheduled promulgation or on May 3, 2004, Mr. Ang Ping filed with the
COMELEC a Sworn Declaration of Withdrawal of his COC.
[3]
The next day, May 4, 2004, the
General Counsel for the Nationalist Peoples Coalition, the political party of Mr. Ang Ping, sought
that Mr. Ang Pings wife, Ma. Zenaida Ang Ping (Mrs. Ang Ping), substitute for him.
[4]
Mr. Ang
Ping also filed a motion to cancel the scheduled promulgation and dismiss the petition to deny due
course or cancel his COC on the same date.
[5]
On May 5, 2004, Commissioner Resurreccion Z.
Borra deferred the promulgation for lack of quorum as he was the sole Commissioner in
attendance.
[6]

Despite all these developments, the COMELEC First Division, through Commissioners
Rufino S.B. Javier, Resurreccion Z. Borra, and Virgilio O. Garcilliano, issued
a resolution granting the petition to deny due course to Mr. Ang Pings COC and ordering the
Board of Election Inspectors of Manila not to count any vote cast in his favor.
[7]
It ruled that
the resolution which was originally scheduled for promulgation by Commissioner Garcilliano
on May 5, 2004 was instead promulgated on April 30, 2004, the same date that the notice of
Roces vs. HRET
promulgation was issued.
[8]
The resolution was served on Mr. Ang Pings counsel on May 8,
2004.
[9]

Compounding the woes of Mr. Ang Ping, and despite the deferment of the promulgation
by Commissioner Borra at a hearing on May 5, 2004,the COMELEC First Division issued on
the same date an order denying Mr. Ang Pings motion to dismiss. It held that the motion to
dismiss was filedafter the promulgation of the April 30, 2004 resolution granting the petition
to deny due course to Mr. Ang Pings COC.
[10]
On May 9, 2004, and before the expiration of the
five-day reglementary period,
[11]
Mr. Ang Ping moved for reconsideration of the April 30,
2004 resolution and the case was elevated to the COMELEC en banc.
[12]

While the case was still with the COMELEC First Division, or on May 8, 2004, the
COMELEC en banc issued Resolution No. 6823, declaring moot Mr. Ang Pings Affidavit of
Withdrawal, denying due course to the substitute COC of Mrs. Ang Ping and ordering the
Regional Election Director to delete Mr. Ang Pings name from the certified list of
candidates.
[13]
Among the signatories to the Resolution were Commissioners Javier, Borra, and
Garcilliano of the COMELEC First Division before which the petition to deny due course was
still pending.
[14]
Mr. Ang Ping had no knowledge of the resolution.
Racing against time or on May 11, 2004, the spouses Ang Ping repaired to this Court and
filed a petition for certiorari with prayer for temporary restraining order, status quo order and/or
writ of preliminary injunction docketed as G.R. No. 163259, assailing COMELEC Resolution No.
6823.
[15]
The next day or on May 12, 2004, this Court issued a resolution requiring Roces to
comment and denied the issuance of an order suspending the proclamation.
[16]

On the election day itself, the Manila City Board of Canvassers resolved not to canvass
the votes for Mr. or Mrs. Ang Ping citing COMELEC Resolution No. 6823.
[17]
On May 15,
2004, after counting only 6,347 votes out of the 150,387 registered voters in the district, it
proclaimed Roces winner.
[18]
The spouses Ang Ping appealed the Board resolution to the
Roces vs. HRET
COMELEC en banc
[19]
and filed a petition to annul the proclamation
[20]
but these were dismissed
by COMELECs Resolution No. 7257 and Omnibus Order of July 6, 2004.
[21]

On May 19, 2004, Roces filed his Comment to the petition of spouses Ang Ping with this
Court.
[22]
On May 25, 2004, this Court required the spouses Ang Ping to file their consolidated
reply to the Comment.
[23]

On May 24, 2004, Mrs. Ang Ping filed an Election Protest Ad Cautelam with the House of
Representatives Electoral Tribunal (HRET), which was docketed as HRET Case No. 04-004.
[24]
In
her election protest, Mrs. Ang Ping alleged, among others, that COMELEC Resolution No. 6823
was a glaring case of deprivation of Mr. and Mrs. Ang Pings right to elevate SPC 04-224 to
the Commission en banc and that the COMELECs April 30, 2004 resolution was irregularly
promulgated. Roces filed his answer alleging, among others, that the HRET has no jurisdiction
over the case.
[25]

On July 16, 2004, the spouses Ang Ping filed their consolidated reply with this
Court.
[26]
On July 27, 2004, we required Mrs. Ang Ping to show cause why the petition in G.R. No.
163259 should not be dismissed in view of the filing and pendency of HRET Case No. 04-
004.
[27]
In her Compliance filed onJuly 30, 2004, Mrs. Ang Ping explained that the issue of
whether the COMELEC gravely abused its discretion in issuing the COMELEC Resolution No.
6823 may be ventilated as one of the issues to be settled in the HRET Election Protest since the
non-canvassing of the Ang Ping votes and the proclamation of petitioner Roces were founded on
COMELEC Resolution No. 6823 and were raised as the principal issues in the HRET Election
Protest. This notwithstanding, the spouses Ang Ping manifested that they will submit to any
disposal which this Honorable Court may find appropriate under the above circumstances and
would defer and will accept any order/resolution of the Honorable Court that would resolve to
dismiss the instant petition/controversy,but allowing them to pursue and concentrate their time
and effort in the above-mentioned Ad Cautela HRET Election Protest Case, which they
intend to convert to a REGULAR PROTEST case, in such an event.
[28]

Roces vs. HRET
On August 10, 2004, this Court dismissed G.R. No. 163259 in view of the pending
HRET protest filed by Mrs. Ang Ping.
[29]
The resolution eventually became final and
executory.
[30]
Thereafter, Mrs. Ang Ping filed in the HRET a motion to convert the ad
cautelam protest to a regular protest.The HRET granted the motion on September 9, 2004.
[31]

In the HRET, Roces filed a motion to dismiss the protest, assailing in the main
the personality of Mrs. Ang Ping to file the protest. It also raised the following issues: (1) whether
the HRET has jurisdiction to review COMELEC Resolution No. 6823; (2) whether Mrs. Ang Ping
can validly substitute for Mr. Ang Ping; (3) whether the protest may be resolved by mere canvass
of election returns; (4) whether the proceeding is a protest considering that it questions
proceedings held before the Manila City Board of Canvassers; (5) whether Mrs. Ang Ping could
claim any right to the ballots cast considering she was not listed in the certified list of COMELEC
candidates; (6) whether the petition is sufficient in form and substance despite failing to state the
specific precincts protested; and (7) whether forum shopping was committed.
After extensive oral arguments, the HRET denied Rocess motion to dismiss on March 3,
2005. It ruled that Mrs. Ang Ping was a proper party to file the protest against Roces since: (1)
there was no final COMELEC resolution disqualifying or denying due course to the COC of Mr.
Ang Ping, thus her substitution for the latter was legally permissible under the Omnibus Election
Code;
[32]
(2) she was one of the candidates voted for during election day in the 3
rd
District of
Manila;
[33]
and (3) the COMELEC Order of May 5, 2004 was of questionable validity for the
reason that: (a) it was issued in violation of its April 30, 2004 resolution setting the promulgation
for May 5, 2004 and despite the fact that the records had not yet reached the COMELEC en
banc;
[34]
and (b) there was no prior notice and hearing in violation of Section 78 of the Omnibus
Election Code.
[35]
Rocess motion for reconsideration of the HRET order was denied on March 21,
2005.
Roces then filed the present petition for certiorari assailing the two preceding resolutions
of the HRET.
[36]
The issues for resolution are: (1) whether or not the HRET committed grave
abuse of discretion amounting to lack or excess of jurisdiction when it ruled that Mrs. Ang Ping is
Roces vs. HRET
a proper party to file the election protest despite the denial in due course and cancellation of her
COC under COMELEC Resolution No. 6823; and (2) whether or not HRET has jurisdiction to
review a resolution or order of the COMELEC and/or declare the same as void and disregard or set
it aside.
After several months or on April 28, 2005, the COMELEC en banc issued a resolution
denying Mr. Ang Pings motion for reconsideration of the COMELECs April 30, 2004 resolution
for being moot and academic due to the petitioners proclamation, Mr. Ang Pings withdrawal of
his candidacy and Mrs. Ang Pings attempt to substitute for her husband.
[37]

We hold that the HRET did not commit grave abuse of discretion amounting to lack or
excess of jurisdiction when it denied the petitioners motion to dismiss for the following reasons:
First. The HRET is the sole judge of all contests relating to the election, returns, and
qualifications of the members of the House of Representatives
[38]
and has the power to promulgate
procedural rules to govern proceedings brought before it.
[39]
This exclusive jurisdiction includes
the power to determine whether it has the authority to hear and determine the controversy
presented, and the right to decide whether that state of facts exists which confers jurisdiction, as
well as all other matters which arise in the case legitimately before it.
[40]
Accordingly, it has the
power to hear and determine, or inquire into, the question of its own jurisdiction, both as to
parties and as to subject matter, and to decide all questions, whether of law or fact, the
decision of which is necessary to determine the question of jurisdiction.
[41]
One of the three
essential elements of jurisdiction is that proper partiesmust be present.
[42]
Consequently, the
HRET merely exercised its exclusive jurisdiction when it ruled that Mrs. Ang Ping was a
proper party to contest the election of Roces.
Second. There is no dispute that to support his motion to dismiss, Roces offered as
evidence the COMELEC resolutions denying due course to Mrs. Ang Pings COC. In doing
so, Roces submitted to the HRET the admissibility and validity of these resolutions and the HRET
cannot be faulted in reviewing the said resolutions especially for the purpose of determining
Roces vs. HRET
whether Roces was able to discharge his burden of proving that Mrs. Ang Ping is not the proper
party to assail his election. In passing upon the COMELEC resolutions especially for that purpose,
it cannot be said that the HRET usurped the jurisdiction of the COMELEC.
On the merits of the HRET ruling, we hold that the HRET did not abuse its discretion in
holding that Mrs. Ang Ping is a proper party to contest the election of Roces. Under COMELEC
rules, the procedure of promulgation of a decision or resolution is as follows:
SECTION 5. Promulgation. The promulgation of a decision or
resolution of the Commission or a Division shall be made on a date previously fixed,
of which notice shall be served in advance upon the parties or their attorneys
personally or by registered mail or by telegram.
[43]


Promulgation is important because it determines when the reglementary period begins to
toll. In the case at bar, Commissioner Garcilliano fixed the promulgation of its resolution
whether to give due course to the candidacy of Mr. Ang Ping on May 5, 2004.
For mysterious reasons, the COMELEC First Division of Commissioner Garcillano did
not promulgate the resolution on May 5, 2004 in accordance with its notice of promulgation. In
violation of the abovecited rule, and despite the deferment of the promulgation by
Commissioner Borra to a date to be set by the COMELEC First Division, the resolution was
deemed promulgated by the COMELEC on April 30, 2004 when it was filed with the clerk of
court. The April 30, 2004 COMELEC resolution was received by Mr. Ang Pings counsel only
on May 8, 2004.
[44]

The mysterious April 30, 2004 resolution was thereafter used to run roughshod over
the rights of the Ang Pings. Thus, on May 5, 2004, the COMELEC First Division of
Commissioner Garcilliano denied Mr. Ang Pings motion to dismiss. Allegedly, Mr. Ang Pings
motion was filed after the April 30, 2004 resolution.
To make matters worse, the COMELEC en banc usurped the jurisdiction of the
COMELEC First Division when it issued Resolution No. 6823 on May 8, 2004 which ordered
the deletion of Mr. Ang Pings name from the Certified List of Candidates and denied the spouses
Roces vs. HRET
Ang Pings motions to withdraw and substitute despite the fact that: (1) the reglementary period of
Mr. Ang Ping to appeal had not yet expired; and (2) Mr. Ang Ping had filed a motion for
reconsideration of the preceding order on May 10, 2004 within the five-day reglementary
period. Nowhere is it provided in the law that the COMELEC en banc has the power to
assume jurisdiction motu proprio over a petition to deny due course pending before a division
of the Commission. Diametrically opposed thereto are the provisions of the Constitution and
COMELEC Rules of Procedure which provide that motions for reconsideration of the
COMELEC divisions decisions, resolutions, orders or rulings must first be filed in the Divisions
before the Commission en banc may take cognizance thereof, viz.:
SECTION 3. The Commission on Elections may sit en banc or in two
divisions, and shall promulgate its rules of procedure in order to expedite disposition
of election cases, including pre-proclamation controversies. All such election cases
shall be heard and decided in division, provided that motions for reconsideration
of decisions shall be decided by the Commission en banc.
[45]


SECTION 3. The Commission Sitting in Divisions. The Commission
shall sit in two (2) Divisions to hear and decideprotests or petitions in ordinary
actions, special actions, special cases, provisional remedies, contempt and special
proceedings except in accreditation of citizens' arms of the Commission.
[46]


SECTION 5. How Motion for Reconsideration Disposed Of. Upon the
filing of a motion to reconsider a decision, resolution, order or ruling of a
Division, the Clerk of Court concerned shall, within twenty-four (24) hours from the
filing thereof, notify the Presiding Commissioner. The latter shall within two (2)
days thereafter certify the case to the Commission en banc.

SECTION 6. Duty of Clerk of Court of Commission to Calendar Motion
for Resolution. The Clerk of Court concerned shall calendar the motion for
reconsideration for the resolution of the Commission en banc within ten (10)
days from the certification thereof. (Emphases supplied)
[47]



This premature COMELEC Resolution No. 6823 was then used on May 12, 2004, or on
the election day itself, by the Manila City Board of Canvassers as the basis of its resolution not to
canvass the votes for Mr. or Mrs. Ang Ping. It then proclaimed Roces the winner despite having
counted only 6,347 votes out of the 150,387 registered voters of the district.
[48]
Following
Roces vs. HRET
these highly suspect resolutions, Roces was proclaimed winner onMay 15, 2004. All told, it
cannot be denied that the effect of COMELEC en banc Resolution No. 6823 was to execute
the April 30, 2004 resolution of its First Division which, at that time, had not yet become
final and executory. These irregularities cannot be swept away by the belated COMELEC en
bancs April 28, 2005 resolution denying Mr. Ang Pings motion for reconsideration dated May
10, 2004.
[49]

It is argued that Mrs. Ang Pings motions for reconsideration and appeals cured whatever
defects occurred at the COMELEC. Citing T.H. Valderama & Sons, Inc. v. Drilon,
[50]
Roces
points to the petition for certiorari filed with this Court on May 11, 2004 by Mrs. Ang Ping
assailing COMELEC Resolution No. 6823 and her acquiescence to any appropriate action taken
(by the Court) including the dismissal of the above petition. Contrary to Rocess
posture, Valderama and its kin required that the aggrieved party be given an opportunity to be
heard. In the case at bar, it ought to be emphasized that the private respondent
was systematically denied the opportunity to be heard. The resolution of the COMELECs
First Division was made before its priorily set date of promulgation, deemed final and
executory by the COMELEC en banc in Resolution No. 6823 before expiry of the
reglementary period, and executed by the Manila City Board of Canvassers. The petition
for certiorari filed by Mrs. Ang Ping challenged these resolutions and could not have cured these
blatant violations of her right to due process. In truth, this Court referred the case of Mrs.
Ang Ping to the HRET where she has filed a protest ad cautelam.
There is no iota of doubt that the COMELECs resolutions are void ab initio for violating
Mrs. Ang Pings constitutional right to due process. Judgments entered in a proceeding failing to
comply with procedural due process are void, as is one entered by a court acting in a manner
inconsistent with due process.
[51]
A void judgment is defined as one that, from its inception, is a
complete nullity and without legal effect. A void judgment is not entitled to the respect accorded
to, and is attended by none of the consequences of, a valid adjudication. Indeed, a void judgment
need not be recognized by anyone, but may be entirely disregarded or declared inoperative
by any tribunal in which effect is sought to be given to it. It has no legal or binding force or
Roces vs. HRET
efficacy for any purpose or at any place. It cannot affect, impair, or create rights, nor can any
rights be based on it. All proceedings founded on the void judgment are themselves regarded as
invalid and ineffective for any purpose.
[52]
Needless to stress, the HRET did not commit grave
abuse of discretion in assuming jurisdiction over the election protest as the COMELEC Resolution
dated April 30, 2004, Order of May 5, 2004, and Resolution No. 6823 werevoid ab initio.
Third. Petitioner contends that the HRET cannot review decisions of the COMELEC and
that COMELEC decisions, orders, or rulings may be solely reviewed by the Supreme Court
on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.
[53]
It is true
that generally, the method of assailing a judgment or order of the COMELEC is via petition
for certiorari.
[54]
As aforestated, however, it was petitioner who submitted these resolutions to the
HRET as proofs that Mrs. Ang Ping was not a proper party. These same resolutions were
collaterally attacked by Mrs. Ang Ping before the HRET when she alleged that these violated
her right to due process.
[55]
A void judgment or resolution may be impeached
through collateral attack.
[56]
A direct attack on a judgment or resolution is defined as an attempt
to avoid or correct it in some manner provided by law, in a proceeding instituted for that very
purpose, in the same action and in the same tribunal. Conversely, a collateral attack is an attempt
to impeach the judgment or resolution by matters dehors the record, before a tribunal other than
the one in which it was rendered, in an action other than that in which it was rendered; an attempt
to avoid, defeat, or evade it, or deny its force and effect, in some incidental proceeding not
provided by law for the express purpose of attacking it; any proceeding which is not
instituted for the express purpose of annulling, correcting, or modifying such decree; an
objection, incidentally raised in the course of the proceeding, which presents an issue collateral to
the issues made by the pleadings.
[57]
The rule that a void judgment or decree is subject to collateral
attack at any time is based upon a court's inherent authority to expunge void acts from its
records.
[58]
The void resolutions of the COMELEC, especially the April 30, 2004 resolution issued
by its First Division, cannot oust the HRET of its jurisdiction over the case at bar.
Fourth. We hasten to add that judgments, orders and resolutions should only be declared
void in the most exceptional circumstances due to detrimental effects on the doctrine of finality
Roces vs. HRET
of judgments. The circumstances of this case, however, are unique in that the private respondent
was denied due process and was forced to seek justice in the HRET. In fact, it was this Court
that referred the private respondent to the HRET when it dismissed the latters petition in G.R.
No. 163259 on the ground of the pendency of HRET Case No. 04-004. To grant the petition
now would effectively foreclose the private respondents access to any remedy despite violation
of her right to due process.
IN VIEW WHEREOF, the petition is dismissed. The temporary restraining order
previously issued by the Court is lifted.
SO ORDERED.
BANAT vs. COMELEC


EN BANC

BARANGAY ASSOCIATION FOR NATIONAL
ADVANCEMENT AND TRANSPARENCY
(BANAT) PARTY-LIST, represented by
SALVADOR B. BRITANICO,
Petitioner,






- versus -







COMMISSION ON ELECTIONS,
RESPONDENT.
G.R. NO. 177508


PRESENT:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
CORONA,
CARPIO-MORALES,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA, AND
BERSAMIN, JJ.
BANAT vs. COMELEC


PROMULGATED:
AUGUST 7, 2009
X- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X


DECISION


CARPIO, J.:


THE CASE
BEFORE THE COURT IS A PETITION FOR PROHIBITION
[1]
WITH A PRAYER FOR THE ISSUANCE
OF A TEMPORARY RESTRAINING ORDER OR A WRIT OF PRELIMINARY INJUNCTION
[2]
FILED BY
PETITIONER BARANGAY ASSOCIATION FOR NATIONAL ADVANCEMENT AND TRANSPARENCY
(BANAT) PARTY LIST (PETITIONER) ASSAILING THE CONSTITUTIONALITY OF REPUBLIC ACT NO.
9369 (RA 9369)
[3]
AND ENJOINING RESPONDENT COMMISSION ON ELECTIONS (COMELEC) FROM
IMPLEMENTING THE STATUTE.
RA 9369 is a consolidation of Senate Bill No. 2231 and House Bill No. 5352 passed by the
Senate on 7 December 2006 and the House of Representatives on 19 December 2006. On 23
January 2007, less than four months before the 14 May 2007 local elections, the President signed
RA 9369. Two newspapers of general circulation, Malaya and Business Mirror, published RA 9369
on 26 January 2007. RA 9369 thus took effect on 10 February 2007.

On 7 May 2007, petitioner, a duly accredited multi-sectoral organization, filed this petition
for prohibition alleging that RA 9369 violated Section 26(1), Article VI of the
BANAT vs. COMELEC
Constitution.
[4]
Petitioner also assails the constitutionality of Sections 34, 37, 38, and 43 of RA
9369. According to petitioner, these provisions are of questionable application and doubtful
validity for failing to comply with the provisions of the Constitution.

The COMELEC and the Office of the Solicitor General (OSG) filed their respective
Comments. At the outset, both maintain that RA 9369 enjoys the presumption of
constitutionality, save for the prayer of the COMELEC to declare Section 43 as unconstitutional.



The Assailed Provisions of RA 9369

Petitioner assails the following provisions of RA 9369:

1. Section 34 which provides:

SEC. 34. Sec. 26 of Republic Act No. 7166 is hereby amended to read as
follows:
SEC. 26. Official Watchers. - Every registered political party or coalition of political
parties, and every candidate shall each be entitled to one watcher in every polling place and
canvassing center: Provided That, candidates for the Sangguniang Panlalawigan, Sangguniang
Panlunsod, or Sangguniang Bayan belonging to the same slate or ticket shall collectively be entitled
to only one watcher.
The dominant majority party and dominant minority party, which the Commission shall
determine in accordance with law, shall each be entitled to one official watcher who shall be paid a
fixed per diem of four hundred pesos (400.00).
There shall also recognized six principal watchers, representing the six accredited major political parties
excluding the dominant majority and minority parties, who shall be designated by the Commission upon
nomination of the said parties. These political parties shall be determined by the Commission upon notice and
hearing on the basis of the following circumstances:
(a) The established record of the said parties, coalition of groups that now composed them,
taking into account, among other things, their showing in past election;
BANAT vs. COMELEC
(b) The number of incumbent elective officials belonging to them ninety (90) days before the date
of election;
c) Their identifiable political organizations and strengths as evidenced by their
organized/chapters;
(d) The ability to fill a complete slate of candidates from the municipal level to the position of President;
and
(e) Other analogous circumstances that may determine their relative organizations and strengths.









2. Section 37 which provides:

SEC. 37. Section 30 of Republic Act No. 7166 is hereby amended to read as
follows:

SEC. 30. Congress as the National Board of Canvassers for the Election of President and Vice
President: The Commission en banc as the National Board of Canvassers for the election of senators:
Determination of Authenticity and Due Execution of Certificates of Canvass. Congress and the
Commission en banc shall determine the authenticity and due execution of the certificate of canvass for
president and vice president and senators, respectively, as accomplished and transmitted to it by the local
boards of canvassers, on a showing that: (1) each certificate of canvass was executed, signed and
thumbmarked by the chairman and members of the board of canvassers and transmitted or caused to be
transmitted to Congress by them; (2) each certificate of canvass contains the names of all of the candidates
for president and vice president or senator, as the case may be, and their corresponding votes in words and
their corresponding votes in words and in figures; (3) there exits no discrepancy in other authentic copies of
the certificates of canvass or any of its supporting documents such as statement of votes by
city/municipality/by precinct or discrepancy in the votes of any candidate in words and figures in the
certificate; and (4) there exist no discrepancy in the votes of any candidate in words and figures in the
certificates of canvass against the aggregate number of votes appearing in the election returns of precincts
BANAT vs. COMELEC
covered by the certificate of canvass: Provided, That certified print copies of election returns or certificates
of canvass may be used for the purpose of verifying the existence of the discrepancy.

WHEN THE CERTIFICATE OF CANVASS, DULY CERTIFIED BY THE BOARD OF CANVASSERS OF EACH
PROVINCE, CITY OF DISTRICT, APPEARS TO BE INCOMPLETE, THE SENATE PRESIDENT OR THE CHAIRMAN OF
THE COMMISSION, AS THE CASE MAY BE, SHALL REQUIRE THE BOARD OF CANVASSERS CONCERNED TO
TRANSMIT BY PERSONAL DELIVERY, THE ELECTION RETURNS FORM POLLING PLACES THAT WERE NOT
INCLUDED IN THE CERTIFICATE OF CANVASS AND SUPPORTING STATEMENTS. SAID ELECTION RETURNS
SHALL BE SUBMITTED BY PERSONAL DELIVERY WITHIN TWO (2) DAYS FROM RECEIPT OF NOTICE.

WHEN IT APPEARS THAT ANY CERTIFICATE OF CANVASS OR SUPPORTING STATEMENT OF VOTES BY
CITY/MUNICIPALITY OR BY PRECINCT BEARS ERASURES OR ALTERATION WHICH MAY CAST DOUBT AS TO
THE VERACITY OF THE NUMBER OF VOTES STATED HEREIN AND MAY AFFECT THE RESULT OF THE ELECTION,
UPON REQUESTED OF THE PRESIDENTIAL, VICE PRESIDENTIAL OR SENATORIAL CANDIDATE CONCERNED OR
HIS PARTY, CONGRESS OR THE COMMISSION EN BANC, AS THE CASE MAY BE SHALL, FOR THE SOLE
PURPOSE OF VERIFYING THE ACTUAL NUMBER OF VOTES CAST FOR PRESIDENT, VICE PRESIDENT OR
SENATOR, COUNT THE VOTES AS THEY APPEAR IN THE COPIES OF THE ELECTION RETURNS SUBMITTED TO
IT.





IN CASE OF ANY DISCREPANCY, INCOMPLETENESS, ERASURE OR
ALTERATION AS MENTIONED ABOVE, THE PROCEDURE ON PRE-PROCLAMATION
CONTROVERSIES SHALL BE ADOPTED AND APPLIED AS PROVIDED IN SECTION
17,18,19 AND 20.
ANY PERSON WHO PRESENT IN EVIDENCE A SIMULATED COPY OF AN
ELECTION RETURN, CERTIFICATE OF CANVASS OR STATEMENT OF VOTES, OR A
PRINTED COPY OF AN ELECTION RETURN, CERTIFICATE OF CANVASS OR STATEMENT
OF VOTES BEARING A SIMULATED CERTIFICATION OR A SIMULATED IMAGE, SHALL
BE GUILTY OF AN ELECTION OFFENSE SHALL BE PENALIZED IN ACCORDANCE WITH
BATAS PAMBANSA BLG. 881.


BANAT vs. COMELEC
3. SECTION 38 WHICH PROVIDES:

SEC. 38. SECTION 15 OF REPUBLIC ACT NO. 7166 IS HEREBY AMENDED TO READ AS FOLLOWS:

SEC. 15. PRE-PROCLAMATION CASES IN ELECTIONS FOR PRESIDENT, VICE
PRESIDENT, SENATOR, AND MEMBER OF THE HOUSE OF REPRESENTATIVES. - FOR
PURPOSES OF THE ELECTIONS FOR PRESIDENT, VICE PRESIDENT, SENATOR, AND
MEMBER OF THE HOUSE OF REPRESENTATIVES, NO PRE-PROCLAMATION CASES
SHALL BE ALLOWED ON MATTERS RELATING TO THE PREPARATION, TRANSMISSION,
RECEIPT, CUSTODY AND APPRECIATION OF ELECTION RETURNS OR THE
CERTIFICATES OF CANVASS, AS THE CASE MAY BE, EXCEPT AS PROVIDED FOR IN
SECTION 30 HEREOF. HOWEVER, THIS DOES NOT PRECLUDE THE AUTHORITY OF THE
APPROPRIATE CANVASSING BODY MOTU PROPRIO OR UPON WRITTEN COMPLAINT
OF AN INTERESTED PERSON TO CORRECT MANIFEST ERRORS IN THE CERTIFICATE OF
CANVASS OR ELECTION RETURNS BEFORE IT.

QUESTIONS AFFECTING THE COMPOSITION OR PROCEEDINGS OF THE BOARD
OF CANVASSERS MAY BE INITIATED IN THE BOARD OR DIRECTLY WITH THE
COMMISSION IN ACCORDANCE WITH SECTION 19 HEREOF.

ANY OBJECTION ON THE ELECTION RETURNS BEFORE THE CITY OR MUNICIPAL BOARD OF CANVASSERS, OR ON THE
MUNICIPAL CERTIFICATES OF CANVASS BEFORE THE PROVINCIAL BOARD OF CANVASSERS OR DISTRICT BOARD OF
CANVASSERS IN METRO MANILA AREA, SHALL BE SPECIFICALLY NOTICED IN THE MINUTES OF THE RESPECTIVE
PROCEEDINGS.


4. SECTION 43 WHICH PROVIDES:

SEC. 43. SECTION 265 OF BATAS PAMBANSA BLG. 881 IS HEREBY AMENDED TO READ AS FOLLOWS:


BANAT vs. COMELEC






SEC. 265. PROSECUTION. THE COMMISSION SHALL, THROUGH ITS DULY AUTHORIZED LEGAL
OFFICERS, HAVE THE POWER, CONCURRENT WITH THE OTHER PROSECUTING ARMS OF THE GOVERNMENT,
TO CONDUCT PRELIMINARY INVESTIGATION OF ALL ELECTION OFFENSES PUNISHABLE UNDER THIS CODE,
AND TO PROSECUTE THE SAME.



THE ISSUES

PETITIONER RAISES THE FOLLOWING ISSUES:

1. WHETHER RA 9369 VIOLATES SECTION 26(1), ARTICLE VI OF THE CONSTITUTION;
WHETHER SECTIONS 37 AND 38 VIOLATE SECTION 17, ARTICLE VI
[5]
AND PARAGRAPH 7, SECTION
4, ARTICLE VII
[6]
OF THE CONSTITUTION;
Whether Section 43 violates Section 2(6), Article IX-C of the Constitution;
[7]
and
WHETHER SECTION 34 VIOLATES SECTION 10, ARTICLE III OF THE CONSTITUTION.
[8]


THE COURTS RULING
THE PETITION HAS NO MERIT.
BANAT vs. COMELEC
IS SETTLED THAT EVERY STATUTE IS PRESUMED TO BE CONSTITUTIONAL.
[9]
EH
VLHEAAVSHS SE EM EH UHISEUMALH SSHSEHE H HSM M PMUSER
EHSESSUH MSE EAE UMS . EHEH SEH VHSSHS EH HAL H EHUMLH M
UMS ASHSESASHSMU AAE EEHS EM EHLH SE M UHML MSE
ASHUASPHMU SLHME HU EH HSESASHSR SH AHLHUR M EHASUAUR
EVHAUMSPH HL MLIAAHSMSPH HSHN HEHLSSEHR EH VHSSHS AAE
UMSU .
[10]

In this case, petitioner failed to justify why RA 9369 and the assailed provisions should be
declared unconstitutional.
RA 9369 does not violate Section 26(1), Article VI of the Constitution
Petitioner alleges that the title of RA 9369 is misleading because it speaks of poll automation
but contains substantial provisions dealing with the manual canvassing of election
returns. Petitioner also alleges that Sections 34, 37, 38, and 43 are neither embraced in the title
nor germane to the subject matter of RA 9369.
Both the COMELEC and the OSG maintain that the title of RA 9369 is broad enough to encompass
topics which deal not only with the automation process but with everything related to its
purpose encouraging a transparent, credible, fair, and accurate elections.
The constitutional requirement that every bill passed by the Congress shall embrace only
one subject which shall be expressed in the title thereof has always been given a practical rather
than a technical construction.
[11]
The requirement is satisfied if the title is comprehensive enough
to include subjects related to the general purpose which the statute seeks to achieve.
[12]

The
title of a law does not have to be an index of its contents and will suffice if the matters embodied
in the text are relevant to each other and may be inferred from the title.
[13]
Moreover, a title
which declares a statute to be an act to amend a specified code is sufficient and the precise
nature of the amendatory act need not be further stated.
[14]

RA 9369 is an amendatory act entitled An Act Amending Republic Act No. 8436, Entitled
An Act Authorizing the Commission on Elections to Use an Automated Election System in the
May 11, 1998 National or Local Elections and in Subsequent National and Local Electoral
Exercises, to Encourage Transparency, Credibility, Fairness and Accuracy of Elections, Amending
for the Purpose Batas Pambansa Blg. 881, as Amended, Republic Act No. 7166 and Other Related
Election Laws, Providing Funds Therefor and For Other Purposes. Clearly, the subject matter of
RA 9369 covers the amendments to RA 8436, Batas Pambansa Blg. 881 (BP 881),
[15]
Republic Act
BANAT vs. COMELEC
No. 7166 (RA 7166),
[16]
and other related election laws to achieve its purpose of promoting
transparency, credibility, fairness, and accuracy in the elections. The provisions of RA 9369
assailed by petitioner deal with amendments to specific provisions of RA 7166 and BP 881,
specifically: (1) Sections 34, 37 and 38 amend Sections 26, 30 and 15 of RA 7166, respectively;
and (2) Section 43 of RA 9369 amends Section 265 of BP 881. Therefore, the assailed provisions
are germane to the subject matter of RA 9369 which is to amend RA 7166 and BP 881, among
others.

Sections 37 and 38 do not violate Section 17, Article VI and Paragraph 7, Section 4, Article VII of
the Constitution

PETITIONER ARGUES THAT SECTIONS 37 AND 38 VIOLATE THE CONSTITUTION BY
IMPAIRING THE POWERS OF THE PRESIDENTIAL ELECTORAL TRIBUNAL (PET) AND THE SENATE
ELECTORAL TRIBUNAL (SET). ACCORDING TO PETITIONER, UNDER THE AMENDED PROVISIONS,
CONGRESS AS THE NATIONAL BOARD OF CANVASSERS FOR THE ELECTION OF PRESIDENT AND
VICE PRESIDENT (CONGRESS), AND THE COMELEC EN BANC AS THE NATIONAL BOARD OF
CANVASSERS (COMELEC EN BANC), FOR THE ELECTION OF SENATORS MAY NOW ENTERTAIN
PRE-PROCLAMATION CASES IN THE ELECTION OF THE PRESIDENT, VICE PRESIDENT, AND
SENATORS. PETITIONER CONCLUDES THAT IN ENTERTAINING PRE-PROCLAMATION CASES,
CONGRESS AND THE COMELEC EN BANC UNDERMINE THE INDEPENDENCE AND ENCROACH
UPON THE JURISDICTION OF THE PET AND THE SET.
The COMELEC maintains that the amendments introduced by Section 37 pertain only to the
adoption and application of the procedures on pre-proclamation controversies in case of any
discrepancy, incompleteness, erasure or alteration in the certificates of canvass. The COMELEC
adds that Section 37 does not provide that Congress and the COMELEC en banc may now
entertain pre-proclamation cases for national elective posts.
OSG argues that the Constitution does not prohibit pre-proclamation cases involving national
elective posts. According to the OSG,
HSUR EHSHS CE HU LM 6C77
[17]
HRVLHEEUR ESEMUUHSE VLH - VLHUMAMSHS
MEHE SSPHUPSSI SMSHSMU HUHSPH VHEE SA ESE VLHPSESHS SME
EASEHUAHSUR MAHSEHE SR EHSHS BY HU LM SB7S .
BANAT vs. COMELEC
In Pimentel III v. COMELEC,
[18]
we already discussed the implications of the amendments
introduced by Sections 37 and 38 to Sections 15 and 30
[19]
of RA 7166, respectively and we
declared:


Indeed, this Court recognizes that by virtue of the amendments introduced by Republic Act No. 9369
to Sections 15 and 30 of Republic Act No. 7166, pre-proclamation cases involving the authenticity and due
execution of certificates of canvass are now allowed in elections for President, Vice-President, and
Senators. The intention of Congress to treat a case falling under Section 30 of Republic Act No. 7166, as
amended by Republic Act No. 9369, as a pre-proclamation case is apparent in the fourth paragraph of the
said provision which adopts and applies to such a case the same procedure provided under Sections 17, 18,
19 and 20 of Republic Act No. 7166 on pre-proclamation controversies.

In sum, in [the] elections for President, Vice-President, Senators and Members of the House of
Representatives, the general rule is still that pre-proclamation cases on matters relating to the preparation,
transmission, receipt, custody and appreciation of election returns or certificates of canvass are still
prohibited. As with other general rules, there are recognized exceptions to the prohibition, namely: (1)
correction of manifest errors; (2) questions affecting the composition or proceeding of the board of
canvassers; and (3) determination of the authenticity and due execution of certificates of canvass as
provided in Section 30 of Republic Act No. 7166, as amended by Republic Act No. 9369.
[20]


In the present case, Congress and the COMELEC en banc do not encroach upon the
jurisdiction of the PET and the SET. There is no conflict of jurisdiction since the powers of
Congress and the COMELEC en banc, on one hand, and the PET and the SET, on the other, are
exercised on different occasions and for different purposes. The PET is the sole judge of all
contests relating to the election, returns and qualifications of the President or Vice
President. The SET is the sole judge of all contests relating to the election, returns, and
qualifications of members of the Senate. The jurisdiction of the PET and the SET can only be
invoked once the winning presidential, vice presidential or senatorial candidates have been
proclaimed. On the other hand, under Section 37, Congress and the COMELEC en banc shall
determine only the authenticity and due execution of the certificates of canvass. Congress and
the COMELEC en banc shall exercise this power before the proclamation of the winning
presidential, vice presidential, and senatorial candidates.

BANAT vs. COMELEC
Section 43 does not violate Section 2(6), Article IX-C of the Constitution
Both petitioner and the COMELEC argue that the Constitution vests in the COMELEC the
exclusive power to investigate and prosecute cases of violations of election laws. Petitioner and
the COMELEC allege that Section 43 is unconstitutional because it gives the other prosecuting
arms of the government concurrent power with the COMELEC to investigate and prosecute
election offenses.
[21]

We do not agree with petitioner and the COMELEC that the Constitution gave the COMELEC
the exclusive power to investigate and prosecute cases of violations of election laws.

Section 2(6), Article IX-C of the Constitution vests in the COMELEC the power to investigate
and, where appropriate, prosecute cases of violations of election laws, including acts or
omissions constituting election frauds, offenses, and malpractices. This was an important
innovation introduced by the Constitution because this provision was not in the 1935
[22]
or
1973
[23]
Constitutions.
[24]
The phrase *w+here appropriate leaves to the legislature the power to
determine the kind of election offenses that the COMELEC shall prosecute exclusively or
concurrently with other prosecuting arms of the government.
The grant of the exclusive power to the COMELEC can be found in Section 265 of BP 881,
which provides:
Sec. 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have the
exclusive power to conduct preliminary investigation of all election offenses punishable under this Code,
and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the
government: Provided, however, That in the event that the Commission fails to act on any complaint within
four months from his filing, the complainant may file the complaint with the office of the fiscal or with the
Ministry of Justice for proper investigation and prosecution, if warranted. (Emphasis supplied)



This was also an innovation introduced by BP 881. The history of election laws shows that prior
to BP 881, no such exclusive power was ever bestowed on the COMELEC.
[25]

BANAT vs. COMELEC
We also note that while Section 265 of BP 881 vests in the COMELEC the exclusive power
to conduct preliminary investigations and prosecute election offenses, it likewise authorizes the
COMELEC to avail itself of the assistance of other prosecuting arms of the government. In the
1993 COMELEC Rules of Procedure, the authority of the COMELEC was subsequently qualified
and explained.
[26]
The 1993 COMELEC Rules of Procedure provides:


Rule 34 - Prosecution of Election Offenses

Sec. 1. Authority of the Commission to Prosecute Election Offenses. - The
Commission shall have the exclusive power to conduct preliminary investigation of
all election offenses punishable under the election laws and to prosecute the
same, except as may otherwise be provided by law. (Emphasis supplied)

It is clear that the grant of the exclusive power to investigate and prosecute election
offenses to the COMELEC was not by virtue of the Constitution but by BP 881, a legislative
enactment. If the intention of the framers of the Constitution were to give the COMELEC the
exclusive power to investigate and prosecute election offenses, the framers would have
expressly so stated in the Constitution. They did not.
In People v. Basilla,
[27]
we acknowledged that without the assistance of provincial and city fiscals
and their assistants and staff members, and of the state prosecutors of the Department of
Justice, the prompt and fair investigation and prosecution of election offenses committed before
or in the course of nationwide elections would simply not be possible.
[28]
In COMELEC v.
Espaol,
[29]
we also stated that enfeebled by lack of funds and the magnitude of its workload, the
COMELEC did not have a sufficient number of legal officers to conduct such investigation and to
prosecute such cases.
[30]
The prompt investigation, prosecution, and disposition of election
offenses constitute an indispensable part of the task of securing free, orderly, honest, peaceful,
and credible elections.
[31]
Thus, given the plenary power of the legislature to amend or repeal
laws, if Congress passes a law amending Section 265 of BP 881, such law does not violate the
Constitution.
Section 34 does not violate Section 10, Article III of the Constitution
BANAT vs. COMELEC
assails the constitutionality of the provision which fixes the per diem of poll watchers of the
dominant majority and dominant minority parties at P on election day . Petitioner argues that this
violates the freedom of the parties to contract and their right to fix the terms and conditions of the contract they
see as fair, equitable and just. Petitioner adds that this is a purely private contract using private funds which
cannot be regulated by law .
The OSG argues that petitioner erroneously invoked the non-impairment clause because
this only applies to previously perfected contracts. In this case, there is no perfected contact
and, therefore, no obligation will be impaired.

Both the COMELEC and the OSG argue that the law is a proper exercise of police power and
it will prevail over a contract. According to the COMELEC, poll watching is not just an ordinary
contract but is an agreement with the solemn duty to ensure the sanctity of votes. The role of
poll watchers is vested with public interest which can be regulated by Congress in the exercise of
its police power. The OSG further argues that the assurance that the poll watchers will receive
fair and equitable compensation promotes the general welfare. The OSG also states that this was
a reasonable regulation considering that the dominant majority and minority parties will secure a
copy of the election returns and are given the right to assign poll watchers inside the polling
precincts.

There is no violation of the non-impairment clause. First, the non- impairment clause is
limited in application to laws that derogate from prior acts or contracts by enlarging, abridging or
in any manner changing the intention of the parties.
[32]
There is impairment if a subsequent law
changes the terms of a contract between the parties, imposes new conditions, dispenses with
those agreed upon or withdraws remedies for the enforcement of the rights of the parties.
[33]

As observed by the OSG, there is no existing contract yet and, therefore, no enforceable
right or demandable obligation will be impaired. RA 9369 was enacted more than three months
prior to the 14 May 2007 elections. Hence, when the dominant majority and minority parties
hired their respective poll watchers for the 14 May 2007 elections, they were deemed to have
incorporated in their contracts all the provisions of RA 9369.
Second, it is settled that police power is superior to the non-impairment clause.
[34]
The
constitutional guaranty of non-impairment of contracts is limited by the exercise of the police
BANAT vs. COMELEC
power of the State, in the interest of public health, safety, morals, and general welfare of the
community.
Section 8 of COMELEC Resolution No. 1405
[35]
specifies the rights and duties of poll watchers:

THE WATCHERS SHALL HAVE THE RIGHT TO STAY IN THE SPACE RESERVED FOR THEM INSIDE THE
POLLING PLACE. THEY SHALL HAVE THE RIGHT TO WITNESS AND INFORM THEMSELVES OF THE
PROCEEDINGS OF THE BOARD; TO TAKE NOTES OF WHAT THEY MAY SEE OR HEAR, TO TAKE PHOTOGRAPHS
OF THE PROCEEDINGS AND INCIDENTS, IF ANY, DURING THE COUNTING OF VOTES, AS WELL AS THE
ELECTION RETURNS, TALLY BOARD AND BALLOT BOXES; TO FILE A PROTEST AGAINST ANY IRREGULARITY OR
VIOLATION OF LAW WHICH THEY BELIEVE MAY HAVE BEEN COMMITTED BY THE BOARD OR BY ANY OF ITS
MEMBERS OR BY ANY PERSON; TO OBTAIN FROM THE BOARD A CERTIFICATE AS TO THE FILING OF SUCH
PROTEST AND/OR OF THE RESOLUTION THEREON; TO READ THE BALLOTS AFTER THEY SHALL HAVE BEEN
READ BY THE CHAIRMAN, AS WELL AS THE ELECTION RETURNS AFTER THEY SHALL HAVE BEEN COMPLETED
AND SIGNED BY THE MEMBERS OF THE BOARD WITHOUT TOUCHING THEM, BUT THEY SHALL NOT SPEAK
TO ANY MEMBER OF THE BOARD, OR TO ANY VOTER, OR AMONG THEMSELVES, IN SUCH A MANNER AS
WOULD DISTURB THE PROCEEDINGS OF THE BOARD; AND TO BE FURNISHED, UPON REQUEST, WITH A
CERTIFICATE OF VOTES FOR THE CANDIDATES, DULY SIGNED AND THUMBMARKED BY THE CHAIRMAN AND
ALL THE MEMBERS OF THE BOARD OF ELECTION INSPECTORS.

Additionally, the poll watchers of the dominant majority and minority parties in a precinct shall, if
available, affix their signatures and thumbmarks on the election returns for that precinct.
[36]
The
dominant majority and minority parties shall also be given a copy of the certificates of
canvass
[37]
and election returns
[38]
through their respective poll watchers. Clearly, poll watchers
play an important role in the elections.

MOREOVER, WHILE THE CONTRACTING PARTIES MAY ESTABLISH SUCH STIPULATIONS, CLAUSES,
TERMS, AND CONDITIONS AS THEY MAY DEEM CONVENIENT, SUCH STIPULATIONS SHOULD NOT
BE CONTRARY TO LAW, MORALS, GOOD CUSTOMS, PUBLIC ORDER, OR PUBLIC POLICY.
[39]


IN BELTRAN V. SECRETARY OF HEALTH,
[40]
WE SAID:

FURTHERMORE, THE FREEDOM TO CONTRACT IS NOT ABSOLUTE; ALL CONTRACTS AND ALL RIGHTS
ARE SUBJECT TO THE POLICE POWER OF THE STATE AND NOT ONLY MAY REGULATIONS WHICH AFFECT
THEM BE ESTABLISHED BY THE STATE, BUT ALL SUCH REGULATIONS MUST BE SUBJECT TO CHANGE FROM
TIME TO TIME, AS THE GENERAL WELL-BEING OF THE COMMUNITY MAY REQUIRE, OR AS THE
CIRCUMSTANCES MAY CHANGE, OR AS EXPERIENCE MAY DEMONSTRATE THE NECESSITY.
[41]
(EMPHASIS
SUPPLIED)


THEREFORE, ASSUMING THERE WERE EXISTING CONTRACTS, SECTION 34 WOULD STILL BE
CONSTITUTIONAL BECAUSE THE LAW WAS ENACTED IN THE EXERCISE OF THE POLICE POWER OF
BANAT vs. COMELEC
THE STATE TO PROMOTE THE GENERAL WELFARE OF THE PEOPLE. WE AGREE WITH THE
COMELEC THAT THE ROLE OF POLL WATCHERS IS INVESTED WITH PUBLIC INTEREST. IN FACT,
EVEN PETITIONER CONCEDES THAT POLL WATCHERS NOT ONLY GUARD THE VOTES OF THEIR
RESPECTIVE CANDIDATES OR POLITICAL PARTIES BUT ALSO ENSURE THAT ALL THE VOTES ARE
PROPERLY COUNTED. ULTIMATELY, POLL WATCHERS AID IN FAIR AND HONEST ELECTIONS. POLL
WATCHERS HELP ENSURE THAT THE ELECTIONS ARE TRANSPARENT, CREDIBLE, FAIR, AND
ACCURATE. THE REGULATION OF THE PER DIEM OF THE POLL WATCHERS OF THE DOMINANT
MAJORITY AND MINORITY PARTIES PROMOTES THE GENERAL WELFARE OF THE COMMUNITY
AND IS A VALID EXERCISE OF POLICE POWER.

WHEREFORE, we DISMISS the petition for lack of merit.

SO ORDERED.
Guzman vs. COMELEC
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 182380 August 28, 2009
ROBERT P. GUZMAN, Petitioner,
vs.
COMMISSION ON ELECTIONS, MAYOR RANDOLPH S. TING AND SALVACION GARCIA, Respondents.
D E C I S I O N
BERSAMIN, J .:
Through certiorari under Rule 64, in relation to Rule 65, Rules of Court, the petitioner assails the February 18, 2008
resolution of the Commission of Elections en banc (COMELEC),
1
dismissing his criminal complaint against respondents
City Mayor Randolph Ting and City Treasurer Salvacion Garcia, both of Tuguegarao City, charging them with alleged
violations of the prohibition against disbursing public funds and undertaking public works, as embodied in Section 261,
paragraphs (v) and (w), of the Omnibus Election Code, during the 45-day period of the election ban by purchasing
property to be converted into a public cemetery and by issuing the treasury warrant in payment. He asserts that the
COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in thereby exonerating City
Mayor Ting and City Treasurer Garcia based on its finding that the acquisition of the land for use as a public cemetery
did not constitute public works covered by the ban.
Antecedents
On March 31, 2004, the Sangguniang Panlungsod of Tuguegarao City passed Resolution No. 048-2004 to authorize
City Mayor Ting to acquire two parcels of land for use as a public cemetery of the City. Pursuant to the resolution, City
Mayor Ting purchased the two parcels of land, identified as Lot Nos. 5860 and 5861 and located at Atulayan Sur,
Tuguegarao City, with an aggregate area of 24,816 square meters (covered by Transfer Certificates of Title [TCT] No.
T-36942 and TCT No. T-36943 of the Register of Deeds in Tuguegarao City), from Anselmo Almazan, Angelo Almazan
and Anselmo Almazan III. As payment, City Treasurer Garcia issued and released Treasury Warrant No. 0001534514
dated April 20, 2004 in the sum of P8,486,027.00. On May 5, 2004, the City Government of Tuguegarao caused the
registration of the sale and the issuance of new certificates in its name (i.e., TCT No. T-144428 and TCT No. T-
144429).
Based on the transaction, the petitioner filed a complaint in the Office of the Provincial Election Supervisor of Cagayan
Province against City Mayor Ting and City Treasurer Garcia, charging them with a violation of Section 261, paragraphs
(v) and (w), of the Omnibus Election Code, for having undertaken to construct a public cemetery and for having
released, disbursed and expended public funds within 45 days prior to the May 9, 2004 election, in disregard of the
prohibitions under said provisions due to the election ban period having commenced on March 26, 2004 and ended on
May 9, 2004.
City Mayor Ting denied the accusations in his counter-affidavit but City Treasurer Garcia opted not to answer.
After investigation, the Acting Provincial Election Supervisor of Cagayan recommended the dismissal of the complaint
by a resolution dated December 13, 2006, to wit:
WHEREFORE, premises considered, the undersigned investigator finds that respondents did not violate Section 261
subparagraphs (v) and (w) of the Omnibus Election Code and Sections 1 and 2 of Comelec Resolution No. 6634 and
hereby recommends the DISMISSAL of the above-entitled case for lack of merit.
2

Guzman vs. COMELEC
The COMELEC en banc adopted the foregoing recommendation in its own resolution dated February 18, 2008 issued
in E.O. Case No. 06-14
3
and dismissed the complaint for lack of merit, holding that the acquisition of the two parcels of
land for a public cemetery was not considered as within the term public works; and that, consequently, the issuance of
Treasury Warrant No. 0001534514 was not for public works and was thus in violation of Section 261 (w) of the
Omnibus Election Code.
Not satisfied but without first filing a motion for reconsideration, the petitioner has commenced this special civil action
under Rule 64, in relation to Rule 65, Rules of Court, claiming that the COMELEC committed grave abuse of discretion
in thereby dismissing his criminal complaint.
Parties Positions
The petitioner contended that the COMELEC's point of view was unduly restrictive and would defeat the very purpose
of the law; that it could be deduced from the exceptions stated in Section 261 (v) of the Omnibus Election Code that the
disbursement of public funds within the prohibited period should be limited only to the ordinary prosecution of public
administration and for emergency purposes; and that any expenditure other than such was proscribed by law.
For his part, City Mayor Ting claimed that the mere acquisition of land to be used as a public cemetery could not be
classified as public works; that there would be public works only where and when there was an actual physical activity
being undertaken and after an order to commence work had been issued by the owner to the contractor.
The COMELEC stated that the petition was premature because the petitioner did not first present a motion for
reconsideration, as required by Section 1(d), Rule 13 of the 1993 COMELEC Rules of Procedure;
4
and that as the
primary body empowered by the Constitution to investigate and prosecute cases of violations of election laws, including
acts or omissions constituting election frauds, offenses and malpractices,
5
it assumed full discretion and control over
determining whether or not probable cause existed to warrant the prosecution in court of an alleged election offense
committed by any person.
The Office of the Solicitor General (OSG) concurred with the COMELEC to the effect that the acquisition of the land
within the election period for use as a public cemetery was not covered by the 45-day public works ban under Section
261(v) of the Omnibus Election Code; but differed from the COMELEC as to the issuance of Treasury Warrant No.
0001534514, opining that there was probable cause to hold City Mayor Ting and City Treasurer Garcia liable for a
violation of Section 261(w), subparagraph (b), of the Omnibus Election Code.
Issues
The issues to be resolved are:
(1) Whether or not the petition was premature;
(2) Whether or not the acquisition of Lots 5860 and 5881 during the period of the election ban was covered by
the term public works as to be in violation of Section 261 (v) of the Omnibus Election Code; and
(3) Whether or not the issuance of Treasury Warrant No. 0001534514 during the period of the election ban was
in violation of Section 261 (w) of the Omnibus Election Code.
Ruling of the Court
The petition is meritorious.
I
The Petition Was Not Premature
Guzman vs. COMELEC
The indispensable elements of a petition for certiorari are: (a) that it is directed against a tribunal, board or officer
exercising judicial or quasi-judicial functions; (b) that such tribunal, board or officer has acted without or in excess of
jurisdiction or with grave abuse of discretion; and (c) that there is no appeal or any plain, speedy and adequate remedy
in the ordinary course of law.
6

The COMELEC asserts that the "plain, speedy and adequate" remedy available to the petitioner was to file a motion for
reconsideration vis--vis the assailed resolution, as required in the 1993 COMELEC Rules of Procedure; and that his
omission to do so and his immediately invoking the certiorari jurisdiction of the Supreme Court instead rendered his
petition premature.
We do not sustain the COMELEC.
As a rule, it is necessary to file a motion for reconsideration in the court of origin before invoking the certiorari
jurisdiction of a superior court. Hence, a petition for certiorari will not be entertained unless the public respondent has
been given first the opportunity through a motion for reconsideration to correct the error being imputed to him.
7

The rule is not a rigid one, however, for a prior motion for reconsideration is not necessary in some situations, including
the following:
a. Where the order is a patent nullity, as where the court a quo has no jurisdiction;
b. Where the questions raised in the certiorari proceedings have been duly raised and passed upon by the
lower court, or are the same as those raised and passed upon in the lower court;
c. Where there is an urgent necessity for the resolution of the question, and any further delay would prejudice
the interests of the Government or of the petitioner, or the subject matter of the action is perishable;
d. Where, under the circumstances, a motion for reconsideration would be useless;
e. Where the petitioner was deprived of due process and there is extreme urgency for relief;
f. Where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial
court is improbable;
g. Where the proceedings in the lower court are a nullity for lack of due process;
h. Where the proceedings were ex parte or in which the petitioner had no opportunity to object; and
i. Where the issue raised is one purely of law or where public interest is involved.
8

That the situation of the petitioner falls under the last exception is clear enough. The petitioner challenges only the
COMELECs interpretation of Section 261(v) and (w) of the Omnibus Election Code. Presented here is an issue purely
of law, considering that all the facts to which the interpretation is to be applied have already been established and
become undisputed. Accordingly, he did not need to first seek the reconsideration of the assailed resolution.
The distinctions between a question of law and a question of fact are well known. There is a question of law when the
doubt or difference arises as to what the law is on a certain state of facts. Such a question does not involve an
examination of the probative value of the evidence presented by the litigants or any of them. But there is a question of
fact when the doubt arises as to the truth or falsehood of the alleged facts or when the query necessarily invites
calibration of the whole evidence, considering mainly the credibility of witnesses, existence and relevancy of specific
surrounding circumstances, their relation to one another and to the whole, and the probabilities of the situation.
9

II
Guzman vs. COMELEC
Acquisition of Lots 5860 And 5881
During the Period of the Election Ban,
Not Considered as "Public Works" in Violation
of Sec. 261 (v), Omnibus Election Code
The COMELEC held in its resolution dated February 18, 2008 that:
To be liable for violation of Section 261 (v), supra, four (4) essential elements must concur and they are:
1. A public official or employee releases, disburses, or expends any public funds;
2. The release, disbursement or expenditure of such funds must be within forty-five days before regular
election;
3. The release, disbursement or expenditure of said public funds is for any and all kinds of public works; and
4. The release, disbursement or expenditure of the public funds should not cover any exceptions of Section 261
(v). (Underscoring supplied).
Applying the foregoing as guideline, it is clear that what is prohibited by law is the release, disbursement or expenditure
of public funds for any and all kinds of public works. Public works is defined as fixed works (as schools, highways,
docks) constructed for public use or enjoyment esp. when financed and owned by the government. From this definition,
the purchase of the lots purportedly to be utilized as cemetery by the City Government of Tuguegarao cannot by any
stretch of imagination be considered as public works, hence it could not fall within the proscription as mandated under
the aforementioned section of the Omnibus Election Code. And since the purchase of the lots is not within the
contemplation of the word public works, the third of the elements stated in the foregoing guideline is not present in this
case. Hence since not all the elements concurred, the respondents are not liable for violation of Section 261 (v) of the
Omnibus Election Code.
The foregoing ratiocination of the COMELEC is correct.
Section 261(v) of the Omnibus Election Code provides as follows:
Section 261. Prohibited acts.- The following shall be guilty of an election offense:
x x x
(v) Prohibition against release, disbursement or expenditure of public funds.- Any public official or employee
including barangay officials and those of government-owned or controlled corporations and their subsidiaries,
who, during forty-five days before a regular election and thirty days before a special election, releases,
disburses or expends any public funds:
(1) Any and all kinds of public works, except the following:
(a) Maintenance of existing and/or completed public works project: Provided, that not more than the average
number of laborers or employees already employed therein during the sixth- month period immediately prior to
the beginning of the forty-five day period before election day shall be permitted to work during such
time:Provided, further, That no additional laborer shall be employed for maintenance work within the said period
of forty-five days;
(b) Work undertaken by contract through public bidding held, or negotiated contract awarded, before the forty-
five day period before election: Provided, That work for the purpose of this section undertaken under the so-
called "takay" or "paquiao" system shall not be considered as work by contract;
Guzman vs. COMELEC
(c) Payment for the usual cost of preparation for working drawings, specifications, bills of materials and
equipment, and all incidental expenses for wages of watchmen and other laborers employed for such work in
the central office and field storehouses before the beginning of such period: Provided, That the number of such
laborers shall not be increased over the number hired when the project or projects were commenced; and
(d) Emergency work necessitated by the occurrence of a public calamity, but such work shall be limited to the
restoration of the damaged facility.
No payment shall be made within five days before the date of election to laborers who have rendered services in
projects or works except those falling under subparagraphs (a), (b), (c), and (d), of this paragraph.
This prohibition shall not apply to ongoing public works projects commenced before the campaign period or similar
projects under foreign agreements. For purposes of this provision, it shall be the duty of the government officials or
agencies concerned to report to the Commission the list of all such projects being undertaken by them.
(2) The Ministry of Social Services and Development and any other office in other ministries of the government
performing functions similar to the said ministry, except for salaries of personnel and for such other expenses
as the Commission may authorize after due and necessary hearing. Should a calamity or disaster occur, all
releases normally or usually coursed through the said ministries shall be turned over to, and administered and
disbursed by, the Philippine National Red Cross, subject to the supervision of the Commission on Audit or its
representatives, and no candidate or his or her spouse or member of his family within the second civil degree of
affinity or consanguinity shall participate, directly or indirectly, in the distribution of any relief or other goods to
the victims of the calamity or disaster; and
(3) The Ministry of Human Settlements and any other office in any other ministry of the government performing
functions similar to the said ministry, except for salaries of personnel and for such other necessary
administrative or other expenses as the Commission may authorize after due notice and hearing.
As the legal provision shows, the prohibition of the release, disbursement or expenditure of public funds for any and all
kinds of public works depends on the following elements: (a) a public official or employee releases, disburses or spends
public funds; (b) the release, disbursement and expenditure is made within 45 days before a regular election or 30 days
before a special election; and (c) the public funds are intended for any and all kinds of public works except the four
situations enumerated in paragraph (v) of Section 261.
It is decisive to determine, therefore, whether the purchase of the lots for use as a public cemetery constituted public
works within the context of the prohibition under the Omnibus Election Code.
We first construe the term public works which the Omnibus Election Code does not define with the aid of extrinsic
sources.
The Local Government Code of 1991 considers public works to be the fixed infrastructures and facilities owned and
operated by the government for public use and enjoyment. According to the Code, cities have the responsibility of
providing infrastructure facilities intended primarily to service the needs of their residents and funded out of city funds,
such as, among others, roads and bridges; school buildings and other facilities for public elementary and secondary
schools; and clinics, health centers and other health facilities necessary to carry out health services.
10

Likewise, the Department of Public Works and Highways (DPWH), the engineering and construction arm of the
government, associates public works with fixed infrastructures for the public. In the declaration of policy pertinent to the
DPWH, Sec. 1, Chapter 1, Title V, Book IV, Administrative Code of 1987, states:
Sec. 1. Declaration of Policy. - The State shall maintain an engineering and construction arm and continuously develop
its technology, for the purposes of ensuring the safety of all infrastructure facilities and securing for all public works and
highways the highest efficiency and the most appropriate quality in construction. The planning, design, construction and
maintenance of infrastructure facilities, especially national highways, flood control and water resources development
systems, and other public works in accordance with national development objectives, shall be the responsibility of such
Guzman vs. COMELEC
an engineering and construction arm. However, the exercise of this responsibility shall be decentralized to the fullest
extent feasible.
The enumeration in Sec. 1, supra "infrastructure facilities, especially national highways, flood control and water
resources development systems, and other public works in accordance with national development objectives" means
that only the fixed public infrastructures for use of the public are regarded as public works. This construction conforms
to the rule of ejusdem generis, which Professor Black has restated thuswise:
11

It is a general rule of statutory construction that where general words follow an enumeration of persons or things, by
words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to
be held as applying only to persons or things of the same general kind or class as those specifically mentioned. But this
rule must be discarded where the legislative intention is plain to the contrary.
Accordingly, absent an indication of any contrary legislative intention, the term public works as used in Section 261 (v)
of the Omnibus Election Code is properly construed to refer to any building or structure on land or to structures (such
as roads or dams) built by the Government for public use and paid for by public funds. Public works are clearly works,
whether of construction or adaptation undertaken and carried out by the national, state, or municipal authorities,
designed to subserve some purpose of public necessity, use or convenience, such as public buildings, roads,
aqueducts, parks, etc.; or, in other words, all fixed works constructed for public use.
12

It becomes inevitable to conclude, therefore, that the petitioner's insistence that the acquisition of Lots 5860 and 5881
for use as a public cemetery be considered a disbursement of the public funds for public works in violation of Section
261(v) of the Omnibus Election Code was unfounded and unwarranted.
III
Issuance of the Treasury Warrant
During the Period of the Election Ban
Violated Section 261 (w), Omnibus Election Code
Section 261(w) of the Omnibus Election Code reads thus:
x x x
(w) Prohibition against construction of public works, delivery of materials for public works and issuance of treasury
warrants and similar devices.- During the period of forty five days preceding a regular election and thirty days before a
special election, any person who: (a) undertakes the construction of any public works, except for projects or works
exempted in the preceding paragraph; or (b) issues, uses or avails of treasury warrants or any device undertaking
future delivery of money, goods or other things of value chargeable against public funds.
x x x
The OSG posits that the foregoing provision is violated in either of two ways: (a) by any person who, within 45 days
preceding a regular election and 30 days before a special election, undertakes the construction of any public works
except those enumerated in the preceding paragraph; or (b) by any person who issues, uses or avails of treasury
warrants or any device undertaking future delivery of money, goods or other things of value chargeable against public
funds within 45 days preceding a regular election and 30 days before a special election.
We concur with the OSGs position.
Section 261 (w) covers not only one act but two, i.e., the act under subparagraph (a) above and that under
subparagraph (b) above. For purposes of the prohibition, the acts are separate and distinct, considering that Section
261(w) uses the disjunctive or to separate subparagraphs (a) and (b). In legal hermeneutics, or is a disjunctive that
expresses an alternative or gives a choice of one among two or more things.
13
The word signifies disassociation and
independence of one thing from another thing in an enumeration. It should be construed, as a rule, in the sense that it
Guzman vs. COMELEC
ordinarily implies as a disjunctive word.
14
According to Black,
15
too, the word and can never be read as or, or vice versa,
in criminal and penal statutes, where the rule of strict construction prevails. Consequently, whether or not the treasury
warrant in question was intended for public works was even of no moment in determining if the legal provision was
violated.
There was a probable cause to believe that Section 261(w), subparagraph (b), of the Omnibus Election Code was
violated when City Mayor Ting and City Treasurer Garcia issued Treasury Warrant No. 0001534514 during the election
ban period. For this reason, our conclusion that the COMELEC en banc gravely abused its discretion in dismissing E.O.
Case No. 06-14 for lack of merit is inevitable and irrefragable.
True, the COMELEC, as the body tasked by no less than the 1987 Constitution to investigate and prosecute violations
of election laws,
16
has the full discretion to determine whether or not an election case is to be filed against a person
and, consequently, its findings as to the existence of probable cause are not subject to review by courts. Yet, this policy
of non-interference does not apply where the COMELEC, as the prosecuting or investigating body, was acting
arbitrarily and capriciously, like herein, in reaching a different but patently erroneous result.
17
The COMELEC was
plainly guilty of grave abuse of discretion.
Grave abuse of discretion is present "when there is a capricious and whimsical exercise of judgment as is equivalent to
lack of jurisdiction, such as where the power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal
to perform the duty enjoined or to act at all in contemplation of law."
18

WHEREFORE, WE grant the petition for certiorari and set aside the resolution dated February 18, 2008 issued in E.O.
Case No. 06-14 by the Commission of Elections en banc.
The Commission on Elections is ordered to file the appropriate criminal information against respondents City Mayor
Randolph S. Ting and City Treasurer Salvacion Garcia of Tuguegarao City for violation of Section 261 (w),
subparagraph (b), of the Omnibus Election Code.
Costs of suit to be paid by the private respondents.
SO ORDERED.