http://sc.judiciary.gov.ph/jurisprudence/2009/december2009/189698.

htm

EN BANC

ELEAZAR P. QUINTO and G.R. No. 189698

GERINO A. TOLENTINO, JR.,

Petitioners, Present:

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

Promulgated:

December 1, 2009
COMMISSION ON ELECTIONS,

Respondent.

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

DECISION

NACHURA, J.:

In our predisposition to discover the original intent of a statute, courts

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

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

The Antecedents

This controversy actually stems from the law authorizing the COMELEC to
use an automated election system (AES).
 On December 22, 1997, Congress enacted Republic Act (R.A.) No. 8436,
entitled AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN
AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL
ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES,
PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES. Section 11 thereof
reads:

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

Both sides of the ballots may be used when necessary.

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

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

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

The official ballots shall be printed and distributed to each city/municipality at

the rate of one (1) ballot for every registered voter with a provision of additional four (4)
ballots per precinct.[2]

Almost a decade thereafter, Congress amended the law on January 23,

2007 by enacting R.A. No. 9369, entitled AN ACT AMENDING REPUBLIC ACT NO.
8436, ENTITLED AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE
AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL
ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES,
TO ENCOURAGE TRANSPARENCY, CREDIBILITY, FAIRNESS AND ACCURACY OF
ELECTIONS, AMENDING FOR THE PURPOSE BATAS PAMPANSA BLG. 881, AS
AMEMDED, REPUBLIC ACT NO. 7166 AND OTHER RELATED ELECTION LAWS,
PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES. Section 13 of the
amendatory law modified Section 11 of R.A. No. 8436, thus:

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

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

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

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

Political parties may hold political conventions to nominate their official

candidates within thirty (30) days before the start of the period for filing a certificate of
candidacy.
 With respect to a paper-based election system, the official ballots shall be
printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the
price comparable with that of private printers under proper security measures which
the Commission shall adopt. The Commission may contract the services of private
printers upon certification by the National Printing Office/Bangko Sentral ng
Pilipinas that it cannot meet the printing requirements. Accredited political parties and
deputized citizens arms of the Commission shall assign watchers in the printing, storage
and distribution of official ballots.

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

The official ballots shall be printed and distributed to each city/municipality at

the rate of one ballot for every registered voter with a provision of additional three
ballots per precinct.[3]

Pursuant to its constitutional mandate to enforce and administer election

laws, COMELEC issued Resolution No. 8678,[4] the Guidelines on the Filing of
Certificates of Candidacy (CoC) and Nomination of Official Candidates of
Registered Political Parties in Connection with the May 10, 2010 National and
Local Elections. Sections 4 and 5 of Resolution No. 8678 provide:

SEC. 4. Effects of Filing Certificates of Candidacy.a) Any person holding a public

appointive office or position including active members of the Armed Forces of the
Philippines, and other officers and employees in government-owned or controlled
corporations, shall be considered ipso facto resigned from his office upon the filing of
his certificate of candidacy.

b) Any person holding an elective office or position shall not be considered

resigned upon the filing of his certificate of candidacy for the same or any other elective
office or position.
 SEC. 5. Period for filing Certificate of Candidacy.The certificate of candidacy shall
be filed on regular days, from November 20 to 30, 2009, during office hours, except on
the last day, which shall be until midnight.

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

The Petitioners Contention

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

Petitioners also contend that Section 13 of R.A. No. 9369, the basis of the
assailed COMELEC resolution, contains two conflicting provisions. These must be
harmonized or reconciled to give effect to both and to arrive at a declaration that
they are not ipso facto resigned from their positions upon the filing of their
CoCs.[7]
 Petitioners further posit that the provision considering them as ipso
facto resigned from office upon the filing of their CoCs is discriminatory and
violates the equal protection clause in the Constitution.[8]

The Respondents Arguments

On the procedural aspect of the petition, the Office of the Solicitor General (OSG),
representing respondent COMELEC, argues that petitioners have no legal standing
to institute the suit. Petitioners have not yet filed their CoCs, hence, they are not
yet affected by the assailed provision in the COMELEC resolution. The OSG further
claims that the petition is premature or unripe for judicial
determination. Petitioners have admitted that they are merely planning to file
their CoCs for the coming 2010 elections. Their interest in the present controversy
is thus merely speculative and contingent upon the filing of the same. The OSG
likewise contends that petitioners availed of the wrong remedy. They are
questioning an issuance of the COMELEC made in the exercise of the latters rule-
making power. Certiorari under Rule 65 is then an improper remedy.[9]

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

At first glance, the petition suffers from an incipient procedural defect.

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

However, petitioners raise a challenge on the constitutionality of the

questioned provisions of both the COMELEC resolution and the law. Given this
scenario, the Court may step in and resolve the instant petition.

The transcendental nature and paramount importance of the issues raised

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

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

II.

To put things in their proper perspective, it is imperative that we trace the

brief history of the assailed provision. Section 4(a) of COMELEC Resolution No.
8678 is a reproduction of the second proviso in the third paragraph of Section 13
of R.A. No. 9369, which for ready reference is quoted as follows:

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

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

Sec. 66. Candidates holding appointive office or position.Any person holding a

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

It may be recalledin inverse chronologythat earlier, Presidential Decree No.

1296, or the 1978 Election Code, contained a similar provision, thus

SECTION 29. Candidates holding appointive office or position. Every person

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

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

SECTION 23. Candidates Holding Appointive Office or Position. Every person

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

Going further back in history, R.A. No. 180, or the Revised Election Code
approved on June 21, 1947, also provided that
 SECTION 26. Automatic cessation of appointive officers and employees who are
candidates. Every person holding a public appointive office or position shall ipso
facto cease in his office or position on the date he files his certificate of candidacy.

During the Commonwealth era, Commonwealth Act (C.A.) No. 725, entitled
AN ACT TO PROVIDE FOR THE NEXT ELECTION FOR PRESIDENT AND VICE-
PRESIDENT OF THE PHILIPPINES, SENATORS AND MEMBERS OF THE HOUSE OF
REPRESENTATIVES, AND APPROPRIATING THE NECESSARY FUNDS THEREFOR,
approved on January 5, 1946, contained, in the last paragraph of its Section 2, the
following:

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

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

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

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

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

From this brief historical excursion, it may be gleaned that the second
proviso in the third paragraph of Section 13 of R.A. No. 9369that 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
candidacytraces its roots to the period of the American occupation.

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

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

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

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

Senator Gordon. No, it has always been there.

Senator Osmea. I see.

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

Senator Osmea. All right.[16]

In that Senate deliberation, however, Senator Miriam Defensor-Santiago

expressed her concern over the inclusion of the said provision in the new law,
given that the same would be disadvantageous and unfair to potential candidates
holding appointive positions, while it grants a consequent preferential treatment
to elective officials, thus

Senator Santiago. On page 15, line 31, I know that this is a losing cause, so I make this
point more as a matter of record than of any feasible hope that it can possibly be either
accepted or if we come to a division of the House, it will be upheld by the majority.
 I am referring to page 15, line 21. The proviso begins: PROVIDED FINALLY, THAT ANY
PERSON HOLDING A PUBLIC APPOINTIVE OFFICESHALL BE CONSIDERED IPSO FACTO
RESIGNED FROM HIS/HER OFFICE.

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

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

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

The obvious inequality brought about by the provision on automatic

resignation of appointive civil servants must have been the reason why Senator
Recto proposed the inclusion of the following during the period of amendments:
ANY PERSON WHO FILES HIS CERTIFICATE OF CANDIDACY WITHIN THIS PERIOD
SHALL ONLY BE CONSIDERED AS A CANDIDATE AT THE START OF THE CAMPAIGN
PERIOD FOR WHICH HE FILED HIS COC.[18] The said proviso seems to mitigate the
situation of disadvantage afflicting appointive officials by considering persons
who filed their CoCs as candidates only at the start of the campaign period,
thereby, conveying the tacit intent that persons holding appointive positions will
only be considered as resigned at the start of the campaign period when they are
already treated by law as candidates.

Parenthetically, it may be remembered that Section 67 of the OEC and

Section 11 of R.A. No. 8436 contained a similar provision on automatic resignation
of elective officials upon the filing of their CoCs for any office other than that
which they hold in a permanent capacity or for President or Vice-President.
However, with the enactment of R.A. No. 9006, or the Fair Election Act,[19] in
2001, this provision was repealed by Section 14[20] of the said act. There was, thus,
created a situation of obvious discrimination against appointive officials who were
deemed ipso facto resigned from their offices upon the filing of their CoCs, while
elective officials were not.

This situation was incidentally addressed by the Court in Farias v. The

Executive Secretary[21] when it ruled that

Section 14 of Rep. Act No. 9006

Is Not Violative of the Equal

Protection Clause of the Constitution

The petitioners contention, that the repeal of Section 67 of the Omnibus

Election Code pertaining to elective officials gives undue benefit to such officials as
against the appointive ones and violates the equal protection clause of the constitution,
is tenuous.

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

The equal protection of the law clause is against undue favor

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

Substantial distinctions clearly exist between elective officials and appointive

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

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

By repealing Section 67 but retaining Section 66 of the Omnibus Election Code,

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

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

However, it must be remembered that the Court, in Farias, was intently

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

III.

The instant case presents a rare opportunity for the Court, in view of the
constitutional challenge advanced by petitioners, once and for all, to settle the
issue of whether the second proviso in the third paragraph of Section 13 of R.A.
No. 9369, a reproduction of Section 66 of the OEC, which, as shown above, was
based on provisions dating back to the American occupation, is violative of the
equal protection clause.
 But before delving into the constitutional issue, we shall first address the
issues on legal standing and on the existence of an actual controversy.

Central to the determination of locus standi is the question of whether a

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

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

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

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

IV.

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

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

Freedom of expression guarantees to the individual the opportunity to write a

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

It is impossible to ignore the additional fact that the right to run for office also
affects the freedom to associate. In Williams v. Rhodes, supra, the Court used strict
review to invalidate an Ohio election system that made it virtually impossible for third
parties to secure a place on the ballot. The Court found that the First Amendment
protected the freedom to associate by forming and promoting a political party and that
that freedom was infringed when the state effectively denied a party access to its
electoral machinery. The Cranston charter provision before us also affects associational
rights, albeit in a slightly different way. An individual may decide to join or participate in
an organization or political party that shares his beliefs. He may even form a new group
to forward his ideas. And at some juncture his supporters and fellow party members
may decide that he is the ideal person to carry the group's standard into the electoral
fray. To thus restrict the options available to political organization as
the Cranston charter provision has done is to limit the effectiveness of association; and
the freedom to associate is intimately related with the concept of making expression
effective. Party access to the ballot becomes less meaningful if some of those selected
by party machinery to carry the party's programs to the people are precluded from
doing so because those nominees are civil servants.

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

Here, petitioners interest in running for public office, an interest protected by

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

In considering persons holding appointive positions as ipso facto resigned from

their posts upon the filing of their CoCs, but not considering as resigned all other
civil servants, specifically the elective ones, the law unduly discriminates against
the first class. The fact alone that there is substantial distinction between those
who hold appointive positions and those occupying elective posts, does not justify
such differential treatment.
In order that there can be valid classification so that a
discriminatory governmental act may pass the constitutional norm of equal
protection, it is necessary that the four (4) requisites of valid classification be
complied with, namely:

(1) It must be based upon substantial distinctions;

(2) It must be germane to the purposes of the law;
(3) It must not be limited to existing conditions only; and

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

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

Nevertheless, the classification would still be invalid if it does not comply

with the second requirementif it is not germane to the purpose of the law. Justice
Isagani A. Cruz (Ret.), in his treatise on constitutional law, explains,

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

The third requirement means that the classification must be enforced not only for
the present but as long as the problem sought to be corrected continues to exist.
And, under the last requirement, the classification would be regarded as invalid if
all the members of the class are not treated similarly, both as to rights conferred
and obligations imposed.[33]
Applying the four requisites to the instant case, the Court finds that the
differential treatment of persons holding appointive offices as opposed to those
holding elective ones is not germane to the purposes of the law.

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

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

Mancuso v. Taft,[35] cited above, explains that the measure on automatic

resignation, which restricts the rights of civil servants to run for officea right
inextricably linked to their freedom of expression and association, is not
reasonably necessary to the satisfaction of the state interest. Thus, in striking
down a similar measure in the United States, Mancusosuccinctly declares

In proceeding to the second stage of active equal protection review, however,

we do see some contemporary relevance of the Mitchell decision. National Ass'n of
Letter Carriers, supra. In order for the Cranston charter provision to withstand strict
scrutiny, the city must show that the exclusion of all government employees from
candidacy is necessary to achieve a compelling state interest. And, as stated
in Mitchell and other cases dealing with similar statutes, see Wisconsin State Employees,
supra; Broadrick, supra, government at all levels has a substantial interest in protecting
the integrity of its civil service. It is obviously conceivable that the impartial character of
the civil service would be seriously jeopardized if people in positions of authority used
their discretion to forward their electoral ambitions rather than the public welfare.
Similarly if a public employee pressured other fellow employees to engage in corrupt
practices in return for promises of post-election reward, or if an employee invoked the
power of the office he was seeking to extract special favors from his superiors, the civil
service would be done irreparable injury. Conversely, members of the public, fellow-
employees, or supervisors might themselves request favors from the candidate or might
improperly adjust their own official behavior towards him. Even if none of these abuses
actually materialize, the possibility of their occurrence might seriously erode the public's
confidence in its public employees. For the reputation of impartiality is probably as
crucial as the impartiality itself; the knowledge that a clerk in the assessor's office who is
running for the local zoning board has access to confidential files which could provide
pressure points for furthering his campaign is destructive regardless of whether the
clerk actually takes advantage of his opportunities. For all of these reasons we find that
the state indeed has a compelling interest in maintaining the honesty and impartiality of
its public work force.
 We do not, however, consider the exclusionary measure taken by Cranston-a
flat prohibition on office-seeking of all kinds by all kinds of public employees-as even
reasonably necessary to satisfaction of this state interest. As Justice Marshall pointed
out in Dunn v. Blumstein, [s]tatutes affecting constitutional rights must be drawn with
precision. For three sets of reasons we conclude that the Cranston charter provision
pursues its objective in a far too heavy-handed manner and hence must fall under the
equal protection clause. First, we think the nature of the regulation-a broad prophylactic
rule-may be unnecessary to fulfillment of the city's objective. Second, even granting
some sort of prophylactic rule may be required, the provision here prohibits candidacies
for all types of public office, including many which would pose none of the problems at
which the law is aimed. Third, the provision excludes the candidacies of all types of
public employees, without any attempt to limit exclusion to those employees whose
positions make them vulnerable to corruption and conflicts of interest.

There is thus no valid justification to treat appointive officials differently

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

V.

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

First, the provision pertains to all civil servants holding appointive posts
without distinction as to whether they occupy high positions in government or
not. Certainly, a utility worker in the government will also be considered as ipso
facto resigned once he files his CoC for the 2010 elections. This scenario is absurd
for, indeed, it is unimaginable how he can use his position in the government to
wield influence in the political world.
 While it may be admitted that most appointive officials who seek public
elective office are those who occupy relatively high positions in government, laws
cannot be legislated for them alone, or with them alone in mind. For the right to
seek public elective office is universal, open and unrestrained, subject only to the
qualification standards prescribed in the Constitution and in the laws. These
qualifications are, as we all know, general and basic so as to allow the widest
participation of the citizenry and to give free rein for the pursuit of ones highest
aspirations to public office. Such is the essence of democracy.

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

Specific evils require specific treatments, not through overly broad

measures that unduly restrict guaranteed freedoms of the citizenry. After all,
sovereignty resides in the people, and all governmental power emanates from
them.

Mancuso v. Taft,[37] on this point, instructs

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

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

Even if some sort of prophylactic rule is necessary, we cannot say

that Cranston has put much effort into tailoring a narrow provision that attempts to
match the prohibition with the problem. The charter forbids a Cranston public employee
from running for any office, anywhere. The prohibition is not limited to the local offices
of Cranston, but rather extends to statewide offices and even to national offices. It is
difficult for us to see that a public employee running for the United States Congress
poses quite the same threat to the civil service as would the same employee if he were
running for a local office where the contacts and information provided by his job related
directly to the position he was seeking, and hence where the potential for various
abuses was greater. Nor does the Cranston charter except the public employee who
works in Cranston but aspires to office in another local jurisdiction, most probably his
town of residence. Here again the charter precludes candidacies which can pose only a
remote threat to the civil service. Finally, the charter does not limit its prohibition to
partisan office-seeking, but sterilizes also those public employees who would seek
nonpartisan elective office. The statute reviewed in Mitchell was limited to partisan
political activity, and since that time other courts have found the partisan-nonpartisan
distinction a material one. See Kinnear, supra; Wisconsin State Employees, supra; Gray v.
Toledo, supra. While the line between nonpartisan and partisan can often be blurred by
systems whose true characters are disguised by the names given them by their
architects, it seems clear that the concerns of a truly partisan office and the temptations
it fosters are sufficiently different from those involved in an office removed from regular
party politics to warrant distinctive treatment in a charter of this sort.
 The third and last area of excessive and overinclusive coverage of
the Cranston charter relates not to the type of office sought, but to the type of
employee seeking the office. As Justice Douglas pointed out in his dissent
in Mitchell, 330 U.S. at 120-126, 67 S.Ct. 556, restrictions on administrative employees
who either participate in decision-making or at least have some access to information
concerning policy matters are much more justifiable than restrictions on industrial
employees, who, but for the fact that the government owns the plant they work in, are,
for purposes of access to official information, identically situated to all other industrial
workers. Thus, a worker in the Philadelphia mint could be distinguished from a secretary
in an office of the Department of Agriculture; so also could a janitor in the public schools
of Cranston be distinguished from an assistant comptroller of the same city. A second
line of distinction that focuses on the type of employee is illustrated by the cases
of Kinnear and Minielly, supra. In both of these cases a civil service deputy decided to
run for the elected office of sheriff. The courts in both cases felt that the no-candidacy
laws in question were much too broad and indicated that perhaps the only situation
sensitive enough to justify a flat rule was one in which an inferior in a public office
electorally challenged his immediate superior. Given all these considerations, we
think Cranston has not given adequate attention to the problem of narrowing the terms
of its charter to deal with the specific kinds of conflict-of-interest problems it seeks to
avoid.

We also do not find convincing the arguments that after-hours campaigning will
drain the energy of the public employee to the extent that he is incapable of performing
his job effectively and that inevitable on-the-job campaigning and discussion of his
candidacy will disrupt the work of others. Although it is indisputable that the city has a
compelling interest in the performance of official work, the exclusion is not well-tailored
to effectuate that interest. Presumably the city could fire the individual if he clearly
shirks his employment responsibilities or disrupts the work of others. Also, the efficiency
rationale common to both arguments is significantly underinclusive. It applies equally
well to a number of non-political, extracurricular activities that are not prohibited by
the Cranston charter. Finally, the connection between after-hours campaigning and the
state interest seems tenuous; in many cases a public employee would be able to
campaign aggressively and still continue to do his job well.[38]
 Incidentally, Clements v. Fashing[39] sustained as constitutional a provision
on the automatic resignation of District Clerks, County Clerks, County Judges,
County Treasurers, Criminal District Attorneys, County Surveyors, Inspectors of
Hides and Animals, County Commissioners, Justices of the Peace, Sheriffs,
Assessors and Collectors of Taxes, District Attorneys, County Attorneys, Public
Weighers, and Constables if they announce their candidacy or if they become
candidates in any general, special or primary election.

In Clements, it may be readily observed that a provision treating differently

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

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

WHEREFORE, premises considered, the petition is GRANTED. The second

proviso in the third paragraph of Section 13 of Republic Act No. 9369, Section 66
of the Omnibus Election Code and Section 4(a) of COMELEC Resolution No. 8678
are declared as UNCONSTITUTIONAL.

SO ORDERED.
 ANTONIO EDUARDO B. NACHURA

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice

RENATO C. CORONA
ANTONIO T. CARPIO Associate Justice
Associate Justice

CONCHITA CARPIO MORALES

Associate Justice MINITA V. CHICO-NAZARIO

Associate Justice
PRESBITERO J. VELASCO, JR. TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION
DIOSDADO M. PERALTA
Associate Justice
Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

 CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO

Chief Justice

[1]
Salvacion v. Central Bank of the Philippines, G.R. No. 94723, August 21, 1997, 278 SCRA 27, 28.
[2]
Emphasis supplied.
[3]
Emphasis supplied.
[4]
Promulgated on October 6, 2009.
[5]
Petitioner Eleazar P. Quinto is the Undersecretary for Field Operations of the Department of Environment and
Natural Resources (DENR). He intends to run for Representative in the 4 th Congressional District of Pangasinan.
Petitioner Gerino A. Tolentino, Jr. is the OIC-Director of the Land Management Bureau of the DENR. He likewise
desires to run for City Councilor in the 4th District of Manila. (Rollo, pp. 8-9.)
[6]
Rollo, pp. 10-13.
[7]
Id. at 11.
[8]
Id. at 12-13.
[9]
Comment of the OSG, pp. 11-26.
[10]
Id. at 27-40.
[11]
The first paragraph of Sec. 1 of Rule 65 provides:
SECTION 1. Petition for certiorari.When any tribunal, board or officer exercising judicial or quasi-judicial
functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack
or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course
of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty
and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and
granting such incidental reliefs as law and justice may require. (See Patalinghug v. Commission on Elections, G.R.
No. 178767, January 30, 2008, 543 SCRA 175, 184-185.)
[12]
The first paragraph of Sec. 1 of Rule 63 provides:
SECTION 1. Who may file petition.Any person interested under a deed, will, contract or other written instrument, or
whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation
may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any
question of construction or validity arising, and for a declaration of his rights or duties, thereunder. (See Almeda v.
Bathala Marketing Industries, Inc., G.R. No. 150806, January 28, 2008, 542 SCRA 470, 478-479; John Hay
Peoples Alternative Coalition v. Lim, G.R. No. 119775, October 24, 2003, 414 SCRA 356, 369.)
[13]
Salvacion v. Central Bank of the Philippines, supra note 1, at 39.
[14]
MCC Industrial Sales Corporation v. Ssangyong Corporation, G.R. No. 170633, October 17, 2007, 536 SCRA
408, 433.
[15]
Emphasis supplied.
[16]
Record of the Senate, Vol. III, Session No. 29, September 27, 2006, pp. 69-70.
[17]
Record of the Senate, Vol. III, Session No. 12, August 16, 2006, pp. 71-72.
[18]
Senate Records and Archives, 13th CP, 3rd Regular Session, Vol. III, August 1, 2006, p. 25.
[19]
Entitled AN ACT TO ENHANCE THE HOLDING OF FREE, ORDERLY, HONEST, PEACEFUL AND
CREDIBLE ELECTIONS THROUGH FAIR ELECTION PRACTICES, approved on February 12, 2001.
[20]
Sec. 14 of R.A. No. 9006 provides:
SEC. 14 Repealing Clause.Sections 67 and 85 of the Omnibus Election Code (Batas Pambansa Blg. 881) and
Sections 10 and 11 of Republic Act No. 6646 are hereby repealed. As a consequence, the first proviso in the third
paragraph of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws, presidential decrees, executive
orders, rules and regulations, or any part thereof inconsistent with the provisions of this Act are hereby repealed or
modified or amended accordingly.
[21]
463 Phil. 179, 205-208 (2003).
[22]
Citations omitted.
[23]
Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736, 755.
[24]
Bullock v. Carter, 405 U.S. 134, 143 (1972).
[25]
Mancuso v. Taft, 476 F.2d 187, 190 (1973).
[26]
David v. Macapagal-Arroyo, G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 and 171424, May 3,
2006, 489 SCRA 160, 218.
[27]
Dumlao v. COMELEC, G.R. No. L-52245, January 22, 1980, 95 SCRA 392, 401. This case explains the
standards that have to be followed in the exercise of the power of judicial review, namely: (1) the existence of an
appropriate case; (2) an interest personal and substantial by the party raising the constitutional question; (3) the plea
that the function be exercised at the earliest opportunity; and (4) the necessity that the constitutional question be
passed upon in order to decide the case.
[28]
Clements v. Fashing, 457 U.S. 957, 960; 102 S.Ct. 2836, 2843 (1982).
[29]
Supra note 25, at 195-196.
[30]
Citations omitted.
[31]
G.R. No. 158793, June 8, 2006, 490 SCRA 318, 351-352.
[32]
Cruz, Constitutional Law (1998 ed.), p. 131.
[33]
Id. at 131-132.
[34]
Fort v. Civil Service Commission of the County of Alameda, 61 Cal.2d 331, 336; 392 P.2d 385, 388; 38 Cal.Rptr.
625, 628 (1964).

[35]
Supra note 25, at 198-199.
[36]
Kinnear v. City and County of San Francisco, 61 Cal.2d 341, 343; 392 P.2d 391, 392; 38 Cal.Rptr. 631, 632
(1964).
[37]
Supra note 25, at 199-201.
[38]
Citations omitted.
[39]
Supra note 28.
http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/181613.htm

EN BANC

ROSALINDA A. PENERA, G. R. No. 181613

Petitioner,
Present:

PUNO, C.J.,

QUISUMBING,

YNARES-SANTIAGO,

CARPIO,
- versus -
CORONA,

CARPIO MORALES,

CHICO-NAZARIO,

VELASCO, JR.,

NACHURA,

LEONARDO-DE CASTRO,
COMMISSION ON ELECTIONS and BRION,
EDGAR T. ANDANAR,
PERALTA,
Respondents.
BERSAMIN,
 DEL CASTILLO, and

ABAD, JJ.

Promulgated:

September 11, 2009

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

DECISION

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
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.
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. 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.

xxxx

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.
 xxxx

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]

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 2007Resolution. 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
respective barangays.

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]

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.
 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.

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 barangays of 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 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 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:

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 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.

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 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
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.),

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 a substantial
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 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 candidateoutside 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:

xxxx

(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;

(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 intention to 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 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/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.

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 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 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 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 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.

xxxx

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 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 hereby DECLARED that the
proclaimed Vice-Mayor is the rightful successor to said office. The Temporary
Restraining Order issued on 4 March 2008 is hereby ORDERED lifted. Costs against
the petitioner.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:
 REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ANTONIO T. CARPIO RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.

 Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice
Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice
Associate Justice
 ROBERTO A. ABAD

Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that

the conclusions in the above Decision were reached in consultation before the
case was assigned to the writer of the opinion of the Court.
 REYNATO S. PUNO
Chief Justice

[1]
Rollo, pp. 3-28.
[2]
Penned by Commissioner Nicodemo T. Ferrer with Acting Chairman Resurreccion Z. Borra and Commissioners
Romeo A. Brawner, Florentino A. Tuason, Jr., and Moslemen T. Macarambon, Sr., concurring, and
Commissioner Rene V. Sarmiento, dissenting; rollo, pp. 41-52.
[3]
Penned by Commissioner Nicodemo T. Ferrer with Commissioner Florentino A. Tuason, Jr., concurring, and
Commissioner Rene V. Sarmiento, dissenting; id. at 29-40.
[4]
Id. at 53-54.
[5]
Arcelito Petallo, Renato Virtudazo, Glorina Aparente, Silverio Tajos, Jose Platil, Medardo Sunico, Edelito Lerio
and Sensualito Febra.
[6]
Loreta Billona, Hermilo Botona and Victorino Florendo; rollo, pp. 55-57.
[7]
Id. at 58-59.
[8]
385 Phil. 237 (2000).
[9]
Rollo, p. 127.
[10]
Id. at 30-33.
[11]
Id. at 33.
[12]
Id. at 34-36.
[13]
Id. at 37-40.
[14]
Id. at 97-108.
[15]
Id. at 112-126.
[16]
Id. at 48.
[17]
Id. at 49-52.
[18]
Id. at 138.
[19]
Id. at 161-165, 190-208.
[20]
Id. at 210.
[21]
Id. at 215.
[22]
Sec. 5. Grounds for dismissal of appeal. The appeal may be dismissed motu proprio or on motion of the
respondent on the following grounds:

xxxx

(e) Failure to comply with any circular, directive or order of the Supreme Court without justifiable cause;

[23]
Rollo, pp. 217-225.
[24]
Id. at 227-228.
[25]
Bantay Republic Act or BA-RA 7941 v. Commission on Elections, G.R. No. 177271, 4 May 2007, 523 SCRA 11,
cited in Cadangen v. Commission on Elections, G.R. No. 177179, 5 June 2009.
[26]
Alvarez v. Commission on Elections, 405 Phil. 950, 959 (2001).
[27]
Cantoria v. Commission on Elections, G.R. No. 162035, 26 November 2004, 444 SCRA 538, 543, cited
in Basmala v. Commission on Elections, G.R. No. 176724, 6 October 2008, 567 SCRA 664, 668.
[28]
Doruelo v. Commission on Elections, 218 Phil. 346 (1984).
[29]
Rollo, p. 76.
[30]
Id. at 77.
[31]
Motorcade. Dictionary.com. Dictionary.com Unabridged (v 1.1). Random House, Inc.
http://dictionary.reference.com/browse/motorcade (accessed: July 16, 2009).
[32]
AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION
SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT
NATIONAL AND LOCAL ELECTORAL EXERCISES, PROVIDING FUNDS THEREFOR AND FOR
OTHER PURPOSES.
[33]
Republic Act No. 9369 is 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, 1998NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT
NATIONAL AND LOCAL ELECTORAL EXERCISES, TO ENCOURAGE TRANSPARENCY,
CREDIBILITY, FAIRNESS AND ACCURACY OF ELECTIONS, AMENDING FOR THE PURPOSE
BATAS PAMPANSA BLG. 881, AS AMEMDED, REPUBLIC ACT NO. 7166 AND OTHER RELATED
ELECTIONS LAWS, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES." It was
published in the newspapers Malaya (26 January 2007) and Business Mirror (26-27 January 2007). It thus
took effect fifteen (15) days after its publication or on 10 February 2007.
[34]
G.R. No. 164858, 16 November 2006, 507 SCRA 114.
[35]
Mecano v. Commission on Audit, G.R. No. 103982, 11 December 1992, 216 SCRA 500, 504.
[36]
Blacks Law Dictionary (6th Ed [1990]), p. 1299.
[37]
Erroneously cited as Section 47 in the Revised Dissenting Opinion.
[38]
Intia, Jr. v. Commission on Audit, 366 Phil. 273, 290 (1999), citing Mecano v. Commission on Audit, supra note
35.
[39]
Agujetas v. Court of Appeals, G.R. No. 106560, 23 August 1996, 261 SCRA 17, 34-35.
[40]
Ty v. Trampe, G.R. No. 117577, 1 December 1995, 250 SCRA 500, 514-515, citing Gordon v. Veridiano, 11
December 1992, 216 SCRA 500, 505-506.
[41]
G.R. No. 164858, 16 November 2006, 507 SCRA 114, 146.
[42]
This same reasoning holds true for a person (who is neither a candidate nor a voter) who commits any of the
acts described under Section 79(b) of the Omnibus Election Code for the promotion of the election
of another person who has already filed a certificate of candidacy; the former shall be prosecuted for the
election offense of premature campaigning only in the event that the latter actually continues with
his/her candidacy after the start of the campaign period.

[43]
480 Phil. 915 (2004).
[44]
Sec. 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. x x x (Emphasis ours.)
[45]
Paras v. Commission on Elections, 332 Phil. 56, 64 (1996).
[46]
AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN
THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL
ELECTORAL EXERCISES, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES.

[47]
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 ELECTIONS
LAWS, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES.
[48]
The electoral aspect of a disqualification case determines whether the offender should be disqualified from
being a candidate or from holding office. Proceedings are summary in character and require only clear
preponderance of evidence. An erring candidate may be disqualified even without prior determination of
probable cause in a preliminary investigation. The electoral aspect may proceed independently of the
criminal aspect, and vice-versa. (Lanot v. Commission on Elections, supra note 34.)
[49]
The criminal aspect of a disqualification case determines whether there is probable cause to charge a candidate
for an election offense. The prosecutor is the COMELEC, through its Law Department, which determines
whether probable cause exists. If there is probable cause, the COMELEC, through its Law Department,
files the criminal information before the proper court. Proceedings before the proper court demand a full-
blown hearing and require proof beyond reasonable doubt to convict. A criminal conviction shall result in
the disqualification of the offender, which may even include disqualification from holding a future public
office. (Lanot v. Commission on Elections, supra note 34.)
[50]
Spouses Pasco v. Pison-Arceo Agricultural and Development Corporation, G.R. No. 165501, 28 March 2006,
485 SCRA 514, 523.
[51]
Labo, Jr. v. Commission on Elections, 211 Phil. 297, 312 (1992).